Considerations regarding the authority of the european convention on human rights and fundamental freedoms and of the european court on human rights jurisprudence on the national law systems in some of the member states

• Author: Titus Corlatean
• Position: Romanian Senate - President of the Foreign Affairs Committee; Lecturer - Political Science Faculty, Christian University 'Dimitrie Cantemir', Bucharest; Social and Administrative Sciences Faculty, 'Nicolae Titulescu' University, Bucharest
• Pages: 1-29

1

CONSIDERATIONS REGARDING THE AUTHORITY OF THE

EUROPEAN CONVENTION ON HUMAN RIGHTS AND

FUNDAMENTAL FREEDOMS AND OF THE EUROPEAN COURT ON

HUMAN RIGHTS JURISPRUDENCE ON THE NATIONAL LAW

SYSTEMS IN SOME OF THE MEMBER STATES

Ph.D Titus CorlăŃean

*)

Abstract

In the study hereby, the author reviews, from the comparative law point of

view, the effects that the European Convention on Human Rights and

Fundamental Freedoms, as well as the decisions of the European Court on

Human Rights, have on the national law systems in some member states (Austria,

Belgium, the Netherlands, Germany, Great Britain and Romania), both on the

substantive law as well as on the procedural law level.

Keywords: ECHR; international treaties; Constitution; direct application;

incorporation

Introduction

The provisions of the European Convention on Human Rights and

Fundamental Freedoms (hereinafter referred to as Convention) had and continue

to have, at a large amount, considerable effects on national law systems of the

Member Parts. At this time, the Convention is an instrument of harmonization of

the national legal systems on human rights, growing towards a common European

law system of human rights.

The overall conclusion of last years European literature on human rights,

regarding the hierarchy of juridical rules, is that generally, in the Member States,

the Convention takes precedence over domestic common regulations.

On the other hand, we may find that the European Human Rights Court

(hereinafter referred to as EHCR) decisions are compulsory in international law

for the member states, but the Convention provisions do not impose formally to

national courts to give them „direct effect”.

In this context, we may say that generally, a solution to this matter is up to the

Contracting States national law, which may implement the decisions taken in

Strasbourg according to domestic judicial rules

1)

.

*)

Romanian Senate – Presid ent of the Foreign Affairs Committee; Lecturer – P olitical

Science Faculty, Christian University „Dimitrie Cantemir”, Bucharest; Social and Ad ministrative

Sciences Faculty, „Nicolae Titulescu” University, Bucharest; email: titus.co rlatean@senat.ro.

1)

Mihail Udroiu & Ovidiu P redescu, 2 008, ProtecŃia europeană a drepturilor omu lui şi

procesul penal român, Editura C.H. Beck, Bucureşti, p. 20.

2

The main conclusion of the European doctrine in this regard is that at this

time, the Convention has been almost incorporated, one way or another, in the

national law in all member states.

The concrete way of the incorporation and the way the Convention is being

applied in the national law systems, the hierarchy of conventional and internal

rules, as well as the reaction of the national courts, all these may be explained by

the specificity of every Constitutional system that exist in the member states, by

the monist or dualist tradition accepted in a state, or by the tradition of every

national school law. This implies a diversity of solutions in the Contracting States,

fact that does not contradicts, on the contrary, consolidates the general conclusion

which states that the European instrument in Strasbourg influence the national law

systems on human and fundamental rights. The evolutions from the last twenty

years shows very clear this thing, the conservative doctrine and more prudent

practise in many national cases being slowly abandoned in favour of a more open

attitude from part of governmental, judicial and legislative authorities in these

states, sometimes even through a more creative translation of the same

constitutional provisions that existed twenty or thirty years ago.

We will make the case for the thesis above by showing some relevant national

cases.

1. Austria

Austria did not participate in the drafting of the Convention nor was the

country among the original contracting parties. However, it became member of

Council of Europe in April 1956 and signed the Convention and First Protocol on

December 13, 1957. These were ratified by the President and came into force on

September 3, 1958, after the approval of the two chambers of the Austrian Federal

Parliament, „Nationlrat” (the National Council) and the „Bundesrat” (the Federal

Council), had been obtained in accordance with Section 50 of the 1929

Constitutional Act. With the publication of the Convention and its Protocol in the

Federal Law Gazette, the Convention obtained the status of domestic law.

In accordance with the general principle of incorporation of state treaties, that

governed the Austrian constitutional law till 1964, the Convention and the

Protocol became part of domestic law. The Convention has been considered as

having the status of constitutional law, being compulsory for the judicial and

administration authorities. The rights contained by the Convention have been

considered as existing simultaneously with the already existing Catalogue of

Fundamental Rights and other judicial domestic provisions. The Austrian system

in force by then explained that, although, generally, the Convention rules are

3

directly enforceable

2)

, not all must be considered as self-executing by the public

bodies or by the courts.

Although, the Convention had been obtained the constitutional status, in 1961

The Constitutional Court made a different interpretation, underling the fact that

actually, it has not this status:

„Taking into consideration the fact that the decision of the National Council

to approve the European Convention on Human Rights, and consequently, the text

made public by the Federal Gazette do not contain the mention „constitutional”,

as requested by Art. 50(2) corroborated with the second part of Art. 44(1) from

the Constitution, the Convention nor any other part of the document does not have

the status of constitutional law”

3)

.

The effect of this decision was that the Convention has been brought back to

the status of common law.

The reaction to this decision has been prompt: The 1964 Federal

Constitutional Act (Amendment) from March 1964 revised the whole procedure of

treaty incorporating into the Austrian law. The Second article of the quoted act,

with retrospective effect, awarded the Convention the Constitutional Federal Law

status.

We have to mention, in this context, that actually there is no strict rule in the

Austrian Constitution that may stand international treaties in domestic law,

ratified according to Article 50.

Nonetheless, there is a casuistry that shows the fact that treaties have direct

effect. While the 1964 amendment of Article 50 stipulates a special procedure by

which the National Council may decide that a treaty may be implemented through

a separate law, is broadly accepted that if there is no such decision, the provisions

of an international treaty – concluded accordingly to Article 50 (1) (which is the

Convention case) – is directly applicable to domestic law.

The Constitutional Court has exclusive jurisdiction to decide on the validation

of every law and regulation. The Court is the only judicial institution which has

competence for deciding on infringements of fundamental rights protected by the

law, on international treaties concluded by Austria, or any other domestic norms,

decisions or administrative authorities’ orders. Consequently, if during a

procedure in an Austrian court, it is raised a doubt that a provision of a law may or

may not respect the Constitution, that matter must be referred to the Constitutional

Court immediately. In other words, when it is checked who is entitle to decide if

the statutes are valid or not [Article 140 (a)], it may appear the question if such a

norm is not consistent with the Convention. If the answer is affirmative, the

respective norm is annulled.

2)

D. Harris, M. O’Boyle, Warbrick, Law of the European Convention of Human Rights,

Oxford University Press, Second Edition, 2009, p. 24.

3)

A. Z. Drzemczewski, European Human Rights Convention in Domestic Law – a

comparative study, Oxford University Press, New York, 1985, p . 94.

4

For instance, the Constitutional Court validated the Constitutional statute of

the Convention in the record regarding „The Burgerland Hunting Law”, examined

in respect to the „civil rights” which Art. 6 par. 1 of the Convention referred on.

In its decision dating from October 14, 1965, the Constitutional Court has

admitted that Art. 6 was not only a programmatic principle of the law maker, but a

compulsory norm with Constitutional significance

4)

.

Since then, the Austrian Constitutional Court developed an outstanding

jurisprudence based on the Convention provisions, like those regarding Art. 2 –

the right to life (Case B. 425/75 from June 17, 1977 on police using fire arms

while performing arrests); Art. 3 – ill treatments (Case B. 350/76 from October 6,

1977 on police agents performing arrests); Art. 8 – the right to private life (Case

G. 63/77 from March 9, 1978 on limits of interference in private life)

5)

, and so on.

In the same time, we may underline the Constitutional Court jurisprudence on

the Convention organs practice. Such an example is ECHR annulling decision in

the ruling from June 29, 1973 in the „Tyrol Real Property sales Commission”

case, on the ground that the criticised authority was not an independent and

impartial tribunal, as states Art. 6 par. 1 of Convention and the EHCR

jurisprudence in the „Ringeisen v. Austria” case.

In the other hand, we underline that although the Constitutional Court has

exclusive jurisdiction on verifying the infringements of fundamental rights as

defined through the Convention in the national legislation, the Court has no

competence to verify the ordinary or administrative courts decisions in this

regard.

