June 20, 2024 will be 30 years since the moment when Convention on the Protection of Human Rights and Fundamental Freedoms (“Convention” or “CEDO“) began to have legal consequences for Romania.[1]

Opened for signature at Rome on 4 November 1950 and entered into force on 3 September 1953. The Convention managed to create almost the most perfect international system for the protection of human rights, a system that has undergone successive changes, due to the concluded additional protocols, both from the point of view of the sphere of rights protection and the institutional mechanism. The success could be due to the fact that from the very beginning the Convention provided for a system of bodies authorized to supervise the fulfillment by the signatory states of their obligations to respect the rights provided for in the Convention. Currently, the verification of compliance with fundamental rights by the signatory states is carried out, in particular, through the decision of the European Court of Human Rights (“court” or “ECtHR“) of individual complaints by individuals and legal entities against states, in addition to interstate complaints and, more recently, advisory opinions that the Court may provide to higher courts of national judicial systems or constitutional courts.

Undoubtedly, the Court has played, and continues to play, an important role in the progressive development of the protection offered by the Convention, in particular by constantly trying to prove to States, by means of established formula, that they have the task of ensuring that certain rights are respected practical and effective, not theoretical and illusory; Criticized more or less justifiably for its approaches or appreciated for the courage it often displays, the Court remains the central pillar of the system, the subject of increasing the effectiveness of international jurisdiction has been a constant of recent decades.

The 30th anniversary of Romania’s accession to the Convention is a good opportunity to reflect on the Romanian experiencewithin the framework of this European system, designed to complement the internal mechanisms that ensure the protection of fundamental rights.[2] The impact on the legal system is immeasurable, not only because of the cases decided by the Court and which caused important changes in Romanian law and the practice of national authorities, especially because of the logic of the system and the effect that was initially less visible. a view developed over time to create and consolidate a legal paradigms based on democracy, the rule of law and, ultimately, the protection of human dignityprimary value on which fundamental rights are based.

If the state architecture created by the 1991 Constitution laid the foundations for Romania’s integration into the Convention system, the latter often offered substantive elements useful for the protection of fundamental rights. The recognized possibility for courts (as well as other public authorities) to apply the Convention with priority, especially in the interpretation given by the ECtHR, compared to more unfavorable countervailing provisions of national law, has put at the disposal of the courts a powerful tool with which, gradually, the center of gravity can be moved from legality, which is understood as the automatic application of internal norms, to legality due to the compatibility of these internal rules with the rights guaranteed by the Convention.

In addition, the courts adopted the jurisprudence of the ECtHR and applied in their practice logical structures of analysis, which are aimed not only at ensuring the effective protection of fundamental rights, but also at solving possible conflict which may arise between different values ​​and interests protected by different rights (example,privacy protection against. freedom of speech).

Likewise, the Constitutional Court in its decisions often refers to the relevant practice of the ECtHR and, in addition, it created certain mechanisms inspired by the practice of the Strasbourg Court (example, requirements for the quality of the law – predictability, accuracy, clarity – have recently been increasingly referred to in the framework of constitutionality control and are used to solve complex issues[3] is based on the Constitutional Court’s adoption of the standard of analysis developed by the ECtHR, which requires that any interference with a fundamental right be based on an accessible and foreseeable legal basis). Since the scope of relations covered by the provisions of the Convention is very broad, it is rarely possible to identify a specific issue to which the jurisprudence of the ECtHR cannot be applied, at least in principle.

The impact of ECtHR decisions in the cases against Romania was not limited to individual specific cases, but often the impact on the legal system was much deeper and wider. A few examples may be telling. Strengthening the principle of legal security – an essential component of the rule of law – was also achieved by eliminating the prosecutor’s ability to file an extraordinary appeal in civil cases (i.e extraordinary annulment appeal), resulting from the conviction of the Romanian state in the case Brumaresque (1999).[4] Complaints filed by people who failed to obtain compensatory measures in the context of the difficult process of restitution of assets confiscated by the communist regime were so numerous that the ECtHR turned to the pilot order mechanism to indicate to the Romanian state that it must take effective and operational measures to ensure compliance the right to restitution (Maria Athanasiou and others – 2010).[5] The existence of non-unitary judicial practice, even at the level of the High Court of Cassation and justice, led to the conclusion of the ECtHR about the violation of the principle of legal certainty, which led to the deprivation of the plaintiff of a fair trial (Greek Catholic Parish of Lupeni and others – 2016).[6] The three examples I have chosen differ in terms of the specific issues raised, but if we peel back the veil of legal construction, we can see a common value, namely the imperative to protect legal certainty.

