CASE OF SMARANDA AND OTHERS v. ROMANIA

 

 

FOURTH SECTION

CASE OF SMARANDA AND OTHERS v. ROMANIA

(Applications nos. 14564/18 and 4 others –

see appended list)

 

 

 

 

 

 

JUDGMENT
 

STRASBOURG

7 April 2026

This judgment is final but it may be subject to editorial revision.

In the case of Smaranda and Others v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

 Faris Vehabović, President,
 Lorraine Schembri Orland,
 Sebastian Răduleţu, judges,
and Valentin Nicolescu, Acting Deputy Section Registrar,

Having regard to:

the 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 the applicants listed in the appended table (“the applicants”), on the various dates indicated therein, all of whom were represented by Mr D.D. Deaconescu, a lawyer practising in Reşiţa;

the decision to give notice of the applications to the Romanian Government (“the Government”), represented by their Agents, most recently Ms O.F. Ezer, of the Ministry of Foreign Affairs;

the parties’ observations;

Having deliberated in private on 17 March 2026,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The facts of the case, as submitted by the parties, are similar to those of the cases of Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011) and Lupu and Others v. Romania ([Committee], nos. 3107/19 and 16 others, §§ 3-7, 17 January 2023).

2.  Two close relatives of the applicants were killed by gunfire in Reșița during the events of December 1989 which led to the fall of the communist regime. They were both active members of the military (a captain and a lieutenant major) and were killed by shots fired by other soldiers.

3.  In 1990 the military prosecutor’s office attached to the High Court of Cassation and Justice opened investigations, of its own motion, into the deaths of the applicants’ close relatives and of other participants in the events of December 1989. The main criminal investigation was registered under file no. 97/P/1990 (and was later registered as file no. 11/P/2014).

4.  In parallel, two other criminal investigations were carried out into the specific events in Reșița which had led to the deaths of the applicants’ relatives. They culminated in the committal for trial and the subsequent conviction of the soldiers who had shot the applicants’ close relatives, as detailed below.

5.  In the criminal proceedings concerning the killing of Mr Ion Smaranda (the husband of the applicant in application no. 14564/18 and the father of the applicants in applications nos. 47751/18 and 22236/19) – by a final decision of the Supreme Court of Justice of 31 January 2002 – the defendant (P.G.) was convicted of aggravated murder and sentenced to seven years’ imprisonment. According to this decision, the manner in which P.G. opened fire against the victim, without warning, in the context of the partial warning issued by the chain of command of the military unit, infringed the relevant military rules.

6.  In the criminal proceedings concerning the death of Mr Ioan Poptelecan (the husband and father of the applicants in applications nos. 24843/18 and 7613/19 respectively), by a final decision of the Supreme Court of Justice of 1 March 2001, the defendant (T.D.) was convicted of murder and received a suspended sentence of three years and six months’ imprisonment. According to this decision, the manner in which T.D. opened fire, without warning, against the victim with whom he was on patrol inside the military unit to counter potential external danger, had been unlawful.

7.  Each defendant was ordered by the Supreme Court to pay, jointly with the Ministry of Defence, amounts ranging between 85 million and 130 million old Romanian lei (ROL – approximately 3,000 and 5,200 euros (EUR)) in respect of pecuniary and non-pecuniary damage sustained by the applicants on account of their material losses (such as the loss of financial support in respect of their respective minor children) and their loss of a loved one in violent circumstances. The applicants submitted that they had never received any of the damages awarded by the courts, without indicating any enforcement measures that they had requested.

8.  The applicants’ cases have all continued to be examined in the main criminal investigation (paragraph 3 above), and the applicants have all been heard by military prosecutors on multiple occasions and have all brought civil claims. According to both the Government and the applicants, they continue to be part of the ongoing investigation.

9.  The relevant procedural steps taken in the main criminal investigation were described in Association “21 December 1989” and Others (cited above, §§ 12-41) and Mariana Popa and Others v. Romania ([Committee], nos. 42163/18 and 4 others, §§ 3-10, 8 July 2025).

10.  On 5 April 2019 the military prosecutor’s office indicted several individuals (namely, a former President of Romania, a former Prime Minister of Romania, and a former head of the Romanian air force) for crimes against humanity; it discontinued the investigation with regard to various other individuals (for a range of reasons which prevented the continuation of the criminal proceedings).

11.  On 9 October 2020 the Preliminary Chamber of the High Court of Cassation and Justice ordered the return of the file to the military prosecutor’s office because of procedural irregularities in the indictment. On 4 February 2021 the military prosecutor’s office restarted the proceedings after correcting the indictment.

12.  On 14 June 2024 the Preliminary Chamber of the High Court of Cassation and Justice allowed complaints submitted by some of the parties – namely the accused and certain civil parties – against the indictment and ordered the prosecutor’s office to remedy the deficiencies that affected its legality.

13.  On 20 September 2024 the same court established, by a final decision, that the deficiencies had not been remedied and ordered the return of the file to the prosecutor’s office.

14.  According to the latest information available to the Court (which was submitted to it on 4 October 2024), it appears that the case is pending before the military prosecutor’s office attached to the High Court of Cassation and Justice.

15.  The legal provisions relevant to 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).

16.  Relying on Article 2 of the Convention, the applicants complained of the lack of an effective criminal investigation by the authorities capable of leading to the punishment of those responsible for the deaths of their relatives during the events of December 1989 in Reşiţa. Relying on Article 6 § 1 of the Convention, they also complained about the length of the criminal proceedings instituted after the events of December 1989; in support of their complaint they noted that the main investigation (in which the applicants were participating) had been opened by the military prosecutor’s office of its own motion in 1990 and was still ongoing.

THE COURT’S ASSESSMENT        JOINDER OF THE APPLICATIONS

17.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment (Rule 42 § 1 of the Rules of Court).

      ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

18.  The Government raised preliminary objections in respect of all the applications, contending that the applicants lacked victim status.

19.  The Government noted that the criminal investigations regarding the killing of the applicants’ relatives had been closed in 2001 and 2002, and that the related proceedings had ended in the conviction by the Supreme Court of Justice of those directly responsible (paragraphs 4-6 above); they also pointed out that those proceedings had resulted in the award of financial compensation to the applicants.

20.  The applicants submitted that they continued to be parties to the main criminal investigation, which was still ongoing. They also submitted that they had never received the compensation awarded by the domestic courts – an assertion which the Government did not contest. The applicants stated that the reason for the non‑enforcement of the compensation award was that the defendants had been serving prison sentences and unable to pay.

21.  The Court reiterates that a decision or measure favourable to an 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, a breach of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006‑V).

22.  Turning to the present case, the Court notes that the applicants have actively participated in the main criminal investigation concerning crimes against humanity (see paragraphs 8 and 10 above), to which they joined civil claims. As the purpose of the main investigation is to establish whether any State officials were responsible for the deaths of victims of the events in December 1989, including the applicants’ relatives – irrespective of the final judicial decisions finding the direct perpetrators guilty of the crimes against the latter – the subject matter of the two sets of proceedings is distinct enough to justify, despite the above-mentioned final decisions, the applicants’ continued status as victims with respect to the main criminal proceedings, that made the object of their application to the Court.

23.  The Court reiterates that investigations into such cases should be broad enough to permit the investigating authorities to take into consideration not only the actions of the State agents who directly used lethal force but also all the surrounding circumstances, including such matters as the planning and control of the operations in question, where this is necessary in order to determine whether the State complied with its obligation under Article 2 to protect life (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 163, ECHR 2011; see also, mutatis mutantis, Jelić v. Croatia, no. 57856/11, § 88, 12 June 2014, and M. and Others v. Croatia, no. 50175/12, § 76, 2 May 2017, as regards the distinction between an investigation into the superior (command) responsibility and another concerning their subordinates giving immediate orders and/or being direct perpetrators of crimes, there in the context of war crimes and large scale operations and events).

24.  The Court further notes that there is no evidence indicating that the violation alleged by the applicants – namely the ineffectiveness of the main criminal investigation on account of its length and the authorities’ failure to involve them in the proceedings – has been acknowledged or that they have been afforded any redress by the domestic authorities in that connection. The damages awarded in 2001 and 2002 were in no way intended to afford just satisfaction to the applicants for the inconvenience and uncertainty resulting from the conduct of the main investigation; rather, they were meant to constitute compensation in respect of pecuniary and non‑pecuniary damage stemming from the killing of their relatives (see paragraph 4 above). Lastly, the Government did not contest that the above-mentioned final judicial decisions (see paragraph 7 above) had not been enforced in respect of the awards for pecuniary and non-pecuniary damage.

25.  Accordingly, the Court dismisses the Government’s preliminary objection.

26.  The Court further notes that the complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

27.  The general principles concerning the effectiveness of an investigation into violent deaths have been summarised in Association “21 December 1989” and Others (cited above, §§ 133-35).

28.  In the present case, the Court notes that shortly after the events of December 1989 a criminal investigation was opened into the deaths of the applicants’ relatives as a result of gunfire.

29.  Having regard to its jurisdiction ratione temporis, the Court notes that the main criminal investigation into the deaths of the applicants’ close relatives from gunfire was opened in 1990 and continued after 20 June 1994 – that is, the date on which the Convention was ratified by Romania. The Court has already found that the investigation was procedurally defective, not only by reason of its excessive length and long periods of inactivity, but also because of the lack of involvement of the victims in the proceedings and the lack of information afforded to the public about its progress (ibid., §§ 133‑45; see also Alecu and Others v. Romania, nos. 56838/08 and 80 others, §§ 39‑40, 27 January 2015).

