AFFAIRE REINER ET AUTRES CONTRE LA ROUMANIE

Rezoluția CM/ResDH(2013)41 [1] Reiner și alții împotriva României Executarea hotărârii Curții Europene a Drepturilor Omului (Recherche n 1505/02, Hotărârea din 27 septembrie 2007, definitivă la 27 decembrie 2007) Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede că el supraveghează executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumite în continuare "menționate mai jos " Convenția" și "Curtea"), Având în vedere hotărârea definitivă, care a fost transmisă de Curte Comitetului în cauza de mai sus și încălcările constatate (a se vedea documentul DH-DD(2012)822E reamintind obligația de a se pronunța, în temeiul articolului 46 alineatul (2) (1) din Convenție, să se conformeze hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile din statul membru în cauză, dacă este necesar de măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura posibilului de către Restitutio in integrum ; și măsuri generale de prevenire a unor încălcări similare ; Am invitat guvernul statului pârât să informeze Comitetul cu privire la măsurile luate pentru a se conforma obligațiilor menționate anterior După examinarea bilanțului de acțiune furnizat de guvern care indică măsurile adoptate în vederea executării hotărârii judecătorești, inclusiv informațiile furnizate în ceea ce privește plata satisfacției echitabile acordate de Curte (a se vedea documentul DH-DD(2012)822E FIȘĂ că au fost adoptate toate măsurile prevăzute la art. 46 alineatul (1); DECLAMENTUL CHIIL și-a îndeplinit funcțiile în temeiul articolului 46 alineatul (2) din convenție în această cauză și DECIDE d Caseta referitoare la unfairness of criminal proceedings which resulted in the applicants... content in 2001 for assault and battery quesing un intentional death of a police officier during the anti-government protests in decembrie 1989 (violation of Article 6 §3(d) in respect of three aplicants). The aplicants were convicted based on the states that several witnesses gave during the police investigation, which were later read in scurt. In acest respect, the European Court noted that when most of these witnesses failed to appear in scurt, the first-instance scurt found that their hearing was no longer necessary, ordered for their depostions to be read and took them into account when convicting the aplicants. Only three witnesses were heard in court and none of them incriminated the aplicants in their statisticis (§27 of the judgment). În aceste circumstanțe, Curtea Europeană de Justiție a pus la îndoială faptul că convingerile au stat la baza unei decizii luate în mod direct de către instituțiile de învățământ superior sau de către instituțiile de învățământ superior. The European Court further noted that throughout the trial, the domestic scurts dismised without proper justification the requests from the defence to take direct witness evidence and to allow the defence to cross-examine the witnesses in question. O privire de ansamblu asupra unei cereri de propuneri de propuneri, care se referă la o cerere de propuneri de propuneri, la o cerere de propuneri de propuneri, la o cerere de propuneri din partea Uniunii Europene, la o cerere de propuneri din partea Uniunii Europene, la o cerere de propuneri din partea statelor membre, la o cerere de propuneri din partea Comisiei, la o cerere de propuneri din partea Comisiei, la o cerere de propuneri din partea Comisiei, la o cerere de propuneri din partea Comisiei, la o cerere de propuneri din partea Comisiei, la o cerere de propuneri din partea Comisiei, la o cerere de propuneri din partea unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru al unui stat membru al unui stat membru sau a unui stat membru al unui stat membru al unui stat membru al unui stat membru al unui stat membru al unui stat membru al unui stat membru al unui stat membru al unui stat membru al unui stat membru al unui stat membru sau a cărui stat membru sau a cărui stat membru al unui stat membru sau a cărui stat membru al unui stat membru al unui stat membru al unui stat membru al unui stat membru al unui stat membru al unui stat membru al unui stat membru al unui stat membru sau a cărui stat membru sau a cărui stat membru al unui stat membru sau a cărui stat membru sau a cărui stat membru al unui stat membru sau a cărui stat membru sau a cărui stat membru sau a cărui stat membru sau a cărui stat membru sau a cărui stat membru sau a cărui stat membru sau a unui stat membru sau a unui stat membru al unui stat membru al unui stat membru al unui stat membru al unui stat membru al unui stat membru al unui stat membru sau a unui stat membru al unui stat membru al unui stat membru sau a unui stat membru sau a unui stat membru sau a unui stat membru sau The case also affairs the length of the aforetioned criminal proceedings (1991 mai 2001) out of which 6 years and nine months Fell under the Court The European Court awarded all the applicants just satisfacetion for moraly damages and costs and expenses, which was paid to the aplicants on 25 April 2008. Violation of Article 6, paragraph 3(d) The Government would recall from the outset that this violation only se referăd the aplicants Octavian Paisz, Anton Reiner and Ioan Konrad. Reopening of the impugned procesing in respect of Mr Paisz Bazat pe art. 4081 of the Code of Criminal Procedure (hereinafter maitherethe CPP.) on 29 September 2008, the High Court of Cassation and Justice upheld his request and the case was referred for real to the Bucharest County Court. The aplicant Octavian Paisz died on 28 September 2009, during retrial in first instance. The Bucharest County Court took steps in order to remedy the shortcomings of the initial trial identified by the European Court. Să se termine acest lucru, it sumoned the deflantes, the civil partis and the witnesses interoghed during the pre-trial investigation with the participation of the deflant Octavian Paisz. Additionally, by means of lettersrogatory, the scurt requested the Hungarian Ministry of Justice to find and question those of witnesses who, in the meantime, had changed their residence and settled in Hungary. Following this request, one witness was queed by the Hunter authorities, and her statement was read in scurt. The Bucharest County Court gave its verdict on 15 February 2011. In its judgment, the scurt noted that the majority of the witnesses summoned could not be heard during retrial due to