Resolution CM/ ResDH (2012) 210 [1] Adrian Constantin against Romania

Execution of the judgment of the European Court of Human Rights

(Application No. 21175/03, judgment of 12 April 2011, final on 12 July 2011)

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 (see document DH-DD( 2 012)236E );

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 DH-DD(2 0 12)236E );

Having satisfied itself that all the measures required by Article 46§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

Adrian Constantin v. Romania

(Application no. 21175/03, judgment of 12 April 2011, final on 12 July 2011 )

I. Introductory summary of the case

This case concerns the unfairness of criminal proceedings which ended with the applicant ’ s conviction in 2002 to a suspended prison sentence for negligence in the performance of his duties, as the applicant ’ s rights of defence were not fully observed when the Supreme Court of Justice, sitting as last-instance court, changed during the deliberations the legal classification of the acts the applicant was charged with.

The European Court found on these grounds a breach of the applicant ’ s right to be informed in detail of the nature and cause of the accusation against him and to be allowed adequate time and facilities for the preparation of his defence (violation of Article 6, paragraphs 1 and 3 (a) and (b)).

II. As to the individual measures

The Government would like to point out that the amount awarded by the Court in its judgment of 12 April 2011 for just satisfaction was transferred to the applicant ’ s bank account on 15 September 2011.

The Government would further recall that under Article 408¹ of the Code of Criminal Procedure the applicant can request the reopening of the impugned criminal proceedings within one year as of the date the European Court ’ s judgment became final.

The Romanian authorities are not aware of any request for reopening having been lodged by the applicant under the aforesaid provisions.

In these circumstances, the Government considers that no other individual measures are necessary in this case.

III. As to the general measures

A. Publication and dissemination

The Romanian version of the judgment given by the European Court in this case is available on the web site of the Superior Council of Magistracy (www.csm1909.ro).

Moreover, the European Court ’ s case-law is regularly presented and discussed during the initial and continuing training of the magistrates.

B. Other general measures

The Government considers no other general measures are required for the execution of this judgment, as the violation in this case did not stem from deficiencies in the legal framework governing the proceedings before the last-instance courts.

Indeed, as the Court itself noted in its judgment (paragraph 21), Article 334 of the Code of Criminal Procedure allows for the legal reclassification of the facts by the appellate courts, only subject to specific safeguards for the rights of the defence .

Under this provision, the appellate courts are required to ask the prosecution and the defence to submit their observations on the envisaged change in the legal classification and to inform the accused that the trial can be postponed to a later date, should they need time for the preparation of their defence .

The Government would like to emphasize that situation at issue in this case is unlikely to reoccur, as the Romanian judicial authorities are well aware of the European Court ’ s case-law and of their obligation to construe and apply the domestic law in a manner that is compatible with the requirements thereof. Hence, the general measures taken will prevent similar violations of Article 6, paragraphs 1 and 3 (a) and (b).

IV. Conclusions

Having regard to the foregoing considerations, the Government invites the Committee of Ministers to close the examination of the case of Adrian Constantin v. Romania .

[1] Adopted by the Committee of Ministers on 6 December 2012 at the 11 57 th Meeting of the Ministers’ Deputies .