CASE OF MELNICHUK AND OTHERS v. ROMANIA
Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
5. The first two applicants were born in 1939 and 1964 respectively. They are father and daughter. The last two applicants, who are husband and wife, were born in 1951 and 1946 respectively. All the four applicants live in Rivne, Ukraine. 6. Early on the morning of 24 December 1989, the first applicant and his wife, Ms Nadejda Stepanovna Melnichuk, who was the mother of the second applicant – at that time both citizens of the Union of Soviet Socialist Republics (“USSR”) – were driving through southern Romania, heading home after a trip to the Socialist Federal Republic of Yugoslavia, together with the third and fourth applicants. They were driving in a column of five cars which were transporting fifteen Soviet citizens in total. 7. At the same time, a Romanian army unit from Craiova had been notified by an unidentified person from the Border Police of Drobeta Turnu Severin that a column of foreign cars was driving from Drobeta Turnu Severin towards Craiova. At the time of the events, the former President Ceauşescu had just been toppled and there were allegedly persistent news reports that terrorists were trying to reinstate the regime. 8. Suspecting that the foreign cars belonged to the so-called terrorists, a team of soldiers was dispatched by Colonel C. – the commander of the army unit of Craiova, who later became general and commander-in-chief of the Romanian Army – to block the road in the nearby of the village of Brădeşti, on the viaduct named Valea rea. The unit was led by Lieutenant Colonel S. The road was blocked by two armoured vans, between which only a single car could pass. 9. The column of cars reached the blockade, followed by a local bus. The soldiers asked the passengers several times, in Romanian, to get out of the cars and surrender. As the tourists did not understand what was happening, they did not get out of the cars. During the domestic inquiry, the applicants and the other persons in the cars submitted that the shooting had started without any prior warning. The passengers in the cars started screaming in Russian that they were Soviet tourists. The applicants and the other persons travelling in the column tried to turn back the cars. After a brief pause, the soldiers started shooting again. The first applicant’s wife was shot in the head and the passenger sitting behind her – namely the third applicant – was wounded by bullets, as was the fourth applicant. 10. Those who were not wounded started to run away from the cars and tried to hide by the side of the road. At that moment a third round of shooting started. One of the five cars caught fire. Then the shooting stopped and the soldiers approached the cars. The first applicant tried to explain that they were tourists. 11. Several bullets also hit the local bus and wounded a passenger who was going to his workplace in Craiova. 12. After a while, the first applicant and his wife, together with the third and fourth applicants, were taken to a nearby hospital. The first applicant submits that he was called a terrorist by the Romanian soldiers, who pushed him around. 13. Ms Melnichuk was operated on the same day but fell into a coma. On 9 January 1990 she was transferred to a hospital in Bucharest, where she eventually died on 8 February 1990. The medical certificate issued in respect of her death stated that it had been caused by wounds inflicted by gunfire. 14. The second applicant travelled to Bucharest to bring back her mother’s body. 15. On 9 January 1990 the third applicant, who had been wounded in her spine, was transferred to a hospital in Moscow, due to her serious medical condition. She never recovered completely and is recognised as a disabled person. From a forensic report dated 6 February 1990, it appears that the third applicant needed 25-30 days of medical care. 16. The fourth applicant, who was shot in his left shoulder, was able to leave hospital and go back home to Rivne on 29 December 1989. From a forensic report dated 6 February 1990, it appears that the fourth applicant needed 8-10 days of medical care. 17. From the investigation carried out by the Romanian authorities it appears that on this occasion two persons died – the first two applicants’ close relative and B.M.K – and seven persons from the car column were wounded, namely the last two applicants, N.G.S., I.A.L., A.C., S.F.D. and S.K. 18. On 28 December 1989 the USSR citizens involved in the abovementioned events, including the third and fourth applicants, addressed a complaint to the consular authorities of the USSR Embassy in the Socialist Federal Republic of Yugoslavia. A complaint was also brought on behalf of the first applicant and his wife, who were still hospitalised in Romania and could not personally sign it. 19. The military prosecutor’s office in Craiova opened a criminal investigation with file no. 211/P/1990. 20. It appears from documents submitted by the respondent Government that during 1990 several investigative measures were instituted. Some of the victims, including the first applicant and some witnesses were questioned by the investigative authorities between 28 December 1989 and 12 February 1990. 21. The officer who gave the order to open fire wrote a report on the events which was included in the file. 22. On 20 February 1990, the USSR Embassy in Bucharest addressed an inquiry to the Romanian authorities concerning the progress of the investigations. 23. On 27 February 1990, Colonel C. – the commander of the military unit of Craiova, who had given the order for the army intervention at Brădeşti – was questioned as a witness with regard to these events. He stated that, following the phone call received from the Border Police of Drobeta Turnu Severin concerning the column of cars heading towards Craiova, he had supposed (“am bănuit”) that they were terrorists and had ordered them to be stopped before they reach Craiova. 24. Medical certificates were handed over to the investigation authorities in respect of the wounds inflicted on the tourists. A technical report was drawn up evaluating the damage to the cars involved in the incident. 25. Statements were taken from the military staff involved in the incident, namely the army unit which had dispatched the team of soldiers to Brădeşti. 26. Between 11 and 26 April 1990, with the assistance of the USSR Embassy, all the victims were interviewed in their country by a Soviet prosecutor and their statements were handed over to the Romanian authorities on 16 May 1990. 27. On this occasion, all the victims requested civil compensation for the damaged suffered in the incident. 28. On 22 August 1990, additional investigative measures were ordered by a military prosecutor, but it appears that none was taken. 29. By a decision of 14 August 1991, the prosecutor decided not to institute criminal proceedings on the grounds that the shooting had taken place as the result of fortuitous circumstances: the soldiers had been led to believe that the tourists were terrorists, so that when the tourists failed to respond to the order to get out of the cars and surrender, they had given the soldiers an impression of imminent danger. 30. The above-mentioned decision was automatically subject to review by the relevant Section of the military section of the prosecutor’s office at the Supreme Court of Justice (Secţia Parchetelor Militare, “SPM”). On 28 September 1992, the SPM requested additional investigative measures. 31. On 11 April 1994, the military prosecutor’s office in Craiova asked SPM for guidance in conducting the impugned investigations. 32. In a decision of 30 May 1994, the SPM quashed the 1991 decision not to institute criminal proceedings. In so ruling, the prosecutor found that there had been no justification for the order to open fire, taking into account that the tourists were not armed and had not presented any immediate danger. It was emphasised that the second round of shooting had taken place when the cars were stationary and the passengers were trying to hide in the immediate surroundings environment. He considered that the order to shoot had constituted a criminal act and that any fear that the soldiers might have experienced could not have amounted to a circumstance capable of removing criminal liability. It was therefore ordered to institute criminal proceedings against Lieutenant Colonel S. for aggravated murder. 33. The file was sent back to the military prosecutor’s office in Craiova on 22 June 1994. 34. On 29 June 1994, the military prosecutor’s office wrote to the commander of the army unit of Craiova asking him to ensure that Lieutenant Colonel S. would be present for questioning on 5 July 1994, and to hand over his last three appraisal reports. 35. Colonel S. failed to appear before the military prosecutor on 5 July 1994. The appraisal reports had been sent to the military prosecutor’s office. They showed that S. had been upgraded to colonel. 36. On 13 January 1997, the Military Prosecutor’s Office in Craiova found that it was not competent to decide the case and referred it to the military prosecutor’s office at the Military Court (Tribunalul Militar Teritorial). 37. On 31 March 1997, the military prosecutor’s office wrote again to the commander of the army unit of Craiova reminding him of his previous letter of 29 June 1994 and asking him to ensure that officer S. be present for questioning on 7 April 1997. 38. On 7 April 1997, Colonel S. was formally notified of the criminal charge brought against him and gave a statement before the military prosecutor. He stated that he had not initially ordered the shooting but that it had been a spontaneous reaction by another soldier. He also stated that he had joined in the first round of firing, that he had personally spent 14 cartridges and that he had subsequently ordered the second round of firing. 39. It appears also from the case file that in 1997 Colonel S. underwent a psychiatric evaluation. A medical report was delivered in this respect on 28 May 1997 stating that Colonel S. had a normal representation of the consequences of his acts. 40. After considering a complaint lodged by Colonel S., by a decision of 12 August 1998 the military section of the prosecutor’s office at the Supreme Court of Justice ordered the partial annulment of the decision of 13 January 1997. It was considered that the criminal investigation should not have been limited to Colonel S., as other persons might also have been involved. The prosecutor indicated that the criminal investigation needed to elucidate all the circumstances of the events and, on the basis of the results thus obtained, criminal proceedings should be initiated against all relevant persons. It was therefore ordered that the criminal investigation should be in rem. It was further indicated that the decision should be communicated to all interested parties. 41. The decision was communicated to Colonel S, but not to the victims. 42. Following the decision of 12 August 1998, it appears from the case file submitted by the responding Government that no investigative measures were taken between September 1998 and December 2004. 43. On 13 January 2005, the military prosecutor’s office at the Military Court ordered the discontinuation of the criminal investigation on the grounds that the criminal liability was timebarred. 44. On 2 September 2005, A.C. and K.C., two of the victims of the shooting of 24 December 1989, lodged a complaint against the decision of 13 January 2005 with the higher prosecutor. 45. By a decision of 4 April 2007, the military section of the prosecutor’s office at the High Court of Cassation and Justice quashed the decision of 13 January 2005, indicating that – given the fact that in 1994 criminal proceedings had been instituted against Colonel S. and several procedural acts had been taken in connection therewith – the running of the statutory time-limit had been interrupted and criminal liability was therefore not time-barred. It was also decided that the investigation file should be joined to the main criminal investigation file concerning the December 1989 events, namely case file no. 97/P/1990. Lastly, it decided that the criminal charges previously brought against Colonel S. should be resumed and that investigations continue in this respect. 46. According to the facts established by the Court in the case of the Association “21 December 1989” and Others v. Romania (nos. 33810/07 and 18817/08, §§ 34-41, 24 May 2011), several criminal investigations into the fatal crackdown on the demonstrations of December 1989, which had initially been conducted separately, were joined to the investigation that was the subject matter of case no. 97/P/1990. In this case, by a previous decision of 7 December 2004, the military prosecutor’s office had ordered the indictment of 102 persons, principally officers from the Army, police and Securitate forces – including some high-ranking ones – for murder (Articles 174-176 of the Criminal Code), genocide (Article 357 of the Criminal Code), inhuman treatment (Article 358 of the Criminal Code), attempts to commit those acts, complicity and instigation in the commission of the above acts and participation in them, acts committed “during the period from 21 to 30 December 1989”. Sixteen civilians, including a former President of Romania and a former Head of the Romanian Intelligence Service, had been also charged. 47. A letter of 22 May 2009 from the military prosecuting authorities indicates that 126 decisions to discontinue proceedings, issued in the separate investigations, were set aside and the relevant files joined to case no. 97/P/1990. After the initial decisions to discontinue proceedings had been set aside, investigations concerning several hundred victims who had been killed or injured during the period from 21 to 30 December 1989 in various areas of the country were also joined to case no. 97/P/1990. 48. In a previous letter of 5 June 2008, the head prosecutor of the military prosecutor’s office at the High Court of Cassation and Justice indicated that during the period from 2005 to 2007, 6,370 persons had been questioned in case no. 97/P/1990. In addition, 1,100 ballistics reports had been prepared, more than 10,000 investigative measures had been instituted and 1,000 onsite inquiries had been conducted. He also stated that “among the reasons for the delay [in the investigation], mention should be made of the repetitive measures... concerning the transfer of the case from one prosecutor to another..., the fact that the prosecutors did not promptly inform the injured parties about the decisions to discontinue proceedings... and the fact that the investigation had been reopened several years after the persons concerned had filed their complaints...; the lack of cooperation on the part of the institutions involved in the crackdown of December 1989..., the extreme complexity of the investigation... given that the necessary investigative measures had not been conducted immediately after the impugned homicides and ill-treatment...”. The above-cited letter mentioned another reason for the delay, namely decision no. 610/2007 of the Constitutional Court of 16 July 2007, which withdrew jurisdiction to conduct investigations in case no. 97/P/1990 from the military prosecuting authorities at the High Court of Cassation and Justice and transferred it to the civil prosecutors, that is, to the prosecutor’s office at the High Court of Cassation and Justice. In the opinion of the head of the military prosecutor’s office, as stated in the above-cited letter of 5 June 2008, the transfer of the case was sufficient to cause new delays in the proceedings, given the significant volume of the case file, the complexity of the case and the time that had elapsed since the events under investigation. 49. By a decision of 15 January 2008, the military prosecuting authorities at the High Court of Cassation and Justice decided to sever the investigation concerning the sixteen civilian defendants (including a former President of Romania and a former Head of the Romanian Intelligence Service) from the investigation involving military personnel, and to relinquish its jurisdiction in favour of the prosecutor’s office at the High Court of Cassation and Justice. 50. According to a press release issued on 10 February 2009 by the Public Information Office at the High Council of the Judiciary, the President of the Council intended to ask the Judicial Inspection Board to identify the reasons which had prevented the criminal investigation from being conducted rapidly. 51. In August 2008, the applicants petitioned the Ministry of Foreign Affairs of Ukraine and the General Prosecutor Office in order to get information about the investigation. Their petition remained unanswered. 52. Two subsequent decisions of 18 October 2010 and 15 April 2011 mentioned by the Government, but not submitted to the Court, were delivered by the Romanian authorities. These decisions were not communicated to the applicants. 53. According to the Government, on 18 October 2010 the military prosecutor in charge of the investigation decided to discontinue the proceedings in respect of the events that had taken place on 24 December 1989 in Brădeşti. On 15 April 2011, the aforementioned decision was also quashed and a new case was registered with the prosecutor’s office at the High Court of Cassation and Justice under no. 706/P/2011. 54 According to the information submitted by the Government, the investigations are still pending.