Only the Supreme Court of Justice, or the Administrative Court, both

independent from one another, as well as from the Constitutional Court, have

competence in this regard.

From this point of view, we may underline the fact that the Supreme Court of

Justice, the highest rank criminal and civil court in Austria, passed a number of

important decisions which reviewed some rulings adopted by low ranking courts,

especially on criminal law matters (like the Art. G (3) (c) regarding the right to

free legal advice), decision based on the Convention provisions as well as on the

Strasbourg Court jurisprudence.

The substantial impact of the Convention on the judicial system included

several other important aspects, as verifying if the draft laws or the adopted laws

are consisting with the Strasbourg norms or jurisprudence, or with the re-opening

of the internal procedures

6)

.

4)

Ibid, p. 98.

5)

Ibid, p. 99.

6)

The Federal Act from March 26, 1963 allows the Austrian citizens who make complaints to

the ECHR regarding the national procedure in appeal, to obtain the right to ask for reopening of

the internal procedures in Austrian courts.

5

In conclusion, being in consonance with the present literature in this field

regarding the Austrian national law system, a system based on the force of the

Constitutional norm, we can affirm that the direct applicability and the „self-

executing” characteristic of the European norm and of the ECHR jurisprudence,

make the above mentioned system one of the most powerful law systems in

Europe that guarantees a full exercise of the human fundamental rights.

2. Belgium

Belgium is part of the states with monist tradition which attributes direct

effect to international treaties in internal norms by ratification, promulgation and

publication in the Official Gazette of the state. This way the treaty, precisely the

Convention, obtain the domestic law status.

Belgium was one of the original states signatories of the Convention on 4

November 1950. Prior to its ratification, the legislative section of the State

Council was consulted. Thereupon both the Senate and House of Representatives

passed the law of approval authorizing the instrument's ratification in accordance

with Article 68 of the Constitution. The ratification law of the Convention and

First Protocol have been passed on 14 June 1955, the law authorizing the

instrument's „full and entire effect”

7)

.

The text of the Convention has been annexed to the approval law. The authors

of Belgian legal doctrine, quoted by A. Z. Drzemczewski

8)

, insisted on the fact

that the Convention itself and not the ratification law is applied by the national

courts. The last one can be called „law”, being seen as a legislation act due to

suspend the effect of some preceding laws which stated contrary to the

Convention provisions, but from a „substantive” point of view, the ratification is

not a „law”.

Accordingly to the accepted Constitutional practice, the Convention – after

being incorporated into the domestic law through parliamentary approval and the

following publication in the Official Gazette (Moniteur Belge) – had obtained the

„Statute” rank (domestic law). Its national status has been considered identical

with other legislative acts, although was mentioned its pre-emption on domestic

norms which may be in conflict with.

The Belgian Constitutional doctrine has made no distinction between the

international law norms approved and domestic law. This allows the Convention

provisions considered to be „self-executing” by the Belgian courts, to be called

upon in the mentioned tribunals.

A decisive moment was, from the point of view of the already mentioned

jurisprudence, a Court of Cassation ruling from May 27, 1971, which stated the

pre-eminence of the international norms direct applicable to domestic law on the

7)

The Official Gazette (Moniteur Belge) from August 19, 1955.

8)

A. Z. Drzemczewski, op. cit., p. 64.

6

internal norms that may be in conflict with. The Court of Cassation, meant as the

Strasbourg Court, easily admits that international norms on a general scale can

have direct effect, which means they may be applied by a judge. Moreover, the

mentioned ruling allows the national judge to remove the national norm that

contradicts the European one

9)

. As we said, before the 1970’ nor the Legislative

neither the courts have decided over the status of the Convention norms as

opposed to the domestic law. After the mentioned ruling from 1971, it was only in

the context of the examination of this matter in relationship with the Community

law, i.e. the Court of Cassation ruling in the case „Fromagerie Franco-Suisse „Le

SCHI” (from May 1971), that it was made a step forward on the way to

confirmation of a new national jurisprudence and reach the conclusion that “direct

application of all provisions of international treaties will give supremacy over the

domestic law which may be in conflict with, regardless when the domestic law

came into force

10)

.

This way, national courts became competent to verify if every legislation act

is consistent with those provisions of the treaty that has direct effect in the Belgian

law, if the law is inconsistent with the treaty provisions. Consequently, „mutatis

mutandis”, the Convention provisions considered to be „self-executing” in the

Belgian law, will be regarded as prevailing over the preceding or the following

laws, only if, as stipulated by Art. 60 of the Convention (which became Art. 53

after Protocol 11 came into force), the domestic law or any international treaty

that Belgium has signed, do not afford more favourable guarantees.

The „Lootens” case, closed with a decision of the Second Chamber of the

Court of Cassation from September 26, 1978, on the matter of „seat belt

legislation”, ruled that the lower court (the Correctional Tribunal of Antwerp) was

wrong when rejected the applicant motivation which stated that the Convention

provisions have a higher ranking than the ordinary laws. The Court of Cassation

criticised the traditional reasoning (until then) of the Belgian courts, expressed in

that case by the Tribunal, which stipulated that „according to constant

jurisprudence, the judge can not decide on a law according to the criteria of an

international treaty”.

The Court of Cassation showed:

„The motivation (of the Correctional Tribunal) is contrary to the law

principle which stipulates that in the event of a conflict between a norm of

domestic law and a norm of international law which produces direct effects in the

internal legal system, the rule established by the treaty shall prevail; the primacy

9)

See e.g. I. Vero ugstraete, La protection des d roits de l'homme dans le droit Belge, in The

history of the Supreme Courts of Europe and the develo pment of Human Rights, printed by Alfodi

Nyomada Co., Debrecen, 1999, p. 41.

10)

Ibid, p. 65.

7

of the treaty generates for the judge (…) the obligation to withdraw the

application of domestic law (A/N - TC)”

11)

.

One of the consequences of this evolution of domestic Belgian jurisprudence

led, according to the former President of the Belgian Court of Cassation, Ivan

Verougstraete, to the fact that „the European Convention on Human Rights has

been daily cited in Belgian courts (beginning with Art. 6) … Additionally, as

Belgian courts can not assess the constitutionality of the laws and the decrees, the

judges usually appeal to the last form of assessment, while, in other states, the

judges rather use the constitutional assessment. The results are pretty much the

same: the Belgium’s Constitution includes much of the guarantees afforded by the

European Convention on Human Rights”

12)

.

As to the direct applicability of the Strasbourg norm, i.e. the competence of

the national court to determine if the Convention provisions are „self-executing”,

is worth to remember the jurisprudence of the same Belgium’s Court of Cassation,

which, in a ruling from 1983

13)

, showed:

„The notion of direct applicability of the treaty cited by a citizen of a state that

signed the above mentioned treaty, presumes that the obligation taken by that state

should be expressed in a complete and precise way and that the contracting parties

should have, regarding this treaty, to afford subjective rights or to impose

obligations on individuals”.

As a result of the things said above, is worth to mention that the legislative

system and the evolution of the Belgian jurisprudence have allowed, in the

context of Belgium being convicted in several cases („de Beckes”, „the Belgian

linguistic case”, „Marckx”, „Vermeire” and so on), a proper reaction from part of

the Belgium’s institutions which were ready and promptly started the legislative

and administrative amendments in order to conform with the international

obligations taken once the Convention has been ratified.

It is worth to remember that starting from the ECHR’s motivation in the

„Marckx” case, e.g. „a judgement, by itself, can not decide the annulment of the

domestic courts inconsistent rulings or of the domestic law”

14)

, the Belgian

authorities took the task of putting into force the European court’s decisions,

based on the principle of subsidiarity

15)

.

Putting into force of the European Court’s decisions has led to a positive

obligation to secure a proper law statute for the children born out of a marriage

which ended with the fulfilment of a legislative reform, a law actually, approved

on March 31, 1987, which contained some changes of several norms on filiation.

11)

A. Z. Drzemczewski, op. cit., p. 68.

12)

I. Verougstraete, op. cit., pp. 41-42.

13)

The ruling Thonon v. Belgium, 1983, cited by J. Polakiewicz, Treaty-making in the

Council of Europe, Council of Europe Publishing, 1999, p. 157.

14)

D. Harris, M. O’Boyle, Varbrick, op. cit., p. 25.

15)

Mihail Udroiu, Ovidiu Predescu, op. cit., p. 19.

8

In our opinion, this is an eloquent example of the way in which legislation,

administrative bodies and Belgian jurisdictions have adopted the procedures of

incorporation, the direct applicability in the domestic system of the norms as well

as of the jurisprudence of the assessment mechanism that were in effect in

Strasbourg.

3. The Netherlands

The Convention and the First Protocol have been signed by the

Netherlands on 4 November, 1950, and respectively on 20 March, 1952. Both

have been approved by the law on 28 July, 1954. The two instruments have been

ratified on 31 August, 1954.

Due to the provisions of the Netherlands Constitution, and to the monist

tradition adopted by the domestic law system, the authors of the literature in this

field approved with a large majority the opinion that in the Netherlands, the

Convention prevails on the Constitution

16)

.

At the same chapter of the motivation is quoted the ruling „Oerlemans v. the

Netherlands” from 1991

17)

.

Based on Art. 60 to Art. 67 of the Constitution, the Convention provisions

which, by virtue of their contents, are direct applicable („self-executing”), have

direct binding force in the Dutch legal system on the date of the Convention

publication.

The Dutch doctrine, quoted by A. Z. Drzemczewski, shows that the

publication does not have to be considered as a governmental act due to which the

international treaty gains binding effect and, therefore, does not transform it into

domestic law. The binding effect on all persons of the treaty is the direct

consequence of the international law obligations that the state has assumed.

In this context, we have to mention the fact that Art. 65 and 66 of the Dutch

Constitution stipulates the direct applicability in the domestic law of the

international treaties, as well as of the Convention and respectively, that they take

precedence over ordinary law.

Based on these articles, the statutory regulations have to give pre-eminence to

the provisions direct applicable of the treaties („self-executing”) if they conflict

with the Constitution or with the preceding or the following laws

18)

.

This pre-eminence to the Constitution, as to the Parliament acts and to other

legislative norms, refers not only to the provisions of the international treaties

direct applicable, but also to the decisions of the international governmental

organisations [Art. 67(2) of the Constitution].

16)

See e.g.: D. Harris, M. O’ Boyle, Warbrick, op. cit., p . 24; A. Z. Drzemczewski, op. cit. pp.

88-89.

17)

D. Harris, M. O’ Boyle, Warbrick, op. cit., p. 24.

18)

See e.g. H. F. von Panbuys, L. J. Brinkhorst, J. G. Lammers a nd others, as cited by A. Z.

Drzemczewski in op. cit., p. 88.

9

This is why the Constitution itself authorizes the Dutch courts to use the direct

applicable provisions of the treaties, even against domestic norms with which may

be in conflict, without requiring a supplementary action of legislative or

administrative implementation.

We have to remind the fact that there are some authors, although not so

many, that tinge the nature of the relations between the Convention provisions and

the Dutch Constitution.

While Art. 60 par. 4 of the Constitution stipulates that domestic courts are not

competent to rule on the Constitutionality of the international treaties, Art. 63

admit, on the other hand, that the content of the treaty may – if the development of

the international order asks for it – deflect from certain constitutional provisions.

The conclusion of the authors mentioned above

19)

is that, in this case, the direct

applicable provisions of the Convention (as well as of other international treaties)

have a „unique statute of extra-Constitutionality”.

When the Convention has been ratified, both the Government and the

Parliament considered that the Dutch law is consistent with the norms stipulated

by the European instrument and therefore, consequently, they don’t have to take

into consideration amending the Constitution. Although, a certain subsequent

legislation, in particular referring to the treatment of foreign citizens, extradition,

and so on, has been modified in order to avoid a possible conflict with certain

provisions of the Convention.

In this line, the ECHR jurisprudence had, in its turn, a quite pregnant impact

on the domestic law system in the Netherlands. Here we mention three cases that

we consider relevant.

First, by obeying the „res judicata force”, the Dutch authorities took the

necessary conclusions from the „Marcks v. Belgium” ruling (13 June, 1979), even

the Netherlands were not a party in this litigation. As a result, the Netherlands

decided to amend the domestic law on children born out of a marriage

20)

.

Second, the Netherlands decided, based too on obeying the „res judicata

force”, to respect the conclusions of the Strasbourg jurisprudence in the „Brogan

v. Great Britain” case (November 29, 1988)

21)

regarding Art. 5 par 3 of the

Convention. As a result, the Dutch authorities decided to amend the domestic law

regarding the time in which a suspect, a withhold person or a person being in

preventive detention, has to be brought in court

22)

.

Finally, the decision in the „Engel v. the Netherlands” case

23)

, from June 6,

1976, that led to legislative modifications of the disciplinary military system.

19)

J. Fawcett, cited by A. Z. Drzemczewski, op. cit, p. 91.

20)

See D. Harris, M. O’Boyle, Warbrick, op. cit., p. 31.

21)

See Fr. Sudre, Les grands arrêts de la Cour Européenne des Droits de l’Homme, PUF, 5

e

édition, 2009, pp. 201-202.

22)

See D. Harris, M. O’Boyle, Warbrick, op. cit., p. 31.

23)

See Fr. Sudre, op. cit., pp. 39-41.

10

The mentioned case, altogether with the „König v. West Germany” case (June

28, 1978), is regarded in the literature as the European Court jurisprudence that

founded the „autonomous notions” mechanism, used by the ECHR to ensure the

indispensable uniformity of the Convention reading

24)

. In other words, the

European norms that protect human rights do not have to differ related to judicial

qualifications used by every national system in part. In this case, the judge

confronted with some vaguely notions of criminal prosecutions, respectively with

disciplinary matters, which reading could not have been left over to the

discretionary decision of the Dutch jurisdictions, as guaranteed by Art. 6 of the

Convention.

4. France

The doctrine includes France in the group of states that, through the monist

tradition and pertinent Constitutional provisions ensure the incorporation of the

Convention into the domestic law and, respectively award effects in the domestic

law system

25)

.

According to J.F.Renucci, the incorporation of the Convention into the

domestic system is a direct one and is based on Art. 55 of the Constitution. Its

judicial force is both infra-constitutional and over-legislative

26)

. The same author

says that „in France the admittance of the direct effect didn’t led to serious

challenges, the administrative law judges being still more responsive than the

magistrates (court judges)

27)

.

The evolution in time of the authors’ position from the doctrine, and

respectively of the jurisprudence of French jurisdictions, shows the difference

between the reality and the present situation. It evolved from a initially

conservative and protective position to the norms and to the French courts, to a

more open position in present, connected to the „res judicata force” of the norms

of the Convention and of the ECHR’S case laws.

France was among the original states signatories of the Convention on 4

November 1950, but has ratified it only later, on 3 May 1974. According to Art.

53 of the French Constitution from 1958, the Convention has been ratified by law

(because it was an international treaty), and according to Art. 55, this treaty has,

„after publication, pre-eminence over the laws”. In this way, the Convention

norms have been incorporated into the domestic law by the time of the publication

in the Official Gazette on May 4, 1974.

24)

Ibid, p. 41.

25)

See J. Polakiewicz, op. cit., p. 153.

26)

See: J. F. Renucci, Droit européen des droits de l'homme, LDGJ, Paris, 2001, p. 414;

F.Sudre, op. cit., p.154; A. Pellet, cited by A. Z. Drzemczewski, op. cit., p. 81.

27)

J. F. Renucci, op. cit., p. 414.

11

As a result, starting from the date of the publication of the „self-executing”

provisions of the Convention, these have pre-eminence over the preceding or the

following laws which may be in conflict with.

However, a seemingly simply rule, like the mentioned one, was for a very

long time very difficult to implement by the administrative and ordinary

jurisdictions.

The reasons in the literature were diverse.

An explanation was that the text of the Convention wouldn’t impose a full

incorporation into the domestic law and the extent of the receiver depends on the

constitutional specificity of the contracting states, fact that is shown by the

diversity of the national systems regarding this issue

28)

.

Other reasons were connected with the competence of the various

jurisdictions, like: the State Council, in the administrative field, which does not

have competence to question the lawfulness of the legislative action; the Court of

Cassation, in the civil and criminal law, that does not have the capacity to give

solutions to a legislation that conflicts with the obligations assumed by the ratified

treaties; the Constitutional Council, to whom the Art. 61 of the French

Constitution confers the right to assess the constitutionality of the laws (before

ratification/publication/putting into force) and that, in a decision from January 15,

1975, regarding the French abortion law, refused to incorporate the Convention

into the constitutional criteria as required by Art. 61 of the Constitution

29)

.

In other words, in spite of a seemingly simply rule which awards the

Convention a status of domestic law, even over-legislative when it conflicts with

the domestic norms, a long time, the courts were reserved when they had to verify

or to define norms for this structure that was hierarchically entailed by the

Constitution.

Even the President of the Court of Cassation, Pierre Truche, admitted in an

article published in 1999

30)

, that „finding a violation of a treaty results in a

conviction for the state, but this does not allow a review of a decision taken by a

French court”.

For example, in the „Glaeser-Touvier” case, from June 30, 1976, the Court of

Cassation considered itself incompetent in reading the provisions of the

international treaties. As a motivation, the Court argued that if it would acted

otherwise, it have had interfered with the „prerogatives of the government in the

field of „international public order”

31)

. And J. F. Renucci underlined in his turn

that, „in case of conflict between a provision of the European Convention and a

principle with constitutional value, a French judge would claim his incompetence

28)

See J. F. Renucci, op. cit., p. 413.

29)

See A. Z. Drzemczewski, op. cit., pp. 79-80.

30)

P. T ruche, La France et l'application de la Convention Européenne des Droits de

l'Homme, in The history of the Supreme Courts ..., op. cit., p. 146 .

31)

A. Z. Drzemczewski, op. cit., p. 75.

12

in assessing the constitutionality of the texts

32)

. And this, even more because the

Constitutional Council rejected, by its decision dating from January 15, 1975, the

incorporation of the Convention in the so called „constitutionality block”.

However, the developments of the ECHR’s jurisprudence, of the

acknowledgement in Europe of its res judicata force, as well as the rising

collective pressure exerted by the Ministers’ Committee couldn’t avoid

influencing certain developments of the French case laws, as well as of the

literature.

In a decision regarded as historical in the French doctrine, the Court of

Cassation conceded the direct effect of the Convention on June 30, 1976.

The pre-eminence of the European instrument is, at last, confirmed by the

domestic jurisprudence, no matter if the domestic law has been adopted before or

after the Convention, by the Court of Cassation’s decision adopted by the Full

Court in the „Société des cafés Jacques Vabres” case dating from May 24, 1975,

as well as by the decision of the State Council adopted on October 20, 1989 in the

„Nocolo” case

33)

. In this last case, the State Council explicitly ruled that the

national law adopted after an international convention has been approved, cannot

hold the last one to come into effect.

The two decisions mentioned above established this way the constitutionality

assessment of French jurisdictions. This way, for example, the Paris Tribunal

prevented Art. L. 122-14.4 of the Labour Code to come into effect, the Code

being adopted after the approval of the Convention, on the ground of

inconsistence with Art. 6 and Art. 14 of the Convention (January 27, 1987)

34)

.

From a several decades practitioner’s point of view, are interesting the

findings from 1999 of the then President of the Court of Cassation, Pierre Truche,

in a time of the domestic jurisprudence reconfiguration.

At that time, Mr. Truche first underlined that „the French judge, on the basis

of the provisions of the treaty (the Convention – A/N –T.C.), may either discharge

a domestic law, with the specifications of the law enforcement, or make the

necessary additions”.

Sometimes, underline Mr. Truche, „rather exceptionally than usually, the

domestic provisions will be discharged in the name of defending human rights.

Being so, the „arm's length” principle led to the cancellation of a stage of appeal

for the Department of public prosecution, when this remedy was not affordable to

the offender; the Superior Council of Magistrates, on the bases of Art. 6 par. 1 of

the Convention, removed a provision of the statute that provided „closed-doors”

disciplinary hearings for magistrates”.

32)

J. F. Renucci, op. cit., p. 416.

33)

See J. F. Renucci, op. cit., p. 416; see also F. Sudre, Drept european şi interna Ńional al

Drepturilor Omului, Editura Polirom, Iaşi, p. 156.

34)

See J. F. Renucci, op. cit., p. 416.

13

In the mean time, Mr. Truche reminds that „the judge may be in a situation to

ask for procedural terms that are not covered by law. This was the case when

France was convicted in Strasbourg for wire tapping, because the law did not have

enough restrictive terms. As a result, the Court of Cassation imposed more precise

rules that a following law was to confirm. The same Court, based on a ruling of

the Strasbourg Court, reverted the ban on changing the marital status of a

transsexual that has conducted a surgery, in the name of the right to private life

35)

.

We widely mentioned the considerations of the then President of the Court of

Cassation (1999), because they seemed extremely relevant to us for the qualitative

changing of attitude of the domestic jurisdictions in relation to the role and the

position of the Convention, as well as of the ECHR jurisprudence in the French

law system.

Regarding the assessment of the consistence with the Convention’s norms

mentioned above, we underline the concern raised in the French doctrine by Fr.

Sudre, according to which this assessment competes to avoid the constitutionality

assessment and tend to transform ordinary players in „second degree judgers of

the legislative norms constitutionality”.

This happens especially when the ordinary judge decides that a law, judged by

the Constitutional Council being consistent with the Constitution, can’t be put into

force on the basis of its „inconsistence with the Convention provisions”

36)

.

Recently, the previous position of the French courts to limit the ECHR

decisions to a res judicata force gradually faded, leaving the place for the

acknowledgement of an „almost explicit” judicial force of the case laws of the

European judge, through the res judicata

37)

.

The development of the European jurisprudence causes a faster revival of the

jurisprudence of the high French jurisdictions. Relating to the applicability of Art.

6 of the Convention to the public office, the State Council do not hesitate to

follow the development of the ECHR jurisprudence

38)

, changing in his turn the

position taken on July 11, 2001, in the „Ministry of Defence v. Préaud” case, with

a reviewed one, a position that, after 2007, was consistent with the new

jurisprudence of the Strasbourg Court.

35)

P. Truche, op. cit., p. 147.

36)

Fr. Sudre, European and international Law of Human Rights, cit. abo ve, p. 156.

37)

Fr. Sudre, Les grands arrêts ..., cit. above, p. 786.

38)

T he „Vilho Eskelinen v. Finlad” ruling from April 19, 2007 redesigns the criteria of t he

incorporation of the legal dispute over the public office i nto the application field of the civil part of

Art. 6 par 1, as they were assessed initially by ECH R in the “Pellegrin v. France” case, dating from

December 8, 1999.

14

The French jurisdictions no longer hesitate to refer to the ECHR jurisprudence

on visas

39)

, or to mention an article of the Convention „as red by the European

Court”

40)

.

More of that, when the France was convicted by the ECHR for a decision of

the State Council

41)

, the Council reviewed its jurisprudence.

Finally, the State Council forestall a conviction on the main issue and decides

to change its jurisprudence

42)

, following an admissibility ruling of the ECHR,

from 2003

43)

.

Concluding, we consider that the above mentions prove very clear, that at the

present time, the recent developments of the French courts jurisprudence, as well

as that of the domestic institutions, reinforced the provisions of Art. 55 of the

French Constitution regarding the direct incorporation of the Convention into the

domestic law system, the over-legislative force of the European norm, when this

is in conflict with the domestic norm, as well as the admittance, even imperfect, of

the res judicata force of the ECHR rulings

44)

.

5. Germany

The literature frames Germany in the group of states with dualistic tradition.

The internal ratification Act (the Act approving the Treaty) „converts” substantial

rules of the Treaty and „enacts” them into the domestic legal order

45)

.

The post-war Germany was among the „founding fathers” of the Convention,

which was signed on 4 November 1950. The Convention was then approved in

Parliament on 7 August 1952 in the form of a law („ratification Act”), and then

published in the „Federal Legislation Gazette”.

The relationship between the international law norms and their application in

the German legal system is defined mainly by the following provisions of the

„Fundamental Law” of the Federal Republic of Germany:

„Article 25: the general rules of international public law are part of the federal

law. They will prevail in relation to laws and will directly create rights and

obligations for the inhabitants of the federal territory”

46)

.

Please note that the approval of the ratification by the Parliament attired the

form of a law [„the Treaty (...) is therefore approved”]

47)

accordingly to Art. 59(2)

39)

The State Council ruling from February 24, 2006 in the „Association départamentale et

intercommunale pour la protéction du lac de Sainte-Croix” case, that sees t he ECHR decision in

the „Mocil v. France” case from April 8, 2003.

40)

Fr. Sudre, Les grands arrêts ..., cit. above, p. 786.

41)

The „Draon v. France” and „Maurice v. France” decisions from October 5, 2005.

42)

T he State Council decision dating from December 30, 2003, in the „Beausoleil et M me

Richard” case.

