Resolution CM/ ResDH (2011)250 [1]

Execution of the judgment of the European Court of Human Rights

Dragotoniu and Militaru-Pidhorni against Romania

(Applications Nos. 77193/01 and 77196/01, judgment of 24 May 2007,

final on 24 August 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 judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the criminal conviction of the applicants for acts which did not constitute a criminal offence under the national law in force at the material time (violation of Article 7, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

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 applicants the just satisfaction provided in the judgment (see details in Appendix);

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its 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

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)250

Information about the measures to comply with the judgment in the case of Dragotoniu and Militaru – Pidhorni against Romania

Introductory case summary

This case concerns the criminal conviction of the applicants for acts which did not constitute a criminal offence under the national law in force at the material time (violation of Article 7, paragraph 1).

The applicants, private-sector employees, were convicted and sentenced to immediate imprisonment sentences for accepting bribes, at final instance in 2000. According to the wording of the Criminal Code at the material time, such offence could only be committed by a public servant or a person working for a state-owned company. The European Court noted that the domestic courts deliberately construed the relevant provisions of the Criminal Code in an extensive manner, to the applicants ’ detriment. Prior to the applicants ’ conviction, the domestic courts had never ruled that accepting bribes by employees of privately-owned companies constituted a criminal offence. It had therefore been impossible for the applicants to predict this departure from precedent and to know, at the time when they committed the acts at issue, that they might give rise to criminal sanctions.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

6 000 EUR

-

6 000 EUR

Paid on 10/12/2007 (Mr. Militaru – Pidhorni ) and 27/12/2007 (Mr. Dragotoniu ) (the applicants waived interests)

b) Individual measures

Based on the European Court ’ s judgment, the applicants requested the reopening of the proceedings under Article 408¹ of the Code of Criminal Procedure. The High Court of Cassation and Justice allowed the reopening and acquitted the applicants upon retrial. Thereafter, the applicants lodged a claim under Article 504, paragraph 1, of the Code of Criminal Procedure, seeking redress for their unlawful conviction and deprivation of liberty. In these circumstances, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The violation found by the European Court in this case appears to be of an isolated nature, as it stems from an unforeseeable and extensive interpretation of criminal-law provisions by the domestic courts, to the applicants ’ detriment. Under Romanian law, the principle of the statutory nature of offences and penalties ( nullum crimen , nulla poena sine lege praevia ) prohibits the extensive application of criminal-law provisions to the detriment of the accused.

Having regard to the above, raising the domestic courts ’ awareness to the requirements of the Convention in this field as set forth by the European Court ’ s judgment seems to be an appropriate measure to prevent similar violations. To that effect, the Romanian translation of the European Court ’ s judgment was published in Official Journal No. 420 of 23 June 2010 and the judgment was sent out to domestic courts. Moreover, the European Court ’ s case-law is regularly presented and discussed during initial and continuous training of magistrates.

III. Conclusions of the respondent state

The government considers that no further individual measures are required in this case, that the general measures adopted will prevent similar violations and that Romania has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies