Information Note on the Court’s case-law No. 123
October 2009
Agache and Others v. Romania - 2712/02
Judgment 20.10.2009 [Section III]
Article 2
Article 2-1
Effective investigation
Inadequate investigation into the death of an officer killed in anti-communist demonstrations in 1989: violation
Facts – The applicants are the wife and children of Mr Agache, a miliţia officer who died in December 1989 from injuries sustained at the hands of anti-communist demonstrators at the time of the flight of the Ceauşescus. Four days later an investigation was commenced by the public prosecutor’s office at the County Court, and witnesses identified from photographs a number of persons who had beaten Mr Agache. In February 1999 the County Court convicted four persons and acquitted a fifth. In 2001 the Supreme Court of Justice dismissed the appeals on points of law lodged by both parties. The sentences imposed were not executed (three of the persons convicted were in Hungary). European arrest warrants were issued in respect of them; one of these was not forwarded to the Hungarian authorities, and the latter refused to enforce the other two.
Law – Article 2: The Court acknowledged that the investigation had been extremely complex, but observed that the proceedings had lasted for over eleven years, seven of them after the entry into force of the Convention in respect of Romania in June 1994. Furthermore, for more than three years after that date, no measures had been taken with a view to concluding the investigation, nor had any procedural steps been taken. Not until December 1997 had the public prosecutor at the County Court committed the five persons suspected of attacking and killing Mr Agache to stand trial. However, for an investigation to be considered effective the authorities had to have shown proof of expedition and diligence. The Government sought to justify the lengthy period of inactivity by referring to the “overall socio-political context in the aftermath of the 1989 revolution” which, in their view, could not be attributed to the authorities responsible for the investigation. However, the Court was unable to find that the authorities’ inactivity had been justified on the basis of the evidence in the file. Although it emerged from correspondence between the applicants and the authorities between 1990 and 1992 that the investigation had encountered difficulties owing to the fact that some witnesses had retracted their statements, the courts had heard evidence from only three witnesses and two of the accused, basing their findings on the statements made by the other witnesses during the investigation stage. In the absence of other evidence they should have heard evidence from the eyewitnesses who had been traced, in order to establish the facts and the identity of the perpetrators. Lastly, the Court observed that three of the persons convicted of the attack leading to Mr Agache’s death had not served the prison sentences imposed on them because the Romanian authorities had not taken the necessary steps to secure their extradition. Accordingly, the criminal proceedings had not been conducted with sufficient diligence. In the specific circumstances of the case, therefore, the proceedings at issue had not offered appropriate redress for the infringement of the values enshrined in Article 2.
Conclusion: violation (unanimously).
Article 41: EUR 25,000 in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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