Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1965 and lives in Riga.

The applicant had been living with A.Z. since the summer of 2005. They were not married. In the course of that year, A.Z. became pregnant. After the birth of A.E.Z. on 24 May 2006, the applicant continued to care for the child and to support A.Z. and the child financially, including paying the rent and utility bills for the apartment in which they were residing.

On an unspecified date the applicant suggested to A.Z. that they officially register the birth of A.E.Z. and record the applicant’s paternity in the register of births. A.Z. refused.

The applicant informed A.Z. that he would try to have his paternity established by the courts.

Starting from 13 January 2007 A.Z. no longer permitted the applicant to meet the child.

On 15 January 2007 the applicant consulted a lawyer and on the same day requested a copy of a report of the registration of the child’s birth (izziņa par bērna dzimšanas reģistrāciju) from a civil registry office (dzimtsarakstu nodaļa). He received the requested report on 18 January 2007 and found out that the previous day, on 17 January 2007, a certain A.L. had voluntarily acknowledged his paternity and had been registered as the child’s father. According to the applicant, he did not know who A.L. was.

On 8 February 2007 the applicant lodged a claim with the Riga City Zemgale District Court. He asked the court to order forensic biological testing in order to establish the child’s descent, to strike the record of A.L.as the father of the child and to record himself, the applicant, as the child’s father instead.

On 4 April 2007 A.Z. and A.L. submitted a response, arguing that the fact that civil proceedings had been instituted had infringed their rights guaranteed by, inter alia, Article 8 of the Convention. The respondents also argued that the applicant lacked standing to contest paternity and denied that he had ever co-habited with A.Z.

The Zemgale District Court held hearings on 28 June, 31 August and 12 September 2007. On 13 September 2007 it decided to discontinue the proceedings. The court agreed with the respondents that the applicant lacked standing to contest a voluntary acknowledgement of paternity. It reached that conclusion by interpreting the Civil Law in conjunction with the Convention on the Legal Status of Children Born out of Wedlock (“the Legal Status Convention”) and the 11 October 2004 judgment of the Latvian Constitutional Court, and found that the restrictions in section 156 of the Civil Law (see paragraph 53 below) were not contrary to the Legal Status Convention.

The applicant appealed on 24 September 2007. On 27 September 2007 the case was forwarded to the Riga Regional Court, which held hearings on 17 January and 22 September 2008, and quashed the lower court’s decision by a decision adopted on the latter date. It was found that the lower court had erred in not ordering forensic biological testing. The case was remitted to the Zemgale District Court.

The first hearing in the Zemgale District Court was held on 12 November 2008 and was attended only by the applicant’s lawyer. The hearing was adjourned. The verbatim record of the hearing shows that the court decided to invite a representative of the Guardianship Tribunal (bāriņtiesa) to attend the following hearing.

According to the applicant’s lawyer, the question of involving the Guardianship Tribunal had not in fact been discussed in court and therefore she requested the removal of the judge in charge of the case.

On 26 November 2008 the judge withdrew from the case. The proceedings were accordingly adjourned.

The next hearing was held on 26 January 2009 and was attended by the applicant’s lawyer, the two respondents and their lawyer, as well as by a representative of the Guardianship Tribunal.

On 4 February 2009 the Zemgale District Court ordered forensic genetic testing and ordered the applicant, A.Z., A.L. and the child to submit the necessary samples of genetic material before 31 March 2009.

On 1 April 2009 the court was informed that the applicant had submitted a tissue sample on 6 February 2009, while A.Z., A.L. and the child had not appeared at the testing laboratory.

On 8 April 2009 the applicant asked the court to order that the respondents and the child be delivered for genetic testing under constraint. The hearing organised on 26 May 2009 to decide that question was adjourned because the respondents and their lawyer had not appeared in court.

In the course of the hearing of 15 June 2009 the court rejected the applicant’s request on the grounds that the child was not a party to the case and therefore his delivery under constraint could not be ordered. No ordinary appeal lay against that decision. The applicant’s representative requested that the proceedings be adjourned so that an extraordinary complaint could be lodged with the Prosecutor General.

On 26 June 2009 the applicant asked the Prosecutor General to lodge an extraordinary complaint (protests) about the decision of the Zemgale District Court. On 16 July 2009 the Prosecutor General granted the applicant’s request and asked the Senate of the Supreme Court to quash the 15 June 2009 decision. On 28 August 2009 the Senate accepted the Prosecutor General’s complaint for examination.

On 13 January 2010 the Senate decided to uphold the Prosecutor General’s complaint, to quash the Zemgale District Court’s decision and to remit the case to another judge of the same court.

After adjourning the hearing of 15 March 2010 owing to the respondents’ failure to appear in court, on 16 March 2010 the Zemgale District Court decided to grant the applicant’s request and to order the municipal police to deliver the respondents and the child for genetic testing under constraint. The court also fined A.L. and A.Z. 50 Latvian lati (LVL) each for failing to appear at the hearing without a justified reason.

On 10 May 2010 the applicant informed the court that the decision of 16 March did not appear to have been sent to the municipal police.

That omission was admitted by the court in a decision of 14 May 2010, by which the court decided to order the State police to deliver the respondents and the child for testing under constraint.

On 22 June 2010 the director of the testing laboratory informed the Zemgale District Court that a tissue sample had been taken from A.L. on 18 June 2010 but that A.Z. and the child had not appeared at the laboratory for testing.

According to a letter sent by the police to the court on 17 June 2010, on several occasions police officers had not found A.Z. and the child at their stated address and a neighbour had informed the police that a woman with a small child was not residing there.

On 5 July 2010 the applicant asked the Zemgale District Court to order a search (izsludināt meklēšanā) for A.Z. and the child.

On 15 July 2010 the Zemgale District Court examined the applicant’s request on the merits. The respondents were absent. The court fined A.L. and A.Z. LVL 50 each for failing to appear at the hearing without a justified reason.

By a decision of 20 July 2010 the court granted the applicant’s request.

On 8 October 2010 a genetic sample was taken from the child at the testing laboratory.

On 13 October 2010 the testing laboratory issued a report, finding that the probability that the applicant was the father of A.E.Z. was 99.9999141 % and that it was impossible that A.L. was the father.

The next hearing of the Zemgale District Court was held on 11 November 2010.

On 25 November 2010 the Zemgale District Court adopted a judgment by which it rejected the applicant’s claim. The court held that, even though the applicant was the child’s biological father, the Civil Law did not give him the right to contest a voluntary acknowledgement of paternity.

The applicant appealed on 15 December 2010. On 17 January 2011 the Riga Regional Court instituted appeal proceedings. The Regional Court held a hearing on 16 May 2011.

On 26 May 2011 the Regional Court decided to uphold the impugned judgment. In response to the applicant’s complaint that the overall length of the proceedings was excessive within the meaning of Article 6 § 1 of the Convention, the appeal court noted that such questions were outside its competence.

On 11 July 2011 the applicant submitted an appeal on points of law, complaining, inter alia, that the time taken by the first-instance court to examine his claim had been excessive.

On 26 October 2011 the applicant asked the Senate of the Supreme Court to expedite the examination of the case, referring to Article 6 § 1 of the Convention and the urgent nature of cases relating to the interests of children. The Senate instituted cassation proceedings on 29 December 2011.

The Senate held the first hearing on 7 March 2012. On 21 March 2012 the Senate decided to examine the case in an extended composition (paplašinātā tiesas sastāvā) of seven judges instead of the usual three-judge composition. A final decision was adopted by the Senate on 16 May 2012.

The Senate disagreed with the lower-level courts’ interpretation of section 156 of the Civil Law. It held that that section could not be interpreted so as to deny a biological father the right to contest a voluntary acknowledgement of paternity if the legal father had acknowledged paternity in the knowledge that he was not in fact the father of the child. On the other hand, having the standing to contest a voluntary acknowledgement of paternity did not mean that the claim should be automatically upheld, since the courts were obligated to balance the rights of the child and the rights of the biological father.

Turning to the facts of the specific case, the Senate noted that during the 16 May 2011 hearing of the appeal court, the representative of the Guardianship Tribunal had explained that the child was living in a “united family” (apvienotā ģimenē) and that upholding the applicant’s claim would be contrary to the child’s interests. The Senate found no reason to doubt the professional competence of the staff of the Guardianship Tribunal and agreed with its assessment of the interests of the child.

In conclusion, the Senate held that the appeal court had erred in deciding that the applicant lacked standing to contest the acknowledgment of paternity. However, “taking into account the unreasonable length of the proceedings”, the Senate, decided not to remit the case to the appeal court. The judgment of the appeal court was thus upheld.

The applicant submitted that after the decision became final, he learned of certain facts previously unknown to him. In particular, he found out that when the child was born and throughout the proceedings A.L. had been married to J.Z. and had five children in that marriage. In addition, from 2003 until March of 2012 A.L. had been living with yet another woman (D.B.) and several of his children from his marriage to J.Z. The applicant submitted to the Court a written statement from D.B. to that effect.

On 27 June 2012 the applicant submitted a complaint about the actions of representatives of the Guardianship Tribunal to the Children’s Rights Inspectorate (Valsts bērnu tiesību aizsardzības inspekcija). Among other things, he complained that the Guardianship Tribunal had come to the unsubstantiated conclusion that A.L. was living with A.Z. and the child, whereas in fact he had been living with another woman in a different town.

On 23 July 2012 the Inspectorate replied to the applicant, informing him that the Guardianship Tribunal was responsible for omissions (pieļāvusi trūkumus), which could have had a negative effect on the performance of its duty to protect the rights and legal interests of children.

On 2 October 2012 the applicant submitted the present application to the Court.

On 23 November 2012 the applicant requested that the Supreme Court reopen the proceedings in the light of the newly discovered circumstances, namely, the information set out in paragraph 45 above.

On 14 January 2013 the present application was communicated to the respondent Government.

On 5 March 2013 the Supreme Court examined the applicant’s request to reopen the proceedings and rejected it, finding that the circumstances invoked by the applicant could not be considered as “newly discovered” within the meaning of the Civil Procedure Law.

The applicant submitted an ancillary complaint and on 12 June 2013 the Senate of the Supreme Court quashed the decision of the Supreme Court, examined the applicant’s request on the merits and upheld it, quashing the decision of the Riga Regional Court of 26 May 2011 (see paragraph 38 above). The case was sent for fresh examination to the Riga City Zemgale District Court, which held the first hearing on 3 October 2013. The court decided to invite the Guardianship Tribunal to submit a report concerning the family situation of the child. The proceedings have been adjourned until 13 February 2014.


Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period;Article 35-3 - Continuing situation);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Aleš Pejchal;Alvina Gyulumyan;Ann Power-Forde;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Florin Streteanu;Guido Raimondi;Ineta Ziemele;Ján Šikuta;Johannes Silvis;Josep Casadevall;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nona Tsotsoria;Paul Lemmens;Paulo Pinto De Albuquerque;Peer Lorenzen

Mrs Anca Mocanu and Mr Marin Stoica were born in 1970 and 1948 respectively. They live in Bucharest.

The Association “21 December 1989” (Asociaţia 21 Decembrie 1989) was set up on 9 February 1990 and is based in Bucharest.

The applicant association brings together mainly individuals who were injured during the violent suppression of the anti-totalitarian demonstrations which took place in Romania in December 1989 and the relatives of persons who died during those events. It was one of the groups which supported the anti-government demonstrations held in Bucharest between April and June 1990, at which demonstrators called, inter alia, for the identification of those responsible for the violence committed in December 1989.

The main facts concerning the crackdown on anti-government demonstrations from 13 to 15 June 1990 were described in the decisions of 16 September 1998 (see paragraphs 99-110 below) and 17 June 2009 (see paragraphs 152-63 below), issued by the prosecutor’s office at the Supreme Court of Justice (which in 2003 became the High Court of Cassation and Justice), and in the decisions to commit for trial (rechizitoriu) issued by the same prosecutor’s office on 18 May 2000 and 27 July 2007.

On 13 June 1990 the security forces’ intervention against the demonstrators who were occupying University Square and other areas of the capital resulted in several civilian casualties, including Mrs Mocanu’s husband, Mr Mocanu, who was killed by a shot fired from the headquarters of the Ministry of the Interior.

On the evening of 13 June 1990 Mr Stoica and other persons, some but not all of whom were demonstrators, were arrested and ill-treated by uniformed police officers and men in civilian clothing, in the area around the headquarters of the State television service and in the basement of that building.

On 14 June 1990 thousands of miners were transported to Bucharest, essentially from the Jiu Valley (Valea Jiului) mining region, to take part in the crackdown on the demonstrators.

At 6.30 a.m. on 14 June 1990 the President of Romania addressed the miners, who had arrived in the square in front of the Government building, inviting them to go to University Square, occupy it and defend it against the demonstrators; they subsequently did so.

The violent events of 13 and 14 June 1990 resulted in more than a thousand victims, whose names appear in a list attached to the decision issued on 29 April 2008 by the military section of the prosecutor’s office at the High Court of Cassation and Justice.

The headquarters of several political parties and other institutions, including those of the applicant association, were attacked and ransacked. The latter association subsequently joined the criminal proceedings as a civil party.

The criminal proceedings into the unlawful killing by gunfire of Mr Velicu-Valentin Mocanu are still pending. The investigation opened on 13 June 1990 into the ill-treatment allegedly inflicted on Mr Stoica was closed by a decision not to bring a prosecution, dated 17 June 2009, subsequently upheld by a judgment of the High Court of Cassation and Justice of 9 March 2011.

The facts as set out by the prosecutor’s office at the High Court of Cassation and Justice in its decisions of 16 September 1998 and 17 June 2009 and in the decisions to commit for trial of 18 May 2000 and 27 July 2007 may be summarised as follows.

University Square in Bucharest was considered a symbolic location for the fight against the totalitarian regime of Nicolae Ceauşescu, given the large number of persons who had died or were injured there as a result of the armed repression initiated by the regime on 21 December 1989. It was therefore in this square that several associations – including the applicant association – called on their members to attend protest events in the first months of 1990.

Thus, the first demonstrations against the provisional government formed after the fall of the Ceauşescu regime took place in University Square in Bucharest on 12 and 24 January 1990, as indicated in the decision issued on 17 June 2009 by the prosecutor’s office at the High Court of Cassation and Justice. That decision also states that a counter-demonstration was organised by the National Salvation Front (Frontul Salvării Naţionale – the FSN) on 29 January 1990. On that occasion, miners from the coal-mining regions of the Jiu Valley, Maramureş and other areas appeared in Bucharest. The headquarters of the National Liberal Party were vandalised at that time.

From 25 February 1990, demonstrations were held every Sunday. According to the decision to commit for trial of 27 July 2007, they were intended to denounce the non-democratic attitude of those in power, who were accused of having “betrayed the ideals of the revolution”, and sought to alert the population to the threat of a new dictatorial regime.

Election campaigns were subsequently launched for parliamentary elections and the office of President of the Republic, to be held on 20 May 1990.

It was in this context that unauthorised “marathon demonstrations” (manifestaţii maraton) began on 22 April 1990 in University Square, at the initiative of the Students’ League and other associations, including the applicant association. These demonstrations lasted fifty-two days, during which the demonstrators occupied University Square. The decisions of 16 September 1998 and 17 June 2009 indicate that the demonstrators, who had gathered in large numbers, were not violent and were essentially demanding that persons who had exercised power during the totalitarian regime be excluded from political life. They also called for a politically independent television station.

They called further for the identification of those responsible for the armed repression of December 1989 and demanded the resignation of the country’s leaders (particularly the Minister of the Interior), whom they considered responsible for the repression of the anti-communist demonstrations in December 1989.

On 22 April 1990 fourteen demonstrators were arrested by the police on the ground that the demonstration had not been authorised. Faced with the reaction of the public, who had arrived to boost the number of demonstrators in University Square, the police released the fourteen arrested demonstrators. The authorities did not use force again over the following days, although the Bucharest City Council had still not authorised the gathering.

Negotiations between the demonstrators and the provisional government resulted in stalemate.

On 20 May 1990 the presidential and parliamentary elections took place. The FSN and its leader, who was standing for President, won the elections.

Following those elections the protests continued in University Square, but were reduced from their original scale. Of the approximately 260 persons still present, 118 had gone on hunger strike.

On the evening of 11 June 1990 the new President elect of Romania and his Prime Minister convened a government meeting, attended by the Minister of the Interior and his deputy, the Minister of Defence, the director of the Romanian Intelligence Service (Serviciul Român de Informaţii – the SRI), the first deputy president of the ruling party (the FSN) and the Procurator General of Romania. This is established in the prosecution service’s decisions of 16 September 1998 and 17 June 2009.

At that meeting it was decided to take measures to clear University Square on 13 June 1990. In addition, it was proposed that the State organs, namely the police and army, would be assisted by some 5,000 mobilised civilians. Implementation of this measure was entrusted to the first deputy president of the FSN. Two members of that party’s steering committee opposed the measure, but without success. According to the decision of 17 June 2009, an action plan drawn up by General C. was approved by the Prime Minister.

On the same evening the Procurator General’s Office (Procuratura Generală) broadcast a statement on State television calling on the government to take measures so that vehicles could circulate again in University Square.

At a meeting held on the same evening with the participation of the Minister of the Interior, the head of the SRI and the head of police, General D.C. set out the plans for the police and gendarmerie, in collaboration with civilian forces, to clear University Square. Under this plan, the action was “to begin at 4 a.m. on 13 June 1990 by cordoning off the square, arresting the demonstrators and re-establishing public order”.

At about 4.30 a.m. on 13 June 1990 members of the police and gendarmerie brutally charged the demonstrators in University Square. The arrested demonstrators were driven away and locked up at the Bucharest municipal police station. The 263 arrested individuals (or 262, according to the decision to commit for trial of 18 May 2000) included students from the Architecture Institute, who had been on the premises of their establishment, located on University Square, and who had not taken part in the demonstrations. The decision of 17 June 2009 indicated that the 263 persons who had been arrested were taken to the Măgurele barracks after being held in the police cells.

The police operation led to protests by many people, who demanded that the arrested demonstrators be released. According to the decision of 16 September 1998, those persons launched violent attacks on the security forces, hurling projectiles and setting cars on fire. According to the decision to commit for trial of 18 May 2000, those actions were the work of a few aggressive individuals who had infiltrated groups of peaceful demonstrators.

At about 10 a.m., workers from the factories of a large metallurgical company in Bucharest (IMGB) headed en masse for University Square to help the police arrest the demonstrators. According to the decision of 16 September 1998, they acted in a chaotic and heavy-handed manner, hitting out blindly and making no distinction between demonstrators and mere passers-by.

On the afternoon of 13 June 1990, the demonstrations intensified around the television building, University Square, the Ministry of the Interior and the municipal police station, all locations where, according to the demonstrators, the persons who had been arrested could be held prisoner.

Following those incidents, the army intervened and several armoured vehicles were sent to the headquarters of the Ministry of the Interior.

According to a report by the Ministry of the Interior, referred to by the Government in their observations, at about 6 p.m. the headquarters of the Ministry of the Interior were surrounded by between 4,000 and 5,000 demonstrators; on the orders of Generals A.G. and C.M., servicemen posted inside the Ministry fired at the ceilings of the entrance halls with a view to dispersing the demonstrators.

Three persons were killed by the shots fired in the Ministry of the Interior.

It was in those circumstances that, at about 6 p.m., when he was a few metres away from one of the doors of the Ministry, the first applicant’s husband was killed by a bullet which hit the back of his head after having ricocheted. Those events are described in detail in the decisions of 18 May 2000 and 27 July 2007 committing for trial the Minister of the Interior at the relevant time, a general and three colonels. According to the first decision to commit for trial, the applicant’s husband and the other victims, who were returning from their workplaces on that day, were unarmed and had not previously taken part in the marathon demonstrations in University Square. Mere spectators of the events, they had been killed by bullets which had ricocheted.

The security forces shot and killed a fourth person in another district of Bucharest. Another died shortly after having been stabbed in the area around the television headquarters.

On 13 June 1990 no servicemen were subjected to violence by the demonstrators, as attested by the decision to commit for trial of 27 July 2007. According to that document, the army had fired 1,466 bullets from inside the Ministry of the Interior headquarters on that date.

In addition, other persons, including Mr Stoica, were beaten and detained by police officers and civilians in the headquarters of the State television station, in the circumstances described below.

The headquarters of the State television station were at that time guarded by 82 servicemen, backed by 14 armed vehicles, and subsequently reinforced by other groups of armed forces, the largest of which contained 156 servicemen (who arrived at 7 p.m.), a detachment of parachutists (7.30 p.m.), 646 servicemen (8 p.m.), 118 parachutists (11 p.m.) and 360 servicemen with 13 other armed vehicles (11 p.m.).

At about 1 a.m. the demonstrators were chased out of the television headquarters following this mass intervention.

Towards the end of the afternoon on 13 June 1990, while he was walking to his workplace along a street near the State television headquarters, the applicant was brutally arrested by a group of armed individuals and taken by force into the television building. In sight of the police officers and servicemen present, civilians struck and bound him, then took him to the basement of the building. He was then led into a television studio, where several dozen other persons were already present. They were filmed in the presence of the then director of the State television station. The recordings were broadcast during the night of 13 to 14 June 1990, accompanied by commentary which described the persons concerned as employees of foreign secret services who had threatened to destroy the television premises and equipment.

In the course of the same night the applicant was beaten, struck on the head with blunt objects and threatened with firearms until he lost consciousness.

He woke up at around 4.30 a.m. in the Floreasca Hospital in Bucharest. According to the forensic medical report drawn up on 18 October 2002, the medical certificate issued by the hospital’s emergency surgery department stated that the applicant had been admitted at about 4.30 a.m. on 14 June 1990 and diagnosed as suffering from bruising on the left side of the abdomen and ribcage, abrasions on the left side of his ribcage resulting from an assault, and craniocerebral trauma.

Fearing further ill-treatment, he fled from the hospital, which was surrounded by police officers, at about 6.30 a.m.

His identity papers had been confiscated during the night of 13 to 14 June 1990. Three months later he was invited to collect them from the Directorate of Criminal Investigations at the General Inspectorate of Police. In the meantime, he had remained shut away at home for fear of being arrested again, tortured and imprisoned.

According to the decision of 16 September 1998, witness M.I., an engineer, who at the relevant time was head of department at the Craiova agency of the national railway company (Regionala CFR Craiova), had stated that, on the evening of 13 June 1990, the director of that agency had ordered that the scheduled trains be cancelled and that 4 train convoys, or a total of 57 wagons, be made available to the miners at Petroşani station, in the heart of the Jiu Valley mining area.

M.I. had added that the order seemed to him unlawful and that he had attempted to prevent the miners’ transportation to Bucharest by cutting the electricity provision to the railway line on the journey indicated. He had stated that, faced with his insubordination, the director of the Craiova CFR agency had ordered that he be replaced and had the railway line restored to use by about 9 p.m. It appears that M.I. was subsequently dismissed and brought before the prosecution service.

According to the decision issued on 10 March 2009 by the prosecutor’s office at the High Court of Cassation and Justice, on 14 June 1990 11 trains – a total of 120 wagons – transporting workers, especially miners, had travelled to Bucharest from several industrial regions around the country. The first had reached Bucharest at 3.45 a.m., the last at 7.08 p.m.

The decision of 16 September 1998 states that the miners had been informed that they were to help the police re-establish public order in Bucharest, and that they were armed with axes, chains, sticks and metal cables.

The decision of 10 March 2009 indicates that the miners had been mobilised by the leaders of their trade union. Questioned as a witness, the President of the Federation of Miners’ Unions, who became mayor of Lupeni in 1998, stated that 5 trains carrying the miners had arrived at Bucharest station at about 1 a.m. on 14 June 1990, that the miners had been greeted by the deputy Minister for Mines and a Director General from that Ministry, and that these two senior government officials had led them to University Square.

On the morning of 14 June 1990, groups of miners first stopped at Victory Square (Piaţa Victoriei), at the government headquarters.

At about 6.30 a.m., the Head of State addressed the miners who were gathered in front of the government building, inviting them to cooperate with the security forces and to restore order in University Square and in other areas where incidents had occurred. In this speech, which is reproduced in full in the decision of 17 June 2009, he urged them to head towards University Square and occupy it, informing them that they would be confronted with “openly fascist elements who had committed acts of vandalism” by setting fire to the headquarters of both the Ministry of the Interior and of the police and “besieging the television building”.

Immediately afterwards groups of miners were led “by unidentified persons” to the headquarters of opposition parties and associations perceived as hostile to the authorities.

The miners were flanked by troops from the Ministry of the Interior, with whom they formed “mixed teams”, and set out to look for demonstrators. The decision of 17 June 2009 indicates that “acts of extreme cruelty [took place] on this occasion, with violence being used indiscriminately against demonstrators and Bucharest residents who were totally unconnected with the demonstrations”. The decision of 10 March 2009 indicates that the miners also attacked the homes of persons of Roma ethnicity. According to that decision, the miners had “selection criteria” for identifying those persons who, in their opinion, were suspected of taking part in the University Square demonstrations, and attacked “as a general rule, Roma, students, intellectuals, journalists and anyone who did not recognise their legitimacy”.

The groups of miners and the other persons accompanying them ransacked the headquarters of the National Farmers’ Party (Partidul Naţional Ţărănesc Creştin şi Democrat) and the National Liberal Party, and the headquarters of other legal entities, such as the Association of Former Political Prisoners (Asociaţia Foştilor Deţinuţi Politici), the League for the Protection of Human Rights (Liga pentru Apărarea Drepturilor Omului) and the Association “21 December 1989” (the applicant association).

According to the decision of 16 September 1998, no one present in the headquarters of those political parties and associations at that time was spared by the miners. All were attacked and had their possessions confiscated. Many were apprehended and handed over to the police – who were there “as though by coincidence” – and detained in an entirely unlawful manner.

Other groups of miners had gone to University Square. On arrival, they broke into the University premises and the Architecture Institute, located on University Square. They attacked the staff and students whom they encountered there, subjecting them to violence and humiliating acts. The miners apprehended everyone on the premises and handed them over to the police and gendarmes. The arrested persons were taken by the law-enforcement officers to police stations or to the Băneasa and Măgurele military barracks.

The miners then moved into the streets surrounding University Square and continued their activities there.

According to the decision of 17 June 2009, 1,021 individuals – including 63 who were then under age – were apprehended in those circumstances. Of those individuals, 182 of them were placed in pre-trial detention, 88 received an administrative penalty and 706 were released “after checks”.

The decision of 16 September 1998 states that “the miners [ended] their law-enforcement activities on 15 June 1990, after the President of Romania had thanked them publicly for what they had done in the capital, and authorised them to return to their work”.

That decision also indicates that some of those who were beaten and imprisoned were unlawfully detained for several days and that several of them were released on 19 and 20 June 1990.

The other persons in police custody were placed in pre-trial detention, on a decision by the prosecutor, for causing a breach of the peace; their number included the current president of the applicant association, who was subsequently acquitted of all the charges against him.

The decision of 17 June 2009 states that the miners acted in close collaboration with the security forces and on the instructions of the State’s leaders. The relevant passages read as follows:

“On 14 and 15 June 1990 the miners, in groups coordinated by civilians on behalf of and with the agreement of the State’s leaders [în numele şi cu acordul conducerii de stat], committed acts in which the State’s law-enforcement forces fully collaborated [deplină cooperare] and which caused not only physical harm to the persons who were apprehended for checks, but also significant damage to the premises of the University of Bucharest, the Architecture Institute, several political parties and civilian associations, and the homes of figures from so-called ‘historical’ parties ...

The investigations conducted by the military prosecutors have not permitted identification of the persons in civilian clothing who had infiltrated the miners’ groups; the victims who were questioned had distinguished between the miners and their other attackers by describing the first as ‘dirty miners’ and the second as ‘clean miners’.

On 13 June 1990 the applicant association publicly condemned the violent interventions of the same day.

At about 11 p.m. the leaders of the association decided, as a security measure, to spend the night in its headquarters. Seven of them remained there during the night.

At 7 a.m. on 14 June 1990, a group of miners forcibly entered the applicant association’s premises after breaking a window pane. In the first few minutes after entering they were not violent, and were rather reserved. Shortly afterwards an unidentified civilian, who was not a miner, arrived on the scene and began hitting one of the members of the association. The miners followed his lead, brutally attacking the seven members of the association, who were then arrested by the security forces.

During that day all of the association’s property and documents were seized, in breach of the legal formalities, under the supervision of troops from the Ministry of Defence.

On 22 June 1990 the leaders of the association were able to return to the association’s premises, accompanied by the police.

The above-cited decisions of the prosecutor’s office indicate that, instead of immediately returning to their homes, 958 miners remained in Bucharest, “ready to intervene should the protests recommence”, notably with a view to the impending swearing-in of the newly elected President. From 16 to 19 June 1990 those miners were accommodated in military barracks in Bucharest, where they received military uniforms.

The decision of 16 September 1998 indicates that the investigation was unable to elucidate who had given the order to house and equip the miners, but specifies that “such a measure had to have been taken at least at Ministry of Defence level”.

According to a press release issued by the Ministry of Health on 15 June 1990 and reproduced in the decision of 17 June 2009, during the period between 13 June and 6 a.m. on 15 June 1990, 467 persons went to hospital following the violent incidents; 112 were kept in hospital and 5 deaths were recorded.

According to the same decision of 17 June 2009, police officers, miners and later the military conscripts responsible for supervising the miners used excessive force against the 574 demonstrators and the other persons – including children, elderly persons and blind people – who had been arrested and detained in the Măgurele military barracks. The decision states that the detainees on those premises were subjected to violence and assaults of a “psychological, physical and sexual” nature and held in inappropriate conditions, and that they received belated and inadequate medical care.

The violent events of June 1990, in the course of which the husband of the applicant Anca Mocanu was killed and Mr Stoica was allegedly ill-treated, and which resulted in the ransacking of the applicant association’s headquarters, gave rise to the opening of an investigation. It was initially divided up into several hundred different case files.

On 29 May 2009 the military section of the prosecutor’s office at the High Court of Cassation and Justice sent a letter to the Government’s Agent, in which the facts were summarised as follows:

“Over the period from 1990 to 1997, hundreds of complaints were registered on the rolls of the prosecutor’s office at the Bucharest County Court and the district prosecutor’s offices concerning the offences of theft, destruction, armed robbery, assault causing bodily harm, unlawful deprivation of liberty and other offences committed in the context of the acts of violence committed by miners in Bucharest on 14 and 15 June 1990. In the majority of those cases, it having proved impossible to identify the perpetrators, a decision was issued not to bring a prosecution.”

No decision to discontinue the proceedings was communicated to Mrs Mocanu or to the applicant association, which had joined the proceedings as a civil party.

Those case files were subsequently joined and the scope of the investigation was broadened from 1997 onwards, the events having been given a different legal classification involving aggravated criminal responsibility. Senior army officers and State officials were successively charged and the entire investigation was transferred to the military section of the prosecutor’s office at the Supreme Court of Justice (Parchetul de pe lângă Curtea Supremă de Justiţie – Secţia Parchetelor Militare) as case no. 160/P/1997.

Between 22 October 1997 and 27 October 1999, 183 previously opened cases were joined to case no. 160/P/1997, of which 46 were joined on 22 October 1997, 90 on 16 September 1998 and 69 on 22 October 1999.

On 26 June 2000 the same military prosecutor’s section was assigned 748 cases concerning the events of 13 to 15 June 1990, including, in particular, the unlawful deprivations of liberty on 13 June 1990.

In the decision of 17 June 2009, the state of the file as it existed after the joinder of all those cases is described as follows:

“Many of the documents included in the 250 volumes of the file are photocopies which have not been stamped or have not been certified as corresponding to the original. The documents in each of those volumes are not filed by date, subject or another criterion, but in a disorderly fashion. Some of them have nothing to do with the case (for example, volume 150 contains files concerning disappearances which occurred after June 1990). ...”

On 16 September 1998 case no. 160/P/1997 was split into four cases and the subsequent investigation was assigned to the military section of the prosecutor’s office at the Supreme Court of Justice.

On 8 January 2001 three of those four cases were joined. After that date the investigation focused on two main cases.

The first concerned charges of incitement to or participation in aggravated unlawful killing, particularly that of Velicu-Valentin Mocanu. The persons accused of that offence were the President of Romania at the relevant time and five senior army officers, including the Minister of the Interior.

The decision of 19 June 2007to bring charges, and the subsequent decision of 19 July 2007 to sever the charges, state that, on orders from the then President, on the evening of 13 June and the night of 13 to 14 June 1990 the security forces and army personnel used their weapons and heavy ammunition against demonstrators, killing four persons, injuring three others and endangering the lives of other persons.

The charges against the former President were subsequently severed from those against the other defendants, who were high-ranking military officers, and a decision to discontinue proceedings against him was issued.

At 2 October 2013 this first branch of the investigation was still pending in respect of two of the officers in question, the three others having died in the meantime.

The other case concerning the events of June 1990, which investigated, in particular, the criminal complaint for violence lodged by Mr Stoica and the ransacking of the applicant association’s premises, concerned charges of incitement to commit or participation in acts of sedition (subminarea puterii de stat), sabotage (actele de diversiune), inhuman treatment (tratamentele neomenoase), propaganda in favour of war (propaganda pentru război) and genocide, within the meaning of Article 357 (a) to (c) of the Criminal Code.

The persons accused of those acts were the former President, several high-ranking officers and dozens of civilians. Proceedings were brought in respect of these charges against the former President on 9 September 2005 and against the former head of the SRI on 12 June 2006.

This second branch of the investigation was closed by a decision not to bring a prosecution, adopted on 17 June 2009. That decision was upheld by a judgment delivered on 9 March 2011 by the High Court of Cassation and Justice following an appeal by Mr Stoica.

The main stages of the investigation are described below.

On 16 September 1998 the military section of the prosecutor’s office at the Supreme Court of Justice issued its decision in case no. 160/P/1997, following an investigation concerning sixty-three persons who had been victims of violence and unlawful arrests, including Mrs Mocanu and three members of the applicant association, as well as the applicant association itself and eleven other legal entities whose premises had been ransacked during the events of 13 to 15 June 1990.

Of the sixty-three victims listed in the table contained in the decision of 16 September 1998, three had been assaulted and deprived of their liberty at the headquarters of the State television station. In the final column, indicating the stage reached in the investigations, the table notes that “the case has not been investigated” (cauza nu este cercetată) in respect of those three persons.

In its decision, the military section of the prosecutor’s office indicated that other complaints were pending before the civilian prosecutors’ offices.

It added that its decision also concerned “the presumed unlawful killing of about one hundred individuals during the events of 13 to 15 June 1990, [whose corpses] were allegedly incinerated or buried in common graves in cemeteries in villages near Bucharest (notably Străuleşti)”.

It also indicated that, to date, the investigation had been unable to identify the persons who had implemented in practice the executive’s decision to summon civilians to restore order in Bucharest. According to the prosecution service, this failing in the investigation was due to the “fact that none of the persons who held posts of responsibility at the relevant time [had] been questioned”, particularly the then President of Romania, the Prime Minister and his deputy, the Minister of the Interior, the head of the police, the director of the SRI and the Minister of Defence.

In its decision, the military section ordered that the case be split into four separate case files.

The first of those files was to focus on the continued investigation into the unlawful killing by gunfire of four civilians, including the first applicant’s husband.

The second file targeted those persons who had exercised functions pertaining to civilian and military command. The authorities decided to pursue the investigation in respect of them, in particular for abuse of power against the public interest entailing serious consequences, an offence punishable under Article 248 § 2 of the Criminal Code, and also to investigate the fact that one social group had been enlisted alongside the security forces to combat other social groups.

The third file concerned the continuing investigations into the possible existence of other victims who had been killed during the violent incidents of 13 to 15 June 1990 (see paragraph 102 above).

Lastly, considering that the prosecution was statute-barred, the military section of the prosecutor’s office decided to discontinue the proceedings against unidentified members of the security forces and groups of miners in respect of the offences of armed robbery, unlawful deprivation of liberty, abusive conduct, improper investigation, abuse of power against private interests, assault, actual bodily harm, destruction of property, theft, breaking and entering homes, malfeasance and rape, committed between 13 and 15 June 1990.

This part of the decision of 16 September 1998 was set aside in a decision issued on 14 October 1999 by the head of the military section of the prosecutor’s office (Şeful Secţiei Parchetelor Militare) at the Supreme Court of Justice, which ordered that the proceedings and investigations intended to identify all the victims be resumed, specifying in that respect that it had been established that the number of victims greatly exceeded that of the injured parties listed in the impugned decision.

In addition, the decision of 14 October 1999 noted that the investigators had so far failed to conduct investigations into the “known collusion” between the Ministry of the Interior and the leaders of the mining companies “with a view to organising a veritable apparatus of unlawful repression”, that collusion having been established, according to the decision by the evidence contained in the case file.

After the decision of 16 September 1998, the investigations into the unlawful killing of Mr Velicu-Valentin Mocanu continued under case no. 74/P/1998 (see paragraph 105 above).

Mrs Mocanu and the two children she had had with the victim joined the proceedings as civil parties.

Two generals – the former Minister of the Interior and his deputy – and three senior-ranking officials were charged with the unlawful killings committed on 13 June 1990, including that of the applicant’s husband, on 12, 18 and 21 January and 23 February 2000 respectively.

All five were committed for trial on the basis of a decision to that effect (rechizitoriu) of 18 May 2000, on the ground that they had called for – and, in the case of the two generals, ordered – the opening of fire with heavy ammunition, an act which resulted in the death of four individuals and which caused serious injury to nine other persons.

By a decision of 30 June 2003, the Supreme Court of Justice remitted the case to the military section of the prosecutor’s office at the Supreme Court of Justice for additional investigation intended to remedy various deficiencies, and reclassified the offence as participation in aggravated unlawful killing. It also ordered a series of investigative measures to be taken.