43)

The admissibility ruling of the ECHR in the „Richard-Dubarry v. France” ca se.

44)

See also: Mihail Udroiu, Ovidiu Predescu, op. cit., p. 986.

45)

J. Polakiewicz, op. cit., p. 153.

46)

A. Z. Drzemczewski, op. cit., p. 107.

15

of the „Fundamental Law” (the Legislator „agrees to participate”). In this way, the

Convention acquires the status of federal law.

The German doctrine seems divided in regards to the exactly legal effect of the

approval law. Most authors adhere to the doctrine of transformation by which the

rules of a treaty shall be transferred to national level by the approval law, with the

result of enforceability against officials or individuals.

Other authors consider that the treaty as such is not transformed into domestic

law, but that the approval law confers domestic applicability without the need to

change the legal basis of those rules.

There are other authors, „more pessimistic”

48)

, who consider that even in the

case of Germany, which has its own „Human rights Act” established by the

Constitution, there was the temptation to grant a limited role, the German courts

preferring to refer in the first place, to the national human rights act.

Although in the doctrine continues to prevail the first opinion cited, in

practice was confirmed that „the German jurisdictions consider that this

legislative approval implies an order addressed to national authorities and courts

to give effect to the provisions of the treaty at national level”

49)

.

As a result, while Art. 59 of the „Fundamental Law” granted the Constitution

at least the status of federal law, that means that the direct applicability of the

provisions of this instrument has pre-eminence over all the regional laws, no

matter if the laws were adopted before or after the incorporation of the

Convention in the domestic law.

As based on the principle „lex posterior derogat legi priori”, its provisions

shall prevail even on the previous federal law.

This was unequivocally decided by Federal Administrative Court in

December 1955: „the Convention has the status of federal law. After its entry into

force, the Convention is applicable to all the procedures subsequently established

(A/N -T.C.), and also to all cases pending at that time”

50)

.

As a result, after September 3, 1953, those provisions of the Convention

considered by the German courts directly applicable („self executing”), i.e. those

that provide substantial rights to individuals are part of German law and may be

claimed before the courts.

The Convention does not have yet the Constitutional law status and cannot be

claimed by the Constitutional appeal procedure in the Federal Constitutional

Court. In its decision of 14 January 1960, the mentioned court decided that „an

appeal to the Constitutional Court cannot be based on the Human Rights

Convention (Article 90 of the Federal Constitutional Court Act ...)”.

47)

Ibid, p. 108.

48)

See D. Harris, M. O’Boyle, Warbrick, cit. above, p. 24.

49)

B. Vatányi, H. Rupp, cited by A. Z. Drzemczewski in op. cit., p. 108

50)

The decision of the Federal Administrative Court of the Federal Republic of Germany,

from December 15, 1955, cited by A. Z. Drzemczewski in op. cit., p . 109.

16

A problem quite sensitive represented the dilemma if the provisions of the

Convention possess a higher rank status than the federal legislation.

In a case law from 1971, the Federal Constitutional Court has ruled that it

may be prepared to give the supremacy to certain „general rules of international

law” well established, which are presumed to possess a higher hierarchical status

than the federal laws. We can therefore assert that at least in front of the ordinary

and administrative jurisdictions, certain norms of the Convention are part of these

„general rules” of international law (under Article 25 of the „Fundamental Law”)

and can, therefore, prevail over federal legislation either this have been adopted

before or after the Convention.

It is worth to mention, in this context, a fundamental ECHR case law from

1978, which strengthens the pre-eminence of certain provisions of the Convention

over the federal laws that may be in conflict with.

The ruling in the „König v. Germany” case from 28 June 1978 represented,

along with the „Engel v. the Netherlands” case (8 June 1976), the founding

jurisprudence of the „autonomous notions” mechanism used by ECHR to ensure

the indispensable uniformity of the Convention reading in the contracting states.

In this case, ECHR focus on the meaning of the term „charge” which appears, in

the civil law, in Art. 6 par.1 of the Convention. The European Court of Human

Rights states that this term must be understood in the sense in which it is

described by the Convention and not by the domestic German norm. Moreover,

ECHR finally convicts Germany for violation of Art. 6 par. 1, respectively of the

specific appellant’s rights, regarded by the Strasbourg court as belonging to the

private law, that means belonging to the civil law and not to the administrative

law, as ruled by the German Administrative Tribunal under the domestic law.

In other words, the fundamental rights of the individual receive a uniform

„reading” and understanding from the point of view of the European norm, based

on the principle of „autonomous notions” and do not vary depending on the legal

qualifications („reading”) given by the national systems.

This ECHR jurisprudence had domestic consequences in Germany, when the

decision has been enforced and confirmed the pre-eminence of certain (at least)

provisions of the Convention over the German federal rules

51)

.

In the light of the above mentioned, it is not a surprise that German

jurisdictions often refers to the provisions of the Convention. Some Federal

Supreme Court decisions since the 1970s can be cited in this regard.

For example, the Civil Chamber of the Supreme Court decided on 29

September 1977 that helping a person to escape from the German Democratic

Republic was not contrary to „moral behavior”, namely that a contract between

parties having this object is not necessarily null and void. In support of its

decision, the Court referred to Art. 2 par. 2 (the freedom of the person to leave

51)

See Fr. Sudre, Les grands arrêts …, cit. above, pp. 40-41.

17

another country, including his own country), and to Art. 3 par. 2 (the right to enter

the territory of the state of which national he or she is) of Protocol 4 of the

Convention.

Generally speaking, all German courts, regardless of the hierarchical order,

are competent to establish violations of the German „Human Rights Act”, but also

of the Convention. In this case, the doctrine cites, inter alia, the jurisprudence of

the administrative courts in reading Art. 6 of the Convention, which they regard as

relevant in theirs pending cases

52

)

.

The German legal order recognizes the power of ECHR judgments.

From the point of view of the res judicata force, the Germany’s convictions

and their enforcement under the German law led to important reforms, including,

for example, amending the criminal procedure code as a result of the decision in

the „Wenhoff” case from 27 June 1968, or the modification of an extradition

treaty concluded with the former German Democratic Republic in the

„Bruckman” case

53)

.

We remind the recent well known ruling in the „Vogt v. Germany” case from

26 September 1995, which confirmed the res judicata force of the Strasbourg

jurisprudence in relation to the German state and its institutions, including during

the enforcement of a decision, even in a matter so difficult as that in this case (the

reading of preserving of some fundamental rights provided by the democratic

Constitution of Germany in the light of Article 10 (freedom of expression) and 11

(freedom of assembly and association) of the Convention)

54)

.

From the point of view of the res judicata force, we consider relevant, in our

opinion, to remember the German Constitutional Court case law, which „admits

the power of the European Court of Human Rights’ decisions and requires the

German courts their observance”

55)

.

It's no less true that regarding the direct effect of the jurisprudence of the

Supreme Court and, respectively, the procedures of the enforcement of its

decisions in the domestic German system, certain limits can be identified. Harris

and O' Boyle noted, for instance, that following a conviction in the Strasbourg

court, „in Spain, the courts may ... annul a decision, including a criminal

conviction, while in Germany they cannot do such a thing”

56)

.

6. United Kingdom

The dualistic legal tradition of the domestic system frames the United

Kingdom within the group of states parties to the Convention that have indirectly

52)

See A. Z. Drzemczewski, op. cit., p. 114.

53)

Ibid.

54)

See Fr. Sudre, Les grands arrêts ..., cit. above, pp. 638-640.

55)

F. Sudre, Les grands arrêts ... that cites the cases „B Verf G, 2BvR 1481/04 from 14

October 2004.

56)

D. Harris, M. O’Boyle, Varbrick, op. cit., pp. 26-27.

18

incorporated (with delay) this instrument, after its transposition by a special

law

57)

.

United Kingdom was among the countries that have signed the Convention on

4 November 1950, and was the first country which has ratified it, in March 1951.

According to Lord Irvine of Lairg

58)

, when the United Kingdom ratified the

Convention, the general opinion was that the rights and freedoms guaranteed by

the Convention were already fully protected, in their substance, by British law. It

has not been considered necessary the „inclusion” of the Convention in the British

law, or the adoption of new laws that should be in line with the Convention.

From the point of view of international obligation taken by the United

Kingdom, once the Convention has been ratified, this was understandable. More

so, as we previously reminded, the ECHR confirmed explicitly that there is no

formal obligation, not even in the text of the Convention, to incorporate the

mentioned instrument in the domestic legal system.

