October 17, 2014
This guest post was written by Helena De Vylder, Ph.D. researcher at the Human Rights Centre of Ghent University. Her research focuses on admissibility criteria in regional human rights systems.
Mocanu and others v Romania fits in a series of cases in which the Strasbourg Court needed to deal with grave and large-scale human rights violations, happening before the entry into force of the Convention. The events happening before the entry into force are undoubtedly not subject to the temporal jurisdiction of the Convention. The admissibility of complaints concerning the investigative measures and proceedings after the coming into force in the contrast has been accepted by recent case law (and here). Mocanu further refines this case law by dealing with particular circumstances.
In this case, the Court had to deal with the investigation and the length of proceedings which followed the violent crackdown on anti-government demonstrations in Bucharest in June 1990. During the crackdown, Ms Mocanu’s husband – the first applicant’s husband – was killed by gunfire and Mr Stoica – the second applicant – was arrested and ill-treated by the police. The criminal proceedings are still pending in respect of the first applicant. The relevant investigation in respect of the second applicant was terminated by a final judgment in 2011. The applicants claim the proceedings did not live up to the standards put forward by the procedural aspect of article 2 and 3.
In contrast to the merits, the admissibility of the case is less straightforward. The admissibility issues relate to the jurisdiction ratione temporis and the exhaustion of domestic remedies.
1. Temporal jurisdiction
The least challenging part is the jurisdiction ratione temporis. The question rises whether the Court has temporal jurisdiction to examine procedural acts in relation to an event that antedates the entry into force of the Convention in a certain state. The Convention entered into force in respect of Romania in 1994 while the demonstrations in Bucharest date back to 1990. The Court applies the principles established in Janowiec et. al. v. Russia. These 3 principles limit the Court’s temporal jurisdiction to: (1) procedural events and ommissions in the post entry into force period. Moreover, (2) the lapse of time between the triggering event and the critical date must remain reasonably short if it is to comply with the “genuine connection” standard. Although there are no apparent legal criteria by which the absolute limit on the duration of that period may be defined, it should not exceed ten years. However, not only the time lapse is decisive, if a significant proportion of the procedural steps have taken place or ought to have taken place in the period following the entry into force, the genuine connection is also established. (3) The Court further accepts that there may be extraordinary situations which do not satisfy the “genuine connection” standard as outlined above, but where the need to ensure the real and effective protection of the guarantees and the underlying values of the Convention would constitute a sufficient basis for recognizing the existence of a connection. (Convention values-test) The Court especially had large scale human rights violations in mind, e.g. war crimes, genocide and crimes against humanity. This test can however only be applied on condition the triggering events took place after the adoption of the Convention in 1950.
Janowiec marked an end to many years of case law. It is clear that the negative right and positive – procedural – obligation in article 2 and 3 are separate and autonomous. When the Convention enters into force in respect of a certain member state, that state must live up to the procedural obligation, even though the triggering facts happened before the entry into force. This is required by article 1. In Mocanu, the Grand Chamber confirms this precedent. The application of the Janowiec conditions in casu is straightforward; the triggering event and the entry into force in Romania are only four years apart. Furthermore, it is established that the majority of the proceedings and the most important procedural measures were carried out after the critical date. Mocanu thus involves an easy application of the Janowiec-conditions. It is however a pity that this case did not contain the potential to eradicate the few obscurities in Janowiec. The criteria are in line with the overarching principle of non-retroactivity besides as what concerns the limit for events that happened even before the adoption of the Convention. This distinction was not necessary in the light of the non-retroactivity principle and even contrary to the autonomy of the procedural obligation. Overall, Janowiec was celebrated for the clear-cut standards of application. The Court found a right balance between predictability and legal security on the one hand, and possibility to adapt cases to its particular circumstances on the other hand. It is a thus a good thing that Mocanu confirmed the principles brought forward in Janowiec.
2. Exhaustion of domestic remedies and six month time-limit
The second admissibility-issue, the exhaustion of domestic remedies and the six month time-limit taken together, provokes more lengthy considerations. These considerations firstly focus upon the need to exhaust these remedies and secondly upon the timeliness of lodging these remedies.
Firstly, the Court establishes that there was no need to exhaust the so-called remedy. The government holds that an action for damages seeking to establish the state’s civil liability in tort was a remedy that needed to be exhausted. In line with set case law, the Court decides that the procedural obligation under Articles 2 and 3 should lead to the identification and punishment of those responsible in cases of assault. An action leading only to an award of damages does not meet the standards. Therefore, there was no need to exhaust this remedy.
Secondly, the Court needs to rule on the timeliness of lodging of both the domestic remedy and the complaint with the European Court. Shortly after the events a criminal investigation was opened, however, Mr Stoica lodged his criminal complaint only in 2001, more than 20 years after the demonstrations. In 2008 Mr Stoica lodged his application with the Strasbourg Court.
In this respect, the Court examines whether the applicant showed the required diligence in submitting his complaint on the domestic level. His inactivity before lodging a domestic complaint is as such not relevant for the application of the six month rule. However, states the Court, any delays risk comprising the effectiveness of the investigation. Furthermore, it is considered whether Mr Stoica had been aware, or should have been aware, for more than six months of the lack of any criminal investigation on the domestic level on the moment of lodging his Strasbourg complaint in 2008.
The applicant justified his reluctance by his vulnerability. He suffered permanent psychological problems, fear from authorities and powerlessness resulting from the massive human rights violations in 1990. The Court considers this an acceptable explanation and supports this ruling by the findings of the UN Committee against Torture, also quoted by the third party intervener, which acknowledge that psychological effects of ill-treatment inflicted by state agents may undermine victims’ capacity to complaint about that treatment. Moreover, the Court observes that only very few victims lodged a complaint in the first few years after the events. The Court also finds that the domestic authorities could have easily identified victims since video-evidence was available. Therefore Mr Stoica’s delay in raising a domestic complaint did not undermine the efficiency either. After having lodged his complaint domestically, the Court finds evidence that Mr Stoica kept track of the procedures and could reasonably have believed that the pending complaint was effective. Mr Stoica has thus showed the required diligence by lodging the complaint domestically as well as internationally.
The Grand Chamber thus overrules the decision of the Chamber, based on the vulnerability experienced by the applicant and the fact that the applicant’s behavior did not prevent the effective and efficient examination of the case on the domestic level. This vulnerability withheld the applicant from lodging his complaint. In its theoretical outline of the principles, the Court holds that the complexity of a case and the nature of the human right violations at stake may create a particular vulnerability which justifies a late domestic complaint. On the positive side, this judgment applies the exhaustion criterium with flexibility and without excessive formalism, as the Court’s set case law requires. On the negative side, in which circumstances future applicants can use this exception remains unsure. The context of mass human right violations and transition in Mocanu possibly define this, but an explicit reference would have avoided much confusion and could have created much more legal security for future applicants. Right now, the Court can be blamed for a cherry-picking approach.
In conclusion, the Grand Chamber confirmed the criteria it recently set forth in Janowiec. This can be applauded in the light of legal security for future applicants willing to complain about investigations concerning events happening before the entry into force of the Convention. Furthermore the Grand Chamber used the vulnerability-criterium to declare admissible the case even though the applicant lodged his complaint on the domestic level with a delay of more than 10 years. Even though a flexible approach is desirable in view of the practical and efficient character of human rights, the use of this criterium seems rather arbitrary. An explicit reference to the circumstances – supposedly the large scale and gravity of the violations in casu – that trigger the flexible use of the exhaustion of domestic remedies and six month-criterium would be preferred.