GUSAR v. THE REPUBLIC OF MOLDOVA AND ROMANIA

THIRD SECTION

DECISION

Application no. 37204/02
Ludmila Yakovlevna GUSAR
against the Republic of Moldova and Romania

The European Court of Human Rights (Third Section), sitting on 30 April 2013 as a Chamber composed of:             

Josep Casadevall, President,
Alvina Gyulumyan,
Ján Šikuta,
Nona Tsotsoria,
Kristina Pardalos,
Johannes Silvis,
Valeriu Griţco, judges,

and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above application lodged on 19 August 2002,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mrs Ludmila Yakovlevna Gusar, is a Russian national, who was born in 1944 and lives in Slobozia, Moldova. She was represented before the Court by Mrs T. Bogoliubskaia, a lawyer practising in Moscow.

2. The facts of the case, as submitted by the applicant and as set out in Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004‑VII), may be summarised as follows.

3. The applicant is the widow of Mr A. Gusar, a military official of the break-away “Moldavian Republic of Transdniestria” (the “MRT”) who was killed on 8 May 1992, during the military conflict in the MRT.

4. In a judgment of 9 December 1993 the “Supreme Court of the Moldavian Republic of Transdniestria” found the four applicants in Ilaşcu and Others (cited above) guilty, inter alia, of killing Mr A. Gusar and another high ranking MRT official and sentenced them to sentences varying between twelve years’ imprisonment and death penalty, Mr Ilascu being the one sentenced to death.

5. The subsequent events were summarised as follows in Ilascu and others:

“220. On 9 December 1993 the President of the Republic of Moldova declared that the applicants’ conviction was unlawful, on the ground that it had been pronounced by an unconstitutional court.

...

222. On 3 February 1994 the Supreme Court of the Republic of Moldova examined of its own motion the judgment of 9 December 1993 of the “Supreme Court of the MRT”, quashed it on the ground that the court which had rendered it was unconstitutional, and ordered the file to be referred to the Moldovan public prosecutor for a new investigation in accordance with Article 93 of the Code of Criminal Procedure. It appears from the written depositions, the information supplied by the Moldovan Government and the evidence given by the witnesses heard by the Court in Chişinău in March 2003, that the investigation ordered in the judgment of 3 February 1994 came to nothing (see Annex: Mr Postovan, § 184; and Mr Rusu, § 302).

223. In addition, the Supreme Court of the Republic of Moldova set aside the warrant for the applicants’ detention, ordered their release and asked the public prosecutor to look into the possibility of prosecuting the judges of the “so-called” Supreme Court of Transdniestria for deliberately rendering an illegal decision, an offence punishable under Articles 190 to 192 of the Criminal Code.

224. The authorities of the “MRT” did not respond to the judgment of 3 February 1994.

225. The Moldovan authorities had opened an investigation into the deaths of Mr Gusar and Mr Ostapenko in April and May 1992 respectively, but the public prosecution service suspended this on 6 June 1994, under Article 172 § 3 of the Moldovan Code of Criminal Procedure, in the absence of any cooperation from the Transdniestrian judicial and police authorities. The investigation was reopened on 9 September 2000. As a result, a number of requests for cooperation (the transmission of documents) were sent to the “Public Prosecutor of the MRT”, Mr V.P. Zaharov. Not receiving any reply, the Moldovan public prosecution service once again suspended the investigation on 9 December 2000. Since then it has not been reopened.

...

234. On 5 May 2001 Mr Ilaşcu was released...”

6. The other three applicants in Ilascu and others were released in 2004 and 2007.

7. On 5 December 2002 the applicant wrote to the Prosecutor General’s Office of the Republic of Moldova requesting information concerning the progress of the investigation into the circumstances of her husband’s death.

8. In a reply dated 13 January 2003 the applicant was informed that the investigation had been discontinued on 9 December 2000 in view of restrictions of access to the territory of the MRT.

COMPLAINTS

9. Relying on Article 2 of the Convention the applicant alleged that her husband had been killed with Romanian weapons and that therefore Romania was responsible for his death because it had supplied weapons to the “terrorists” of the so-called Ilașcu group through the Moldovan secret service. She further complained under Article 2 of the Convention that the Moldovan authorities did not conduct an effective investigation into the circumstances of her husband’s death.

10. The applicant finally contended that as a result of the ineffectiveness of the investigation into the circumstances of her husband’s death, she did not have any effective civil remedies by which to claim compensation from the perpetrators.

THE LAW

11. The applicant complained that Romania and the Republic of Moldova were responsible for a breach of Article 2 of the Convention. She also complained about a breach of Article 13 of the Convention in respect of the Republic of Moldova. Articles 2 and 13 of the Convention read as follows:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

12. In so far as the complaint against Romania is concerned, the Court recalls that in accordance with the generally recognised rules of international law, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with regard to that Party (see, for example, Kadikis v. Latvia (dec.), no. 47634/99, 29 June 2000; Sholokhov v. Armenia and the Republic of Moldova, no. 40358/05, § 55, 31 July 2012). The Court notes that Romania ratified the Convention on 20 June 1994. Accordingly, the complaint against it relating to the killing of the applicant’s husband in May 1992 is incompatible with the provisions of the Convention ratione temporis and must be rejected according to Article 35 § 3 of the Convention.

13. As to the complaints directed against the Republic of Moldova, the Court recalls that according to its case-law concerning Article 2, the procedural obligation to investigate has evolved into a separate and autonomous duty, capable of binding the State even when the death took place before ratification (see Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009). Given the principle of legal certainty, the Court’s temporal jurisdiction in this regard is nevertheless not open-ended (ibid, § 161). Where the death occurred before ratification, only procedural acts or omissions occurring after that date can fall within the Court’s temporal jurisdiction (ibid, § 162).

14. The Court reiterates that the purpose of the six-month rule is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and others concerned from being in a position of uncertainty for a prolonged period of time (see Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002). If no remedies are available or if they are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no. 62566/00, 10 January 2002). However, special considerations may apply in exceptional cases, where an applicant avails himself of or relies on an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective: it is therefore appropriate to take as the start of the six-month period the date when he first became aware or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).

15. The determination of whether the applicant in a given case has complied with the admissibility criteria will depend on the circumstances of the case and other factors such as the diligence and interest displayed by the applicant as well as the adequacy of the investigation in question (Manukyan v. Georgia (dec.), 53073/07, 9 October 2012). The Court reiterates in this connection that where there has been an action allegedly in contravention of Articles 2 of the Convention, the victim is expected to take steps to keep track of the investigation’s progress or lack thereof, and to lodge his or her application with due expedition once he or she is or should have become aware of the lack of any effective criminal investigation (see, mutatis mutandis, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 158, ECHR 2009‑...; see also, Baran and Hun, cited above, § 46; Ekrem Baytap v. Turkey (dec.), no. 17579/05, 29 April 2010; Mađer v. Croatia, no. 56185/07, § 84, 21 June 2011; Stanimirović v. Serbia, no. 26088/06, § 29, 18 October 2011; Nasirkhaeva v. Russia (dec.), no. 1721/07, 31 May 2011; and Finozhenok v. Russia (dec.), 3025/06, 31 May 2011).

16. Where time is of essence for resolving an issue in a case, there is a burden on the applicant to ensure that his or her claims are raised before both the relevant domestic authorities and the Court with the necessary expedition to ensure that they may be properly and fairly resolved (see amongst others, Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002-III, and Aydin and Others v. Turkey (dec.), no. 46231/99, 26 May 2005). Indeed, with the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and the prospects that any effective investigation can be undertaken will increasingly diminish, and the Court’s own examination and judgment may be deprived of meaningfulness and effectiveness (see Varnava and Others, cited above, § 161).

17. Turning to the facts of the present case, it has been established in paragraph 5 above that the Prosecutor General’s Office of the Republic of Moldova discontinued the investigation into the circumstances of Mr Gusar’s death on 9 December 2000 and that it has not been re-opened since. The applicant lodged her application with the Court on 19 August 2002 but formally inquired with the Prosecutor General’s Office about the progress of the investigation only on 5 December 2002. It would thus appear that she only became interested in the investigation by the Prosecutor General’s Office of Moldova after Mr Ilascu’s release from his detention in the MRT. However, the latter’s detention in the circumstances described in Ilaşcu and Others v. Moldova and Russia is not sufficient ground for dispensing the applicant from her obligation of diligence as stated in paragraph 15 above. The applicant has not claimed that she had been prevented in any way from inquiring and learning earlier about the progress of the investigation in question or about the alleged ineffectiveness thereof. Indeed, as soon as she became interested, she was able to engage a lawyer and to obtain the necessary information from the Prosecutor General’s Office. Consequently, the complaints under Articles 2 and 13 against the Republic of Moldova were lodged more than six months after the alleged breach took place, and must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena TsirliJosep Casadevall
Deputy RegistrarPresident

Full & Egal Universal Law Academy