Foreign Language Resources
The presentation of the Project
a. Structural elements of the Project
Annual Case-Law Books (7 volumes) “The decisions of The European Court of Human Right against Romania – 1994-2011. Analysis, consequences, potential responsible authorities”
Annual Reports - www.hotararicedo.ro/index.php/concluzii (available online in Romanian or French)
Online Case-Law Review: JurisClasor CEDO - www.hotararicedo.ro/index.php/revistajurisclasorcedo
Online Case-Law Database: JurisClasor CEDO – www.hotararicedo.ro/index.php/search
b. A description of the Project
In the interest of carrying out joint projects determined by the need to improve and modernize the internal mechanisms of human rights, stressing the role of magistrates in applying international conventions and treaties, and especially the European Court of Human Rights (hereinafter ‘ECHR’) case-law, their continuous training need, interaction of institutions and professional associations of magistrates and judiciary professional issues, the project consists in a professional study which approaches the problematic of all the convictions of the Romanian State rendered by the European Court of Human Rights in terms of causes and remedies proposed by the Court.
In the period 1998-2011, Romania received 775 convictions, being one of the main actors in the proceedings before the European Court of Human Rights.
Following numerous convictions of Romania, the idea that the fault lies exclusively with the conduct of judges came out in public opinion. This idea has been widely spread by politicians, the press and the authorities themselves (after all, the judges are representing the last link before submitting the case to the European Court of Human Rights).
We can only draw attention to the dangers of such a statement, based on speculative arguments and not on extensive scientific research.
The objective of this study and the methodology based on a thorough analysis of the facts, the reasons of each decision rendered by the European Court of Human Rights is to identify the mechanism that led to the violation of a fundamental right in each case.
This objective was established by a number of magistrates which were initially grouped in “The Romanian Judges` Forum”, a professional association, aimed to undertake a scientific (professional) study concerning the responsibilities of each state authority in the convictions delivered by the European Court of Human Rights. The authors were only magistrates (judges), specialized in the field of human rights and very interested in an objective analysis for every conviction (Judge Dragoş Călin, The Court of Appeal of Bucharest - coordinator, Judge Bianca Țăndărescu, The High Court of Cassation and Justice, Judge Mihaela Vasiescu, The Court of Appeal of Tîrgu Mureș, Judge Paula Andrada Coțovanu, The Court of Appeal of Pitești, Judge Beatrice Ramașcanu, The Tribunal of Bucharest, Judge Ionuț Militaru, The Tribunal of Bucharest, Judge Roxana Lăcătușu, The Tribunal of Bucharest, Judge Serena Militaru, the 2nd District Instance Court of Bucharest, Judge Lucia Zaharia, the 5th District Instance Court of Bucharest, Judge Florin Mihăiță, the 4th District Instance Court of Bucharest, Judge Petrică Ghergheșanu, the 4th District Instance Court of Bucharest, Judge Lavinia Cîrciumaru, the Instance Court of Constanța, Judge Cristina Radu, the Instance Court of Constanța, Judge Elena Blidaru, the First District Instance Court of Bucharest, Judge Carmen Constanța Balaci, The Tribunal of Bucharest, Judge Cristinel Ghigheci, The Tribunal of Brașov, Public Prosecutor Alexandra Lăncrănjan, Prosecutor's Office Bucharest Court of 2nd District).
The approach of scientific objectivity of the study allowed us to develop a series of conclusions based on concrete information on convictions of Romania to the European Court of Human Rights.
The scope of these convictions is wide-ranging. The Romanian State is found guilty of violating the majority of rights and freedoms guaranteed under the European Convention on Human Rights and its Additional Protocols: the violation of the right not to be subjected to torture or to inhuman or degrading treatment, violation of right to liberty and security, the right to a fair trial (such as access issues are not final judgments, the flawed reasoning of judgments; non-compliance to the principle of legal certainty caused by proceedings for annulment pursued by the Attorney General or because of the inconsistent case-law of the High Court of Cassation and Justice, the length of proceedings, the absence of public hearing, the failure on the part of the tribunal, the presumption of innocence, the trial of civilians by military courts, the possibility for a prosecutor to order the detention of an individual for medical psychiatric reasons; the unanimity rule requiring that claim can be brought only by the unanimous agreement of the joint owners of property, the conduct of judicial proceedings in the absence of parties; the refusal of a court to hear the witnesses of a crime; violations of independence and impartiality of judges), violations of the right to respect for private and family life, home and correspondence, freedom of expression and freedom of association, violations of the right to an effective remedy, the violation of the prohibition of non-discrimination, violation of property rights, the violation of freedom of movement and so on.
For every case, the analysis consisted in five parts: the facts retained by the Court, the considerations of the Court, which are the most important, the merits, the potential responsible authorities.
The authorities are viewed from the perspective of the three branches of government – pillars for a rule of law: legislative, executive, judiciary.
Thus, in the pilot case Atanasiu v. Romania, the analysis of the potential responsible authorities concerns to all powers. The legislator is responsible for the absence of a clear, urgent and effective procedure in establishing the legal status for those whose property was confiscated, with or without title during the 1945-1989 period. This situation was also shaped by the absence of legislative consistency between different legislative acts, which have successively established the validity criteria or illegal acquisition of property owned by and the lack of definition of key legal concepts that courts have employed in these disputes, in particular the question of the relevance of good faith to acquire real estate under the Law no. 112/1995. The legislative branch is also responsible for the lack of an effective legislative framework in the payment of compensation for deprivation of property.
