1

2.04.2007 Romanian Academic Society

Adriana Dagalita Dragos Bogdan

Strasbourg Court jurisprudence and human rights in Romania: an overview of

litigation, implementation and domestic reform

State of Art Report

I. Introduction ............................................................................................................2 I.a) Short history................................................................................................2 I.b) Number of applications lodged before the Court........................................5

i) The number of applications lodged before the Court .................................6 ii) Number of applications declared inadmissible .........................................7

I.c) Type of judgments ......................................................................................7 II. Human rights litigation Patterns in Romania ........................................................8

II.a) Domestic mechanism of the judicial review of human rights ...................8 i) The structure of the justice system..............................................................8 ii) Domestic reception of the Convention and of the Court’s case-law .........9

1)Theoretical approach..................................................................................9 2) Some reluctance in the case law of the courts ............................................10 3) Position of the Romanian Constitutional Court ..........................................11

II.b) Strasbourg rights litigation ......................................................................14 i. Cases challenging State’s abusive interference with private life or

correspondence, with freedom of speech, religion or association ........................14 1) Private life ..............................................................................................14 2) Freedom of speech ...................................................................................16 3) Freedom of association ............................................................................17

ii. Discrimination of ethnic or religious minorities......................................17 iii. Cases concerning an interference with property rights..........................18

II.c) Actors.......................................................................................................19 II.d) Strategic litigation ...................................................................................20 II.e) Domestic implementation ........................................................................20

i) State authorities with competences in implementing ECHR judgments ...20 ii) Changes triggered by the ECHR judgments against Romania................20 iii) Difficulties in an efficient implementation..............................................21 iv) Re-opening or re-examination of cases after a judgement of the Court .22

III. Strasbourg’s case law in law schools and literature review...............................23 III.a) Law Schools and magistrate’s training ..................................................23 III.b) Law books ..............................................................................................23 III.c) Magazines and studies............................................................................24

IV) Conclusion.........................................................................................................25 Annex I: Short version of the state of the art report intended for policy users........27 Annex II: Mapping of Research Competence……………………………………..36

2

I. Introduction

I.a) Short history 1. Romania, like other postcommunist countries, first encountered Europe through the Council of Europe, the European intergovernmental organization in charge of enforcing free elections and human rights. It became a member of the Council in 1993, and the Council was active in making Romania adopt important legislation in the field of human rights and minorities. 2. Romania ratified the European Convention of Human Rights (“the Convention”) on 20 June 1994. Part of a larger process – tightening the relations with Western Europe – this ratification was not preceded by a study of compatibility of the Romanian legislation with the Convention as this was interpreted in the case-law of the European Court of Human Rights (the Court). 3. Moreover, at that time the Romanian juridical world was utterly unprepared for the sudden “import” of a quite consistent body of case law concerning fundamental political rights and civil liberties: there were no serious doctrinal studies of the Convention system, no specialized scholars in this field and a chronic lack of access to the Court’s1 decisions etc2. Moreover, constitutional law specialists were interested more in technical aspects of the Constitution – the new democratic institutions and their functioning – than in civil and political rights and liberties as fundamental democratic values to be applied and respected by those institutions. Constitutional law text books and practical guides from that period presented only a superficial view on the subject, something more than a mere enumeration of these rights.3 4. Paradoxically, in the first few years after the ratification, this situation manifested itself by a total lack of reaction in relation with the Convention and the Court’s case-law. Several factors contributed to that lack of “visibility”: total lack of information concerning the case law of the Court4; human rights, and especially the Court’s case-

1 The same applies for the Commission’s decisions – but, for practical reasons, I will designate thereafter both Convention’s organs as “the Court”. 2 I suspect there was also a problem of mentality, as the Convention was mainly perceived – and, unfortunately still is perceived by some members of the judiciary – as only an international instrument for the protection of human rights. Because during communism such instruments (or the Constitution for that matter) had only ideological or symbolical functions, the common mentality at that time was that the Convention itself “was just another international document (i.e. – paper)” which describes in nice words some general principles concerning human rights, but without any influence whatsoever on the practical functioning of the judiciary or of the whole society. 3 See, for instance, Ion Deleanu, “Constitutional law and political institutions”, vol II, Ed. Chemarea, Iasi, 1993, p. 89 – 103; Dan Ciobanu, Victor Duculescu, “Romanian constitutional law”, Ed. Hyperion XXI, Bucharest, 1993, p. 90 – 116. 4 As far as I know, at that time, an NGO – APADOR-CH – had the only set of the complete collection of the Court’s and Commission case law (Decision and reports); the second one was donated by the Romanian judge (Mr. Birsan) to the Governmental Agent some time in the late ’90. Until then, there was no other complete source of information on the case-law. Also in 1997 an NGO (the Romanian Institute for Human Rights) translated in Romanian, published and distributed freely Vincent Berger’s book on the case-law. But the problem of access to the case law of the Court was only solved at the

3

law were not studied in law schools; the magistrates were not trained or informed on this issue; there were no available books which could explain in an accessible manner for Romanian lawyers and judges the main principles, institutions and notions of the Convention and the Court’s case-law. 5. As time passed, in the late 1990s, more and more information became available about the Convention and the Court’s case-law which raised the awareness of the judicial system. Still, incomplete information, lack of widespread access to the Court’s case-law, lack of studies which could explain the solutions of the Court and its methods were obstacles in understanding its importance for the day-to-day professional life of a magistrate or a lawyer. 6. There was also a problem of mentality because the Romanian judicial system is not based on precedents (of course, previous decisions of the highest courts are taken into consideration, but they do not have mandatory power in any subsequent case); as a consequence there is little attention paid to previous case law and judges or lawyers focus mainly on interpreting the law itself as it should be applied in that particular case.5 The law is usually, as in many continental systems, quite elaborated and detailed. Therefore, it was extremely difficult for Romanian magistrates and lawyers to understand and accept how the Court can interpret and develop the Convention in such a creative manner, in its case law. 7. The approach of the Court, based on balancing conflicting interests, proportionality, the margin of appreciation doctrine and so on, was – and unfortunately still is - very different from the usual way in which cases were handled in the Romanian judicial system. As in many continental countries, judges were only to apply a solution provided for by the law itself without having a “margin of appreciation” of some kind. Their role in solving the conflict between two opposing parties was mainly to find the applicable law (after establishing the facts of the case) and to interpret it (if necessary). This has led to a quite formalistic approach in solving cases, very close to the language of the domestic legislation. For instance, in cases concerning nationalized property, which were and still are very common, judges often resume themselves to applying national legislation, without trying to use basic standards created in ECHR case-law: they are not used to verifying if the interference with the property right is stipulated by the law, has a legitimate aim, is proportionate with that aim and so on. This difference in approach – and in mentality - caused more difficulties in understanding the Court’s solutions.6 As a result, in the late ’90s, some members of the judiciary expressed the opinion that only the Convention itself has to be applied, not the case-law of the Court (especially the case law concerning other states). 8. Moreover, the state authorities (high judiciary officials and Government representatives) refused to fully take into account decisions of the Court which concerned sensitive matters, as, for instance, the powers of the prosecutors. Relevant

turn of the century when it became possible to read all the decisions on the internet by accessing the site of the Court. 5 One of the most important consequences of this approach is a chronicle problem of the judicial system, namely conflicting courts decisions. 6 To some magistrates it appeared as though the Court just reached the solution in the same way in which a magician pulled a rabbit from a hat.

4

for this situation is the way in which the Romanian judicial system perceived and applied the first decisions of the Court against Romania. The first convictions by the Court occurred in 1998 (Vasilescu7 and Petra8) and in 1999 (Brumarescu9 and Dalban10). In Vasilescu the applicant lodged an action in order to recover some coins confiscated by the communists. The Supreme Court decided that the competent authority to deal with the applicant’s claim was a prosecutor. In this context, when analyzing an alleged breach of the right to access to a court, the Court expressly stated that a prosecutor is not a “magistrate” in Convention’s terms. Because the solution was given on article 6, and not on article 5, and even though some doctrinal studies mentioned the problem11, prosecutors continued to have the power to arrest, even though they clearly did not fulfill the relevant criteria established in the Court’s case-law, until the Court convicted Romania for breaching article 5 in Pantea, in 2003. 9. The same unwillingness of the Government and of the judiciary to apply the Court’s decisions is even more obvious in connection with the General Prosecutor’s power to lodge a supervisory review (in French – “recours en annulation”) before the Supreme Court of Justice. The General Prosecutor used this power, in civil matters, mainly in cases concerning nationalized property.12 The Court considered that, by allowing the application lodged under that power, the Supreme Court of Justice set at naught an entire judicial process which had ended in a judicial decision that was “irreversible” and thus res judicata. Therefore, articles 6 and 1 of Protocol no. 1 of the Convention, were violated. After the initial conviction in Brumarescu, in 1999, the General Prosecutor continued to lodge supervisory reviews until the law was modified in 2004.13 Between 1999 and 2005 Romania was convicted in about 50 cases for this kind of violation of articles 6 and 1 of Protocol no. 1 in connection mainly with nationalized property issues; there are other similar cases which are waiting to be solved14. 10. Despite these problems some progress was made over the years. In 1999 the National Institute of Magistracy introduced in its initial training curricula the study of Strasbourg Court’s case law and since then more than 700 future magistrates have been trained. Also, seminars on ECHR case-law for sitting magistrates have been held

7 See Vasilescu v. Romania, judgment of 22 May 1998. 8 See Petra v. Romania, judgment of 23 September 1998. 9 See Brumarescu v. Romania, judgment of 28 October 1999. 10 See Dalban v. Romania, judgment of 28 September 1999. 11 See, for instance, Dumitru Radescu “The notion of “magistrate” in Romanian legislation and some contradictions with European Regulations”, in “Economical and juridical studies”, Nicolae Titulescu University, 2001, p. 137. 12 See infra, no. 33. 13 The legal provision granting the General Prosecutor the extraordinary appeal powers in civil matters has endured in the Civil Procedure Code up until 2003 and in the Criminal Code until fall 2004, when it was finally dropped under pressure from Europe. From January 1st, 2001 to 2004 such powers were extended to cases where the courts adopted wrong decisions by violating the law which could be exclusively a matter of interpretation of facts and/or law. See also infra p. 9. 14 See ECHR, Analysis of statistics, 2005 (http://www.echr.coe.int/NR/rdonlyres/496D9551-8C1A-42A4-8270-B7D5B6EB6EC4/0/AnalysisOfStatistics2005.pdf), p. 17, where it is shown that there are about 60 application concerning military pensions. In all this cases the problem which attracts a violation of the Convention is the supervisory review lodged by the General Prosecutor – see Stere and others, judgment of 23 February 2006, the pilot case for this type of cases.

5

since late 1990s. The first doctrinal studies where the Court’s case-law was analyzed were published, and, in 2005, the first two books became available on the market15. 11. The numerous condemnations following Brumarescu and the large amounts of money the state had to pay16 have become a hot media subject, receiving wide media coverage. This, in turn, increased the pressure on the judiciary who became more and more aware of the importance of Strasbourg case-law and the necessity to apply it. Because of the same mass-media coverage, and a lack of adequate information, the public at large began to perceive the Strasbourg Court as a “supreme Court” where all the misdoings of the national judicial system could be undone, some kind of panacea for all dissatisfactions related to the functioning of national courts. As a result more and more applications were lodged before the Court.