various realons (death, unknown whereabouts etc.), so their previous states were read in scurt, pursuant to Article, §3 of the CPP. Relying on the evidence adducted during the pre-trial investigation, the initial trial and the retrial procesedings, the Bucharest County Court held that the liability of the deflant, dle Octavian Paisz, of the impressions brought against him him had been decently established. However, the scurt noted that it could not sente Mr. Paisz, since the offence in intrebare had become status-barred and he had died during the retrial proceedings. The scurt further upheld the previous verdicts as priviri la damages that were to be paid to the victim The Government are of the opinie that the right to examines and to cross-examine witnesses in court, guaranteed by Article 6 § 3(d), which was disregarded in the impugned process, can be exercised in a meaningful and efectiv manner only in the presence of the acuzad. In the light of the above, considering namely the applications demission, the nature of the right disgarded and the special circumstances of this case, the Government consider that no further individual measures are required in this case. The situation of Mr. Reiner and Mr. Konrad The Government observă că dl Ioan Konrad and the heir of the aplicant Anton Reiner, who died on 25 November 2006, did not express their interest in lodging a request for the reopening of the impugned procesings, under Article 408 of the CPP. Violation of Article 6, paragraph 1 (length of proceseedings) The Government would Recall that the încălcarea found on this account se referă la d-l Octavian Paisz, d-l Dezideriu Hejja și d-l Ioan Konrad. In respect of d-l Hejja and d-l Konrad, the Government consider that since the impugned procedeedings are closed, no further individual measure is necessary. Paisz, the Government express a similarar opinie that no further individual measures are required, since the applicant died and the procesedings were prin urmare discontinued under their criminal limb. As mentioned above, the procesedings continue solely as priviri the civil aspects of the case, due to the fact that under the national law, the applicant The Government Recall that in the present case, upon the witnesses mais to appear in scurt, the domestic Courts considered that their hearing was no longer necessary and that the requests for their hearing sought to stall the proceseedings (§28 of the judgment). Without further reasons, they they then applied Art. 327, §3 of the CPP, considered the hearing of such witnesses to be no longer posibil, ordered their previous statements to be read in scurt and found the applications guilty based on such states, without allowing them the oportunity to interogat said witnesses. The supports of the CPP (as in force at the material time and presently) require in principle that the witnesses be heard in scurt and that the defence is thus given the possibility to cross-examine them (Art. 327, §1). When the hearing of a witness is no longer, Art. 327, §3 provides that the court shall order for the statement he gave during the pre-trial investigation to be read in scurt and it shall take it into account for the determination of the case. Art. 329, §3 further provides that is during the proceseedings in court, it appears that evidence that was previously allowed is no longer usef, the court, having heard the prosecution and the partis, can hot to take such evidence. The European Court also found that the domestic scurts failed to give proper reasons when dismissing the defence.s requests for witness evidence to be taken in court and when giving precedence to the statement a witness had made before the prosecution in the detriment of the one given in scurt, which exonerated the aplicant. In acest respect, it should be noted that in acordance with Art. 356, §1(c) of the CPP, a scurt judgment must contain in particular an analisis of the evidence taken into account for the definition of the criminal aspects of the case and also of the evidence which was set aside by the curte, together with anallysis of any fait elements that support the pend-base Having regard to the European Court.s findings in the present case, it would appear that the shortcomings identified in the European Court mais judgment are a matter of the supports of the CPC and do not call into question the existing legal framework. The Government prin urmare consider that awareness-raising measures are capabil of preventing in the viitor similarar viols of the convention. To this end, the judgment of the European Court was translated into Romanian and publicished in the Official Journal and on the respective websites of the Superior Council of Magistracy at www.csm1909.ro and of the High Court of Cassation and Justice at www.scj.ro It should be further noted that the Convention and the European Court Electroluxs case-law make the object of special programs for the initial and continuuing trening of the Romanian magistrates (judge and prosecutors alike) organizad by the National Magistracy Institute. The Government considered the need of further awareness-raising measures, to ensure that the provision of the CPP which grant the scurts discretion in matters raported to the taking of witness evidence will be construed and application in the light of the requirements of a fair trial resulting from this judgment. În acest respect, Agent before the European Court simte to the Superior Council of Magistracy the Judgment and a summary thereof together with analysis of the European Court Violența articolului 6, paragraph 1 (length of proceseedings) It should be noted that the European Court found similar încălcări in a number of other cases against România, which are currently supervisiond by the Committee of Ministers within the framework of the Stoianova and Nedelcu group of cases (nr. 77517/01, judgment of 04/08/2005, final on 04/11/2005). Concluzii Having privition to the above, the Government considers that no other individualal or general measures are to be taken in the present case and that România compliment with the obligations for under Article 46, paragraph 1 of the convention. The Government prin urmare invitations the Committee of Ministers to close the examination of this case. [1] Adoptată de Comitetul de Ministrui la 7 martie 2013 în cadrul celei de-a 1164-a reuniuni a Delegaților miniștrilor. [2] Numai în limba engleză.

