INTERIM resolution DH (99) 676

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 22 May 1998 IN THE CASE OF Vasilescu  AGAINST Romania

(Adopted by the Committee of Ministers on 8 October 1999 at the 680th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Vasilescu case delivered on 22 May 1998 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 27053/95) against Romania, lodged with the European Commission of Human Rights on 10 February 1995 under Article 25 of the Co n vention by Ms Elisabeta Vasilescu , a Romanian national, and that the Commission declared admissible the complaints relating to first, the unlawful seizure and the continued retention of valuables to which the domestic courts had accepted the applicant's property rights and, secondly, to the lack of access to an independent tribunal that could order their return;

Recalling that the case was brought before the Court by the applicant on 22 May 1997 under Protocol No. 9 and by the Commission on  28 May 1997;

Whereas in its judgment of 22 May 1998 the Court unanimously:

- dismissed the government’s preliminary objection;

- held that there had been a violation of Article 6, paragraph 1, of the Convention;

- held, that there had been a violation of Article 1 of Protocol No. 1;

- held that it was unnecessary to examine the complaints under Articles 8 and 13 of the Convention;

- held, that the Government of the respondent State was to pay the applicant, within three months, the following sums, to be converted into Romanian lei at the rate applicable at the date of settlement: 60 000 French francs in respect of pecuniary damage; 30 000 French francs in respect of non-pecuniary damage; 5 185 French francs in respect of costs and expenses and that simple interest at an annual rate of 3.36% should be payable on these sums from the expiry of the above-mentioned three months until settlement;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Art i cle 54 of the Convention;

Having invited the Government of the respondent State to inform it of the mea s ures taken in consequence of the judgment of 22 May 1998, having regard to Romania’s obligation under Article 53 of the Conve n tion to abide by it;

Considering that High Contracting Parties are required to take the necessary measures to conform herewith, notably by preventing new violations of the Convention similar to those found in the Court's judgments ;

Whereas the Government of the respondent State provided the Committee of Ministers with information about the measures taken so far to this effect (this information appears in the appendix to this resolution);

Having satisfied itself that on 27 July 1998, within the time-limit set, the Government of the respondent State paid to the applicant's successor the sums provided for in the judgment of 22 May 1998,

Declares, after having taken note of the information supplied by the Government of Romania, that it has provisionally exe r cised its functions under Article 54 of the Convention in this case,

Decides to resume consideration of this case as far as general measures are concerned when the legislative reforms have been carried out or, at the latest, at one of its meetings at the beginning of the year 2001.

Appendix to Resolution DH (99) 676

Information provided by the Government of Romania during the examination of the Vasilescu case

by the Committee of Ministers

The Government of Romania recalls that 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 European Convention on Human Rights and the judgments of the European Court of Human Rights in Romanian cases have accordingly a direct effect in Romanian law.

The Government of Romania wishes to point out that a positive development has taken place within the Romanian courts as regards the problem of lack of access to an independent tribunal (violation of Article 6, paragraph 1, of the Convention).  On 2 December 1997, the Constitutional Court of Romania rendered a decision (No. 486) declaring that in order to comply with the Constitution, Article 278 of the Code of Criminal Procedure - concerning the right to appeal decisions of the public prosecutor - shall only be interpreted to the effect that a person who has an interest can challenge before a court any measure decided by the prosecutor.  This decision became final and binding under Romanian law (Article 25, paragraphs 2 and 3, of Law No. 47 of 1992) with its publication in the Official Journal of Romania (No. 105 of 6 March 1998) and accordingly enforceable erga omnes.

The government considers that similar cases - where the valuables in question have been confiscated without any order from a competent judicial authority - are not likely to recur: under Romanian law, investigation measures such as the seizure and retention of valuables can only be taken following an order by the prosecutor and, accordingly, those who are subject to these measures can challenge their lawfulness before an independent tribunal.

In order to settle certain questions on institutional arrangements and legal procedures which arise from the judgments of the European Court and the Constitutional court, a reflection group set up with in the Ministry of Justice has included these and other relevant decisions of the Constitutional Court, in a bill amending the Code of Criminal Procedure. The bill not only aims at codifying access to an independent tribunal but also at introducing further improvements, for example, the setting up of an examining judge who would be competent to initiate prosecutions in cases related to individual fundamental liberties.

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 review Dreptul (ANUL IX; Seria a III-a: No. 12/1998) and, according to the provisions of the governmental decree No. 94/1999, it will also be published in the Official Gazette.

In the light of the above, the Government of Romania considers that there is no serious risk that the violations will recur. It proposes that the Committee of Ministers resumes consideration of the implementation of the judgment when the legislative reforms have been carried out or, at the latest, at one of its meetings at the beginning of the year 2001.