Grecu v Romania - 75101/01 [2011] ECHR 620 (10 March 2011)

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(Application No. 75101/01, judgment of 30 November 2006, final on 28 February 2007)

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 violations of the Convention found by the Court in this case originate in the absence of statutory rules governing the scope of courts’ jurisdiction, the procedure to be followed and the guarantees to be secured as regards the defence rights, in proceedings the applicant had brought to have a prosecutor’ s order in a criminal case set aside (violation of Article 6, paragraph 1) and the impossibility to appeal against the judgment given by the first-instance court in such proceedings (violation of Article 2, paragraph 1, of Protocol No. 7) (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

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

The case concerns the unfairness of criminal proceedings brought by the applicant to have a prosecutor’s order set aside (violation of Article 6, paragraph 1).

The order at issue, given in 1985 in criminal proceedings for breach of foreign currency regulations, absolved the applicant of criminal liability, but nonetheless imposed on him an administrative fine and the confiscation of the foreign currency he possessed. At the material time, domestic law provided no possibility of judicial review of prosecutors’ orders. In February 2000, relying on a decision of the Constitutional Court which had found unconstitutional the lack of judicial review in such situations, the applicant sought review of the prosecutor’s order before the Bucharest County Court, which upheld the order by a judgment of 25 April 2000.

The European Court noted that in the absence of clear rules to that effect, the Bucharest County Court did not have jurisdiction to examine the merits of the charges against the applicant, so it could not pronounce the applicant’s acquittal and reverse the confiscation, if appropriate. The only option opened if it decided to set aside the order was to refer the case back to the prosecutor. Moreover, the Bucharest County Court did not satisfy the definition of a tribunal “established by law” since the procedural rules applicable to the proceedings were set neither by statute nor by a constant case-law of the domestic courts. Lastly, the proceedings at issue failed to secure the rights of the defence, since the court was not empowered to take direct evidence, in particular to re-examine the witnesses heard by the prosecutor.

Noting that at the material time no appeal laid against the judgment of the Bucharest County Court, the European Court also found that the applicant was deprived of his right to have his criminal case examined by two levels of jurisdiction (violation of Article 2, paragraph 1, of Protocol No. 7).

The European Court awarded the applicant just satisfaction in respect of pecuniary and non-pecuniary damage and costs and expenses. Furthermore, under Article 408¹ of the Code of Criminal Procedure, it was open to the applicant to apply for the reopening of the proceedings within one year as of the date upon which the European Court’s judgment became final. Such a course of action would have secured the applicant an opportunity to have his request for judicial review of the prosecutor’s order heard in accordance with the rules set forth by the amendments brought to the Code of Criminal Procedure in 2003 (see infra, under “General measures”). According to the information at the authorities’ disposal, no such request had been made.

Under the relevant new provisions of the Code of Criminal Procedure (Article 278¹), in force since 1 January 2004, any person whose legitimate interests are affected by a prosecutor’s decision not to open or to discontinue criminal proceedings has a right to seek judicial review thereof. The courts shall examine the lawfulness and the merits of the disputed order based on all elements in the case file and any piece of new written evidence adduced before it (Article 278¹, paragraph 4). If the complaint is well-founded and the existing evidence allows the determination of the charges, the court shall give a judgment on the merits. Where further investigations are necessary, the court annuls the prosecutor’s order and refers the case back to the prosecutor’s office to resume the investigation.

Thus, under the new statutory provisions which set the procedure to be followed, the domestic courts have full jurisdiction when it comes to the judicial review of prosecutors’ orders. As regards the procedural guarantees afforded, Article 278¹, paragraph 4 limits admissible new evidence to written evidence. However, given the direct effect of the Convention and the European Court’s case-law in Romanian law, it may be assumed that the domestic courts will be guided in their interpretation of the domestic law by the requirements resulting from the European Court’s judgment as to their obligation to safeguard the rights of the defence in such proceedings. In order to raise awareness of such requirements, the Romanian translation of the judgment was published on the website of the Superior Council of Magistracy (www.csm1909.ro/csm/index.php?cmd=9503) and the judgment is also available on the website of the High Court of cassation and justice (www.scj.ro/decizii_strasbourg.asp).

Furthermore, the new statutory provisions mentioned above guarantee the right of appeal to a higher court in such proceedings. Thus, appeal lies against a judgment at first instance which upholds the prosecutor’s order or refers the case back to the prosecutor’s office.

The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted will prevent 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 10 March 2011 at the 1108th Meeting of the Ministers’ Deputies

Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total
9 000 EUR		860 EUR	9 860 EUR
Paid on 10/05/2007

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You are here: BAILII >> Databases >> European Court of Human Rights >> Grecu v Romania - 75101/01 [2011] ECHR 620 (10 March 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/620.html Cite as: [2011] ECHR 620