Resolution CM/ ResDH (2013) 168

Maszni against Romania

Execution of the judgment of the European Court of Human Rights

(Application No. 59892/00, judgment of 21 September 2006, final on 21 December 2006)

(Adopted by the Committee of Ministers on 11 September 2013 at the 1177th 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 “t he Convention” and “the Court”),

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the lack of independence and impartiality of military court s which convicted the applicant, a civilian (violation of article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent S tate 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 of the Court ;

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 the respondent S tate paid the applicant the just satisfaction provided in the jud gment (see details in Appendix);

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent S tate, 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

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respond ent S tate (see Appendix), that it has exe r cised 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 (2013)168

Information about the measures to comply with the judgment in the case of Maszni against Romania

Introductory case summary

The case concerns the lack of independence and impartiality of the military courts which convicted the applicant, a civilian, in 1998 (violation of Article 6 § 1). The jurisdiction of these courts was extended to the applicant under Arti cle 35 of the Code of Criminal P rocedure, because the ordinary offences of which he was accused were closely connected to the charges against a police officer, treated as a member of the armed forces.

The European Court considered that certain aspects of the status of military judges might cast doubt on their independence and impartiality. Thus, under the provisions of Law No. 54/1993, they are regular officers in the armed forces, paid by the Ministry of Defence and subject to military discipline, and their promotion is governed by internal army regulations.

On the question of the jurisdiction of military tribunals over civilians, the Court also indicated that it could not share the reasoning according to which a global analysis of the facts was needed in order to avoid inconsistent interpretations where, as in the present case, it was possible to separate the offences.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

€ 1 000

€ 1 000

€ 2 000

Paid on 04/09/2007 (in conditions that have not been contested by the applicant)

b) Individual measures

The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. Romanian law provides, in Article 408 1 of the Code of Criminal Procedure, the possibility of reopening criminal proceedings in cases in which the European Court finds a violation.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

At the time of the events, civilians might be tried by military courts if they were accused of committing offences together with military personnel (connection of offences). However, according to the new wording of Article 35 (2) of the Code of Criminal Procedure, as amended by Law No. 356/2006, in case of indivisibility or connection if one of the courts is a civil court and the other one is a military court, the competence belong s to the civil court. It should also be noted that upon the coming into force of Law No. 360/2002 on the status of policemen, the latter have become civil servants. Consequently, policemen accused of offences are now also tried by ordinary courts.

Finally, it should be also noted that the judgment of the European Court was published in the Official Journal and on the Internet site of the Supreme Court of Cassation and Justice ( http://www.scj.ro/decizii_strasbourg.asp ). It was also sent to the Supreme Council of Magistracy, with a view to its dissemination to all domestic courts, with the recommendation that it be included for consideration in the activities related to continued education of judges.

III. Conclusions of the respondent S tate

The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Romania has thus complied with its obligations under Article 46, paragraph 1 , of the Convention.