Resolution CM/ ResDH (2013) 41 [1]

Reiner and o thers against Romania

Execution of the judgment of the European Court of Human Rights

(Application No. 1505/02, judgment of 27 September 2007, final on 27 December 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 final judgment transmitted by the Court to the Committee in the above case and to the violations established ( see document DH-DD(2 0 12)822E );

Recalling that 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 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 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 D H -DD(2012)822E );

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

DECLARES 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 thereof.

Action report

Reiner and Others v. Romania

(Application no. 1505/02, judgment of 27 September 2007,

final on 27 December 2007)

The case concerns the unfairness of criminal proceedings which resulted in the applicants ’ conviction in 2001 for assault and battery causing unintentional death of a police officer during the anti-government protests in December 1989 (violation of Article 6, §3(d) in respect of three applicants).

The applicants were convicted based on the statements that several witnesses gave during the police investigation, which were later read in court. In this respect, the European Court noted that when most of these witnesses failed to appear in court, the first-instance court found that their hearing was no longer necessary, ordered for their depositions to be read and took them into account when convicting the applicants. Only three witnesses were heard in court and none of them incriminated the applicants in their statements (§27 of the judgment). In these circumstances, the European Court found that the convictions were based in a decisive manner on witness evidence taken by the prosecutor, in the absence of a proper opportunity for the defence to question such witnesses during the pre-trial investigations or during the court proceedings.

The European Court further noted that throughout the trial, the domestic courts dismissed without proper justification the requests from the defence to take direct witness evidence and to allow the defence to cross-examine the witnesses in question. As regards one of the witnesses heard in court, who changed his previous statements to the prosecutor incriminating some of the applicants, the European Court found that the domestic courts failed to explain why they decided to give precedence to such statements, in the detriment of those exonerating the applicants.

The case also concerns the length of the aforementioned criminal proceedings (1991 – 2001, out of which 6 years and nine months fell under the Court ’ s jurisdiction ratione temporis (violation of Article 6, §1 in respect of three of the applicants).

The European Court awarded all the applicants just satisfaction for non-pecuniary damages and costs and expenses, which was paid to the applicants on 25 April 2008.

The Government would recall from the outset that this violation only concerned the applicants Octavian Paisz , Anton Reiner and Ioan Konrad .

Based on the European Court ’ s judgment, the applicant Octavian Paisz requested the reopening of the impugned proceedings under Article 408¹ of the Code of Criminal Procedure (hereinafter “the CPP”). On 29 September 2008, the High Court of Cassation and Justice upheld his request and the case was referred for retrial to the Bucharest County Court .

The applicant Octavian Paisz died on 28 September 2009, during retrial in first instance.

The Bucharest County Court took steps in order to remedy the shortcomings of the initial trial identified by the European Court . To this end, it summoned the defendants, the civil parties and the witnesses questioned during the pre-trial investigations with regard to the participation of the defendant Octavian Paisz . Additionally, by means of letters rogatory , the court requested the Hungarian Ministry of Justice to find and question those of witnesses who, in the meantime, had changed their residence and settled in Hungary . Following this request, one witness was questioned by the Hungarian authorities, and her statement was read in court.

The Bucharest County Court gave its verdict on 15 February 2011. In its judgment, the court noted that the majority of the witnesses summoned could not be heard during retrial due to various reasons (death, unknown whereabouts etc.), so their previous statements were read in court, pursuant to Article 327, §3 of the CPP.

Relying on the evidence adduced during the pre-trial investigations, the initial trial and the retrial proceedings, the Bucharest County Court held that the liability of the defendant, Mr. Octavian Paisz , of the charges brought against him “had been correctly established”. However, the court noted that it could not sentence Mr. Paisz , since the offence in question had become statute-barred and he had died during the retrial proceedings.

The court further upheld the previous verdicts as regards the damages that were to be paid to the victim ’ s family and held the applicant ’ s heir liable thereof. The trial is now pending on appeal, at the request of the applicant ’ s heirs, as regards the civil aspects of the case.

The Government are of the opinion that the right to examine and to cross-examine witnesses in court, guaranteed by Article 6 § 3(d), which was disregarded in the impugned proceedings, can be exercised in a meaningful and effective manner only in the presence of the accused.

In the light of the above, considering namely the applicant ’ s demise, the nature of the right disregarded and the specific circumstances of this case, the Government consider that no further individual measures are required in this case.

b. The situation of Mr. Reiner and Mr. Konrad

The Government observe that Mr. Ioan Konrad and the heir of the applicant Anton Reiner, who died on 25 November 2006, did not express their interest in lodging a request for the reopening of the impugned proceedings, under Article 408 1 of the CPP.

The Government would recall that the violation found on this account concerns only Mr. Octavian Paisz , Mr. Dezideriu Hejja and Mr. Ioan Konrad .

In respect of Mr. Hejja and Mr. Konrad , the Government consider that since the impugned proceedings are closed, no further individual measure is necessary.

In respect of Mr. Paisz , the Government express a similar opinion that no further individual measures are required, since the applicant died and the proceedings were therefore discontinued under their criminal limb. As mentioned above, the proceedings continue solely as regards the civil aspects of the case, due to the fact that under the national law, the applicant ’ s heirs could be held liable in tort for the damages caused to the victim ’ s family.

a . Violation of Article 6, paragraph 3(d)

The Government recall that in the present case, upon the witnesses ’ failure to appear in court, the domestic courts considered that their hearing was no longer necessary and that the requests for their hearing sought to stall the proceedings (§28 of the judgment). Without further reasons, they then applied Art. 327, §3 of the CPP, considered the hearing of such witnesses to be no longer possible, ordered their previous statements to be read in court and found the applicants guilty based on such statements, without allowing them the opportunity to question said witnesses.

The relevant provisions of the CPP (as in force at the material time and presently) require in principle that the witnesses be heard in court and that the defence is thus given the possibility to cross-examine them (Art. 327, §1). When the hearing of a witness is no longer possible, Art. 327, §3 provides that the court shall order for the statement he gave during the pre-trial investigation to be read in court and it shall take it into account for the determination of the case.

Art. 329, §3 further provides that is during the proceedings in court, it appears that evidence that was previously allowed is no longer useful, the court, having heard the prosecution and the parties, can decide not to take such evidence.

The European Court also found that the domestic courts failed to give proper reasons when dismissing the defence ’ s requests for witness evidence to be taken in court and when giving precedence to the statement a witness had made before the prosecution in the detriment of the one given in court, which exonerated the applicant.

In this respect, it should be noted that in accordance with Art. 356, §1(c) of the CPP, a court judgment must contain in particular an analysis of the evidence taken into account for the determination of the criminal aspects of the case and also of the evidence which was set aside by the court, together with an analysis of any factual elements that support the court ’ s verdict.

Having regard to the European Court ’ s findings in the present case, it would appear that the shortcomings identified in the European Court ’ s judgment are a matter of application of the relevant provisions of the CCP and do not call into question the existing legal framework.

The Government therefore consider that awareness-raising measures are capable of preventing in the future similar violations of the Convention.

To this end, the judgment of the European Court was translated into Romanian and published in the Official Journal and on the respective websites of the Superior Council of Magistracy at www.csm1 9 09.ro and of the High Court of Cassation and Justice at www. s cj.ro .

It should be further noted that the Convention and the European Court ’ s case-law make the object of specific programmes for the initial and continuing training of the Romanian magistrates (judges and prosecutors alike) organised by the National Magistracy Institute.

The Government considered the need of further awareness-raising measures, to ensure that the provisions of the CPP which grant the courts discretion in matters related to the taking of witness evidence will be construed and applied in the light of the requirements of a fair trial resulting from this judgment. In this respect, the Government ’ s Agent before the European Court sent to the Superior Council of Magistracy the judgment and a summary thereof together with an analysis of the European Court ’ s findings and of the origin of the violation in this case for dissemination to the national courts and prosecutor ’ s offices and for inclusion in the training programmes available to the magistrates.

b. Violation of Article 6, paragraph 1 (length of proceedings)

It should be noted that the European Court found similar violations in a number of other cases against Romania , which are currently supervised by the Committee of Ministers within the framework of the Stoianova and Nedelcu group of cases (no. 77517/01, judgment of 04/08/2005, final on 04/11/2005).

Having regard to the above, the Government considers that no other individual or general measures are to be taken in the present case and that Romania complied with the obligations imposed under Article 46, paragraph 1 of the Convention. The Government therefore invites the Committee of Ministers to close the examination of this case.

[1] Adopted by the Committee of Ministers on 7 March 2013 at the 1164th meeting of the Ministers’ Deputies.