MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1288/H46-22

7 June 2017

1288th meeting, 6-7 June 2017 (DH) Human rights   H46-22 Association “21 December 1989” group v. Romania (Application No. 33810/07) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2017)366-rev, CM/Del/Dec(2014)1201/14

 

 

Application	Case	Judgment of	Final on	Indicator for the classification
33810/07+	ASSOCIATION “21 DECEMBRE 1989”	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

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 deprivations 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 eight similar cases);

-         the use of lethal force, the ill-treatment and the deprivations 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 death of the applicants’ relatives, by firearm 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 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 denounced 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 persons 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

The Committee examined this group of cases most recently at its 1201^st meeting (June 2014) (DH). The authorities have regularly submitted information since and provided a consolidated action plan on 13 March 2017 (DH-DD(2017)366-rev). The Committee has also received several communications from the applicants (Mrs Vlase) and from the Association “21 December 1989” concerning the investigation in its case. The developments since the last examination can be summarised as follows:

Individual measures

1) Progress in the investigations (procedural violations of Articles 2 and 3, violations of Article 6 § 1)

a) Information provided in the action plan of 13 March 2017: The investigations in the cases of Association "21 December 1989" and Others and Mocanu and Others are 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"). The public is regularly informed of their progress by press releases published on the website of the Public Prosecutor’s Office. The investigation in the case of Crăiniceanu and Frumuşanu is carried out by the military Prosecutor’s Office attached to the Bucharest Military Court.

Association "21 December 1989" and Others and eight similar cases: In October 2015, the prosecutor’s office discontinued the investigation on the grounds that several circumstances, including the statutory limitation period, precluded any further step. This decision was set aside by the principal deputy to the General Prosecutor of Romania, then by the High Court of Cassation and Justice, to which the matter had been referred in the meantime by the civil parties. These authorities found that the investigation carried out until then had not clearly established the facts, which prevented them from verifying whether their definition and the application of statutory limitation had been correctly established. As a result, the investigation was reopened and entrusted to a new team of four military prosecutors.

In October 2016, the General Prosecutor declared that concluding this investigation was one of the priorities of his mandate. In November 2016, the prosecutors defined the events which occurred after 22 December 1989, when the power had been taken over by a new political and military regime, as crimes against humanity. They are now following a roadmap to take the investigative steps indicated by the principal deputy to the General Prosecutor and are engaged in correspondence with the civil parties (for details see DH-DD(2017)366-rev). For the time being, the investigation is pursued in rem (no suspect has been formally charged).

Mocanu and Others: At the time the judgment was delivered, the investigation was being pursued in respect of two persons for participation in aggravated unlawful killing. In response to the judgment, the General Prosecutor decided to reopen the part of the investigation concerning the ill-treatment denounced by the applicant Mr Stoica and also set aside previous decisions to discontinue the investigation in respect of other persons. Subsequently, the Prosecutor’s Office defined the events which occurred in June 1990 as crimes against humanity and continued the investigation accordingly. These measures were upheld by the High Court of Cassation and Justice.

On 23 December 2016, the Prosecutor’s Office indicted 14 persons of crimes against humanity, on charges of having “decided, organised and coordinated a widespread and systematic attack against the civilian population […]”. The investigation continues with regard to these persons, among whom are senior civilian and military officials at the material time,[2] and to 21 other suspects.;Tthe Prosecutor’s Office envisages concluding it by June 2017.

Case of Crăiniceanu and Frumuşanu: The Prosecutor’s Office continues the investigation to identify the persons responsible for the death of the applicants’ relatives. Given its complexity, three prosecutors are now in charge of the case. Many investigative steps have been taken since 2014, including hearings and confrontations of witnesses. In response to the Prosecutor's Office’s requests, the authorities and bodies in possession of documents and video recordings in connection with the events of 25 September 1991 handed them over to the investigators. The relatives of the victims were kept informed of the progress in the investigation; their requests for evidence were allowed and they were able to participate in the hearings of the witnesses. The investigation has not yet led to the identification of those responsible, but further investigative steps are still envisaged (for details see DH-DD(2017)366-rev).

b) Information submitted under Rule 9: The communications received, most recently on 15 February 2017, in the case of Association "21 December 1989" and Others criticised the lack of progress in the investigation.

2) Personal data collected as a result of secret surveillance measures (violation of Article 8)

In June 2014, the Committee invited the authorities to clarify whether they held personal data concerning Mr Mărieş, that had been collected and stored under the national security laws and, if so, to indicate what measures they intended to take in respect of it. In response, the national authority competent in national security matters indicated that it did not hold such data.

General measures

Law No. 27 of 20 March 2012 removed the statutory limitation period for intentional offences against life, which allowed the investigations in these cases to be continued beyond the limitation period which had initially been applied for aggravated unlawful killing. The authorities also indicated that legislative amendments brought in 2004 had aligned the status of military prosecutors to that of their civilian counterparts (DH-DD(2014)498). Recalling that the issue of the effectiveness of investigations involving security forces was then being examined in the group of cases Barbu Anghelescu (No. 1,)[3] and in view of the particular nature of the investigations in the present cases, they considered that there was no need for further general measures.

In June 2014, the Committee requested a more detailed assessment from the authorities on the issue of the statutory independence of military prosecutors and on the measures that might be necessary to ensure that bodies holding relevant information co-operate with the investigators.

In this connection, the action plan submitted on 13 March 2017 indicates the following:

As regards the statutory independence of military prosecutors, the European Court has recently held that the new law had put in place transparent mechanisms for their appointment and the stability of their employment. Moreover, they are bound by the same professional obligations and are entitled to similar protection against outside interference as their civilian counterparts. The Court was satisfied that these amendments appeared to provide sufficient guarantees in respect of their independence (Elena Apostol and Others, judgment final on 23 May 2016).

As regards co-operation with the investigators, the new Criminal Code and Code of Criminal Procedure, in force as of 1 February 2014, made available to the investigators means to overcome such difficulties. Thus, the Criminal Code criminalises the refusal by any person to hand over to the investigating authorities information, objects or documents in their possession requested in the context of a criminal investigation. In the same circumstances, the Code of Criminal Procedure allows the investigative authorities to impose a fine or to conduct a search at the headquarters of the body that refuses to co-operate. In addition, since 2014, amendments to the law on classified information have ensured that judges and prosecutors have access to such information without prior security clearance.

Analysis by the Secretariat

-     As regards the individual measures

1) Procedural violation of Articles 2 and 3; Violation of Article 6 § 1:

Investigations into the crackdown on the demonstrations in December 1989 and June 1990: The information provided on the more recent stages of these investigations shows that the authorities have deployed considerable efforts and resources to remedy the shortcomings identified by the Court and to ensure their effectiveness.

A large number of investigative steps have thus been taken and the authorities have ensured the participation of the victims or their relatives, as well as public scrutiny. The recent decisions to define the events that occurred after 22 December 1989 and in June 1990 as crimes against humanity and to indict former senior civilian and military officials, indicate that there is no continuing cause for concern about the independence of the prosecutors in charge of these investigations (on this point, see Elena Apostol, § 35). Lastly, although the decision taken in 2015 to discontinue it has delayed the investigation at issue in the case of Association "21 December 1989" and Others, this development has also demonstrated the effectiveness of the hierarchical control within the General Prosecutor’s Office and that of the judicial review of the investigation carried out by the Prosecutor’s Office.

The Prosecutor's Office appears to be now close to concluding the investigation into the crackdown on the demonstrations in June 1990 (Mocanu and Others), which is encouraging. By contrast, the status of the investigation into the crackdown on the demonstrations in December 1989 remains a matter of concern, in the absence of decisive progress more than five years after the date of the judgment in Association "21 December 1989" and others. It is therefore crucial that the authorities redouble their efforts to conclude this investigation, bearing in mind the importance for Romanian society of knowing the truth about these events.

Investigation into the deaths of Mrs Crăiniceanu and Mr Frumuşanu: In this investigation as well, the authorities have made efforts to remedy as far as possible the shortcomings which had affected its previous stages. The prosecutors were able to secure the co-operation of the authorities and bodies in possession of information relevant for the investigation and the participation of the victims’ relatives in the investigation appears to be adequately ensured. As the investigation is still pending, it is important that the authorities pursue their efforts and promptly take all reasonable steps to clarify the circumstances of the victims’ death.

2) Violation of Article 8: In the light of the information provided by the authorities, no individual measure appears necessary in this respect.

-     As regards the general measures:

The outstanding issues highlighted during the Committee’s last examination appear to have been resolved. Thus, the statutory independence of military prosecutors appears to have been satisfactorily guaranteed by the amendments brought to their status in 2004. In addition, the legal avenues made available to the investigative authorities appear to allow them to overcome any refusal to co-operate from the bodies holding relevant elements for the investigations. Lastly, since 2014, the access of prosecutors and judges to classified information is guaranteed without preconditions.

In view of the foregoing, and bearing in mind the particular context of the investigations at issue, no further general measure appears required in these cases.

Financing assured: YES