THIRD SECTION
DECISION
Applications nos. 22555/09 and 42204/09
Victor Atanase STĂNCULESCU against Romania
and Mihai CHIŢAC against Romania
The European Court of Human Rights (Third Section), sitting on 3 July 2012 as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Egbert Myjer,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above applications lodged on 10 April 2009 and 14 January 2009 respectively,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in the first case, Mr Victor Atanase Stănculescu, is a Romanian national, who was born in 1928 and lives in Bucharest. He was represented before the Court by Mr Cătălin Radu Dancu, a lawyer practising in Bucharest.
2. The applicant in the second case, Mr Mihai Chiţac, was a Romanian national, who was born in 1928 and lived in Bucharest. He died on 1 November 2010. His wife Naila Chiţac expressed the wish to continue these proceedings. The applicant and subsequently his heir were represented before the Court by Mr Sergiu Andon, a lawyer practising in Bucharest.
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Background of the case
4. The cases concern the events of 16-22 December 1989 in Timişoara, when a popular revolt started in that city led eventually to the fall of Ceauşescu’s communist regime in Romania. The applicants were at the time high-ranking military officers who were sent to Timişoara to suppress the revolt. Ceauşescu gave order to kill the protesters. Seventy-two people were killed and two hundred and fifty were injured by shotgun. More details on these events are given in Şandru and Others v. Romania, no. 22465/03, 8 December 2009.
5. After the change of regime, the applicants took part in the newly formed government, as the general perception at that time was that during the December 1989 events they had played a significant role in bringing the army onto the side of the insurgents. They remained in power in the first few governments formed after the revolution.
6. On 14 February 1990 the Government established a truth commission in Timişoara with a view to investigating the events from 1989, made up of military personnel, civil and military prosecutors, members of civil society and specialists (including lawyers and a doctor).
On 6 March 1990 twenty-seven people made written statements about the events. According to Mr Chiţac, R.B., a prosecutor and member of the truth commission, gathered all the conscripts that had participated in the events in one room and ordered them to write down how that applicant had participated in the repression. He claimed that later on, in 1996, R.B. used those extra-judiciary declarations in the criminal proceedings against the applicants.
7. In the same year the truth commission recommended that criminal investigations be started against several high-ranking officers, including the applicants, in order to establish the extent of their responsibility for the repression of the revolution in Timişoara. The Prosecutor’s Office started the criminal investigations against the officers identified by the commission and against other suspects. Some high-ranking officers of the former regime had been convicted over the course of time for their role in the repression and some servicemen had been found guilty of having killed or injured individual victims.
B. The circumstances of the case
8. The applicants were among the officers nominated by the truth commission as allegedly responsible for crimes committed during the revolution.
9. On an unspecified date criminal investigations started against the applicants. However, on 29 March 1996 the Military Prosecutor’s Office decided not to bring criminal proceedings against a number of high-ranking officers of the former regime, including the applicants, for alleged crimes committed during the 1989 events in Timişoara.
10. On 28 October 1997 that decision was quashed and the prosecution continued.
11. On 30 December 1997 the applicants became acquainted with the prosecution file and on the same day they were committed for trial by the Military Prosecutor’s Office on charges of aggravated murder in the context of the repression of the popular revolt of December 1989. According to the applicants, they were not assisted by counsel at that time as the prosecutor had failed to inform them of their right to be represented.
The indictment bill had some fifty pages and the prosecution file several volumes of a few hundred pages each, comprising of witness testimonies, documents of the time of the revolt – shorthand records of meetings, military logs and medical certificates. Thirty witnesses were proposed by the prosecutor and sixty-five civil parties joined the proceedings.
1. First set of proceedings against the applicants
12. The proceedings took place before the Supreme Court of Justice, first before the Military Section and then before the Criminal Section, which gave judgment in the case. The prosecutor’s office was represented by prosecutor R.B. (see paragraph 6 above). Mr Stănculescu entered a plea of nullity of the criminal prosecution on the ground that he had not been assisted by counsel at the presentation of the prosecution file. On 29 April 1998 and again on 11 May 1998 the Supreme Court dismissed the complaint, as it established that the applicant had expressly refused to be assisted by counsel and his representation had not been made mandatory by law. He also asked that the judges step down from the case (cerere de recuzare), but his request was dismissed by the Court on 29 April 1998.
The Supreme Court took account of the prosecution file and heard testimonies from several witnesses both for the prosecution and for the defence. The applicants also made statements before the court.
13. On 14 June the defence made a constitutional complaint alleging an interference with their right to a double degree of jurisdiction; on the same day it was rejected by the Supreme Court, which then proceeded with the examination of the merits.
14. On 15 July 1999 the Supreme Court of Justice, in a threejudge bench presided over by judge M.C., convicted the applicants of aggravated murder and attempted aggravated murder and sentenced them to fifteen years’ imprisonment each, restriction on the exercise of certain civil rights and demotion. It also ordered the applicants to pay, together with the Ministry of Defence, damages to 217 victims who had suffered injuries while the two applicants had been in command of the military troops, but dismissed the civil claims from victims whose injuries had occurred outside the period of the applicants’ command. The court gave thorough answers to all arguments raised by the defence concerning allegations that the acts had not represented a crime at that time, that they had not constituted murder, that the defendants had done nothing but obey orders, that the repression had been legitimate as the communist regime had been internationally recognised, and that they had been defending the public order (in the two meanings of the term).
It concluded that:
“In executing the order to repress the insurgents – by assuming command of the troops, arming them with tear-gas grenades and war ammunition, taking the troops into the street with heavy war weaponry, positioning them where they would meet the protesters, annihilating the insurgents’ resistance, transmitting the order to fire, coordinating and leading the repression – the culprits foresaw the outcome, and if they did not want it, at the very least they accepted it.
Through all their actions in Timişoara, the culprits – and in particular Mihai Chiţac – willingly corroborated the efforts made by the other generals and high-ranking officers involved in the repression, knowing that through their common actions they contributed directly to a bloody suppression of the popular revolt.”
15. M.C., the president of the bench and former participant in the revolution gave an interview on 19 July 1999, in which he spoke in general terms about his experience as a judge in those proceedings. In his statements, he did not name the applicants directly or give any opinion as to their guilt.
16. On 25 February 2000 the Supreme Court of Justice dismissed the appeals lodged by the applicants, the Ministry of Defence and some of the civil parties. The judgment became thus final.
17. It appears that S.M., the then president of the Supreme Court and of the bench having examined the appeal, himself a participant in the 1989 events in Bucharest, gave an interview on 17 December 1997 expressing the opinion that the applicants’ activity had contributed to the tragedy in Timişoara and that they should have been aware of the consequences of their actions.
18. The Ministry of Defence paid the compensation to the victims. The two applicants were imprisoned.
2. The extraordinary appeal lodged by the Procurator General
19. On 7 August 2001 the Procurator General lodged an extraordinary appeal seeking to have the previous decisions set aside (recurs în anulare), on four grounds:
i. that the courts had failed to order Mr Stănculescu’s psychiatric evaluation, although that requirement was mandatory for murder trials;
ii. that the first-instance court had dismissed the constitutional complaint raised by the defence, instead of allowing the Constitutional Court to examine its merits;
iii. that Mr Stănculescu’s right to be assisted by counsel had been infringed by the appeal court; and
iv. that the acts committed by the applicants had not constituted crimes.
20. On 22 March 2004 the extraordinary appeal was allowed by the two Chambers of the Supreme Court of Justice sitting together, on the grounds that Mr Stănculescu’s psychiatric evaluation had not been carried out according to the legal requirements; that the lower courts had not examined the admissibility of the constitutional complaint; and that Mr Stănculescu’s rights of defence had been breached in so far as the appeal court refused to postpone a hearing from which he had been absent for medical reasons and at which his chosen counsel had not represented him. The Supreme Court quashed the previous decisions and sent the case back to the first-instance court. It ordered that court to proceed with an expert medical examination of Mr Stănculescu and to examine the constitutional complaint and, once those errors had been fixed, to re-examine the case.
The Supreme Court also annulled the execution of the sentences. The applicants were thus released from prison.