Or, according to British constitutional and legal practice well established,

based on the concept of sovereignty of the Parliament, the provisions of the

international agreements ratified by the United Kingdom does not have domestic

effect unless they are assigned into domestic law by the Parliament

59)

. As shown

above, the adoption of such legislation was not considered necessary for a long

time in relationship with the Convention, because the general opinion was that in

all cases, the rights and freedoms guaranteed at European level were already

provided by the domestic law. The main consequence was the following: at that

time, the Convention did not achieve the national status in the United Kingdom,

and individuals could not have claimed it before the British courts.

However, a close relationship between national and international law was

maintained, on the basis of the principle of legal interpretation which states that

„international law uses a part of the law of the country”

60)

. This principle is

supplemented by a rule of construction under which judiciary, while admitting the

prevalence of the effect of the fundamental acts, meanwhile, reads the law in a

way that avoids contradicting the treaties ratified by the United Kingdom.

Precisely by this rule, the courts were ready to refer to the Convention.

Therefore, although a long time the Convention was not considered as a

source of domestic law, this instrument was used, however, as a „persuasive

authority” when there was a shortcoming of the law, it was necessary to clarify an

ambiguity or the courts had to assess a controversial law matter.

The „Waddington v. Miah” case was apparently the first cited case in which

the British courts have relied effectively on the Convention in the reading of a

57)

See Fr. Sudre, European law ..., cit. above, p. 154.

58)

Right Honorable Lord Irvine of Lairg, The Application of the European Convention on

Human Rights in Britain, in The history of the Supreme Courts ..., o p. cit., p. 106.

59)

Lord McNair, The law of the treaties, Oxford University Press, 196 1, p. 81.

60)

P. J. Duffy, cited by A. Z. Drzemczewski, op. cit., p. 179.

19

law

61)

. The cited case regarded the interpretation of certain provisions of the

„Immigration Act” from 1971, consonant with the obligations arising from

treaties.

To support the motivation that criminal law of the mentioned act could not act

retrospective, Stephenson L. J., in the Appeal Court, and Lord Reid, in the House

of Lords, have directly referred to Art. 7 of the Convention, which explicitly

prohibits the retroactively apply of the criminal law.

The Act of incorporation of the Convention in the British legal system was

adopted on 9 November 1998 by the Parliament, under the name „the Human

Rights Act 1998”

62)

. The incorporation was done in the English law, the Scottish

law and the Northern Irish law, and gave the Convention an express effect in the

British law, offered British citizens the right to claim the rights and freedoms

guaranteed in the European instrument directly in the proceedings in British

courts, and, as a result of the courts decisions, confirmed the possibility of the pre-

eminence over the domestic rules, in the case of a conflict between them

63)

.

The incorporation of the Convention in the British legal system through the

„Human Rights Act 1998” had two main consequences. The first says that if the

primary British legislation, despite all efforts, cannot be interpreted as consistent

with the Convention, in the examined cases, then the competent court may make a

„statement of incompatibility”. This does not affect the validity of the legislation

itself, but averts the Government that it has to amend the legislation. Secondly, a

victim has a public right for a case for damages v. the institution (and not v. a

private person) which action is not consistent with a right provided by the

Convention.

„The Human Rights Act” has increased substantially the powers of the British

courts in order to provide a remedy at national level for a violation of the

Convention, with the result that both the complaints filed in Strasbourg versus

Great Britain, and the convictions decreased in number

64)

. This meets, in our

opinion, the intention of the authors of the Convention and, respectively the

principle of subsidiarity stated by this instrument, i.e. placing the first

responsibility in safeguarding the fundamental rights and freedoms at the national

level.

The impact of the Convention and of the jurisprudence of the Strasbourg

Court on the British legal system was substantially, and it is expressed by the

legislative and institutional reforms, adopted in some cases even before the

adoption of the „Human Rights Act 1998”.

61)

See A. Z. Drzemczewski, op. cit., p. 179.

62)

See D. Harris, M. O’Boyle, Varbrick, op. cit., p. 24; Fr. Sudre, Eu ropean law ..., cit. above,

p. 154.

63)

Lord Irvine of Lairg, op. cit., pp. 105-107.

64)

See D. Harris, M. O’Boyle, Warbrick, op. cit., pp. 24-25.

20

We can remind here: the amendment of the detention regulations (a result of

the „Golder” case

65)

), the improvement of immigration procedures (see „Alan and

Khan” case

66)

); the suppression of some methods of interrogation of detainees

accused of terrorism in Northern Ireland (see „Ireland v. Great Britain” case

67)

);

modification of legislation relating to the prohibition of homosexual relations

between consenting adults (the „Dudgeon” case

68)

); the implementation of the

legislation that prohibits the judicial corporal punishment (the „Tyrer” case) etc.

7. Romania

Romania has granted, on the basis of the provisions of the Constitution and of

the monist system which was adopted, direct effect in the national legal system

both to the Convention and its protocols, as to the ECHR jurisprudence.

The Convention was incorporated through the Law of ratification No.

30/1994, published in Official Gazette No. 135 of 31 May 1944 (the Convention

and the first 10 Protocols).

After the reading in conjunction of Art. 11 and Art. 20 of the Romanian

Constitution, republished, results that the rules of the mentioned instrument are

part of the Romanian domestic law and have legal over-legislative force and,

under certain conditions, even constitutional force. There is at least a case in

which we can read that, by the force of legal practice and that of the ECHR’s

jurisprudence res judicata force, the results at the Romanian constitutional and

legislative level, indicate an over-legislative legal force of certain provisions of

the European Convention.

7.1. The direct applicability of the European Convention

Article 11, par 1.2 of the Romanian Constitution, republished, stipulates that

international treaties ratified by the Parliament, according to the law, are part of

the domestic law. Therefore, even at the constitutional level it is expressly

stipulated that the Convention may be used directly in the domestic legal system.

The practice of Romanian institutions, to which we will refer later, showed that

even in the Romanian legal system have been met the necessary conditions for the

admission of the „self-executing” nature of the provisions of the Convention.

Taking into consideration the facts mentioned above, we may note that this

instrument has a double nature, being both an international law act and a domestic

law act, and, as a result, it had to be officially published in Romania, in order to

65)

The ruling in the „Golder v. Great Britain” case from 21 February 1975.

66)

The co mplaint no. 2 991/66 and the related report of the European Commission of Human

Rights.

67)

The ruling in the „Eire v. Great Britain” case, from January 10, 197 8.

68)

The ruling in the „Dudgeon v. Great Britain” case, from 22 October 1981.

21

enter into force at the domestic level, according to the treaties law that was in

force at that time

69)

.

Some Romanian authors consider that international treaties on human rights

are legal acts different from the ratification law. Though related in terms of legal

status, the treaty ratification law and, respectively, the international treaty ratified

by that law remain two distinct legal acts

70)

.

The arguments raised relate mainly with the fact that the two legal acts entry

into force at different times. The ratification law should enter into force, according

to constitutional rules, normally at the time of its official publication. While the

international treaty on human rights would enter into force, both generally and for

the Romanian State, according to the rules contained in its own text, which

usually requires a minimum number of ratifications, as well as the formal deposit

of the instruments of ratification. As a single legal act, the mentioned treaty

cannot enter into force domestically before its entry into force on the international

level.

Therefore, as a general rule, an international treaty on human rights shall enter

into force, in the Romanian legal system, after the entry into force of the

ratification law (after its official publication), namely on the date of entry into

force of that treaty as stated by the international law.

According to the same opinion, in practice, there are some exceptions to the

rule according to which international treaties on human rights and theirs

ratification laws are different legal acts, one of them being the Convention.

The explanation comes from the fact that „the ratification in these cases

(including the Convention) was made using a special legal technique, which

remained an exception until now. Hereby, the ratification law contains a provision

stating that the treaty ratified by it is an annex to the law, so it is actually part of

the law. This means that the treaty under discussion is also part of the ratification

law. As part of the ratification law, these international treaties that we referred to

when we talked about exceptions (including the Convention), enter into force,

exclusively at the domestic law level, at the same time when the law of

ratification entry into force, and that is the date of the official publication. So,

each time for Romania, the mentioned treaties entered into force first

domestically, and then internationally”

71)

.

In our opinion, the above proviso proposes a formal approach and is fully

objectionable, on the considerations we will expose in what follows.

1. Accepting the claim that we are dealing with two separate legal acts, one of

domestic law (the act of ratification) and one of international law (the

69)

Art. 11 par 1 from Law No 4 of 1991, on the signing and ratificatio n of treaties.

