AS TO THE ADMISSIBILITY OF
Application No. 25496/94
by Marian ROMANESCU
against Romania
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 April 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
C. BÎRSAN
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 12 October 1993
by Marian Romanescu against Romania and registered on 26 October 1994
under file No. 25496/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts, as submitted by the applicant, may be summarised as
follows:
The applicant, a Romanian citizen born in 1948, is a retired
officer, residing at Bucharest.
The applicant used to work for the special forces for the
security of the State (Securitate). Together with his unit, a sub-unit
of the special anti-terrorist unit (USLA), he took part in the events
commencing in Bucharest on 21 December 1989 and leading to the fall of
the Ceausescu dictatorship on 22 December 1989. During these events,
lasting until the end of December, clashes took place between civil
demonstrators, the army, and Securitate forces.
After his work in the unit, the applicant was arrested by army
forces in the evening of 22 December 1989. In the morning of
23 December 1989 he was released. On 25 December 1989, he presented
himself to his unit, where he was immediately put under arrest.
During his arrest, lasting 40 days, the applicant was questioned
by his colleagues, who feared a betrayal, about his activities between
22 December and 25 December 1989. As a result of this inquiry, he
suffered a depression. After his release, the applicant was confined
to the Bucharest Military Hospital, where he was found to have "anxious
neurasthenia". As a result, his retirement was proposed on grounds of
health.
The applicant, who contested this decision, was again confined
to the Bucharest Military Hospital, where allegedly strong medicines
were groundlessly administered to him. Although a special civil
medical commission issued a certificate declaring the applicant sane,
the Central Military Commission for Medical Expertise declared on
31 July 1990 that the applicant was suffering from "evolving paranoid
psychosis". On 5 November 1990, the Director of the Romanian Service
for Information (formerly Securitate) decided to place the applicant
on a reserve list.
On 29 April 1990 the applicant filed a criminal report with the
Military Prosecutor requesting punishment of various officials
allegedly responsible for his trauma.
On 6 April 1993, as well as on 30 May 1994, the Bucharest
Forensic Institute issued, at the Military Prosecutor's request,
a certificate establishing the applicant's sanity.
As from July 1993 the applicant no longer received his retirement
pension, as he refused to submit himself to a new examination by
military doctors.
On 2 December 1993 the Military Prosecutor's Office, while
accepting that the unit's commander was responsible for the applicant's
deprivation of liberty and his injuries, discontinued the criminal
proceedings against the commander as he had died in the meantime.
In December 1993 the applicant brought an action for compensation
before the Bucharest District Court against the Romanian Service for
Information and the Ministry for Defence. He also requested the
revocation of the retirement decision and the junction of these
proceedings with the criminal investigations carried out by the
Military Prosecutor.
On 21 January 1994 the applicant complained to the Bucharest
District Court about the certificate of 31 July 1990 which had declared
him insane and therefore unable to continue his military activity. He
also contested the retirement decision of 5 November 1990.
On 19 May 1994 the applicant inquired with the Military
Prosecutor about the state of the proceedings.
On 23 June 1994 the Military Prosecutor informed the applicant
that it transpired from the investigations that on 22 and
23 December 1989 the applicant himself had asked for protection by a
military unit.
On 24 June 1994 the Bucharest District Court requested the
applicant to submit himself to a new medical examination by military
doctors, in order to determine the lawfulness of the retirement
decision.
On 7 October 1994 the applicant requested the suspension of the
proceedings concerning compensation and the annulment of the retirement
decision, pending the investigations before the Military Prosecutor
concerning detention and alleged inhuman treatment. He also informed
the Bucharest District Court that he refused to submit himself to a
medical examination by military doctors, as he contested their
impartiality, and as criminal investigations concerning the previous
examinations were still pending.
COMPLAINTS
The applicant complains :
- under Article 2 of the Convention that during his detention he
was threatened with death by his unit's command;
- under Article 3 of the Convention of inhuman and degrading
treatment and torture during his arrest and also during his stay in
hospital;
- under Article 5 para. 1 of the Convention that during 40 days he
was unlawfully detained by order of his unit's command;
- under Article 5 para. 5 of the Convention that the Ministry of
Defence and the Romanian Service for Information did not award him
compensation for his unlawful detention;
- under Article 6 of the Convention that the Bucharest District
Court, in order to be able to decide on the lawfulness of the
retirement decision, held on 24 June 1994 that the applicant should
submit himself to a military medical commission, although criminal
investigations were pending against those doctors who had issued an
incapacity certificate;
- that "for four years he has been living a drama" resulting from
"the lack of interest of the authorities" in elucidating his case.