3. The second set of proceedings
21. A three-judge bench of the High Court of Cassation and Justice (formerly the Supreme Court of Justice) took the case. It ordered the expert examination requested in the decision of 22 March 2004, which confirmed that Mr Stănculescu had “the psychical capacity to understand the events and the acts he had been charged with, having full responsibility for his acts”. On 18 January 2005 it also sent the constitutional complaint to the Constitutional Court, which dismissed it on 7 June 2005. The High Court allowed requests for new evidence made by the applicants, in particular to adduce documents and to present fourteen witnesses; it heard statements from the applicants and some of the witnesses and re-examined the whole body of evidence administered during the criminal prosecution and in the first set of proceedings.
22. Mr Stănculescu complained of alleged irregularities in the prosecution proceedings, notably, the absence of defence counsel when he had been given the opportunity to examine the prosecution file. He also claimed that the prosecutor had not had the required credentials for acting in his case and had refused to take into account evidence for the defence. On 15 February 2006 his complaints were dismissed in a thoroughly reasoned interlocutory judgment.
On the merits of the case, the applicants denied the commission of the crimes of which they had been accused.
On 6 March 2007 in his last plea to the court before the closing of the debates (ultimul cuvânt al inculpatului), Mr Chiţac argued, among other things, that it had been illegal for the prosecutor to request, on 6 March 1990, twenty-seven people to write statements about how he had shot the insurgents (see paragraph 6 above).
23. The court noted that the applicants had received the order to go to Timişoara, to take command of the military troops and to quash the popular revolt, and found that the applicants had been involved in carrying out the orders given by Ceauşescu to repress the protests:
“[The applicants] gathered information on the extent of the revolt, participated in the command of the military troops, armed them with live ammunition and tear-gas grenades, positioned the troops where they would meet the protesters, instructed the troops on how to act, controlled how the orders to repress the revolt were carried out, took measures to annihilate the protesters’ resistance, gathered information about how the repression was carried out and verified the number of dead and injured.”
24. The court examined the extent of each applicant’s participation in the events and their respective contribution to the killing and injuring of protesters.
It found that Mr Stănculescu had played an active part in organising and coordinating the military response to the insurgency. Witness testimonies attested to the fact that he had been the one who had given the order to shoot the insurgents.
It also found convincing evidence as to Mr Chiţac’s involvement in repressing the revolt. He had ordered that tear-gas grenades be used against the insurgents, distributed grenades to the troops and instructed the soldiers on how to use them. Furthermore, Mr Chiţac had ordered that the insurgents be shot at with war ammunition and, to set an example, shot into the crowd with an automatic rifle and threw tear-gas grenades at the insurgents. He was reportedly heard saying: “These bastards want a revolution, we’ll show them revolution!” and “kill these bastards, these criminals; they destroyed this city, this country” and accusing the soldiers of cowardice for not shooting at the crowd. The servicemen executed the order and opened fire.
25. The court examined thoroughly the defence arguments and weighed the evidence adduced before it by the applicants against the evidence given at the prosecution stage and before the courts.
26. In particular, Mr Stănculescu argued that it had been illegal for the prosecutor to restart criminal proceedings against him so long as he had been cleared of any criminal responsibility in 1996. The court found that the prosecutor’s decision of 1996 had been quashed in 1997 and that the prosecutor had lawfully restarted the criminal proceedings against the applicants.
27. Mr Stănculecu also claimed that he had done nothing more than obey orders. The court considered that the orders received by the applicants had clearly been illegal, as none of the laws in place at the time of the facts had allowed for the killing of civilian protesters; in their capacity as highranking officers the applicants should have refrained from executing those orders.
28. Mr Stănculescu further claimed that the acts on trial had not constituted a crime at the material time. The court, however, considered that the applicants’ acts had been indispensable to the repression and that by the specific orders given to the soldiers in the line of fighting, they had contributed directly and with intent to the killing and injuring of the civilians, thus becoming accountable for murder, as charged.
29. In a judgment of 3 April 2007 the High Court found the applicants guilty of aggravated murder and attempted aggravated murder and gave them a final sentence of fifteen years’ imprisonment each and an additional penalty of restriction on the exercise of certain civil rights and demotion. It also allowed the claims for compensation in the same terms as in the judgment of 15 July 1999 (see paragraph 14 above). It nevertheless noted that the Ministry of Defence had already paid those damages.
