Resolution CM/ResDH(2011)252[1]
Execution of the judgment of the European Court of Human Rights
Dănilă against Romania
(Application No. 53897/00, judgment of 8 March 2007 final on 8 June 2007)
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”);
Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violations of the Convention found by the Court in this case concern the unfairness of criminal proceedings brought against the applicant (violations of Article 6, paragraphs 1 and 3 (d)) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate, of
- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2011)252
Information on the measures taken to comply with the judgment in the case of
Dănilă against Romania
Introductory case summary
This case concerns the unfairness of criminal proceedings which resulted in the applicant’s conviction on charges of accepting bribes (violations of Article 6, paragraphs 1 and 3 (d)).
In 1998, the Supreme Court of Justice overturned the applicant’s previous acquittal by two lower courts and convicted him at last instance. In the particular circumstances of the case, the Supreme Court of Justice had full jurisdiction and was called upon “to make a full assessment of the question of the applicant’s guilt or innocence”. Nevertheless, the Supreme Court returned its verdict without hearing evidence from the applicant and without taking further evidence.
The European Court noted that the applicant’s conviction at last instance was founded on a fresh assessment of the same evidence which had supported his acquittal by the lower courts. Against this background, having regard in particular to the lower courts’ verdicts, as a matter of fair trial, the Supreme Court of Justice could not overturn the applicant’s acquittal without a direct assessment of the evidence given by the applicant in person and of other evidence, in particular the statements given by the main prosecution witness.
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
-
3 000 EUR
-
3 000 EUR
Paid on 5/09/2007
b) Individual measures
The European Court noted that the applicant had been released on probation on 13 December 2002 (paragraph 24 of the judgment). Based on the European Court’s judgment, the applicant lodged an application to reopen the proceedings under Article 408¹ of the Code of Criminal Procedure. The High Court of Cassation and Justice allowed the reopening. Upon retrial, after having taken evidence in person from the applicant, the main prosecution witness and other witnesses, the domestic courts dismissed the charges against the applicant on grounds that statute of limitation in respect of the offences he was charged with had expired.
In these circumstances, no other individual measure was considered necessary by the Committee of Ministers.
II.General measures
As regards the failure of the Supreme Court of Justice to hear evidence from the applicant in person, the government referred to the measures that had been taken to avoid similar violations following the judgment in the case of Constantinescu, as set out in CM/ResDH(2011)29 (in particular the amendments made to the provisions of the Code of Criminal Procedure regulating the examination of accused persons by Law No. 356/2006).
As for the failure of the Supreme Court of Justice to take further evidence, the violation found in this case appears to stem from the misapplication of the procedural rules governing final appeal proceedings and not from an inadequate legal framework. Indeed, under Article 38516 of the Code of Criminal Procedure, if the appellate court withholds the case for retrial (rejudecarea de către instanţa de recurs), it must schedule a full hearing and decide on the evidence to be taken at the new hearing.
In order to ensure that the domestic courts will give full effect to the procedural rules disregarded in this case and to the requirements of Article 6, paragraphs 1 and 3 (d) set forth by the judgment, awareness-raising measures were taken. Thus the Romanian translation of the judgments of the European Court was published on the websites of the High Court of Cassation and Justice ) and the Supreme Council of Magistracy (). Moreover, the European Court’s case-law is regularly presented and discussed during initial and continuous training of magistrates.
III.Conclusions of the respondent state
The government considers that no further individual measure is required in this case, that general measures adopted will prevent similar violations and that Romania has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies
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