Resolution CM/ ResDH (2011)27 [1]

Execution of the judgments of the European Court of Human Rights

Bota , Sergiu Popescu and Precup against Romania

( Bota , application No. 16382/03, judgment of 04/11/2008, final on 04/02/2009,

Sergiu Popescu , application No. 4234/04, judgment of 16/12/2008, final on 16/03/2009, and

Precup , application No. 17771/03, judgment of 27/01/2009, final on 27/04/2009)

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 breach of the principle of legal certainty and of the applicants ’ right to a fair criminal proceedings as a result of the annulment by the Supreme Court of final judgments acquitting the applicants following applications for nullity lodged by the Prosecutor General as well as, in the Bota case, the infringement of the applicant ’ s right to peaceful enjoyment of his possessions and of his right to a fair trial on account of the annulment of final court decisions following an application for nullity lodged by the Prosecutor General on the ground of Article 330 of the Code of Civil Procedure (violations of Article 6, paragraph 1, and Article 1 of Protocol No. 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 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 plicants the just satisfaction provided in the judgments (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)27

Information on the measures taken to comply with the judgments in the cases of

Bota , Sergiu Popescu and Precup against Romania

Introductory case summary

These cases concern the unfairness of criminal proceedings due to the annulment of final judgments by the Supreme Court, in 2002 and 2003, following applications for nullity lodged by the Prosecutor General (violations of Article 6, paragraph 1).

In the Bota case, the applicant was acquitted of several charges by a final judgment of 25/05/2000. Following the annulment of this decision, he was sentenced to two years ’ imprisonment, suspended.

In the Sergiu Popescu case, the applicant was acquitted of making a false statement in his capacity as an expert in course of certain civil proceedings, by a final judgment of 28/05/2002. Following the annulment of this judgment, the applicant was sentenced to a year ’ s imprisonment, suspended.

In the Precup case, the applicant was acquitted of manslaughter by a final judgment of 03/04/2001. Following the annulment of this judgment, the applicant was sentenced to six months ’ imprisonment, which was subject to a group pardon.

The Bota case also concerns the annulment of a final judgment in civil proceedings following an application for nullity lodged by the Prosecutor General (violations of Article 6, paragraph 1, of the Convention and Article 1 of Protocol No. 1).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Bota (16382/03)

14 000 EUR

2 000 EUR

-

16 000 EUR

Paid on 19/03/2009

Sergiu Popescu (4234/04)

5 000 EUR

400 EUR

5 400 EUR

Paid on 28/05/2009

Precup (17771/03)

-

2 000 EUR

-

2 000 EUR

Paid on 23/07/2009

b) Individual measures

1) Bota : The applicant claimed and was awarded just satisfaction in respect of pecuniary damage caused by the violation of Article 1 of Protocol No. 1, as well as for non-pecuniary damage caused by the quashing of the final court decisions by which he was acquitted.

2) Sergiu Popescu : The European Court awarded the applicant just satisfaction in respect of all damages sustained. It further observed that following the Supreme Court ’ s decision of 3/07/2003, which annulled his acquittal, the applicant had not been able to continue his activities as an expert because of his conviction. The European Court therefore considered that insofar as the applicant continue d to suffer professional consequences resulting from the judgment at issue, the authorities should take the necessary measures to remedy this situation.

3) Precup : The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage suffered.

It was open to the applicants in all these cases to request the reopening of the criminal proceedings, in conformity with Article 408 1 of the Code of Criminal Procedure.

The Romanian authorities indicated that the applicants ’ convictions have been erased from their criminal records.

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

II. General measures

1) Annulment of judgments in criminal proceedings: The European Court noted that at the material time, final judicial decisions could be revised following an application for nullity lodged by the Prosecutor General. However, it further noted that the provisions of the Code of Criminal Procedure related to the application for nullity had been repealed by Law No. 576/2004, published in the Official Journal of 20/12/2004.

2) Annulment of a judgment in civil proceedings: The Bota case presents similarities to that of Brumărescu (Resolution CM/ ResDH (2007)90).

III. Conclusions of the respondent state

The government considers that no individual measure is required in these cases, 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