Resolution CM/ResDH(2007) 94 [1]

Execution of the judgment of the European Court of Human Rights

Vasilescu against Romania

(Application No. 27053/95, judgment of 22 May1998)

The Committee of Ministers, under the terms of former Article 54 and new Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provide 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 the continued retention of valuables unlawfully seized by the militia in 1966, and the impossibility for the applicant to have access to an independent tribunal competent to order their return (violations of Article 6, paragraph 1 and of Article 1 of P rotocol No. 1, see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with Romania ' s obligation under former Article 53 and new 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, which are applicable by decision of the Committee of Ministers to cases under former Article 54;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant ' s successor 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 in the judgment, 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;

Having regard to interim Resolution DH(99)676 adopted by the Committee of Ministers on 8 October 1999, at its 680th meeting, in which it indicated that it had provisionally exercised its functions under former Article 54 of the Convention in the light of the information provided at the date by the government of the respondent state confirming the payment of just satisfaction within the deadlines set and indicating the provisional general measures taken, pending the adoption of new legislation;

DECLARES, having examined the measures taken by the respondent state (see Appendix) and considered the decision, taken at the 863rd meeting of the Ministers ' Deputies (1st January 2004), 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(2007)94

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

Vasilescu against Romania

Introductory case summary

The case concerns the continued retention of valuables unlawfully seized by the militia in 1966, and the impossibility for the applicant to have access to an independent tribunal competent to order their return.

In 1994, the Supreme Court of Justice, seised by the Procurator-General under former Article 330 of the Code of Civil procedure, quashed a final judgment in favour of the applicant and held that the State Counsel for the county had sole jurisdiction on the issue. The European Court found however that the State Counsel could not be considered an independent tribunal according to the Convention ' s criteria and that the applicant had therefore not had access to a court. Furthermore, the continuing unlawful retention of the applicant ' s valuables had amounted to a de facto confiscation incompatible with her right to the peaceful enjoyment of her possessions (violations of Article 6§1 and Article 1 of Protocol No. 1).

I. Payment of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

60 000 FRF

30 000 FRF

5 185 FRF

95 185 FRF

Paid within the time-limit set to the applicant ' s son, the applicant having died on 1/05/1998

II. General measures

Case-law change

According to Article 20, paragraph 2, taken together with Article 11, paragraph 2, of the Romanian Constitution, human rights which are guaranteed by international treaties are pre-eminent over internal law. The Convention and the judgments of the Court in Romanian cases have accordingly a direct effect in Romanian law.

By a judgment of 02/12/1997, the Constitutional Court rectified the problem at the origin of the violation of Article 6§1 to a great extent by interpreting Article 278 of the Code of Criminal Procedure so as to provide a judicial appeal against the acts of prosecutors (see Interim Resolution DH(99)676 of 08/10/1999).

Judicial practice has subsequently changed and, as result, appeals against prosecutors ' acts are now accepted by courts.

Legislative change

By letter of 11/09/2003, the Romanian delegation indicated that Article 168 of the Code of Criminal Procedure had been amended on 24/06/2003 to allow judicial recourse against seizure measures adopted during the criminal investigations.

Furthermore, Article 330 of the Romanian Code of Civil Procedure was repealed by an emergency ordinance adopted by the government and published in the Official Gazette on 28/06/2003. This reform was approved by Parliament on 25 May 2004. Accordingly, it is no longer possible to annul final judicial decisions at any moment.

Publication and dissemination of the judgment

In order to ensure that other aspects of the case are taken into account, in particular the European Court ' s decision in respect of Article 1 of Protocol No. 1, a translation of the judgment into Romanian was handed by the government ' s agent to the Presidents of the fifteen Courts of Appeal of Romania during an informal meeting on 3 June 1998. Furthermore, the judgment was sent to the Office of the President of Romania, the President of the Constitutional Court , the President of the Supreme Court of Justice and the General Prosecutor to the Supreme Court, the President of the Gaesti Court of first Instance and of the Dambovita Tribunal, as well as to the University of Bucharest Faculty of Law. Finally, the judgment was published in December 1998 in the monthly law journal Dreptul (ANUL IX; Seria a III-a: No. 12/1998).

III. Conclusions of the respondent state

The government considers that the measures taken have fully remedied the consequences of the violation found in this case and will prevent new, similar violations in future and that Romania has therefore complied with its obligations under former Article 53 and Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 20 June 2007 at the 997th meeting of the Ministers’ Deputies.