Resolution CM/ ResDH (2012) 219 [1] Sissanis and Rosengren against Romania

Execution of the judgments of the European Court of Human Rights

(Applications Nos. 23468/02 and 70786/01, judgments of 25 January 2007 and 24 April 2008, final on 25 April 2007 and 24 July 2008)

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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern: the impossibility to leave the country as a result of an entry arbitrarily made in the passport, the lengthy prohibition on leaving the city and the excessive length of criminal proceedings (violations of article 2 of Protocol no. 4 and article 6, paragraph 1 of the Convention) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2012) 219

Information on the measures taken to comply with the judgments in the cases of Sissanis and Rosengren against Romania

Introductory case summary

1) Sissanis

The case concerns the violation of the freedom of movement of the applicant, a Greek national, due to a stamp placed in his passport in the course of criminal proceedings against him which forbade him to leave Romania between 1998 and 2004 (violation of Article 2 of Protocol No 4).

The European Court found that this restriction was not provided by law, since Article 27 of Law No. 25/1969 on the status of foreigners, upon which it was based, was vague in that it neither identified the authorities empowered to impose such a measure nor defined with sufficient precision the reasons for imposing it. The European Court also considered that the procedure for applying the measure did not provide sufficient safeguards against abuse on the part of the authorities, since Law No. 25/1969 provided no review procedure, either at the time of imposition or af terwards (§71 of the judgment).

Finally, Article 27 of Law No. 25/1969 had been declared unconstitutional on 11/04/2001, thus the order forbidding the applicant to leave the country had been in breach of Romanian law at least from that date onwards.

2) Rosengren

The case concerns a violation of the applicant ’ s freedom of movement due to a prohibition on leaving the city imposed on him on 19/12/1995 in the framework of criminal proceedings against him (violation o f Article 2 of Protocol No. 4).

The European Court noted that the prohibition on leaving the city was in accordance with the law, namely the Code of Criminal Procedure and pursued legitimate aims. However, a fair balance between the demands of the general interest and the applicant ’ s rights had not been struck as the prohibition lasted for more than 6 years and the domestic courts did not give relevant reasons for taking or prolonging the measure, although the applicant repeatedly challenged it.

The case also concerns the excessive length of criminal proceedings (9 years for three levels of jurisdiction) (violation of Art. 6§1).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

Sissanis (23468/02)

-

7 000 EUR

12 000 EUR

Paid on 24/07/2007

Rosengren (70786/01)

-

3 000 EUR

-

3 000 EUR

Paid on 11/11/2008

(the applicant waived interests in view of small amount)

b) Individual measures

In the Sissanis case, the stamp in question was removed from the applicant ’ s passport in 2004.

In the Rosengren case, the criminal proceedings in question ended and the prohibition on leaving the city was lifted in 2002.

In both cases, the European Court awarded the applicants just satisfaction in respect of non-pecuniary damage.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

1) Prohibition on leaving the country or the city

The regulation in force:

Law No. 25/1969 was abrogated in 2001. Subsequently, Emergency Ordinance No. 194 on the status of foreigners was adopted in 2002 and approved in 2003. It was amended on several occasions and republished in the Official Journal on 5/06/2008. At present, the prohibition on leaving Romania by foreigners may be applied under two circumstances: 1) the foreigner is accused in criminal proceedings and the competent magistrate (judge or prosecutor) orders the prohibition on leaving the country or the city; 2) the foreigner was sentenced by a final court decision and has to serve a prison sentence. In all cases the reasons that have led to the decision shall be specified and, if appropriate, accompanied by supporting documents.

The procedure for applying the preventive measures forbidding an individual to le ave the country or the city is regulated by the Code of Criminal Procedure, as amended in 2003 and 2006. According to the relevant provisions of the Code or Criminal Procedure, the decision imposing the prohibition on leaving the country or the city must state the concrete grounds which make it necessary.

During the criminal investigation, the prohibition on leaving the country or the city may be ordered by the prosecutor or the judge and shall not exceed 30 days. A copy of the prosecutor ’ s order or of the interim decision imposing the measure shall be notified to the accused on the same day.

The measure may be prolonged on the basis of a motivated decision. Each prolongation may not exceed 30 days, while the total length of the prohibition during the criminal investigation shall not exceed one year. In exceptional cases, when the punishment provided for by the law is life imprisonment or imprisonment for 10 years or more, the maximum length is two years. The prosecutor ’ s order imposing the prohibition on leaving the country or the city, as well as the orders of prolongation of these measures may be challenged by the accused, within 3 days, before the court competent to decide on the merits of the case in first instance proceedings.

During the trial, the prohibition on leaving the country or the city may only be ordered by a motivated decision of the competent court, which may be appealed before the superior court.

The measure may be revoked either ex officio or upon the request of the accused.

The judicial practice:

The authorities submitted copies of prosecutor ’ s orders and interim decisions delivered between 2006 and 2008, applying the provisions of the Code of Criminal Procedure. Thus, out of 67 such examples of judicial practice, 27 concerned the prohibition on leaving the country, while 40 concerned the prohibition on leaving the city. In 26 cases, the courts imposed the prohibition on leaving the city, while in other 8, they imposed the prohibition on leaving the country. In 6 cases, the courts dismissed the requests for prolongation of the prohibition on leaving the country or the city. Three requests for prolongation of the prohibition on leaving the country have been granted. In 18 cases, the courts granted the request of the accused for replacing the detention on remand with the prohibition on leaving the country or the city, while in 3 cases they granted the request for replacing the prohibition on leaving the city with the prohibition on leaving the country. In two cases, the requests for revocation of the prohibition on leaving the country have been granted. In one case, the request for replacement of prohibition on leaving the city with the prohibition on leaving the country has been dismissed.

In most cases, the length of the measures imposed was of 29 or 30 days.

Publication and dissemination:

The judgments of the European Court have been sent to the Superior Council of Magistracy with a view to bringing them to the attention of all the domestic courts and prosecutor offices and have also been published in the Official Journal. The judgment in the Sissanis case has also been sent to the Ministry of Home Affairs, in order to inform its subordinated authorities.

The conclusion of the authorities:

The authorities consider that the current regulation and judicial practice concerning the prohibition on leaving the country or the city comply with the requirements of the Court ’ s case-law.

2) Excessive length of criminal proceedings

This aspect is being examined in the context of the Stoianova and Nedelcu group of cases.

III. Conclusions of the respondent state

The government considers that no other individual measure is necessary in these cases, apart from the payment of the just satisfaction awarded by the Court and that the general measures taken will prevent violations similar to that relating to the applicants ’ freedom of movement. The government will continue to make all the necessary efforts, within the framework of the supervision of the Committee of the Stoianova and Nedelcu group of cases , in respect of the violation relating to the excessive length of criminal proceedings found by the Court in the Rosengren case with a view to avoiding similar violations. The government concludes that in the present case Romania has complied with its obligations under Article 46, paragraph 1, of the Convention.

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