Information Note on the Court’s case-law No. 141
May 2011
Association “21 Décembre 1989” and Others v. Romania - 33810/07 and 18817/08
Judgment 24.5.2011 [Section III]
Article 2
Positive obligations
Article 2-1
Effective investigation
Lack of effective investigation into the death of a young man during the events in Romania related to the overthrow of the Head of State in December 1989: violation
Article 8
Article 8-1
Respect for private life
Retention of information obtained through undercover surveillance: violation
Article 46
Article 46-2
Execution of judgment
Measures of a general character
Respondent State required to take all necessary measures to secure effective investigation into events linked to overthrow of Romanian Head of State in December 1989
Facts – This case stemmed from the crackdown on anti-government demonstrations throughout Romania in December 1989, around the time when the then Head of State, Nicolae Ceauşescu, was overthrown. In the 1990s various investigations into the events were opened by military prosecutors. The main one, under file no. 97/P/1990, began in July 1990. The first applicant, the association 21 December 1989, is an association that supports the interests of victims (those who were injured and relatives of the deceased) in the criminal proceedings being conducted by the public prosecutor’s office at the High Court of Cassation and Justice. These proceedings concern killings, gunshot wounds, and the ill-treatment and confinement of several thousand people in various Romanian towns and cities. The second applicant, Mr Mărieş, took part in the anti-government demonstrations in Bucharest in December 1989 and in subsequent demonstrations until 1990. The last two applicants, Mr and Mrs Vlase, are the parents of a young man who died aged nineteen during the crackdown in Braşov in December 1989.
Law – Article 2 (death of Mr and Mrs Vlase’s son): An investigation had been opened immediately and the criminal proceedings had been pending for over twenty years. As the European Convention on Human Rights had not entered into force in respect of Romania until 20 June 1994 the Court could examine that investigation only in relation to the period subsequent to that date. In 1994 the case was pending before military prosecutors who were, like the majority of the defendants, military personnel bound by the principle of subordination to hierarchy. Furthermore, no investigative act concerning the death of the applicants’ son had been performed for a total of ten years, apparently without justification. Similarly, shortcomings and causes of delay had been identified, including a lack of prompt notification to the injured parties of discontinuance decisions, or a “lack of cooperation” on the part of the institutions involved in the December 1989 crackdown. The deliberate withholding of evidence cast doubt on the actual capacity of the investigations to establish the facts. Similarly, the “secret” or “absolute secret” classification of essential information from the investigation was likely to impede the work of the judicial bodies responsible for it and was not justified in the present case. In addition, concerning the obligation to associate the victim’s relatives with the proceedings, no justification had been given for the total failure to give the applicants any information about the investigation until July 1999, despite their numerous requests. It was only in February 2010, twenty years after the events, that essential information from the investigation, previously covered by a “secret” or “absolute secret” classification, had been made available to the applicants or any other injured party. Thus the applicants’ interest in participating in the investigation, like the public’s interest in having a sufficient right of scrutiny, had not been adequately protected. Without underestimating the undeniable complexity of the case, the political and social issues referred to by the Romanian authorities in their arguments could not in themselves justify either the length of the investigation or the manner in which it had been conducted over a significant period of time, without those concerned or the public being informed of its progress. On the contrary, its importance for Romanian society should have encouraged the authorities to deal with the case promptly and without needless delays, in order to avoid any appearance of impunity for certain acts. In the case of a widespread use of lethal force against civilians during anti-government demonstrations preceding the transition from a totalitarian to a more democratic regime, the Court could not regard an investigation as effective when it ended with the prosecution of those responsible becoming statute barred as a result of the authorities’ own inactivity. Therefore the national authorities had not acted with the requisite degree of diligence for the purposes of Article 2 of the Convention.
Conclusion: violation (unanimously).
Article 8 (second applicant): Two intelligence notes and a summary report concerning the second applicant, drawn up in 1990 and classified as “secret”, confirmed that he had been subject to surveillance measures in that year. Those documents had been kept by the Romanian intelligence services at least until 2006, when he had obtained copies. The Court had previously found, in the Rotaru v. Romania judgment*, that the Romanian legislation concerning the gathering and archiving of information did not provide the safeguards necessary for the protection of individuals’ private lives. Nor did it indicate with reasonable clarity the scope and manner of exercise of the discretion conferred on the public authorities in such matters. The execution of that judgment was still pending before the Committee of Ministers of the Council of Europe. In addition, as the Court had already found in 2007, despite amendments to the Code of Criminal Procedure in 2003 and 2006, it still appeared possible for surveillance measures to be ordered in cases of presumed breaches of national security. The absence of sufficient guarantees in domestic law to ensure that intelligence obtained through secret surveillance was deleted when it was no longer needed for the aim pursued had thus had the result that the information on the second applicant gathered in 1990 by the intelligence services was still being kept by them sixteen years later in 2006. Moreover, with the lack of safeguards in the relevant domestic law, he ran a serious risk of having his telephone calls intercepted.
Conclusion: violation (unanimously).
Article 46: The finding of a violation of Article 2 on account of the lack of an effective investigation related to a wide-scale problem, given that many hundreds of people were involved as injured parties in the impugned criminal proceedings. In addition, more than a hundred applications similar to the present case were pending before the Court and could give rise in the future to new judgments finding a violation of the Convention. Thus, general measures at domestic level would unquestionably be necessary in the context of the execution of the present judgment. Romania would have to put an end to the situation that had led to the finding of a violation of Article 2 in the present case, on account of the right of the numerous persons affected to have an effective investigation – a right that was not extinguished by the time-bar on criminal liability – also having regard to the importance for Romanian society to know the truth about the events of December 1989. In those circumstances, the Court did not find it necessary to adjourn the examination of similar cases pending before it while waiting for Romania to take the necessary measures. The fact of continuing to examine similar cases would serve as a regularly reminder to Romania of its obligation arising from the present judgment.
Article 41: EUR 15,000 each to the third and fourth applicants and EUR 6,000 to the second applicant, all in respect of non-pecuniary damage.
* Rotaru v. Romania [GC], no. 28341/95, 4 May 2000, Information Note no. 18.
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This summary by the Registry does not bind the Court.
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