Résolution CM/ResDH(2013)41

[1]

Reiner et autres contre Roumanie

Exécution de l’arrêt de la Cour européenne des droits de l’homme

(Requête n

o

1505/02, arrêt du 27 septembre 2007, définitif le 27 décembre 2007)

Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit qu’il surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées «

la Convention

» et «

la Cour

»),

Vu l’arrêt définitif, qui a été transmis par la Cour au Comité dans l’affaire ci-dessus et les violations constatées (voir document

DH-DD(2012)822E

)

;

Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe

1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire

:

-

de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par

restitutio in integrum

; et

-

de mesures générales permettant de prévenir des violations semblables ;

Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer aux obligations susmentionnées

;

Ayant examiné le bilan d’action fourni par le Gouvernement indiquant les mesures adoptées afin d’exécuter l’arrêt y compris les informations fournies en ce qui concerne le paiement de la satisfaction équitable octroyée par la Cour (voir document

DH-DD(2012)822E

)

;

S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées

;

DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans cette affaire et

DECIDE d’en clore l’examen.

Action report

[2]

Reiner and Others v. Romania

(Application no. 1505/02, judgment of

27 September 2007,

final on 27 December 2007)

Introductory summary of the case

The case concerns the unfairness of criminal proceedings which resulted in the applicants’ conviction in 2001 for assault and battery causing unintentional death of a police

officer during the anti-government protests in December 1989 (violation of Article 6, §3(d) in respect of three applicants).

