Resolution CM/ ResDH (2010)182 [1]

Execution of the judgment of the European Court of Human Rights

Dima against Romania

(Application No. 58472/00, judgment of 16 November 2006, final on 26 March 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 unfairness of certain civil proceedings in that the Supreme Court of Justice failed to address one of the applicant ’ s grounds for 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 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)182

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

Dima against Romania

Introductory case summary

This case concerns the unfairness of civil proceedings related to intellectual property rights the applicant claimed in respect of the state emblem and seal due to the failure of the Supreme Court of Justice to answer one of his grounds for appeal based on the invalidity of an expert report relied upon by domestic courts when rejecting his claims (violation of Article 6, paragraph 1).

The European Court found that the Supreme Court of Justice did not address the argument at issue, although the reasons it relied on for rejecting the applicant ’ s claims suggested that the argument was relevant for the determination of the case. Thus, the Supreme Court of Justice found that while the applicant was entitled to royalties for the reproduction of the state emblem and seal by the defendant company, the expert report showed that the latter had not actually received orders and had not obtained profit from their reproduction. Given its importance for the outcome of the proceedings, the argument submitted by the applicant required a specific and explicit answer from the Supreme Court of Justice, the lack of which affected the fairness of the proceedings.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

2 000 EUR

-

2 000 EUR

Paid on 30/07/2007

b) Individual measures

The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. Following the European Court ’ s judgment, by a decision of 3 April 2008, the Bucharest Court of Appeal allowed the request to reopen of the proceedings the applicant brought under Article 322, paragraph 9 of the Code of Civil Procedure. In the new proceedings, the domestic courts found that under the special provisions applicable to the copyright of the state symbols, the applicant was not entitled to receive royalties for the reproduction and marketing of the state emblem and seal. The applicant complained before the Committee of Ministers of the outcome of these proceedings. However, the questions he raised do not appear to be linked to the execution of this case. I n 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 Supreme Court of Justice to observe the relevant legal provisions.

The government therefore 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 the courts will take into account the requirements of Article 6, paragraph 1, as 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. 473 of 13 July 2007 and on the website of the High Court of Cassation and Justice ( http://www.scj.ro/decizii_strasbourg.asp ). Moreover, the judgment was sent to the Superior Council of Magistracy for dissemination to courts, with a recommendation that it is discussed during activities related to the continuing education of judges.

III. Conclusions of the respondent state

The government considers that no other individual measure is required, 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