THE LAW
1. The applicant raises various complaints under Articles 2, 3 and
5 para. 1 (Art. 2, 3, 5-1) of the Convention about inhuman treatment
and torture, and unlawful deprivation of liberty.
However, the Commission notes that Romania ratified the
Convention on 20 June 1994 and it recalls that the Convention only
governs, for each Contracting Party, facts subsequent to its entry into
force with respect to that Party. The Commission therefore finds that
the above complaints relating to a period before 20 June 1994 are
incompatible with the provisions of the Convention ratione temporis and
must be rejected according to Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains under Article 5 para. 5 (Art. 5-5) of the
Convention that the Ministry of Defence and the Romanian Service for
Information refuse to award him compensation for his unlawful
detention. He also complains under Article 6 (Art. 6) of the
Convention that the Bucharest District Court has asked him to submit
to a medical examination carried out by military doctors, although
criminal proceedings are pending against these military doctors.
However, the Commission notes that the proceedings before the
Bucharest District Court which the applicant instituted in order to
obtain compensation are still pending. The complaint is therefore
premature.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant complains that "for four years" he has been living
"a drama resulting from the lack of interest of the authorities" in
elucidating his case.
The Commission interprets the applicant's complaints as relating
to the length of the proceedings before the Bucharest District Court
concerning compensation for his confinement and the annulment of his
retirement decision as well as his allegations of torture and illegal
deprivation of liberty.
The Commission recalls that Article 6 (Art. 6) does not apply to
proceedings instituted against third parties unless the determination
of civil rights and obligations is at stake (cf. Eur. Court H.R., the
Moreira de Azevedo judgment of 23 October 1990, Series A no. 189,
p. 17, para. 67).
In the present case, the solution in the proceedings before the
Bucharest District Court concerning compensation will depend on the
investigations carried out by the Military Prosecutor in the
proceedings concerning the applicant's detention and inhuman treatment.
The Commission is therefore competent to examine under Article
6 para. 1 (Art. 6-1) the reasonableness of the length of the
compensation proceedings before the Bucharest District Court as well
as the proceedings instituted against various officials.
The Commission further notes that the applicant instituted
criminal proceedings against third persons on 29 April 1990. However,
these proceedings only become relevant under Article 6 para. 1
(Art. 6-1) of the Convention as from December 1993, i.e. the date when
the applicant instituted proceedings for compensation before the
Bucharest District Court. In each case, however, these proceedings
commenced before 20 June 1994, which is the date when Romania ratified
the Convention and recognised the competence of the Commission to
receive individual applications. The Commission is therefore not
competent ratione temporis to consider the length of the proceedings
prior to this date.
Thus, the period to be examined under Article 6 para. 1
(Art. 6-1) of the Convention commenced on the date of ratification of
the Convention by Romania, which is 20 June 1994. They have,
therefore, currently lasted approximately 10 months.
Nevertheless, where the Commission by reason of its competence
ratione temporis can only examine part of the proceedings, it can still
take into account, in order to assess the length, the stage reached in
the proceedings at the beginning of the period under consideration (see
No. 7984/77, dec. 11.7.79, D.R. 16, p. 92; Eur. Court H.R., Foti
judgment of 10 December 1982, Series A no. 56, p. 18, para. 53).
In the present case, however, upon ratification of the Convention by
Romania on 20 June 1994, the proceedings were still at an early stage,
as the action for compensation had only been instituted in December
1993.
When examining the reasonableness of the length of the
proceedings, the Commission will consider the circumstances of the case
in the light of the criteria laid down by the Convention organs' case-
law. In this respect, the complexity of the case, the attitude of the
applicant and the conduct of the case by the judicial authorities must
be taken into account (see, inter alia, Eur. Court H.R., Scopelliti
judgment of 23 November 1993, Series A no. 278, p. 8, para. 19).
As regards the proceedings before the Bucharest District Court
concerning compensation, the Commission considers that these
proceedings are of a certain complexity as they may raise difficulties
when establishing the facts. On the other hand, hearings were already
held on 24 June 1994 and 7 October 1994. Moreover, the applicant
himself requested the suspension of the proceedings.
The proceedings instituted against the senior officers of the
Ministry of Defence and of the Romanian Service for Information are in
the Commission's opinion also of a certain complexity as they concern
various officials in different governmental departments. Moreover, on
23 June 1994 the Military Prosecutor informed the applicant about the
state of the proceedings.
The Commission considers that, in the circumstances, neither the
compensation proceedings before the Bucharest District Court nor the
criminal proceedings instituted against government officials have so
far exceeded the "reasonable time" within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.
It follows that the remainder of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy