Resolution CM/ ResDH (2010)181 [1]

Execution of the judgment of the European Court of Human Rights

in the case of Albina against Romania

(Application No. 57808/00, judgment of 28 April 2005, final on 28 July 2005)

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 unfairness of certain civil proceedings as the court of last instance failed to address the applicant ’ s submissions in support of his appeal ( recurs ) (violation of Article 6, paragraph 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 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 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 (2010)181

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

Albina against Romania

Introductory case summary

This case concerns the violation of the right to a fair trial in proceedings for recovery of property nationalised during the communist regime, due to the failure of the Galaţi Court of Appeal as court of last instance to address the applicant ’ s submissions brought in support of his appeal (violation of Article 6, paragraph 1). The Court of Appeal dismissed the applicant ’ s appeal and his action by a decision of 8 September 1999. For the European Court , the mere fact that the Court of Appeal recalled in its decision the reasons the inferior courts had relied upon for giving their decisions did not relieve it of its obligation to carry out its own assessment of the issues raised by the applicant in his appeal. This was all the more so considering that the inferior courts had reached diverging conclusions on the merits of the applicant ’ s action and that it was for the Court of Appeal to give the final decision on the case. The Court of Appeal failed to answer the applicant ’ s submissions and its decision did not show that it had adopted the reasons given in the appealed decision by process of incorporation.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

5 000 EUR

477,65 EUR

5 477,65 EUR

Paid on 30/09/2005

b) Individual measures

The European Court awarded the applicant just satisfaction under all heads of damage and for the costs and expenses. It appears from the judgment of the European Court that, following a new action brought under Law No. 10/2001, the applicant recovered part of the property at issue. As for the remaining part of the property, the applicant brought a new action to recover possession, which was pending before the domestic courts at the time the European Court gave its judgment.

In these circumstances, no other individual measure appears necessary.

II. General measures

For the government, the violation found in this case does not disclose a structural problem. In this connection, it should be noted that under Article 261, paragraph 5, of the Code of Civil Procedure, courts must necessarily show the points of fact and law their decisions are based on and the reasons that led them to dismiss parties ’ claims. The violation in this case seemingly stems from the failure of the Galaţi Court of Appeal to observe the relevant legal provisions.

The government considers that given the direct effect of the Convention and the case-law of the European Court in Romania , the publication and dissemination of the judgment should guarantee that courts will take into account the requirements of Article 6, paragraph 1, set out in this judgment, thus preventing future similar violations. The Romanian translation of the European Court ’ s judgment was published in the Official Journal No. 1049 of 25 November 2005 and in the Reports of the judgments of the European Court of Human Rights concerning Romania given in 2004-2005 . The Reports were disseminated without charge to domestic courts and Public Prosecutors ’ offices.

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