CASE OF VISAN v. ROMANIA
Partly inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
4. The applicant was born in 1949 and lives in Bucharest. 5. In a final decision of 28 June 1993, the Bucharest County Court convicted the applicant of fraud, sentenced her to six years’ imprisonment and awarded damages to the victim. The court did not address the argument that the offence had been pardoned by Decree no. 11/1988. 6. On 5 August 1993 the applicant was placed in detention, where she remained until 22 July 1994. 7. In a final decision of 3 October 1995, the Supreme Court of Justice acting on an application of the Procurator General (recurs în anulare), quashed the final decision of 28 June 1993 and ended the criminal trial against the applicant on the ground that the offences committed had been pardoned. It upheld the remainder of the decision. 8. On 6 March 1998 the applicant lodged an action with the Bucharest County Court, under Articles 998-999 of the Civil Code, seeking compensation from the State for the damage caused by the “severe miscarriage of justice which had led to her illegal detention for almost one year”. She claimed 200,000,000 Romanian lei (ROL). 9. The case was tried by ten courts, corresponding to three levels of jurisdiction. The courts examined the case either under Article 504 of the Code of Criminal Proceedings (“CCP”) or under the Civil Code. In her pleas the applicant invoked the Civil Code supplemented by the CCP provisions above. 10. In a final decision of 28 January 2003 the Supreme Court of Justice rejected the applicant’s action. It considered that the facts of the case allowed for the application of Article 504 of the CCP as interpreted by the Constitutional Court’s decision no. 45 of 10 March 1998 (see paragraph 18 below). However, it considered, for the first time, that the applicant should have brought her claims within one year from the date on which her conviction had been quashed (Article 505 of the CCP). As she failed to do so, her action was time-barred. 11. On 17 February 2003 the Supreme Court of Justice delivered an attestation informing the applicant that her action had been rejected as timebarred. 12. On 7 November 2003 the applicant obtained a copy of the final decision of 28 January 2003, after several unsuccessful attempts and complaints lodged with the Ministry of Justice and the Supreme Court of Justice concerning the unreasonable delay in the drafting of the court decision. 13. Decree no. 11/1988 on the pardon of certain criminal offences and the reduction of various sentences reads as follows, in so far as relevant: “Criminal offences for which a sentence of up to ten years’ imprisonment has been imposed shall be pardoned.” 14. The relevant provision on the pardon in the Criminal Code reads as follows: “(1) The pardon extinguishes the criminal responsibility for the act committed... (2) The pardon does not affect ... the rights of the victim.” 15. The relevant Articles of the Civil Code state as follows: “Any act committed by a person which causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.” “Everyone shall be liable for damage he has caused not only through his own act but also through his failure to act or his negligence.” 16. According to the provisions of Article 3 of Decree no. 167/1958 the general time-limit for lodging an action for compensation is three years from the date when the damage occurred. 17. The relevant Articles of the CCP prescribe: “Anyone who has been convicted by means of a final decision is entitled to compensation from the State for any loss or damage sustained where after a retrial it is held in a judgment against which no appeal lies that he did not commit the offence in question or that no offence was committed. Anyone against whom a preventative measure has been taken, and in whose favour a decision to discontinue proceedings or of acquittal has been given for the reasons listed in the preceding paragraph, also enjoys a right to compensation for damage sustained...” “... The claim [for compensation] must be lodged within one year from the date of the final acquittal or from the order discontinuing the proceedings.” 18. In a decision of 10 March 1998, published on 18 May 1998 in the Official Journal, the Constitutional Court, to which an objection had been submitted alleging that the first paragraph of Article 504 of the CCP was unconstitutional, ruled as follows: “Under Article 48 of the Constitution, the State is liable for damage caused by miscarriages of justice committed in criminal proceedings. It follows that the principle of the State’s liability towards victims of a miscarriage of justice in a criminal trial must be applied to all victims of such a miscarriage. ... The Court notes that the legislature has not brought the provisions of Article 504 of the Code of Criminal Procedure into conformity with those of Article 48 § 3 of the Constitution. ... Consequently, bearing in mind that Article 504 of the Code of Criminal Procedure provides for only two cases in which the State’s responsibility for miscarriages of justice committed in criminal proceedings may be engaged, it follows that this restriction is unconstitutional, since Article 48 § 3 of the Constitution does not allow for any such limitation.”