70)

See C. L. Po pescu, International defence of human rights, All Beck Publishing House,

2000, p. 260.

71)

Ibid, p. 261.

22

international treaty), which have different times of entry into force, would lead to

anomalous conclusions and effects.

Formally, it is true that a law shall enter into force after publication, and the

international treaty after depositing the instrument of ratification with the

depositary.

Actually, both the widely accepted doctrine and the practice, record a single

time of entry into force for a single legal act.

Otherwise, it would mean, for example, that the ratification law, once

published and enacted, begins producing consequences in the domestic system,

while the treaty still has no effects, at least for a while. Actually, this law does not

have any effect till the completion of the international proceedings, because it is a

law that cannot be enforceable, i.e. a „form without content”.

The only consequence that occurs with the approval of the Parliament of the

ratification law of the treaty is the obligation for the State and its institutions, not

to undertake anything which would contradict the purpose and the object of the

treaty, till its entry into full force. This effect however is not the result of the law

approved in Parliament, but of the treaty itself, by the provisions of the Vienna

Convention on the law of treaties of 1969. I.e., this obligation comes from the

time of signature of the treaty by the state legal agent.

2. The so-called exception, which would represent the special legal technique

by which the Convention was ratified in Romania, is an objectionable proviso too.

Although this time we agree that we are talking about a single legal act, we

cannot accept the idea of two different times of entry into force of the same act, a

time for the domestic legal system, and other for the international relations.

Because the ratification law is a domestic legal act, which would incorporate

the treaty in the annex, according to the proviso that the author objects, naturally

fully complies with the principle of Roman law „accesorium sequitur

principale”. I.e., the law annex, represented by the treaty (the Convention), takes

the same route as the main act and shall enter into force on the same date with the

law and only once (as the main act), not twice, in two different times (domestic

and international). In addition, the entry into force of the treaty domestically, at

the same time with the law (after publication), according to the proviso that we

object, would involve that the mentioned treaty would have legal consequences,

which is also contrary to the legal real situation.

3. The section „List of treaties” of the Treaty Office of the Council of Europe

shows very clearly the time when Romania consented to become party to the

Convention. The evidence shows that Romania has signed the Convention on 7

October 1993, has ratified it on 20 June 1994 (for the Treaty Office, the term

„ratification” means „depositing the instrument of ratification to the depositary” –

the office of the Secretary General of the Council of Europe), and for Romania,

the treaty has entered into force at the same time – 20 June 1994. Actually, the

official submission of the instrument of ratification of the Convention by Romania

23

occurred on 20 June 1994, as shows the register, the date on which the

Convention entered into force and began to have effects for Romania, both in

relations with other States parties, as well as domestically.

In conclusion, the ratification law and the Convention have to be regarded as

a whole. The two parts (the text of the law and the text of the Convention) have

different content, tasks and objectives but shall be completed in the form of a

single act. The ratification law is intended, on the basis of the provisions of the

Constitution, the law of treaties and the particularities of the monist system

adopted by the Romanian legal system (at least in matters of human rights), to

ensure the incorporation of the treaty into the domestic law, and that the treaty is

binding for all the social, institutional or individual actors. While the treaty, once

ratified (that means the completing of the procedure by depositing the instrument

of ratification), ensures the validity in international relations with other States

parties and, respectively, with the Strasbourg control mechanism. The legal act

can have legal effects only if both elements have a contribution. Regarding the

domestic ratification proceedings, culminating with the approval of the ratification

law by the Romanian Parliament, this is not the expression of a distinct legal act,

which has domestically effects after publication, but it is just a stage – „the

expression of consent to become a party to the treaty”

72)

– of a broader procedure

which result is that the State takes obligations under the Convention, procedure

that begins with the signing of the treaty and shall end with the deposit of the

instrument of ratification.

7.2. The Constitutional power of the Convention

According to Art. 20 par. 1 of the Romanian Constitution, republished, the

constitutional provisions on the rights and freedoms of citizens shall be read and

applied according to the Universal Declaration of Human Rights, covenants and

other treaties to which Romania is a party.

It is inferred that the constitutional rule refers too to the Convention, included

in the „treaties” chapter, and which had not yet been ratified by our country at the

date of entry into force of the Constitution, in 1991.

Therefore, the Romanian Constitution, republished, states that the reading and

application of constitutional provisions on human rights have to be made

according to the international treaties on this matter, and that includes the

Convention. We have to remember that the fundamental law includes its own

„list” of fundamental rights and freedoms, and not as a separate „Human Rights

Act”, as is the case in other states, but in the form of rules included in the

Constitution. The provision contained in Art. 20 par 1 is binding and leads to the

72)

See A. Năsta se (coordinator), Law No 590 of 2003 on treaty signing – with comments and

footnotes, Ministry of Foreign Affairs/Association of International Law and International

Relations, Bucharest, 2004, p. 34.

24

conclusion that the rules of the Convention which establish substantive rights and

freedoms have constitutional value. This is a valid statement as long as the norms

of the Romanian Constitution themselves (the norms on human rights), have to

obey, when they are read or applied, the provisions which possess constitutional

legal force (this force being given by the Constitution itself).

7.3. The over-constitutional power of the Convention – as exception

In theory, is possible to regulate the same fundamental right through two

rules, one by an international treaty, and the other by the Constitution, the latter

with a more restrictive character. In this case, you might use the principle of the

application of the more favorable norm, which is the rule of international law that,

this way would have, in the Romanian constitutional system, an over-

constitutional legal force.

This analysis, which may be found in the Romanian doctrine

73)

, remains valid,

in our opinion, in theory. We believe that the relevant constitutional provisions,

which, inter alia, require the interpretation and application of constitutional norms

themselves consistent with the Convention, eliminate in practice this possibility.

However, through a text analysis „lato sensu”, which probably does not meet

at this time the support of the majority of the Romanians constitutional experts,

we may take into consideration even the provisions of Art. 20 par 1. 2 which

states that in the event of inconsistency between the treaties and the domestic

laws, including the Constitution, international regulations prevail, and that would

grant them over-constitutional force.

In this context, we can not understand why the treaty norm should be refer, in

the case of a conflict, only to the domestic laws when the international norm is

more favorable, and respectively to the Constitution and to the domestic laws,

when the latter are more favorable. Beyond the apparent lack of constitutional

logic of the text (term legislative comparison is with variable geometry within the

same phrases), we see that the formula „provisions that contradict the

Constitution”, used in Art. 11 par.1.3 differs from that used in Art. 20 par 1.2,

namely „inconsistencies”.

The hypothesis of the conflict between the constitutional norm and the norm

of the Convention is dealt with in Art. 11, which contains the solution (and that is

the delaying of the ratification until the revision of the Constitution), while the

„inconsistency”, which signifies a different degree of lack of harmony, of shades

or different amplitudes of the norms, not necessarily conflicting, is settled by Art.

20 par. 2.

Introducing in the domestic system a norm of international law which

contradicts (is conflicting with) the constitutional norm is not possible, due to the

safety clause in Art. 11 par 3, so that the hypothesis provided by Art. 20 par 1. 2

73)

See C.L. Popescu, op. cit., pp. 263-264.

25

may take place, in theory, but in reality, it is possible and can grant an over-

constitutional force to the Convention norm.

Beyond the theoretical reasoning, that can be true or not, we propose a

concrete case analysis which, as an exception, in practice, can really be taken as

an example of a norm of the Convention with over-constitutional legal force.

The Romanian Constitution of 1991 stated in Art. 23 par 4 that the preventive

detention may be decided by a magistrate, to a maximum of 30 days, decision

which may be contested in court.

The notion of the term „magistrate” included also, according to the legislation

in force at that time and to the judicial practice, both the judge and the prosecutor.

Please note that the ECHR jurisdiction unequivocally required that the magistrate

who decides over the preventive detention should be independent and impartial, in

the sense in which the institution of the judge is built up, and which was not met

by the prosecutor, according to the Romanian legislation in force at that time.

Furthermore, the ECHR criticized this matter in the rulings in the „Vasilescu

v. Romania” case

74)

of 22 May 1998, and particularly in the „Pantea v. Romania”

case

75)

of 3 June 2003. In both cases Romania has been convicted by ECHR. In

the „Pantea” case, the ECHR decision was based, inter alia, on Art. 5 par 1. 3 of

the Convention, referring explicitly to the matters mentioned above, after

confirming the jurisprudence in the „Vasilescu” case. In the latter case, the ruling

is based, inter alia, on Art. 6 par 1.1, with a partially similar substantiation.

Both ECHR rulings have received the res judicata force status in relation with

the Romanian institutions, and have generated significant reactions from

Romanian institutions and scientists, as well as among practitioners in Romania.

This strong impact have led, including from the point of view of the obligation for

the enforcement of the conviction rulings, to a constitutional reform, the

Romanian Parliament, acting as a Constitutional Convention, and later the

Romanian citizens, by referendum, consecrating in the new text adopted in 2003,

the amendment of Art. 23 par 1. 4 of the Constitution, in a European form that

was agreed, namely that only the judge have the power to decide on the preventive

detention.

We may say therefore that the legal force of Art. 5 par 3 of the Convention,

and respectively the res judicata force of the ECHR jurisprudence, both with

direct applicability in the Romanian legal system, prevailed over the Romanian

constitutional norm (the text of Art. 23, par 4 of the Romanian Constitution from

1991).

The conclusion which might come off as a result of this analysis is that,

exceptionally, there may be norms of the Convention which possess over-

constitutional force.

74)

Par. 41 of the „Vasilescu” ruling.

75)

Par. 238-239 of the „Pantea” ruling.

26

We mention that this possibility is rejected in general, in the Romanian

doctrine, Professor Ioan Muraru stating that „in the Romanian legal system, the

provisions of the international treaties cannot prevail, in terms of their legal force,

over the provisions of the Constitution”

76)

.

7.4. The over-legislative force

The Romanian Constitution, republished, stipulates, on the one hand, that the

ratified treaties are part of the domestic law (so does the Convention too), and, on

the other hand, that in case of inconsistency with the domestic norms,

the Convention norms prevails. A possibly more favorable domestic law is an

exception, and that is on the basis of the principle of subsidiarity.

Therefore, the rules of the Convention possess an over-legislative force.

A possible case law that would be in favor of the domestic norm it would be

an unnatural solution, since even the Constitution, in Art. 11 par. 1.1, force the

Romanian institutions to meet exactly and in good faith the provisions of the

treaties to which Romania is party (including those in the field of human rights)

and which are part of the domestic law.

The Romanian doctrine also mentions that the international norms prevail in

relation to the laws adopted before, as well as after the entry into force of the

international treaty (i.e. the European Convention).

7.5. The hypothesis of the conflict with the constitutional norm

The thorny problem of the conflict between the norm of the international law,

including that in the human rights field, and the constitutional norm is one

mentioned in the Romanian doctrine.

Professor Ioan Muraru, after recalling some constitutional solutions from

France and Spain, calls upon the supremacy of the Romanian Constitution (Art. 1,

par. 5) to argue that it is impossible to incorporate in the domestic law an

international treaty, by ratification, which would contain provisions contrary to

the Constitution. As we mentioned before, Professor Muraru considers that the

constitutional norms prevails over the international treaty norms, the only possible

way out being a revision of the Constitution before the treaty is ratified

77)

.

Professor Liviu Popescu stands on the same side, by stating that „in the

conflict between the constitutional and the international norm, the first will

prevail, even if it is more restrictive”

78)

.

In our opinion, the mentioned conflict is possible, but in practice it is hard to

come across with such a case. And that because the international treaties not

ratified by Romania have a safety clause provided by Art. 11 par 1. 3 of the

76)

I. Muraru, Constitutiona l Law and political institutions, ACTAMI Publishing House,

Bucharest, 1997, p. 205.

77)

Ibid, pp. 204-205.

78)

C. L. Popescu, op. cit., pp. 264-265.

27

Constitution, which make impossible to ratify a conflicting norm of such a treaty,

with the constitutional norm, before the revision of the Constitution.

In the case of the treaties already ratified (as is the case of the Convention),

the procedure for ratification always supposed a prior assessment of the

accordance with the Constitution, to meet the requirements of Art. 11 par. 3, as

well as those of Art. 20 of the Constitution.

In some cases this procedure resulted in the formulation of reservations or

statements, which was not the case (for the substantive rights and freedoms) with

the ratification of the Convention.

As on the one hand, Art. 20 par 1.1 of the Constitution grants constitutional

power to the Convention, and on the other hand, there is no explicit provision

which may grant prevalence to the European norm in the case of a conflict with

the constitutional norm, we rather agree with the more general position expressed

by the cited authors in the Romanian doctrine. This does not mean that situations

like the one previously mentioned regarding Art. 5 par. 1.3 of the Convention can

no longer arise, as a result of the res judicata force of the ECHR rulings. In such a

case, a reaction at the institutional and the legislative level of the Romanian legal

system, as well as of the constitutional system, would again become necessary.

7.6. The position in the domestic law of the European Court of Human Rights

jurisprudence

The European system of protection of human rights is a mixed system, in

terms of its sources. It combines elements of the continental system, based on the

written law (the Convention), with the elements based on the judicial precedent

(the ECHR jurisprudence)

The Convention and its protocols may be correctly red and applied only by

referring to the jurisprudence of the Strasbourg Court. This leads to the formation

of a so called „Convention block”

79)

agreed as such and in the Romanian legal

system.

As a result, in the Romanian domestic law, the ECHR jurisprudence has the

same position with the provisions of the Convention and, therefore, is directly

applicable and possesses constitutional force as well as over-legislative force. As

an exception, the previous comments regarding the over-constitutional force of

some of the Convention norms shall remain valid even in relation to some ECHR

rulings

80)

.

This way, the Romanian domestic law system has agreed the res judicata

force of the ECHR rulings.

79)

Ibid, p. 270.

80)

See „Vasilescu” and „Petra” rulings, that led to the amendment o f Art. 23 par 4 of the

Constitution.

28

The Constitutional Court rulings proof this, as well as the hundreds of rulings

of the Romanian courts, which had been based both on the European Convention

norms, and on the jurisprudence of the Strasbourg Court, including some cases in

which Romania was not a party.

For the first point we remind, as an example, the Ruling No. 486 adopted by

the Constitutional Court on 2 December 1997 relating to the former Art. 278 of

the Criminal Procedure Code, which was red by the Constitutional Court

according to the norms and to the jurisprudence of the Strasbourg Court. This

ruling became a relevant one, even during the assessment procedure of putting

into force of the „Vasilescu” ruling by the Committee of Ministers of the Council

of Europe.

For the second point we mention only a few relevant examples, in the author’s

opinion:

– Civil Ruling No. 238/A/2010 issued by the Court of Hunedoara - Civil

Section, on 13 May 2010. In a case that referred to the personal relations between

parent and child as a fundamental element of the family life, the Court has based

its decision on the provisions of Art. 8 of the European Convention and on the

jurisprudence in the following cases: „Elsholz v. Germany” of 13 July 2000,

„Ignaccolo – Zenide v. Romania” of 25 January 2000 and „Maire v. Portugal” of

26 June 2003;

– Civil Ruling No. 44 issued by the Bucharest Court of Appeal – the Third

Civil, minors and family cases Section, from 18 January 2010. In a case that

involves matters of private and family life, as well as of the procedure of

establishing fatherhood, the Court based its decision on a complex analysis,

calling upon Art. 8 of the Convention, but also the European Court ruling in the

„Mikulic v. Croatia” case from February 7, 2002;

– The Court resolution issued by the Bucharest Tribunal, Criminal Second

Section on March 11, 2009, in the Case No. 8786/3/2009. The Court based its

decision relative to preventive detention/travel ban, on the provisions of Art. 5

par.1c of the Convention, on Art. 2 of Protocol 4 of the Convention, as well as on

ECHR jurisprudence in the „Wemhoff v. Germany” case;

– The Court resolution issued in Case No. 92 63/3/2009, by the Bucharest

Tribunal, Second Criminal Section, on 17 March 2009. The Court based its

decision on the provisions of Art. 2 of the Protocol 4 of the Convention;

– The Civil Decision No. 6/FM issued on 23 January 2009 by the

ConstanŃa Court of Appeal, Civil Section for minors and family cases, and for

labour conflicts and social security cases.

The Court based its decision on the provisions of Art. 8 of the Convention,

and on the ECHR jurisprudence in the „Ignaccolo – Zenide v. Romania” case and

in the „Laforgue v. Romania” case, from 13 July 2006.

29

Conclusion. Taking into account the above mentioned, we can affirm that the

incorporation into the domestic legal system of the Convention, the direct effect

of the Convention norms, and the exhibit of res judicata force of the ECHR

jurisprudence, have become for many years an undeniable reality in Romania.

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