August 04, 2020
By Monica Pirvulescu
On 17 September 2014, the Grand Chamber of the European Court of Human Rights (“ECtHR”) delivered its final judgment in the Case of Mocanu and Others v. Romania (“the Case of Mocanu”). The ECtHR found a breach of the procedural aspects of Article 2 (right to life) and Article 3 (prohibition of torture) in the European Convention of Human Rights (“ECHR”) for lack of an effective investigation, and a violation of Article 6 § 1 (right to a fair trial) for the excessive length of the impugned proceedings. The Case of Mocanu concerned the flaws and delays in the domestic investigations that followed the violent crackdown of the anti-government demonstrations which had taken place in Bucharest in June 1990 (events known as the Miners’ Raid because of the implication of mineworkers in the suppression of the protests). The final judgment in the Case of Mocanu (“the Judgment”) was seen by the victims of the Miners’ Raids and by the Romanian society, in general, as a big victory of European justice and as a hope that those responsible for the violent events of June 1990 would be soon identified and punished. However, today, almost six years since the delivery of the Judgment and two years since the resolution of the Committee of Ministers (Resolution CM/ResDH(2018)229) closed the execution in the Case of Mocanu, the domestic proceedings regarding the investigation of the Miners’ Raids of June 1990 seem still far from being finalized.
One flawed investigation, one long delay…
Numerous cases had been opened at the national level with regards to the events of June 1990. However, ECtHR considered that it was “essentially dealing with one and the same investigation” (§328 in the Judgment). In this way ECtHR underlined the importance of finding the whole truth about and identifying all the persons responsible for the deaths, injured, unlawful detentions, ill-treatment and material damages caused in Bucharest in June 1990.
The ECtHR noted the obligation of Contracting Parties, under Articles 2 and 3 ECHR, “to conduct an investigation capable of leading to the identification and punishment of those responsible” (§234 in the Judgment), finding that the Romanian authorities responsible for the investigation had failed in observing that obligation.
The ECtHR also underlined the importance for the Romanian society of a prompt investigation into the events of June 1990:
While acknowledging that the case is indisputably complex, as the Government have themselves emphasised, the Court considers that the political and societal stakes referred to by the latter cannot justify such a long period. On the contrary, the importance of those stakes for Romanian society should have led the authorities to deal with the case promptly and without delay in order to avoid any appearance of collusion in or tolerance of unlawful acts (…) (§338).
Lost in … execution
Following the Judgment, the Case of Mocanu was included by the Committee of Ministers (“CoM”) in the group of Association “21 December 1989” and Others v. Romania and placed under enhanced supervision because of the complex problems raised. The cases in the mentioned group “concern the criminal investigations carried out since the early 1990s into violent crackdowns on the anti-governmental demonstrations which attended the fall of the Communist regime in Romania.” Specifically, eighteen of the cases in the group concerned the violent repression of the anti-communist demonstrations of December 1989 (known as “the Revolution”). Out of the 20 cases in the Association “21 December 1989” group, only the Case of Mocanu has been closed.
As mentioned in its Resolution of 2018, the CoM based its decision to close the examination of the case on two documents provided by the Romanian authorities: a Revised Action Plan submitted in April 2017 and an Information Note submitted in April 2018.
In the Revised Action Plan of 2017, with regard to the Case of Mocanu, the Romanian government confirmed the payment of the just satisfaction awarded by the Court, it mentioned that investigation had been reopened with regard to one applicant (Mr. Stoica), and that the Prosecutor’s Office had announced its intention to finalize the investigation by June 2017. During the 1288th meeting of the Ministers’ Deputies (6-7 June 2017), the examination of the general measures in the group was closed and the Deputies “noted with satisfaction the progress achieved in the investigation carried out into the crackdown on the demonstrations of 13-15 June 1990 and strongly encouraged the authorities to complete it according to the planned timetable” (CM/Del/Dec(2017)1288/H46-22).
In the Information Note of April 2018, the Romanian government informed the Committee of Ministers about its keeping its promise with regard to the deadline set for June 2017:
On 12 June 2017, the Prosecutor’s Office attached to the High Court of Cassation and Justice send to trial 14 persons, that were previously indicted for the offence of crimes against humanity (…), stating that the defendants had ordered, organized and coordinated an widespread and systematic attack against the civilian population namely the people who were participating at a protest demonstration in Bucharest and against the population of Bucharest, between 11 June 1991 [sic] and 15 June 1991 [sic].
The Romanian government also indicated that “Since the beginning of the criminal trial the HCCJ has already held three hearing sessions, concerning the file no. 1752/1/2017.” What the government seems to have failed to mention was that the three hearing sessions had taken place in the Preliminary Chamber. According to the Romanian law, the Preliminary Chamber procedure aims to establish the court’s jurisdiction and to verify the lawfulness of the act of indictment, of the adduction of the evidence gathered and of the acts of criminal investigation. So as long as the case had not passed the Preliminary Chamber, the Preliminary Chamber judge could consider the evidence-gathering or the investigation acts as unlawful.
So the Romanian authorities apparently kept their promise and the investigation was closed by the prosecutors with the June 2017 Indictment (consisting of 2,000 pages) issued by the Military Prosecutor’s Office. 14 people, including former President Ion Iliescu and former Prime Minister Petre Roman, were indicted in the case.
On 7 June 2018, CoM decided to close the examination of the execution in the Case of Mocanu. The reasoning found in the analysis by the Secretariat is rather poor: “The Prosecutor’s Office has concluded this investigation and the matter is presently before the High Court of Cassation and Justice. This should enable the Committee to close its supervision of the execution of the Mocanu and Others judgment.” Briefly, the Committee of Ministers was satisfied with the fact that the file known under the generic name of “the Miners’ Raid of 13-15 June” had reached the Romanian court and there had been three hearing sessions (though only in the Preliminary Chamber).
What happened to the domestic file on the Miners’ Raid of 13-15 June 1990 after the Case of Mocanu had been closed?
On 8 May 2019, the big blow came with Decision No. 192 of the Preliminary Chamber judge at the Romanian High Court of Cassation and Justice (“HCCJ”). The judge ruled that the Indictment of June 2017 was null and void and that the file regarding the events of June 1990 should be sent back to the Prosecutor’s Office. The judge decided to “exclude all the evidence taken during the criminal prosecution,” meaning that, thirty years after the events took place, the investigation must be redone from zero! The reasoning of the decision (401 pages) was made public only months later, in February 2020.
On 14 February 2020, the Section for the Investigation of Crimes in Justice (SIIJ) that operates within the General Prosecutor’s Office challenged the HCCJ’s Decision No. 192 of 8 May 2019. During the first hearing session in the appeal against Decision No. 192, which took place on 14 May 2020 in the Preliminary Chamber of the HCCJ, the case was postponed for 14 September this year, resulting in a delay of another four months.
Case closed, but justice has to wait…
As noted by legal scholars, “[u]nfortunately, the Committee, being a political body composed of representatives of member states, is not the best equipped or motivated body to question whether the steps taken go far enough.”  The execution of the Judgment in the Case of Mocanu is a perfect example in which CoM did not make sure that the steps taken by the Romanian authorities had gone far enough.
One can sense a discrepancy between the careful analysis made by ECtHR with regard to the criteria the investigation should meet in order to be effective under Articles 2 and 3 ECHR (procedural limb) and the speedy way in which CoM decided that the investigation in the events of June 1990 had been successfully completed. This is not excusable considering that the criminal files regarding the events of June 1990 had been passed back and forth between the prosecutors’ office and the courts in the past. In this regard, in case file no. 74/P/1998 regarding the death by shooting of 4 persons (including Mr. Mocanu) and the wounding by shooting of another 3 victims, the prosecutors had drafted two indictments and had sent them to the HCCJ twice, which had sent them back both times.
With the case of Miner’s Raid of June 1990 possibly starting from zero again in the future, one might say that CoM has not made sure that Romania “has taken all the necessary measures to abide by the judgment,” as required by Rule 17 in the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements. And, unfortunately, the mentioned Rules do not provide for a specific legal tool to make CoM reconsider its decision and to resume the supervision in the Case of Mocanu until the domestic investigation into the violent events of June 1990 really demonstrates that it is capable of leading to the identification and punishment of those responsible.
On the other hand, criticism has been levelled at the Romanian justice system for lacking the capacity to deal with very large cases, such as the cases of the miners’ raids or the Revolution case. In an interesting opinion piece, it was argued that a special court should be established to judge cases of crimes against humanity. But, as the supervision by CoM of the general measures in the Association “21 December 1989” group has been closed, chances are very weak this will ever happen.
In its Research Report on Article 2 (§97), ECtHR indicates that “what appears to be essential for the Court is that the result of the criminal proceedings should not create a sense of impunity on the part of the perpetrators,” which “is essential for maintaining public confidence, ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts.” The same objective should be strived for by the CoM when examining the execution of the judgments. Specifically, in complex cases like the Case of Mocanu, in which the ECtHR has found that domestic investigations featured many flaws and have been lasting for a long time, CoM should ask the Contracting State to assess to what extent the domestic investigation has led to the identification and punishment of those responsible and to indicate if there are any risks for the investigation to be declared null and void. I also think that the effectiveness of the ECtHR’s system would improve if, before closing such complex cases, CoM asked the applicants for their opinion with regard to any potential impediments to the completion of the enforcement.
What is probably most worrying is that the execution of the Judgment in the Case of Mocanu was closed by the CoM exactly at the same procedural stage as the Revolution File finds itself right now, i.e. after three hearing sessions of the High Court of Cassation and Justice (in the Preliminary Chamber). So we can only hope that the Committee of Ministers will not close the execution in the other cases in the Association “21 December 1989” group before making sure that the Romanian authorities have conducted an investigation capable of leading to the identification and punishment of those responsible for the violent events that took place in Romania in December 1989.
Monica Pirvulescu is a Lawyer and Master in Southeast European Studies (National & Kapodistrian University of Athens)
 Article 342 in the Criminal Procedure Code.
 Harris, O’Boyle & Warbrick (2014), Law of the European Convention on Human Rights, Third Edition, Oxford University Press, p. 31.