FOURTH SECTION
CASE OF PICU AND OTHERS v. ROMANIA
(Application no. 74269/16 and 22 other applications)
JUDGMENT
STRASBOURG
30 October 2018
This judgment is final but it may be subject to editorial revision.
In the case of Picu and Others v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 9 October 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in 23 applications against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Romanian nationals. The applicants’ personal details, the dates of their applications and names of their representatives are set out in the appended tables.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.
3. On 18 May 2017 and 12 October 2017 the applications were communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The facts, as submitted by the parties, are similar to those in Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011).
5. The applicants or their close relatives participated in demonstrations and were injured or killed by gunfire during the events of December 1989 in Bucharest, Slobozia, Târgoviște and Reșița, which led to the fall of the communist regime.
6. In 1990 the military prosecutor’s offices from several cities opened on their own motion criminal investigations into the use of violence against the demonstrators. The applicants’ injury and their close relatives’ deaths were investigated along with most of the cases in a main criminal investigation recorded in file no. 97/P/1990 (current no. 11/P/2014).
7. The most important procedural steps were mentioned in Association “21 December 1989” and Others (cited above, §§ 12-41) and in Sidea and Others v. Romania ([Committee] no. 889/15, §§ 8-11, 5 June 2018). Subsequent relevant developments of the criminal investigation are as follows.
8. On 1 November 2016 the military prosecutor ordered the initiation in rem of a criminal investigation for the offence of crimes against humanity in respect of the same circumstances of fact. Up to February 2017 further steps were taken in gathering information from domestic authorities, the prosecutor’s office contacting 211 civil parties, questioning members of the political party which took over the presidency at the time of events, planning the taking of evidence from military officers and other participants in the events, verifying the activity of the relevant military units and the audio/video recordings broadcast by radio and television.
9. From March 2017 the military prosecutor examined military and civilian archives, including the vast archives of the Romanian Senate. They also viewed and transcribed more than 400 hours of audio/video recordings. They proceeded with the re-examination of several witnesses. They questioned military personnel involved in the December 1989 military operations and fifty-one members of the political party which ruled at the time and of other authorities. They verified the documents indicating the military units’ actions from that period.
10. At the date of the latest information communicated by the parties to the Court (29 March 2018), the criminal investigation was still ongoing.
II. RELEVANT DOMESTIC LAW
11. The legal provisions relevant for the criminal proceedings instituted in connection with the events of December 1989 are set out in Association “21 December 1989” and Others (cited above, §§ 95-100) and Mocanu and Others v. Romania [GC] (nos. 10865/09 and 2 others, §§ 193‑96, ECHR 2014 (extracts)).
THE LAW
I. JOINDER OF THE CASES
12. The Court notes that the present cases concern the same factual circumstances and raise similar legal issues. Consequently, it considers it appropriate to order their joinder, in accordance with Rule 42 § 1 of the Rules of the Court.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
13. The applicants complained that the domestic authorities had not carried out within a reasonable time an effective investigation into the events of December 1989 which occurred in Bucharest, Slobozia, Târgoviște and Reșița, during which they were injured from gunfire or their close relatives were killed. They relied on Article 2 of the Convention. In so far as relevant, this provision reads as follows:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally ...”
A. Admissibility
14. The Government raised the preliminary objection of lack of victim status in relation to some of the applications listed in Appendix A, because the respective applicants had never been parties in the main criminal investigation since they had not expressed their intention to be included in it.
15. The applicants argued that they had victim status with regard to the absence of an effective criminal investigation in the present case.
16. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him or her of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006‑V). Furthermore, the Court reiterates that in cases where Article 2 of the Convention has been invoked in relation to the death or disappearance of close relatives in circumstances allegedly engaging the responsibility of the State, it has recognised the standing of the victim’s next-of-kin to submit an application even if the next-of-kin was not involved in the domestic procedure (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, §§ 98-100, ECHR 2014).
17. Turning to the present case, the Court notes that there is no evidence indicating an acknowledgement of the violation claimed by the applicants – ineffectiveness of the criminal investigation, due to its length and the authorities’ failure to involve them in the proceedings – or any redress afforded to them by the domestic authorities in this connection. Moreover, as the investigation had been opened by the authorities of their own motion (see paragraph 6 above), an application by the applicants to join the main investigation should have had no effect on the applicants’ standing (see Alecu and Others v. Romania, nos. 56838/08 and 80 others, § 31, 27 January 2015, and Ecaterina Mirea and Others v. Romania, nos. 43626/13 and 69 others, §§ 24-30, 12 April 2016).
