FOURTH SECTION
DECISION
Applications nos. 30363/15 and 30405/15
Ovidiu POPESCU against Romania
and Daniela CANACHEU against Romania
The European Court of Human Rights (Fourth Section), sitting on 4 September 2018 as a Committee composed of:
Georges Ravarani, President,
Marko Bošnjak,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above applications lodged on 15 June 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Ovidiu Popescu and Mrs Daniela Canacheu, are Romanian nationals who were born in 1958 and 1972 respectively and live in Bucharest. They were represented before the Court by Mr I. Matei, a lawyer practising in Bucharest.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows. Both applicants participated on 21 December 1989 in Bucharest in the events which led to the overthrow of the communist regime, without suffering any physical or psychological trauma. In 1990 the military prosecutor’s office opened of its own motion a criminal investigation into those events. During this investigation, the applicants gave statements as witnesses and raised no civil claims. No decision was issued by the military prosecutor’s office in respect of their particular situation.
4. The most important procedural steps of the investigation were described in Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011) and Sidea and Others v. Romania [Committee] (no. 889/15 and 38 other applications, §§ 5-11, 5 June 2018). Currently the criminal investigation is ongoing before the military prosecutor’s office.
B. Relevant domestic law
5. The relevant provisions of the former Code of Criminal Procedure (which were in force until 1 February 2014) regarding the initiation of a civil action related to criminal proceedings, are the following:
Article 15
“The injured person may join the proceedings as a civil party against the accused person or the defendant and against the party that bears civil liability.
Joining the proceedings as a civil party may be undertaken either during the criminal investigation or in court, before the charges are read out ... .”
The new Code of Criminal Procedure (now in force) contains similar provisions:
Article 20
“1. Joining the proceedings as a civil party may be undertaken until the beginning of the court examination (până la începerea cercetării judecătorești) (...).”
COMPLAINTS
6. The applicants complained of the length of the criminal investigation opened into the events of December 1989 and of the absence of an effective domestic remedy, relying on Articles 6 § 1 and 13 of the Convention.
THE LAW
A. Joinder of the cases
7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court).
B. Complaint under Article 6 § 1 of the Convention
8. The applicants complained that the length of the criminal investigation was incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
9. The Government objected that both applicants lacked victim status, as they had not suffered any physical or psychological injuries during the events of December 1989 and they had not joined the criminal investigation as injured or civil parties.
10. In this respect, the applicants argued that they did have victim status, as the criminal investigation was still ongoing before the military prosecutor’s office.
11. To the extent that the applicants invoke Article 6 § 1 of the Convention to complain about the length of the criminal proceedings at issue, the Court reiterates that the Convention does not confer any right, as demanded by the applicants, to “private revenge” or to an actio popularis. Thus, the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently; it must be indissociable from the victim’s exercise of his or her right to bring civil proceedings under domestic law (see Perez v. France [GC], no. 47287/99, § 70, ECHR 2004‑I). Therefore, in principle the victim of an offence may only invoke his or her rights under Article 6 in relation to criminal proceedings against an offender if he or she has joined those proceedings as a civil party in order to obtain damages or to otherwise protect his or her civil rights (contrast Bosnigeanu and Others v. Romania, nos. 56861/08 and 33 others, § 19, 4 November 2014, and Alexandrescu and Others v. Romania, nos. 56842/08 and 7 others, § 22, 24 November 2015).
12. The Court furthermore notes that while the Romanian Code of Criminal Procedure allows civil parties to request compensation during criminal proceedings (see paragraph 5 above), there is no information in the case file to suggest that the applicants lodged such a request or that they expressed any intention of doing so (see paragraph 3 above). Accordingly, Article 6 § 1 of the Convention is not applicable to the present case (see, mutatis mutandis, Pop Blaga v. Romania (No. 1) (dec.), no. 37379/02, §§ 152-155, 8 September 2009; Rosoga v. Romania (dec.), no. 39681/06, § 22, 05 January 2010; and Roșca Stănescu v. Romania (dec.), no. 49357/08, § 33, 28 January 2014).
13. Accordingly, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must therefore be rejected, in accordance with Article 35 § 4.
C. Complaint under Article 13 of the Convention
14. The applicants complained of the absence of a domestic remedy through which to enable their claims to be determined in accordance with Article 13 of the Convention, which states as follows:
“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.”
15. The Court notes that Article 13 has been consistently interpreted by the Court as requiring a remedy only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 58, ECHR 2000‑IV).
16. In the light of the finding relating to Article 6 § 1 of the Convention (see paragraph 13 above), this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must therefore be rejected, in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares inadmissible the applications.
Done in English and notified in writing on 27 September 2018.
Andrea TamiettiGeorges Ravarani
Deputy RegistrarPresident
Full & Egal Universal Law Academy