The cases in which the ECtHR recognized violations of fundamental rights by the Romanian state concern a wide variety of issues: conditions in prisons in Romania that do not meet the standards established by the Convention; the very long duration of the trial, which led to the violation of the right to a fair trial; lack of criminal investigations conducted effectively by the authorities; lack of minimum recognition of a certain form of legal protection for same-sex couples and many others.

In this context, we do not intend to review the cases in which the ECtHR found a violation of the Convention by the Romanian state. There are too many of them, and additional efforts are needed, especially from the authorities to effectively implement ECtHR decisions, and the obligation to implement the decisions of the Strasbourg Court is not limited to the decisions made against Romania, but extends to all judicial practice.

We want to emphasize the fact that 30 years of application of the Convention in Romania has caused a paradigm shift. After all, behind every fundamental right there is a protected value, and all of them are very important in a democratic system: for example, access to an independent court, the limitation of government interference in private life or the protection of freedom of speech are different elements, each of which protects different values, but all equally important for a democratic society.

The protection of these values ​​depends equally on the efforts of individuals to invoke their rights protected by the Convention in public institutions, and on the openness of the courts to recognize their importance and thus ensure access to effective judicial protection. Fundamental rights that protect citizens from government interference are the foundation of any democratic system; they must be sufficiently well known to those in whose favor they are admitted. Unfortunately, we believe that we still have a lot to work on here: the discipline of fundamental rights, as they are permeated by the jurisprudence of the ECtHR, is not sufficiently studied even at the level of law faculties in the country. Not to mention the lack of adequate popularization programs in the pre-university environment, at school or other forms of education. We firmly believe that one of the cornerstones of a democratic system is the knowledge and realization of these rights by the population, and the lack of an adequate education system in this area is a deficiency that should be corrected as soon as possible.

Even if often and for various reasons domestic or European mechanisms for the protection of fundamental rights do not achieve the goal for which they were created, declaring the failure of these systems is by no means a solution: on the one hand, the protection of fundamental rights is not a milestone to be achieved, but a process to be continuously maintained; on the other hand, it would mean forgetting where we started – as has been shown “Therefore, the statement that the protection of human rights in Europe is born from the ashes of Auschwitz is not a simple figure that is repeated in the books of European law professors”.[7]

Thus, the 30th anniversary of the application of the European Convention on Human Rights in Romania is not only a good opportunity to analyze the results, but also a favorable moment to raise the issue of protection through the knowledge of fundamental rights.

The article is signed by Dragoš Bohdan, managing partner – [email protected] and Konstantin Pintilie, senior lawyer – [email protected] – STOICA & Associates

[1] The Convention and its Protocols were ratified by Romania by Law no. 30/1994, published in M.of. there is no 135 of May 31, 1994. On June 20, 1994, Romania submitted its instruments of ratification. The latter date is the date from which the Convention enters into force for Romania in the international legal order. In this sense, see C. Birsan, European Convention on Human Rightsed.2, CH Beck, Bucharest, 2010, p.1637.

[2] For an analysis of the relationship between domestic and international mechanisms for the protection of fundamental rights, see I. Muraru, E.-S. Tanasescu, Constitutional law and political institutions, kind. 16, volume I, CH Beck, Bucharest, 2023, pp. 185-189.

[3] See C. Pintilie, Limitation and regulation of power by controlling the predictability of the law, in volume 30 years later: constitutional justice in Romania (Coordinator: B. Dima, V. Perju), Humanitas, Bucharest, 2023, p. 94-128.

[4] ECtHR, Brumărescu v. Romania, request No. 28342/95, decision of October 28, 1999

[5] ECtHR, Maria Athanasiou and Others v. Romania, requests No. 30767/05 and 33800/06, decision dated October 12, 2010

[6] ECtHR, Greek Catholic Parish of Lupeni and othersagainst Romaniaapplication No. 76942/11, decision dated November 29, 2016.

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