In Zăicescu and Fălticineanu v. Romania, (ECHR, April 23, 2024), the European Court of Human Rights in a Chamber Judgment held that Romania had violated the European Convention on Human Rights when, in the late 1990's, it reopened the conviction of two Nazi war criminals and acquitted them of war crimes. As summarized in a press release issued by the Court:
The applicants stated that they felt humiliated and traumatised because of the revision of historically and judicially established facts that, in their opinion, had amounted to a denial of the ethnically motivated violence of which they had been victims during the Holocaust.
The Court held that that the findings of the Supreme Court of Justice – specifically that only German troops had carried out on the territory of Romania actions against Jews and that R.D. had only followed orders issued by a superior – in the acquittal decisions of 1998 and 1999 had been excuses or efforts to blur responsibility and put blame on another nation for the Holocaust contrary to well established historical facts – all elements of Holocaust denial and distortion.
States that had experienced Nazi horrors could be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis. This obligation formed part of the case at issue, where alleged discriminatory acts had been performed by State authorities.
As matters of public interest, the authorities should have publicised the retrial proceedings and their outcome. The Court found that, owing to that failure, the applicants had found out about them by accident, which could have caused them to feel vulnerable and humiliated.
The Court was satisfied that the Government had not provided relevant and sufficient reasons for the revision of historical convictions for crimes connected with the Holocaust. The acquittals had therefore been “excessive” and “not necessary in a democratic society”, leading to a violation of Article 8 read in conjunction with Article 14.
In its opinion, the Court quoted findings of the International Commission on the Holocaust in Romania which concluded in part:
Of all the allies of Nazi Germany, Romania bears the responsibility for the greatest contribution to the extermination of the Jews, outside of Germany itself.
The Court's majority refused however to find violations of Article 3's prohibition on torture and inhuman or degrading treatment because these actions occurred before Romania became a party to the European Convention and indeed before the Convention came into existence. A partially dissenting opinion by two judges argued against this part of the majority's decision.
The two survivors who filed suit had not requested damages. The Court said in part:
[The applicants] contended that the issue in this case was a matter of principle and that no financial compensation could correlate to the mental harm, humiliation and psychological suffering endured as result of the State’s actions. Under these circumstances, the Court considers that there is no call to award any sum in respect of damage.
The Court did award costs and expenses.
