Aspects on the contribution of judgments passed by the European Court of Human Rights to the interpretation and development of romanian law

Author:Ioan Chelaru
Position:Senator, Romanian Senate, Lawyer, Dean of Neamt Bar, Ph.D., Associate professor, Christian University 'Dimitrie Cantemir' Bucharest, Faculty of Juridical and Administrative Sciences
Pages:5-14
SUMMARY

The provisions of the European Convention of Human Rights are an integral part of the Romanian legal system, and the Convention itself with its annexed Protocols may be considered without hesitation as sources of law, because it is undeniable that they are part of Romanian law. This article analyzes the issues regarding the applicability of the judgments passed by the European Court of Human Rights to domestic law and whether they are or not a source in shaping the Romanian legislation, based on two situations. The first regards judgments directly concerning the Romanian State in a trial judged before the Court and where the judgment passed by the Court must be enforced under art. 46 of the European Convention on Human Rights and the second of cases concerning other countries, where such judgments serve in one way or another to settle certain legal issues faced by the Romanian State. The article focuses also on the influence of the European Court of Human Rights judgments in the construction of the new Civil and Criminal Codes.

 
CONTENT
Aspects on the contribution of judgments passed… 5
STUDIES, DISCUSSIONS, COMMENTS
ASPECTS ON THE CONTRIBUTION OF JUDGMENTS PASSED
BY THE EUROPEAN COURT OF HUMAN RIGHTS
TO THE INTERPRETATION AND DEVELOPMENT
OF ROMANIAN LAW
Ioan CHELARU
Abstract
The provisions of the European Convention of Human Rights are an integral part of the
Romanian legal system, and the Convention itself with its annexed Protocols may be considered
without hesitation as sources of law, because it is undeniable that they are part of Romanian law.
This article analyzes the issues regarding the applicability of the judgments passed by the
European Court of Human Rights to domestic law and whether they are or not a source in shaping
the Romanian legislation, based on two situations. The first regards judgments directly concerning
the Romanian State in a trial judged before the Court and where the judgment passed by the Court
must be enforced under art. 46 of the European Convention on Human Rights and the second of
cases concerning other countries, where such judgments serve in one way or another to settle certain
legal issues faced by the Romanian State.
The article focuses also on the influence of the European Court of Human Rights judgments in
the construction of the new Civil and Criminal Codes.
Keywords: European Court of Human Rights judgments /Romanian domestic law/Civil, Civil
procedure, Criminal, Criminal Procedure Codes.
The decision of the European Court of Human Rights are especially important
in the density of legal issues addressed, as well as in the originality and creativity
proven in settling certain controversial issues.
It is well known that courts judgments - regardless of their nature - did not
form a source of law in the Romanian law.
As Professor Nicolae Popa argued in his courses: “The reserved attitude in
recognizing that jurisprudence can be seen as a source of law is based on the
separation of powers principle. Indeed, in a state of law, legislative bodies are
Senator, Romanian Senate, Lawyer, Dean of Neamţ Bar, Ph.D., Associate professor, Christian
University ”Dimitrie Cantemir” Bucharest, Faculty of Juridical and Administrative Sciences
Law Review vol. I, issue 1, Januar
y
-June 2016, p. 5-14
6 IOAN CHELARU
responsible for creating laws, while judicial bodies account for the enforcement of
laws to specific cases. To recognize for courts the right to elaborate laws would
force the door on legislative creation, disturbing the balance of powers.”1.
Given that Romania is a member not only of the European Union, but also of
the Council of Europe, judgments of the European court have particular relevance
in evidencing Romania’s attachment to the principles of the rule of law and its
permanent separation from the tutelary system. Therefore, the old view that case
law is not a source of law - as in Anglo-Saxon systems - was seen from different
perspectives, which in turn have generated reflection themes for law theorists.
“By signing the Convention for the Protection of Human Rights and
Fundamental Freedoms on 7 October 1993, on the day of its accession to the
Council of Europe, Romania has turned the page on totalitarianism and made its
entrance into the club of European democracies. Ratifying that Convention on 20
June 1994, Romania admitted to any person within its jurisdiction the rights and
freedoms defined in this instrument, accepting at the same time the right of
individual appeal to the European Court of Human Rights; it was subscribed to an
international and even supranational control system. Thus, as a signatory to the
Convention, Romania accepted the obligations thereunder and the “discipline”
resulting from it”2.
The applicability judgments passed by the European Court of Human Rights
to domestic law is, however, based not on the existence of a “superior law” at
European level, which would be enforceable against the judicial and state bodies of
Romania, but relies instead on a sovereign act, on Romania’s participation in the
European Convention on Human Rights, which requires all contracting parties the
obligation to observe human rights, and in case of adopting judgments, to execute
them in good faith and to strictly comply with the measures set forth by the
judicial forum3.
In fact, the Romanian Constitution of 1991, revised in 2003, includes two
essential provisions, namely the one under art. 11 para. (2) which states that
“treaties ratified by Parliament, by law, are part of domestic law”, and, on the
other hand, art. 20 which - in turn - specifies two fundamental provisions. The first
is the provision under art. 20 para. (1), that “Constitutional provisions on rights
and freedoms shall be interpreted and applied in accordance with the Universal
Declaration of Human Rights, and with any covenants and other treaties to which
Romania is a party”, and the second is the one discussed under art. 20 para. (2),
stating that “Where any inconsistencies exist between such covenants and treaties
on fundamental human rights to which Romania is a party, and domestic laws, the
1 Nicolae Popa, General Theory of Law, ACTAMI Publishing House, Bucharest, 1997, p. 207.
2 Vincent Berger, Case Law of the European Court of Human Rights, 5th Edition, in Romanian,
foreword, Romanian Institute for Human Rights, Bucharest, 2005, p. IX.
3 Victor Duculescu, Georgeta Duculescu, European justice. Mechanisms, Challenges and
Perspectives, Lumina Lex Publishing House, Bucharest, 2002, pp. 38-39.
Aspects on the contribution of judgments passed… 7
international regulations shall prevail, unless the Constitution or domestic laws
include more favorable provisions”.
Under these conditions, it is quite obvious that in the current stage of
development of our national legal system, the provisions of the European
Convention of Human Rights are an integral part of the Romanian legal system,
and the Convention itself with its annexed Protocols may be considered without
hesitation as sources of law, because it is undeniable that they are part of
Romanian law.
It is however noteworthy that, although the Convention and its principles are
binding on the Romanian State, there is no text that expressly provides for the
binding nature in domestic law of the judgments passed by the European Court of
Human Rights. Here, naturally, two situations can be distinguished. The first
regards judgments directly concerning the Romanian State in a trial judged before
the Court and where the judgment passed by the Court must be enforced under
art. 46 of the European Convention on Human Rights.
A second situation is that of cases concerning other countries, where such
judgments serve in one way or another to settle certain legal issues faced by the
Romanian State.
Regarding the first assumption, mention can be made of famous older
judgments passed by the European Court of Human Rights in the cases Vasilescu,
Brumărescu, Petra, Constantinescu, Dalban, etc.
In these cases, the Court ruled not only case-specific solutions, but also made
some important legal considerations on the issues, such as protection of property
rights, nature of nationalization acts, rights of detainees etc.
The second category includes judgments of the European Court of Human
Rights that have debated various issues addressing the development of the rule of
law, with settlements that have only a relative validity, limited to participants to
the judicial “duel” and, on a larger scale, regarding all Member States of the
Council of Europe4. We can mention in this regard the judgments in ruled in
matters relating to: political parties and their position in the rule of law, gay rights,
meaning of lustration in former socialist countries and its limits etc.
After Romania joined the European Convention on Human Rights, the case
law of the European Court of Human Rights has often been cited in judgments of
the Constitutional Court serving to substantiate solutions in the spirit of European
ideas5.
In a substantive article on this issue, Professor Ion Vida found that by the
approximately 380 judgments in which, between 1994 and 20036, the Court has
4 Idem, pp. 39-40.
5 In fact, there is an alphabetical index on the website of the Constitutional court with
judgments of the European Court of Human Rights which were taken into account in adopting
certain rulings.
6 Ioan Vida, Case law of the Constitutional Court and the European Convention on Human Rights, on
the website of Constitutional Court, http:www.ecr.ro .
8 IOAN CHELARU
substantiated part of the rulings delivered on texts of the Convention on Human
Rights and Fundamental Freedoms, it served to underline the importance of these
international provisions in the framework of the human rights legislation, but also
to ensure a fair interpretation and enforcement of these rules by the courts in the
light of the constitutional provisions of art. 147 para. (4), which provides the
binding nature of Constitutional Court judgments.
The Constitutional Court also had its special contribution in clarifying the
scope and content of the rights and freedoms enshrined in the Convention.
Interpreting the provisions of art. 6 of the Convention for the Protection of
Human Rights and Fundamental Freedoms, the Court had the opportunity to rule
on the compliance with a reasonable time for settling cases, observing the principle
of equality of arms between litigants, of safeguards that the accused party must
enjoy in the criminal trial and the presumption of innocence. Regarding this latter
aspect, we should signal Judgment no. 317/2003 of the Constitutional Court which
upheld the applicability of the presumption of innocence in cases of contraventions.
The European Court noted as positive the measure to remove indictment in
Romania in the “interests of the individual” for less serious offenses for which the
perpetrator is not criminally responsible any longer, but in the opinion of the
European Court, the distinction made by the European countries, between crimes,
offences and contraventions is operated in such a case, since, pursuant to art. 6 of the
Convention for the Protection of Human Rights and Fundamental Freedoms all
these facts are criminal in nature and that is why its provisions guarantee to all
“accused parties” the right to a fair trial, whatever the qualification of the facts in
domestic law. For the purposes stated, the European Court of Human Rights ruled
in Case Garyfallou AEBE against Greece (1997)7, in the case of Lauko against Slovakia
(1998)8, and in the case Kadubec against Slovakia (1989)9”.
The same arguments which led to removing the distinction between criminal
law and contraventional law also grounded the ruling whereby the Constitutional
Court held that the principle of retroactivity of the more lenient criminal law can
also apply to contraventions.
The study mentioned, signed by Ioan Vida, also highlights that the same
extremely significant political and legislative event which was Romania’s accession
to the European Convention also marked the completion of art. 21 of the
Constitution, paragraphs (3) and (4), which state that “parties have the right to a fair
trial and to a settlement of their cases within a reasonable time”, and “administrative
special jurisdictions are optional and free”, stressing on this occasion the special
resonance enjoyed by judgments of Constitutional Court among options of
Romanian legislators, including those of constitutional ones.
7 ECHR, Recueil des arrêts et décisions, 1997, vol.V.
8 ECHR, Recueil des arrêts et décisions, 1998, vol.V.
9 ECHR, Recueil des arrêts et décisions, 1998, vol.VI.
Aspects on the contribution of judgments passed… 9
The content acquired by various law institutions as a result of interpretations
given by the Constitutional Court in light of the provisions of the Convention for
the Protection of Human Rights and Fundamental Freedoms, but also the case law
of the Strasbourg Court, have contributed in many cases essential changes to
guarantees and forms of protection provided for personal rights and freedoms10.
In this sense, we can say that, by interpreting the provisions of the Convention,
the principle of equality and prohibiting discrimination, as otherwise provided
under art. 4 para. (2) and art. 16 of the Romanian Constitution, has acquired new
meanings in Romanian law, through settlements ruled by the Constitutional Court.
Thus, reconsidering the initial practice on this matter, the Court recognized that
this principle is to be applied to other individuals without citizenship, as required
by art. 16 of the Constitution. In grounding this settlement, it showed that the
provisions of art. 14 of the Convention make no distinction between individuals
falling within its scope.
In interpreting the same principle of equality, the Constitutional Court, starting
from a series of judgments passed by the Strasbourg Court, has also held that
equality does not mean uniformity and that separate legal treatments may be
established for certain categories of persons or groups, if there is an objective and
reasonable justification. Moreover, following up on these arguments, it argued on
the existence of a genuine right to difference, which inevitably implies the need for
imposing a different legal treatment when the factual situations are objectively
different11.
No doubt that the guarantees enshrined in the Convention to defend property
rights could not be left out of the arguments invoked by the Constitutional Court in
its practice. Judgment no. 70/2001 is of particular importance in this regard, the
notions of “goods” and “property” acquiring, in light of the practice of the
European Court of Human Rights, an extended interpretation, stating that the
protection granted by art. 1 of Additional Protocol no. 1 to the Convention should
also cover the scope of those rights and ownership interests that do not necessarily
intermingle with the ownership right over tangible goods, such as collateral,
clientele or even a claim, like that of being reimbursed12.
