Resolution CM/ ResDH (2010)180 [1]

Execution of the judgment of the European Court of Human Rights

Cotleţ against Romania

(Application No. 38565/97, judgment of 3 June 2003, final on 3 September 2003)

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 prison authorities ’ interference with the applicant ’ s right to correspondence with the Convention organs (violations of Article 8) and the hindrance of his right of individual application (violation of Article 34) (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, 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 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 (2010)180

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

Cotleţ against Romania

Introductory case summary

This case concerns prison authorities ’ interference with the applicant ’ s right to correspondence on account of delays in forwarding his letters to the Commission, monitoring of his correspondence and failure to provide materials required for his correspondence with the Convention organs (violations of Article 8).

As regards the delays in forwarding the applicant ’ s letters to the Commission between 16 November 1995 and 20 October 1997 and the monitoring of the applicant ’ s correspondence prior to 24 November 1997, the European Court noted that the case raised issues similar to the case of Petra against Romania (Resolution CM/DH(2007)92). It therefore reiterated its findings in the case of Petra, namely that the domestic provisions in force at the material time which had served as basis for the interference did not meet the requirements of a “law” within the meaning of Article 8, paragraph 1 in that they did not indicate with reasonable clarity the scope and manner of exercise of the discretion conferred on the prison authorities.

The European Court reached a similar conclusion as regards the monitoring of the applicant ’ s correspondence after 24 November 1997, given that the order of the Minister of Justice No. 2036/C, upon which the interference was based thereafter, had not been published.

Lastly, the European Court held that the failure of the prison authorities to provide the applicant with paper, envelopes and stamps for his correspondence with the Convention organs was in breach of the state ’ s positive obligations to ensure an effective respect of the applicant ’ s right to correspondence.

This case also concerns interference with the applicant ’ s right of individual application (violation of Article 34). In this connection, the European Court noted the applicant ’ s undisputed submissions that he feared the consequences of the prison wardens ’ displeasence at his correspondence with the Convention organs. It further noted that, for the same reasons, the applicant refused to disclose the name of an inmate who had helped him post his letters. For the European Court such acts of intimidation, combined with the interferences with the applicant ’ s right to correspondence, represented an illicit and unacceptable form of pressure hindering the effective exercise of his right of individual application.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

2 500 EUR

3 300 EUR (less 920 EUR granted as legal aid by the Council of Europe)

4 880 EUR

Paid on 27/11/2003

b) Individual measures

The European Court awarded the applicant just satisfaction in respect of pecuniary and non-pecuniary damage and costs and expenses. In the circumstances of the case, n o other individual measure appears necessary.

II. General measures

Legislative measures

The government initially referred to the measures that had been taken to avoid new, similar violations following the judgment of the European Court in the case of Petra, as set out in Resolution CM/ ResDH (2007)92 (in particular, the Emergency Ordinance No. 56/2003 regarding the rights of persons serving prison sentences, approved by the Parliament on 7 October 2003).

At the same time, the government indicated that after the judgment of the European Court in the present case, the director of the National Prisons Administration issued several circular letters instructing the prison staff under their direction to respect the confidentiality of prisoners ’ correspondence and petitions and to take various measures for the effective exercise of these rights (e.g. daily access of the prisoners to mail boxes, remittal of the correspondence and reply to petitions under signature, access of the mail service providers inside prisons to collect the prisoners ’ correspondence). These measures were initially based on the order of the Ministry of Justice No. 2036/C and, subsequently, on the Emergency Ordinance.

Subsequently, the government indicated that Emergency Ordinance No. 56/2003 was repealed by Law No. 275/2006 on the execution of sentences, published in the Official Journal No. 627 of 20 July 2006. Law No. 275/2006 guarantees convicted prisoners and remand prisoners the confidentiality of their correspondence and petitions. Under this Law and its implementing regulations, enacted by the government ’ s decree No. 1897 of 21 December 2006 and published in the Official Journal No. 24 of 16 January 2007, the prison administration is obliged to notify the prisoners of their rights and obligations.

Under Law No. 275/2006, prisoners ’ correspondence may be opened (but not read) in the presence of the prisoner, in order to prevent the smuggling in of dangerous substances and objects. Interception, allowed only if there are strong indications that an offence has been committed, may be ordered only by the detention judge, who must show cause. The prisoner whose correspondence has been intercepted is promptly informed thereof. Lastly, such restrictions cannot be imposed on the correspondence with prisoners ’ legal counsel, human rights NGOs or international courts and organisations.

Moreover, under Law No. 275/2006, the measures previously ordered by the National Prisons Administration to ensure the effective exercise of the right to correspondence and petition (see above ) become legally binding. At the same time, this Law guarantees destitute prisoners the right to receive free materials for their correspondence and petitions from the prison ’ s administration.

Finally, Law No. 275/2006 provides that prisoners may apply to the detention judge for review of measures taken by the prison administration affecting the exercise of their rights. If the detention judge dismisses the complaint, prisoners may appeal his decision before the court of first instance under the jurisdiction of which the prison is placed.

Publication and dissemination

The translation of judgment of the European Court was published in the Official Journal No. 422 of 19 May 2005 and on the website of the High Court of cassation and justice ( http://www.scj.ro/decizii_strasbourg.asp ) . In addition, the judgment was sent to all the prison units under the National Prison Administration.

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 2 December 2010 at the 1100th meeting of the Ministers’ Deputies