Resolution CM/ ResDH (2011)251 [1]

Execution of the judgment of the European Court of Human Rights

Spînu against Romania

(Application No. 32030/02, judgment of 29 April 2008, final on 29 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 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 unfairness of certain criminal proceedings against the applicant (violation of Article 6, paragraph 1) (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 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 a p plicant 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 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 this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)251

Information on the measures taken to comply with the judgment in the case of

Spînu against Romania

Introductory case summary

This case concerns the unfairness of criminal proceedings which resulted in the applicant ’ s conviction on charges inter alia of being an accessory to robbery with violence resulting in the victim ’ s death (violation Article 6, paragraph 1).

In 2000, the Supreme Court of Justice convicted the applicant on appeal ( recurs) in proceedings which entailed three levels of jurisdiction. The applicant had been previously acquitted on appeal ( apel ) against her conviction at first instance. In the specific circumstances of the case, the Supreme Court of Justice, endowed with full jurisdiction, was called upon essentially to determine issues of fact, namely whether the applicant had participated in the crime she was charged with. However, the Supreme Court reversed the applicant ’ s acquittal by the appellate court without taking any evidence.

The European Court noted that the Supreme Court based its verdict on a fresh assessment of successive statements made by the applicant and one of her co-accused during the proceedings, without taking evidence from them in person. The same statements had however given rise to conflicting decisions of the lower courts as to the applicant ’ s guilt. Against this background, the European Court held that as a matter of fair trial, the Supreme Court could not overturn the applicant ’ s acquittal without a direct assessment of the evidence given in person by her and by her co-accused.

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

5 000 EUR

-

5 000 EUR

Paid on 27/11/2008 (in conditions that seem to be accepted by the applicant)

b) Individual measures

The European Court noted that the applicant had been released on probation on 14 April 2004 (paragraph 37 of the judgment). On 23 March 2009, the applicant ’ s request for the reopening of the proceedings lodged under Article 408 1 of the Code of Criminal Procedure was allowed. Upon retrial, the Supreme Court of Justice heard evidence from the applicant and summoned the applicant ’ s co-accused to testify as a witness; however, the latter refused to testify. The Supreme Court of Justice upheld the applicant ’ s conviction.

In the circumstances presented above, no other individual measure was considered necessary by the Committee of Ministers for the execution of the judgment in this case.

II. General measures

As regards the failure of the Supreme Court to hear evidence from the applicant in person, the government referred to the measures that had been taken to avoid similar violations following the judgment in the case of Constantinescu, as set out in CM/ ResD H (2011)29 (in particular the amendments made by Law No. 356/2006 to the provisions of the Code of Criminal Procedure on the examination of accused persons).

As for the failure of the Supreme Court of Justice to take evidence in person from the applicant ’ s co-accused, it should be noted that the situation in this case was specific since the Supreme Court of Justice was called upon to rule on the charges after the lower courts had reached diverging conclusions as to the applicant ’ s guilt. In such circumstances, article 38515, paragraph 2 a) of the Code of Criminal Procedure allows the court of last instance to quash the appellate court ’ s decision and uphold the judgment given by the court of first instance without formally compelling the court of last instance to hear evidence, even where the matters of conflict between the lower courts are of factual nature.

However, given the direct effect of the Convention and the Court ’ s case-law in Romanian law, it may be assumed that the domestic courts will be guided in their interpretation of the domestic law by the requirements resulting from the European Court ’ s judgment case.

In order to raise awareness of such requirements, the Romanian translation of the judgment was published in Official Journal No. 720 of 21 November 2008 and on the websites of the High Court of Cassation and Justice http://www.s c j.ro/decizii_strasbourg.asp ) and the Supreme Council of Magistracy ( http://www . csm1909.ro/csm/index.php?cmd=9503 ). Moreover, the European Court ’ s case law is regularly presented and discussed during the initial and continuous training of magistrates.

III. Conclusions of the respondent state

The government considers that no further individual measure is 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