Resolution CM/ ResDH ( 2013)235 Six cases against Romania

Execution of the judgments of the European Court of Human Rights

Application No.

Case

Judgment of

Final on

33065/03

SAMOILÄ‚ AND CIONCA

04/03/2008

04/06/2008

29723/03

LAPUSAN

03/06/2008

03/09/2008

42084/02

VITAN

25/03/2008

01/12/2008

33078/03

BOLOÅž

12/01/2010

12/04/2010

20899/03

G.C.P.

20/12/2011

04/06/2012

10473/05

CATANÄ‚

29/01/2013

29/04/2013

(Adopted by the Committee of Ministers on 20 November 2013

at the 1185th (Budget) meeting of the Ministers ’ Deputies)

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 final judgments transmitted by the Court to the Committee in these cases and to the violations established;

Recalling the respondent State ’ s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)908 );

Having satisfied itself that all the individual measures have been adopted;

Having noted that the general measures concerning the violations of Article 5 §§ 3 and 4, Article 6 § 2 and Article 8 have been adopted and that the issues concerning the violation of Article 3 are currently examined within the framework of the supervision of the execution of the group of cases Bragadireanu v. Romania (judgment of 6 December 2007);

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.

Action report

6 cases mainly concerning the lack of judicial guarantees in the context of detention on remand and the non-respect of the presumption of innocence

33065/03 Samoilă and Cionca , judgment of 04/03/2008, final on 04/06/2008

29723/03 Lapusan , judgment of 03/06/2008, final on 03/09/2008

42084/02 Vitan , judgment of 25/03/2008, final on 01/12/2008

33078/03 BoloÅŸ , judgment of 12/01/2010, final on 12/04/2010

20899/03 G.C.P., judgment of 20/12/2011, final on 04/06/2012

10473/05 Catană , judgment of 29/01/2013, final on 29/04/2013

I. Introductory case summary

The Samoilă and Cionca and Lapusan cases concern the violation of the applicants ’ right to be promptly brought before a judge after their arrest in February 2003 (violations of Article 5 § 3).

The Samoilă and Cionca and Boloş cases also concern the refusal by the Supreme Court, in 2003, to examine the applicants ’ appeals on points of law against the decisions of the Court of Appeal on the prolongation of their detention after their committal for trial, thus depriving the applicants of the possibility of having the lawfulness of their continued detention verified (violation of Article 5 § 4).

In addition, the applicants in Samoilă and Cionca , Lapusan , Boloş and Catană cases had not been offered the opportunity to appear before the court in hearings held in 2003 and 2004, whose outcome had determined whether their detention was to continue. Thus, in the Boloş case, the applicant and his lawyer attended neither the hearing before the first instance court nor the one before the appellate court. In the Samoilă and Cionca , Lapusan and Catană cases, the European Court observed that the applicants and their lawyers had attended hearings before the first instance courts, but considered that this fact did not exonerate the State from the obligation to ensure that the applicants also attended in person (or were represented) at the hearing before the appellate courts in order to guarantee equality of representation with the public prosecutor who had been present at the hearings and had requested their continued detention. The applicants did not enjoy an effective defence before the appellate courts (in the Samoilă and Cionca , Lapusan and Catană cases) or before the first instance and appellate courts (in the Boloş case), as the representation was provided by various lawyers officially appointed on the spot, who were unfamiliar with the case-files, did not know their clients and had no time to prepare their defence properly (violation of Article 5 § 4).

The Samoilă and Cionca , Vitan and G.C.P. cases also concern the applicants ’ right to the presumption of innocence regarding public declarations of a commanding police officer (in Samoilă and Cionca case), the Minister of the Interior (in G.C.P. case) and public prosecutors (in all cases), referring to the applicants as being guilty, during the criminal investigations against them, between 1997 and 2003. The Samoilă and Cionca case also deals with the fact that the applicants were obliged to appear before the court in prison garments for convicts, contrary to the law and at variance with a decision of the Constitutional Court of 1994, which could confirm the public ’ s impression that the applicants were guilty (violations of Article 6 § 2).

The Vitan case concerns also the unlawful interference, by the penitentiary administration, in 2002, with the applicant ’ s right to respect for his correspondence (violation of Article 8).

Finally, the Catană case concerns the violation of the applicant ’ s right guaranteed by Article 3 of the Convention due to the conditions of his detention in the police lock-up between October 2004 and January 2005 (violation of Article 3).

II. Individual measures

The applicants have been released. The European Court awarded them just satisfaction for non-pecuniary damage, which has been paid by the g overnment either within the deadlines set by the Court (in all cases but the Vitan case) or in conditions that have not been contested by the applicant (in the Vitan case). The applicants were entitled to request the reopening of the proceedings in conformity with Article 408 1 of the Code of Criminal Procedure (CCP).

Consequently, the authorities consider that no further measure is necessary.

III. General measures

The measures taken by the Romanian authorities are presented in the Final Resolution CM/ ResDH ( 2011)149 adopted in the case of Năstase-Silivestru against Romania (judgment of 04/10/2007).

On 1 July 2003, the legal framework of the extension of the pre-trial detention pro cedure was modified by the Law N o. 281/2003, which was afterwards amended on 26 October 2 003 by the Emergency Ordinance N o. 109/2003.

The European Court took note of the legislative changes brought by Emergency Ordinance N o. 109/2003, expressly providing for the possibility of lodging an appeal on points of law against a decision of prolongation of detention on remand after the committal for trial of the defendant (§ 27 of the judgment in the Boloş case).

Pursuant to Article 300 1 §§ 3 and 4 CCP taken in conjunction with Article 160 a § 2 CCP, as amen ded by the Emergency Ordinance N o. 109/2003, at the procedural stage of registering the case with the trial court, the measure of detention pending trial is re-evaluated by the judge. The defendant has at his disposal the possibility to challenge the extension of the pre-trial detention by lodging an appeal on points of law against the interlocutory judgment rendered by the trial court.

Further, during the trial, by virtue of Article 300 2 CCP and Article 160 b §§ 3 and 4 CCP taken in conjunction with Article 160 a § 2 CCP, as amen ded by the Emergency Ordinance N o. 109/2003, the interlocutory judgment deciding the extension of the detention pending trial could be appealed on points of law by the defendant.

The aforementioned legal provisions have been upheld by the subsequent amendments of the Code of Criminal Procedure.

With a view to the newly enforced legal provisions, starting with 1 July 2003, the domestic courts implemented this procedure and assessed the merits of the appeals on points of law lodged by defendants against interlocutory judgments deciding the extension of the pre-trial detention.

Additionally, the domestic courts became aware of the European Court ’ s jurisprudence and they constantly applied the principles set in respect of the rights protected by Article 5 of the Convention.

The European Court observed in its case-law the compatibility of the domestic interlocutory judgments deciding the extension of the detention pending trial with the principles established in its jurisprudence.

In this respect, in its decision of 6 November 2012, rendered in the case Ceuta v. Romania , No. 1136/05, § 25, the European Court acknowledged the implementation of the amendments brought to the Code of Criminal Procedure, by pointing out the fact that the appeal on points of law lodged by defendants against an interlocutory judgment deciding the extension of the detention pending trial represented a supplementary guarantee in order to verify the necessity of the preventive measure.

Also, in the case Dumitru Constantin v. Romania (partial dec. ), N o. 30842/05, 27 September 2011, where the applicant complained under Article 5 § 4 of the Convention that he could not lodge an appeal on points of law against two interlocutory judgments from 2004 extending his pre-trial detention, the Court found this complaint as not disclosing any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

Coming back to the European Court ’ s findings in the present cases, it would appear that the legislative shortcomings identified in the European Court ’ s judgments in the Boloş and Samoilă and Cionca cases have been overcome by legislative measures and do not call into question the existing legal framework.

Accordingly, the authorities conclude that the criminal procedural law presently in force and the domestic courts ’ current practice correspond to the requisites s et by the European Court ’ s case law. Hence, any further infringement of Article 5 § 4 of the Convention is being prevented from intervening.

3) Violation of Article 5 § 4 (non-attendance at hearings before the first instance and appellate courts):

As regards the criminal investigation stage of proceedings , in the Lapusan case, the Court took note of the amendment of the Code of Criminal Procedure brought by Law No. 281/2003, in the sense that the presence of the defendant before the court dealing with the appeal on points of law against the interim decision ordering the prolongation of detention on remand became mandatory.

Pursuant to Article 140 3 § 3 CCP, the appeal on points of law could be judged in the absence of the defendant, when the latter is hospitali s ed and he could not be transported to the court ’ s premises, due to his health state, or for other reasons impeding his transfer. As a guarantee compensating the defendant ’ s absence, Article 140 3 § 3 CCP further provides that the appeal on points of law would be judged only in the presence of the defendant ’ s lawyer who is allowed to submit remarks to the case file.

The Law N o. 356/2006 amended the provisions of Article 140 3 § 3 CCP by limiting the situations when an appeal on points of law lodged against an interim decision ordering the prolongation of detention on remand could be judged in the defendant ’ s absence, referring to force majeure and a state of necessity.

