1 1 7 5 th meeting – 3 July 2013

Appendix 6

( Item H46-1 )

Resolution CM/ ResDH (2013) 133

A.M.M . against Romania

Execution of the judgment of the European Court of Human Rights

(Application No. 2151/10, judgment of 14 February 2012, final on 14 May 2012)

(Adopted by the Committee of Ministers on 3 July 2013 at the 1175th 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 judgment transmitted by the Court to the Committee in the above case and to the violation established;

Recalling the respondent State’s obligation under Article 46, paragraph 1, of the Convention to abide to by all final judgments in cases to which it is 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 its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment, including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)55 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Action report

A.M.M. v. Romania

(Application No. 2151/10, judgment of 14 February 2012, final on 14 May 2012)

I. Introductory summary of the case

This case concerns a breach of the applicant's right to respect for private and family life following the dismissal of his request for establishing paternity by a decision of 11 October 2004 rendered by the Bucharest Court of Appeal (violation of Article 8).

In the instant case, the applicant was a child born out of wedlock who sought, by means of judicial proceedings, to establish who his natural father was. The paternity proceedings which he instituted were intended to determine his legal relationship with Z. through the establishment of the biological truth.

Therefore, the Court found that there was a direct link between the establishment of paternity and the applicant's private life and thus considered that the case fell within the ambit of Article 8.

The Court found a violation of Article 8 of the Convention on the following grounds: the child protection authority, as a key organ in safeguarding the children’s interests, was not present at any of the hearings held by the domestic courts pending the paternity procedure nor were the applicant and his mother and, afterwards, his grandmother (in their capacity of the applicant’s representatives) assisted by a lawyer before the courts.

At the same time, the courts did not carry out their active role as to undertake any measures in order to summon the child protection authority, or to secure the presence of a representative of the Public Ministry at the hearings or the appointment of an ex officio lawyer to represent the applicant during the trial. Likewise, the courts took no steps to contact the witnesses indicated by the child’s mother, after the first attempt to do so failed and drew no inference from the refusal of the putative father to undergo a paternity test.

The European Court concluded that the domestic decision did not pursue the best interests of the child in its finding and the paternity proceedings carried out before the domestic courts did not strike a fair balance between the right of the applicant to have the uncertainty as to his personal identity eliminated without unnecessary delay and that of his putative father not to undergo medical tests.

II. As to the individual measures

Article 322 § 9 of the Code of Civil Procedure allows for the reopening of the proceedings following a European Court’s judgment finding a violation of the Convention.

The Court held that the State was to pay the applicant the amount of 7 000 EUR for the moral prejudice.

The deadline for payment of the sum as established by the Court’s judgment was 14 August 2012.

On 16 August 2012, the judgment was executed by payment of 31.630,20 lei (7 000 EUR) on behalf of the representative of the applicant, Ms Petcu Alexandra.

The two days of delay related to the payment of the amount was due to the applicant’s representative belated transmitting of the required documents necessary for effectuating the payment.

Consequently, the government considers that no other individual measure is necessary.

III. As regards the general measures

The government emphasises that the violation of Article 8 of the Convention, found in the instant case, sprang from the very infringement of already existing regulations in the Romanian legal system and the non-compliance with their mandatory character.

Thus, the issue posed in this case is a punctual one, namely the non-compliance of the domestic courts with some existing legal procedural regulations, and not their absence in Romanian law.

The aforementioned aspects render the peculiar character of this case, which should not lead to the conclusion that a widespread problem exists at the entire national level.

To conclude, as the Court itself held in the judgment at issue, unlike in the case file Mikulić against Croatia , where it held that Article 8 of the Convention was breached on account that in the Croatian system there were no means of compelling the alleged father to comply with a court order for DNA tests to be carried out, in the judgment rendered in case A.M.M. against Romania , the Court found a violation of Article 8 of the Convention as the domestic procedure did not comply with some requisite conditions, as they were enumerated above at point I.

In the light of this ruling, the government points out that at the time of the facts occurred in the case, in the Romanian legal system, the Family Code of Romania was in force and, through Articles 56 – 61, the paternity proceedings were regulated.

At present, the procedure requirements of the paternity proceedings are enhanced by the following acts which contribute to the strengthening of the role given by the Romanian legislature to the principle of the child’s protection:

- Articles 424 – 428 of the New Civil Code of Romania, which regulate the action to establish paternity of the child born out of wedlock;

- Article 45 § 1 of the Civil Code of Procedure corroborated with Article 131 § 1 of the Romanian Constitution which encompasses the tantamount role of the Public Ministry by their representative – the prosecutors, in the protection of minors pending the judicial proceedings;

- the Child Protection Act No. 272/2004.

The government would like to underline that the domestic rules of procedure do not prevent the courts from taking into consideration the developments occurred pending trial when ruling on a case.

In the light of the above, the government considers that the publication and the dissemination of the European Court’s judgment are sufficient to prevent similar violations in the future.

To that end, the translation into Romanian of the European Court’s judgment in the present case was published on the site of the Superior Council of Magistracy ( http://www.csm1909.ro/csm/index.php?cmd=9503 ) and a summary of the judgment was published on the public internet site allotted to the ECHR judgments ( http://www.hotara r icedo.ro/index.php/revistajurisclasorcedo ).

Moreover, the judgment was disseminated to the Romanian Courts of Appeal.

As a result of these measures, the Romanian judicial authorities are now aware of the Convention requirements resulting from the present judgment.

The government concludes that no other general measures are necessary in this case.