28.03.2024

30 years of application of the European Convention on Human Rights in Romania

On June 20, 2024, it will be 30 years since the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention" or "ECHR") began to produce legal effects for Romania[1].

Opened for signature in Rome on November 4, 1950, and entered into force on September 3, 1953, the Convention succeeded in creating perhaps the most advanced international system for the protection of human rights, a system which has undergone successive modifications, through the additional protocols concluded, both in terms of the scope of the rights protected and the institutional mechanism. This success may be due to the fact that, from the outset, the Convention provided for a system of bodies empowered to supervise the fulfillment by signatory states of their obligation to respect the rights laid down in the Convention. At the moment, the European Court of Human Rights ("the Court" or "ECtHR") is mainly responsible for monitoring compliance with fundamental rights by signatory states, in addition to inter-state complaints and, more recently, the advisory opinions that the Court can give to the highest courts in the national judicial systems or to constitutional courts.

The Court has undoubtedly played and continues to play an essential role in the progressive development of the protection afforded by the Convention, in particular by constantly seeking to convey to States, in an established formula, that they have a duty to ensure respect for practical and effective rights , and not theoretical and illusory ones; more or less justifiably criticized for its approaches or praised for the courage it often shows, the Court remains the central pillar of the system, the subject of improving the effectiveness of the work of international jurisdiction being a constant theme of the last few decades.

The 30th anniversary of Romania becoming a party to the Convention is a good opportunity to reflect on Romania's experience within this European system, which was designed to complement the domestic mechanisms for protecting fundamental rights. [2] The impact on the legal system is immeasurable, not only because of the cases decided by the Court, which have led to important changes in Romanian law and in the practice of the national authorities, but also because of the logic of the system and a less noticeable effect, less visible at first sight, which has developed over time, of creating and consolidating a legal paradigm based on democracy, the rule of law and, ultimately, the defense of human dignity, the primary value on which fundamental rights are based.

While the state architecture created by the 1991 Constitution laid the foundations for Romania's integration into the Convention system, the latter has often provided substantive elements useful for the protection of fundamental rights. The possibility granted to the courts (but also to other public authorities) to apply the Convention as a matter of priority, especially as interpreted by the ECtHR, as opposed to more unfavorable contrary provisions in domestic laws, has provided the courts with a powerful instrument by which the centre of gravity has gradually shifted from legality, understood as an automatic application of domestic rules, to a legality conditional on the compatibility of those domestic rules with the rights guaranteed by the Convention.

Moreover, the courts have taken over the case-law of the ECtHR and have applied in their practice logical structures of analysis aimed not only at ensuring effective protection of fundamental rights, but also at resolving any conflicts that might arise between the different values and interests protected by distinct rights (e.g. protection of privacy vs. freedom of expression).

Equally, the Constitutional Court often refers in its decisions to the relevant case-law of the ECtHR and, moreover, has created certain mechanisms inspired by the Strasbourg Court's practice (e.g. the requirements of quality of the law - predictability, precision, clarity - invoked more and more frequently in recent years in the context of constitutionality review and used to resolve complex issues[3] are based on the Constitutional Court's adoption of a standard of analysis developed by the ECtHR, which requires that any interference with a fundamental right must be based on an accessible and predictable legal basis). As the scope of the relationships covered by the Convention is very broad, it is rare to identify a particular subject to which the case-law of the ECtHR is not applicable, even in principle.

The impact of judgments delivered by the ECtHR in cases against Romania has not been limited to specific cases, but often the effect on the legal system has been much deeper and more far-reaching. A few examples could be illustrative. The strengthening of the principle of legal certainty - an essential component of the rule of law - was also achieved by eliminating the possibility for the prosecutor to lodge an extraordinary appeal in civil matters (i.e., extraordinary appeal for annulment), following the conviction of the Romanian State in the Brumărescu case (1999).[4] The complaints lodged by persons who failed to obtain reparation measures in the context of the arduous process of restitution of property that had been confiscated by the communist regime were so numerous that the ECtHR has used the pilot judgment mechanism to indicate to the Romanian State that it must take effective and swift measures to ensure that the right to restitution is respected (Maria Atanasiu et al. - 2010). [5] The existence of an inconsistent jurisprudence, even at the level of the High Court of Cassation and Justice, has led the ECtHR to conclude that there has been a violation of the principle of legal certainty, with the effect of depriving the applicant of a fair trial (Parohia Greco-Catolică Lupeni and others - 2016)[6] The three examples I have chosen are different in terms of the concrete issues raised, but if the veil of legal construction is removed, one common value can be observed, namely the imperative of protecting legal certainty.

The cases in which the ECtHR has found a violation of fundamental rights by the Romanian State concern a wide variety of issues: conditions in Romanian prisons that are not compatible with the standard imposed by the Convention; the very long duration of judicial proceedings that has led to a violation of the right to a fair trial; the lack of criminal investigations that are effectively carried out by the authorities; the lack of a minimum recognition of a form of legal protection for same-sex couples and many others.

It is not our intention in this context to provide an overview of the cases in which the ECtHR has found a violation of the Convention by the Romanian State. There are too many of them and further efforts are needed in particular on the part of the authorities to effectively implement the judgments of the ECtHR, and the obligation to comply with the Strasbourg Court's judgments is not limited to the judgments against Romania, but extends to the entire case law.

What we want to emphasize is that the 30 years of application of the Convention in Romania have stimulated a paradigm shift. After all, behind each fundamental right there is a protected value, all very important in a democratic system: for example, access to an independent judiciary, limiting the intrusion of the authorities into private life or protecting freedom of expression are different elements, each protecting different values, but all equally important for a democratic society.

The protection of these values depends as much on the efforts of individuals to invoke their Convention rights before State institutions as on the openness of the courts to recognize their importance and thus ensure access to an effective judicial remedy. The fundamental rights that protect citizens from state interference are the basis of any democratic system; they should be sufficiently well known by those to whom they are recognized. Unfortunately, we believe that there is still work to be done here: the discipline of fundamental rights - as permeated by ECHR case law - is not studied in any significant way, even in the country's law faculties. Not to mention the lack of adequate popularization programs in pre-university, school or other forms of training. We firmly believe that one of the cornerstones of a democratic system is the knowledge and use of these rights by the population, and the lack of an adequate system of education in this area is a shortcoming that should be remedied as quickly as possible.

Even if, often and for various reasons, domestic or European mechanisms for the protection of fundamental rights fail to achieve the purpose for which they were created, it is by no means a solution to proclaim the failure of these systems: on the one hand, the defense of fundamental rights is not a milestone to be reached, but a process to be constantly maintained; on the other hand, it would mean forgetting where we started from - as has been pointed out "the claim that the protection of human rights in Europe is born from the ashes of Auschwitz is therefore not a mere figure of speech recurrent in the books of European law professors". [7]

Therefore, the 30th anniversary of the application of the European Convention on Human Rights in Romania is not only a good occasion to analyze the results, but also an opportune moment to bring up the issue of the protection of fundamental rights through knowledge.

An article signed by Dragoș Bogdan, Managing Partner - dbogdan@stoica-asociatii.ro and Constantin Pintilie, Senior Associate - cpintilie@stoica-asociatii.ro - STOICA & Asociații

[1] The Convention and its protocols were ratified by Romania by Law No. 30/1994, published in M.Of. No. 135 of May 31, 1994. Romania deposited its instruments of ratification on June 20, 1994. It is from the latter date that the Convention takes effect for Romania in the international legal order. See C. Bîrsan, European Convention on Human Rights, 2nd ed., C.H. Beck, Bucharest, 2010, p.1637.

[2] For an analysis of the relationship between domestic and international mechanisms for the protection of fundamental rights see I. Muraru, E.-S. Tănăsescu, Constitutional Law and Political Institutions, ed. 16, vol. I, C.H. Beck, Bucharest, 2023, pp. 185-189.

[3] See C. Pintilie, Limitarea și ordonarea puterii prin controlul previzibilității legii, in după 30 de ani: justiția constituțională în România (coord: B. Dima, V. Perju), Humanitas, București, 2023, pp. 94-128.

[4] ECHR, Brumărescu v. Romania, application no. 28342/95, judgment of October 28, 1999.

[5] ECtHR, Maria Atanasiu and Others v. Romania, Applications Nos. 30767/05 and 33800/06, judgment of October 12, 2010.

[6] ECtEDO, Parohia Greco-Catolică Lupeni and Others v. Romania, application no. 76942/11, judgment of November 29, 2016.

[7] R. Bercea, Protection of fundamental rights in the system of the European Convention on Human Rights, C.H. Beck, Bucharest, 2020, p.2.