Request for referral to the Grand Chamber pursuant to article 43 of the Convention and rule 73 of the rules of Court<\/p>\n
I. REFERRAL TO THE GRAND CHAMBER. GENERAL PRINCIPLES<\/p>\n
1. Article 43 of the Convention and Rule 73 of the Rules of Court govern the procedure for referring a case to the Grand Chamber, after a judgment has been delivered.<\/p>\n
2. Either party has three months from the date of the judgment to request that the case be referred to the Grand Chamber. The Judgment in the case Anca Mocanu and other v. Romania concerns three joint applications 10865\/09, 45886\/07 and 32431\/08, one of them being lodged by Mr. Marin Stoica. The judgement is dated 13 November 2012 and therefore the request for referral should be submitted by 13 February 2013.<\/p>\n
3. Article 43 provides that a request shall be accepted if it raises \u201c a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance \u201d. It is clear that there are two, self-standing, bases on which a request may be made, and accepted; namely, where either (1) there is a serious question of interpretation or application of the Convention ; or (2) there is a serious issue raised. Therefore, it is only necessary for the panel to determine that one of these bases is satisfied in order to accept the request for referral.<\/p>\n
4. It is the applicant’s contention that the Court’s decision not to find a violation of Article 3 of the Convention in his case raises both (1) a serious question affecting the interpretation or application of the Convention; and (2) a serious issue of general importance. The case should therefore be referred to the Grand Chamber, pursuant to Article 43.<\/p>\n
II. THE COURT’S JUDGMENT IN THE CASE ANCA MOCANU AND OTHER V. ROMANIA<\/p>\n
5. This case relates to failures by the Romanian authorities to effectively investigate the death of Ms. Mocanu’s husband the ill treatment Mr. Stoica was subjected to during the events of 13-15 June 1990 by law enforcement officials, in breach of Article 2 and Article 3 of the Convention. The events of June 1990 have not been ordinary instances of illegal use of force by the law enforcement officials and bear a special significance in the recent history of Romania in the context of the transition to a democratic society. The criminal investigations into the events were at some point directed against the President of Romania at the material time and other high raking state officials. Nevertheless the investigations stalled until 1998 and then, although there were some periods of time when certain investigations were conducted, had not resulted in any concrete results. At the time of the Chamber’s judgement the investigations were still pending or, depending on the circumstances, terminated due to prescription. This context was duly presented in the Chamber’s judgement of 13 November 2012.<\/p>\n
6. In respect of Mrs. Mocanu’s complaint the Court found that Article 2 of the Convention was violated due to the lack of effective investigation into the death of applicant’s husband. In holding so the Court recalled the principles on approaching such cases (see \u00a7224 of the Chamber judgement):<\/p>\n
… en cas de violation massive de droits aussi fondamentaux que le droit \u00e0 la vie, la Cour a soulign\u00e9 l’importance du droit des victimes et de leurs familles et ayants droit, ainsi que de toute la soci\u00e9t\u00e9 ( \u015eandru et autres c. Roumanie, no 22465\/03 , \u00a7 79, 8 d\u00e9cembre 2009), de conna\u00eetre la v\u00e9rit\u00e9 sur les circonstances de ces \u00e9venements, ce qui implique le droit \u00e0 une enqu\u00eate judiciaire effective ( Association \u00ab 21 D\u00e9cembre 1989 \u00bb et autres , pr\u00e9cit\u00e9, \u00a7 144). Dans le contexte des \u00c9tats qui ont connu une transition vers un r\u00e9gime d\u00e9mocratique, il est l\u00e9gitime pour un \u00c9tat de droit d’engager des poursuites p\u00e9nales \u00e0 l’encontre de personnes qui se sont rendues coupables de crimes sous un r\u00e9gime ant\u00e9rieur (voir mutatis mutandis Streletz, Kessler et Krenz c. Allemagne [GC], nos 34044\/96, 35532\/97 et 44801\/98, \u00a7\u00a7 80-81, CEDH 2001-II).<\/p>\n
D\u00e8s lors, en cas d’usage massif de la force meurtri\u00e8re \u00e0 l’encontre de la population civile, lors de manifestations antigouvernementales pr\u00e9c\u00e9dant la transition d’un r\u00e9gime totalitaire vers un r\u00e9gime plus d\u00e9mocratique, la Cour ne peut pas consid\u00e9rer qu’une enqu\u00eate est effective lorsqu’elle s’ach\u00e8ve par l’effet de la prescription de la responsabilit\u00e9 p\u00e9nale, alors que ce sont les autorit\u00e9s elles-m\u00eames qui sont rest\u00e9es inactives. Par ailleurs, comme la Cour l’a d\u00e9j\u00e0 indiqu\u00e9, l’amnistie ou la gr\u00e2ce sont g\u00e9n\u00e9ralement incompatibles avec le devoir qu’ont les \u00c9tats d’enqu\u00eater sur des actes de torture et de lutter contre l’impunit\u00e9 des crimes internationaux ( Association \u00ab 21 D\u00e9cembre 1989 \u00bb et autres , pr\u00e9cit\u00e9, \u00a7 144).<\/p>\n
7. It further held (\u00a7227-228 and 230) that:<\/p>\n
… en 1994 l’affaire \u00e9tait pendante devant le parquet militaire. A ce propos, elle constate que l’enqu\u00eate a \u00e9t\u00e9 confi\u00e9e aux procureurs militaires qui \u00e9taient, au m\u00eame titre que certains des accus\u00e9s, des militaires soumis au principe de la subordination \u00e0 la hi\u00e9rarchie ( \u015eandru et autres , pr\u00e9cit\u00e9, \u00a7 74, et Association \u00ab 21 D\u00e9cembre 1989 \u00bb et autres , pr\u00e9cit\u00e9, \u00a7 137).<\/p>\n
Elle rel\u00e8ve de plus que les lacunes de l’enqu\u00eate ont \u00e9t\u00e9 constat\u00e9es par les autorit\u00e9s nationales elles-m\u00eames. Ainsi, la d\u00e9cision du 16 septembre 1998 du parquet pr\u00e8s la Cour supr\u00eame de justice indiquait que, jusqu’alors, l’enqu\u00eate n’avait pas permis de d\u00e9terminer l’identit\u00e9 des personnes qui avaient effectivement mis en oeuvre la d\u00e9cision de l’ex\u00e9cutif de faire appel \u00e0 l’aide de civils pour r\u00e9tablir l’ordre \u00e0 Bucarest. Cette lacune de l’enqu\u00eate tenait au \u00ab fait qu’aucune des personnes ayant exerc\u00e9 des fonctions \u00e0 responsabilit\u00e9s \u00e0 l’\u00e9poque des faits n’a[vait] \u00e9t\u00e9 entendue \u00bb, notamment le pr\u00e9sident de la Roumanie alors en exercice, le Premier ministre et son adjoint, le ministre de l’Int\u00e9rieur, le chef de la police, le chef du SRI et le ministre de la D\u00e9fense (paragraphe 111 ci-dessus).<\/p>\n
Cependant, l’enqu\u00eate subs\u00e9quente n’est pas parvenue \u00e0 rem\u00e9dier \u00e0 toutes les carences, ainsi qu’il a \u00e9t\u00e9 constat\u00e9 par les d\u00e9cisions de la Cour supr\u00eame de justice du 30 juin 2003 (paragraphe 121 ci-dessus) et de la Haute Cour de cassation et de justice du 17 d\u00e9cembre 2007 (paragraphe 125 ci-dessus), laquelle a relev\u00e9 des vices de la proc\u00e9dure ant\u00e9rieure.<\/p>\n
\u2026<\/p>\n
De surcroit, l’importance de l’enjeu pour la soci\u00e9t\u00e9 roumaine qui consistait dans le droit des nombreuses victimes de savoir ce qui s’\u00e9tait pass\u00e9, ce qui implique le droit \u00e0 une enqu\u00eate judiciaire effective et l’\u00e9ventuel droit \u00e0 la r\u00e9paration, aurait d\u00fb inciter les autorit\u00e9s internes \u00e0 traiter le dossier promptement et sans retards inutiles afin de pr\u00e9venir toute apparence d’impunit\u00e9 de certains actes ( \u015eandru et autres , pr\u00e9cit\u00e9, \u00a7 79, et Association \u00ab 21 D\u00e9cembre 1989 \u00bb et autres , pr\u00e9cit\u00e9, \u00a7\u00a7 142 et 144).<\/p>\n
8. As regards Mr. Stoica’s complaint, the Court held, by 5 votes to 2, that Article 3 of the Convention (under its procedural limb) has not been violated. It noted that Mr. Stoica complained of the ill-treatment only in 2001, after 11 years since the events and attached a special importance to this long duration of inactivity on the part of the applicant (see \u00a7\u00a7279-280 and \u00a7273 of the 13 November 2012 judgement). The Court also noted that the Mr. Stoica complained of ill-treatment after the prescription of the deeds he complained of, while still noting that the domestic authorities did took into consideration his complaint. For these reasons, held that Article 3 has not been violated in the case of Mr. Stoica.<\/p>\n
9. According to the applicant the Court’s judgment in his respect raises both (1) serious questions affecting the interpretation or application of the Convention and also (2) serious issues of general importance in respect of the right to truth of Romanian public into the events of June 1990.<\/p>\n
III. SERIOUS QUESTIONS AFFECTING THE INTERPRETATION AND APPLICATION OF THE CONVESTION<\/p>\n
10. In the applicant’s view, the Chamber judgement applied a double standard in analysing the same basic question. Both Mrs. Mocanu’s complaint and Mr. Stoica’s complaint regarded the same events of June 1990, carrying the same importance for the Romanian society. In such cases of importance for a certain society, involving gross and mass violations of human rights in the context of transition to a democratic society, the Court held, both in the present case, Anca Mocanu and others v. Romania, and in Association 21 December and others v. Romania (judgement of 24 May 2011), that the State is under an obligation to investigate that cannot be terminated due to the prescription:<\/p>\n
La Cour a d\u00e9j\u00e0 soulign\u00e9 ci-dessus l’importance du droit des victimes et de leurs familles et ayants droit de conna\u00eetre la v\u00e9rit\u00e9 sur les circonstances d’\u00e9v\u00e9nements impliquant la violation massive de droits aussi fondamentaux que le droit \u00e0 la vie, qui implique le droit \u00e0 une enqu\u00eate judiciaire effective et l’\u00e9ventuel droit \u00e0 la r\u00e9paration. Pour cette raison, dans le cas de l’usage massif de la force meurtri\u00e8re \u00e0 l’encontre de la population civile lors de manifestations antigouvernementales pr\u00e9c\u00e9dant la transition d’un r\u00e9gime totalitaire vers un r\u00e9gime plus d\u00e9mocratique, comme en l’esp\u00e8ce, la Cour ne peut pas accepter qu’une enqu\u00eate soit effective lorsqu’elle s’ach\u00e8ve par l’effet de la prescription de la responsabilit\u00e9 p\u00e9nale, alors que ce sont les autorit\u00e9s elles-m\u00eames qui sont rest\u00e9es inactives. Par ailleurs, comme la Cour l’a d\u00e9j\u00e0 indiqu\u00e9, l’amnistie est g\u00e9n\u00e9ralement incompatible avec le devoir qu’ont les \u00c9tats d’enqu\u00eater sur des actes de torture ( Ould Dah c. France (d\u00e9c.), n o 13113\/03, du 17 mars 2009) et de lutter contre l’impunit\u00e9 des crimes internationaux. Il en est de m\u00eame en ce qui concerne la gr\u00e2ce ( Abd\u00fclsamet Yaman c. Turquie , n o 32446\/96, \u00a7 55, 2 novembre 2004) ( Association 21 December and others v. Romania, \u00a7144, Anca Mocanu and other v. Romania , \u00a7224).<\/p>\n
11. It results from the above reasons of the Court that such principles apply to events, irrespective of them resulting into the death or into the torture and ill-treatment of an individual. Nevertheless, the Court failed to apply them consistently in the case of Mr. Stoica. Either the events in question represent mass violations of human rights and have a special importance in the Romanian recent history, therefore none of the complaints in their respect can end due to prescription, such as the applicant’s did but was considered in line with the requirements of Article 3; either they do not have any special importance and represent \u201cordinary\u201d and accidental breaches of human rights and then the investigations fall under the general domestic rules on prescription.<\/p>\n
12. If the events do have a special importance, which brings into question a higher right to truth for the entire society, not only to the victims, and the prescription should not apply, then it is completely irrelevant when a victim complains, as long as it does it before the investigations are closed by the authorities. A justified reason for asking a victim to complain in a timely manner is a proper administration of evidence that can be affected by the lapse of time. But in the instant case, as the Court held in the part of the judgement that concerns Mrs. Mocanu, the investigations had not properly advanced until 1998 and then again, not even after this moment, where they ever efficient. Moreover, the acts of investigations that were carried out in respect of Mr. Stoica after 2001 either have not been affected by the lapse of time (such as the forensic report based on medical documents), either have been affected by the lapse of time just as they would have been if carried in 1998, for example, when the investigations seems to finally took an important step further. In this respect, the applicant stresses once more that the Court already found that the investigations of the early 1990s have not been effective at all. In this context, asking him to complain earlier seems to the applicant as completely arbitrary and unjustified.<\/p>\n
13. The Court made no reference to the above findings as regards the inefficiency of the investigation into the events of June 1990, nor did explain why an earlier complaint on the part of Mr. Stoica would have led to a different result. This would not have required the Court to speculate, as long as none of the complaints into the events of June 1990, irrespective of the moment of lodging, led to effective investigations and sending the culprits to justice. Most certainly, even if lodged as early as 1990, the applicant’s complaint would have ended the same way, as part of the same criminal investigation file, by the same decision of 17 June 2009, as all the others did. It is obviously impossible that an earlier complaint on the part of the applicant would have been subjected to a different treatment and not joined to the file opened by the authorities into the events, as long as all other complaints were.<\/p>\n
14. Moreover, the Court failed to consider the fact that the domestic authorities themselves have taken his complaint into consideration, joined it to one of the investigation files on the events of June 1990, proceeded with several investigations, including the forensic report on Mr. Stoica (based on medical records at the relevant time) and closed the case due to prescription and not due to the lack of foundation into the allegations. The various acts of investigations in respect of Mr. Stoica’s complaint have been carried out during a long period of time and the decision to close the investigations was taken only on 17 June 2009, after 8 years since the complaint, and communicated to Mr. Stoica on 24 November 2011. If the prescription was already met in 2001 and such an aspect was important for the domestic authorities, then why did they bother with the investigations into the applicant’s complaint for another 8 years? Such circumstances into the way the complaint was taken into consideration by the domestic authorities, the ones which have the margin of appreciation on the application of domestic law, have been completely ignored in the Court’s judgement.<\/p>\n
15. This aspect raises another question affecting the interpretation and application of the Convention. Can the Court override the margin of appreciation of the domestic authorities in taking into consideration a criminal complaint? Where the domestic authorities fail to investigate a credible allegation of a violation of Article 2 or 3, the Court jurisprudence is consistent in holding a positive answer. But when the domestic authorities do proceed with an investigation, it is the applicant’s opinion that the Court cannot override the validity of such a decision. As long as an investigation into allegations of violations of Articles 2 and 3 is opened, it must satisfy the procedural guarantees of the Convention on a consistent basis and it is in the interest of the rule of law that victims do trust that such guarantees apply in every and each case. Holding that the guarantees do not apply because the investigation should not have been open (as it results from the fact the authorities did open an investigation is of no importance whatsoever to the Court in reaching it decision that Article 3 \u2013 procedural limb \u2013 was not violated) opens a large door to arbitrariness in applying the Convention at domestic level.<\/p>\n
16. Back to the general principle that the State is under the obligation to carry out effective investigations, that cannot end due to prescription, into mass violations of human rights as there is a higher right of the society at large to know the truth into such serious events and to avoid the culprits’ impunity, the applicant maintains that a logical and consistent application of such a principle means that the victim was not required to lodge a complaint at all, as long as the State could become aware of the violations of his rights by investigating the events as a whole. The applicant reminds the Court that he was filmed during his deprivation of liberty at the Public Television where he was first subjected to treatments contrary to Article 3 and that he also went to a hospital right after he was freed, but still during the events. Records were made at the hospital in his respect, mentioning his name, and they were still available long after the events (for example for the purposes of a forensic report). Therefore the authorities, while investigating ex officio the events of June 1990, at least after the ratification of the European Convention on Human Rights in 1994, were under the obligation to look into the circumstances of the treatment of the applicant that was contrary to Article 3. In this context, the fact that he did complain of the treatment at some point after the events was just helping the authorities with the investigations that they had to carry out anyway and cannot be held against him.<\/p>\n
17. Finally, the applicant maintains that holding against him his inactivity for a long duration of time while ignoring the much longer and extensive inactivity of the state authorities, of which the most massive part overlaps the period of inactivity of the applicant, benefits exactly the party at fault. Or, according to an old principle of law still generally accepted, nemo auditur propriam turpitudinem allegans . Allowing the party at fault to benefit from its own fault is, in the applicant’s view, entirely against the purpose of the European Convention on Human Rights.<\/p>\n
IV. SERIOUS ISSUE OF GENERAL IMPORTANCE<\/p>\n
18. The Chamber judgement also raises a serious issue of general importance. Holding that there was no violation of Article 3 under its procedural limb in the case of the applicant, means that the Romanian society has only a partial right to know the truth in respect of the June 1990 events and that the culprits can only be held responsible for a part of their crimes.<\/p>\n
19. The applicant maintains that the criminal investigation into the events was and still is the only mean for the Romanian society to find the truth on an important event in its recent history and for holding the culprits responsible, even if only under a moral aspect. Therefore the Chamber judgement drastically limits the possibility of the Romanian society of finding out the whole truth on the events, as it takes away some of the facts and victims. It might be not only the case of the applicant but of others who, at domestic level, approached the domestic authorities at a latter time.<\/p>\n
20. In respect of Mrs. Mocanu’s complaint the effect of the Chamber judgement is that all other cases of death during the events of June 1990 should still be investigated by the domestic authorities, leading to the finding of truth. In respect of Mr. Stoica’s complaint, the effect is quite the opposite, turning certain acts of torture and ill-treatment into unimportant aspects of the 1990 events, and limiting the right to truth of the Romanian society, due to an alleged inactivity of the victim which has no relevance for the society as a whole and its right to truth.<\/p>\n
V. CONCLUSION<\/p>\n
21. The Court’s judgment in the case Anca Mocanu v. Romania , in respect of Mr. Stoica’s complaint, raises both (1) serious questions affecting the interpretation or application of the Convention and also (2) serious issues of general importance. Besides the above-mentioned reasons, the applicant also asks the panel of five judges to take into consideration the reasoning in the dissenting opinion of Judge Zimele, joined by Judge Sikuta, to the judgement in question. The applicant therefore request that the case be referred to the Grand Chamber, pursuant to Article 43.<\/p>\n
Bucharest , 12 February 2013<\/p>\n
Diana-Olivia Hatneanu, avocat<\/p>\n
Article 43: \u201c (1) Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber. (2) A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance. (3) If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment .\u201d<\/p>\n
Article 43(1).<\/p>\n
Article 43(2).<\/p>","protected":false},"excerpt":{"rendered":"
Request for referral to the Grand Chamber pursuant to article 43 of the Convention and rule 73 of the rules of Court<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[29],"tags":[],"class_list":["post-1655","post","type-post","status-publish","format-standard","hentry","category-comunicate"],"_links":{"self":[{"href":"https:\/\/apador.org\/en\/wp-json\/wp\/v2\/posts\/1655","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/apador.org\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/apador.org\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/apador.org\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/apador.org\/en\/wp-json\/wp\/v2\/comments?post=1655"}],"version-history":[{"count":0,"href":"https:\/\/apador.org\/en\/wp-json\/wp\/v2\/posts\/1655\/revisions"}],"wp:attachment":[{"href":"https:\/\/apador.org\/en\/wp-json\/wp\/v2\/media?parent=1655"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/apador.org\/en\/wp-json\/wp\/v2\/categories?post=1655"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/apador.org\/en\/wp-json\/wp\/v2\/tags?post=1655"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}