Similar procedural rules have been instituted by Article 159 §§ 3 and 4 CCP insofar as the defendant ’ s attendance before the court invested with the prosecutor ’ s request for prolongation of the pre-trial detention is concerned.

As regards the proceedings after the committal for trial of the defendant , the provisions of Article 300 1 CCP setting the procedure of verification of the pre-trial detention before the first session are to be completed by Article 159 §§ 3 and 4 CCP as regards the defendant ’ s presence before the trial court deciding the necessity of the extension of the pre-trial detention.

Article 300 2 CCP imposes similar rules for discussing the extension of the defendant ’ s pre-trial detention during the trial.

Also, Article 300 2 CCP taken in conjunction with Article 385 11 § 3 CCP allow the appeal on points of law proceedings regarding interlocutory judgments rendered on preventive measures to be performed in the defendant ’ s absence, as long as he has been legally summoned . The defence lawyer ’ s attendance remains mandatory, in conformity with Article 171 CCP.

The above- mentioned legal provisions have been maintained during the subsequent amendments brought to the Code of Criminal Procedure, rendering the law in force at present time as being compatible with the European Court ’ s case law.

In its case law, the European Court decided as inadmissible the applicants ’ complaints based on Article 5 § 4, by which the latter invoked the fact that the authorities had failed to bring them in person before the last ‑ instance court examining the extension of the pre ‑ trial detention, stating that those complaints did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols (see case Roman v. Romania ( dec. ), no. 4140/04, 3 April 2012, and case Totolici v. Romania (partial dec. ), no. 26576/10 , 22 November 2011).

As regards the practi c e of the domestic courts, no misapplication of the legal provisions previously exposed has been encountered, as a certain period of time has elapsed from the date of the relevant amendments of the criminal procedural law and a solid experience and awareness of the legal proced ure and the Court ’ s case law has been acquired by the judges dealing with cases regarding the prolongation or extension of the detention pending trial during the criminal investigation stage, as well as during the trial before the first instance court or the appellate court.

Therefore, any further violation of Article 5 § 4 of the Convention is unlikely to appear in the domestic courts ’ practi c e.

4) Violation of Article 6 § 2 (public declarations of State officials):

On 13 April 2006, it was approved the Guide for proper practises between the courts, the prosecutor ’ s offices and mass-media, by a decision of the Superior Council of Magistracy ( http://www.csm1909.ro/csm/linkuri/21_06_2006__4846_ro.pdf ). Subsequently, the Gui de was amended by the Decision N o. 542 of 5 June 2008. Additionally, with regard to the activity of the p rosecutor ’ s offices, the Order N o. 116/2007 of the Prosecutor General was enforced at the time.

Presently, by the Decision N o. 482 of 1 June 2012 of the Superior Council of Magistracy, it was adopted a Guide for proper practices for cooperation between courts, prosecutors ’ offices and mass ‑ media and a Manual for spokespersons and courts ’ and prosecutor ’ s offices ’ structures for public information and relation with mass-media .

The Rules for interior order have been updated according to the decision of the Superior Council of Magistracy.

Certain responding structures from courts and prosecutor ’ s offices have been designated to exert the function of public relation and cooperation with the mass-media. No other members of the courts and prosecutor ’ s offices are allowed to provide information outside the framework instituted by the present Guide and Manual.

These documents encompass the principles to be observed by the responding structures from courts and prosecutor ’ s offices with a view to the right to respect for the presumption of innocence, the right to respect for private life and family life and the impartiality of judicial authorities.

The criteria set within the Guide and the Manual concern the unification of the practises on the subject of public information, with regard to a proper development of the judicial proceedings, the preservation of means of evidence, the avoidance of pressure exerted by non-judicial entities and the protection of witnesses, the injured party and their family members.

During the criminal invest igation, the access of the mass media to the pieces of the criminal case file is denied and the public information is carried out through press releases issued by the spokesperson of the prosecutor ’ s office.

As regards the trial stage, it is noteworthy to mention the rules referring to the broadcasting of images of the parties, the witnesses and other participants in the pr oceedings, the presence of mass media in courts ’ premises and in courts ’ sessions, the written requests of the mass media representatives for information of public interest concerning the administration of justice in criminal cases.

The Superior Council of Magistracy ’ s decision of 1 June 2012 has been widely disseminated to all courts of appeal in order to inform the structures respons ible for the relation with mass media, in particular, and the courts ’ personnel, in general, of the newly adopted rules concerning the public information and mass media.

