MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1318/H46-17

7 June 2018

1318th meeting, 5-7 June 2018 (DH) Human rights   H46-17 Association “21 December 1989” and Others group v. Romania (Application No. 33810/07) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2018)346, CM/Del/Dec(2017)1288/H46-22

 

Application	Case	Judgment of	Final on	Indicator for the classification
33810/07+	ASSOCIATION “21 DECEMBER 1989” AND OTHERS	24/05/2011	28/11/2011	Complex problem
12442/04	CRĂINICEANU AND FRUMUŞANU	24/04/2012	24/07/2012
10865/09+	MOCANU AND OTHERS	17/09/2014	Grand Chamber
56861/08+	BOȘNIGEANU AND OTHERS	04/11/2014 15/11/2016	04/02/2015 15/02/2017
34160/09	DOBRE AND OTHERS	17/03/2015	17/06/2015
56838/08+	ALECU AND OTHERS	27/01/2015 15/11/2016	01/06/2015 15/02/2017
35279/10+	MELNICHUK AND OTHERS	05/05/2015	05/08/2015
15052/09	CĂTĂLINA FILIP	21/04/2015	19/10/2015
56842/08+	ALEXANDRESCU AND OTHERS	24/11/2015	24/02/2016
24093/14+	ELENA APOSTOL AND OTHERS AND 16 OTHER APPLICATIONS	23/02/2016	23/05/2016
43626/13+	ECATERINA MIREA AND OTHERS	12/04/2016	17/10/2016
78375/11	ROMANESCU	16/05/2017	16/08/2017
43629/13	ANAMARIA-LOREDANA ORĂȘANU AND OTHERS	07/11/2017	07/11/2017

Case description

These cases concern the criminal investigations carried out since the early 1990s into violent crackdowns on the anti-governmental demonstrations which attended the fall of the Communist regime in Romania, namely:

-         the use of lethal force, the ill-treatment and the deprivation of liberty of thousands of protesters in December 1989, before and in the aftermath of the overthrow of the country’s last Communist leader (Association “21 December 1989” and Others and ten similar cases);

-         the use of lethal force, the ill-treatment and the deprivation of liberty of more than a thousand protesters at the hands of the security forces or affiliated armed groups, as well as the ransacking of the applicant association’s headquarters, events which occurred on 13-15 June 1990 in Bucharest (Mocanu and Others);

-         the shooting dead of the applicants’ relatives on 25 September 1991, during riots which took place outside the government’s headquarters (Crăiniceanu and Frumuşanu).

In relation to these investigations, the European Court found procedural violations of Articles 2 and 3 and/or violations of Article 6 § 1 (length of proceedings), due to:

-         the fact that at various stages they had been carried out by military prosecutors who were subject to the principle of subordination within the military hierarchy, like the majority of the accused, among whom were senior military officials still in office (all cases);

-         excessive delays and flaws in the taking of evidence (all cases);

-         lack of co-operation from the authorities involved in the crackdown with the investigators or the destruction of evidence in their possession (Crăiniceanu and Frumuşanu) as well as the classification, until 2010, of information as secret which was essential for the investigation, without proper justification (Association “21 December 1989” and Others);

-         failure of the investigators adequately to ensure public scrutiny and the protection of the interests of the victims' next-of-kin in participating in the investigation (Association “21 December 1989” and Others and Mocanu and Others);

-         the fact that the part of the investigation concerning the ill-treatment alleged by one of the applicants (Mr Stoica) was terminated in 2011 by application of the statutory limitation period (Mocanu and Others).

Under Article 46 of the Convention, the Court indicated that it was for Romania “to put an end to the situation […] found by it to have been in breach of the Convention, concerning the right of the many individuals affected […] to an effective investigation which is not terminated by application of the statutory limitation of criminal liability, and in view also of the importance to Romanian society of knowing the truth about the events of December 1989” (§ 194).

The case of Association “21 December 1989” and Others also concerns the lack of safeguards in the legislation applied to secret surveillance measures based on national security grounds (violation of Article 8 in respect of Mr Teodor Mărieş).^[1]

Status of execution

During its last examination (1288^th meeting, June 2017 (DH)), the Committee of Ministers decided to close its examination of the general measures. As regards individual measures, the Committee invited the authorities to keep it regularly informed of the progress made in the on-going investigations and agreed to resume consideration of these cases at the latest during the present meeting. It also considered that no individual measure was necessary in response of the violation of Article 8 established in respect of Mr Teodor Mărieş.

