Resolution CM/ResDH(2011)300[1]
Execution of the judgment of the European Court of Human Rights
Anghel against Romania
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”)[2],
Having regard to the judgment transmitted by the Court to the Committee once it became final;
Case name (App. No.)
Judgment of
Final on
Anghel (No. 28183/03)
4 October 2007
31 March 2008
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of individual measures to put an end to the violations and as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;
Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;
Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);
Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgment;
DECLARES, that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and
DECIDES to close the examination thereof.
Appendix to Resolution CM/ResDH(2011)300
Information about the measures to comply with the judgment in the case of
Anghel against Romania
Action report
Case of Anghel v. Romania, Application No. 28183/03, judgment of 4 October 2007,
final on 31 March 2008)
I. CASE SUMMARY
The present case concerns the unfairness of proceedings, brought by the applicant, to challenge a fine of 59 Euros imposed upon him for having insulted a civil servant in November 2002, in breach of Law No. 61/1991 on repression of acts against social coexistence and public order (“Law No. 61/1991”) (violation of Article 6).
In May 2003, the applicant’s opposition to the fine was rejected at last instance. Although the Romanian law qualified the impugned proceedings as “administrative”, the European Court found that they were “criminal” for the purpose of Article 6, paragraph 1 and as such they had to secure the basic guarantees of a fair trial in criminal matters. Yet, the European Court noted that under Government Ordinance No. 2 of 12 July 2001 on the legal regime of the minor offences (“GO No. 2/2001”), such proceedings were mutatis mutandis governed by the rules of civil procedure. By virtue of these rules, the report drafted by a police officer after the incident was presumed to constitute sufficient evidence of the facts recorded therein and the courts hearing the case expected the applicant to prove his innocence by refuting the findings of the report. Such a presumption did not per se breach Article 6, provided that the domestic law afforded sufficient guarantees when it came to rebutting it, notably as regards the rights of the defense. The European Court found, however, that the relevant legislation did not expressly provide the application of the basic guarantees in criminal trials to the impugned proceedings. As a result, in the present case the domestic courts failed to accept evidence from the alleged victim and some eye-witnesses to the incident and gave precedence to the statements of the prosecution witnesses over those of the defense without giving reasons and without allowing a confrontation between the applicant and the prosecution witnesses. Having regard to the above, the European Court found that the disputed proceedings fell short of the requirements of a fair trial.
II.PAYMENT OF JUST SATISFACTION
The payment documents submitted to the Department for the execution of the Court’s judgments and decisions on the 13 November 2008 attest to the payment of the amount of 1.200 Euros of the just satisfaction awarded by the European Court for non-pecuniary damage.
III.INDIVIDUAL MEASURES
To date, the applicant has not paid the fine imposed on him following the proceedings which breacheds the Article 6 requirements. Initially, the enforcement proceedings brought against him were suspended on grounds that his application with the European Court was pending. According to the information provided to the government, following the European Court’s judgment, the relevant authorities abandoned the enforcement proceedings in respect of the fine.
In addition, the applicant can request the publication of the judgment in the Official Journal and lodge a request for reopening of the trial under Article 322, paragraph 9 of the Code of Civil Procedure, within one year as of the publication.
The government concludes from the above that no further individual measure is required in this case.
IV.GENERAL MEASURES
a) Assessment of the origin of the violation
The government accepts the fact that the violation originated from a prima facie inadequate statutory framework. Indeed, as the European Court established, neither Law No. 61/1991, which incriminated the offence allegedly committed by the applicant, nor GO No. 2/2001, which laid down the rules of procedure applicable to minor offences provide for the application of the basic guarantees in criminal matters to such proceedings. Instead, GO No. 2/2001 specifies that the rules of civil procedure apply mutatis mutandis.
The government considers nevertheless that such violation could have been prevented, had the domestic courts given direct effect to the Convention and the European Court’s case-law when adjudicating the applicant’s case. Indeed, the Romanian Constitution gives precedence to the international human rights instruments over the domestic law provisions in cases of conflict. Consequently, the rules governing the disputed proceedings could and should have been construed in the light of the relevant requirements of the Convention and of the European Court’s case-law.
In support of this assessment, the government recalls that in the inadmissibility decision given in the case of Neaţa v. Romania (application No. 17857/03, decision of 18/11/2008) concerning facts which occurred in 2002 – 2003, the European Court found in circumstances similar to those of the present case that the domestic courts had applied in an appropriate manner the procedural guarantees set forth by Article 6 in criminal matters.
b) Measures taken
The European Court’s judgment in the present case was widely disseminated. In 2008, the judgment was sent to the Supreme Council of Magistracy for dissemination to all domestic courts and published on the website of the Supreme Council of Magistracy (). Moreover, a summary of the judgment was presented in the Reports of the European Court’s case-law between 1994-2009, with an analysis of its consequences and an identification of the authorities which were responsible for the violation found. Lastly, the judgment is presented and discussed during the initial and continuing training of magistrates and during several training workshops organized by the National Institute of Magistracy.
c) Results achieved
The government underlines the fact that these measures contributed to raising the domestic courts’ awareness of the requirements resulting from the Convention, as specified by the European Court’s judgment in the present case.
The government submitted to the Committee of Ministers a significant number of decisions taken by various domestic courts between 2009 and 2010. In these decisions, by reference to the European Court’s judgment in the present case, the domestic courts acknowledge that the proceedings under GO No. 2/2001 are “criminal” in nature and give full effect to the presumption of innocence and to the defense rights, by compelling the police agents to bring evidence in support of the aspects consigned in the incident reports and by allowing the requests of the defense to produce evidence in court.
d) Conclusion
The decisions of the domestic courts submitted to the Committee of Ministers and the European Court’s rulings in the above-mentioned case of Neaţa and in the case of Ioan Pop (application No. 40301/04, inadmissibility decision of 28 June 2011) show that the existing statutory framework is flexible enough to allow the domestic courts to apply its provisions in a manner which is compatible with the requirements of Article 6 in criminal matters, by fully securing the respect of the presumption of innocence and the rights of the defense.
For this reason, the government considers that the general measures taken will prevent similar violations and as a consequence that a change in the legislative framework challenged in the European Court’s judgment is not required.
In the light of the above, the government concludes that Romania has complied with its obligations under Article 46, paragraph 1 of the Convention.
[1] Adopted by the Committee of Ministers by tacit procedure in accordance with the decision taken at the 1128th meeting (December 2011) under item F.
[2] See also the Recommendations adopted by the Committee of Ministers in the context of the supervision of judgments of the European Court of Human Rights and in particular Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies.
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