30. The applicants appealed, arguing that the prosecution had been illegal, that the court had ignored the defence evidence, failed to establish a causal link between their activity and the death and injuries, committed severe errors in establishing the facts, notably their presence at the scene of the events, and failed to give reasoning for the judgment. In addition, Mr Stănculescu claimed that he had not been assisted by a lawyer.
31. The court re-examined the evidence and the interpretation given by the first-instance court to the facts and assessed the evidence in the light of the arguments raised on appeal.
32. In a final decision of 15 October 2008 a nine-judge bench of the High Court dismissed the appeals lodged by the parties and upheld the judgment rendered by the three-judge bench.
33. The applicants were imprisoned again in execution of their sentence.
4. Complaints against the prosecutors and judges
34. On 6 May 2009 Mr Stănculescu lodged a criminal complaint against the prosecutors and one of the High Court judges sitting in his case, accusing them of breaching his defence rights during the proceedings. He averred notably that at the pre-trial stage he had not been allowed to have counsel, that evidence in his favour had been hidden and that throughout the trial his request for evidence had been disregarded. In a decision of 14 December 2009 the Prosecutor’s Office attached to the High Court of Cassation and Justice dismissed the complaint concerning the judges; he examined the minutes of the court proceedings and found that the defence requests had been duly examined by the courts and that there was no indication of illegality in the proceedings. In another decision of 11 March 2010 the Prosecutor’s Office dismissed the complaint against the prosecutors as time barred, noting that the applicant had lodged it after the expiry of the prescription period for the alleged crime.
5. Requests for temporary release from prison
35. On 21 October 2008 Mr Chiţac requested to be temporarily released from prison in order to undertake medical examinations and a surgical operation for his heart and blood diseases. An expert medical examination was performed at the court’s request.
36. In a decision of 29 December 2008 the Military Territorial Tribunal found that the applicant was suffering from serious diseases which rendered him unsuitable for detention. It therefore ordered his release from prison for a period of three months to allow him to undertake the necessary tests and procedures.
37. The applicant was subsequently released from prison for the indicated period.
38. He did not make any other requests in that connection.
COMPLAINTS
A. Complaints raised by Mr Stănculescu
39. Invoking Article 6 §§ 1 and 3 (b) and (d), the applicant complained that the criminal proceedings against him had not been fair and had lasted too long, that the courts had not been independent and impartial and that he could not obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution had.
40. In particular, he considered that the prosecution had not respected the applicable law, raising some of the same arguments as those raised before the domestic courts, namely, that the prosecution had been illegal, that the prosecutor had disregarded his right to counsel and had falsely written on the indictment bill that the applicant had refused counsel. He also claimed that he had not had the time and facilities to prepare his defence as he had been allowed to see the prosecution file on the same day as the indictment had been drafted.
He pointed out that other persons had been committed for trial and sentenced for the same killings (see paragraph 7 above).
41. He also argued that judge M.C., who had sat in his case, had not been impartial as his negative opinion of the applicant had been well publicised at that time (see paragraph 15 above).
42. As for the witnesses, he claimed that only those for the prosecution had been heard by the courts and argued that prosecutor R.B. had failed to bring in evidence from the extrajudicial investigation from 1990 even though that would have been useful to the case (see paragraph 6 above).
B. Complaints raised by Mr Chiţac
43. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that the criminal proceedings against him had lasted too long, that is, eighteen years, and had been aimed at finding him guilty at all costs. He alleged the illegality of the prosecution for the same reasons as those relied on in his appeals at domestic level. He considered that he had been convicted even though there had been no relevant evidence against him and despite the fact that other persons had been previously convicted for the same killings and injuries. He referred to the interviews given by M.C. and S.M., the Supreme Court judges and former participants in the 1989 revolt, and to the fact that the out-of-court statements made before the 1990 truth commission had been used in the proceedings without any possibility for the defence to question those statements.
44. Under Article 6 § 2 of the Convention the applicant complained that the lack of a proper investigation into his participation in the events as well as the biased interpretation given to the evidence in the file clearly showed the prosecutor’s and the judges’ determination to find him guilty of the crimes at all costs.