Mrs Mocanu, other civil parties and the military section of the prosecutor’s office appealed against that decision on points of law. Their appeals were dismissed by the High Court of Cassation and Justice (as the Supreme Court of Justice was renamed in 2003, see paragraph 14 above) in a judgment of 16 February 2004.

After the investigation was resumed, the proceedings against the five defendants were discontinued by a decision of 14 October 2005. That decision having been overturned on 10 September 2006, the proceedings were reopened.

After carrying out an additional investigation in line with the instructions set out in the judgment of 30 June 2003, the military section of the prosecutor’s office at the High Court of Cassation and Justice committed the former Minister of the Interior, his deputy and two other senior army officers for trial in a decision to that effect of 27 July 2007. It discontinued proceedings against the fifth officer, who had died in the meantime.

According to the decision to commit for trial, “the lack of reaction by the public authorities” and the lack of an immediate effective investigation “[had] endangered the very existence of democracy and the rule of law”.

By a judgment of 17 December 2007, the High Court of Cassation and Justice ordered that the case be sent back to the military section of the prosecutor’s office for a breach of procedural rules, primarily on the ground that criminal proceedings against a former minister could only be brought through a special procedure requiring prior authorisation by Parliament.

On 15 April 2008 the military section of the prosecutor’s office at the High Court of Cassation and Justice lodged an appeal on points of law against that decision, but this was dismissed on 23 June 2008.

On 30 April 2009 the military section of the prosecutor’s office at the High Court of Cassation and Justice stated that it did not have jurisdiction to examine this branch of the case, mainly because members of the police force – including the Minister of the Interior – had become civil servants following a legislative amendment, and the military courts and prosecutors thus no longer had jurisdiction over their criminal acts, even where those had been committed while they were still military officers. It therefore relinquished jurisdiction to one of the ordinary criminal sections of the same prosecutor’s office, namely the Criminal Proceedings and Criminalistics Section (Secţia de urmărire penală şi criminalistică).

By a decision of 6 June 2013, that Section discontinued the proceedings against the former minister and his deputy, both of whom had died on 2 November 2010 and 4 February 2013 respectively.

By the same decision, the same Section of the prosecutor’s office declared that it did not have jurisdiction in respect of the last two surviving defendants, Colonels C.V. and C.D., and referred their cases to the military prosecutor’s office at the Bucharest regional military court.

This investigation was pending before that prosecutor’s office on 2 October 2013.

This part of the investigation concerned the charges against the former President of the Romanian Republic with regard to the victims who were killed or injured by gunshots fired by the army on 13 June 1990.

The former President of Romania, in office from 1989 to 1996 and from 2000 to 2004, was charged on 19 June 2007, by which date he was exercising the functions of senator and was a member of parliament. He was accused of having “deliberately incited servicemen to use force against the demonstrators in University Square and in other districts of the capital, an act which resulted in the death or injury by gunfire of several persons”. Those facts were characterised as participation lato sensu in aggravated unlawful killing, a crime punishable under Articles 174, 175 (e) and 176 (b) of the Criminal Code, taken together with Article 31 § 2 of that Code.

On 19 July 2007 those charges were severed from case no. 74/P/1998. The investigation continued under case no. 107/P/2007.

In the meantime, on 20 June 2007 the Constitutional Court, ruling in a case unrelated to the present one, had delivered a judgment ruling that the military courts did not have jurisdiction to judge or prosecute civilian defendants. In consequence, by a decision of 20 July 2007 the military section of the prosecutor’s office held that it did not have jurisdiction to examine case no. 107/P/2007 and relinquished jurisdiction to one of the ordinary criminal sections.

On 7 December 2007 the Procurator General of Romania set aside, for procedural errors, the indictment of 19 June 2007, and ordered that the investigation be resumed.

By a decision of 10 October 2008, the Criminal Proceedings and Criminalistics Section of the prosecutor’s office at the High Court of Cassation and Justice issued a decision not to bring a prosecution, on the ground that there was no causal link between the order to clear University Square issued by the former President and the decision taken by three officers, with the agreement of their superiors – General A. and General C. (Minister of the Interior) – to give the order to open fire on the demonstrators.

In so ruling, the prosecutor’s office held that the objectives of the action plan drawn up on 12 June 1990 had been fulfilled by 9 a.m. on the following morning, and that the following events, including the subsequent orders to open fire, had had nothing to do with that plan and could not have been foreseen by those who prepared it.

On 3 November 2008 Mrs Mocanu and other injured parties challenged this decision not to bring a prosecution.

On 18 December 2009 a three-judge bench of the High Court of Cassation and Justice dismissed their appeals, finding them inadmissible, out of time or unfounded, depending on the case. It concluded that there was no causal link between the acts imputed to the former President and the unpredictable consequences of the demonstrations which had resulted in the deaths of several persons. Moreover, it noted that three of the injured parties – widows or relatives of the victims who died on 13 and 14 June 1990 –, including Mrs Mocanu, had stated at a hearing on 11 December 2009 that they did not intend to challenge the decision not to bring a prosecution in respect of the former President and that they wished only that those responsible for the unlawful killings be identified and that they be held liable. Following an appeal on points of law by the civil parties, that decision was upheld by a nine-judge bench of the High Court in a judgment of 25 October 2010.

According to the forensic autopsy report carried out on Mrs Mocanu’s husband, he died as a result of gunshot wounds inflicted by a third party.

The applicant made her first specific request to join the proceedings as a civil party on 11 December 2000. On the same date the applicant and the other civil parties – relatives of the three other persons who had been killed during the events of 13 and 14 June 1990 – filed joint pleadings containing their observations as to the identity of those responsible for the deaths of their relatives, and their claims for compensation.

On 14 February 2007 the applicant was questioned for the first time by the prosecutor’s office for the purposes of the investigation. Assisted by a lawyer of her own choice, she stated that her husband had not returned home on the evening of 13 June 1990, that this had worried her, that she had searched for him the following day without success, and that she had subsequently learned from the press that he had been killed by a shot to the head. No investigator or official representative had visited her, nor had she been summoned for the purposes of the investigation; only a few journalists had come to see her. She stated that, aged 20 and without employment at the relevant time, since her husband’s death she had raised their two children, a daughter of two months (born in April 1990) and a two-year-old son, alone.

The documents in the file submitted to the Court do not indicate whether Mrs Mocanu was kept informed about developments in the investigation into the aggravated unlawful killing of her husband following the High Court of Cassation and Justice’s judgment of 17 December 2007 ordering that the case be remitted to the prosecutor’s office.

Between 26 November 1997 and 12 June 2006, criminal proceedings were brought against 37 persons – 28 civilians and 9 servicemen – essentially for acts of sedition committed in the course of the events of June 1990. The former President of Romania was among those prosecuted. He was charged on 9 June 2005 with participation in genocide (paragraphs (a), (b) and (c) of Article 357 of the Criminal Code), propaganda in favour of war (Article 356), inhuman treatment (Article 358), sedition (Article 162) and acts of sabotage (Article 163).

The vast majority of the 28 civilians charged were directors of mining companies, heads of miners’ trade unions and senior civil servants in the Ministry of Mines.

On 16 September 1998 this branch of the investigation was allocated the file number 75/P/1998 (see paragraph 106 above).

On 19 December 2007 the military section of the prosecutor’s office at the High Court of Cassation and Justice ordered that the case in file no. 75/P/1998 be split into two parts, one concerning the criminal charges against the 28 civilians, including the former President of Romania and the former head of the SRI, and the other concerning the charges against the 9 servicemen. The investigation with regard to the 28 civilians was to be pursued before the relevant civilian section of the same prosecutor’s office.

By a decision of 27 February 2008, the head prosecutor in the military section of the prosecutor’s office set aside the decision of 19 December 2007, finding that, given the close connection between the events, a single prosecutor’s office, namely the relevant civilian section, was to examine the entirety of the case in respect of all of the defendants, both civilians and servicemen.

In line with that decision, on 29 April 2008 the military section of the prosecutor’s office at the High Court of Cassation and Justice also relinquished jurisdiction to the relevant civilian section for examination of the criminal charges against the 9 servicemen – including several generals, the former head of police and the former Minister of the Interior.

The decision of 29 April 2008 contained a list of more than a thousand victims who had been held and subjected to ill-treatment, notably on the premises of the Băneasa Officers’ School and the Măgurele military unit. Mr Stoica was included in this list of victims. The decision also contained a list of the legal entities which had sustained damage during the crackdown of 13 to 15 June 1990, including the applicant association.

That decision also referred to “identification of the approximately 100 persons who died during the events of 13 to 15 June 1990”.

It also contained a list of the State-owned companies which had provided workers for the intervention in Bucharest. That list included, in particular, twenty mining companies from all around the country and factories in eleven towns (Călăraşi, Alexandria, Alba-Iulia, Craiova, Constanţa, Deva, Giurgiu, Galaţi, Braşov, Slatina and Buzău), as well as three factories in Bucharest.

Following that decision, on 5 May 2008 the military section of the prosecutor’s office sent the 209 volumes, containing a total of some 50,000 pages, from case no. 75/P/1998 to the relevant civilian section of the prosecutor’s office.

On 26 May 2008 the section of the prosecutor’s office at the High Court of Cassation and Justice which had received the entire file, namely the Criminal Proceedings and Criminalistics Section, stated that it did not have jurisdiction, and relinquished jurisdiction to another section of the same prosecutor’s office, namely the Directorate for Investigating Organised Crime and Terrorism (Direcţia de Investigare a Infracţiunilor de Criminalitate Organizată şi Terorism – DIICOT).

By a decision of 10 March 2009, the relevant directorate of the prosecutor’s office at the High Court of Cassation and Justice, namely the DIICOT, decided that no prosecution would be brought against the former head of the SRI on the charge of sedition, as that offence had become time-barred, and that no prosecution would be brought against the majority of the 27 civilian defendants – directors of mining companies, heads of miners’ trade unions, senior civil servants at the Ministry of Mines and in local government – on the ground that the constituent elements of the offence had not been made out.

In so ruling, the prosecutor’s office considered that, in their respective capacities as Head of State, Minister of the Interior, deputy minister or Head of Police, some of the defendants exercised State authority, and it would have been illogical to think that they could have committed acts capable of undermining their own power. As to the miners and other workers who had travelled to Bucharest on 14 June 1990, the prosecutor’s office considered that they had “turned themselves into security forces” and been persuaded that their actions served State power. In addition, it noted that their intervention had been pointless, since the operation conducted by the parachutists at the television headquarters had enabled order to be restored in the capital at about 1 a.m. on 14 June 1990.

The prosecution also discontinued the proceedings against three of the defendants, who had died in the meantime.

Lastly, the DIICOT decided to relinquish jurisdiction to the Criminal Proceedings and Criminalistics Section with regard to the remainder of the case, namely the charges of inhuman treatment, propaganda in favour of war and genocide, within the meaning of Article 357 (a) to (c) of the Criminal Code. Those facts concerned only nine of the persons who had been charged during the period 2000-06, including the former president.

On 17 June 2009 a decision was taken not to bring a prosecution in respect of those charges; its content is set out below.

On 17 June 2009 the prosecutor’s office at the High Court of Cassation and Justice issued a decision not to bring a prosecution in the case, concerning essentially charges of inhuman treatment arising from 856 complaints by persons injured as a result of the violence committed from 13 to 15 June 1990.

The decision in question indicated that the former Head of State had not been examined as a defendant in the course of the investigation.

It gave a comprehensive description of the violence – classified as extreme cruelty – inflicted on several hundred persons.

It was indicated that the investigations conducted over approximately nineteen years by the civilian prosecutor’s offices and, subsequently, by the military prosecuting authorities, had not made it possible to establish the identity of the perpetrators or the degree of involvement of the security forces. The relevant passage from the decision reads as follows:

“The investigations carried out over a period of about nineteen years by the civilian prosecutors’ offices and, subsequently, by the military prosecuting authorities, the findings of which are contained in case file ... have not made it possible to establish the identity of the miners who committed the attack, the degree of involvement in their actions by the security forces and members and sympathisers of the FSN and their role and degree of involvement in the acts of violence carried out against the residents of the capital on 14 and 15 June 1990.”

This decision ordered that proceedings be discontinued against one of the defendants, who had died in the meantime, and that no prosecution would be brought (scoatere de sub urmărire penală) in respect of the eight remaining defendants for those offences which had become statute-barred, in particular harbouring a criminal.

With regard to the offences which had not become time-barred, especially those of inhuman treatment, the decision stated that there was no case to answer, since the constituent elements of the offences had not been made out or because the reality of the events complained of had not been proven.

In this connection, it was indicated that the then Head of State could not be criticised for any form of participation in the joint actions by the miners and the armed forces, as he had merely approved the actions which occurred on the morning of 13 June 1990 and the army’s intervention on the afternoon of the same date, for the stated purpose of restoring order. It was also mentioned that there was no information (date certe) to substantiate accusations against him with regard to the preparations for the miners’ arrival in Bucharest and the instructions they had been given. It was noted that his request to the miners to protect the State institutions and to restore order – following which 1,021 persons had been deprived of their liberty and subjected to physical assault – could only be classified as incitement to commit assault and that criminal liability in that respect was time-barred.

The prosecutor’s office considered that the demonstrators and other persons targeted by the miners belonged to various ethnic groups (Romanians, Roma, Hungarians) and social categories (intellectuals, students, school pupils, but also workers), and that they could not therefore be regarded as a single group or an identifiable community on objective geographical, historical, social or other grounds, and for that reason the events complained of could not be classified as genocide. Relying on the case-law of the International Criminal Tribunal for the former Yugoslavia, the prosecutor’s office also considered that the persons deprived of liberty had not been systematically subjected to ill-treatment.

The decision further indicated that the speech by which the Head of State had encouraged the miners to occupy and defend University Square against the demonstrators camping out there could not be interpreted as propaganda in favour of war, as the accused had not sought to instigate a conflict of any kind, but had, on the contrary, asked the miners “to put an end to excess and acts of bloodshed”.

It was also indicated that the miners had been motivated by simplistic personal convictions, developed on the basis of collective hysteria, which had led them to act as arbitrators of the political situation and zealous guardians of the political regime – the leaders of which had recognised them as such –, authorised to “correct” those who opposed its legitimacy. The prosecutor further noted the legal requirement that, to be punishable, the inhuman treatment had to target “individuals who [had] fallen into enemy hands” and considered that this criterion had not been met here, since the miners no longer had any enemy against whom to fight on 14 June 1990.

With regard to the accusations of torture, the prosecutor considered that Romanian law contained no provisions against torture at the material time.

The decision of 17 June 2009 analyses each of the charges in respect of each defendant, but refers to none of the victims by name and does not mention the individual acts of violence complained of by each of them, referring to an appendix which has not been submitted to the Court. It mentions the number of victims and their membership of such or such a category, noting, for example, the 425 persons who were arrested and held on the premises of the Băneasa Officers’ School or the 574 demonstrators who were arrested and imprisoned on the premises of the Măgurele military base.

The applicant association, other legal entities and individuals lodged an appeal against the decision of 17 June 2009 not to bring a prosecution, which was dismissed on 3 September 2009 by the head prosecutor of the relevant section of the prosecutor’s office at the High Court of Cassation and Justice. In so ruling, the prosecutor’s office considered that no actions which could be classified as a crime against humanity, such as inhuman treatment or genocide, had been committed.

Mr Stoica and four other injured parties also lodged an appeal against the same decision. It was dismissed on 6 November 2009. Mr Stoica lodged on appeal on points of law before the High Court of Cassation and Justice.

On 9 March 2011, having dismissed the plea of res judicata raised by the former Head of State, the High Court of Cassation and Justice ruled on the merits of the decision not to bring a prosecution, and dismissed the applicant’s appeal.

In its judgment, it classified the assault against the applicant as grievous bodily harm (Article 182 of the Criminal Code), unlawful arrest, ill-treatment (Article 267), torture, unjust repression and blackmail. It considered that the decision of 17 June 2009 had been correct in ruling that no prosecution was to be brought, on the ground that the offences in question had become time-barred and that torture had not been a criminal offence at the material time.

In contrast, it did not rule on the criminalisation of inhuman treatment (Article 358 of the Criminal Code), which had been the subject of the decision of 29 April 2008, in which the applicant was named as a victim of the inhuman treatment imputed to five generals.

According to the Government, the main investigative measures carried out in the period between 1990 and 2009 were as follows: more than 840 interviews with injured parties; hearing of witnesses on more than 5,724 occasions; and more than 100 forensic medical reports. The results of those measures were set out in several thousand pages of documents.

On 18 June 2001, when he was received by a prosecutor at the military section of the prosecutor’s office at the Supreme Court of Justice, Mr Stoica lodged an official complaint concerning the violence of which he claimed to have been victim on the night of 13 to 14 June 1990.

His complaint was joined to the investigation file already opened in respect of other charges, especially inhuman treatment (case file no. 75/P/1998).

On 18 October 2002, for the purposes of the investigation into the alleged assault against him, the applicant underwent an examination at the State Institute of Forensic Medicine, which produced a forensic medical report. That report indicated that the injuries described in the medical file opened by the emergency unit on 14 June 1990 had required three to five days of medical treatment and had not been such as to endanger the applicant’s life.

It was also indicated that the applicant had been hospitalised for major epileptic fits from 31 October to 28 November 1990, in February 1997, March 2002 and August 2002, and that he had been diagnosed as suffering from post-traumatic secondary epilepsy and other cerebral and vascular disorders (transient ischemic attacks – TIAs). The expert report noted that the post-traumatic epilepsy had appeared following an injury sustained in 1966.

On 9 and 17 May 2005 the applicant was questioned and was able to give his point of view on the events complained of and submit his claims for compensation in respect of the alleged pecuniary and non-pecuniary damage.

By a letter of 23 May 2005, he was informed by the military section of the prosecutor’s office at the High Court of Cassation and Justice that his complaint concerning the injuries inflicted on 13 June 1990 by unidentified servicemen, which had resulted in his hospitalisation “in a coma”, was being investigated in the context of case no. 75/P/1998.

A certificate issued on 26 April 2006 indicates that, according to the entries in the register held by the military section of the prosecutor’s office at the High Court of Justice and Cassation, the applicant had been received by a prosecutor in 2002, 2003, 2004, 2005 and 2006, mainly for the purposes of the investigation or to enquire about progress in the investigation. The applicant lodged two additional complaints, on 12 September and 4 October 2006 respectively.

On 23 April 2007 the prosecutor questioned two witnesses indicated by the applicant.

When questioned on 9 May 2007 as an injured party, the applicant asked the military prosecutor to order a second forensic medical report, since he considered that the 2002 report had entirely failed to emphasise the seriousness of the injuries sustained in 1990 and the continuing after-effects of those injuries.

The prosecutor ordered a new report. Among other things, he asked the forensic specialists to examine whether a causal link existed between the injury sustained by the applicant in June 1990 and the medical conditions from which he was suffering on the date on which the report was ordered.

During his questioning, the applicant was invited to watch a video recording of the events of 13 June 1990, including those at the headquarters of the State television station. He recognised himself, and asked that the video recording be added to the investigation file.

On 25 June 2007 the new medical report was added to the case file. It specified, again on the basis of the medical records drawn up on 14 June 1990, that the applicant’s injuries had required three to five days of medical treatment and that they had not been life-threatening. It specified that there was no causal link between the injuries sustained on the night of 13 to 14 June 1990 and the applicant’s medical problems, which had subsequently required numerous periods of hospitalisation.

On 30 October 2007, at the applicant’s request, the medical observation files on his condition prepared by the emergency unit of Bucharest Hospital in 1992 were added to the file.

The medical board at the National Social Security Fund had previously issued the applicant with a certificate, dated 24 May 2007, indicating that he was suffering from “overall accentuated impairment” resulting in total inability to work. The relevant passages of this certificate read as follows:

“In view of the medical records in the patient’s file, the documents which have been added recently ... and the clinical psychiatric examination conducted on 24 May 2007, the specialist committee and the higher committee reach the following clinical diagnosis: mixed personality disorders, aggravated by organic causes. Acute traumatic brain injury 1990 (assault). Epilepsy with partial generalised secondary crises, confirmed clinically and by EEG, currently rare...., supraventricular incidents in his medical history (irregular heart rhythm (flutter) and atrioventricular block ..., with a return to sinus rhythm ... after cardioversion).

Functional diagnosis: overall accentuated impairment.

Fitness for work: totally lost, 2nd level invalidity.

Adaptive incapacity: 72%”

In the meantime, on 10 May 2004 the prosecutor’s office at the Bucharest County Court had issued a decision not to bring a prosecution in another case, following a complaint of attempted murder lodged by the applicant on the basis of the same facts.

On 9 July 1990 Bucharest military unit no. 02515 sent the applicant association a letter informing it that “an inventory of the items found on 14 June 1990 [at the association’s headquarters] [had] been drawn up by the representatives of the Procurator General’s Office (Procuratura Generală) and placed, with an official report, at the headquarters of the Bucharest Prosecutor’s Office (Procuratura Municipiului Bucureşti)”.

On 22 July 1990 two police officers went to the applicant association’s headquarters. They noted that the windows had been broken and the locks destroyed, and that the items in the headquarters had “all been ransacked”. They drew up a report in the presence of the association’s leaders and a witness.

On 26 July 1990 the applicant association lodged a criminal complaint with the Bucharest Prosecutor’s Office, complaining about the ransacking of its headquarters and the attacks sustained by some of its members on 14 June 1990, and demanded the restitution of all the materials and documents which had been confiscated. It requested leave to join the criminal proceedings as a civil party.

On 22 October 1997 the General Inspectorate of Police sent the prosecutor’s office at the Supreme Court of Justice twenty-one case files, opened following criminal complaints by several individuals and legal entities with regard to the events of 13 and 14 June 1990. Those files included case file no. 1476/P/1990, which concerned the applicant association’s complaint regarding the ill-treatment inflicted on several of its members. The General Inspectorate of Police invited the prosecutor’s office to inform it of the steps to be taken with a view to conducting interviews for the purpose of the investigation.

The applicant association contacted the prosecutor’s office at the Supreme Court of Justice, subsequently the High Court of Cassation and Justice, on a regular basis for information concerning progress in the investigation or to request additional investigative measures, until the investigation was closed by the decision of 17 June 2009 not to bring a prosecution.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant Mr Zaushkin was held in custody without a judicial order from 5 November 2012 when the detention order of 17 May had expired, and until 19 November when a new detention order was issued.

In case of the applicant Mr Kornev, the 25 April 2013 the court had ordered his transfer from the remand prison under house arrest but he was not transferred until 16 May.

The applicant Mr Butenko remained in custody after the court had ordered his release on 25 April 2013 until a higher court overturned the release order on 11 July.