Resolution CM/ ResDH (2011)21 [1]

Execution of the judgment of the European Court of Human Rights

Macovei and others against Romania

(Application No. 5048/02, judgment of 21 June 2007, final on 21 September 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 lack of effective investigation into allegations of ill-treatment inflicted by third parties on the applicants in 1998 (procedural violation of article 3) (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 plicants 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 exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2011)21

Information about the measures to comply with the judgment in the case of

Macovei and others against Romania

Introductory case summary

The case concerns the lack of an effective investigation of the applicants ’ assault by their neighbours in a dispute in 1998 (procedural violation of Article 3).

The applicants filed a criminal complaint for attempted homicide and grievous bodily harm, describing the acts of violence inflicted on them. However, the Romanian authorities refused to prosecute the attackers on the charge of attempted homicide and insisted, as a condition for prosecuting them, that the applicants file a new complaint alleging assault (decisions given between 1999 and 2002).

The Court noted that by doing so, the prosecuting authorities had prompted the applicants to withdraw their initial complaint or alter it. Moreover, the prosecutor ’ s office ignored the defendable character of the applicants ’ allegations of attempted homicide and grievous bodily harm, which resulted from the undisputed reality of the injuries mentioned in medical certificates. The Court also observed that at the material time it was not possible to appeal to a court against a prosecutor ’ s decision to discontinue proceedings.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

3 000 EUR

100 EUR

3 100 EUR

Paid on 22/01/2008 ( the applicants waived interest in view of small amount)

b) Individual measures

It was open to the applicants to request the reopening of the proceedings under Article 408 1 of the Code of Criminal Procedure. The European Court also awarded one of the applicants just satisfaction in respect of non-pecuniary damage whereas the other applicant made no request in this respect.

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

II. General measures

The European Court noted that the Code of Criminal Procedure had been reformed by Law No. 281 of 26/06/2003, which introduced a new Article 278 1 to the Code of Criminal Procedure (in force since 01/01/2004). This Article provides that any person whose legitimate interests are affected by a prosecutor ’ s decision to discontinue proceedings has a right to appeal to the court competent to deal with the case as a court of first instance. The judgment of the court in such cases should be based on the case-file and any new written evidence adduced.

As regards the flaws in the investigation carried out by the prosecutor, this aspect is being examined in the context of the Filip (41124/02) and Hussain (12338/02) cases.

III. Conclusions of the respondent state

The government considers that no individual measure is required in this case, apart from the payment of the just satisfaction, 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 10 March 2011 at the 1108th Meeting of the Ministers’ Deputies