45. Under Article 7 of the Convention, the applicant complained that the facts brought before the court had not constituted the crime of killing, but rather repression of a popular revolt, which had not been considered a criminal act at that time.
46. Invoking Article 13 of the Convention, the applicant argued that on two occasions he had not had an effective remedy at his disposal. Firstly, he argued that in examining the extraordinary appeal, the prosecutor and Supreme Court judges failed to give an answer to the most important argument raised by the Procurator General, that is, the point concerning the manner in which the ordinary courts had examined the merits of the case. Secondly, he complained that the victims’ right to seek compensation in the criminal proceedings against him had been time-barred.
47. He further complained, under Article 14 taken in conjunction with Articles 6 and 7, that his conviction for acts that had not constituted a crime at that time and by means of unfair proceedings had been caused by his political views, and alleged that he had only been prosecuted because Petre Roman, the first prime‑minister after the 1989 revolution, had decided himself who was to be put on trial and who was to be spared.
48. Lastly, under Article 3 of the Convention the applicant complained that his request to be released from prison on medical grounds had been granted for a period inferior to what he had needed for the surgical operations, a situation which had contributed to the aggravation of his illnesses.
THE LAW
A. Joinder of the applications
49. In view of the connection between the applications as regards the facts and the substantive questions that they both raise, the Court considers it appropriate to join them in accordance with Rule 42 § 1 of the Rules of Court.
B. Locus standi
50. The Court notes at the outset that Mr Chiţac died after lodging the present application and that his successor has expressed a wish to continue the proceedings before the Court. It does not see any impediment to its further examination of that case.
C. Complaint raised under Article 6 of the Convention about the length of the criminal proceedings
51. The applicants complained that the criminal proceedings against them had lasted too long. They relied on Article 6 of the Convention, which reads as follows insofar as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
52. The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
D. The remaining complaints raised under Article 6 of the Convention
53. The applicants complained about alleged defects of the criminal proceedings against them, which led, in their view, to an infringement of their right to a fair trial and of their rights of defence.
Article 6 reads as follows in so far as relevant:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
...
(b) to have adequate time and facilities for the preparation of his defence;
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”
1. Summary of the relevant general principles established by the Court
54. The Court makes reference to the principles it has established in its case-law concerning the fairness of the criminal proceedings and the rights of the defence. It recalls in particular that the guarantees in paragraphs 2 and 3 of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings. In making this assessment the Court will look at the proceedings as a whole, having regard not only to the rights of the defence but also the interest of the public and the victims that crime is properly prosecuted and, where necessary, the rights of witnesses. The Court also points out in this context that the admissibility of evidence is a matter for regulation by national law and the national courts and that it is not the Court’s function to deal with errors of fact or of law allegedly committed by a national court, its only concern being to examine whether the proceedings have been conducted fairly (see, among many other authorities, Deweer v. Belgium, 27 February 1980, § 56, Series A no. 35; Gäfgen v. Germany [GC], no. 22978/05, § 169, ECHR 2010; Bykov v. Russia [GC], no. 4378/02, § 88, 10 March 2009; OAO Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04, § 534, 20 September 2011; Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, 15 December 2011).
55. Furthermore, the Court reiterates that the principle of equality of arms is one feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial. In particular, under Article 6 § 3 (b) the notion of “adequate time and facilities for the preparation of his defence”, which should be enjoyed by everyone charged with a criminal offence, includes the opportunity for a defendant to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings (see OAO Neftyanaya Kompaniya Yukos, cited above, § 538).
2. Application of those principles to the cases under examination
The Court will now examine all the aspects raised by the applicants under Article 6 §§ 1, 2 and 3, in the light of the above general principles.
(a) Time and facilities to prepare the defence
56. The applicants alleged that their prosecution was illegal and that they lacked sufficient time and facilities to prepare their defence. Some of their arguments have already been examined by the domestic courts. This is notably the case for the allegations by both applicants that their prosecution had been illegal, and those raised in particular by Mr Stănculescu with respect to the manner in which the prosecution file had been presented, that is, allegedly in the absence of a defence counsel.
57. The Court notes that the domestic courts examined in detail all these arguments in both sets of proceedings and is convinced by the reasoning put forward by the domestic courts on these respective points. It reiterates that the Court is dependent on the interpretation given by the domestic courts to the facts and evidence, in particular where, as in the case at hand, there is no indication of arbitrariness in the manner in which the domestic law was interpreted or applied.