18. Therefore, the Court dismisses the Government’s preliminary objection.
19. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
20. The Government described the steps recently taken by the national authorities in order to complete the criminal investigation into the events of December 1989 and made reference to their previous arguments raised in Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 128-132, 24 May 2011) and Alecu and Others (cited above, § 34).
21. The Court reiterates that an investigation must be effective in the sense that it is capable of leading to a determination of the circumstances of fact and to the identification and punishment of those responsible. This is not an obligation of result, but of means (see Kelly and Others v. the United Kingdom, no. 30054/96, § 96, 4 May 2001, and Anguelova v. Bulgaria, no. 38361/97, § 139, ECHR 2002‑IV). The State’s obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice and that requires a prompt examination of the case without unnecessary delays. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Šilih v. Slovenia [GC], no. 71463/01, § 195, 9 April 2009; Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 191, ECHR 2009; and Association “21 December 1989” and Others, cited above, § 134).
22. In the present case, the Court notes that after December 1989 a criminal investigation was opened by the authorities on their own motion with regard to the armed suppression of the anti-communist demonstrations of December 1989 in Bucharest, Slobozia, Târgoviște and Reșița, with a view to establishing the circumstances of the death or injury of a large number of people.
23. Bearing in mind its ratione temporis jurisdiction (see Association “21 December 1989” and Others, cited above, §§ 117-18) and regardless of the fact that the investigation was carried out by military prosecutors (see Elena Apostol and Others v. Romania, nos. 24093/14 and 16 others, § 34, 23 February 2016), the Court notes that the investigation in the present case was opened more than twenty-eight years ago and it was still ongoing in March 2018 (see paragraph 10 above).
24. The Court has already examined the domestic authorities’ conduct of the investigation opened into the violent suppression of the demonstrations during the events of December 1989 and concluded that Article 2 of the Convention had been violated under its procedural limb (see Association “21 December 1989” and Others, cited above, §§ 133-45; Alecu and Others, cited above, §§ 39-42; and Ecaterina Mirea and Others, cited above, §§ 37-44). The Court in particular found the main investigation to be procedurally defective, particularly by reason of its excessive length and long periods of inactivity, as well as because of the lack of involvement of the victims or their relatives, respectively, in the proceedings and of the lack of information to the public about the progress of the inquiry. Identifying similar shortcomings in the present case, the Court cannot therefore depart from its previous approach on the matter.
25. The foregoing considerations are sufficient to enable the Court to conclude that the applicants were deprived of an effective investigation into their cases.
There has accordingly been a violation of Article 2 of the Convention, under its procedural limb.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION
26. The applicants complained under Article 6 § 1 of the Convention about the length of the criminal proceedings concerning the events of December 1989. Some of the applicants listed in Appendix A also complained, under Article 13 of the Convention, of the absence of an effective domestic remedy to enable their claims to be determined.
27. In the light of the finding relating to Article 2 (see paragraph 25 above), the Court considers that it is not necessary to examine the admissibility and merits of the complaints under Articles 6 § 1 and/or 13 of the Convention (see, among other authorities, Association “21 December 1989” and Others, cited above, § 181).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
28. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
29. The applicants claimed the amounts set out in Appendix A in respect of pecuniary and non-pecuniary damage.
30. The Government submitted that the claims were unsubstantiated by evidence and excessive.
31. The Court considers on the one hand that the applicants have failed to demonstrate the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects those claims. On the other hand, the Court considers that the violation of Article 2 of the Convention, under its procedural limb, has caused the applicants substantial non-pecuniary damage, such as distress and frustration. Ruling on an equitable basis, it awards them the amounts set out in Appendix B, plus any tax that may be chargeable.
B. Costs and expenses
32. Some of the applicants also claimed costs and expenses, as well as the respective lawyer’s fees incurred before the Court in the amounts indicated in Appendix A.
33. The Government contested the amounts as unsubstantiated.
34. Regard being had to the documents in its possession and to its case‑law, the Court rejects the claim for costs and expenses and the lawyer’s fees, owing to lack of any relevant documentation.
C. Default interest
35. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the complaint concerning Article 2 of the Convention admissible;
3. Holds that there has been a violation of Article 2 of the Convention under its procedural limb;
4. Holds that there is no need to examine the admissibility and the merits of the complaints under Articles 6 § 1 and 13 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicants, within three months, the amounts set out in Appendix B, plus any tax that may be chargeable, in respect of non‑pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 30 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Andrea TamiettiPaulo Pinto de Albuquerque
Deputy RegistrarPresident
APPENDIX A
No.
Application no. and
date of introduction
Applicant’s name
Date of birth
Place of residence
Communicated complaints
Government’s preliminary objections
Amount claimed by the applicants under Article 41 of the Convention
1.
74269/16
28/11/2016
Adriana Laura PICU
25/07/1972
Târgoviște
Art. 2, 6 § 1
Lack of victim status
EUR 20,000 as non-pecuniary damage;
EUR 150 as costs and expenses and EUR 3,500 as lawyer’s fee, jointly for applicants from positions nos. 1-5 and 8.
2.
74276/16
28/11/2016
Maria DUMITRESCU
18/06/1952
Târgoviște
Art. 2, 6 § 1
None
EUR 20,000 as non-pecuniary damage;
EUR 150 as costs and expenses and EUR 3,500 as lawyer’s fee, jointly for applicants from positions nos. 1-5 and 8.
3.
74301/16
28/11/2016
Daniel-Ciprian DUMITRESCU
10/10/1978
Târgoviște
Art. 2, 6 § 1
Lack of victim status
EUR 20,000 as non-pecuniary damage;
EUR 150 as costs and expenses and EUR 3,500 as lawyer’s fee, jointly for applicants from positions nos. 1-5 and 8.
4.
76016/16
05/12/2016
Marioara ZĂRNESCU
19/01/1955
Bucharest
Art. 2, 6 § 1
None
EUR 20,000 as non-pecuniary damage;
EUR 150 as costs and expenses and EUR 3,500 as lawyer’s fee, jointly for applicants from positions nos. 1-5 and 8.
5.
76018/16
05/12/2016
Florin ZĂRNESCU
02/11/1972
Bucharest
Art. 2, 6 § 1
None
EUR 20,000 as non-pecuniary damage;
EUR 150 as costs and expenses and EUR 3,500 as lawyer’s fee, jointly for applicants from positions nos. 1-5 and 8.
6.
23375/17
20/03/2017
Constantin FILIP
29/01/1976
Măgurele, Ilfov County
Art. 2, 6 § 1
Lack of victim status
EUR 50,000 as non-pecuniary damage.
7.
23704/17
20/03/2017
Steluța TARȚA
03/09/1968
Bucharest
Art. 2, 6 § 1
None
EUR 50,000 as non-pecuniary damage.
8.
24299/17
21/03/2017
Nicolae ZĂRNESCU
05/08/1979
Torrejon de Ardoz, Spain
Art. 2, 6 § 1
Lack of victim status
EUR 20,000 as non-pecuniary damage;
EUR 150 as costs and expenses and EUR 3,500 as lawyer’s fee, jointly for applicants from positions nos. 1-5 and 8.
9.
32410/17
14/04/2017
Dragoş ZAMFIRESCU
25/09/1970
Bucharest
Art. 2, 6 § 1, 13
Lack of victim status
EUR 370,000 as non-pecuniary damage.
10.
33879/17
26/04/2017
Valentina STAN
15/08/1976
Slobozia
Art. 2, 6 § 1, 13
Lack of victim status
EUR 15,000 as pecuniary damage;
EUR 15,000 as non-pecuniary damage.
11.
33895/17
26/04/2017
Ștefan-Valentin RĂUȚI
05/05/1988
Reșița
Art. 2, 6 § 1, 13
Lack of victim status
EUR 15,000 as pecuniary damage;
EUR 15,000 as non-pecuniary damage.
12.
33899/17
26/04/2017
Gherlinde RĂUȚI
16/03/1967
Reșița
Art. 2, 6 § 1, 13
None
EUR 15,000 as pecuniary damage;
EUR 15,000 as non-pecuniary damage.
13.
33902/17
26/04/2017
Ioana MIRCEA
18/06/1944
Reșița
Art. 2, 6 § 1, 13
None
EUR 15,000 as pecuniary damage;
EUR 15,000 as non-pecuniary damage.
14.
33907/17
26/04/2017
Ana BRÂNZEI
13/08/1956
Reșița
Art. 2, 6 § 1, 13
None
EUR 15,000 as pecuniary damage;
EUR 15,000 as non-pecuniary damage.
15.
33909/17
26/04/2017
Vintilă IONESCU
30/03/1939
Bucharest
Art. 2, 6 § 1, 13
Lack of victim status
EUR 15,000 as pecuniary damage;
EUR 15,000 as non-pecuniary damage.
16.
33916/17
26/04/2017
Gheorghe-Mihail POSTOLACHE
17/07/1949
Bucharest
Art. 2, 6 § 1, 13
None
EUR 15,000 as pecuniary damage;
EUR 15,000 as non-pecuniary damage.
17.
33961/17
26/04/2017
Nicolae CIUCIUNĂ
01/06/1952
Zorlențu Mare, Caraș-Severin County
Art. 2, 6 § 1, 13
None
EUR 15,000 as pecuniary damage;
EUR 15,000 as non-pecuniary damage.
18.
33962/17
26/04/2017
Gina PITICU
14/10/1979
Bucharest
Art. 2, 6 § 1, 13
Lack of victim status
EUR 15,000 as pecuniary damage;
EUR 15,000 as non-pecuniary damage.
19.
33965/17
26/04/2017
Safta STAN
18/02/1960
Slobozia
Art. 2, 6 § 1, 13
None
EUR 15,000 as pecuniary damage;
EUR 15,000 as non-pecuniary damage.
20.
33966/17
26/04/2017
Ramona-Loredana MITU
06/05/1979
Bucharest
Art. 2, 6 § 1, 13
Lack of victim status
EUR 15,000 as pecuniary damage;
EUR 15,000 as non-pecuniary damage.
21.
33968/17
26/04/2017
Ana BĂDOI
06/09/1963
Bucharest
Art. 2, 6 § 1, 13
None
EUR 15,000 as pecuniary damage;
EUR 15,000 as non-pecuniary damage.
22.
33970/17
26/04/2017
Olivia BĂDOI
07/07/1985
Bucharest
Art. 2, 6 § 1, 13
Lack of victim status
EUR 15,000 as pecuniary damage;
EUR 15,000 as non-pecuniary damage.
23.
33971/17
26/04/2017
Antonia-Georgiana ONOFREI
20/03/2001
Bucharest
Art. 2, 6 § 1, 13
Lack of victim status
EUR 15,000 as pecuniary damage;
EUR 15,000 as non-pecuniary damage.
APPENDIX B
No.
Application no. and
date of introduction
Applicant’s name
Date of birth
Place of residence
Applicant’s representative
Particular circumstances of the application
Amount to be paid by the respondent State under Article 41 of the Convention
1.
74269/16
28/11/2016
Adriana Laura PICU
25/07/1972
Târgoviște
Vasile TUDOR
Codlea
Daughter of a victim killed by gunfire on 24 December 1989 in Târgoviște.
EUR 15,000 (fifteen thousand euros)
2.
74276/16
28/11/2016
Maria DUMITRESCU
18/06/1952
Târgoviște
Vasile TUDOR
Codlea
Widow of a victim killed by gunfire on 24 December 1989 in Târgoviște.
EUR 15,000 (fifteen thousand euros)
3.
74301/16
28/11/2016
Daniel-Ciprian DUMITRESCU
10/10/1978
Târgoviște
Vasile TUDOR
Codlea
Son of a victim killed by gunfire on 24 December 1989 in Târgoviște.
EUR 15,000 (fifteen thousand euros)
4.
76016/16
05/12/2016
Marioara ZĂRNESCU
19/01/1955
Bucharest
Vasile TUDOR
Codlea
Widow of a victim injured by gunfire on 23 December 1989 and dead on 25 December 1989 in Bucharest.
EUR 15,000 (fifteen thousand euros) jointly with application no. 76018/16
5.
76018/16
05/12/2016
Florin ZĂRNESCU
02/11/1972
Bucharest
Vasile TUDOR
Codlea
Son of a victim injured by gunfire on 23 December 1989 and dead on 25 December 1989 in Bucharest.
EUR 15,000 (fifteen thousand euros) jointly with application no. 76016/16
6.
23375/17
20/03/2017
Constantin FILIP
29/01/1976
Măgurele,
Ilfov County
Costel TOROIMAN
Bucharest
Son of a victim killed by gunfire on 25 December 1989 in Bucharest.
EUR 15,000 (fifteen thousand euros)
7.
23704/17
20/03/2017
Steluța TARȚA
03/09/1968
Bucharest
Costel TOROIMAN
Bucharest
Daughter of a victim killed by gunfire on 25 December 1989 in Bucharest.
EUR 15,000 (fifteen thousand euros)
8.
24299/17
21/03/2017
Nicolae ZĂRNESCU
05/08/1979
Torrejon de Ardoz, Spain
Vasile TUDOR
Codlea
Son of a victim injured by gunfire on 23 December 1989 and dead on 25 December 1989 in Bucharest.
EUR 15,000 (fifteen thousand euros)
9.
32410/17
14/04/2017
Dragoş ZAMFIRESCU
25/09/1970
Bucharest
Ștefan Octavian POPESCU
Bucharest
Brother of a victim killed by gunfire on 21 December 1989 in Bucharest.
EUR 15,000 (fifteen thousand euros)
10.
33879/17
26/04/2017
Valentina STAN
15/08/1976
Slobozia
Ionuț MATEI
Bucharest
Daughter of a victim killed by gunfire on 23/24 December 1989 in Slobozia.
EUR 15,000 (fifteen thousand euros)
11.
33895/17
26/04/2017
Ștefan-Valentin RĂUȚI
05/05/1988
Reșița
Ionuț MATEI
Bucharest
Son of a victim killed by gunfire on 24 December 1989 in Reșița.
EUR 15,000 (fifteen thousand euros) jointly with application no. 33899/17
12.
33899/17
26/04/2017
Gherlinde RĂUȚI
16/03/1967
Reșița
Ionuț MATEI
Bucharest
Widow of a victim killed by gunfire on 24 December 1989 in Reșița.
EUR 15,000 (fifteen thousand euros) jointly with application no. 33895/17
13.
33902/17
26/04/2017
Ioana MIRCEA
18/06/1944
Reșița
Ionuț MATEI
Bucharest
Widow of a victim killed by gunfire on 24 December 1989 in Reșița.
EUR 15,000 (fifteen thousand euros)
14.
33907/17
26/04/2017
Ana BRÂNZEI
13/08/1956
Reșița
Ionuț MATEI
Bucharest
Injured by gunfire on 24 December 1989 in Reșița.
EUR 15,000 (fifteen thousand euros)
15.
33909/17
26/04/2017
Vintilă IONESCU
30/03/1939
Bucharest
Ionuț MATEI
Bucharest
Father of a victim killed by gunfire and compression by a military vehicle on 21 December 1989 in Bucharest.
EUR 15,000 (fifteen thousand euros)
16.
33916/17
26/04/2017
Gheorghe-Mihail POSTOLACHE
17/07/1949
Bucharest
Ionuț MATEI
Bucharest
Son of a victim killed by gunfire on 23 December 1989 in Bucharest.
EUR 15,000 (fifteen thousand euros)
17.
33961/17
26/04/2017
Nicolae CIUCIUNĂ
01/06/1952
Zorlențu Mare, Caraș-Severin County
Ionuț MATEI
Bucharest
Injured by gunfire on 24 December 1989 in Reșița.
EUR 15,000 (fifteen thousand euros)
18.
33962/17
26/04/2017
Gina PITICU
14/10/1979
Bucharest
Ionuț MATEI
Bucharest
Daughter of victim killed by gunfire on 23/24 December 1989 in Slobozia.
EUR 15,000 (fifteen thousand euros)
19.
33965/17
26/04/2017
Safta STAN
18/02/1960
Slobozia
Ionuț MATEI
Bucharest
Widow of victim killed by gunfire on 23/24 December 1989 in Slobozia.
EUR 15,000 (fifteen thousand euros)
20.
33966/17
26/04/2017
Ramona-Loredana MITU
06/05/1979
Bucharest
Ionuț MATEI
Bucharest
Daughter of victim killed by gunfire on 21 December 1989 in Bucharest.
EUR 15,000 (fifteen thousand euros)
21.
33968/17
26/04/2017
Ana BĂDOI
06/09/1963
Bucharest
Ionuț MATEI
Bucharest
Widow of victim killed by compression by a military vehicle on 21 December 1989 in Bucharest.
EUR 15,000 (fifteen thousand euros) jointly with application no. 33970/17
22.
33970/17
26/04/2017
Olivia BĂDOI
07/07/1985
Bucharest
Ionuț MATEI
Bucharest
Daughter of victim killed by compression by a military vehicle on 21 December 1989 in Bucharest.
EUR 15,000 (fifteen thousand euros) jointly with application no. 33968/17
23.
33971/17
26/04/2017
Antonia-Georgiana ONOFREI
20/03/2001
Bucharest
Ionuț MATEI
Bucharest
Daughter of victim injured by gunfire on 25 December 1989, who died on 17 September 2005, in Bucharest.
EUR 15,000 (fifteen thousand euros)
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