European Court of Human Rights

Resolution CM/ResDH(2011)26¹

Execution of the judgment of the European Court of Human Rights

Visan against Romania

(Application No. 15741/03, judgment of 24 April 2008, final on 24 July 2008)

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 concern: the lack of access to a court due to rejection of compensation claims for illegal detention by virtue of a law which had not been applicable at the date on which the applicant had lodged her action (violation of article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention 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 applicant 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 exercised 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(2011)26

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

Visan against Romania

Introductory case summary

The case concerns a violation of the applicant’s right of access to a court due to the dismissal of her request for compensation for unlawful conviction. The dismissal was founded on the fact that the action had been time-barred under the terms of a law which was not applicable on the date when the applicant introduced her request (violation of Article 6§1).

The applicant brought her action on 06/03/1998 under the Civil Code. However, the Supreme Court found in January 2003 that she ought rather to have relied on Article 504 of the Code of Criminal Procedure (CCP) which became applicable to her situation following a judgment of the Constitutional Court which had been published on 18/05/1998. But since an appeal under the CCP had to be introduced within one year of the conviction being set aside (i.e. at the latest on 03/10/1996) the applicant’s case was dismissed as time-barred.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

b) Individual measures

Under Article 322§9 of Code of Civil Procedure, Romanian law provides the possibility of reopening civil proceedings found by the European Court to have been in violation of the Convention. In addition, the European court awarded the applicant just satisfaction in respect of the non-pecuniary damage sustained.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The European Court noted that when the applicant brought her action for compensation, Article 504 of the CCP was not applicable to her situation. It follows that, at that date, the Civil Code provided the sole basis available to the applicant to bring such an appeal. The Constitutional Court judgment enlarging the scope of Article 504 was published only on 18/05/1998 (§27 of the judgment).

The judgment of the European Court in the present case had been sent to the Superior Council of Magistracy (http://www.csm1909.ro/csm/index.php?cmd=9503), with a view to its dissemination to all domestic courts and with the recommendation that it be discussed amongst the activities related to the continued training of magistrates. In addition, the judgment was published in the Official Journal on 24 December 2008.

III. Conclusions of the respondent state

The government considers that no individual measure is required in this case, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Romania have thus complied with its obligations under Article 46, paragraph 1, of the Convention.