Information Note on the Court’s case-law No. 125
December 2010
Şandru and Others v. Romania - 22465/03
Judgment 8.12.2009 [Section III]
Article 2
Article 2-1
Effective investigation
Delays in investigation into violent crackdown on anticommunist demonstrators prior to the fall of the Romanian regime in December 1989: violation
Facts – On 16 December 1989 demonstrations against the communist regime began in Timişoara. On 17 December 1989, on orders from Nicolae Ceauşescu, President of the Republic, several senior military officers, including two generals, were sent to the city to re-establish order. The violent repression that followed resulted in numerous victims. The first two applicants and the husband of the third applicant, who were taking part in the demonstrations, were seriously injured by gunshots. The brother of the fourth applicant was shot dead. The demonstrations continued until the fall of the communist regime on 22 December 1989. The above-mentioned generals rallied to the new authorities. Shortly after the events of December 1989, an investigation was opened on the authorities’ own motion. The proceedings began in January 1990 and ended in October 2008 with the final conviction of those responsible for organising the repression of the anti-communist demonstrations.
Law – Article 2: (a) Admissibility – (i) Applicability: Given the massive use of lethal force against members of the civilian population demonstrating in Timişoara in 1989, the Court considered that the procedural aspect of Article 2 was applicable with regard to all of the applicants.
(ii) Victim status: Although he had taken part in the investigation conducted by the military prosecutor’s office, the second applicant had not joined the proceedings before the Supreme Court of Justice as a civil party within the time-limit set by the domestic law. However, while this omission had deprived him of the possibility of being awarded compensation, it did not exonerate the State from its procedural obligation under Article 2 to conduct an effective investigation into the use of lethal force. The applicants who joined the domestic proceedings as civil parties had obtained compensation in respect of pecuniary and non-pecuniary damage. The Court considered, however, that those sums did not remove the applicants’ status as victims of a violation, within the meaning of Article 34 of the Convention as, firstly, the awards had not been the result of a friendly settlement accepted by the applicants and, secondly, there could only be loss of “victim” status if the national authorities had acknowledged, explicitly or in substance, the violation of the Convention and then provided reparation for it. In the instant case, the amounts in question had not been intended to provide reparation for the inconvenience and uncertainty resulting from the manner in which the investigation was conducted, but to compensate the applicants for the pecuniary losses sustained on account of the breach of their own or their relatives’ physical integrity and to compensate for the non-pecuniary damage arising directly from that breach. In addition, at no point did the national authorities acknowledge, explicitly or in substance, any shortcoming in the investigation. Accordingly, the Court held that, notwithstanding the awards of damages, the applicants could claim to be victims with regard to the complaint under the procedural aspect of Article 2 of the Convention.
(b) Merits – The Court would therefore limit itself to examining whether the investigation had been effective in relation to its duration. Its jurisdiction ratione temporis permitted it to take into consideration only the period of fourteen years and four months since 20 June 1994, the date on which the Convention entered into force in respect of Romania. In 1994 the case was still pending before the military court, where no investigative measure appeared to have been taken since April 1990. The finding in March 1996 that there was no case to answer was also set aside a year and a half later. The investigation had been assigned to military prosecutors who, like the accused, were servicemen and subject to the principle of subordination to their hierarchy and therefore to the accused themselves, who had been Ministers of Defence and of the Interior between 1990 and 1991. The proceedings which took place before the domestic courts continued until November 1998 before the Military Division of the Supreme Court of Justice. In spite of the large number of hearings, the proceedings were marked by repeated adjournments for procedural defects concerning, in particular, the summoning of the parties and the composition of the judicial bench, and long delays between hearings that could not be entirely justified by judicial vacations and examination of the constitutional complaint. The applicants’ conduct had not contributed in any significant way to the prolongation of the total length of the proceedings. The first set of proceedings had ended with the final judgment of the Supreme Court of Justice in February 2000. However, the proceedings as a whole were subsequently invalidated by the intervention of the Prosecutor-General, who applied to have the judgment set aside in favour of the convicted men, thus delaying final resolution of the case for a further eight years, whereas it had already been delayed by the total inactivity of the prosecutor’s office between April 1990 and March 1996. Although the European Court did not have jurisdiction to comment on the merits of the Prosecutor-General’s intervention and, more generally, on the manner in which the domestic courts had interpreted and applied the domestic law, it was clear that the prosecution service’s inactivity and the setting aside of the above-mentioned judgment had contributed decisively to the further delays in the proceedings. In this regard, it was for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of the Convention, particularly those enshrined in the procedural obligation under Article 2. Finally, while the Court recognised the undoubted complexity of the case, it considered that the political and social stakes relied on by the Government could not justify the length of the investigation. On the contrary, its importance for Romanian society ought to have prompted the domestic authorities to deal with the case speedily and without unnecessary delay, in order to prevent any appearance of tolerance of or collusion in unlawful acts. In the light of the above considerations, the national authorities had not acted with the degree of diligence required under Article 2.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 to each of the applicants in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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