30.  The Court cannot therefore depart from its previous conclusions concerning the shortcomings identified in Association “21 December 1989” and Others (cited above, §§ 133‑45) and Alecu and Others (cited above, § 39), and concludes that the criminal investigation in the present case has not met the required standards – in particular since it has not been conducted with the reasonable expedition required by the Convention.

31.  The foregoing considerations are sufficient to enable the Court to conclude that the applicants were deprived of an effective investigation into their cases.

32.  There has accordingly been a violation of Article 2 of the Convention under its procedural limb.

    ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

33.  In the light of its finding under Article 2 of the Convention (see paragraph 32 above), the Court considers that it is not necessary to examine the admissibility and merits of the complaints under Article 6 § 1 of the Convention (see Association “21 December 1989” and Others, cited above, § 181).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

34.  The applicants claimed the amounts set out in the appendix in respect of non‑pecuniary damage and in respect of lawyers’ fees and the costs and expenses incurred before the Court.

35.  The Government contested the amounts as unsubstantiated or excessive.

36.  Having regard to the documents in its possession, 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 each of them the amounts set out in the appendix, plus any tax that may be chargeable (see, for illustrative purposes, Romic and others v. Croatia [Committee] no. 24501/19, § 24, 25 June 2024).

37.  The Court also considers it reasonable to award the applicants the amounts set out in the appendix in respect of lawyers’ fees for the proceedings before the Court.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Decides to join the applications;Declares the complaints concerning Article 2 of the Convention admissible;Holds that there has been a violation of Article 2 of the Convention under its procedural limb;Holds that there is no need to examine the admissibility and merits of the complaint under Article 6 § 1 of the Convention;Holds  that the respondent State is to pay each of the applicants, within three months, the amounts indicated in the appended table in respect of non‑pecuniary damage, plus any tax that may be chargeable, and in respect of costs and expenses, plus any tax that may be chargeable to the applicants, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;  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;Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 7 April 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 

 Valentin Nicolescu Faris Vehabović
 Acting Deputy Registrar President

 

 

APPENDIX

No.

Application no.

Lodged on

Applicant
Year of birth
Place of residence

Represented by

Particular circumstances of the application

Amount claimed under Article 41 of the Convention

Amount to be paid by the respondent State under Article 41 of the Convention

1.

14564/18

 

19/03/2018

 

Maria SMARANDA
1958
Reşiţa

 

David Daniel DEACONESCU

Wife of a victim killed by gunfire on the night of 22/23 December 1989 in Reșița.

EUR 15,000 in respect of non‑pecuniary damage;

 

EUR 3,200 for lawyers’ fees.

EUR 15,000 (fifteen thousand euros) in respect of non‑pecuniary damage;

 

EUR 500 (five hundred euros) in respect of costs and expenses.

 

2.

47751/18

 

01/10/2018

 

Adrian‑Florin SMARANDA
1985
Reşiţa

David Daniel DEACONESCU

Son of a victim killed by gunfire on the night of 22/23 December 1989 in Reșița.

 

EUR 20,000 in respect of non‑pecuniary damage;

 

EUR 2,750 for lawyers’ fees.

EUR 20,000 (twenty thousand euros) in respect of non‑pecuniary damage;

 

EUR 500 (five hundred euros) in respect of costs and expenses.

 

3.

22236/19

09/04/2019

Adina‑Laura SMARANDA
1984
Reşiţa

 

David Daniel DEACONESCU

Daughter of a victim killed by gunfire on the night of 22/23 December 1989 in Reșița.

EUR 20,000 in respect of non‑pecuniary damage;

 

EUR 2,750 for lawyers’ fees.

EUR 20,000 (twenty thousand euros) in respect of non‑pecuniary damage;

 

EUR 500 (five hundred euros) in respect of costs and expenses.

4.

24843/18

17/05/2018

Albina POPTELECAN
1960
Gornea

David Daniel DEACONESCU

Wife of a victim killed by gunfire on the night of 24/25 December 1989 in Reșița.

EUR 15,000 in respect of non‑pecuniary damage;

 

EUR 3,200 for lawyers’ fees.

EUR 15,000 (fifteen thousand euros) in respect of non‑pecuniary damage;

 

EUR 500 (five hundred euros) in respect of costs and expenses.

5.

7613/19

23/01/2019

Patricia POPTELECAN
1987
Timişoara

David Daniel DEACONESCU

Daughter of a victim killed by gunfire on the night of 24/25 December 1989 in Reșița.

EUR 20,000 in respect of non‑pecuniary damage;

 

EUR 2,750 for lawyers’ fees.

EUR 20,000 (twenty thousand euros) in respect of non‑pecuniary damage;

 

EUR 500 (five hundred euros) in respect of costs and expenses.

 

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