MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1280/H46-21

10 March 2017

1280^th meeting, 7-10 March 2017 (DH)

Human rights

H46-21 Sacaleanu group v. Romania (Application No. 73970/01)

Supervision of the execution of the European Court’s judgments

Reference documents:

DH-DD(2017)38, DH-DD(2017)196, CM/Inf/DH(2012)24, CM/Del/Dec(2012)1150/15

Application	Case	Judgment of	Final on	Indicator for the classification
73970/01	SACALEANU GROUP (List of cases CM/Notes/1280/H46-21-app)	06/09/2005	06/12/2005	Complex problem

Case description

This group of cases concerns the failure or significant delay by the state or by legal entities under the responsibility of the state to abide by final domestic court decisions (violations of Article 6 § 1 and/or Article 1 of Protocol No. 1; violation of Article 10 in the case of Roşiianu). These decisions were given between 1993 and 2012.

Considering that the violations identified were the result of a persistent structural dysfunction, reflecting a practice incompatible with the Convention, the European Court found it necessary to give indications to the Romanian authorities under Article 46 of the Convention; in doing so, it relied on the Committee of Ministers’ decision adopted in this group of cases at its 1150^th meeting (September 2012) (DH) (judgment in the case of Foundation hostel for students of the Reformed Church and Stanomirescu).

The Court indicated that the respondent State should primarily ensure, through appropriate legislative and/or administrative measures, that mandatory and enforceable court decisions against it are implemented voluntarily and in a timely manner. These measures should also take into account possible situations when implementation is objectively impossible, which require that the authorities adopt alternative measures of implementation (§ 83 of the judgment).

Status of execution

Individual measures: The authorities have regularly submitted information in this respect. In a number of cases, the applicants also submitted communications to the Committee under Rule 9 § 1. According to this information, the domestic court decisions at the origin of 19 cases were implemented either before or after the delivery of the judgments by the European Court. In the 16 remaining cases, some of which concern several applicants, the implementation of the domestic court decisions is on-going or partially finalised or information regarding the implementation has yet to be submitted.

General measures: In response to the decision adopted by the Committee during its last examination (September 2012), the authorities submitted preliminary information on the measures underway
(DH-DD(2015)14), followed by a revised action plan submitted on 16 December 2016 (DH-DD(2017)38). This information can be summarised as follows:

In 2014, the government established an interdepartmental working group, tasked with identifying the legislative and/or administrative measures required to ensure that the state complies voluntarily and in a timely manner with the decisions delivered in court disputes with private parties. To find a comprehensive solution to the problem, the group requested from all public authorities across the country reports on the status of implementation of all final decisions notified to them during a reference period (2012).

This overview has enabled the working group to acquire a clearer picture of the scale of the problem and its root causes. It was found in particular that approximately 1.59% of the reported decisions remained unimplemented or had been only partially implemented at the time the information was provided, and that this state of affairs was due to lack of funds, the passivity of the creditor, an objective impossibility to execute or pending court proceedings, such as oppositions to enforcement requests or bankruptcy proceedings.

On the basis of this information and of a comparative study of the legislation in other member States of the Council of Europe, the working group has established the following lines of work and timetable:

- to examine, by December 2017, the modification of the mechanism currently in place for the implementation of pecuniary awards against the state to ensure that it complies with the standards elaborated by the Court in its case law;

- to examine, by December 2017, (i) the creation of a judicial or administrative procedure to establish whether a failure to implement arises from an objective impossibility and to ascertain alternative means of implementation and (ii) the reform of the statutory limitation regime in respect of enforcement proceedings to preclude the state from relying on it when the opposing party is a private individual;

- to define, by April 2018, legislative or administrative measures enabling the State to assume the debts of companies under its responsibility, when such companies are subject to bankruptcy proceedings or have already been wound-up;

- to carry out, by May 2018, an in-depth analysis of the necessity for and modalities of a mechanism at national level to monitor the implementation of court decisions by the State; in the meantime, it is envisaged to make it mandatory for all public authorities and institutions regularly to monitor the implementation of court decisions delivered against them.

The working group has, moreover, proposed to the government to supervise the dissemination of material setting out the relevant principles set out in the Court’s case law to all public authorities and institutions and all legal entities under public control. On 16 February 2017, the government endorsed this proposal and established the concrete means for its implementation (see DH-DD(2017)196).

The working group raised awareness of these principles amongst the National Agency of Civil Servants and it has requested the National Institute for Magistrates to include them in the training programme for judges.

Analysis by the Secretariat

Individual measures:

The fact that, notwithstanding the judgments of the European Court, final court decisions given against the state remain to date unimplemented or only partially implemented is of concern. The authorities should therefore ensure that the respondent administrative or legal entities abide by these decisions fully and without further delay or, where there are objective obstacles, propose appropriate alternative solutions to applicants.

General measures:

The work undertaken by the authorities has enabled them to identify legislative and practical obstacles to the timely and voluntary implementation of final court decisions by the State or legal entities under its responsibility and to determine the lines of reform to be pursued. However, this work has yet to result in concrete measures. The authorities should therefore redouble their efforts to achieve tangible progress in the execution of this group of cases.

The lines of reform identified are of a nature to enable the authorities to tackle many of the causes of the violations found by the Court. The wide awareness-raising measures envisaged are also promising, considering that in a significant number of cases, the administration had refused to abide by final court decisions without just cause. The authorities should therefore define, without delay, concrete measures to be adopted in the framework of the intended reforms and supplement the timetable provided with the deadlines foreseen for the adoption of these measures. The awareness-raising action envisaged by the government can be noted with satisfaction.

At the same time, additional action appears required to address all the concerns expressed by the Committee with regard to the safeguards under in domestic law for ensuring voluntary and timely implementation of court decisions by the state and the remedies available.

It is recalled that there are different procedures in domestic law for the implementation of court decisions delivered against the State. These procedures differ depending on whether a pecuniary award or an obligation to perform a specific act is imposed and whether a civil or administrative court delivers the decision. They have however one common feature: when the decision is not voluntarily complied with, the creditor has no other option but to bring enforcement proceedings (see CM/Inf/DH(2012)24, §§ 17 and 30 and Foundation hostel for students of the Reformed Church and Stanomirescu, § 81).

However, according to the well-established case law of the Court, a person who obtains a debt against the state following judicial proceedings should not be expected to bring enforcement proceedings to obtain satisfaction; it is instead primarily for the state authorities to ensure compliance (see, among others, Străchinaru v. Romania, § 35 and Bourdov v. Russia (No. 2), §§ 68-70).

In the light of the above, the implementation procedures set forth in domestic law should all provide appropriate safeguards to ensure timely and voluntary compliance with decisions delivered against the State. The authorities already envisage reforming the mechanism in place for the payment of pecuniary awards to ensure that it meets this requirement. However, domestic law contains different procedures for the implementation of decisions imposing an obligation to perform a specific act, and the safeguards ensuring timely and voluntary compliance with these types of decision must also be reinforced.

Finally, having regard to the structural nature of this problem, the authorities' attention should again be called to the necessity for legal remedies. As the revised action plan is silent on this point, it is necessary to reiterate that the authorities should review the effectiveness of the existing procedures in the light of the requirements of an effective remedy developed by the Court in this field (see Burdov No. 2, cited above, §§ 96 to 100) and, if necessary, to put in place remedies meeting these requirements (cf. Recommendation Rec(2004)6 of the Committee of Ministers to member States on the improvement of domestic remedies).

Financing assured: YES