Resolution CM/ ResDH (2008) 80 [1]

Execution of the judgment of the European Court of Human Rights

P ini and Bertani and Manera and Atripaldi against Romania

(Application No. 78028/01, judgment of 22 June 2004, final on 22 September 2004)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection 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 failure to enforce final court decisions concerning the applicants ’ international adoption of two Romania n children (Article 6§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 Romania ’ s 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 close the examination of this case.

Appendix to Resolution CM/ ResDH (2008)80

Information about the measures taken to comply with the judgment in the case of P ini and Bertani and Manera and Atripaldi against Romania

Introductory case summary

The case concerns the failure to enforce two final court decisions, delivered in 2000, by which the applicants, two Italian couples, adopted two abandoned Romania n children (born in 1991) who were living in a private institution for the care of young persons in Braşov (“CE P SB”) (violation of Article 6§1).

The Court noted that the bailiffs ’ efforts to ensure that the children joined their adoptive parents had been unsuccessful because of the clear opposition of the employees and founding members of CE P SB, and that no measure had been taken for more than three years to overcome this lack of co ‑ operation.

Although the Court found no violation of Article 8 of the Convention, it nevertheless criticised the way in which the adoption process had been conducted, and particularly the absence of concrete and effective contacts between the children and the applicants prior to the adoption, as well as the absence of any form of psychological support capable of preparing them to leave the residential home CE P SB. Such measures would have allowed the children ’ s interests to converge with those of the adoptive parents.

In September and November 2002, the two children brought court proceedings seeking to revoke their adoption by the applicants. By judgment of June 2003 (final in September 2003), the request of one of the children, Florentina , was rejected by the court as ill-founded. The request of the second one, Mariana, was accepted: by decision of 31/10/2003 the court revoked her adoption by the second couple of applicants.

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

Applicants

P ecuniary and non-pecuniary damage

Costs and expenses

Total

P ini and Bertani

12 000 EUR

7 000 EUR

19 000 EUR

Manera and Atripaldi

10 000 EUR

6 000 EUR

16 000 EUR

P aid on 22/12/2004

b) Individual measures

Mariana ’ s adoption was revoked by a final judicial decision in 2003. The other child, Florentina , instituted further proceedings to have her adoption revoked but domestic courts rejected it in 2005 and decided to entrust her to the applicants. This decision became final and the girl left Romania with her adoptive parents.

II. General measures

1) Violation of Article 6§1

It seems that the violation of Article 6 in this case was an isolated one and resulted from the failure of the domestic authorities to ensure CE P SB ’ s respect for the domestic court decisions, in particular by refraining from imposing any sanctions on the CE P SB for its unjustified opposition to enforcing the court ’ s decisions. To prevent any future violations, the national Authority for the P rotection of Children ’ s Rights conducted an investigation of the CE P SB between 2 and 4 March 2005. As a result, several recommendations were made, requiring in particular better information and greater involvement of the children concerning decisions made in respect of them.

According to the new law on adoptions as well as its implementing norms, which entered into force on 01/01/2005, international adoptions are no longer possible except where the prospective adoptive parent is a grand-parent of the child. As for national adoptions, the law provides in particular that before an adoption can take place, contact must be established between the child and the prospective adoptive parents. The law also provides that the child should spend a 90-day trial period with the adoptive family before adoption.

2) P ublication and dissemination

The judgment of the Court was translated and published in the Official Gazette . It was included in a collection of judgments rendered against Romania between 1998 and 2004, 2000 copies of which have been distributed free of charge to courts and others. In addition, the Ministry of Justice, the Ministry of Administration and Interior and the National Union of Bailiffs have also been informed of the content of the judgment.

III. Conclusions of the respondent state

The government considers that the measures taken will prevent new, 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 8 October 2008 at the 1035th meeting of the Ministers’ Deputies