58. The situation in the present case is not comparable to that in OAO Neftyanaya Kompaniya Yukos, cited above, where the Court found a violation of Article 6 in so far as the applicant company had only four working days at its disposal to study some 43,000 pages of evidence before the beginning of the hearings and its requests for adjournments with a view to studying the evidence were turned down as unfounded (see OAO Neftyanaya Kompaniya Yukos, cited above, § 536). Even assuming that the applicants in the cases presently under examination did not have the time to acquaint themselves properly with the prosecution file on 30 December 1997, it appears from the file that during the first few months of court proceedings the first-instance court dealt mainly with procedural matters. Until 14 June 1999 when the courts started the examination of the merits, the defence had the possibility to bring any complaints concerning procedural matters and to propose more evidence (according to Articles 321 – 342, notably 339 and 340 of the Code of Criminal Procedure). Furthermore, once the extraordinary appeal lodged by the Procurator General on behalf of the applicants was allowed by the High Court of Cassation and Justice, the proceedings were reopened before the first-instance court, with the applicants having another opportunity to bring their complaints concerning both the procedure and the merits and to propose new evidence in court, an opportunity of which they fully availed themselves (see paragraph 21 above).
59. Under these circumstances it would be too formalistic a view to consider that the applicants lacked the time and facilities to prepare their defence.
(b) Examination of witnesses
60. The applicants further argued that they could not obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution, with particular emphasis on the manner in which the out-of-court evidence from the 1990 truth commission had been introduced in the proceedings (see paragraph 6 above).
61. As for the general submission that witnesses for the prosecution and those for the defence had not been equally admitted, the Court reiterates that admission of evidence falls primarily within the ambit of the domestic courts and the domestic proceedings and the mere fact that not all witnesses proposed had been admitted or had actually testified is not in itself enough to bring about a breach of the rights of the defence (see, notably, Brualla Gómez de la Torre v. Spain, 19 December 1997, § 31, Reports of Judgments and Decisions 1997‑VIII, and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I).
62. Concerning the use of out-of-court evidence, the Court shall apply the principles reaffirmed recently in Al-Khawaja and Tahery, cited above (§§ 118-119). It thus notes that according to the case file as it stands before it, it appears that the extra judiciary statements from 1990 were introduced as documentary evidence in the applicants’ case; none of the parties requested that all those witnesses appear, and the courts did not refuse to hear evidence on behalf of the defence. As for the “sole or decisive rule” used by the Court in such matters, it is to be noted that while no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the existing evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see Bykov, cited above, § 90). In the present case the out-of-court evidence corroborated the other evidence: witnesses examined in court and other evidence presented in court (see Al‑Khawaja and Tahery cited above, § 134). The Court cannot but note that Mr Chiţac challenged before the High Court the reliability of the statements given before the truth commission and that court gave proper consideration to his arguments (see paragraphs 22 and 25 above). It also appears that while Mr Stănculescu considered that the courts had not given enough consideration to that evidence, Mr Chiţac claimed the contrary. This reinforces the Court’s long‑standing view that the domestic courts are better placed to decide the weight to be given to evidence, and in the absence of any sign of arbitrariness in the national proceedings the Court will endorse the findings of the national courts.
63. In view of the above, the Court is satisfied that in the case at hand the extra judiciary evidence was not the sole evidence on which the applicants’ conviction was based, nor was it decisive.
(c) Impartiality and respect for the presumption of innocence
64. The applicants complained about the statements made by various judges or prosecutors involved in their case about the popular revolt in 1989 and about the applicants’ role in those events. They claimed either a lack of independence and impartiality on the part of the Court or an alleged violation of their right to the presumption of innocence.
They refer in particular to judges M.C. (see paragraph 15) and S.M. (see paragraph 17 above) and to prosecutor R.B. (see paragraph 6 above).
65. The Court notes at the outset that the applicants brought no evidence of a lack of impartiality and the interviews referred to do not seem to affect the presumption of the applicants’ innocence or to compromise a fair examination of the case (see paragraphs 15 and 17). Furthermore, during the domestic proceedings the applicants did not ask that the officials in question step down from their case.