The executive is also responsible for several reasons. The administrative authorities have carried out the disposal of property without adequate due diligence to clarify the legal regime of the property, by concealing the existence of pending requests in courts for these goods. This branch is also responsible for not having put into operation the system of compensation under the Law no. 10/2001.
Finally, the judiciary itself was found responsible for the way the courts have granted the requests of their former tenants in acquiring the leased buildings on the basis of good faith, despite findings by the same bodies, that State did not have any legal title to the properties in question, who were not able then to be disposed of (i.e. Law no. 112/1995 does not authorize the alienation of immovable property for which the state has no valid title).
In other cases, the analysis refers to one or two of the three branches of government. In the judgment Faimblat v. Romania, January 13, 2009, the Court held that "the state should, above all, take the necessary legislative measures to ensure that restitution claims receive a final response from the authorities in a timely manner. The State had also the duty to remove the legal obstacles preventing the execution expeditiously final decisions rendered by administrative authority or by courts concerning the nationalized property, so that the former owners get either the restitution of their property, or a prompt and adequate compensation for damages suffered, including the adoption of legislative, administrative and budgetary measures meant to guarantee such an outcome. The measures indicated in the preceding paragraphs should be taken as soon as possible”.
Topics dealt with in the analysis of cases involving issues related to compliance and enforcement of judgments in restitution proceedings, compliance and enforcement of judgments, inconsistent case-law of courts and tribunals, reasonable period of civil proceedings, the right of the access to court, the reasoning of judicial decisions guaranteeing the right to a fair trial and a host of other issues are outlined in detail in the presentation of the study attached to the form.
c. The effects of the study
The study consists of seven volumes and comprises an analysis of each of the convictions against Romania between the time of accession of Romania to the ECHR to the date the study was completed in 2009, but has continued with analysis study convictions for 2010 and 2011 respectively.
The study caught the attention of legal professionals - judges, lawyers, legal practitioners and representatives of government and even politicians.
The idea from which it started by the team of authors to draw attention to the overlapping of responsibilities of state authorities had the expected echo. The study was presented in detail in the media and the essential idea, that of drawing attention to the tasks of each public authority, was emphasised.
Since the study was published, the opinion according to which the responsibility for the convictions of Romania in front of the European Court of Human Rights belongs exclusively to judges was no longer the principal issue raised every time when the European Court delivered a new conviction.
The study showed that in some cases only the executive and legislative authorities were responsible for the conviction, while in other cases accountability is found in the actions or inactions of each of the authorities.
Magistrates and lawyers may found in every analysis of the cases a key aid in proper appreciation of the provisions of the Convention both in the restitution cases and in civil and criminal procedures issues.
Every aspect relevant to civil and criminal procedure is easy to identify in the study, thanks to the tables of cases which present the conclusions of the Court for every case and the type of the conviction which the case belong to.
The lawyers have found an indispensable instrument of work which allows them to understand correctly the aspects which they can rely in their cases.
After the drafting and publishing the study, the authors decided to establish the European Magistrates` Association on Human Rights to actively support the online platform containing summaries of all convictions, the statistics, the tables and the study findings and conclusions. Also, besides the database, the Association established an on-line Law Review, properly registered at the Romanian National Library, which refers to the recent cases of Romania to the European Court of Human Rights. “JurisClasor CEDO” focuses on key issues established by the Court against both convictions of the Romanian state and the inadmissibility decisions rendered by it.
The initiative of the European Magistrates` Association on Human Rights of the "JurisClasor CEDO" is carried in a partnership with the Publishing House “Editura Universitara”, and is aimed at promoting human rights and fundamental freedoms in Europe, information and access to national and international legal resources.
The European Magistrates` Association on Human Rights aims at defending the status of magistrates and promoting freedom of expression and of information and of their association, at contributing, by all legal means, in the modernization of the judicial system and in increasing public confidence in an effective and fair act of justice, at making make every effort so as to avoid any interference with the rights and fundamental freedoms, by any public or governmental authorities.
Our publisher, Editura Universitara is recognized by the National Council of University Research (N.U.R.C.); the "JurisClasor CEDO" review is a serial publication (monthly), available exclusively online, registered with the Romanian National Library with the description JurisClasor CEDO Online ISSN 2247 - 6911 ISSN-L 2247-6911.
The association has concluded cooperation agreements with the Center for Legal Studies of the Romanian Academy and the Romania's Government Agent for publishing articles and presenting important cases. The Association also aimed at strengthening knowledge of the ECHR case-law among young magistrates, and in that end, a protocol for partnership with the National Institute of Magistracy was signed, therefore the database of the study was made available for consultation by every student. Moreover, a cooperation protocol was signed with the Court of Appeal from Bucharest for being made available to the court the database of the study, thus ensuring access to the database for the judges, freely.
Thus, as a direct effect of the study the authors initiate an association in order to collaborate with different institutions such as: the National Institute of Magistracy; the Government Agent of the Ministry of Foreign Affairs; the Court of Appeal of Bucharest; the European Legal Studies Center of the Romanian Academy; the Romanian Judges` Forum; the Centre for Legal Studies in Moldova.
