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 PERSON and Mr Marin Stoica were born in DATE and DATE respectively . They live in GPE .

The ORG “ DATE ” ( PERSON CARDINAL ) was set up on DATE and is based in GPE .

The applicant association brings together mainly individuals who were injured during the violent suppression of the anti - totalitarian demonstrations which took place in GPE in DATE and the relatives of persons who died during those events . It was CARDINAL of the groups which supported the anti - government demonstrations held in GPE DATE , at which demonstrators called , inter alia , for the identification of those responsible for the violence committed in DATE .

The main facts concerning the crackdown on anti - government demonstrations from CARDINAL to DATE were described in the decisions of QUANTITY DATE ( see paragraphs CARDINAL - CARDINAL below ) and CARDINAL DATE ( see paragraphs CARDINAL - CARDINAL below ) , issued by the prosecutor ’s office at ORG ( which in DATE became ORG and Justice ) , and in the decisions to commit for trial ( rechizitoriu ) issued by the same prosecutor ’s office on DATE and DATE .

On DATE the security forces’ intervention against the demonstrators who were occupying FAC and other areas of the capital resulted in several civilian casualties , including PERSON husband , Mr PERSON , who was killed by a shot fired from the headquarters of ORG .

On TIME CARDINAL DATE Mr GPE 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 ORG television service and in the basement of that building .

On DATE of miners were transported to GPE , essentially from LOC ( PERSON ) mining region , to take part in the crackdown on the demonstrators .

At TIME on DATE the President of GPE addressed the miners , who had arrived in the square in front of the Government building , inviting them to go to FAC , occupy it and defend it against the demonstrators ; they subsequently did so .

The violent events of CARDINAL and DATE resulted in CARDINAL victims , whose names appear in a list attached to the decision issued on DATE by the military section of the prosecutor ’s office at ORG and Justice .

NORP 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 .

NORP The criminal proceedings into the unlawful killing by gunfire of Mr PERSON - PERSON are still pending . The investigation opened on CARDINAL DATE into the ill - treatment allegedly inflicted on PERSON was closed by a decision not to bring a prosecution , dated DATE , subsequently upheld by a judgment of ORG and ORG of CARDINAL DATE .

The facts as set out by the prosecutor ’s office at ORG and Justice in its decisions of DATE and DATE and in the decisions to commit for trial of CARDINAL DATE and DATE may be summarised as follows .

FAC in GPE was considered a symbolic location for the fight against the totalitarian regime of PERSON , 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 DATE . It was therefore in this square that several associations – including the applicant association – called on their members to attend protest events in DATE .

Thus , the first demonstrations against the provisional government formed after DATE of the GPE regime took place in FAC in GPE on CARDINAL and DATE , as indicated in the decision issued on DATE by the prosecutor ’s office at ORG and Justice . That decision also states that a counter - demonstration was organised by ORG DATE the FSN ) on DATE . On that occasion , miners from the coal - mining regions of the GPE , GPE and other areas appeared in GPE . The headquarters of ORG were vandalised at that time .

From DATE , demonstrations were held every DATE . According to the decision to commit for trial of DATE , 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 DATE .

It was in this context that unauthorised “ marathon demonstrations ” ( manifestaţii maraton ) began on DATE in FAC , at the initiative of ORG and other associations , including the applicant association . These demonstrations lasted DATE , during which the demonstrators occupied FAC . The decisions of DATE and DATE 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 DATE and demanded the resignation of the country ’s leaders ( particularly the Minister of the ORG ) , whom they considered responsible for the repression of the anti - communist demonstrations in DATE .

On DATE CARDINAL 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 FAC , the police released the CARDINAL arrested demonstrators . The authorities did not use force again over DATE , although ORG had still not authorised the gathering .

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

On DATE the presidential and parliamentary elections took place . The ORG and its leader , who was standing for President , won the elections .

Following those elections the protests continued in FAC , but were reduced from their original scale . Of the CARDINAL persons still present , CARDINAL had gone on hunger strike .

On TIME CARDINAL DATE the new President elect of GPE and his Prime Minister convened a government meeting , attended by the Minister of the ORG and his deputy , the Minister of Defence , the director of ORG ( Serviciul Român de Informaţii – the GPE ) , the first deputy president of the ruling party ( the ORG ) and the Procurator General of GPE . This is established in the prosecution service ’s decisions of DATE and DATE .

At that meeting it was decided to take measures to clear FAC on DATE . In addition , it was proposed that the ORG organs , namely the police and army , would be assisted by CARDINAL mobilised civilians . Implementation of this measure was entrusted to the first deputy president of the ORG . CARDINAL members of that party ’s steering committee opposed the measure , but without success . According to the decision of CARDINAL DATE , an action plan drawn up by ORG was approved by the Prime Minister .

On TIME the Procurator ORG ( Procuratura Generală ) broadcast a statement on ORG television calling on the government to take measures so that vehicles could circulate again in FAC .

At a meeting held on TIME with the participation of the Minister of the ORG , the head of the GPE and the head of police , GPE set out the plans for the police and gendarmerie , in collaboration with civilian forces , to clear FAC . Under this plan , the action was “ to begin at TIME on DATE by cordoning off the square , arresting the demonstrators and re - establishing public order ” .

At TIME on DATE members of the police and gendarmerie brutally charged the demonstrators in FAC . The arrested demonstrators were driven away and locked up at the GPE municipal police station . The CARDINAL arrested individuals ( or CARDINAL , according to the decision to commit for trial of DATE ) included students from ORG , who had been on the premises of their establishment , located on FAC , and who had not taken part in the demonstrations . The decision of DATE indicated that the CARDINAL persons who had been arrested were taken to ORG 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 CARDINAL DATE , 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 DATE , those actions were the work of a few aggressive individuals who had infiltrated groups of peaceful demonstrators .

At TIME , workers from the factories of a large metallurgical company in GPE ( ORG ) headed en masse for FAC to help the police arrest the demonstrators . According to the decision of DATE , they acted in a chaotic and heavy - handed manner , hitting out blindly and making no distinction between demonstrators and mere passers - by .

On TIME CARDINAL DATE , the demonstrations intensified around the television building , FAC , ORG 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 ORG .

According to a report by ORG , referred to by the Government in their observations , at TIME the headquarters of ORG were surrounded by MONEY demonstrators ; on the orders of Generals PERSON and GPE , servicemen posted inside ORG fired at the ceilings of the entrance halls with a view to dispersing the demonstrators .

Three persons were killed by the shots fired in ORG .

It was in those circumstances that , at TIME , when he was QUANTITY away from CARDINAL of the doors of ORG , 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 CARDINAL DATE and DATE committing for trial the Minister of the ORG at the relevant time , a general and CARDINAL 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 DATE , were unarmed and had not previously taken part in the marathon demonstrations in FAC . 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 GPE . Another died shortly after having been stabbed in the area around the television headquarters .

On DATE no servicemen were subjected to violence by the demonstrators , as attested by the decision to commit for trial of DATE . According to that document , the army had fired CARDINAL bullets from inside ORG headquarters on DATE .

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

The headquarters of the ORG television station were at that time guarded by CARDINAL servicemen , backed by CARDINAL armed vehicles , and subsequently reinforced by other groups of armed forces , the largest of which contained CARDINAL servicemen ( who arrived at TIME ) , a detachment of parachutists ( TIME ) , CARDINAL servicemen ( TIME ) , CARDINAL parachutists ( CARDINAL p.m. ) and CARDINAL servicemen with CARDINAL other armed vehicles ( TIME ) .

At TIME the demonstrators were chased out of the television headquarters following this mass intervention .

Towards the end of the afternoon on DATE , while he was walking to his workplace along a street near the ORG 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 CARDINAL other persons were already present . They were filmed in the presence of the then director of the ORG television station . The recordings were broadcast during TIME to DATE , 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 TIME the applicant was beaten , struck on the head with blunt objects and threatened with firearms until he lost consciousness .

He woke up at TIME in ORG in GPE . According to the forensic medical report drawn up on DATE , the medical certificate issued by the hospital ’s emergency surgery department stated that the applicant had been admitted at CARDINAL TIME on DATE 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 TIME

His identity papers had been confiscated during TIME to DATE . DATE he was invited to collect them from ORG at ORG . In the meantime , he had remained shut away at home for fear of being arrested again , tortured and imprisoned .

According to the decision of DATE , witness ORG , an engineer , who at the relevant time was head of department at the GPE agency of the national railway company ( Regionala CFR GPE ) , had stated that , on TIME of CARDINAL DATE , the director of that agency had ordered that the scheduled trains be cancelled and that CARDINAL train convoys , or a total of CARDINAL wagons , be made available to the miners at Petroşani station , in the heart of the LOC mining area .

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

According to the decision issued on DATE by the prosecutor ’s office at ORG and Justice , on DATE CARDINAL trains DATE a total of CARDINAL wagons – transporting workers , especially miners , had travelled to GPE from several industrial regions around the country . The first had reached GPE at TIME , the last at CARDINAL p.m.

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

The decision of DATE indicates that the miners had been mobilised by the leaders of their trade union . Questioned as a witness , the President of ORG , who became mayor of PERSON in DATE , stated that CARDINAL trains carrying the miners had arrived at GPE station at TIME on DATE , that the miners had been greeted by the deputy Minister for ORG and a Director General from that ORG , and that these CARDINAL senior government officials had led them to FAC .

On TIME DATE , groups of miners first stopped at FAC ( Piaţa Victoriei ) , at the government headquarters .

At TIME , the Head of ORG 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 FAC and in other areas where incidents had occurred . In this speech , which is reproduced in full in the decision of DATE , he urged them to head towards FAC 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 ORG and of the police and “ besieging the television building ” .

NORP 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 ORG , with whom they formed “ mixed teams ” , and set out to look for demonstrators . The decision of DATE indicates that “ acts of extreme cruelty [ took place ] on this occasion , with violence being used indiscriminately against demonstrators and GPE residents who were totally unconnected with the demonstrations ” . The decision of CARDINAL DATE indicates that the miners also attacked the homes of persons of GPE 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 FAC demonstrations , and attacked “ as a general rule , GPE , students , intellectuals , journalists and anyone who did not recognise their legitimacy ” .

NORP The groups of miners and the other persons accompanying them ransacked the headquarters of ORG ( Partidul Naţional Ţărănesc Creştin şi NORP ) and ORG , and the headquarters of other legal entities , such as ORG ( PERSON ) , ORG NORP ) and the ORG “ DATE ” ( the applicant association ) .

According to the decision of DATE , 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 FAC . On arrival , they broke into the University premises and ORG , located on FAC . They attacked the staff and students whom they encountered there , subjecting them to violence and humiliating acts . The miners apprehended everyone on the LOC 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 PERSON and PERSON military barracks .

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

DATE . According to the decision of CARDINAL DATE , CARDINAL individuals – including DATE who were then under DATE were apprehended in those circumstances . Of those individuals , CARDINAL of them were placed in pre - trial detention , CARDINAL received an administrative penalty and CARDINAL were released “ after checks ” .

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

NORP That decision also indicates that some of those who were beaten and imprisoned were unlawfully detained for DATE and that several of them were released on DATE and DATE .

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 CARDINAL DATE states that the miners acted in close collaboration with the security forces and on the instructions of the ORG ’s leaders . The relevant passages read as follows :

“ On DATE and DATE the miners , in groups coordinated by civilians on behalf of and with the agreement of the ORG ’s leaders [ în numele şi cu acordul conducerii de stat ] , committed acts in which the ORG ’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 LOC of ORG , ORG , 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 ORG groups ; the victims who were questioned had distinguished between the miners and their other attackers by describing the first as ‘ dirty ORG and the second as ‘ clean ORG .

On DATE the applicant association publicly condemned the violent interventions of DATE .

At TIME the leaders of the association decided , as a security measure , to spend TIME in its headquarters . CARDINAL of them remained there during TIME .

At TIME on DATE , a group of miners forcibly entered the applicant association ’s premises after breaking a window pane . In TIME 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 CARDINAL of the members of the association . The miners followed his lead , brutally attacking the CARDINAL members of the association , who were then arrested by the security forces .

DATE . During DATE all of the association ’s property and documents were seized , in breach of the legal formalities , under the supervision of troops from ORG .

On DATE 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 , CARDINAL miners remained in GPE , “ ready to intervene should the protests recommence ” , notably with a view to the impending swearing - in of the newly elected President . From DATE those miners were accommodated in military barracks in GPE , where they received military uniforms .

The decision of DATE 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 ORG level ” .

According to a press release issued by ORG on DATE and reproduced in the decision of CARDINAL DATE , during the period DATE and TIME on DATE , CARDINAL persons went to hospital following the violent incidents ; CARDINAL were kept in hospital and CARDINAL deaths were recorded .

According to the same decision of CARDINAL DATE , police officers , miners and later the military conscripts responsible for supervising the miners used excessive force against the CARDINAL demonstrators and the other persons – including children , elderly persons and blind people – who had been arrested and detained in LOC . 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 DATE , in the course of which the husband of the applicant PERSON 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 CARDINAL different case files .

On CARDINAL DATE the military section of the prosecutor ’s office at ORG and ORG sent a letter to ORG , in which the facts were summarised as follows :

“ Over DATE , CARDINAL of complaints were registered on the rolls of the prosecutor ’s office at ORG 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 GPE on DATE and DATE . 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 PERSON 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 DATE onwards , the events having been given a different legal classification involving aggravated criminal responsibility . Senior army officers and ORG officials were successively charged and the entire investigation was transferred to the military section of the prosecutor ’s office at ORG ( ORG lângă PERSON – PERSON ) as case no . CARDINAL .

DATE and DATE , CARDINAL previously opened cases were joined to case no . CARDINAL , of which CARDINAL were joined on DATE , CARDINAL on DATE and CARDINAL on DATE .

On DATE the same military prosecutor ’s section was assigned CARDINAL cases concerning the events of CARDINAL to DATE , including , in particular , the unlawful deprivations of liberty on CARDINAL DATE .

In the decision of CARDINAL DATE , 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 CARDINAL 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 CARDINAL contains files concerning disappearances which occurred after DATE ) . ... ”

On DATE case no . CARDINAL/P/CARDINAL was split into CARDINAL cases and the subsequent investigation was assigned to the military section of the prosecutor ’s office at ORG .

On DATE CARDINAL of those CARDINAL cases were joined . After that date the investigation focused on CARDINAL main cases .

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

NORP The decision of DATE bring charges , and the subsequent decision of DATE to sever the charges , state that , on orders from the then President , on the TIME of DATE and TIME to DATE the security forces and army personnel used their weapons and heavy ammunition against demonstrators , killing CARDINAL persons , injuring CARDINAL 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 DATE this first branch of the investigation was still pending in respect of CARDINAL of the officers in question , the CARDINAL others having died in the meantime .

The other case concerning the events of DATE , which investigated , in particular , the criminal complaint for violence lodged by Mr GPE and the ransacking of the applicant association ’s LOC , 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 LAW ( a ) to ( c ) of LAW .

The persons accused of those acts were the former President , several high - ranking officers and CARDINAL of civilians . Proceedings were brought in respect of these charges against the former President on DATE and against the former head of the GPE on DATE .

This second branch of the investigation was closed by a decision not to bring a prosecution , adopted on DATE . That decision was upheld by a judgment delivered on CARDINAL DATE by ORG and ORG following an appeal by Mr Stoica .

The main stages of the investigation are described below .

On DATE the military section of the prosecutor ’s office at ORG issued its decision in case no . CARDINAL/P/CARDINAL , following an investigation concerning CARDINAL persons who had been victims of violence and unlawful arrests , including PERSON and CARDINAL members of the applicant association , as well as the applicant association itself and QUANTITY other legal entities whose LOC had been ransacked during the events of CARDINAL to DATE .

Of the CARDINAL victims listed in the table contained in the decision of DATE , CARDINAL had been assaulted and deprived of their liberty at the headquarters of the ORG 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 CARDINAL persons .

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

It added that its decision also concerned “ the presumed unlawful killing of CARDINAL individuals during the events of CARDINAL to DATE , [ whose corpses ] were allegedly incinerated or buried in common graves in cemeteries in villages near GPE ( notably ORG ) ” .

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 GPE . 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 GPE , the Prime Minister and his deputy , the Minister of the Interior , the head of the police , the director of the GPE and the Minister of Defence .

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

The first of those files was to focus on the continued investigation into the unlawful killing by gunfire of CARDINAL 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 LAW § CARDINAL of LAW , 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 CARDINAL to DATE ( see paragraph CARDINAL 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 CARDINAL and DATE .

This part of the decision of CARDINAL DATE was set aside in a decision issued on DATE by the head of the military section of the prosecutor ’s office ( Şeful PERSON ) at ORG , 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 DATE noted that the investigators had so far failed to conduct investigations into the “ known collusion ” between ORG 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 CARDINAL DATE , the investigations into the unlawful killing of Mr PERSON - PERSON continued under case no . PERSON ( see paragraph CARDINAL above ) .

PERSON and the CARDINAL children she had had with the victim joined the proceedings as civil parties .

CARDINAL generals – the former Minister of the ORG and his deputy DATE and CARDINAL senior - ranking officials were charged with the unlawful killings committed on DATE , including that of the applicant ’s husband , on CARDINAL , DATE and DATE DATE and DATE respectively .

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

By a decision of DATE , ORG remitted the case to the military section of the prosecutor ’s office at ORG 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 .

PERSON , 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 ORG and ORG ( as ORG was renamed in DATE , see paragraph CARDINAL above ) in a judgment of DATE .

After the investigation was resumed , the proceedings against the CARDINAL defendants were discontinued by a decision of DATE . That decision having been overturned on DATE , the proceedings were reopened .

After carrying out an additional investigation in line with the instructions set out in the judgment of DATE , the military section of the prosecutor ’s office at ORG and ORG committed the former Minister of the ORG , his deputy and CARDINAL other senior army officers for trial in a decision to that effect of DATE . 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 CARDINAL DATE , ORG and ORG 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 ORG .

On DATE the military section of the prosecutor ’s office at ORG and ORG lodged an appeal on points of law against that decision , but this was dismissed on DATE .

On DATE the military section of the prosecutor ’s office at ORG and ORG 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 ORG ( Secţia de urmărire penală şi criminalistică ) .

By a decision of DATE , that ORG discontinued the proceedings against the former minister and his deputy , both of whom had died on DATE and CARDINAL DATE 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 CARDINAL surviving defendants , ORG and GPE , and referred their cases to the military prosecutor ’s office at the GPE regional military court .

This investigation was pending before that prosecutor ’s office on DATE .

This part of the investigation concerned the charges against the former President of GPE with regard to the victims who were killed or injured by gunshots fired by the army on DATE .

The former President of GPE , in office from DATE and from DATE , was charged on DATE , 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 FAC 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 ORG CARDINAL , CARDINAL ( e ) and CARDINAL ( b ) of LAW , taken together with LAW of that Code .

On DATE those charges were severed from case no . CARDINAL . The investigation continued under case no . CARDINAL/P/CARDINAL .

In the meantime , on DATE ORG , 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 DATE the military section of the prosecutor ’s office held that it did not have jurisdiction to examine case no . CARDINAL/P/CARDINAL and relinquished jurisdiction to CARDINAL of the ordinary criminal sections .

On DATE the Procurator General of GPE set aside , for procedural errors , the indictment of DATE , and ordered that the investigation be resumed .

By a decision of DATE , ORG of the prosecutor ’s office at ORG and ORG issued a decision not to bring a prosecution , on the ground that there was no causal link between the order to clear FAC issued by the former President and the decision taken by CARDINAL officers , with the agreement of their superiors – General A. and General PERSON ( Minister of the ORG ) DATE 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 DATE had been fulfilled by TIME on TIME , 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 DATE PERSON and other injured parties challenged this decision not to bring a prosecution .

On DATE a CARDINAL - judge bench of ORG and ORG 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 CARDINAL of the injured parties – widows or relatives of the victims who died on CARDINAL and DATE , including PERSON , had stated at a hearing on DATE 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 CARDINAL - judge bench of ORG in a judgment of CARDINAL DATE .

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

NORP The applicant made her first specific request to join the proceedings as a civil party on DATE . On the same date the applicant and the other civil parties – relatives of the CARDINAL other persons who had been killed during the events of CARDINAL and DATE 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 DATE 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 TIME of CARDINAL DATE , 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 DATE and without employment at the relevant time , since her husband ’s death she had raised their CARDINAL children , a daughter of DATE ( born in DATE ) and a DATE son , alone .

The documents in the file submitted to the ORG do not indicate whether PERSON was kept informed about developments in the investigation into the aggravated unlawful killing of her husband following ORG and ORG ’s judgment of CARDINAL DATE ordering that the case be remitted to the prosecutor ’s office .

DATE and DATE , criminal proceedings were brought against CARDINAL persons – QUANTITY civilians and QUANTITY servicemen – essentially for acts of sedition committed in the course of the events of DATE . The former President of GPE was among those prosecuted . He was charged on DATE with participation in genocide ( paragraphs ( a ) , ( b ) and ( c ) of LAW ) , propaganda in favour of war ( LAW ) , inhuman treatment ( LAW ) , sedition ( LAW and acts of sabotage ( LAW ) .

The vast majority of the CARDINAL civilians charged were directors of mining companies , heads of ORG trade unions and senior civil servants in ORG .

On DATE this branch of the investigation was allocated the file number CARDINAL/P/CARDINAL ( see paragraph CARDINAL above ) .

On DATE the military section of the prosecutor ’s office at ORG and ORG ordered that the case in file no . CARDINAL/P/CARDINAL be split into CARDINAL parts , CARDINAL concerning the criminal charges against the CARDINAL civilians , including the former President of GPE and the former head of the GPE , and the other concerning the charges against the CARDINAL servicemen . The investigation with regard to the CARDINAL civilians was to be pursued before the relevant civilian section of the same prosecutor ’s office .

By a decision of DATE , the head prosecutor in the military section of the prosecutor ’s office set aside the decision of DATE , 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 .

NORP In line with that decision , on DATE the military section of the prosecutor ’s office at ORG and ORG also relinquished jurisdiction to the relevant civilian section for examination of the criminal charges against the CARDINAL servicemen – including several generals , the former head of police and the former Minister of the ORG .

The decision of DATE contained a list of CARDINAL victims who had been held and subjected to ill - treatment , notably on the LOC of FAC and the PERSON military unit . Mr PERSON 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 CARDINAL to DATE , including the applicant association .

NORP That decision also referred to “ identification of the CARDINAL persons who died during the events of CARDINAL to DATE ” .

It also contained a list of the ORG - owned companies which had provided workers for the intervention in GPE . That list included , in particular , CARDINAL mining companies from all around the country and factories in CARDINAL towns ( GPE , GPE , PERSON , GPE , GPE , GPE , PERSON , PERSON , ORG and GPE ) , as well as CARDINAL factories in GPE .

Following that decision , on CARDINAL DATE the military section of the prosecutor ’s office sent the CARDINAL volumes , containing a total of CARDINAL pages , from case no . CARDINAL/P/CARDINAL to the relevant civilian section of the prosecutor ’s office .

On DATE the section of the prosecutor ’s office at ORG and ORG which had received the entire file , namely ORG , stated that it did not have jurisdiction , and relinquished jurisdiction to another section of the same prosecutor ’s office , namely ORG ( ORG a ORG ) .

By a decision of CARDINAL DATE , the relevant directorate of the prosecutor ’s office at ORG and Justice , namely the ORG , decided that no prosecution would be brought against the former head of the GPE on the charge of sedition , as that offence had become time - barred , and that no prosecution would be brought against the majority of the CARDINAL civilian defendants – directors of mining companies , heads of ORG trade unions , senior civil servants at ORG 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 ORG , Minister of the ORG , deputy minister or Head of Police , some of the defendants exercised ORG 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 GPE on DATE , the prosecutor ’s office considered that they had “ turned themselves into security forces ” and been persuaded that their actions served ORG 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 TIME on DATE .

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

Lastly , the ORG decided to relinquish jurisdiction to ORG 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 LAW ( a ) to ( c ) of LAW . Those facts concerned CARDINAL of the persons who had been charged during DATE , including the former president .

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

NORP On DATE the prosecutor ’s office at ORG and ORG issued a decision not to bring a prosecution in the case , concerning essentially charges of inhuman treatment arising from CARDINAL complaints by persons injured as a result of the violence committed from CARDINAL to DATE .

NORP 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 DATE classified as extreme cruelty – inflicted on CARDINAL persons .

It was indicated that the investigations conducted DATE 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 DATE by the civilian ORG 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 ORG and their role and degree of involvement in the acts of violence carried out against the residents of the capital on CARDINAL and DATE . ”

NORP 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 CARDINAL 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 ORG 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 DATE and the army ’s intervention on TIME , 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 ORG arrival in GPE and the instructions they had been given . It was noted that his request to the miners to protect the ORG institutions and to restore order DATE following which CARDINAL 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 ( NORP , GPE , NORP ) 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 ORG for the former GPE , the prosecutor ’s office also considered that the persons deprived of liberty had not been systematically subjected to ill - treatment .

NORP The decision further indicated that the speech by which the Head of State had encouraged the miners to occupy and defend FAC 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 DATE .

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

NORP The decision of CARDINAL DATE 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 ORG . It mentions the number of victims and their membership of such or such a category , noting , for example , the QUANTITY persons who were arrested and held on the LOC of FAC or the CARDINAL demonstrators who were arrested and imprisoned on the LOC of FAC .

NORP The applicant association , other legal entities and individuals lodged an appeal against the decision of CARDINAL DATE not to bring a prosecution , which was dismissed on DATE by the head prosecutor of the relevant section of the prosecutor ’s office at ORG 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 GPE and CARDINAL other injured parties also lodged an appeal against the same decision . It was dismissed on DATE . Mr Stoica lodged on appeal on points of law before ORG and ORG .

On DATE , having dismissed the plea of res judicata raised by the former Head of ORG , ORG and ORG 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 CARDINAL of LAW ) , unlawful arrest , ill - treatment ( LAW , torture , unjust repression and blackmail . It considered that the decision of DATE 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 .

NORP In contrast , it did not rule on the criminalisation of inhuman treatment ( LAW ) , which had been the subject of the decision of DATE , in which the applicant was named as a victim of the inhuman treatment imputed to CARDINAL generals .

According to the Government , the main investigative measures carried out in the period DATE were as follows : CARDINAL interviews with injured parties ; hearing of witnesses on CARDINAL occasions ; and CARDINAL forensic medical reports . The results of those measures were set out in CARDINAL pages of documents .

On DATE , when he was received by a prosecutor at the military section of the prosecutor ’s office at ORG , PERSON lodged an official complaint concerning the violence of which he claimed to have been victim on TIME CARDINAL to DATE .

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

On DATE , for the purposes of the investigation into the alleged assault against him , the applicant underwent an examination at ORG , which produced a forensic medical report . That report indicated that the injuries described in the medical file opened by the emergency unit on DATE had required DATE 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 DATE to CARDINAL DATE , in DATE and DATE , and that he had been diagnosed as suffering from post - traumatic secondary epilepsy and other cerebral and vascular disorders ( transient ischemic attacks DATE TIAs ) . The expert report noted that the post - traumatic epilepsy had appeared following an injury sustained in DATE .

On CARDINAL and CARDINAL DATE 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 CARDINAL DATE , he was informed by the military section of the prosecutor ’s office at ORG and Justice that his complaint concerning the injuries inflicted on DATE by unidentified servicemen , which had resulted in his hospitalisation “ in a coma ” , was being investigated in the context of case no . CARDINAL/P/CARDINAL .

A certificate issued on DATE indicates that , according to the entries in the register held by the military section of the prosecutor ’s office at ORG Cassation , the applicant had been received by a prosecutor in DATE , DATE , DATE , DATE and DATE , mainly for the purposes of the investigation or to enquire about progress in the investigation . The applicant lodged CARDINAL additional complaints , on DATE and DATE respectively .

On DATE the prosecutor questioned CARDINAL witnesses indicated by the applicant .

When questioned on CARDINAL DATE as an injured party , the applicant asked the military prosecutor to order a second forensic medical report , since he considered that the DATE report had entirely failed to emphasise the seriousness of the injuries sustained in DATE 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 DATE 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 CARDINAL DATE , including those at the headquarters of the ORG television station . He recognised himself , and asked that the video recording be added to the investigation file .

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

On DATE , at the applicant ’s request , the medical observation files on his condition prepared by the emergency unit of ORG in DATE were added to the file .

NORP The medical board at ORG had previously issued the applicant with a certificate , dated DATE , 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 DATE , the specialist committee and the higher committee reach the following clinical diagnosis : mixed personality disorders , aggravated by organic causes . Acute traumatic brain injury DATE ( assault ) . Epilepsy with partial generalised secondary crises , confirmed clinically and by ORG , 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 , CARDINALnd level invalidity .

Adaptive incapacity : PERCENT ”

In the meantime , on CARDINAL DATE the prosecutor ’s office at ORG 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 DATE GPE military unit no . CARDINAL sent the applicant association a letter informing it that “ an inventory of the items found on DATE [ at the association ’s headquarters ] [ had ] been drawn up by the representatives of ORG ( PERSON ) and placed , with an official report , at the headquarters of ORG ( Procuratura Municipiului Bucureşti ) ” .

NORP On DATE CARDINAL 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 DATE the applicant association lodged a criminal complaint with ORG , complaining about the ransacking of its headquarters and the attacks sustained by some of its members on DATE , 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 DATE ORG sent the prosecutor ’s office at ORG CARDINAL case files , opened following criminal complaints by several individuals and legal entities with regard to the events of CARDINAL and DATE . Those files included case file no . CARDINAL/P/CARDINAL , which concerned the applicant association ’s complaint regarding the ill - treatment inflicted on several of its members . ORG 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 .

NORP The applicant association contacted the prosecutor ’s office at ORG , subsequently ORG and ORG , 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 CARDINAL DATE 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

NORP The applicant PERSON was held in custody without a judicial order from DATE when the detention order of CARDINAL May had expired , and until DATE when a new detention order was issued .

NORP In case of the applicant PERSON , the DATE the court had ordered his transfer from the remand prison under house arrest but he was not transferred until DATE

The applicant Mr PERSON remained in custody after the court had ordered his release on DATE until a higher court overturned the release order on DATE .


CASE OF IUSTIN ROBERTINO MICU v. ROMANIA

Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Procedure prescribed by law);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);Violation of Article 13+5-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 5-1 - Procedure prescribed by law;Article 5 - Right to liberty and security);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos

The applicant was born in DATE and lives in GPE .

By orders of CARDINAL and CARDINAL DATE ORG ( “ the N.A.D. ” ) instituted criminal proceedings against the applicant and CARDINAL other co - accused , all of them border guard police officers , for bribe - taking and abetting bribe - taking . It held DATE on the basis of testimonial , documentary and surveillance evidence of phone conversations between CARDINAL of the co - accused , his wife and a third party DATE that there was reasonable suspicion that on DATE the applicant and his colleagues had asked CARDINAL NORP nationals to pay them money in order to allow them to leave GPE .

On DATE prosecutor PERSON , who was attached to the N.A.D. , authorised several police officers to enforce a warrant to appear ( mandat de aducere ) issued in the applicant ’s name and the names of the CARDINAL coaccused . According to the order to appear produced by the ORG , the applicant ’s presence was required in order for him to be heard as an accused ( ȋnvinuit ) in the criminal investigation instituted against him in DATE . No other reasons or considerations were stated on the order .

On DATE CARDINAL police officers went to the applicant ’s workplace to enforce the warrant to appear . According to the report produced by the police officers and signed by the applicant , he was shown the warrant to appear and was informed that he would be taken to the N.A.D. ’s LOC . He was also informed that he could contact and retain the services of a legal representative of his own choosing . He refused to do so because he considered that he did not need one . The applicant and the escorting police officers left the applicant ’s workplace at TIME

On DATE , at TIME , PERSON informed the applicant in the presence of a publicly appointed legal representative that a criminal investigation had been opened against him for bribe - taking . According to the documents submitted before the ORG , and signed by the applicant and his legal representative , he had refused to retain a legal representative of his own choosing and had accepted assistance from a publicly appointed lawyer . According to the statement made before the prosecutor , he notified the authorities that he suffered from diabetes and that he needed his insulin treatment , which would have to be brought from his workplace . In addition , he requested the authorities to notify his wife in the event of his placement in police custody . He also stated that he reaffirmed the statement he had made previously concerning the events in connection with which he was being investigated . According to the record of the applicant ’s statement , he was heard as an accused by the prosecutor at ORG offices from TIME to TIME

On DATE , at TIME , the applicant was informed that at TIME he had been charged with bribe - taking . According to the report produced by the authorities and signed by the applicant and his legal representative he refused to make any statement as a defendant ( inculpat ) and reaffirmed the statement he had made as an accused .

By an order dated DATE the N.A.D. placed the applicant in police custody for TIME commencing at TIME for bribetaking . The arrest order was signed by both the applicant and his legal representative . It stated that on the basis of the available evidence there was reasonable suspicion that the applicant had accepted money from NORP nationals for the purpose of allowing them to return to GPE . It also stated that the offence in question was punishable by over DATE imprisonment and his release would constitute a danger to public order , bearing in mind that he was a border guard officer and had committed the offence at his workplace .

On DATE , relying on testimonial , documentary and audio surveillance evidence , the ORG asked the domestic courts to detain the applicant pending trial .

By an interlocutory judgment of DATE ORG dismissed the ORG ’s request and ordered the applicant ’s release on condition that he remain in the country . It held that the available evidence was plagued by inconsistencies which should have been resolved by the investigating authorities . In addition , except for the seriousness of the offence , none of the other legal requirements for detaining the applicant pending trial had been met . In particular , there was no evidence in the file that he had attempted to abscond or to obstruct justice . Also , it had not been proven that his release would be a danger to public order , given that the events in question had occurred in DATE and that the applicant was not responsible for the length of the criminal investigation . Consequently , it considered that the implementation of an alternative measure was more appropriate in his case .

On DATE ORG , sitting as a second instance court , dismissed as ill - founded an appeal by the N.A.D. against the interlocutory judgment of DATE .

By a judgment of CARDINAL DATE ORG convicted the applicant of bribe - taking and sentenced him to CARDINAL GPE imprisonment . The applicant appealed on points of law ( recurs ) against the judgment .

On DATE ORG allowed the applicant ’s appeal on points of law against the judgment of CARDINAL DATE and acquitted him . It also noted that he had been held in police custody for TIME from DATE .

On DATE the applicant instituted criminal proceedings with no civil claims against the prosecutors investigating his case – in particular G.B. – for , inter alia , abuse of office by restricting certain rights , perjury , unlawful arrest and improper investigation , torture and unlawful perversion of justice ( represiune nedreaptă ) . He argued that the prosecutor had obtained testimonial evidence against him in breach of domestic and international criminal procedure rules and had detained him for TIME instead of the CARDINAL allowed by law . In addition , there had been no reasonable suspicion that he had committed the offence , nor had the other legally - required criteria for his detention been met . Also , he had been subjected to intense physical and psychological suffering because the order to appear issued by the prosecutor had been unjustified and devoid of grounds , in breach of LAW ( “ the NORP ” ) . Lastly , he had been refused a medical examination , medical treatment and food for the entire time he was under the authorities’ control , even though he had notified them of his medical condition .

On DATE the applicant brought proceedings seeking to have prosecutor PERSON removed from the case on the grounds that he had instituted criminal proceedings against him in DATE .

By a final order delivered on DATE , the hierarchically superior prosecutor attached to ORG , namely ORG , dismissed the applicant ’s action of CARDINAL DATE on the ground that there was no evidence in the file that PERSON had had a personal interest in the outcome of the case or that he had had a feud with CARDINAL of the parties in the case . The fact that the applicant had instituted criminal proceedings against him was not an incompatibility ground provided for by law .

By a final order of DATE the public prosecutor ’s office attached to ORG dismissed the applicant ’s criminal complaint of DATE against the prosecutor PERSON on the grounds that the offences cited by the applicant were inexistent and that his claims amounted to a complaint against the acts and measures carried out by the prosecutor during the investigation stage of the criminal proceedings instituted against him . The purpose of a criminal complaint was not , however , to censor the acts and measures carried out by a prosecutor . The lawfulness of such measures could only be examined within the framework of a complaint lodged with the hierarchically superior prosecutor against the acts and measures carried out by the investigating prosecutor . The applicant appealed against the order before the domestic courts .

By interlocutory judgments of CARDINAL DATE and DATE ORG ordered that the investigation file be attached to the court ’s file and that PERSON be summoned before the court . According to the applicant , neither the investigation file nor PERSON was ever presented to the court .

By a final judgment of CARDINAL DATE ORG dismissed the applicant ’s complaint against the order of DATE . It held that the applicant ’s complaints concerned investigative acts carried out by PERSON During ongoing criminal proceedings , other legal remedies are available to the accused or the defendant(s ) by virtue of the criminal procedure rules , and these could have been used here to express dissatisfaction in respect of the alleged breaches of the procedural rules and of their lawful rights . In this connection , the court identified several complaints the applicant could have lodged within the framework of the criminal proceedings instituted against him , namely a complaint against the prosecutor ’s orders for preventive measures and based on Article CARDINAL et seq . , Article CARDINAL § CARDINAL , Article CARDINAL et seq . , and Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL , CARDINAL - CARDINAL , CARDINAL and CARDINAL of ORG . In addition to the aforementioned legal remedies , the defendants had other lawful means of lodging complaints against the person investigating or supervising the investigation of their case . However , a criminal complaint lodged against the prosecutor who had carried out the investigation in criminal proceedings that were still pending was not one of the legal means the applicant could have used , as it opened up the possibility of having aspects of legality regarding the pending criminal trial examined outside the framework expressly provided by LAW and of examining aspects of the criminal proceedings instituted against him . Moreover , the procedure allowing the prosecutor ’s orders to be challenged before domestic courts did not allow the court to substitute its judgment for that of the judicial organs charged with the examination of the pending criminal proceedings instituted against him . The applicant appealed on points of law ( recurs ) against the judgment .

On DATE the applicant brought proceedings against ORG seeking an injunction to force that court to examine both the appeal on points of law lodged by him against the final judgment of CARDINAL DATE and the unconstitutionality objections raised by him after the previously mentioned judgment was delivered .

On DATE , by a final judgment delivered in private , ORG dismissed the applicant ’s appeal on points of law against the judgment of DATE as inadmissible . It held that , following recent law reforms , judgments delivered by the domestic courts in proceedings challenging the legality of a prosecutor ’s decision not to institute criminal proceedings were no longer appealable before CARDINAL levels of jurisdiction .

By a judgment of CARDINAL DATE ORG dismissed the applicant ’s action of DATE . It held that ordering ORG to examine his appeal on points of law would breach the principle of legal certainty . In addition , an unconstitutionality objection had been raised by the applicant after the proceedings had ended on DATE and there was no legal framework that would allow ORG to force another court to examine them . The applicant appealed on points of law against the judgment of CARDINAL DATE and according to him , the appeal was dismissed as ill - founded .

On DATE the applicant brought criminal proceedings with no civil claims against the prosecutor L.P. for abuse of office against the public interest , incitement to the unlawful exercise of a profession and to perjury , incitement to unlawful perversion of justice , and incitement to the retention and destruction of documents . He claimed that , as ORG ’s hierarchically superior prosecutor , ORG had approved the criminal - investigation measures undertaken by ORG , including the evidence dismissed and gathered by him , and had allowed PERSON to detain him and institute the criminal proceedings against him , even though he had been aware that he was innocent .

By a final order of CARDINAL DATE the public prosecutor ’s office attached to ORG dismissed the applicant ’s criminal complaint against ORG on the grounds that the offences cited by the applicant were non - existent . It held that the complaints lodged by the applicant against ORG were related to those lodged by him against PERSON In the latter ’s case the public prosecutor ’s office had already discontinued the criminal investigation for similar reasons . The applicant appealed against the order before the domestic courts .

By a final judgment of CARDINAL DATE ORG dismissed the applicant ’s complaint against the order of DATE . It held that ORG had neither investigated the applicant ’s case nor undertaken any acts or measures in this respect . He had merely approved the proposal submitted by PERSON before the domestic courts to detain the applicant pending trial . The fact that he had examined and dismissed the applicant ’s complaints in respect of the legality of the criminal proceedings instituted against him did not engage his criminal liability . In the absence of evidence to suggest that the prosecutor had acted unlawfully or that he had breached his duties , the applicant ’s arguments in support of his complaint could not be assessed within the framework of a criminal investigation . Most of the applicant ’s complaints were in fact arguments in his defence based on challenges to the way the evidence had been produced , the measures undertaken and the procedural flaws . According to the relevant criminal procedure rules , such complaints could be raised by the applicant before the domestic courts examining his case but could not be interpreted as constituting the elements of an offence . The applicant appealed on points of law against the judgment .

On DATE , by a final judgment delivered in private , ORG dismissed the applicant ’s appeal on points of law against the judgment of CARDINAL DATE as inadmissible . It held that , following recent law reforms , judgments delivered by the domestic courts in proceedings challenging the legality of a prosecutor ’s decision not to institute criminal proceedings were no longer appealable before QUANTITY of jurisdiction .

On DATE the applicant brought criminal proceedings with no civil claims against prosecutors ORG for breach of the secrecy of his correspondence , amongst other things . He argued that the CARDINAL prosecutors had unlawfully monitored his electronic mail correspondence during DATE and in DATE had publicly presented the content of CARDINAL of his electronic mails in court .

By a final judgment of CARDINAL DATE ORG dismissed the criminal proceedings with no civil claims that had been brought by the applicant against prosecutor PERSON for forgery and use of forged documents during the course of the criminal proceedings conducted by the said prosecutor against him . It held that the offences alleged by him were in fact allegations of breaches of procedural rules by the prosecutor investigating his case , which could have been examined by the appellate courts over the course of the criminal proceedings instituted against him , particularly since the proceedings in question were still pending before the domestic courts .

By a final order of CARDINAL DATE ORG attached to ORG dismissed criminal proceedings that had been instituted by the applicant against prosecutors ORG on DATE on the grounds that no unlawful act had been committed . The applicant did not appeal against the order before the domestic courts .

By a final order of CARDINAL DATE , the public prosecutor ’s office attached to ORG dismissed criminal proceedings that had been instituted by the applicant against , inter alia , prosecutors ORG for slanderous denunciation , unlawful arrest and abusive investigation , and forgery on the grounds that , amongst other things , the available evidence did not suggest the existence of any offence committed by the aforementioned prosecutors . The applicant did not challenge the decision before the domestic courts .

According to the applicant ’s medical papers he has been suffering from type - CARDINAL diabetes since DATE and has been treated with insulin since DATE .

On DATE at TIME , prior to being placed in a detention cell , the applicant was examined by the detention center ’s medical nurse . According to the report produced on DATE , the applicant ’s general condition was relatively good . He informed the medical nurse that he required insulin treatment twice a day , in the morning and in the evening . He said that he had tested his own blood sugar level using his own tester at TIME and that his blood sugar level was high .

On DATE the applicant was examined by a doctor specialising in diabetes and nutrition . According to the medical certificate produced on DATE , the applicant was following a programme of treatment involving CARDINAL insulin injections per day , CARDINAL in the morning and CARDINAL in the evening .

DATE and DATE the applicant was examined by specialist doctors and was tested CARDINAL times . According to the medical certificates produced on those dates , he continued to receive CARDINAL injections of insulin per day until DATE , but the dosage was increased twice . In addition , doctors recommended that he take sick leave on QUANTITY occasions . Furthermore , on DATE it was recommended that he take his evening insulin dosage no earlier than TIME In DATE he was advised to administer CARDINAL insulin injections per day .

In his initial submission to the ORG on DATE the applicant stated that on DATE at TIME the QUANTITY police officers holding the warrant to appear had taken him to the ORG ’s office . At the ORG ’s office he had been left waiting in a room until TIME , when the police officers informed him that he needed to retain the services of a legal representative . Afterwards , he had again been left waiting for TIME .

At TIME a publicly appointed legal representative had arrived and the applicant had been questioned by prosecutor PERSON in her presence . He had been asked CARDINAL short questions and afterwards he had once more been left waiting .

At TIME prosecutor PERSON had informed the applicant that he had been placed in police custody for TIME .

At TIME he had been handcuffed and taken to the detention center . At the detention center the police guards had taken away from him the syringe , the insulin and the device for measuring blood sugar levels he had had on him . The applicant had informed the police guards that he was suffering from diabetes and retinopathy and that he had not eaten DATE . His request for a medical test to be carried out by a doctor had been dismissed and he had been visited by a nurse .

In his submission before the ORG on DATE the applicant stated that on DATE after being taken to the ORG ’s office , he had been locked in a room and guarded by armed guards . Although he had informed the prosecutor investigating his case that he had been suffering from diabetes requiring insulin treatment and retinopathy , the latter had refused to allow him to eat for the purposes of being able to take his insulin treatment .

On DATE , according to the applicant , his CARDINAL mobile phones had been confiscated by the police officers who accompanied him to the ORG ’s office without producing a report attesting to this confiscation measure . Also , he had been denied contact with his family and had not been allowed to retain the services of a legal representative of his own choosing . During his placement in police custody he had not been provided with food appropriate to his condition or with plates , glasses or cutlery to be able to eat the food .

On DATE the N.A.D. informed the Government that as soon as the applicant had informed the prosecutor investigating his case that he suffered from diabetes and needed his insulin treatment ‒ which would have to be brought from his workplace ‒ steps had been taken to retrieve the applicant ’s treatment from his workplace . Within TIME the applicant had had access to his treatment kit and had been allowed to use it without any restriction . In addition , the police officer who had brought the treatment kit from the applicant ’s workplace had also bought food for the applicant using his own money and had allowed him to eat .

On DATE the N.A.D. informed the Government that the applicant had been questioned by the prosecutor as an accused from TIME to TIME The fact that the record of the applicant ’s statement mentioned TIME ( CARDINAL ) as the time when the hearing had ended had been an error , given that the next procedural act carried out by the prosecutor had started at TIME In addition , the ORG stated and provided evidence that for the rest of the time the prosecutor had not been hearing or carrying out procedural acts in relation to the applicant , but rather had been working on procedural acts and measures undertaken in relation to the CARDINAL remaining co - accused and the available witnesses .


Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

NORP The applicant , PERSON , is a LOC national who was born in DATE and lives in GPE . She is an executive director of ORG , a LOC NGO . Its avowed aim is , inter alia , “ to increase the transparency and responsibility of institutions and improve the civil control thereof ” . The applicant was represented by PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , PERSON .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the Government adopted an Action Plan for the Fight against Corruption and Organised Crime ( “ the Action Plan ” ) . ORG , inter alia , provided for “ ensuring connection to the databases of telecommunication services providers for the purposes of collecting data , in accordance with police powers ( ovlašćenjima ) as provided for by LAW ” .

On DATE , in accordance with ORG , the GPE police ( Uprava policije PERSON ) concluded an agreement with M - tel , one of the telecommunication providers operating in GPE , which allowed them direct and uncontrolled access to M - tel ’s entire database through an adequate interface “ whenever possible and necessary ” , including access to lists of all calls and their duration , messages , location , date , and time .

On DATE the applicant , who was subscribed to M - tel ’s services , filed a constitutional appeal with ORG . She maintained that the police could obtain all the information on her telephone calls without any judicial control ; that the police could directly access the computer network and database of mobile telephone operators ; and that the scope of the police authority was unknown , given that the agreement was classified as “ top secret ” ( strogo povjerljivo ) . In doing so , she relied on , inter alia , LAW and the relevant case - law of the ORG .

On DATE ORG rejected the applicant ’s constitutional appeal as inadmissible , as it had not been lodged against any individual decision relating to her own rights . The decision was served on the applicant on DATE .

On DATE the application was communicated to the respondent Government . In their observations dated DATE the Government informed ORG following .

On DATE ORG ( “ the NORP ” ) carried out an inspection at M - tel of its own motion . In a report of CARDINAL DATE the ORG stated that the impugned agreement , concluded on the basis of LAW DATE in force at the time ( see paragraph CARDINAL below ) , was contrary to certain sections of LAW .

On DATE the ORG , acting upon an objection by M - tel to the previous report , issued a decision ordering M - tel to discontinue providing data contrary to LAW , a decision which was upheld by ORG on DATE . ORG also cited LAW and some of the ORG ’s case - law in its decision , such as ORG v. GPE ( DATE , Series A no . CARDINAL ) , and PERSON GPE ( no . CARDINAL/CARDINAL , ORG CARDINAL ) . None of the parties initiated a further administrative dispute before ORG .

On DATE deactivated the login by which the police could access its data .

On DATE the ORG carried out an inspection at the police offices . In a report of DATE it stated that no irregularities had been found . In particular , M - tel had complied with the ORG ’s decision and had deactivated the interface through which the police had direct access to its data .

Between an unspecified date in DATE and DATE the ORG received CARDINAL protection requests , in relation to which it issued CARDINAL decisions , CARDINAL of which were in favour of those who had submitted the requests . Apparently , in the remaining CARDINAL cases , the ORG issued reports with recommendations which were complied with , thus no separate decision was necessary , and the proceedings were consequently terminated .

On an unspecified date the applicant and CARDINAL of her colleagues instituted civil proceedings , seeking that the impugned agreement be declared null and void . They did not seek compensation .

On DATE ORG ( PERSON ) in GPE ruled in favour of the applicant and her colleagues . It found that the agreement was contrary to , inter alia , LAW case - law , and was thus null and void . The court analysed the agreement in detail and found that it had enabled the police to obtain direct and unrestricted access and recover all of M - tel ’s data , without defining the scope of those measures or the method of their implementation , or against whom those measures could be applied or for which reasons . All of this , in the court ’s opinion , represented an interference with ORG privacy and was not necessary within the meaning of LAW . It also found that the provider ’s clients had no means of establishing if any measures were in place or had been applied in the past in respect of them , nor did they have any “ effective control ” at their disposal , which also represented a violation of LAW . The court cited PERSON v. GPE ( DATE , Series A no . CARDINAL ) ; PERSON v. GPE ( DATE , Reports of Judgments and Decisions CARDINAL ) ; PERSON v. GPE ( DATE , Reports of Judgments and Decisions DATE ) ; and PERSON ( cited above ) .

That judgment became final on DATE .

On an unspecified date in DATE the applicant and CARDINAL colleagues filed a compensation claim against the police in relation to having their electronic communication put under surveillance in connection with the publication of a certain video on GPE .

On DATE ORG in GPE ruled in their favour and awarded them MONEY ( ORG ) each under LAW of LAW ( see paragraph CARDINAL below ) . The court found that , on the basis of all the evidence , there was a reasonable probability that the communications of the applicant and her colleagues over the internet had been put under police surveillance for the purposes of identifying an IP address from which the said video had been put on GPE , and that the applicant and her colleagues had never obtained the data thereby collected , even though they had explicitly asked for it . The court held that , even if the police action had been lawful , it did not meet the criterion of necessity in LAW . It found a violation of LAW and relied on the ORG ’s case - law , notably PERSON v. GPE DATE , Series A no . CARDINAL ) , and Niemietz , PERSON , and PERSON ( all CARDINAL cited above ) .

On DATE ORG ( PERSON ) in GPE reduced the damages awarded to ORG CARDINAL each and upheld the remainder of the previous judgment .

On DATE and DATE PERSON filed proposals for the assessment of the constitutionality of LAW and LAW DATE ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE and DATE ORG found the relevant part of those Articles unconstitutional and contrary to LAW , namely the part which enabled the police to ask a telecommunication provider “ to check if telecommunication addresses which established a connection at a certain time [ were ] identical ” ( see paragraph CARDINAL below ) . In doing so , ORG cited the ORG ’s case - law , such as ORG v. GPE [ ORG ] ( no . CARDINAL , ORG CARDINALV ) ; PERSON and Others v. GPE ( DATE , Series A no . CARDINAL ) ; ORG v. GPE ( DATE , Series A no . CARDINALA ) ; ORG ; and PERSON ( both cited above ) .

In accordance with this LAW , a person who believes that his or her rights under this LAW have been violated can file a request for protection with the ORG , an independent supervisory body , which has to make a decision on the request within DATE ( section CARDINAL(CARDINAL ) and ( CARDINAL ) , and sections CARDINAL ) . Those who collect , store , change , use , publish , erase or destroy information will be responsible for any damage caused by a violation of the rights provided for by this Act , in accordance with the general rules on compensation ( sections CARDINAL , CARDINAL and DATE ) . The ORG carries out an inspection ( nadzor ) of its own motion , but anybody else can also file a proposal for an inspection ( section CARDINAL ) .

Article CARDINAL provided , inter alia , that if there was a reasonable suspicion that a criminal offence prosecuted ex officio had been committed , the police had a duty to implement the necessary measures in order to find the perpetrator , ensure that the perpetrator or an accomplice did not flee or hide , uncover and secure the traces of the criminal offence and objects which could serve as evidence , and collect all the information which could be useful in criminal proceedings . Paragraph CARDINAL of the same Article provided that , in order to fulfill their duties under paragraph CARDINAL , the police could ask a telecommunication services provider to “ check if telecommunication addresses which established a connection at a certain time [ were ] identical ” ( zatraži provjeru identičnosti telekomunikacijskih adresa koje su u određenom vremenu uspostavile vezu ) . No court order was needed in this regard .

This Code entered into force on DATE and thereby repealed DATE ( except for LAW , which is not relevant to the present case ) . The relevant part of LAW corresponded to LAW .

Section CARDINAL(CARDINAL ) provides that anyone is entitled to ask a court or another competent body to order the termination ( prestanak ) of an action violating his or her personal integrity , personal and family life and other personal rights ( prava njegove ličnosti ) . Section CARDINAL ) provides that a legal entity , including the ORG , is liable for any damage caused by CARDINAL of “ its bodies ” . Sections CARDINAL - CARDINAL provide that anyone who has suffered fear , physical pain or mental anguish as a consequence of a breach of personal rights ( prava ličnosti ) is entitled to sue for financial compensation in the civil courts and , in addition , to request other forms of redress “ which might be capable ” of affording adequate non - pecuniary relief . This Act entered into force on DATE .

DATE and DATE ORG in GPE issued CARDINAL judgments ( ORG . CARDINAL , ORG . CARDINAL , ORG . CARDINAL and ORG . CARDINAL ) awarding damages to various plaintiffs for violations of their reputation , honour and personal rights ( see paragraph CARDINAL above ) . CARDINAL of the judgments were against the ORG , CARDINAL against the city of GPE and CARDINAL against a private person .