The applicants were convicted based on the statements that several witnesses gave during the police investigation, which were later read in court. In this respect, the European Court noted that when most of these witnesses failed to appear in court, the first-instance court found that their hearing was no longer necessary, ordered for their depositions to be read and took them into account when convicting the applicants. Only three witnesses were heard in court and none of them incriminated the applicants in their statements (§27 of the judgment). In these circumstances, the European Court found that the convictions were based in a decisive manner on witness evidence taken by the prosecutor, in the absence of a proper opportunity for the defence to question such witnesses during the pre-trial investigations or during the court proceedings.

The European Court further noted that throughout the trial, the domestic courts dismissed without proper justification the requests from the defence to take direct witness evidence and to allow the defence to cross-examine the witnesses in question. As regards one of the witnesses heard in court, who changed his previous statements to the prosecutor incriminating some of the applicants, the European Court found that the domestic courts failed to explain why they decided to give precedence to such statements, in the detriment of those exonerating the applicants.

The case also concerns the length of the aforementioned criminal proceedings (1991 – 2001, out of which 6 years and nine months fell under the Court’s jurisdiction

ratione temporis

(violation of Article 6, §1 in respect of three of the applicants).

Individual measures

Just satisfaction

The European Court awarded all the applicants just satisfaction for non-pecuniary damages and costs and expenses, which was paid to the applicants on 25 April 2008.

Violation of Article 6, paragraph 3(d)

The Government would recall from the outset that this violation only concerned the applicants Octavian Paisz, Anton Reiner and Ioan Konrad.

Reopening of the impugned proceedings in respect of Mr. Paisz

Based on the European Court’s judgment, the applicant Octavian Paisz requested the reopening of the impugned proceedings under Article 408¹ of the Code of Criminal Procedure (hereinafter “the CPP”). On 29 September 2008, the High Court of Cassation and Justice upheld his request and the case was referred for retrial to the Bucharest County Court.

The applicant Octavian Paisz died on 28 September 2009, during retrial in first instance.

The Bucharest County Court took steps in order to remedy the shortcomings of the initial trial identified by the European Court. To this end, it summoned the defendants, the civil parties and the witnesses questioned during the pre-trial investigations with regard to the participation of the defendant Octavian Paisz. Additionally, by means of letters rogatory, the court requested the Hungarian Ministry of Justice to find and question those of witnesses who, in the meantime, had changed their residence and settled in Hungary. Following this request, one witness was questioned by the Hungarian authorities, and her statement was read in court.

The Bucharest County Court gave its verdict on 15 February 2011. In its judgment, the court noted that the majority of the witnesses summoned could not be heard during retrial due to various reasons (death, unknown whereabouts etc.), so their previous statements were read in court, pursuant to Article 327, §3 of the CPP.

Relying on the evidence adduced during the pre-trial investigations, the initial trial and the retrial proceedings, the Bucharest County Court held that the liability of the defendant, Mr. Octavian Paisz, of the charges brought against him “had been correctly established”. However, the court noted that it could not sentence Mr. Paisz, since the offence in question had become statute-barred and he had died during the retrial proceedings.

The court further upheld the previous verdicts as regards the damages that were to be paid to the victim’s family and held the applicant’s heir liable thereof. The trial is now pending on appeal, at the request of the applicant’s heirs, as regards the civil aspects of the case.

The Government are of the opinion that the right to examine and to cross-examine witnesses in court, guaranteed by Article 6 § 3(d), which was disregarded in the impugned proceedings, can be exercised in a meaningful and effective manner only in the presence of the accused.

In the light of the above, considering namely the applicant’s demise, the nature of the right disregarded and the specific circumstances of this case, the Government consider that no further individual measures are required in this case.

b.

The situation of Mr. Reiner and Mr. Konrad

The Government observe that Mr. Ioan Konrad and the heir of the applicant Anton Reiner, who died on 25 November 2006, did not express their interest in lodging a request for the reopening of the impugned proceedings, under Article 408

1

of the CPP.

