Resolution CM/ ResDH (201 3 ) 42 [1]

Didu against Romania

Execution of the judgment of the European Court of Human Rights

(Application No. 34814/02, judgment of 14 April 2009, final on 14 September 2009)

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 ( 2012)821E ) ;

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 and noting that no award of just satisfaction was made by the Court in the present case (see document DH-DD(2 0 12)821E );

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

Didu v. Romania

(Application No. 34814/02, judgment of 14 April 2009, final on 14 September 2009)

The case concerns a breach of the applicant ’ s presumption of innocence in criminal proceedings brought against him for forgery, use of forged documents and assault (violation of Article 6, §2).

On 12 March 2002, the Pitesti Court of Appeal, acting as last-instance court, overturned the lower courts ’ verdicts of acquittal without hearing evidence in person from the applicant and the witnesses, and found that the applicant had committed the offences he was charged with. The applicant was not pronounced formally guilty, since the statute of limitation in respect of the offences in question had expired.

The European Court found that the Court of Appeal had not limited itself to describing a state of suspicion or a probability, but found that the facts, as presented by the prosecution, were established, without haven taken direct evidence from the applicant and the witnesses. Moreover, the Court of Appeal ordered the applicant to pay the legal costs and expenses and its finding that the applicant had committed the offences could have played a decisive role in a civil action for damages brought by the injured party. This was found by the European Court to be in breach of the applicant ’ s presumption of innocence.

The case further concerns the excessive length of the impugned criminal proceedings which lasted for six years and five months for three levels of jurisdiction (October 1995 – March 2002) (violation of Article 6, §1).

The applicant did not present a claim for just satisfaction.

In July 2009, based the European Court ’ s judgment, the applicant filed a request for reopening of the impugned proceedings under Article 408 1 of the Code of Criminal Proceedings (“CCP”).The High Court of Cassation and Justice upheld his request and referred the case for retrial to the Pitesti Court of Appeal. On 14 July 2011, the Pitesti Court of Appeal upheld the applicant ’ s acquittal by the lower courts as regards two out of three charges (forgery and use of forged documents) and reversed the lower courts ’ verdict only as regards the charge of assault.

The Pitesti Court of Appeal heard direct evidence from the applicant and the witnesses and found that there were no further requests for evidence from the parties to the trial. Then, it assessed the evidence taken during the criminal proceedings as a whole and decided that the applicant was not guilty of forgery and use of forged documents but that he had however committed the offence of assault. In respect this offence, the Court of Appeal terminated the proceedings against the applicant due to the expiry of the statute of limitation. Having regard to this outcome, it further ordered the applicant to pay legal costs and expenses, pursuant to Article 191, §2 of the CCP.

The Government considers that the violation of the applicant ’ s presumption of innocence in this case stemmed from the fact that in its decision of 12 March 2002, the Pitesti Court of Appeal reached the conclusion that the applicant had committed the offences he was charged with and reversed the lower courts ’ verdicts, without taking direct evidence from the applicant and the witnesses previously heard.

The Government is therefore of the opinion that the proceedings upon retrial complied with the requirements of Article 6, §2 as they result from the European Court ’ s judgment in the present case and that no further individual measure is required in respect of this violation.

At the time the European Court gave its decision, the impugned proceedings had been terminated. The retrial proceedings brought by the applicant were conducted speedily (July 2009 – July 2011), and the case is now closed. Bearing this in mind, the Government is of the opinion that no further individual measure is necessary in this respect.

As indicated above, the Government considers that the violation of Article 6, §2 in this cases stems from the failure of the Pitesti Court of Appeal to take direct evidence from the applicant and the witnesses before it reversed the lower courts ’ verdicts of acquittal, stated that the applicant was guilty of the offences he had been charged with and ordered him to pay legal costs and expenses.

It is the Government ’ s view that the violation in this case does not stem from inadequate legislation. Thus, under Article 385 16 of the CCP, in force at the material time, if the appellate court withholds a case for a retrial , it must schedule a full hearing and decide on the evidence to be taken at the new hearing. Moreover, Article 385 19 of the CCP provides that the retrial shall be conducted in accordance with the rules governing the trial at first instance, where taking evidence from the accused and the witnesses in person is in principle compulsory.

Moreover, as regards the failure of the Pitesti Court of Appeal to hear evidence from the applicant in person, the Government refers to the measures that had been taken to avoid similar violations following the judgment in the case of Constantinescu v. Romania , as set out in CM/ ResDH (2011)29 (in particular the amendments brought to the provisions of the CCP regulating the examination of the accused persons by Law No. 356/2006).

The Government considers that, in addition to the abovementioned amendments, measures aiming at raising awareness of the requirements resulting from the European Court ’ s judgment in the instant case could ensure that the domestic courts will henceforth take such requirements into account when construing and applying the abovementioned procedural rules.

To this end, the translation into Romanian of the European Court ’ s judgment was published in Official Journal No. 740 of 30 October 2010. In addition, the judgment was published on the websites of the Superior Council of Magistracy ( www.csm 1 909.ro ) and the High Court of Cassation and Justice ( www . scj.ro ). Furthermore, a summary of its findings was published in the Reports of the European Court ’ s judgments against Romania between 1994 – 2009, together with an analysis of its consequences and an identification of the responsible authorities. The judgment was also sent to the Superior Council of Magistracy for dissemination to all domestic courts.

The Government considers that the general measures taken are sufficient to prevent similar violations in the future.

The issues related to the length of criminal proceedings in Romania are examined by the Committee of Ministers in 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.