CONCURRING OPINION OF JUDGE STRETEANU

I voted with the majority in finding no violation of Article 3 as regards the applicant Marin Stoica, and I concur with the conclusions set out in the judgment. Nonetheless, I should like to emphasise certain points to which I attach particular importance.

The Court has consistently ruled in relation to Article 3 of the Convention that, where an individual makes a credible assertion that he has been subjected by State agents to treatment that is in breach of Article 3, the relevant authorities must carry out “an effective official investigation” capable of establishing the facts and identifying and punishing those responsible (see Assenov and Others v. Bulgaria , 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII, and Åžerban v. Romania , no. 11014/05, § 80, 10 January 2012). In addition, this requirement of promptness and reasonable expedition in the obligation to carry out an investigation exists even where it concerns acts committed by private individuals (see Ebcin v. Turkey , no. 19506/05, § 56, 1 February 2011). Lastly, the Court has stated that it is not in principle acceptable that the conduct and outcome of such proceedings are hindered, inter alia , by expiry of the time-limit for criminal prosecution on account of judicial procrastination, incompatible with the requirement of promptness and reasonable diligence implicit in this context (see Okkalı v. Turkey , no. 52067/99, § 76, ECHR 2006 ‑ XII; Türkmen v. Turkey , no. 43124/98, 19 December 2006; Hüseyin ÅžimÅŸek v. Turkey , no. 68881/01, § 67, 20 May 2008, and Åžerban , cited above, § 80).

One can therefore speak of a fundamental obligation arising from the procedural limb of Article 3 – once a case concerning treatment contrary to this provision has been submitted to the judicial authorities, they must show promptness in carrying out the investigation in order to avoid a situation where criminal liability becomes time-barred. However, where the applicant seeks to apply to the judicial authorities only after the limitation period has expired, what can the judicial authorities do to fulfil this obligation under Article 3? Since the statute of limitations prevents prosecution of the case, the proceedings cannot continue. In consequence, the only obligation on the authorities in such a case is that of ensuring that the offences are correctly classified in law, and that the limitation period has expired in relation to this classification. This is what precisely what the authorities did in this case. Given that, under Romanian law, offences involving violence are classified in relation to the duration of any medical treatment required for injuries sustained, the prosecutor ordered a fresh medical report and asked the pathologists to determine whether the injuries sustained by the applicant had been life-threatening and whether there was a causal link between those injuries and the medical conditions from which he suffered at the date when that report was commissioned (see paragraph 172 of the judgment). Had the medical report confirmed one of these hypotheses, a more serious classification (serious bodily injury or attempted murder) could have been given to the offences, which would have allowed for a longer limitation period. In the present case, given that the second medical report upheld the conclusions reached in the first, the prosecutor was obliged to maintain the classification given to the offence and to take account of the fact that the limitation period had expired.

Another question could possibly be raised in this connection. In cases such as this one, are there reasons for ruling out limitation de plano ? In other words, is it possible to extend the scope of offences which are not subject to statutory limitation to include offences such as those of which this applicant was a victim? Some of the Court’s recent judgments seem to indicate that this question may be answered in the affirmative. The Court has ruled that, in the event of widespread use of lethal force against the civilian population during anti-Government demonstrations preceding the transition from a totalitarian regime to a more democratic system, the Court cannot accept that an investigation has been effective where it is terminated as a result of the statutory limitation of criminal liability, when it is the authorities themselves who have remained inactive (see Association “21 December 1989” and Others v. Romania , nos. 33810/07 and 18817/08, § 144, 24 May 2011). In addition, the Court has emphasised that an amnesty and pardon are generally incompatible with the duty incumbent on the States to investigate acts of torture and to combat impunity for international crimes (see Ould Dah v. France (dec.), no. 13113/03, 17 March 2009, and Abdülsamet Yaman v. Turkey , no. 32446/96, § 55, 2 November 2004). I do not believe, however, that this case-law imposes on the States an obligation to rule out de plano statutory liability for offences which could come within the scope of Article 3. In my opinion, the Court’s judgment in Association “21 December 1989” and Others v. Romania does not oblige the legislature to remove the statutory limitation in respect of murder. Consistently with its previous case-law, the Court has merely emphasised that an investigation which is carried out while the statutory time-limit is running, and which is essentially characterised by the authorities’ passivity, cannot be described as effective. At the same time, the fact that an investigation results in convictions prior to expiry of the limitation period does not necessarily mean that it has been effective (see Şandru and Others v. Romania , no. 22465/03, §§ 73-80, 8 December 2009). Lastly, imprescriptibility must remain exceptional in nature - that is, it must in principle be reserved for crimes forming part of international criminal law (genocide, crimes against humanity, war crimes). Consequently, conduct is either classified as an international crime, in which case it is not subject to statutory limitation, or it remains subject to the ordinary rules of law. It is difficult to imagine the creation of an autonomous category of criminal offences of such gravity that they lie somewhere between crimes forming part of international law and ordinary criminal offences, but to which the imprescriptibility pertaining to international crimes is applied. Such a category, which would be identified solely by the context of the offences (widespread use of lethal force against the civilian population during social unrest characterising a change of political regime) lacks the precision required by criminal law.

