European Court of Human Rights

 

 

 

FOURTH SECTION

 

 

 

 

 

 

 

CASE OF MATEESCU v. ROMANIA

 

(Application no. 30462/15)

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

16 October 2018

 

 

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of Mateescu v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Georges Ravarani, President,
Marko Bošnjak,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 25 September 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 30462/15) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Romanian national, Ms Maria Mateescu ("the applicant"), on 15 June 2015.

2. The applicant was represented by Mr I. Matei, a lawyer practising in Bucharest. The Romanian Government ("the Government") were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

3. On 16 December 2015 notice of the application was given to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1943 and lives in Bucharest.

5. The facts of the case, as submitted by the parties, refer to the same context and domestic criminal proceedings as those described in the case Association "21 December 1989" and Others v. Romania (nos. 33810/07and 18817/08, §§ 12-41, 24 May 2011).

6. During the events which led to the fall of the communist regime, on the night of 21/22December 1989 the applicant's son was killed by gunfire in Bucharest.

7. In 1990 the military prosecutor's office opened several investigations into the December 1989 armed crackdown on the anti-communism demonstrations. A main criminal investigation concerning the use of violence against civilians in Bucharest and other cities was registered with the highest prosecutor's office - the military prosecutors section − under no. 97/P/1990 (current number 11/P/2014). In the main criminal investigation the applicant raised civil claims and asked that the perpetrators of the offence of homicide committed against her son be identified and punished.

8 . At the same time, another investigation concerning the offences of complicity in seriously aggravated homicide and complicity in attempted seriously aggravated homicide, committed against a large number of persons, including the applicant's son, culminated in the committal for trial of public officials, members of the ruling political party, and their subsequent conviction by a final decision of the Supreme Court of Justice of 20 April 1992.

9. The relevant procedural steps taken in the main criminal investigation were described in the cases Association "21 December 1989" and Others (cited above, §§ 12-41) and Sidea and Others v. Romania ([Committee] no. 889/15, §§ 8-11, 5 June 2018).

10. On 14 October 2015 the military prosecutor's office closed the main criminal investigation, finding that the applicant's complaint regarding the offence of homicide committed against her son was statute-barred and that a complaint concerning instigation of homicide was a matter of res judicata following the Supreme Court of Justice's decision of 20 April 1992 (see paragraph 8 above).

11. The decision of 14 October 2015 was subsequently annulled by a Prosecutor General's decision of 5 April 2016, confirmed by the High Court of Cassation and Justice on 13 June 2016. On 1 November 2016 the military prosecutor ordered the opening of a criminal investigation in rem for the offence of crimes against humanity in respect of the same factual circumstances.

12 . According to the information submitted by the parties, the main criminal investigation is still ongoing (see Bănuțoiu and Ștefoglu v. Romania [Committee], nos. 64752/13and 54607/14, § 12, 3 July 2018).

II. RELEVANT DOMESTIC LAW

13. The legal provisions relevant to the criminal proceedings instituted in connection with the events of December 1989 are referred to in the cases Association "21 December 1989" and Others (cited above, §§ 95-100) and Mocanu and Others v. Romania [GC] (nos. 10865/09and 2 others, §§ 193-�96, ECHR 2014 (extracts)).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

14. The applicant complained that the criminal investigation carried out by the authorities into the events of December 1989 could not be regarded as effective or capable of leading to the identification and punishment of the persons responsible for the death of her son. She relied on Article 2 of the Convention, which reads as follows:

"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally ..."

A. Admissibility

15. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

16. The Government described the steps taken recently by the national authorities in order to complete the criminal investigation into the events of December 1989 and made reference to their previous arguments in the cases Association "21 December 1989" and Others v. Romania (nos. 33810/07and 18817/08, 24 May 2011) and Alecu and Others v. Romania (nos. 56838/08and 80 others, 27 January 2015).

17. The Court reiterates that an investigation must be effective in the sense that it is capable of leading to a determination of the circumstances of fact and to the identification and punishment of those responsible. This is not an obligation of result, but of means (see Kelly and Others v. the United Kingdom , no. 30054/96, § 96, 4 May 2001, and Anguelova v. Bulgaria , no. 38361/97, § 139, ECHR 2002-�IV). The State's obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice and that requires a prompt examination of the case without unnecessary delays. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Varnava and Others v. Turkey [GC], nos. 16064/90and 8 others, § 191, ECHR 2009; Association "21 December 1989" and Others, cited above, § 134; and Mocanu and Others v. Romania [GC], nos. 10865/09and 2 others, §§ 317-�325, ECHR 2014 (extracts)).

18. Turning to the instant case, the Court notes that the death of the applicant's son is covered by the main criminal investigation which was opened shortly after the events of December 1989 and which is still ongoing under the supervision of the domestic military prosecutor's office (see paragraph 12 above).

19. Taking into account the period after 20 June 1994, when the Convention entered into force in respect of Romania and irrespective of the fact that the investigation was carried out by military prosecutors (see Elena Apostol and Others v. Romania , nos. 24093/14and 16 others, § 34, 23 February 2016), the Court considers that the criminal investigation in the present case does not meet the standards deriving from Article 2 regarding an effective investigation. The Court has regard to its lack of promptness and of reasonable expedition, the non-involvement of the applicants in the proceedings, and the lack of information provided to the public about its progress (see Mocanu and Others , cited above, §§ 335-48).

20 . The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 2 of the Convention under its procedural limb.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION

21. The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings concerning the events of December 1989 and under Article 13 of the Convention about the absence of an effective remedy to enable her claims to be determined.

22. Having regard to the finding relating to Article 2 (see paragraph 20 above), the Court considers that it is not necessary to examine the admissibility and the merits of the complaints under Article 6 § 1 and Article 13 of the Convention (see, among other authorities, Association "21 December 1989" and Others , cited above, § 181, and Alecu and Others , cited above, § 45).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

23. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

24. The applicant claimed 100,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.

25. The Government considered the claim to be excessive.

26. The Court takes the view, on the one hand, that the applicant has failed to demonstrate the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects that claim. On the other hand, the Court finds that the violation of Article 2 of the Convention, under its procedural limb, has caused the applicant substantial non-�pecuniary damage, such as distress and frustration. Ruling on an equitable basis, it awards the applicant EUR 15,000 in respect of non-�pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

27. The applicant did not submit a claim for costs and expenses. The Court is therefore not called upon to make an award in this respect.

C. Default interest

28. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning Article 2 of the Convention admissible;

 

2. Holds that there has been a violation of Article 2 of the Convention under its procedural limb;

 

3. Holds that there is no need to examine the admissibility and the merits of the complaints under Article 6 § 1 and Article 13 of the Convention;

 

4. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-�pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 16 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Georges Ravarani
Deputy Registrar President