Violation of Article 6, paragraph 1 (length of proceedings)

The Government would recall that the violation found on this account concerns only Mr. Octavian Paisz, Mr. Dezideriu Hejja and Mr. Ioan Konrad.

In respect of Mr. Hejja and Mr. Konrad, the Government consider that since the impugned proceedings are closed, no further individual measure is necessary.

In respect of Mr. Paisz, the Government express a similar opinion that no further individual measures are required, since the applicant died and the proceedings were therefore discontinued under their criminal limb. As mentioned above, the proceedings continue solely as regards the civil aspects of the case, due to the fact that under the national law, the applicant’s heirs could be held liable in tort for the damages caused to the victim’s family.

General measures

a.

Violation of Article 6, paragraph 3(d)

The Government recall that in the present case, upon the witnesses’ failure to appear in court, the domestic courts considered that their hearing was no longer necessary and that the requests for their hearing sought to stall the proceedings (§28 of the judgment). Without further reasons, they then applied Art. 327, §3 of the CPP, considered the hearing of such witnesses to be no longer possible, ordered their previous statements to be read in court and found the applicants guilty based on such statements, without allowing them the opportunity to question said witnesses.

The relevant provisions of the CPP (as in force at the material time and presently) require in principle that the witnesses be heard in court and that the defence is thus given the possibility to cross-examine them (Art. 327, §1). When the hearing of a witness is no longer possible, Art. 327, §3 provides that the court shall order for the statement he gave during the pre-trial investigation to be read in court and it shall take it into account for the determination of the case.

Art. 329, §3 further provides that is during the proceedings in court, it appears that evidence that was previously allowed is no longer useful, the court, having heard the prosecution and the parties, can decide not to take such evidence.

The European Court also found that the domestic courts failed to give proper reasons when dismissing the defence’s requests for witness evidence to be taken in court and when giving precedence to the statement a witness had made before the prosecution in the detriment of the one given in court, which exonerated the applicant.

In this respect, it should be noted that in accordance with Art. 356, §1(c) of the CPP, a court judgment must contain in particular an analysis of the evidence taken into account for the determination of the criminal aspects of the case and also of the evidence which was set aside by the court, together with an analysis of any factual elements that support the court’s verdict.

Having regard to the European Court’s findings in the present case, it would appear that the shortcomings identified in the European Court’s judgment are a matter of application of the relevant provisions of the CCP and do not call into question the existing legal framework.

The Government therefore consider that awareness-raising measures are capable of preventing in the future similar violations of the Convention.

To this end, the judgment of the European Court was translated into Romanian and published in the Official Journal and on the respective websites of the Superior Council of Magistracy at

www.csm1909.ro

and of the High Court of Cassation and Justice at

www.scj.ro

.

It should be further noted that the Convention and the European Court’s case-law make the object of specific programmes for the initial and continuing training of the Romanian magistrates (judges and prosecutors alike) organised by the National Magistracy Institute.

The Government considered the need of further awareness-raising measures, to ensure that the provisions of the CPP which grant the courts discretion in matters related to the taking of witness evidence will be construed and applied in the light of the requirements of a fair trial resulting from this judgment. In this respect, the Government’s Agent before the European Court sent to the Superior Council of Magistracy the judgment and a summary thereof together with an analysis of the European Court’s findings and of the origin of the violation in this case for dissemination to the national courts and prosecutor’s offices and for inclusion in the training programmes available to the magistrates.

b.

Violation of Article 6, paragraph 1 (length of proceedings)

It should be noted that the European Court found similar violations in a number of other cases against Romania, which are currently supervised by the Committee of Ministers within the framework of the Stoianova and Nedelcu group of cases (no. 77517/01, judgment of 04/08/2005, final on 04/11/2005).

Conclusions

Having regard to the above, the Government considers that no other individual or general measures are to be taken in the present case and that Romania complied with the obligations imposed under Article 46, paragraph 1 of the Convention. The Government therefore invites the Committee of Ministers to close the examination of this case.

[1]

Adoptée par le Comité des

Ministres le 7 mars 2013 lors de la 1164e réunion des Délégués des Ministres.

[2]

En anglais uniquement.