66. The Court notes at the outset that the aspects referred to by the applicants occurred in the first set of proceedings, before the extraordinary appeal, and that the applicants did not reiterate their allegations of partiality or a violation of the presumption of innocence in the second set of proceedings. Furthermore, the quashing of the final decision by the High Court entailed a new set of adversarial proceedings on the merits before the competent courts where all procedural guarantees seem to have been observed. Even assuming that the courts had not been impartial or that the officials had breached the applicants’ right to be presumed innocent, the reopening of the proceedings must have cured the defects (see, mutatis mutandis, Bujniţa v. Moldova, no. 36492/02, §§ 20-23, 16 January 2007).
67. The Court is therefore not convinced that a breach of the applicants’ rights occurred on these points.
(d) Fairness and outcome of the proceedings
68. The applicants complained in general that the criminal proceedings had not been fair and that the courts had given a biased interpretation of the evidence, with a view to finding them guilty of the crimes at all costs.
69. However, the Court notes that these complaints are of a fourthinstance nature, contravening thus the principle of the subsidiarity of the Court’s review. In any event, the domestic courts gave answers to all defence arguments raised by the applicants and gave thoroughly and extensively reasoned decisions. In so far as the matters complained of are within its competence, the Court cannot find any indication of unfairness or arbitrariness in the manner in which the domestic courts examined the facts of the case or applied the national law.
(e) Conclusion
70. Based on the above examination, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms guaranteed by Article 6 of the Convention.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
E. Complaint raised under Article 7 of the Convention
71. Mr Chiţac complained that the acts allegedly committed by him had not constituted a crime at the material time. He relied on Article 7 of the Convention, which reads as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
72. The Court makes reference to the well-established principles developed in its case-law in the context of Article 7 of the Convention (see, notably, Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260‑A; Dragotoniu and Militaru-Pidhorni v. Romania, nos. 77193/01 and 77196/01, §§ 33-38, 24 May 2007; Kafkaris v. Cyprus [GC], no. 21906/04, §§ 139-141, ECHR 2008‑...; Sud Fondi S.r.l. and Others v. Italy, no. 75909/01, §§ 105-110, 20 January 2009; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, §§ 92-109, 17 September 2009). It reiterates that Article 7 of the Convention requires that an offence must be clearly defined in law and that the law must be predictable and foreseeable.
73. In the present case Mr Chiţac failed to raise this complaint with the domestic authorities. However, even setting aside the issue of non‑exhaustion, the Court notes that this complaint was brought by the other applicant, Mr Stănculescu, before the domestic courts, which dismissed it in a well-argued decision explaining why those acts constituted the crime of killing under the domestic law (see paragraph 28 above).
74. The Court has no reason to depart from the conclusion of the domestic courts, which falls in line with the case-law developed under Article 7 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
F. Other complaints
75. Mr Chiţac lastly alleged a violation of Article 13 in connection with the examination of the extraordinary appeal and with the application of the statutes of limitation, and of Article 14 taken together with Articles 6 and 7 and of Article 3 of the Convention with respect to his request for temporary release from prison.
76. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. In particular, the arguments put forward under Article 13 would be better qualified under Article 6, and the applicant could have raised them with the domestic courts, which he failed to do. The Court reiterates that it has found no indication of a lack of fairness in the domestic proceedings (see paragraph 70 above).
77. Furthermore, the applicant failed to substantiate in any convincing manner his allegations of discrimination raised under Article 14.
78. Lastly, the Court notes that the domestic court allowed the applicant’s temporary release from prison on medical grounds when he requested it (see paragraph 36 above). Should the applicant have considered that the period granted had not been sufficient for that purpose, he could have lodged a second request with the courts. The Court cannot speculate as to what the outcome of such a request would have been, but has no reasons to suspect it would not have been thoroughly examined by the courts, as was the case with the first request lodged by the applicant.
79. It follows that this part of the application is also manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the applicants’ complaint concerning the length of the criminal proceedings against them;
Declares the remainder of the applications inadmissible.
Marialena TsirliJosep Casadevall
Deputy RegistrarPresident
Full & Egal Universal Law Academy