Resolution CM/ ResDH (2011)71 [1]

Execution of the judgments of the European Court of Human Rights

in three cases against Romania concerning the lack of sufficient reasons

for holding the applicants liable for insult and defamation

(see details in Appendix)

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 unfairness of criminal proceedings for insult and defamation resulting in criminal convictions and/or award of civil damages to the civil parties due to insufficient reasoning of the domestic courts ’ judgements (violations of Article 6, paragraph 1), which further amounted to unjustified interference with the applicants ’ freedom of expression in two of these cases (violations of Article 10) (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, within the time-limit set, 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 these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2011)71

Information on the measures taken to comply with the judgments

in three cases against Romania concerning the lack of reasons

for holding the applicants liable for insult and defamation

Introductory case summary

These cases concern the unfairness of private criminal proceedings for insult and defamation brought under Articles 205 and 206 of the Criminal Code (violations of Article 6, paragraph 1). In 2002, the applicants were convicted and sentenced to an administrative fine and payment of costs and expenses to the plaintiffs ( Boldea case) or a criminal fine, payment of civil damages to the plaintiffs and of costs and expenses to the State ( Folea case). In the case of Rache and Ozon , the applicants, while acquitted of the criminal charges, were found liable in tort and ordered to pay damages to the civil parties.

The European Court found that the courts of first instance did not give reasons for their decisions, having failed to assess the constituent elements of the offence or tort in the light of the relevant facts of the case ( Boldea and Rache and Ozon ), to examine the evidence adduced in support of the factual basis of the applicant ’ s allegations ( Boldea and Folea ) or to order evidence to be produced in support of the claims for civil damages ( Rache and Ozon case). In their turn, the appellate courts failed to answer the applicants ’ grounds for appeal based on such shortcomings and to redress them.

In the cases of Boldea and Folea , the European Court further found that such failures, which deprived the applicants of a fair trial, also encroached upon their freedom of expression (violation of Article 10). In this respect, the European Court considered that the applicants had acted in good faith, that they had expressed their opinions on matters of public concern and that the domestic courts had denied them the opportunity to prove that their allegations had sufficient factual basis. In these circumstances, having regard to the courts ’ failure to give reasons for their decisions, the applicants ’ convictions did not respond to a “pressing social need”.

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application No.

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Boldea (19997/02), judgment of 15/02/2007, final on 15/05/2007

-

-

-

-

No just satisfaction requested

Folea ( 34434/02), judgment of 14/10/2008, final on 14/01/2009

-

3000 EUR

1663 EUR

4663 EUR

Paid on 3/03/2009

Rache and Ozon ( 21468/03), judgment of 31/03/2009, final on 30/06/2009

-

-

-

-

No just satisfaction requested

b) Individual measures

1) Boldea : The applicant claimed no just satisfaction from the European Court . Moreover, the government stated that the possibility of reopening of criminal proceedings after a judgment of the European Court is provided by Article 408 1 of the Code of Criminal Procedure. However, according to the information at the authorities ’ disposal, the applicant did not apply for the reopening of the criminal proceedings challenged by the judgment of the European Court . Lastly, it should be noted that under the statutory provisions applicable at the material time, the convictions were not entered in the criminal records .

2) Folea : The European Court found that the applicant had been granted amnesty under Law No. 543/2002, which exempted him from paying the criminal fine. As regards the sums actually paid following his conviction, he did not claim just satisfaction in respect of pecuniary damage before the European Court . Lastly, following the repeal of Articles 205 and 206 of the Criminal Code criminalising insult and defamation , the applicant ’ s conviction and sentence to a criminal fine was expunged from his criminal record.

3) Rache and Ozon : T he applicants were acquitted of the criminal charges but held liable in tort. They did not submit claims for just satisfaction before the European Court .

Consequently, no other individual measure seems necessary in these cases.

II. General measures

For the Romanian authorities, the violations found by the European Court in these cases stem from the failure of the domestic courts to observe the statutory provisions, in particular Articles 65 and 356 (c) of the Code of Criminal Procedure, which compel them to give reasons for their decisions based on the evidence adduced before them and on the evidence they must order on their own motion to be produced when it appears necessary.

The domestic courts ’ attention was drawn to the requirements of Article 6, paragraph 1 and Article 10 deriving from the European Court ’ s judgments in these cases. Thus, the Romanian translation of the judgment in the case of Boldea was published in Official Journal No. 615 of 21 August 2008. This judgment was also sent to the Superior Council of Magistracy, for dissemination to all domestic courts and the Minister of Justice was informed of the European Court ’ s findings. Furthermore, the Romanian translation of the European Court ’ s judgment in the case of Folea was published on the website of the Superior Council of Magistracy (http://www.csm1909.ro/csm / index.php?cmd=9503). Relying on these measures, the government considers that, in view of the direct effect of the European Convention and of the case-law of the European Court in Romanian law, all the requirements of Article 6, paragraph 1 and Article 10 will be taken into account in the future.

III. Conclusions of the respondent state

The government considers that no additional individual measures are required in the cases of Boldea and Rache and Ozon and that the individual measures adopted in the case of Folea have fully remedied the consequences for the applicant of the violations of the Convention found by the European Court . The government also considers 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 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies