Communicated on 16 December 2015
FOURTH SECTION
Application no. 39435/15
Gavril SĂLĂJAN against Romania
and 11 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are all Romanian nationals. The applicants’ personal details, as well as details of the events and domestic proceedings to which they were parties are set out in the appended table. According to the power of attorney submitted in the case files, the applicants are all represented before the Court by Mr Vasile Tudor, a lawyer practising in Brașov.
The facts of the case, as they have been submitted by the applicants, are similar to those presented in Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12-41, 24 May 2011). They belong to the same historical context and relate to the same domestic criminal proceedings as those at issue in the above-mentioned case. They can be summarised as follows.
Following demonstrations against the Government, on 17 December 1989, on an order from Nicolae Ceauşescu, President of the Republic, military operations were conducted in Timișoara and in the following days in other towns, including Braşov, causing many civilian victims. According to a letter of 5 June 2008 from the military prosecutor’s office at the High Court of Cassation and Justice, “more than 1,200 people died, more than 5,000 people were injured and several thousand people were unlawfully deprived of their liberty and subjected to ill treatment”, in Bucharest, Timişoara, Reşiţa, Buzău, Constanţa, Craiova, Brăila, Oradea, Cluj, Braşov, Târgu Mureş, Sibiu and other towns in Romania. In addition, it appears from Ministry of Defence documents, declassified by Government decision no. 94/2010 of 10 February 2010, that thousands of servicemen, equipped with combat tanks and other armed vehicles, were deployed in Bucharest and other cities. During the period of 17 to 30 December 1989 they used considerable quantities of ammunition.
In Braşov, the city where the events relevant for the present applications took place, thirty-nine persons were killed by gunshot in the night of 22 to 23 December 1989 and even more over the following days. According to a document entitled “Conclusions on the result of the investigations conducted in respect of the events which took place in Braşov during the period of 23 to 25 December 1989”, submitted by the Government in the Association “21 December 1989” and Others v. Romania case and drafted by a joint group of seven prosecutors and seven military police officers, after the official announcement on the public radio and the national television that the dictatorship had fallen, the military forces deployed to defend the totalitarian regime against the demonstrators were initially withdrawn to their barracks and the demonstrators’ representatives were able to occupy the county council’s headquarters. Following information on the likelihood that counter-revolutionary elements (elemente contrarevoluţionare) would launch an attack, in the evening of 22 December 1989 General F., commandant of the Braşov garrison, was instructed to coordinate “the actions to defend” the achievements of the revolution. He ordered 657 soldiers from six military units out of barracks. The first shots were fired during the night, at about 3 a.m.
The criminal investigation into the events having occurred during the night of 22 to 23 December 1989 in Brașov was the subject of case no. 158/P/1990 before the Braşov military prosecutor’s office. By a decision of 28 December 1994 the proceedings in the case were discontinued.
By a decision of 30 August 1999, the military prosecuting authorities set aside the decision of 28 December 1994, on the ground that the investigation had been incomplete and “that there was no evidence to justify exonerating from criminal liability the persons who had been under an obligation to direct and coordinate the servicemen’s actions [...] in such a way as to maintain control of the situation and avoid loss of life or injuries to innocent persons”.
Concomitantly, case no. 97/P/1990, which deals at the national level with the main criminal investigation into the use of violence, especially against civilian demonstrators, both prior to and following the overthrow of Nicolae Ceauşescu, was pending. The case is, to date, still pending under case file no. 11/P/2014 and the most important procedural steps can be summarised as follows:
On 20 September 1995, prosecutor S. in the military prosecutors’ office at the Supreme Court of Justice issued a decision discontinuing proceedings in case no. 97/P/1990. By a decision of 7 December 2004, the military prosecutor’s office at the High Court of Cassation and Justice set aside the decision of 20 September 1995 as unlawful and unfounded.
On the same day, the military prosecutor’s office ordered the indictment of 102 persons, essentially officers, including high-ranking officers, from the Army, police and Securitate forces, for murder (Articles 174-176 of the Criminal Code), genocide (Article 357 of the Criminal Code), inhuman treatment (Article 358 of the Criminal Code), attempting, aiding and abetting in the commission of these offences and participation lato sensu (participaţie improprie) in them, acts committed “during the period from 21 to 30 December 1989”. Sixteen civilians, including a former President of Romania and a former Head of the Romanian Intelligence Service, were also charged.
Several criminal investigations into the fatal crackdown on the demonstrations of December 1989, which had initially been conducted separately, were joined to the investigation that was the subject matter of case no. 97/P/1990; case no. 158/P/1990 was joined by a decision of 9 January 2006 of the Braşov military prosecutor’s office.
By a decision of 15 January 2008, the military prosecuting authorities at the High Court of Cassation and Justice decided to severe the investigation concerning the sixteen civilian defendants (including a former President of Romania and a former Head of the Romanian Intelligence Service) from the investigation involving military personnel, and to relinquish its jurisdiction in favour of the prosecutor’s office at the High Court of Cassation and Justice.
By an Ordinance of 18 October 2010, the military prosecuting authorities decided not to institute criminal proceedings with regard to the acts committed by the military, partly for prescription and partly as unfounded. The investigation into the crimes committed by civilians, members of patriotic guards, members of the militia and prison staff was severed and jurisdiction was relinquished in favor of the prosecuting authorities at the High Court of Cassation and Justice.
These investigations are currently pending.
COMPLAINT
Relying on Article 2 of the Convention, the applicants complain about the lack of an effective criminal investigation opened by the authorities in order to punish those responsible for the violent quashing of the
anti-communist demonstrations of December 1989.
QUESTION TO THE PARTIES
Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present cases by the domestic authorities in breach of Article 2 of the Convention?
Appendix
No
Application no. and
date of introduction
Applicant name
date of birth
place of residence
Represented by
Particular circumstances of the application
39435/15
31/07/2015
Gavril SĂLĂJAN
05/08/1956
Brașov
Vasile TUDOR
Injured by gunshot on 23 December 1989, with supporting medical evidence.
Party in domestic file no. 97/P/1990
(current number: 11/P/2014)
39443/15
31/07/2015
Dan Ilie STOICA
19/07/1970
Brașov
Vasile TUDOR
Injured in grenade explosion on 24 December 1989, with supporting medical evidence.
Party in domestic file no. 97/P/1990
(current number: 11/P/2014)
39446/15
31/07/2015
Vasile ISTUDOR
17/01/1948
Brașov
Vasile TUDOR
Injured by gunshot on 23 December 1989, with supporting medical evidence.
Party in domestic file no. 97/P/1990
(current number: 11/P/2014)
39449/15
31/07/2015
Viorel CATANA
28/02/1957
Brașov
Vasile TUDOR
Injured by gunshot on 23 December 1989, with supporting medical evidence.
Party in domestic file no. 97/P/1990
(current number: 11/P/2014)
39663/15
31/07/2015
Radu CRISTIAN
21/04/1958
Brașov
Vasile TUDOR
Injured by gunshot on 23 December 1989, with supporting medical evidence.
Party in domestic file no. 97/P/1990
(current number: 11/P/2014)
39670/15
31/07/2015
Răzvan Mircea DOBRIN
17/04/1989
Brașov
Vasile TUDOR
Son of D.C.T. killed by gunshot on 23 December 1989.
Party in domestic file no. 97/P/1990
(current number: 11/P/2014)
39672/15
31/07/2015
Bela BEREȘ
27/09/1948
Brașov
Vasile TUDOR
Injured by gunshot on 23 December 1989, with supporting medical evidence.
Party in domestic file no. 97/P/1990
(current number: 11/P/2014)
39674/15
31/07/2015
Lorena Ioana DOBRIN
07/12/1984
Brașov
Vasile TUDOR
Daughter of a D.C.T. killed by gunshot on 23 December 1989.
Party in domestic file no. 97/P/1990
(current number: 11/P/2014)
39676/15
31/07/2015
Sorin GEORGESCU
03/09/1964
Brașov
Vasile TUDOR
Injured by gunshot on 23 December 1989, with supporting medical evidence.
Party in domestic file no. 97/P/1990
(current number: 11/P/2014)
39678/15
31/07/2015
Vasile CIOBAN
18/01/1957
Vama Buzăului
Vasile TUDOR
Injured by gunshot on 23 December 1989, with supporting medical evidence.
Party in domestic file no. 97/P/1990
(current number: 11/P/2014)
39679/15
31/07/2015
Adrian Valentin GÂSCĂ
01/07/1955
Brașov
Vasile TUDOR
Injured by gunshot on 23 December 1989, with supporting medical evidence.
Party in domestic file no. 97/P/1990
(current number: 11/P/2014)
39682/15
31/07/2015
Emma ȘANDOR
22/01/1955
Brașov
Vasile TUDOR
Injured by gunshot on 23 December 1989, with supporting medical evidence.
Party in domestic file no. 97/P/1990
(current number: 11/P/2014)
Full & Egal Universal Law Academy