The authorities presented updated information in August 2017 (DH-DD(2017)892) and in April 2018
(DH-DD(2018)346). The Committee also received two communications from one of the applicants (Ms Vlase) concerning the investigation at issue in the case of Association “21 December 1989” and Others. The developments are summarised below:

1) Investigation into the crackdown on the demonstrations in December 1989 (case of Association “21 December 1989” and Others and ten similar cases)

a) Information provided by the authorities and available in the public domain

The investigation is being carried out by the military section of the Prosecutor’s Office attached to the High Court of Cassation and Justice (the “General Prosecutor’s Office”). In November 2016, the prosecutors defined the relevant events after 22 December 1989, when power had been taken over by a new political and military regime, as crimes against humanity. Many investigative steps taken between March and December 2017 allowed important circumstances, which had led to many deaths and injuries during these events, to be established or clarified (for more details, see DH-DD(2018)346).

Last February, the prosecutor’s office brought criminal charges against former senior military officials. Information[2] published on the website of the General Prosecutor’s Office and on that of the Presidential Administration indicates that on 13 April, at the request by the General Prosecutor, the President of Romania exercised his constitutional prerogative[3] to ask for criminal charges to be brought against three former senior civilian officials.

To ensure public scrutiny of and the participation of victims or their relatives in the investigation, information about its progress is regularly published on the website of the Public Prosecutor’s Office. In addition to the correspondence previously carried out with a number of civil parties (DH-DD(2017)366-rev), the Prosecutor’s Office replied to two memoranda submitted by Ms Vlase in 2018. In the next stages of the investigation, the prosecutors will hear all the injured parties again.

The Prosecutor’s Office estimates that the investigation could be concluded by the end of 2018.

b) Information submitted under Rule 9: In her two communications, Ms Vlase recalls that, under Article 41, the Court indicated to Romania to take the necessary measures to expedite the investigations into the murder of her son, “so that a decision which complies with the requirements of the Convention can be issued” (§ 202 of the judgment). The applicant considers that the investigation now in progress aims at the adoption of a “general” decision for all the victims of the 1989 events, which, in her view, would not comply with the Court’s indications, in particular since no steps have been taken to establish the identity of those responsible for the death of her son, in Braşov.

For their part, the authorities have underlined that the death of Ms Vlase’s son is covered by the investigation currently carried out by the military section of the General Prosecutor’s Office, and that the investigative steps taken in this context are relevant to all the victims of the crackdown.

2) Investigation into the crackdown on the demonstrations in June 1990 (case of Mocanu and Others)

At the time the judgment was delivered, the investigation was being pursued to establish the circumstances of and the potential responsibilities for the deaths which occurred during these events, including that of the husband of applicant Ms Mocanu. In response to the judgment, the General Prosecutor decided to reopen the part of the investigation concerning the ill-treatment alleged by the applicant Mr Stoica, a decision upheld by the High Court of Cassation and Justice.

In June 2017, the military section of the General Prosecutor’s Office committed 14 persons, including former senior civilian and military officials, to stand trial on charges of crimes against humanity for having “decided, organised and coordinated a generalised and systematic attack against the civilian population, namely individuals participating in demonstrations in Bucharest and the population of Bucharest, between 11 and 15 June 1990”. The investigation established that during these events four persons were killed, 1,388 others were injured and 1,250 persons were illegally arrested or deprived of their liberty. The case was referred to the High Court of Cassation and Justice.

3) Investigation concerning the deaths of Ms Crăiniceanu and Mr Frumuşanu

The investigation is being carried out by the Military Prosecutor’s Office attached to the Bucharest Military Court. The information provided shows that, despite many investigative steps and extensive evidence taken, it has not been possible to make any progress towards conclusions. The prosecutors continue to explore all possible avenues (see DH-DD(2018)346). The victims’ next-of-kin have access to the investigation file and are regularly informed of the stages of the investigation and of the dates scheduled to hear witnesses.

Analysis by the Secretariat

1) Investigation into the crackdown on the demonstrations in December 1989

The investigation into these events has made important progress, which allowed the Prosecutor’s Office to formally bring charges against some suspects. These developments should be noted.

As regards the aspects raised by Ms Vlase, it is noted that, although the information provided to the Committee mostly relates to the general context of the December 1989 crackdown, the authorities have underlined that the circumstances of the death of the applicant’s son are covered by the on-going investigation. Moreover, the information published by the Prosecutor’s Office on the progress in the investigation[4] indicates that the prosecutors have established the events which led to the death or injury of individuals in several locations across the country. It therefore appears that, in the context of this investigation, means have been deployed to establish not only the general context but also the circumstances in which the victims lost their lives or were injured, which meets the procedural obligations resulting from Articles 2 and 3.

The authorities could be encouraged to pursue their efforts so that this investigation is completed according to the planned timetable and to inform the Committee of relevant developments.

2) Investigation into the crackdown on the demonstrations in June 1990

The Prosecutor’s Office has concluded this investigation and the matter is presently before the High Court of Cassation and Justice. This should enable the Committee to close its supervision of the execution of the Mocanu and Others judgment.

3) Investigation into the deaths of Ms Crăiniceanu and Mr Frumuşanu

The efforts made by the authorities to conclude this investigation can be noted and the authorities encouraged pursuing them.

Financing assured: YES