Resolution CM/ ResDH (2011)23 [1]

Execution of the judgment of the European Court of Human Rights

Varga against Romania

(Application No. 73957/01, judgment of 1 April 2008, final on 1 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 violations of the Convention found by the Court in this case concern the illegality of detaining the applicants on remand and of a search conducted in their home (violations of Article 5, paragraph 1, and Article 8) (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)23

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

Varga against Romania

Introductory case summary

The case concerns the illegality of the applicants ’ detention on remand from 18/01/2001, after their committal for trial and the expiry of the prosecutor ’ s order to remand them in custody to 1/02/2001 (violation of Article 5, paragraph 1).

It also concerns a violation of the right of two of the applicants to respect for their home due to the illegal search of their house on 19/12/2000 (violation of Article 8).

The European Court observed that the search, which had been carried out without a warrant and in the absence of impartial observers, had not respected the minimum guarantees the law imposed on the authorities in charge of the criminal investigation and had not been subject to judicial scrutiny. It also noted that the legislation governing home searches at the material time had been lax and deficient, particularly concerning the broad powers assigned to the prosecutor in this field.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

8 000 EUR

-

8 000 EUR

Paid on 28/11/2008 ( the applicants waived interest in view of small amount)

b) Individual measures

The applicants were released in 2001. The European Court awarded them just satisfaction in respect of non-pecuniary damage resulting from the illegal detention and search.

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

II. General measures

1) Illegal detention: Since the entry into force of Law No. 281/2003 (published on 1/07/2003), the Code of Criminal Procedure has expressly provided the obligation of domestic courts to verify regularly the legality and the appropriateness of continuing detention on remand (§27 and 52 of the judgment).

2) Illegal search: The provisions of the Code of Criminal Procedure concerning house searches have been modified by Government Ordinance No. 109 of 24/10/2003 and by Law No. 356 of 21/07/2006. According to the relevant new provisions, house searches may only be carried out on the basis of a reasoned interlocutory decision delivered by a judge, after the prosecution against the person in question has begun. On the basis of this decision, the judge issues a search warrant, which may be used only once and must specify among other things when and where the search is to take place, the names of the person present at home and of the prosecuted person. During the prosecution, the search is to be carried out by a prosecutor or by the authorities responsible for the criminal investigation, who should be accompanied, as the case may be, by “operative personnel” (§25 of the judgment).

III. Conclusions of the respondent state

The government considers that no individual measure is required, 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