The measures taken by the Superior Council of Magistracy with the effect of communicating the Guide for a proper implementation included also discussions between the courts, the pr osecutor ’ s offices and the mass media representatives, so that the co - operation with the press institutions to be assumed by all engaged factors based on the knowledge and the observance of the Guide ’ s provisions.

The adoption of the Guide and the Manual has been preceded by an international conference where the projects have been discussed with representatives from cou rts, prosecutor ’ s offices, mass media and high diplomatic officials, and the outcome of the debate has been embodied in the decision of the Superior Council of Magistracy for the approval of the documents.

The implementation of the Guide and the Manual is under the supervision of the Superior Council of Magistracy and a Report on the state of the justice system is concluded each year, comprising conclusions on the measures concerning the public informa tion and the relation with mass media.

Similar measures have been decided by the police. Press releases are issued solely by assigned spokespersons based on clearly defined responsibilities, by managing the relation with mass-media and monitoring the presentation of the police activity (see http://www.politiaromana.ro/purtatori_de_cuvant.htm ; http://www.politiaromana.ro/cirp.htm).

Having regard to the measures taken by the domestic authorities as exposed above, the authorities consider that future violations of Article 6 § 2 of the Convention could be avoided and no further measures are to be additionally decided by the authorities.

5) Violation of Article 6 § 2 (appearance before the courts in prison garments for convicts):

Presently, in the Romanian penitentiary system, prisons garments are not used for detained persons and they are allowed to wear personal items, save for the strict situation when the detainees do not own adequate personal clothing.

By the Law N o. 275 of 4 July 2006, Articles 34 and 82 § 6, and its Rules of application appro ved by the Government Decision N o. 1897 of 21 December 2006, Articles 85 and 225 § 2, it was established that persons deprived of liberty are allowed to use their personal garments purchased out of their revenue.

In case these persons do not have adequate personal items of clothing at their disposition and they have insufficient income, the administration of the detention place provides them with garments in accordance with the climate and the season.

Further, it is stated that the garments furnished by the administration of the detention place should not be humiliating or degrading or exposing the condition of a person in detention.

The use of personal cloths is granted regardless of the regime for serving the sentence.

Special rules have been provided for the detainees who work outside the premises of the detention place and the ones who secure the penitentiary ’ s premises together with the penitentiary guards, as they are afforded different equipment to the other detainees.

The detainees who are hospitalis ed in the penitentiary medical system wear outfits adapted to the medical environment.

The persons deprived of liberty are brought forward to the judicial authorities in a decent outfit.

The detained persons who are granted leave outside the penitentiary ’ s location use clothing that would not show their condition as detainees.

There is a sing le strict rule which imposes that detainees wear garments that could not be easily mistaken for the prison ’ s guards ’ uniform.

The aforementioned provisions are applicable both to persons under pre-trial detention, as well as to convicted persons.

The Orders of the Ministry of Administration and Interior and the Rules for interior order of the National Administration of Penitentiaries have been amended pursuan t to the provisions of the Law N o. 275/2006 and its Rules of application.

Accordingly, the g overnment would like to point out that no situations involving the use of prison garments by persons deprived of liberty in other conditions than the ones instituted by the Law N o. 275/2006 and its Rules of application appeared in practi ce, since the above- mentioned rules are strictly observed by the administrations of the detention places during the proceedings of the criminal investigation, the trial and the execution of penalty.

6) Violation of Article 8:

The legislative measures taken by the Romanian authorities are presented in the Final Resolution CM/ ResDH ( 2007)92 adopted in the case Petra v. Romania and the Final Resolution CM/ ResDH (2010)180 adopted in the case Cotlet v. Romania.

7) Violation of Article 3:

This aspect is being examined in the context of the Bragadireanu group of cases.

8) Publication and dissemination

The Court ’ s judgments in the Vitan and Catana cases were translated into Romanian and then published in the Official Journal.

The Court ’ s judgments in the Boloş , Lapusan and Samoilă and Cionca cases were translated into Romanian and published on the official site of the Superior Council of Magistracy ( www.csm1909.ro )

Consequently, the authorities consider that no further measure is necessary.

IV. Conclusions

Having regard to the above, the g overnment considers that no other individual measures are to be taken in the present cases.

With regard to the general measures concerning the conditions of detention, the g overnment will pursue the necessary efforts, in the context of the examination by the Committee of Ministers of the Bragadireanu group of cases, with a view to preventing similar violations. No other general measures are to be taken in the present cases. As Romania complied with the obligations imposed under Article 46, paragraph 1 of the Convention, the g overnment invites the Committee of Ministers to close the examination of these cases.