In drafting the new codes, an important influence was exerted by judgments of
the European Court of Human Rights and in particular by principles derived
therefrom.
Compliance with European rules appears, for instance, as evident as possible,
in the provisions of the new Criminal Procedure Code. We firstly need to mention,
in this regard, the institution of the judge for rights and freedoms, newly created.
10 Ioan Vida, cited art.
11 Ibidem.
12 Romanian Official Gazette, Part I, no. 236, of 10 May 2001
10 IOAN CHELARU
Regarding the competence of the judge for rights and freedoms, it settles
requests, proposals, complaints, appeals or any other intimations regarding
preventive measures, precautionary measures, provisional safety measures, acts of
the prosecutor, the consent granted for searches, for using special surveillance or
research methods and techniques, or other evidentiary procedures under the law,
the procedure of anticipated hearing and any other situations provided by law.
In order to respect the right to privacy and correspondence, the new Criminal
Procedure Code set out procedural rules in the matter of special techniques of
surveillance and research to meet the accessibility, predictability and proportionality
requirements of the European Court of Human Rights case law. Whenever such
measures are authorized, there is a need for the existence of certain reasonable
suspicions for committing a crime, for observing the subsidiarity principle - with the
exceptional nature of an interference with the right to privacy being highlighted -
and for the principle of proportionality of such measure with restricting the right to
privacy, in relation to any peculiarities of the case, to the importance of the
information or evidence to be obtained or to the seriousness of the offense.
Still in order to guarantee the rights provided by art. 8 of the European
Convention on Human Rights and Fundamental Freedoms, the new Code sets out,
as a principle, the obligation of prosecutors, after the end of the technical
surveillance measure, to notify each subject of a mandate in writing, as soon as
possible, on the technical surveillance measure taken against him/her.
Some surveillance or research techniques, such as the technical surveillance
mandate, the retention, handover and search of postal items, shall be ordered by
the judge of rights and freedoms.
Regarding evidence, the new Criminal Procedure Code includes important
new rules which enshrine the principles of legality and loyalty in using evidence.
The principle of legality in using evidence involves using only the evidence
provided by law, as determined by the new Criminal Procedure Code, special
legislation and jurisprudence of the European Court of Human Rights.
The principle of loyalty in using evidence is expressly governed and states that
it is forbidden to use violence, to promise an advantage disallowed by law, to
threaten with an unjust harm or any other means of coercion prohibited by law in
order to obtain evidence. Also, no eavesdropping methods or techniques are
allowed affecting the individual’s ability to remember and report consciously and
voluntarily the evidentiary facts. Such prohibition applies even if the person
eavesdropped consents to the use of such methods or techniques. Criminal judicial
bodies or other individuals acting on their behalf cannot cause a person to commit
a crime to obtain evidence.
Evidence obtained through torture, inhuman or degrading treatments cannot
be used in criminal proceedings. Thus, it is absolutely presumed that the fairness
of the criminal trial will be affected if evidence is obtained by torture, inhuman or
degrading treatments.
Aspects on the contribution of judgments passed… 11
In connection with the establishment of precise deadlines for meeting certain
obligations by the judicial bodies, the ECHR examined, in line with art. 5 para. (1)
of the Convention, the continued detention of plaintiffs in the absence of a legal
basis13. On this occasion it was found that art. 5 para. (1) of the Convention has
been breached because the plaintiffs have been kept in detention after expiry of the
prosecutor mandate, without extending the measure by an act of a judicial body).
Accordingly, the Commission who helped draft the new Criminal Procedure Code
held that the rule to establish strict legal deadlines to arrange for custodial
measures cannot be automatically extended to cases concerning other aspects, such
as: the term by which the suspect must be notified about his/her right to be
assisted by a lawyer, the deadline for conducting computer searches, the
maximum reasonable term motivated for the prosecutor to postpone informing the
suspect or defendant or submitting to him/her the media used to store technical
surveillance activities.
In fact, the European Court has stated in its jurisprudence, that the concept of
“short-term”, like the concept “reasonable term”, must be assessed in light of the
circumstances of each case14. Hence, experts who took part in drafting the Criminal
Procedure Code concluded that the jurisprudence of the Court does not impose an
obligation for States to set legal deadlines for each procedural document.
The impact of certain principled provisions contained in the European
Convention on Human Rights and in the practice of the European Court of Human
Rights s found in other Codes adopted by the Romanian Parliament. Thus, for the
Criminal Code, we can mention the adjustment to normal limits of penalty
handling, introducing in many cases alternative penalties to imprisonment, the
new provisions on conditional release, the provisions on the European arrest
warrant, mentioning the conditions to restrict the scope of parental rights,
regulating the possibility of voting by inmates, incriminating acts of violence
against family members, new regulations on corruption, breach of professional
secrecy, money laundering, currency counterfeiting, incriminating offenses against
the financial interests of the European Union.
For the new Civil Code we can mention the increased care granted to protecting
the rights of individuals, ensuring a balance between the right to privacy and
freedom of expression, protecting personal non-property rights by specific means,
setting the rule that non-property loss is likely to be remedied, reformulating
certain private international law provisions in line with European rules.
Thus, in Book VII, “Private international law provisions” of the new Civil
Code the provisions of Law no. 105/1992 have been integrated, but in a revised
form, to be brought in line with the new conception in family law matters and with
13 For example, in case Varga against Romania (Judgment of 1 April 2008, ruled in File
no. 73957/2001).
14 The case Pantea against Romania, File no. 33343/1996, ruling of 3 June 2003; case Jablonski
against Poland, File no. 34392/1996, ruling of 21 December 2000.
12 IOAN CHELARU
Community and international instruments in private international law matters.
The new regulation establishes the spouses’ autonomy of will by their possibility
to choose, within certain limits, the law applicable to the matrimonial regime.
Therefore, the proposed regulation reflects the principle established by the Hague
Convention of 1978 on the law applicable to matrimonial property regimes and
reaffirmed in the Green Paper of the European Commission on developing a
European regulation on conflict of laws in matrimonial property regimes,
jurisdiction and recognition of court judgments15.
Also, the new regulation distinguishes between personal effects and general
property of marriage (primary imperative regime) on the one hand, and proper
matrimonial regimes (legal and secondary), on the other hand, taking into account
such changes made in family law (Book II).
For the Code of Civil Procedure we can mention some innovations related to
Romania’s ECHR casuistry regarding, among others, the simplification and
acceleration of judicial procedures, the simplification of divorce procedure, the
provision whereby the bail may also regard real estate rights or financial
instruments, and the introduction of the appeal concerning delays in the trial as a
new remedy. The Code establishes a self-reliant special procedure directed against
the breach of the right to settle a trial within an optimal and predictable time: the
appeal against delays in the trial. Under the new procedure, observing ECHR
decisions that sanctioned the absence of legal means to act in case of exceeding the
reasonable time to settle a case, the party considering a cause to be delayed may
require legal measures for this situation to be removed.
Romania, who is also a member of the Council of Ministers of the Council of
Europe, participated actively in the process of streamlining the European Court of
Human Rights. It is well known that, following the entry into force of Protocol 11
(1998), the work of the European Court of Human Rights was increased, but also
15 A harmonized European regulation is obviously hampered by the variety of legislative
solutions in national legal systems. This is also why, in general, the matter of matrimonial property
regimes was largely only explored by the European legislator, and only occasionally, an expression
of the principles of equality and freedom within the family group, it was treated directly and
sought to impose universally valid rules. All these amid great difficulties encountered in managing
family relationships when they also contain an extraneous element, amplified in recent years by
large-scale migratory phenomena, by a recognized family instability and, practically, by the
impossibility to find and, then, to impose a regulatory framework that would be recognized and
adopted by the European Union States. In these circumstances, however, in 2011, the European
Commission and its subordinate legislative apparatus drafted and proposed two models for a
regulation on the jurisdiction, applicable law, recognition and enforcement of judgments in
matrimonial property regimes, one on marriages and the second regarding registered partnerships.
The first attempt to adopt such regulations, which occurred in the European Parliament in 2013,
resulted in a severe failure, the huge number of amendments proposed leading perhaps in the
future to the drafting of other texts. For more details on matrimonial property regimes, see I.
Chelaru, A.L. Chelaru, Foreigners in Romania. Legal regime, Universul Juridic Publishing House,
Bucharest, 2016, pp. 273-277.
Aspects on the contribution of judgments passed… 13
became more efficient, thanks to the simplifications applied, which continued with
Protocol 14 (2004), not effective yet.
Among the new reform measures proposed and which provoked Romania’s
agreement, there is the issue of the “pilot decision”, i.e. decisions regarding a case,
but addressing an issue that is reproduced in a large number of other cases heard
by the European Court Human Rights. We believe that such pilot decisions are
intended to facilitate the simplification of procedures and for a faster settlement of
cases which raise similar problems, like in Romania with the first cases heard by
the European Court of Human Rights related to retrocession of nationalized
property.
In fact, it should be noted that, for a more efficient relationship between
Romania and the ECHR, a reassessed and a resized position of the Government Agent for
ECHR has been applied since 2003. Therefore, the institution of the Government
Agent for the European Court of Human Rights is operational at the Ministry of
Foreign Affairs, being transferred from the Ministry of Justice by Government
Emergency Ordinance no. 64/2003 on setting out certain measures concerning the
establishment, organization, reorganization or operation of some workforce
structures within the Government, ministries, other specialized bodies of the
central public administration and of some public institutions16.
The institution of the Government Agent seeks, whenever possible, to boost
administrative procedures that could lead to an internal settlement, before Court
ruling, of cases where either a new domestic remedy is possible, following the
adoption of new legislation, or the infringement is due to non-enforcement of
domestic judgments. In these cases, if such administrative procedures to return or
grant possession for the plaintiff are successful, the Romanian state can avoid
being convicted by requiring that cases be deleted from Court dockets or by
signing amicable settlement conventions.
It should be emphasized that among other duties, the Government Agent17:
• collaborates with the courts, the Constitutional Court, the Court of Auditors,
the Public Ministry, with criminal investigation authorities, public notaries,
enforcement officers and other persons or entities with public service missions,
16 Romanian Government Ordinance no. 94/1999 on Romania’s participation in proceedings
before the European Court of Human Rights and the Council of Ministers of the Council of Europe
and exercising the right of state retrogression as a result of decisions and conventions of amicable
settlement (published in Official Gazette no. 431 of 31 August 1999), was approved with
amendments and additions by Law no. 87/2001, as amended and supplemented by Government
Emergency Ordinance no. 64/2003 on on setting out certain measures concerning the
establishment, organization, reorganization or operation of some workforce structures within the
Government, ministries, other specialized bodies of the central public administration and of some
public institutions (published in Official Gazette no. 464 of 29 June 2003) and by Government
Emergency Ordinance no. 48/2008 (published in Official Gazette nr. 330 of 25 April 2008)
17 Romania’s Government Agent before ECHR, the Ministry of Foreign Affairs
http://www.mae.ro
14 IOAN CHELARU
related to the implementation or administration of justice or other jurisdictional
activities, or to the enforcement of judgments or other jurisdictional acts, who must
send to the Government Agent, at its the request and by the deadline set by it, in
addition to the documents, data and information necessary to represent the
interests of the Romanian State before the Court and the Council of Ministers, all
acts on procedures ongoing before such bodies, regardless of the trial phase,
complying with the celerity of internal procedures in progress;
• signs, on behalf of the Romanian Government, amicable settlement
conventions for a case based on an individual application against the Romanian
state, after the Court communicates such application;
• informs the Minister of Foreign Affairs about the legislative changes
required by the evolving case-law of the Court in order to promote, together with
the competent institutions, the related legal acts.
In conclusion, when we refer to the contribution of ECHR jurisprudence in
perfecting the construction of the rule of law in Romania, we should not refrain
from mentioning the value of judgments passed by the European Court of Human
Rights in the educational process of legal learning.
Finally, we consider encouraging that all university textbooks concerned with
human rights - but other disciplines, too - include ample references to cases judged
in the European Court of Human Rights. Such references are quite useful for
shaping a European legal consciousness to undergraduates and students of higher
forms of education, and they are also useful for the general public to understand
the value and high moral significance of the judgments passed by the European
Court of Human Rights18.
18 Victor Duculescu, Georgeta Duculescu, op. cit., p. 40.