Lastly, in spite of certain similarities with statutory limitation, there are reasons why amnesty and pardon differ from it. This is because they express the will of the State to waive the right to prosecute an individual or to oblige him or her to serve the sentence that has been imposed. Where such a waiver concerns a criminal offence for which there is an obligation to conduct an effective investigation, amnesty or pardon become tools enabling the State to escape its obligation to investigate. This explains the incompatibility of decisions on amnesty or pardon with the obligations arising from Article 3. Unlike amnesty and pardon, which always originate in the will of the State, statutory limitation does not necessarily indicate unwillingness on the part of the State to discharge its obligations under Article 3 or negligence in fulfilling them. Statutory limitation may be due to the passivity of the authorities, or to the passivity of the victim, who fails to submit a complaint to the authorities. In the first example, statutory limitation does indeed reveal a breach by the State of its obligations, while in the second case it is difficult to ascribe blame to the authorities. It is for this reason that the possibility of applying a time-bar to prosecution of conduct which may come within the scope of Article 3 is not in itself incompatible with the obligations arising from that provision. The Court has therefore no ground for ruling out statutory limitation de plano with regard to this category of offences, but it must verify on a case by case basis whether the statutory limitation is indicative of passivity on the part of the judicial authorities, or whether it is entirely attributable to the applicant.

DISSENTING OPINION OF JUDGE ZIEMELE, JOINED BY JUDGE Å IKUTA

1. It is to be recalled that the Court has always maintained that “In cases of wilful ill-treatment by State agents in breach of Article 3, the Court has repeatedly found that two measures are necessary to provide sufficient redress. Firstly, the State authorities must have conducted a thorough and effective investigation capable of leading to the identification and punishment of those responsible (see, inter alia , Krastanov v. Bulgaria , no. 50222/99, § 48, 30 September 2004; Çamdereli v. Turkey , no. 28433/02, §§ 28-29, 17 July 2008; and Vladimir Romanov v. Russia , no. 41461/02, §§ 79 and 81, 24 July 2008, cited above). Secondly, an award of compensation to the applicant is required where appropriate (see Vladimir Romanov v. Russia , cited above, § 79, and, mutatis mutandis , Aksoy v. Turkey , 18 December 1996, § 98, Reports of Judgments and Decisions 1996-VI, and Abdülsamet Yaman v. Turkey , no. 32446/96, § 53, 2 November 2004 (both in the context of Article 13)) or, at least, the possibility of seeking and obtaining compensation for the damage which the applicant sustained as a result of the ill-treatment (compare, mutatis mutandis , Nikolova and Velichkova v. Bulgaria , no. 7888/03, § 56, 20 December 2007 (concerning a breach of Article 2); Çamdereli v. Turkey , cited above, § 29; and Yeter v. Turkey , no. 33750/03, § 58, 13 January 2009). The Court has explained that: “As regards the requirement of a thorough and effective investigation, the Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. Such an investigation, as with one under Article 2, should be capable of leading to the identification and punishment of those responsible (see, inter alia , Assenov and Others v. Bulgaria , 28 October 1998, § 102, Reports 1998 ‑ VIII; Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV; Çamdereli v. Turkey , cited above, §§ 36-37; and Vladimir Romanov v. Russia , cited above, § 81). For an investigation to be effective in practice it is a prerequisite that the State has enacted criminal-law provisions penalising practices that are contrary to Article 3 (compare, mutatis mutandis , M.C. v. Bulgaria , no. 39272/98, §§ 150, 153 and 166, ECHR 2003 ‑ XII; Nikolova and Velichkova v. Bulgaria , cited above, § 57; and Çamdereli v. Turkey , cited above, § 38).” The fact that such an investigation ends with prescription requires a serious analysis on the part of the Court as to the compatibility of such an outcome with the requirements of Article 3. Be that as it may, the case at issue is even more serious, since the events of 13 and 14 June 1990 are part of the process through which Romania overthrew the former totalitarian regime. In the case before us, we are still in the context of the events following the fall of Nicolae CeauÅŸescu in December 1989. Uncertainty and unrest reign in the country. The population continues to break away from the old political power and the demonstrations on University Square demonstrate the struggle for a new democratic regime. In my view, these are special circumstances, as is evident from the reaction of the so-called transitional government, which decided to suppress peaceful demonstrations by any means.

2. The Chamber has decided that if measures taken to suppress peaceful demonstrations lead to the death of a civilian, as was the case for the husband of the first applicant, that situation should most probably not end with prescription or statutory limitation. In any event, the proceedings in the Mocanu v. Romania case are still pending. It is to be assumed that even if the proceedings had ended as a result of prescription, the Chamber would not have considered that to be an appropriate outcome in view of the obligations arising from Article 2.

3. The Chamber has also decided that where someone like Mr Stoica has accidentally been a victim of the use of force by State agents suppressing peaceful demonstrations, he should follow the usual avenues of criminal procedure, which include the applicability of the rules governing prescription. As the Chamber emphasises, while recognising that victims of such events may be vulnerable and that this may lead to certain delays in the bringing of their complaints to the attention of the authorities, the Chamber cannot accept that it was appropriate for Mr Stoica to lodge his grievances with the authorities as late as 2001 (see paragraphs 270-272 of the judgment). The Chamber dismisses the fact that the authorities themselves accepted the applicant’s complaint and joined it to criminal case file no. 75/P/1998. It accepts that the investigation into actions which led to the injury of civilians as part of the suppression of peaceful demonstrations can end with prescription, as has apparently been the case here (see paragraph 271).

4. Firstly, I cannot share the Chamber’s approach in disregarding all the investigative actions taken by the authorities following the lodging of the complaint by Mr Stoica in 2001. The Chamber thereby validates the authorities’ contradictory and unclear behaviour with regard to Mr Stoica’s specific situation and to the entire episode of abuse of power by the State authorities in suppressing demonstrations. The Chamber also accepts that an ineffective investigation can end with prescription, as occurred in this case through the High Court of Cassation’s decision of 17 June 2009 (see paragraphs 187-188). This approach on the part of the Chamber is contrary to the Court’s case-law, which does not accept that a State can excuse its inaction through the intervention of prescription, pardon or amnesty; this is especially so where the State has used massive force to oppress peaceful and democratic demonstrations (see paragraph 261). Yes, there was a delay in Mr Stoica’s actions, but there were more serious delays and inefficiencies in the actions of the Romanian authorities, in circumstances where they were under a special obligation to shed light on what happened at a time when the Romanian people were fighting for a free and democratic government. In such a context, with all due respect, this is no longer a simple issue of criminal law and of the investigation of the straightforward crime of assault, where criminal responsibility might be time-barred after three years in accordance with domestic criminal law. On the contrary, the incident involving Mr Stoica was part of a pattern of gross violations of human rights.

5. Secondly, where we are in the context of the gross human rights violations which typically accompany a change of political regime, the Court has emphasised the particular importance of a proper investigation, charged with establishing the truth. Such an investigation may not end with prescription (see Association “21 December 1989” and Others v. Romania , nos. 33810/07 and 18817/08, § 144, 24 May 2011). This approach by the Court is in line with the United Nations’ Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted and proclaimed by General Assembly resolution no. 60/147 of 16 December 2005. The United Nations has drawn up a detailed list which discloses the essence of the obligation to avoid impunity for gross human rights violations. The following principles can be mentioned: “(4.) In cases of gross violations of international human rights law [and serious violations of international humanitarian law constituting crimes under international law], States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him...”; “(6.) Where so provided for in an applicable treaty or contained in other international legal obligations, statutes of limitations shall not apply to gross violations of international human rights law [and serious violations of international humanitarian law which constitute crimes under international law]. (7.) Domestic statutes of limitations for other types of violations that do not constitute crimes under international law, including those time limitations applicable to civil claims and other procedures, should not be unduly restrictive.” The Court has endorsed a similar approach, especially in the related case of Association “21 December 1989” and Others v. Romania , delivered on 24 May 2011 and cited above.

6. In sum, I cannot accept that the Chamber applies a different approach in relation to two victims of the same events. Even the Romanian authorities did not refuse to begin an investigation into Mr Stoica’s complaints, although they were submitted in 2001. It is not for the European Court of Human Rights to take a different decision in that regard. In my view, there has been a violation of Article 3 in relation to Mr Stoica.