Resolution CM/ ResDH (2012) 215 [1] Geleri against Romania

Execution of the judgment of the European Court of Human Rights

(Application No. 33118/05, judgment of 15 February 2011, final on 15 September 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 violations established (see document DH-DD(2 0 12)203E );

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)203E );

Having satisfied itself that, in view of the information submitted by the authorities, no further individual measure is required, apart from the payment of the just satisfaction (see document DH-DD(2012)203);

Having noted that the issues concerning the general measures are examined at present within the framework of the supervision of the execution of the group of cases Lupsa against Romania ( judgment of 8 June 2006);

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

Geleri v. Romania

(Application no.  33118/05, judgment of 15 February 2011, final on 15 September 2011)

I. Introductory summary of the case

The case concerns the violation of Article 8 of the Convention on account of the unjustified interference with the applicant's private life and family life entailed by the measures of expulsion and interdiction to enter the Romanian territory for 10 years imposed by the national authorities for national security reasons which were not prescribed by a law in accordance with the requirements of the Convention. Also, the European Court found the violation of Article 1 of the Protocol No. 7 additional to the Convention, as the procedural guarantees in case of expulsion were not followed by the authorities, the national courts confining themselves to perform a formal examination of the case in absence of factual information.

II. Individual measures

The European Court awarded the applicant just satisfaction in amount of 13 000 EUR for pecuniary and non-pecuniary damages and 6 300 EUR for costs and expenses.

The applicant's representative did not cooperate with the Romanian Government by transmitting the information needed to make the payment, namely, the applicant's account number. In this respect, the Government would like to mention that they required the information necessary for the execution of the European Court's judgment sending the letter to the applicant's representative as indicated by the Court, namely M. Fikri Ergen , by post mail to the address Rue Royale 229, 1210 Bruxelles , Belgique , and by fax to the number 003222199417, on 7 October 2011 and 27 October 2011. The Government notes that the addressee received the letters, since they were not returned on account of the recipient not having been found or identified.

The Government would like to add that they verified the aforementioned address and fax number and it corresponded to the contact information of the applicant's representative (http://www.infobel.com/fr/belgium/ergen/saintjosse_ten_noode/022199417/businessdetails.aspx).

Also, in spite of the Government's efforts, the applicant could not be found at the address indicated by him during the proceedings. Thus, on 26 October 2011 and 27 October 2011, the Government sent two letters to the following addresses: Chisinau, B. Decebal no. 49/14, apt.2, Rep. Moldova (the letter returned for unidentified addressee) and Chisinau, Str. Tighina , no. 49/4, Rep. Moldova.

Accordingly, pursuing their obligation to abide by the judgment, the Romanian Government placed the sum at the applicant's disposal in a bank account within the time­limit laid down by the European Court .

Subsequently, the Department for the Execution of Judgments of ECHR informed the Government of the letter of 9 November 2011 sent to them by the applicant's representative. It resulted from this letter that the applicant's lawyer received the Government's request for information regarding the bank account of the applicant or his legal representative, dated 27 October 2011.

Therefore, on 5 January 2012, the Government informed the applicant's representative of the placement of the sum at the applicant's disposal in a bank account at CEC BANK SA Bucharest and of the possibility of collecting the payment receipts from the Government Agent or of receiving them by post mail, if the applicant or his legal representative expressed this intention

With regard to the measures ordered against the applicant by the national authorities, declaring him to be an undesirable alien, expelling him and denying him access to Romanian territory, the Government considers that the applicant could ask for a re-opening of the internal procedure by lodging a request for revision of the judgment no. 380 of 3 March 2005 of the Bucharest Court of Appeal, on the basis of the Article 322 § 9 of the Code of Civil Procedure

The request for revision could be registered with the Bucharest Court of Appeal within three months from the date of publication of the European Court's judgment in the Romanian Official Journal - Part I, in accordance with Article 324 § 3 of the Code of Civil Procedure.

So far, the applicant did not ask the Government to publish the European Court 's judgment, pursuant to Article 11 of the Government Ordinance no. 94/1999, on the participation of Romania in the proceedings in front of the European Court of Human Rights and the Committee of Ministers, as amended.

The Code of Civil Procedure and the Government Ordinance no. 94/1999 do not impose a time-limit for the publication of a judgment rendered by the European Court . Hence, the applicant is entitled to require the publication of the judgment without being restrained by a fixed term and then, within three months from the publication, to file the request for revision.

The applicant could lodge himself the request for revision. If he encountered difficulties on account of his absence in Romania , he could contact his legal representative to carry out the internal procedure in his interest.

The Government point out that the applicant's request for revision would be admissible, as his previous requests for revision were based on different factual and legal issues. The revision procedure does not impede an applicant from filing subsequent requests for revision for different grounds, if the time-limit requirement is observed.

Further, based on the European Court's judgment, the Bucharest Court of Appeal could re-trial the case having at their disposal the information regarding the facts reproached to the applicant and observing the procedural guarantees instituted by Article 1 of the Protocol No. 7 additional to the Convention, which are reflected in the Emergency Ordinance No. 194/2002, on the aliens' status in Romania, subsequently republished on 5 June 2008 and amended by the Law no. 157/11.07.2011.

The Government assess that the aforementioned internal procedure represents an accessible and effective remedy that could be used by the applicant to obtain the annulment of the prosecutor's decision of declaring him undesirable and banning his presence on the Romanian territory for 10 years, in case the factual information adduced to the domestic case file substantiate his claim.

As regards the possibility for the applicant of benefitting from the procedure described above, the Government would like to point out that they could not take further steps with a view to the expulsion measure, since they could not contact the applicant until this moment and the applicant's representative provided no information on his present location. The Government reminds that no interdiction of visiting the applicant at his present residence was ordered for his family members and previously they could go and visit the applicant in Rep. Moldova. However, the Government reiterates that, if his family still lives in Romania , they are entitled to appoint a legal representative for the purpose of pursuing the internal procedure for the annulment of the measures impeding him to enter the Romanian territory.

Ill. General measures

The Government reiterates their submissions sent to the Committee of Ministers in the case Lupsa v. Romania, judgment of 8 June 2006, and the case Kaya v. Romania, judgment of 12 October 2006, in which the Court found a violation of Article 8 of the Convention and Article 1 of the Protocol No. 7 additional to the Convention, for similar grounds.

In addition, the Court's judgment was widely disseminated, as it was listed on the website of the Superior Council of Magistracy at www.csm1909.ro and it could be studied by any interested person.

The Government considers that no other general measures are required to avoid future violation of the Convention.

IV. Conclusions

Having regard to the aforementioned submissions, the Government considers that no other individual or general measures are to be taken and they conclude that they complied with the obligation imposed by Article 46 § 1 of the Convention, kindly asking to be decided the closure of the execution proceedings of the Court's judgment of 15 February 2011 in the case Geleri v. Romania.

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