I.b) Number of applications lodged before the Court 12. According to latest statistics of the Court published on 25 January 200717, Romania ranks second after Russia as the most important “providers” of applications logged before the Court. For a population of roughly 22,000,000 habitants and 10 850 applications pending on 1st of January 2007 (12.1% of the Court’s total workload), Romania has the highest rate of Strasbourg applications per capita. In one single year, 2006, around 4,600 applications were lodged against Romania. Court’s statistics also shows that between 1 November 1998 and the end of 2006, around 24,400 applications were lodged against Romania, of which 185 ended in a judgment, and 192 applications were declared admissible and are waiting for a consideration of the merits. More than 7,500 cases were declared inadmissible by the Court. 13. In 2006, 73 ECHR judgments in cases concerning Romania were delivered, most of all finding violation of Articles 6 of the Convention and 1 of Protocol no 1 to the Convention. Other 53 applications were declared admissible. In the same period, more than 2,300 applications against Romania were declared inadmissible. In fact, around 95% of the applications already disposed off by the ECHR were inadmissible for not complying with Articles 34 and 35 of the Convention which state for the admissibility criteria. This percent may strike the eye, but the relatively low rate of success of Strasbourg litigation provided by Romania corresponds to the average rate18. 14. The vast majority of the applications are declared inadmissible by a committee of three judges. According to the current procedure, the applicants are succinctly informed by letters with regard to the decision taken and its reasons, but then no formal written decision is communicated or published. Consequently, it is rather difficult to have an accurate overview of the most common reasons for inadmissibility.

15 See Dragos Bogdan, Mihai Selegean, “Fundamental rights and liberties in ECHR case-law”, All Beck, Bucharest, march 2005; Corneliu Birsan, “The European Convention on Human Rights”, All Beck, Bucharest, may 2005. 16 For instance the government was obliged to pay some 700 000 Euro in Falcoianu case (judgment of 9 July 2002) and 900 000 Euro in Popescu Nasta case (judgment of 7 January 2003). 17 See Survey of Activities 2006 published on www.echr.coe.int, p. 56. 18 In 2006, a number of 27,243 of cases were declared inadmissible and 1,720 judgments were delivered (see Survey of Activities 2006, p. 6-37, which means that only around 5 % of all cases were successful in 2006).

6

15. These quite high numbers raise two different questions: how do we explain the number of applications lodged before the Court against Romania (i) and the number of applications declared inadmissible by the Court (ii). I believe that these questions, which are not specific for Romania, are closely linked.

i) The number of applications lodged before the Court 16. The constant increase of the number of applications against Romania, mainly in the last years (2000-2006), may be related to more general grounds, common to most of east-European countries (new members of the Council of Europe) like the accessibility of the right to individual petition before the ECHR, the recognized success and popularity of the Court19 and also the reforms made in areas of interest to a large part of the population. 17. With regard to Romania, there are also specific grounds for the increasing number of applications mainly related to a negative common perception of the domestic judiciary system and the way in which reforms concerning nationalized property and land reforms were carried out.20 18. The mistrust in the national judicial system and the lack of information on the role of the Court (which constantly underlines that it is not a fourth instance) can explain the large number of applications lodged before it by those who lose in civil procedures in domestic courts or by the persons convicted in criminal trials. 19. Another big part of Romanian applications lodged before the court are the result of the way in which the land reform and restitution of previously nationalized property to its original owners were carried out21; the large part of the population discontented as a result of these reforms represents a never-ending pool for applications. 20. More than half of the caseload of national courts between 1995 - 2002 is related to the property restitution and land reforms.22 In the case of land restitution, successive laws in 1990, 1991 and 1997 managed to create over half a million law suits. The 1991 law created ownership rights over land for other persons than the ex-owners - from whom the land was taken by the communist regime. The 1997 law was a full restitution act by which the land was given back to ex-owners. Because of the administrative chaos and the lack of a proper cadastral registry, there were numerous cases in which two categories of justified claims over the same piece of land were created by law. 21. For urban houses and apartments the situation was similar. Until 1995, many ex-owners succeeded to win back in Courts their buildings by individual trials, claiming

19 For example, between 1995 and 1991, 19,216 ECHR applications were allocated to a decision body, which correspond to 2/3 of applications allocated to a decision body in 2006, namely, 39,373. 20 See “Justice in Romania. A state of the art report”, Romanian Academic Society, 2004, p. 14. 21 For a very comprehensive description of the evolution of the nationalized houses situation and the problems generated by it see Paduraru v. Romania, judgment of 1 December 2005. 22 1995 – 1,679,118 cases; 1996 – 1,746,266 cases; 1997 – 1,802,142 cases; 1998 – 1,740,088 cases; 1999 - 1,724,668 cases; 2000 – 1,775,282 cases; 2001 – 1,906,197 cases; 2002 – 1,972,914 cases.

7

exceptions from the nationalization laws. In 1995, Romania’s President at that time stated in a public speech that the Courts are not competent to rule on cases concerning nationalized property. After this speech the General Prosecutor used the extraordinary appeal procedure, so the Supreme Court was forced to judge again each case and decided that courts are not competent to judge claims concerning nationalized property issues. Meanwhile the state agency managing the nationalized estates sold them to tenants, although they knew lawsuits were pending from owners. This political crusade directed against former owners by postcommunist governments and agencies created chaos in Courts. The situation was not ended by the passage in 2001 of a new restitution law, allegedly more liberal, because by that time most cases were on their individual track through Courts. Moreover, the new law created a new waive of processes between former owners and tenants.23 In other words, the most important burden of the judiciary is politically created.24 Without a doubt, these problems weigh heavily on the Romanian ECHR caseload. 22. There are also other factors which could explain the great number of applications: lack of any tax for access to the Court, lack of obligation to have a lawyer in the first stages of the procedure in front of the Court (the applicants can write themselves in their own non-technical language).

ii) Number of applications declared inadmissible 23. As shown above, articles 6 and 1 Protocol no. 1 are the most common grounds of complaint before the Court and the “fourth instance” motivation is the widest ground for declaring an application inadmissible as manifestly ill founded. Together with non compliance with the six month rule, non-exhaustion and incompatibility ratione materiae, these grounds explain the bulk of inadmissibility decisions. They show a lack of information concerning the role of the Court and the basic rules that govern its functioning. Lack of lawyers specialized in Human Rights, the possibility to apply to the Court without a lawyer’s assistance and help (because of financial difficulties most of the applicants do not have a lawyer) are also factors that should be taken into consideration when analyzing this matter.

I.c) Type of judgments 24. Large number of ECHR judgments concerning Romania – namely more than 80 – concerns loss of property as a result of quashing final judicial decisions in supervisory reviews procedures (violation of Articles 6 of the Convention and 1 of Protocol no 1

23 See Paduraru v. Romania, judgment of 1 December 2005. 24 Laws are passed without any evaluation of their impact. For instance, the August 2003 changes to the Civil Procedure Code had a number of negative consequences for the functioning of the justice system. Despite warnings by the media, the High Court was given responsibility for ruling on all appeals on points of law, which created an unprecedented backlog of appeals (up from 3,175 in 2002 to 35,800 by the end of April 2004). This seriously restricted the ability of litigants to obtain a final judgment within a reasonable time. The situation became untenable and in May 2004 the responsibility for second appeals was returned to tribunals and courts of appeal. The possibility for appeal on what were said to be minor issues and the filtering function of the High Court to verify the admissibility of cases were both eliminated. Transitional measures were also put into place to reattribute the remaining backlog to lower courts, though the backlog of files at the High Court is far from cleared as a total of approximately 24,000 remained there by the end of 2004. The application of the revised Criminal Procedure Code that entered into force in January 2004 was in some respects insufficiently prepared.

8

to the Convention) and the non enforcement of final court decisions (violation of Articles 6 and, sometimes, 1 of Protocol no 1). The majority of the 25 latest ECHR judgments with regard to Romania concerns non enforcement, mainly by local administrations and the police, of final court decisions concerning civil rights, which shows a systemic problem of the Romanian administration and law enforcement officials. A number of other cases were resolved before the delivery of a final judgment following settlements between the Romanian authorities and the plaintiffs. 25. Following a long series of rulings against Romania in property trials (in favor of former owners), the ECHR issued substantive judgments against Romania during the last years. The most significant of these judgments (Pantea v. Romania) found that Romania had violated Articles 3, 5 and 6 of the Convention. The findings concerned mistreatment when in prison, unlawful arrest, excessively long detention before seeing a judge, and inability to conclude a case in a reasonable time. With regard to the arrest procedures, the findings of the Court were particularly significant as they ruled that Romanian prosecutors could not be considered as independent magistrates and were therefore not able to issue arrest warrants. Other judgments concerned violation of the right of prisoners to receive mail and the lack of access to a court in order to review the final outcome of an administrative procedure. 26. There are also a number of ECHR judgments which concern Articles 8, 9, 10, 11 or 14 of the Convention. Regardless of their number, they treat of a quantity of important issues, like: the absence of legal and judicial safeguards against State Intelligence service’s interference with the private life25; the absence of legal and judicial safeguards against expulsion of foreigners26; absence of foreseeable legal framework for religious groups and their organization and religious activities27; freedom of expression28; discriminatory statements and actions of law enforcement officials with regard to Roma ethnics29. II. Human rights litigation Patterns in Romania

II.a) Domestic mechanism of the judicial review of human rights

i) The structure of the justice system 27. The courts have the main task in protecting human rights. Usually, in Romania there are three stages of litigation: in the first two stages, the courts are empowered to rule both on the merits and the law, while in the third instance (appeal on points of law or appeal on cassation) their review is limited to issues of legality.30

25 See Rotaru v. Romania ECHR judgment of 4/05/2000. 26 See Lupsa v. Romania ECHR judgment of 8/06/2006 and Kaya v. Romania ECHR judgment of 12/10/2006. 27 see Religious Organization of Jehovah’s Witnesses and 14 others v. Romania ECHR decision of 11/07/2006. 28 See Cumpănă and Mazăre v. Romania, judgment of 17 Deceber 2004, (GC); Sabou and Pârcălab v. Romania, judgment of 28 September 2004. 29 See Moldovan and Rostaş v. Romania ECHR judgment of 12/07/2005. 30 In general, cases enjoy a judgment in substance in the court of first instance and two degrees of judicial redress: appeal on facts and appeal on law.

9

28. There are four kinds of courts: county courts (tribunaux de première instance; judecatorii); regional courts (tribunaux de grande instance; tribunale); courts of appeal (cours d’appel, curti de apel)31 ; the High Court of Justice and Cassation (la Haute Cour de Justice et Cassation) ; Inalta Curte de Casatie si Justitie). Courts at each of these levels have prosecutors’ offices attached to them. The most important among these is the High Court of Justice and Cassation (HCCJ) which has a general competence - it deals with criminal, civil or administrative law matters. To simply put it32, the main criterion in determining the competent court is the importance of the trial (patrimonial importance in civil cases and the gravity of the offence in criminal cases). Therefore, there are cases for which the appeal on points of law (in cassation) is decided by a court of appeal and does not reach the HCCJ. This situation leads to conflicting court decisions, and, in some specific matters one could say there are 16 Supreme Courts (namely the courts of appeal which have a divergent case-law on these matters)33. Combined with the lack of an efficient mechanism34 to unify the case-law35 and conflicting decisions existing in the same court (even the HCCJ has conflicting decisions on the same law problem36) this leads to a wide-spread problem which can only result in weakening the confidence of the population in the justice system.37 These cases are analysed by the Court under article 14 combined with article 1 Protocol 1 or article 6. 29. The Constitutional Court (RCC), as in many other countries, is not a part of the judicial system, but it is an independent body which primarily exercises review of constitutionality of legislation. The RCC may decide on the constitutionality of laws adopted after the 1991 Constitution came into force. Ordinary courts may decide the constitutionality of laws adopted prior to 1991. RCC has a two-fold jurisdiction: the examination of laws before their promulgation by the President, and the examination of laws already in force when their constitutionality is challenged before ordinary courts (citizens are not empowered to address RCC directly). The RCC can invalidate legislation contrary to the provisions of the constitution mainly by way of a preliminary question addressed to it by the courts. This procedure is used quite often and has had a few interesting results. Nowadays RCC normally tries to find support for its decisions in the Strasbourg Court’s decisions; however, this is not always the case and, in some occasions, RCC’s solutions contradict (at least in an indirect manner) Strasbourg case-law.38

ii) Domestic reception of the Convention and of the Court’s case-law

1)Theoretical approach 31 At present, there are 178 county courts, 41 regional courts and 15 courts of appeal functioning. 32 A complete explanation is quite technical and would pass over the scope of this study. 33 See supra, footnote no. 19 on the failure to ensure the competence of the HCCJ to decide on all appeals on points of law. 34 Following the General Prosecutor’s appeal, the Supreme Court may also decide on legal matters, which were given significantly different interpretations by ordinary courts (Code of Criminal Procedure, Article 414; Code of Civil Procedure, Article 32). The judgments adopted in the later cases have an overall binding power. Unfortunately, over the years the Prosecutor General used very rarely this possibility (although in the last year one can observe a substantial increase in the number of applications lodged). 35 See Paduraru v. Romania, judgement of 1 December 2005, par. 98. 36 See Paduraru v. Romania, par. 34 and 35. 37 See Paduraru, par. 98. 38 See also infra p. 10.

10

30. All civil and political rights on which JURISTRAS focuses are protected by the Romanian Constitution (protection of private and family life, correspondence and home – Articles 26, 27 and 28; freedom of religion and beliefs – Article 29; freedom of speech – Article 30; freedom of meeting and association – Articles 39 and 40; prohibition of discrimination – Article 16 of the Constitution). According to Articles 11 and 20 of the Romanian Constitution, the Convention has direct effects on the legal order of Romania and it prevails over national legislation or even over the Constitution in human rights matters.39 This status is recognised by the scholars40, or in some decisions of the courts41 or of the RCC42. Therefore, the courts can apply directly Strasbourg’s case-law - they do not have to address a preliminary question to RCC in this matter.

2) Some reluctance in the case law of the courts 31. However, courts are often reluctant to apply the Convention when the domestic legal framework itself affects human rights. As an author shows, “(…) the courts rarely use the Convention, even though it is constantly indicated in defense by the parties of the procedure, especially in criminal matters or cases concerning nationalized property”43. Even if, in some cases, the ECHR found a violation of the Convention because of the domestic law not meeting the standards of the Convention, the domestic courts were still reluctant to give priority to the Convention. 32. In this respect, one of the most illustrative examples44 is related to the Romanian Criminal Code: under Romanian law, the ban on exercising parental rights was an ancillary penalty which was imposed automatically on any person who served a prison sentence, without the supervision of the courts and without taking account of the type of offence and the child’s interests. Accordingly, the ban represented a moral reprimand aimed at punishing the convicted person rather than a child-protection measure.45 Accordingly, the Court concluded that there had been a violation of 39 The Convention prevails only when the constitutional standards are lower than those of the Convention – according to article 20 of the Constitution, the Constitution itself must be interpreted and applied in accordance with the Universal Declaration of Human Rights and the other international treaties ratified by Romania. 40 See, for instance, Corneliu Liviu Popescu, “The international protection of Human Rights. Sources, institutions, procedures”, Ed. All Beck, Bucharest, 2000, p. 270; Dragos Bogdan, “The right to life”, in Dragos Bogdan, Mihai Selegean, “Fundamental rights and liberties in ECHR case-law”, All Beck, Bucharest, 2005, p. 2; Corneliu Birsan “The European Convention on Human Rights. Commentary on articles. Volume I. Rights and liberties”, Ed. All Beck, 2005, p. 98; Radu Chirita, “The European Conventoio on Human Rights. Commentaries and explanations”, vol. I, Ed. C.H. Beck, Bucharest, 2007, p. 48 and 49. 41 See, for instance, decision no. 234/A/24 Mars 1997, Bucharest Regional Court, unpublished; decision no. 1232/8 Mars 2000, HCCJ, unpublished; decision no. 3111/24 Mars 2006, HCCJ, unpublished; decision no. 868/14 Mars 2006, County Court District no. 4, Bucharest, unpublished; decision no. 1107/3 May 2005, County Court, District no. 6, Bucharest, unpublished. 42 See, for instance, decision no. 81/1994 (published in the Official Gazette no. 14/25 January 1995); decision no. 349/2001 (published in the Official Gazette no. 240/10 April 2002). 43 See Radu Chirita, “The European Convention on Human Rights”, C.H. Beck, Bucharest, 2007, p. 52. 44 See Sabou and Pircălab v. Romania ECHR judgment of 28 September 2004. 45 In a judgment of 15 December 1997 Năsăud Regional Court sentenced Mr Sabou to 10 months’ imprisonment for libel, and also banned him from exercising his profession of journalist and suspended his parental and electoral rights for the duration of his imprisonment. The offence for which Mr Sabou

11

Article 8 of the Convention. Or, even after the judgment in Sabou and Pîrcălab, the domestic courts continued to apply automatically the criticized provisions (namely Articles 71 and 64 of the Romanian Criminal Code) as those provisions were still in force. Legislative changes in order to comply with the ECHR judgment were adopted only in July 200646. 33. Another classic example shows how the reluctance of Romanian domestic courts to respect ECHR judgments may end in repetitive findings of human rights violations by the Strasbourg Court. In 1999, the ECHR found a violation of article 6 of the Convention because of the power of the Procurator General to challenge final court decisions and because of the entire mechanism of the application for nullity provided by Article 330 of Romanian Code of Civil Procedure47. Long after 1999, in February 2005, the Romanian HCCJ continued to admit applications for nullity lodged by the Procurator General, in civil cases48. 34. Repeated violations of article 6 in criminal procedures were found by the Court when an accused person, after being acquitted by the first court, was convicted in appeal without a hearing of his personal submissions by the appeal court. In Constantinescu49, in 2000, this was found to be in breach of article 6 as interpreted in previous ECHR judgements. The Court confirmed its findings in Ilisescu and Chiforeac50 and Danila51. Even after these convictions, national courts continued to convict in appeal accused persons who had been acquitted by the first court, without hearing their submissions.

3) Position of the Romanian Constitutional Court 35. The reluctance of domestic courts to directly apply the Convention or even the national Constitution, in situations where inferior legislative provisions were not in accordance with human rights basic standards, was – at least partially – due to the lack of training52 of national judges in human rights and constitutional issues, but also to the failure of the HCCJ and of the Constitutional Court to ensure and impose respect of the human rights, at the domestic level. 36. For example, regarding the statute of the public prosecutor, the Constitutional Court decided53 that it is not incompatible with the prosecutor’s power to arrest the simple fact that it acted in a case as a prosecuting authority. This solution contradicts the Court’s case-law in this matter; the Court has held that, in this respect, objective appearances at the time of the decision on detention are material: if it appears at that

had been convicted was completely unrelated to questions of parental responsibility and at no time had any allegation been made concerning a lack of care on his part or ill-treatment of his children. 46 By law no 278/2006 published in the Official Gazette no 601 of 12 July 2006. 47 See Brumarescu v. Romania ECHR judgment of 28/10/1999. 48 See the case Pilot Service Constanţa v. Romania, ECHR application no 1477/02, communicated to the responded government. 49 See Constantinescu v. Romania, ECHR judgment of 27 June 2000. 50 See Ilisescu and Chiforeac v. Romania, ECHR judgement of 1 december 2005. 51 See Danila v. Romania, ECHR judgement of 8 mars 2007. 52 According to the European Commission Monitoring report of 16 May 2006 “Training needs remain high particularly for judges, prosecutors and clerks already employed. A consistent interpretation of the law at all level of courts is not fully ensured yet throughout the country.” 53 See RCC judgment no. 268/1997.

12

time that the prosecutor may later intervene in subsequent criminal proceedings on behalf of the prosecuting authority, his independence and impartiality may be open to doubt.54 In Pantea v. Romania55, the Court stated that the public prosecutor is not a magistrate in the meaning of article 5 § 3 of the ECHR because it does not satisfy the requirement of independence from the executive. 37. There is also a difference between RCC and the ECHR case-law in the matter of deportation of a foreigner for being a threat to national security. National legislation allowed the national authorities to deport foreigners in this case without furnishing any evidence or even indicate what the nature of the threat was.56 RCC was called to rule on the compatibility of this legislation with the constitutional principles of non-discrimination, the right of access to a tribunal and the right to a fair trial57 and found that it was in conformity with the Constitution and the Convention.58 Yet, in Lupsa v. Romania, ECHR found a violation of the right to private and family life.59 38. The same situation occurred in relation with the ban to exercise parental right60: in a decision from 200161 RCC considered that this penalty was an option of criminal policy of the legislator who considered that the convicted was unworthy to exercise

54 See, for instance, Huber v. Switzerland, judgment of 23 October 1990, Series A no. 188, p. 18, § 43, and Brincat v. Italy, judgment of 26 November 1992, Series A no. 249-A, p. 12, § 21. 55 Judgment of 3/06/2003. 56 See Government Emergency Ordinance no. 194/2002. 57 An objection on grounds of unconstitutionality had been raised by an alien when seeking judicial review of an order by the public prosecutor’s office declaring him undesirable on the ground that “sufficient intelligence had been received that he had been engaged in activities capable of endangering national security”. 58 Decision 324 of 16 September 2003: “The situation of aliens who are declared undesirable in the interests of national security and the protection of secret information is different from that of other aliens, which allows the legislature to establish different rights for these two categories of alien without that difference infringing the principle of equality. The genuine difference arising from the two situations justifies the existence of different rules.

The Court also notes that the prohibition on communicating to undesirable aliens the data and information justifying that measure is in conformity with the provisions of Article 31 § 3 of the Constitution, which provides that “the right to information shall not undermine national security”.

Nor do the provisions of section 84(2) of the Government Emergency Ordinance infringe the principle of free access to the courts, as provided for in Article 21 of the Constitution. In accordance with section 85(1) [of the above-mentioned ordinance], the person concerned can apply for judicial review of the prosecutor’s order...

Nor can the Court accept [the criticism] concerning the independence of the judges [of the Court of Appeal]; they must comply with the law giving priority to Romania’s national security interests. The Court of Appeal is required to rule on the application for judicial review of the order in accordance with the provisions of Emergency Ordinance no. 194/2002, reviewing, in the conditions and within the limits laid down by that order, the lawfulness and merits of the order of the public prosecutor’s office.

With regard to the provisions of Article 6 § 1 of the Convention ..., the Court notes that the impugned provision does not prevent those concerned from applying to the courts to defend themselves and assert all the guarantees of a fair trial. Furthermore, the European Court of Human Rights held, in its judgment of 5 October 2000 in the case of Maaouia v. France, that decisions regarding the entry, stay and deportation of aliens did not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him within the meaning of Article 6 § 1 of the Convention.” 59 See infra p. 14. 60 See also supra, no. 32. 61 See RCC, decision 184/1 June 2001.

13

parental rights. When confronted with the same problem, the Court concluded that there had been a violation of Article 8 of the Convention.62 39. Another illustrative example regards the automatic interdiction of the right to vote for criminally convicted persons, according to the articles 71 and 64 of the Romanian Criminal Code. Upon preliminary request, the RCC considered in a decision of 14 June 200163 that the questioned provisions complied with the constitutional rights. However, the same matter was differently decided by ECHR64 who considered that any limitations on the right to vote had to be imposed in pursuit of a legitimate aim and be proportionate. Any such conditions should not restrict the free expression of the people in the choice of the legislature. Concerning prisoners in particular, the Court emphasized that they generally continued to enjoy all the fundamental rights and freedoms guaranteed under the Convention, except for the right to liberty, where lawfully imposed detention expressly fell within the scope of Article 5 (right to liberty and security). Article 3 of Protocol No. 1, which enshrined the individual’s capacity to influence the composition of the law-making power, did not exclude that restrictions on electoral rights be imposed on an individual who had, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations. However, the ECHR found that the severe measure of disenfranchisement was not to be undertaken lightly and the principle of proportionality required a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. As in other contexts, an independent court, applying an adversarial procedure, should provide a strong safeguard against arbitrariness. The RCC case-law departs from the ECHR one, in this respect, even if applications against Romania concerning the right to vote for detained persons65 are pending before the ECHR, risking ending up in violations judgments, following the established case-law of the ECHR. 40. Even if the RCC does not always depart from Strasbourg case-law, constitutional decisions that contradict ECHR findings are not so rare. Also, although a number of RCC decisions make reference to the Convention, most of the times the text of the Convention is just indicated, without any analysis of the Court’s case law. As an author shows, “this attitude of RCC is hardly explicable when we take into account the fact that the Convention is frequently indicated by the applicants and their arguments are not addressed by RCC”.66 41. However, in recent years, an evolution can be observed in RCC’s case-law. In some decisions, the references to ECHR case-law became more ample and full of content, and the formal approach – the mere indication of the Convention’s provision – transformed itself in an analysis of the case-law. But “references to the Convention and the Court’s case-law still are made, in many occasions, in a chaotic and formal

62 See Sabou and Pircălab v. Romania ECHR judgment of 28 September 2004. 63 Published in the Official Gazette no 509 of 28 August 2001. 64 See Hirst v. United Kingdom, ECHR judgment of 6 October 2006. 65 See the case Calmanovici v. Romania, communicated to the respondent government, reported by the Romanian Helsinki Committee’s annual report, on www.apador.org. 66 See Radu Chirita, “The European Convention on Human Rights”, C.H. Beck, Bucharest, 2007, p. 52.

14

way, so it is hard for the RCC’s decisions to acquire a great authority for the public and the juridical world.”67 42. Sometimes there are differences of approach between RCC and the HCCJ. For instance, between 1994 and 2000, RCC ruled that the pre-trail detention must be reviewed by the courts every 30 days68. Although the judgments of the Constitutional Court are binding for all courts69, the Supreme Court issued judgments contradicting the Constitutional Court rulings.70 Moreover, the Supreme Court independently decided that Constitutional Court’s judgments require endorsement by the Parliament in order to have an erga omnes binding effect.71 In response, the Constitutional Court issued a ruling that the courts that do not observe the Constitutional Court judgments can be held responsible.72 Certainly, this situation has led to confusion among the judiciary, which was left to choose between ignoring either the Supreme Court or the Constitutional Court. Following a period of contradictory solutions, judges chose to apply the Constitutional Court’s ruling and review the pre-trial detention every 30 days. However, the beginning of 2001 brought a change back, and some courts, with the support of the trial prosecutors, refuse again to periodically review the pre-trial detention. It was only recent legislation that solved this conflict.

II.b) Strasbourg rights litigation 43. Who goes to Court? Having regard to the scope of the project, three categories seem significant (which are not exhaustive): individuals or groups challenging the State’s abusive interference with their private or family life or correspondence, with their freedom of speech, religion or association (see section i. below); discrimination of ethnic or religious minorities (see section ii. below) and, finally, individuals complaining of lack of a fair trail and interference with their property (section iii. below). The first and second sections, which focus on the scope of the project (articles 8 – 11 mainly), comprise about 17 judgments and decisions, but, having regard on the great number of judgments on article 1 of Protocol no. 1, I think a third section focusing nationalized property cases should also be included in the report.

i. Cases challenging State’s abusive interference with private life73 or correspondence, with freedom of speech, religion or association

1) Private life 44. One of the particularly sensitive – as necessary domestic legislative change is actually under acute debate – cases concerns surveyed persons with regard to

67 See Radu Chirita, op. cit., p. 56. 68 Judgments no. 60/1994, final by judgment 20/1995; no.1/1996; no. 546/1997; no. 10/2000. 69 Constitution, Article 145. 70 Supreme Court, Criminal Section, judgment no. 1613 of May 7, 1999. 71 Supreme Court, Criminal Section, judgment no. 3277 of September 28, 1999. 72 Constitutional Court, Judgment no. 186 of November 18, 1999; published in the Official Gazette 213/2000. 73 There are also judgments where the Court found violations of article 8 in relation with family life (cases that concerned custody rights, visiting rights) or home but the violation of the home or family life right was not politically motivated – see Monory v. Romania and Hungary, judgement of 26 November 2005; Lafargue v. Romania, judgment of 13 July 2006; Ignaccolo-Zenide v. Romania, judgment of 11 January 2000; Pini and Bertani and others v. Romania, judgement of 22 June 2004; Sabou and Pircalab v. Romania, judgment of 28 September 2004; Iosub Caras v. Romania, judgment of 27 July 2006; Surugiu v. Romania, judgment of 20 April 2004.

15

information kept by Romanian Intelligence Services: Rotaru v. Romania judgment of 04/05/0074. The case concerns a breach of the applicant's right to respect for his private life in that the relevant national legislation does not contain sufficient safeguards against abuse as regards the way in which the Romanian Intelligence Service (RIS) gathers, keeps and uses information. The European Court has thus concluded that the holding and use by the RIS of information on the applicant's private life were not “in accordance with the law” within the meaning of the Convention (violation of Article 8). 45. Another issue related to Article 8 of the Convention in Romanian cases concerns detained persons with regard to their correspondence. There are two ECHR judgments, one of which is Cotleţ v. Romania judgment of 03/06/0375. The case concerns interference with the correspondence between the applicant, a prisoner, and the Convention institutions, resulting from delays in forwarding his letters to the Court and the Commission (before 20 October 1997), the opening of his letters addressed to these institutions, and the prison authorities’ refusal to provide him with paper, envelopes and stamps for his letters to the Court. In this connection, the European Court concluded that the relevant domestic provisions were not public or not sufficiently precise with regard to the conditions under which interference with prisoners’ correspondence was permissible (violations of Article 8). 46. Two new judgments against Romania where the Court found a breach of article 8 point to the problem of control of deportation of aliens on the ground of being a threat to national security – and, to the more general problem of control of the secret services and there’s interferences with the private life of the individuals. In Lupsa v. Romania76 and Kaya v. Romania77 both applicants who had a private and/or family life in Romania were deported from the country on grounds of being a “threat to national security”. Apart from the general ground mentioned above, the authorities did not provide the applicant with any other details and not even with the order declaring his presence to be undesirable. In its judgment the ECHR held that the legislation on the basis of which he was deported, the lack of reasons and any evidence as well as the fact that the deportation was not subject to judicial review, made any deportation based on such legislation incompatible with the Convention.78 The Court attached weight to the fact that the Bucharest Court of Appeal confined itself to a purely formal examination of the order of deportation (the public prosecutor’s office did not provide the Court of Appeal with any details of the offence of which the applicant was suspected and the court did not go beyond the assertions of the public prosecutor’s office for the purpose of verifying that the applicant really did represent a danger for national security or public order). As the applicant did not enjoy before the administrative authorities or the Court of Appeal a minimum degree of protection against arbitrariness on the part of the authorities, the Court concluded

74 See Committee of Ministers Interim Resolution ResDH(2005)57. 75 In the other one, Petra v. Romania, judgment of 23 September 1998, the Court considered that the censorship of the applicant’s letters was not prescribed by a law because the internal regulation on the basis of which the prisons’ authorities censored its correspondence was not published or accessible to the prisoners. 76 See Lupsa v. Romania, judgment of 8 June 2006. 77 See Kaya v. Romania, judgment of 12 October 2006. 78 The precedent was a Bulgarian Case, Al-Nashif v. Bulgaria, judgment of 20 June 2002.

16

that the interference with his private life was not in accordance with “a law” satisfying the requirements of the Convention.

2) Freedom of speech 47. With regard to the freedom of speech, Romanian journalists are constant providers of Strasbourg applications. The earliest case decided by the Court is Dalban v. Romania, which ended in a judgment of 28/09/1999. The case concerns the applicant’s conviction for criminal libel in 1994, under Article 20679 of the Criminal Code, for having published articles in which he exposed a series of frauds allegedly committed by a senior official and a member of parliament. The European Court found a disproportionate interference with the applicant’s freedom of expression. Article 207 of the Romanian Criminal Code admits the adduction of evidence supporting the truthfulness of the declaration at issue when it has been made in order to protect a legitimate interest. However the Romanian courts had not allowed the applicant to prove the truth of his allegations but, inter alia, found it established that these were untrue since a non-indictment decision had been issued by the prosecutor’s office against the public official at issue concerning the same allegations (violation of Article 10. 48. In the second judgment80, the applicant, a union representative had been convicted for libel after he had used the term “delapidatori” (persons found guilty of the offence of fraudulent conversion) when referring to three teachers. The Court considered that the applicant could have expressed his criticism – and thus contributed to free public debate of union affairs – without using the word “delapidatori”; taking into account the small fine imposed on the applicant, the Court considered that article 10 of the Convention had not been violated. 49. In the Cumpana and Mazare case81, the two applicants were journalists condemned to prison for libel. The Court considered that the domestic authorities were entitled to consider it necessary to restrict the exercise of the applicants’ right to freedom of expression and that the applicants’ conviction for insult and defamation had met a “pressing social need”. When called to asses the proportionality of the measure, the Great Chamber expressly stated that the imposition of a prison sentence for a press offence will be compatible with journalists’ freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence.82 In that case, the Court considered that, without any significant practical consequence for the applicants, the sentence to prison was particularly severe. The criminal sanction and the accompanying prohibitions imposed on the applicants by the national courts were manifestly disproportionate in their nature and severity to the legitimate aim pursued

79 Libel was recently decriminalized in Romania in 2006, but the Romanian Constitutional Court declared unconstitutional the law decriminalizing libel, by a decision of 18 January 2007. 80 See Constantinescu v. Romania, judgment of 27 June 2000. 81 See Cumpana and Mazare, judgment of 17 December 2004. 82 See Cumpana and Mazare, para. 115.

17

by the applicants’ conviction for insult and defamation and therefore article 10 of the Convention had been violated.83

3) Freedom of association 50. Eastern European former communist countries’ specific problem with political parties were reflected in Romanian ECHR cases too, as shows the ECHR judgment of 03/02/2005, Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania. The case concerns the refusal by the Romanian courts, in 1996, to register as a political party the applicant political group (Party of Communists who have not been members of the Romanian Communist Party), given that its aims, as reflected in its constitution and political program, were contrary to the constitutional and legal order of Romania. The European Court noted that the founding texts of the applicant political group emphasized the principles of democracy, including political pluralism, universal suffrage and freedom to take part in politics, and did not contain any passage which might be considered a call for the use of violence, uprising or any other form of rejection of democratic principles. Moreover, the European Court rejected the government’s assertion that Romania cannot allow the emergence of a communist party to form the subject of a democratic debate. Therefore, it concluded that a measure as drastic as refusal to register the applicant as a political party, adopted before its activities had even started, was disproportionate to the aim pursued and consequently unnecessary in a democratic society (violation of Article 11).

ii. Discrimination of ethnic or religious minorities 51. ECHR found a violation of the Convention by Romania concerning Roma ethnics with regard to discriminatory attitude of state authorities, in the case Moldovan and Rostas v. Romania, ECHR judgment of 12/07/2005. The case concerns complaints raised by the applicants, all of Roma origin, concerning the consequences of events which took place in September 1993 in the Hădăreni village, where violent clashes occurred between the Roma community and the other villagers, leading to the death of three Roma and to the destruction of the applicants’ houses and of much of their personal belongings. By court verdict delivered in 2004 (final in February 2005), several non-Roma villagers were found guilty and were ordered to pay civil compensation to the applicants. Enforcement proceedings are currently pending concerning the payment of these sums. The European Court found the violation of Article 8: it concluded that, in view of the direct repercussions of the acts of state agents on the applicants’ rights (in particular due to the involvement of police officers in the burning of the Roma houses), the government’s responsibility was engaged with regard to the applicants’ living conditions, even after 20/06/1994, when Romania ratified the Convention. 52. The European Court also concluded that the general attitude of the national authorities had perpetuated the applicants’ feelings of insecurity and affected their right to respect for their private and family life and their homes. In this respect, the European Court noted, inter alia, that the Public Prosecutors’ Office had failed to

83 In Sabou and Parcalab, were the applicants had also been convicted at imprisonment the Court take this element into account when deciding that article 10 had been breached. See Sabou and Parcalab, judgment of 28 September 2004.

18

institute criminal proceedings against the state agents involved in the burning of the applicants’ houses, that the domestic courts had refused for many years to award the applicants pecuniary damages for the destruction of their belongings and furniture, that some of the houses had not been rebuilt by the authorities and those which supposedly had been rebuilt remained uninhabitable, etc. (violations of Article 8). 53. The ECHR also concluded to the violation of Article 14 taken together with Articles 6 and 8: the Court noted that the applicants’ Roma origin seems to have had a decisive influence on both the duration and the outcome of the domestic proceedings. Particular note was taken of the authorities’ discriminatory remarks throughout the proceedings and the fact that a court decision to reduce the amount of compensation awarded to the applicants for non-pecuniary damage had been motivated by observations directly linked to their ethnic origin (violation of Article 14 taken together with Articles 6 and 8). 54. The case was not singular as two more cases concerning several Roma people with similar problems are pending before the ECHR, after they were declared admissible by decisions of 19/05/200584.

iii. Cases concerning the lack of a fair trail and interference with property rights 55. The cases are concerning owners deprived of their property. More than 30 judgments85 concern the Romanian Supreme Court’s annulment of final court decisions delivered at first instance establishing the validity of the applicants' titles to property that had been previously nationalized. The Supreme Court intervened following applications for nullity lodged by the Procurator General on the ground of Article 330 of the Code of Civil Procedure in force at that time, which allowed him at any moment to challenge final court decisions. The European Court considered that by acting in this way, the Supreme Court had failed to acknowledge the principle of legal certainty and accordingly violated the applicants’ right to a fair trial and infringed the applicants’ right of access to a tribunal in that it had not recognized courts’ jurisdiction over disputes concerning recovery of property (violations of Article 6§1). Finally, the European Court found that the Supreme Court’s decisions had violated the applicants’ right to respect for their possessions by annulling without justification and without compensation final court decisions that recognized the applicants’ property rights to the apartments in question (violation of Article 1 of Protocol No. 1). 56. Other dozens of cases86 concern non enforcement of civil judgments with respect to property rights: the Romanian authorities’ failure to enforce two final court decisions concerning the restitution to the applicants of various plot of land, houses or money, amounts to an unjustified interference with the applicant’s right to the peaceful enjoyment of his possessions (violation of Article 1 of Protocol No. 1). 57. Finally, there are more than ten judgment and other 100 communicated cases which concerns the fact that the applicants could not recover possession of an

84 See Gergely v. Romania and Kalanyos v. Romania. 85 See the pilot case, Brumarescu v; Romania ECHR judgment of 28/10/1999. 86 See inter alia Sabin Popescu v. Romania ECHR judgment of 2/03/2004.

19

apartment which belonged to them prior to its nationalization before 1989. The European Court concluded in its judgments87 that there had been an interference with the applicants’ right to the peaceful enjoyment of their possessions on account of the sale of the apartments by the State to the sitting tenants, while court proceedings in which the applicants were contesting the lawfulness of the nationalization and seeking recovery of possession, were still pending. Moreover, the European Court noted the refusal by domestic courts to declare the sale contract void, although the courts had held, retrospectively, that the nationalization had been unlawful and that the applicants were still the lawful owners of the property. Noting that Romanian law did not foresee, with sufficient clarity and certainty, the consequences for individuals’ property rights of the sale in good faith of their property to third parties by the State, the European Court concluded that the applicants had had to bear a disproportionate and excessive burden, in particular in view of the total lack of compensation. In this respect, the European Court noted that, even if Article 21 of Law No. 10/2001 provided that a future law will regulate the procedure for granting such compensation, as well as its forms and its amount, no such law had been voted at the time the judgment was delivered (violation of Article 1 of Protocol No. 1).

II.c) Actors 58. There are few human rights NGOs supporting Romanian litigants in Strasbourg proceedings, but two of the most active are Romanian Helsinki Committee (RHC/ APADOR-CH) and European Roma Rights Center (ERRC). Both RHC and ERRC act in supporting applicants by providing them free of charge with legal advisors having high qualification in human rights, which may present and plead the cases before the ECHR. RCH also undertakes facts finding mission mainly concerning ill treatment allegations and visits to penitentiaries and lock-ups of police stations, on a constant basis. Every such event is subject of a report communicated to the respondent authority and published88. ERRC also undertakes facts finding mission with regard to serious allegation of Roma ethnics concerning human rights violation. Both NGOs also take actions before domestic authorities, including administrative and judiciary proceedings. 59. Because of the limited amount of their resources, NGOs generally focus on “strategic litigation”, aimed to change the domestic law or administrative practice in order to create a benefit for everyone. For example, RHC supported Cotleţ and Sabou and Pîrcălab cases cited above, and promoted legislative changing after their success before the ECHR. Both ERRC and RHC supported Moldovan and Rostaş case, and ERRC brought before the Court Kalanyos and Gergely admissible cases. RHC also take actions before the Committee of Ministers of the Council of Europe, which is the body entitled to supervise the execution of ECHR judgments. More specialized NGOs exist in the field of media, as, fox example Media Monitoring Agency. Religious groups – like Jehovah’s Witnesses89 or Romanian Greek-Catholic Church – also act in supporting human rights litigation in respect to the freedom of

87 See the pilot case, Strain v. Romania ECHR judgment of 21/07/2005. 88 See Romanian Helsinki Committee web page www.apador.org 89 See the Religious Organization of Jehovah’s Witnesses and 14 v. Romania ECHR decision of 11 July 2006.

20

religion and non-discrimination. Romanian NGOs also maintain contact with international NGOs, like Amnesty International or Human Rights Watch. 60. The small number of human rights NGOs dealing with Romania and having considerable experience and expertise and their limited resources made that often the pressure that they put on the government is highly insufficient for ensure implementation of Strasbourg judgments. 61. Legal representation in Strasbourg cases is optional and there are only few specialized lawyers. Romanian applicants generally are not able to pay a lawyer, and lawyers in Romania are not encouraged by the domestic system to work on pro bono cases – which also may result in the relatively low level of success of their applications in Strasbourg.

II.d) Strategic litigation 62. Given the specific categories of rights discussed in the Romanian context, it can be said that most of the cases under study are strategic cases with the goal of pressuring the Romanian government in the pursuit of specific collective goals: for example, changing domestic laws or administrative practice in important fields.

II.e) Domestic implementation

i) State authorities with competences in implementing ECHR judgments 63. The Governmental Agent before the European Court of Human Rights (“the Agent”) is organized as a department within the Ministry of Foreign Affairs. Although the Government’s decision that organizes this department does not provide for specific powers in implementing ECHR’s judgements – not even the power to initiate or to have an advisory opinion on drafts of law - in practice, the Agent had an important role to play in initiating legislative changes in order to comply with the Court’s judgements, by contacting other state authorities, especially the Ministry of Justice who can initiate drafts of law. 64. The Legislative Council has no special competence to ensure the compatibility of the legislation with the ECHR. According to its statute, they provide advice only on technical matters related to the legislation. There are two Parliamentary Commissions on Human Rights; not every draft law is submitted to them the for advisory opinion, but only those indicated by the Standing Bureau of one of the Chambers (see Articles 61-64 of Rules of the Chamber of Deputies).

ii) Changes triggered by the ECHR judgments against Romania

65. The Romanian authorities have addressed some of the legislative short-comings identified by the Court in its judgments although it should be noted that the most serious parts of the judgment also related to the behavior of certain public officials.

21

66. ECHR judgments in Vasilescu, Brumarescu, Popescu Nasta90 and some other tenths of cases concerning nationalized property influenced importantly the Romanian practice. First, judges no longer declined to judge in civil cases concerning properties nationalized in Communist times. Secondly, the right of the General Prosecutor’s Office to initiate extraordinary appeals in civil cases was dropped, by modifying the Civil Code procedure. A crucial case, Pantea vs. Romania, established the exclusive right of the judge, not the prosecutor, to sign the 30 days preventive detention warrant. The prosecutor kept the right to hold an arrested person for just three days, after which he is compelled to obtain a warrant from a judge. After this case, search warrants remained only with judges.

iii) Difficulties in an efficient implementation 67. There are still a number of reforms that are required for Romania to comply with the ECHR including: changes regarding the use of classified information gathered by former security and intelligence agencies under the Communist regime (Rotaru case); ensuring the right of accused persons in criminal trials to be heard by the appeal court before being convicted for the first time (Constantinescu case); and a review of the system for enforcing custody and visiting rights for parents (Ignaccolo-Zenide case). 68. There is a certain legislative lethargy when it comes to implementing ECHR decisions. Usually, the legislative authorities do not react promptly to the Court’s decisions – whether against other states (but for matters which could interest the Romanian legal system) or against Romania91. For instance, although there are a few judgments each month92 which condemn Romania for the lack of efficiency of the mechanism for compensation to be paid to ex-owners for nationalized properties93 there are no measures taken to change that mechanism, by the legislative or executive powers. 69. There are also cases when the Parliament adopted a solution contrary to the Court’s case: for example, the draft law concerning access to courts of the Greek-Catholic parishes for recovering possession of their churches was adopted, although it was contrary to the ECHR standards (the draft was voted as the Law no 182/2005). During communism, the Greek-catholic religion was not recognised and Greek-catholic churches were transferred to the Orthodox Church. After the fall of communism, Greek-catholic religion was officially recognised but the Greek-catholic parishes could not recover the possession of their “confiscated churches” because they were denied access to a court for these claims by a presidential Decree from 1990. In 2004 the Government adopted an Ordinance which expressly permitted access to courts for this kind of claims. The Parliament, by Law 182/2005, refused to accept the Government’s Ordinance, implicitly denying, once again, access to Courts for Greek-catholic parishes. Upon request of a human rights NGO94, the President of Romania

90 See Popescu Nasta v. Romania, judgment of 7 January 2003. 91 See, for instance, Radu Chirita, “The European Convention on Human Rights”, C.H. Beck, Bucharest, 2007, p. 52. 92 See, for instance, Radu v. Romania, judgment of 20 July 2006; Enciu and Lega v. Romania, judgment of 8 February 2007; Dimitrie Dan Popescu v. Romania, judgment of 14 December 2006. 93 More than 100 identical cases have been communicated to the Government and awaits the Court’s predictable solution. 94 The Romanian Helsinki Committee.

22

asked the Parliament to re-examine Law 182/2005, and, after re-examination, adopted the Government’s ordinance, allowing access to courts according to ECHR standards. 70. The domestic mechanism for the assessment of the compatibility of draft or existing laws with the ECHR standards has been proven inadequate in practice. This inefficiency has many reasons. The Government Agent before the European Court of Human Right has no institutional connection with the Ministry of Justice, which is the principal initiator of draft laws. There are no procedural provisions requiring his advisory opinion with regard to draft laws. Moreover, unfortunately, in recent years, the great number of cases that are communicated by the Court and the lack of sufficient personnel have made it virtually impossible for the Agent to survey an efficient and correct implementation of the Court’s case-law. As shown before, the Constitutional Court’s decisions were, in some important issues, contrary to the ECHR jurisprudence95. There is no other effective mechanism to assess the compatibility of legal drafts or existing laws with the ECHR. Moreover, apart from the publication in the Official Gazette of the ECHR judgements, there are no other means to ensure the compatibility of the administrative practice with the European Convention of Human Rights – besides the a posteriori control of this practice by the courts. 71. In conclusion, there is no effective mechanism for reviewing structural or general deficiencies in the domestic law. The implementation of important ECHR judgements which highlight general deficiencies in the Romanian law is still pending before the Committee of Minister of the Council of Europe.

iv) Re-opening or re-examination of cases after a judgement of the Court 72. Re-opening or re-examination of civil cases after the Strasbourg Court has found a violation of the ECHR is provided by law, since 2003, in article 322, § 9 of Romanian Code of Civil Procedure (“A final court decision can be subject to revision if …the European Court of Human Rights has found a violation of the fundamental rights and freedoms due to a court decision and the serious consequences of such a violation continue to be produced and cannot be redressed by other means than by the revision of the case”). There are however only few examples of successful re-opening of civil proceedings upon request of an individual (see Strain v. Romania case). The law should clarify what “serious consequences of the violation …” means. 73. There is a particular problem with regard to the efficiency of the procedure because the time-limit for re-opening (3 months) starts since the publication of the European Court judgement in the Romanian Official Gazette. Or, there are instances when final judgements were published in the Official Gazette after 1 or even 2 years (see for example the case of Cotlet v. Romania, ECHR judgment of 3 June 2003, published in the Official Gazette on 19 May 2005), therefore the plaintiff’s attempts to reopen their cases can be blocked.

95 i.e. on the matter of the statute of the public prosecutor, the Constitutional Court decision no 268/1997 is contrary to the findings in the Pantea v. Romania ECHR judgement of 3/06/2003, which stated that the public prosecutor is not a magistrate in the meaning of article 5 para. 3 of the ECHR.

23

74. Re-opening of criminal proceedings after the Strasbourg Court has found a violation of the ECHR is expressly provided for in article 4081 of the Romanian Criminal Procedure Code. There is no such limitation of “serious consequences”, as in civil cases. However, the prosecutor’s non-indictment decisions are not subjected to a special obligation of re-opening, if the Strasbourg Court has found a violation (i.e. ill treatment by the police officers). There is only a general provision in article 273 of the Criminal Procedure Code which provides for the possibility to re-open criminal investigations if “the legal ground which determined the application of such measures (non-indictment) did not exist in fact, or the factual circumstance determining the termination of the proceedings has disappeared.” As far as we know, there are no examples of successful re-openings of criminal procedures. In practice, another obstacle is the statute of limitation of criminal liability which becomes applicable due to the delay in the ECHR proceedings and then in implementing its judgements. III. Strasbourg’s case law in law schools and literature review

III.a) Law Schools and magistrate’s training 75. Human Rights is a topic studied in the majority of public Romanian law schools, being either mandatory96, or, more frequent, optional97. In private law schools it is not studied or is just an optional topic. However, within the National Institute of Magistracy future and actual magistrates have begun studying it in recent years.

III.b) Law books 76. Until now, there was relatively low academic interest on the subject. There are writings on ECHR case-law, but unfortunately, this matter it’s perceived, even in academic circles, as an independent and specialized one. This perception means that, for instance, criminal procedure law professors, who are writing comprehensive practical guides or commentaries of the Criminal Procedure Code do not analyze principles and solutions of the Court, do not explain how national law provisions or judicial practice are influenced or transformed under the ECHR influence. Sometimes they do not even mention Romanian cases in which article 6 was found to be breached. The same applies to commentaries to the Civil Procedure Code or Family Law. This perception began to change in the last few years and some Codes annotated with RCC’s, HCCJ’s were published; they contained also some references to the Court’s case law. We can only hope that this is just the first step and this tendency to integrate in the same law book commentaries of the national law and the Court’s case law will continue. 77. The interest in ECHR case law is rising, and more and more books and commentaries appeared on this matter in the last couple of years:

- Dragos Bogdan, Mihai Selegean, “Fundamental rights and liberties in ECHR case-law”, All Beck, 2005, Bucharest, 670 pages;

96 For instance, at the law schools from Sibiu and Bucharest. 97 For instance, at the law schools from Cluj, Iasi, Craiova and Timisoara.

24

- Corneliu Bîrsan, “The European Convention on Human Rights. Commentary on articles. Volume I. Rights and liberties”, Ed. All Beck, 2005, 1296 pages;

- Corneliu Bîrsan, “The European Convention on Human Rights. Commentary on articles. Volume II. Procedures in ECR an execution of judgements”, Ed. All Beck, 2005, 826 pages;

- Francois Sudre, “European and international Human Rights Law”, Polirom, Iasi, 2006, 568 pages (it is the Romanian translation of the french book - F. Sudre “Le droit européen et international des droits de l’homme”);

- Radu Chirita, “The European Convention on Human Rights”, C. H. Beck, Bucharest, 2007, 520 pages.

78. There are also collections of ECHR decisions translated in Romanian:

- Corneliu Liviu Popescu, “Procedural Rights. ECHR case-law on 2001 and 2002”, All Beck, Bucharest, 2003;

- Corneliu Liviu Popescu, “ECHR case-law against Romania in 2003”, All Beck, Bucharest, 2004;

- The Romanian Institute for Human Rights, “From ECHR case-law. Judgments against Romania”, 2006;

- Radu Chirita, “ECHR. Collection of decisions on 2003”, C.H. Beck, 2007, 267 pages;

- Radu Chirita, “ECHR. Collection of decisions on 2004”, C.H. Beck, 2007, 320 pages.

III.c) Magazines and studies 79. Since 1993 until 2005, APADOR-CH published a quarterly magazine, “The Romanian Human Rights magazine”. Unfortunately this was a almost a “close circuit” magazine which remained virtually unknown to the vast majority of the public. Besides wider Human Rights issues, some of the studies published concerned the Court’s case law and its influence on the national system – for instance:

- Corneliu-Liviu Popescu, “The Consequences of ECHR Ratification by Romania on the Disciplinary Arrest in the Army” – no 8, 1995;

- Corneliu-Liviu Popescu “The magistrate competent to decide on the issue of preventive arrest in criminal procedure” – no 9, 1995;

- Doru Cosma, “Fair trial; European Convention in Romanian Courts” – no 9, 1995;

- Iuliana Voinea-Motoc, “Independence and impartiality in the European Convention on Human Rights” – no 10, 1995;

- Liliana Elisabeta Preda, “The relation between the European Convention and European law” – no 29, 2005.

80. As I mentioned before, unfortunately, this magazine was virtually unknown and inaccessible to the general public and its influence was therefore greatly diminished. It is significant that, for instance, the Bucharest Regional Court, the greatest in the country, does not have the entire collection of this magazine, but only a few numbers, procured as a result of a personal effort of the librarian.

25

81. In 2005 this magazine was replaced by another specialized quarterly publication – “The new Romanian Human Rights magazine” (“Noua Revistă Română de Drepturile Omului)- published by All who is accessible to the public. The new form of the magazine cover a wide area of human rights problems, including ECHR case law, for instance:

- Corneliu-Liviu Popescu, “The European and the National Qualification of the Prosecuting Attorney as a “magistrate”, no 1/2005;

- Iustina Ionescu, “Non-discrimination in ECHR case-law”, no 2/2005; - Corneliu Liviu Popescu, “The European Court of Human Rights Case-law on

Decommunization in Central and Eastern States”, no 3-4/2005; - Corneliu Liviu Popescu, “The Restitution of the Goods Illegally Confiscated

by the Totalitarian Communist Stat – the Experience in Romania and the Requirements of the European Court for Human Rights”, no 1/2006;

- Ioana Eleonora Rusu, “The Relation between the Court of Justice if the European Communities and the European Court of Human Rights. The interpretation of the European Convention on Human Rights by the two courts”, no 2/2006.

82. The following publications introduced (in 2002 – 2005) sections where recent ECHR case-law is summarized and, sometimes, commented:

- Pandectele Române; - Curierul judiciar; - Dreptul. - Themis - published by the National Institute of Magistracy and

83. However, on one hand these publications do not issue periodically and on the other they are not peer-reviewed. There is no relevant theory to quote for this project from these domestic sources. IV) Conclusion 84. The conclusion that can be drawn from this material is the lack of coherence of the reactions of the judiciary system following the adoption and ratification of the Convention. The lack of an effective mechanism for reviewing structural or general deficiencies in the domestic law is an important factor in explaining the difficulties in the implementation of important ECHR judgements. Although in the last few years one can observe an improvement in the courts approach in applying Strasbourg case-law, there is still plenty of space for improvement. The HCCJ and RCC should adopt a more rigorous and constant approach in applying Strasbourg case-law in all cases that have to be decided. 85. In this context, judges should do more than simply search for a Strasbourg precedent to be applied in the case they have to solve. They should try to understand the institutions and reasoning that lead the Court to a certain solution in a given case. At present, judges usually do not use institutions, principles and approaches that represent the basis of ECHR reasoning: “proportionality”98, “necessary in democratic

98 As an author shows in a general study regarding the principle of proportionality in RCC case law: “RCC case law is not generous or edificatory in interpreting or applying the principle of proportionality

26

society”, addressing a “pressing social need”, “prescribed by law”, “having legitimate aim” are notions virtually unknown in Romanian courts case-law. Even RCC does not use them very often. For instance, in procedures concerning nationalised houses, where there is a rich Strasbourg case law against Romania, most of the judges continue to reason only in terms of national law, without trying to apply the reasoning of the Court. Even worse, without fully understanding the reasoning of the Court some of them try to apply a mixture of the Court’s solutions and the national law without observing neither of them. 86. My impression is that, the judicial system began to “react” to Strasbourg judgements. There is still a long way until this reaction, with its implicit delays, will be replaced by an active approach, where, on a massive scale, national courts will try to use similar institutions and reasoning (a similar approach) with those used by ECHR, when called to protect Human Rights in a given case.

in cases concerning fundamental rights and liberties, which proves that proportionality, as principle of law in general and of constitutional law in special, is not a major subject o preoccupation for the courts. Often, RCC refers to proportionality in a general manner, invoking article 33 of the Constitution. There are only a few decisions of RCC which include an analysis of the proportionality” – see Marius Andreescu, “The Principle of Proportionality in Constitutional Law”, Ed. C.H. Beck, 2007, Bucharest, p. 311.

27

Annex I: Short version of the state of the art report intended for policy users

I. Introduction: I.a) Short history Romania, became a member of the Council of Europe in 1993 and ratified the European Convention of Human Rights (“the Convention”) on 20 June 1994 but this ratification was not preceded by a study of compatibility of the Romanian legislation with the Convention as this was interpreted in the case-law of the European Court of Human Rights (the Court). At that time the Romanian juridical world was utterly unprepared for the sudden “import” of a quite consistent body of case law concerning fundamental political rights and civil liberties: there were no serious doctrinal studies of the Convention system, no specialized scholars in this field and a chronic lack of access to the Court’s99 decisions etc. In the first few years after the ratification, this situation manifested itself by a total lack of reaction in relation with the Convention and the Court’s case-law. As time passed, in the late 1990s, more and more information became available about the Convention and the Court’s case-law which raised the awareness of the judicial system. Still, incomplete information, lack of widespread access to the Court’s case-law, lack of studies which could explain the solutions of the Court and its methods were obstacles in understanding its importance for the day-to-day professional life of a magistrate or a lawyer. There was also a problem of mentality because the Romanian judicial system is not based on precedents; as a consequence there is little attention paid to previous case law and judges or lawyers focus mainly on interpreting the law itself as it should be applied in that particular case.100 Therefore, it was extremely difficult for Romanian magistrates and lawyers to understand and accept how the Court can interpret and develop the Convention in such a creative manner, in its case law. Moreover, the state authorities (high judiciary officials and Government representatives) refused to fully take into account decisions of the Court which concerned sensitive matters, as, for instance, the powers of the prosecutors (Vasilescu v. Romania and Brumarescu v. Romania). The numerous condemnations following Brumarescu and the large amounts of money the state had to pay101 have become a hot media subject, receiving wide media coverage. This, in turn, increased the pressure on the judiciary who became more and more aware of the importance of Strasbourg case-law and the necessity to apply it.

99 The same applies for the Commission’s decisions – but, for practical reasons, I will designate thereafter both Convention’s organs as “the Court”. 100 One of the most important consequences of this approach is a chronicle problem of the judicial system, namely conflicting courts decisions. 101 For instance the government was obliged to pay some 700 000 Euro in Falcoianu case and 900 000 Euro in Popescu Nasta case.

28

Because of the same mass-media coverage, and a lack of adequate information, the public at large began to perceive the Strasbourg Court as a “supreme Court” where all the misdoings of the national judicial system could be undone, some kind of panacea for all dissatisfactions related to the functioning of national courts. As a result more and more applications were lodged before the Court. I.b) Number of applications lodged before the Court According to latest statistics of the Court published on 25 January 2007102, Romania ranks second after Russia as the most important “providers” of applications logged before the Court. For a population of roughly 22,000,000 habitants and 10 850 applications pending on 1st of January 2007 (12.1% of the Court’s total workload), Romania has the highest rate of Strasbourg applications per capita. Around 95% of the applications already disposed off by the ECHR were inadmissible for not complying with Articles 34 and 35 of the Convention which state for the admissibility criteria. This percent may strike the eye, but the relatively low rate of success of Strasbourg litigation provided by Romania corresponds to the average rate. These quite high numbers raise two different questions: how do we explain the number of applications lodged before the Court against Romania (i) and the number of applications declared inadmissible by the Court (ii). i) The number of applications lodged before the Court The constant increase of the number of applications against Romania, mainly in the last years (2000-2006), may be related to more general grounds, common to most of east-European countries (new members of the Council of Europe) like the accessibility of the right to individual petition before the ECHR, the recognized success and popularity of the Court103 and also the reforms made in areas of interest to a large part of the population. With regard to Romania, there are also specific grounds for the increasing number of applications mainly related to a negative common perception of the domestic judiciary system and the way in which reforms concerning nationalized houses and land reforms were carried out.104 There are also other factors which could explain the great number of applications: lack of any tax for access to the Court, lack of obligation to have a lawyer in the first stages of the procedures in front of the Court (the applicants can write themselves in their own non-technical language). ii) Number of applications declared inadmissible As shown above, articles 6 and 1 Protocol no. 1 are the most common grounds of complaint before the Court and the “fourth instance” motivation is the widest ground for declaring an application inadmissible as manifestly ill founded. Together with non compliance with the six month rule, non-exhaustion and incompatibility ratione materiae, these grounds explain the bulk of inadmissibility decisions. They show a lack of information concerning the role of the Court and the basic rules that govern its 102 See Survey of Activities 2006 published on www.echr.coe.int, p. 56. 103 For example, between 1995 and 1991, 19,216 ECHR applications were allocated to a decision body, which correspond to 2/3 of applications allocated to a decision body in 2006, namely, 39,373. 104 See “Justice in Romania. A state of the art report”, Romanian Academic Society, 2004, p. 14.

29

functioning. Lack of lawyers specialized in Human Rights, the possibility to apply to the Court without a lawyer’s assistance and help (because of financial difficulties most of the applicants do not have a lawyer) are also factors that should be taken into consideration when analyzing this matter. II. Human rights litigation Patterns in Romania II.a) Domestic reception of the Convention and of the Court’s case-law

1) Theoretical approach All civil and political rights on which JURISTRAS focuses are protected by the Romanian Constitution (protection of private and family life, correspondence and home – Articles 26, 27 and 28; freedom of religion and beliefs – Article 29; freedom of speech – Article 30; freedom of meeting and association – Articles 39 and 40; prohibition of discrimination – Article 16 of the Constitution). According to Articles 11 and 20 of the Romanian Constitution, the Convention has direct effects on the legal order of Romania and it prevails over national legislation even over the Constitution in human rights matters.105 This status is recognised by the scholars106, or in some decisions of the courts107 or of the RCC108. Therefore, the courts can apply directly Strasbourg’s case-law - they do not have to address a preliminary question to RCC in this matter.

2) Some reluctance in the case law of the courts However, courts are often reluctant to apply the Convention when the domestic legal framework itself affects human rights. Even if in some cases, the ECHR found a violation of the Convention because of the domestic law not meeting the standards of the Convention, the domestic courts were still reluctant to give priority to the Convention. For instance, even after Romania’s conviction in Sabou and Parcalab, the ban on exercising parental rights as an ancillary penalty was imposed automatically on any person who served a prison sentence109; even after Romania’s conviction in Brumarescu, the Romanian HCCJ continued to admit applications for nullity lodged by the Procurator General, in civil cases110.

3) Position of the Romanian Constitutional Court 105 The Convention prevails only when the constitutional standards are lower than those of the Convention. 106 See, for instance, Corneliu Liviu Popescu, “The international protection of Human Rights. Sources, institutions, procedures”, Ed. All Beck, Bucharest, 2000, p. 270; Dragos Bogdan, “The right to life”, in Dragos Bogdan, Mihai Selegean, “Fundamental rights and liberties in ECHR case-law”, All Beck, Bucharest, 2005, p. 2; Corneliu Birsan “The European Convention on Human Rights. Commentary on articles. Volume I. Rights and liberties”, Ed. All Beck, 2005, p. 98. 107 See, for instance, decision no. 234/A/24 Mars 1997, Bucharest Regional Court, unpublished; decision no. 1232/8 Mars 2000, HCCJ, unpublished; decision no. 3111/24 Mars 2006, HCCJ, unpublished; decision no. 868/14 Mars 2006, County Court District no. 4, Bucharest, unpublished; decision no. 1107/3 May 2005, County Court, District no. 6, Bucharest, unpublished. 108 See, for instance, decision no. 81/1994 (published in the Official Gazette no. 14/25 January 1995); decision no. 349/2001 (published in the Official Gazette no. 240/10 April 2002). 109 See Sabou and Pircălab v. Romania ECHR judgment of 28 September 2004. 110 See the case Pilot Service Constanţa v. Romania, ECHR application no 1477/02, communicated to the responded government.

30

There were differences between RCC and the ECHR case law, for example, regarding the statute of the public prosecutor111, the deportation of a foreigner for being a threat to national security112; the ban to exercise parental right.113 Even if the RCC does not always depart from Strasbourg case-law, constitutional decisions who contradict ECHR findings are not so rare. Sometimes there are differences of approach between RCC and the HCCJ. For instance, between 1994 and 2000, RCC ruled that the pre-trail detention must be reviewed by the courts every 30 days114. Although the judgments of the Constitutional Court are binding for all courts115, the Supreme Court issued judgments contradicting the Constitutional Court rulings.116 Moreover, the Supreme Court independently decided that Constitutional Court’s judgments require endorsement by the Parliament in order to have an erga omnes binding effect.117 In response, the Constitutional Court issued a ruling that the courts that do not observe the Constitutional Court judgments can be held responsible.118 II.b) Strasbourg rights litigation: i. Cases challenging State’s abusive interference with private life119 or correspondence, with freedom of speech, religion or association

111 RCC’s decision no 268/1997 is contrary to the findings in the Pantea v. Romania ECHR judgement111, which, unlike the RCC, stated that the public prosecutor is not a magistrate in the meaning of article 5 § 3 of the ECH 112 National legislation allowed the national authorities to deport foreigners in this case without furnishing any evidence or even indicate what the nature of the threat was. RCC was called to rule on the compatibility of this legislation with the constitutional principles of non-discrimination, the right of access to a tribunal and the right to a fair trial and found that it was in conformity with the Constitution and the Convention. Yet, in Lupsa v. Romania, ECHR found a violation of the right to private and family life. 113 Under Romanian law, the ban on exercising parental rights was an ancillary penalty which was imposed automatically on any person who served a prison sentence, without the supervision of the courts and without taking account of the type of offence and the child’s interests. In a decision from 2001 RCC considered that this penalty was an option of criminal policy of the legislator who considered that the convicted was unworthy to exercise parental rights. Accordingly, the ban represented a moral reprimand aimed at punishing the convicted person rather than a child-protection measure. When confronted with the same problem, the Court concluded that there had been a violation of Article 8 of the Convention - See Sabou and Pircălab v. Romania ECHR judgment of 28 September 2004. 114 Judgements no. 60/1994, final by judgement 20/1995; no.1/1996; no. 546/1997; no. 10/2000. 115 Constitution, Article 145. 116 Supreme Court, Criminal Section, Judgement no. 1613 of May 7, 1999. 117 Supreme Court, Criminal Section, Judgement no. 3277 of September 28, 1999. 118 Constitutional Court, Judgement no. 186 of November 18, 1999; published in the Official Gazette 213/2000. 119 There are also judgments where the Court found violations of article 8 in relation with family life (cases that concerned custody rights, visiting rights) or home but the violation of the home or family life right was not politically motivated – see Monory v. Romania and Hungary, judgement of 26 November 2005; Lafargue v. Romania, judgment of 13 July 2006; Ignaccolo-Zenide v. Romania, judgment of 11 January 2000; Pini and Bertani and others v. Romania, judgement of 22 June 2004; Sabou and Pircalab v. Romania, judgment of 28 September 2004; Iosub Caras v. Romania, judgment of 27 July 2006; Surugiu v. Romania, judgment of 20 April 2004.

31

1) Private life One of the particularly sensitive – as necessary domestic legislative change is actually under acute debate – cases concerns surveyed persons with regard to information kept by Romanian Intelligence Services: Rotaru v. Romania judgment of 04/05/00120. The case concerns a breach of the applicant's right to respect for his private life in that the relevant national legislation does not contain sufficient safeguards against abuse as regards the way in which the Romanian Intelligence Service (RIS) gathers, keeps and uses information. The European Court has thus concluded that the holding and use by the RIS of information on the applicant's private life were not “in accordance with the law” within the meaning of the Convention (violation of Article 8). Two new judgments against Romania where the Court found a breach of article 8 point to the problem of control of deportation of aliens on the ground of being a threat to national security – and, to the more general problem of control of the secret services and there’s interferences with the private life of the individuals. In Lupsa v. Romania121 and Kaya v. Romania122 both applicants who had a private and/or family life in Romania were deported from the country on grounds of being a “threat to national security”. Apart from the general ground mentioned above, the authorities did not provide the applicant with any other details and not even with the order declaring his presence to be undesirable. In its judgment the ECHR held that the legislation on the basis of which he was deported, the lack of reasons and any evidence as well as the fact that the deportation was not subject to judicial review, made any deportation based on such legislation incompatible with the Convention.123 The Court attached weight to the fact that the Bucharest Court of Appeal confined itself to a purely formal examination of the order of deportation (the public prosecutor’s office did not provide the Court of Appeal with any details of the offence of which the applicant was suspected and the court did not go beyond the assertions of the public prosecutor’s office for the purpose of verifying that the applicant really did represent a danger for national security or public order). As the applicant did not enjoy before the administrative authorities or the Court of Appeal a minimum degree of protection against arbitrariness on the part of the authorities, the Court concluded that the interference with his private life was not in accordance with “a law” satisfying the requirements of the Convention.

2) Freedom of speech With regard to the freedom of speech, Romanian journalists are constant providers of Strasbourg applications. The earliest case decided by the Court is Dalban v. Romania, which ended in a judgment of 28/09/1999. The case concerns the applicant’s conviction for criminal libel in 1994, under Article 206124 of the Criminal Code, for having published articles in which he exposed a series of frauds allegedly committed by a senior official and a member of parliament. The European Court found a disproportionate interference with the applicant’s freedom of expression. Article 207

120 See Committee of Ministers Interim Resolution ResDH(2005)57. 121 See Lupsa v. Romania, judgment of 8 June 2006. 122 See Kaya v. Romania, judgment of 12 October 2006. 123 The precedent was a Bulgarian Case, Al-Nashif v. Bulgaria, judgment of 20 June 2002. 124 Libel was recently decriminalized in Romania in 2006, but the Romanian Constitutional Court declared unconstitutional the law decriminalizing libel, by a decision of 18 January 2007.

32

of the Romanian Criminal Code admits the adduction of evidence supporting the truthfulness of the declaration at issue when it has been made in order to protect a legitimate interest. However the Romanian courts had not allowed the applicant to prove the truth of his allegations but, inter alia, found it established that these were untrue since a non-indictment decision had been issued by the prosecutor’s office against the public official at issue concerning the same allegations (violation of Article 10. In the Cumpana and Mazare case125, the two applicants were journalists condemned to prison for libel. The Court considered that the domestic authorities were entitled to consider it necessary to restrict the exercise of the applicants’ right to freedom of expression and that the applicants’ conviction for insult and defamation had met a “pressing social need”. When called to asses the proportionality of the measure, the Great Chamber expressly stated that the imposition of a prison sentence for a press offence will be compatible with journalists’ freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence.126 In that case, the Court considered that, without any significant practical consequence for the applicants, the sentence to prison was particularly severe. The criminal sanction and the accompanying prohibitions imposed on the applicants by the national courts were manifestly disproportionate in their nature and severity to the legitimate aim pursued by the applicants’ conviction for insult and defamation and therefore article 10 of the Convention had been violated.127

3) Freedom of association Eastern European former communist countries’ specific problem with political parties were reflected in Romanian ECHR cases too, as shows the ECHR judgment of 03/02/2005, Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania. The case concerns the refusal by the Romanian courts, in 1996, to register as a political party the applicant political group (Party of Communists who have not been members of the Romanian Communist Party), given that its aims, as reflected in its constitution and political program, were contrary to the constitutional and legal order of Romania. The European Court noted that the founding texts of the applicant political group emphasized the principles of democracy, including political pluralism, universal suffrage and freedom to take part in politics, and did not contain any passage which might be considered a call for the use of violence, uprising or any other form of rejection of democratic principles. Moreover, the European Court rejected the government’s assertion that Romania cannot allow the emergence of a communist party to form the subject of a democratic debate. Therefore, it concluded that a measure as drastic as refusal to register the applicant as a political party, adopted before its activities had even started, was disproportionate to the aim pursued and consequently unnecessary in a democratic society (violation of Article 11). ii. Discrimination of ethnic or religious minorities 125 See Cumpana and Mazare, judgment of 17 December 2004. 126 See Cumpana and Mazare, para. 115. 127 In Sabou and Parcalab, were the applicants had also been convicted at imprisonment the Court take this element into account when deciding that article 10 had been breached. See Sabou and Parcalab, judgment of 28 September 2004.

33

ECHR found a violation of the Convention by Romania concerning Roma ethnics with regard to discriminatory attitude of state authorities, in the case Moldovan and Rostas v. Romania, ECHR judgment of 12/07/2005. The case concerns complaints raised by the applicants, all of Roma origin, concerning the consequences of events which took place in September 1993 in the Hădăreni village, where violent clashes occurred between the Roma community and the other villagers, leading to the death of three Roma and to the destruction of the applicants’ houses and of much of their personal belongings. By court verdict delivered in 2004 (final in February 2005), several non-Roma villagers were found guilty and were ordered to pay civil compensation to the applicants. Enforcement proceedings are currently pending concerning the payment of these sums. The European Court found the violation of Article 8: it concluded that, in view of the direct repercussions of the acts of state agents on the applicants’ rights (in particular due to the involvement of police officers in the burning of the Roma houses), the government’s responsibility was engaged with regard to the applicants’ living conditions, even after 20/06/1994, when Romania ratified the Convention. The ECHR also concluded to the violation of Article 14 taken together with Articles 6 and 8: the Court noted that the applicants’ Roma origin seems to have had a decisive influence on both the duration and the outcome of the domestic proceedings. Particular note was taken of the authorities’ discriminatory remarks throughout the proceedings and the fact that a court decision to reduce the amount of compensation awarded to the applicants for non-pecuniary damage had been motivated by observations directly linked to their ethnic origin (violation of Article 14 taken together with Articles 6 and 8).

iii. Cases concerning the lack of a fair trail and interference with property rights The cases are concerning owners deprived of their property. More than 30 judgments128 concern the Romanian Supreme Court’s annulment of final court decisions delivered at first instance establishing the validity of the applicants' titles to property that had been previously nationalized. The European Court found that the Supreme Court’s decisions had violated the applicants’ right to respect for their possessions by annulling without justification and without compensation final court decisions that recognized the applicants’ property rights to the apartments in question (violation of Article 1 of Protocol No. 1). Other dozens of cases129 concern non enforcement of civil judgments with respect to property rights: the Romanian authorities’ failure to enforce two final court decisions concerning the restitution to the applicants of various plot of land, houses or money, amounts to an unjustified interference with the applicant’s right to the peaceful enjoyment of his possessions (violation of Article 1 of Protocol No. 1). Finally, there are more than ten judgment and other 100 communicated cases which concerns the fact that the applicants could not recover possession of an apartment which belonged to them prior to its nationalization before 1989.

128 See the pilot case, Brumarescu v; Romania ECHR judgment of 28/10/1999. 129 See inter alia Sabin Popescu v. Romania ECHR judgment of 2/03/2004.

34

II.c) Domestic implementation: i) Changes triggered by the ECHR judgments against Romania

The Romanian authorities have addressed some of the legislative short-comings identified by the Court in its judgments although it should be noted that the most serious parts of the judgment also related to the behavior of certain public officials. ECHR judgments in Vasilescu, Brumarescu, Nasta and some other tenths influenced importantly the Romanian practice. First, judges no longer declined to judge in civil cases concerning properties nationalized in Communist times. Second, the right of the General Prosecutor’s Office to initiate extraordinary appeals in civil causes was dropped, by modifying the Civil Code procedure. A crucial case, Pantea vs. Romania, established the exclusive right of the judge, not the prosecutor, to sign the 30 days preventive detention warrant. The prosecutor kept the right to hold an arrested person for just three days, after which he is compelled to obtain a warrant from a judge. After this case, search warrants remained only with judges. ii) Difficulties in implementing ECHR judgments There are still a number of reforms that are required for Romania to comply with the ECHR including: changes regarding the use of classified information gathered by former security and intelligence agencies under the Communist regime (Rotaru case); ensuring the right of accused persons in criminal trials to be heard by the appeal court before being convicted for the first time (Constantinescu case); and a review of the system for enforcing custody and visiting rights for parents (Ignaccolo-Zenide case). The domestic mechanism for the assessment of the compatibility of draft or existing laws with the ECHR standards has been proven inadequate in practice. There are some reasons which can explain this inefficiency. The Government Agent before the European Court of Human Rights has no institutional connection with the Ministry of Justice, which is the principal initiator of draft laws. There are no procedural provisions requiring the Agent’s advisory opinion with regard to draft laws. Moreover, not every draft law is submitted to the Parliamentary Commissions on Human Rights for advisory opinion, but only those indicated by the Standing Bureau of one of the Chambers (see Articles 61-64 of Rules of the Chamber of Deputies). The Legislative Council has no special competence to ensure the compatibility of the legislation with the ECHR. According to its statute, they provide advice only on technical matters related to the legislation. As shown before, the Constitutional Court’s decisions were, in some important issues, contrary to the ECHR jurisprudence130. There is no other effective mechanisms to assess the compatibility of legal drafts or existing laws with the ECHR. Moreover, apart from the publication in the Official Gazette of the ECHR judgments, there are no other means to ensure the compatibility of the administrative practice with the European Convention of Human Rights.

130 i.e. on the matter of the statute of the public prosecutor, the Constitutional Court decision no 268/1997 is contrary to the findings in the Pantea v. Romania ECHR judgement of 3/06/2003, which stated that the public prosecutor is not a magistrate in the meaning of article 5 para. 3 of the ECHR.

35

In conclusion, there is no efficient mechanism for reviewing structural or general deficiencies in the domestic law. The implementation of important ECHR judgments which highlight general deficiencies in the Romanian law is still pending before the Committee of Minister of the Council of Europe. iii) Re-opening or re-examination of cases after a judgment of the Court Re-opening or re-examination of civil cases after the Strasbourg Court has found a violation of the ECHR is provided by law, since 2003, in article 322, § 9 of Romanian Code of Civil Procedure (“A final court decision can be subject to revision if …the European Court of Human Rights has found a violation of the fundamental rights and freedoms due to a court decision and the serious consequences of such a violation continue to be produced and cannot be redressed by other means than by the revision of the case”). There are however only few examples of successful re-opening of civil proceedings upon request of an individual (see Strain v. Romania case). The law should clarify what “serious consequences of the violation …” means. Re-opening of criminal proceedings after the Strasbourg Court has found a violation of the ECHR is expressly provided for in article 4081 of the Romanian Criminal Procedure Code. There is no such limitation of “serious consequences”, as in civil cases. However, the prosecutor’s non-indictment decisions are not subjected to a special obligation of re-opening, if the Strasbourg Court has found a violation (i.e. ill treatment by the police officers). There is only a general provision in article 273 of the Criminal Procedure Code which provides for the possibility to re-open criminal investigations if “the legal ground which determined the application of such measures (non-indictment) did not exist in fact, or the factual circumstance determining the termination of the proceedings has disappeared.” As far as we know, there are no examples of successful re-openings of criminal procedures. III. Strasbourg’s case law in law schools and literature review Until now, there was relatively low academic interest on the subject. There are writings on ECHR case-law, but unfortunately, this matter it’s perceived, even in academic circles, as an independent and specialized one. This perception means that, for instance, criminal procedure law professors, who are writing comprehensive practical guides or commentaries of the Criminal Procedure Code do not analyze principles and solutions of the Court, do not explain how national law provisions or judicial practice are influenced or transformed under the ECHR influence. This perception began to change in the last few years and some Codes annotated with RCC’s, HCCJ’s were published; they contained also some references to the Court’s case law. We can only hope that this is just the first step and this tendency to integrate in the same law book commentaries of the national law and the Court’s case law will continue. Since 1993 until 2005, APADOR-CH published a quarterly magazine, “The Romanian Human Rights magazine”. Unfortunately this was a almost a “close circuit” magazine which remained virtually unknown to the vast majority of the public. Besides wider Human Rights issues, some of the studies published concerned the Court’s case law and its influence on the national system. There are otgher periodicals who introduced (in 2002 – 2005) sections where recent ECHR case-law is

36

summarized and, sometimes, commented. However, on one hand these publications do not issue periodically and on the other they are not peer-reviewed. There is no relevant theory to quote for this project from these domestic sources. IV) Conclusion Although in the last few years one can observe an improvement in the courts approach in applying Strasbourg case-law, there is still enough place for improvement. The HCCJ and RCC should adopt a more rigorous and constant approach in applying Strasbourg case-law in all cases that have to be decided. In this context, judges should do more than simply search for a Strasbourg precedent to be applied in the case they have to solve. They should try to understand the institutions and reasoning that lead the Court to a certain solution in a given case. At present, judges usually do not use institutions, principles and approaches that represent the basis of ECHR reasoning: “proportionality”131, “necessary in democratic society”, addressing a “pressing social need”, “prescribed by law”, “having legitimate aim” are notions virtually unknown in Romanian courts case-law. Even RCC does not use them very often, For instance, in procedures concerning nationalised houses, where there is a rich Strasbourg case law against Romania, most of the judges continue to reason only in terms of national law, without trying to apply the reasoning of the Court. Even worse, without fully understanding the reasoning of the Court some of them try to apply a mixture of the Court’s solutions and the national law without observing neither of them. My impression is that, at this moment, the judicial system began to “react” to Strasbourg judgements. There is still a long road to make until this reaction, with its implicit delays, will be replaced by an active approach, where, on a massive scale, national courts will try to use similar institutions and reasoning (a similar approach) with those used by ECHR, when called to protect Human Rights in a given case. Annex II: Mapping of Research Competence As shown before, the research landscape in human rights matters in Romania is not very well developed yet. We are aware of only one institution focusing on human rights research: The Human Rights Centre – University of Bucharest Contact information: Blvd. Mihail Kogălniceanu no. 36-46, et. 2, cam. 302, sect. 5, Bucharest, cod 050107

131 As an author shows in a general study regarding the principle of proportionality in RCC case law: “RCC case law is not generous or edificatory in interpreting or applying the principle of proportionality in cases concerning fundamental rights and liberties, which proves that proportionality, as principle of law in general and of constitutional law in special, is not a major subject o preoccupation for the courts. Often, RCC refers to proportionality in a general manner, invoking article 33 of the Constitution. There are only a few decisions of RCC which include an analysis of the proportionality” – see Marius Andreescu, “The Principle of Proportionality in Constitutional Law”, Ed. C.H. Beck, 2007, Bucharest, p. 311.

37

Romania, Tel.: +40-(0)21 315 71 87 / int. 198 ; Fax: +40-(0)21 312 07 19 Email: liviu.popescu@drept.unibuc.ro Web: www.unibuc.ro/ro/cc_cdo_ro ; www.liviu-popescu.eu Director: Prof. dr. Corneliu-Liviu Popescu The Human Rights Centre was founded in 2000 and it’s activity focuses more on debates, conferences and seminars on human rights. Research activities concentrate among others on ECHR case-law concerning Romania or against other countries but on matters that are of interest for Romanian Juridical System.