Resolution CM/ResDH(2013)68 3 cases (Lungoci, Caracas and Bacso) against Romania Execution of the judgment of the European Court of Human Rights

(Application No. 62710/00, judgment of 26 January 2006, final on 26 April 2006 Application No. 78037/01, judgment of 29 June 2006, final on 11 December 2006 Application No. 9293/03, judgment of 4 November 2008, final on 4 February 2009)

(Adopted by the Committee of Ministers on 30 April 2013 at the 1169th 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 the above 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 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 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)155E );

Having satisfied itself that no further individual measure is required, apart from the payment of the just satisfaction;

Having noted that the general measures concerning the violation of Article 6, paragraph 1 of the Convention have been adopted and that the issues concerning the violation of Article 1 of Protocol No. 1 are examined at present within the framework of the supervision of the execution of the group of cases Străin and others against Romania (judgment of 21 July 2005),

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

Cases Nos. 62710/00 Lungoci v. Romania, 78037/01 Caracas v. Romania

and 9293/03 Bacso v. Romania

I. Introductory case summary

These cases concern the violation of the applicants ’ right of access to a court due to the dismissal, between 1998 and 2002, of their claims on the ground that they were identical with claims already determined in previous proceedings (violation of Article 6§1).

According to the findings of the Court, the applicants had been deprived of a clear and effective right of access to a court, due to the fact that they had been given access to a court solely for the purposes of seeing their action declared inadmissible through the operation of the res judicata provisions. Thus, in the Lungoci and Caracas cases, national courts failed to take into account new facts which had occurred after the original decisions, while in the Bacso case, the court disregarded the fact that the claim which formed the object of the second action had not been examined on the merits in the first set of proceedings.

The Bacso case also concerns the failure to restore nationalised property to the applicants as a result of the sale of the property by the state to third parties and the refusal of the courts to examine the applicants ’ action to set aside the contract of sale (violation of Article 1 of Protocol No. 1).

II. Individual measures

The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage. The sums were paid to the applicants within the time-limits imposed by the Court (in the Lungoci and Bacso cases) or with default interest (in the Caracas case).

Article 322 § 2 of the Code of Civil Procedure provides the possibility to reopen civil proceedings in cases in which the European Court has found a violation. As regards the Bacso case, the Court noted that, in subsequent proceedings, the action to establish title lodged by the applicants against the third parties who bought the property from the State was successful.

Consequently, the government considers that no further measure appears necessary.

III. General measures

1. Regarding the violation of Article 6 § 1 of the Convention, the government notes firstly that these cases do not concern a systemic or general problem in the Romanian judiciary system. These cases are of particular nature as they represent an isolated wrong interpretation of the provisions of Article 1201 of the Romanian Civil Code in force at the time on res judicata.

Aware of the fact that res judicata is intended to strike a balance between competing interests and that it has as primary purpose to assure an efficient judicial system, Romanian courts dismiss a second suit on such a motion only if the trial is identical to the first trial in the following manner: (1) identical parties, (2) identical theories of recovery, and (3) identical demands in both trials.

The judgments in the Lungoci and Caracas cases have been sent to the Superior Council of Magistracy, with a view to bringing them to the attention of all domestic courts and public prosecutors ’ offices. They were published in the Official Journal and on the Internet site of the High Court of Cassation and Justice () and of the Superior Council of Magistracy.

After their publication in the Official Journal, summaries and translations of these judgments were published by various specialised internet sites, either public, e.g. Romanian Government ’ s site: http://w w w.gov.ro (Lungoci v. Romania), or private, e.g. www.avocatne t .ro , http://retroceda r i.com , http://www.infolegal.r o , http://www.europ a info.ro (Lungoci v. Romania) http://w w w.eur o avocatura.ro , http://www.drepto n line.ro (Caracas v. Romania).

Summaries of the three cases above were also published on http://hotararicedo . ro , a vast internet data base of all Court ’ s judgments accessible to all free of charge.

As the above-mentioned cases concern an isolated interpretation of this principle, the government considers that the translation and dissemination of the Court ’ s judgments are sufficient for preventing similar violations.

2. The general measures needed to prevent violations of Article 1 of Protocol No. 1 similar to the one found by the Court in the Bacso case are examined in the context of the Strain and others group of cases.

IV. Conclusion

Having regard to the foregoing considerations, the government invites the Committee of Ministers to close the examination of these cases.