LUPU A OSTATNÍ proti Rumunsku

FOURTH SECTION

CASE OF LUPU AND OTHERS v. ROMANIA

(Applications nos. 3107/19 and 16 others)

JUDGMENT

STRASBOURG

17 January 2023

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

In the case of Lupu and Others v. Romania,

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

Faris Vehabović, President,
Iulia Antoanella Motoc,
Branko Lubarda, judges,
and Crina Kaufman, Acting Deputy Section Registrar,

Having regard to:

the applications against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein; the applicants were all represented by Mr S.G. Pașalică, a lawyer practising in Brașov;

the decision to give notice of the applications to the Romanian Government (“the Government”), represented by their Agent, most recently Ms O.F. Ezer, of the Ministry of Foreign Affairs;

the parties’ observations;

Having deliberated in private on 6 December 2022,

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

SUBJECT MATTER OF THE CASE

1. The facts, as submitted by the parties, are similar to those in Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 12‑41, 24 May 2011) and Moroșanu and Others v. Romania ([Committee], nos. 84271/17 and 4 others, §§ 4-11, 16 March 2021).

2. The applicants’ close relatives were killed by gunfire during demonstrations in Brașov, Bucharest, Buzău and Constanța; those events took place in December 1989 and led to the fall of the communist regime. The applicants complained that the domestic authorities had not carried out an effective investigation within a reasonable time into the events of December 1989. They relied on Article 2 of the Convention.

3. In 1990 the military prosecutor’s office attached to the High Court of Cassation and Justice opened investigations, of its own motion, into the deaths of the applicants’ close relatives and of other participants in the events of December 1989. The main criminal investigation was registered under file no. 97/P/1990 (currently no. 11/P/2014).

4. Between 1990 and 2007 the prosecutor decided, in different sets of proceedings concerning the applicants’ relatives, not to open an investigation, to discontinue the proceedings or to join the proceedings to the main criminal investigation. Their cases were all examined in the main criminal investigation, and the applicants brought civil claims.

5. The relevant procedural steps taken in the main criminal investigation were described in Association “21 December 1989” and Others (cited above, §§ 12‑41) and in Moroșanu and Others (cited above, §§ 8-11).

6. On 5 April 2019 the military prosecutor’s office sent for trial several individuals (namely a former Romanian president, a former Romanian prime minister and a former commander of the Romanian air force) for crimes against humanity, and discontinued the investigation with regard to various other individuals for a range of reasons which prevented the continuation of criminal proceedings (some of the charges were res judicatae, some of the suspects had died and some of the facts which had been investigated could not be classified as criminal offences).

7. On 9 October 2020 the Preliminary Chamber of the High Court of Cassation and Justice ordered the return of the file to the military prosecutor’s office owing to irregularities found in the indictment. On 4 February 2021 the military prosecutor’s office recommenced proceedings after correcting the indictment. On the date of the latest information available to the Court (submitted by the Government on 14 April 2021), the proceedings were pending before the Preliminary Chamber of the High Court of Cassation and Justice.

8. The legal provisions relevant to the criminal proceedings instituted in connection with the events of December 1989 are set out in Association “21 December 1989” and Others (cited above, §§ 95-100).

THE COURT’S ASSESSMENT

1. JOINDER OF THE APPLICATIONS

9. Having regard to the similar subject matter of the applications and the similar legal issues raised, the Court finds it appropriate to examine them jointly in a single judgment.

2. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

10. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

11. The general principles concerning the effectiveness of the investigation have been summarised in Association “21 December 1989” and Others (cited above, §§ 133-35), Mocanu and Others v. Romania ([GC], nos. 10865/09 and 2 others, § 322, ECHR 2014 (extracts)). and Moroșanu and Others (cited above, § 18).

12. In the present case, the Court notes that shortly after the events of December 1989 a criminal investigation was opened into the deaths from gunfire of the applicants’ close relatives.

13. Bearing in mind its jurisdiction ratione temporis, the Court notes that the investigation in the present case was opened more than thirty years ago and is still ongoing, twenty-eight years after Romania ratified the Convention on 20 June 1994.

14. While being aware that steps were taken recently by the national authorities in order to complete the criminal investigation into the events of December 1989, the Court, however, cannot depart from its previous conclusions concerning the shortcoming identified in the cases Association “21 December 1989” and Others (cited above, §§ 133‑45) and Alecu and Others v. Romania (nos. 56838/08 and 80 others, § 39, 27 January 2015), and concludes that the criminal investigation in the present case does not meet the required standards, in particular since it has not been conducted with the reasonable expedition required by the Convention (see paragraphs 3 to 7 above).

15. The foregoing considerations are sufficient to enable the Court to conclude that the applicants were deprived of an effective investigation into their cases.

16. There has accordingly been a violation of Article 2 of the Convention under its procedural limb.

3. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

17. The applicants complained that the criminal proceedings concerning the events of December 1989 had been excessively lengthy. They relied in that connection on Article 6 § 1 of the Convention.

18. In the light of its finding under Article 2 of the Convention (see paragraph 16 above), the Court considers that it is not necessary to examine the admissibility and merits of the complaints under Article 6 § 1 (see, among other authorities, Association “21 December 1989” and Others, cited above, § 181, and Alecu and Others, cited above, § 45).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

19. The applicants claimed the amounts set out in the appendix in respect of non-pecuniary damage and in respect of costs and expenses for the lawyer’s fees incurred before the Court.

20. The Government contested the amounts as unsubstantiated.

21. Having regard to the documents in its possession, the Court considers that the violation of Article 2 of the Convention under its procedural limb has caused the applicants substantial non-pecuniary damage, such as distress and frustration. Ruling on an equitable basis, it awards them the amounts set out in the appendix, plus any tax that may be chargeable.

22. The Court also considers it reasonable to award each of the applicants the amounts set out in the appendix in respect of lawyer’s fees for the proceedings before the Court.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. Declares the complaints concerning Article 2 of the Convention admissible;
3. Holds that there has been a violation of Article 2 of the Convention under its procedural limb;
4. Holds that there is no need to examine the admissibility and merits of the complaints under Article 6 § 1 of the Convention;
5. Holds

(a) that the respondent State is to pay each of the applicants, within three months, the amounts indicated in the appended table, plus any tax that may be chargeable, in respect of non-pecuniary damage and the amounts indicated in the appended table in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

Done in English, and notified in writing on 17 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Crina Kaufman Faris Vehabović
Acting Deputy Registrar President

APPENDIX

List of cases: