ECHR decisions in the cases against Romania - 2011 - Analysis, consequences, potentially responsible authorities (Volume VII)

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48,17 Lei   35,16 Lei

ISBN: 978-606-591-305-9

DOI: 10.5682/9786065913509

Publisher year: 2012

Edition: I

Pages:

Publisher: Editura Universitară

Author: Dragos Calin, Roxana Lacatusu, Petrica Gherghesanu, Carmen-Constanta Balaci, Mihaela Vasiescu, Paula-Andrada Cotovanu, Cristina Radu, Florin Mihaita, Anamaria Lucia Zaharia, Lavinia Circiumaru, Ionut Militaru, Costel Cristinel Ghigheci

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Volume including the European Court of Human Rights handed down in cases against Romania in 2011, as the first six volumes (1998-2010), covers a very important necessity in judicial life, first, the activity of public authorities and the media university, revealing a significant interest in our society.

From the outset, we note with pleasure that "raw material" is ordained judge skillfully and painstakingly devoted to its mission and placed in the Convention text patterns, faithfully respecting each resolution device.

This order method makes access to topics and decisions concerned, in practice, be easily and quickly, and published earlier this year of all judgments against Romania, issued between January to December 2011, the European Court of Human Rights, is worthy and commendable for young judges, coordinated by Judge Dragos Calin and the University Publishing House, under the auspices of prof. Dr. Michael Sandru.

Timeliness writing and publication of this volume, following the other, resolve, life judicial, legislative and executive, operational information on recent case law problem of the Court, while the usually mandatory publication in the Official Gazette of these decisions is very too late.

Remarkable are, however, observations and conclusions, highlighting the most significant considerations in the decisions and resolutions, which the authors highlighting the culture of European human rights law and jurisprudence of the ECHR, it fits and eloquent in this treasure trove of case law .

But the findings do not stop here; their true merit and are very useful in assessing the causes that have generated violations established by the Court, emphasizing the need and fairness, serious flaws and failures of legislative, judicial and public administration practices and and some of the solutions adopted in 2011.

Found that the conclusions be made loud and clear a few observations (which we did and we are still in August 2003, repeated in many papers and positions) on issues of profound structural and gravity, often highlighted in the judgments of the Court :

- "Romania is among the few European countries without a legal framework" of the existence of internal procedures for ensuring effective remedy within a reasonable trial of cases, which revealed the Venice Commission Report ";

- "Inconsistent court practice of the courts is undoubtedly a system problem often sanctioned by the Court (judgment Zelca and others in the September 6, 2011), an effective tool in the appeal of law, which guarantees compatibility with the art. 6 appear. 1 depends on "timeliness with which it is used and the clarity of the content of decision data";

- "Mihăieş causes and solutions of Senteş Court delivered on December 6, 2011, extremely important for national courts, are likely to end controversy over the rights ensured in the 25% reduction in wages, as a consequence of Law . 118/2010 on measures necessary to restore budgetary balance "and others.

Relative to these two decisions, however, appreciate that recognition, the principle of national regulatory margin can not be "discretionary" but it must be exercised in accordance with the principles established in the Court, as being, in both cases the Court found that the Romanian state has exceeded the discretion and did not break fair balance between the requirements of community interest and individual rights guaranteed, as far as reducing the monthly salary by 25% in a short period of time, the only six months (July 3 to December 31, 2010), to ensure budget balance and the special circumstances of economic and financial crisis, there was a disproportionate and excessive burden for applicants.

But such solutions are Court and remain in principle, be applicable only in such circumstances and with the ECHR case law criteria relating to the interpretation of art. 14-15 of the Convention and, as such, the application of art. 53 of the Constitution, relative to limitation of fundamental rights. The Court did not listen or did not want to hear that these restrictions, in reality, were applied to unlimited and final, while disregarding the Law. 118/2010, declared constitutional precisely because restriction (reduction) was limited to a period of only six months. The Court also inserted in recitals and Senteş Mihăieş decision a mere reference to judgment in Muresanu v. Romania (from June 15, 2010, no. 12821/05), the relative interference to pay money has been allocated was deemed a violation of Article. A hair. 1 of Protocol no. 1 to the Convention.

 An important and very rich in the updated data is given in the conclusions "effects" pilot judgment of 12 October 2010 in Case Maria Atanasiu and Others v. Romania, stating the obvious observation that "so far (after 1 year and 4 months) were not adopted general legislative measures "imposed by this decision, which emphasizes state of constant uncertainty and social depression for many years and feeling reveals possible solutions to be taken by the executive and the legislature will not meet the requirements of the Court or the expectations of litigants.

Finally, on the activity of the ECHR in 2011, the conclusions are worthwhile for us and statistics shows the main elements of nature to build the reader the role the European courts, which, due to exceedingly high volume of cases is, in fact, blockedand presented as "victim of its own success".

It became a problem for Europeans to accept that the Court faithfully respected the fundamental rights guaranteed by the Convention proceedings, while the whole procedure is internal and "invisible" to remain silent for years and then imposes a decision of inadmissibility, without appeal, after 7-10 years, the "filing" the application shall be judged, and finally finds the violation by a court of law to a trial within a reasonable time (who tried in June years, such a dispute concerning social security and pensions) or the right to a fair trial or a right wage, etc.

As a former judge at the European court, the time the Court was "sesionară" and still function filter Commission, the efforts that were made within the ECHR mechanism, but relatively little has been achieved in the future the Court clearly and effectively, more especially in circumstances in November, the European Union will probably soon "High side" to the Convention and be subject to the jurisdiction of the Court.

 

 

prof. Dr. Marin Voicu,
first judge of Romania
European Court of Human Rights

Dragos Calin
Mihaela Vasiescu

Judge, Court of Appeal Targu Mures


Paula-Andrada Cotovanu

Judge, judicial inspection, the Superior Council of Magistracy


Cristina Radu

Judge, Court of Constanta


Florin Mihaita

Judge, Court of Sector 4 Bucharest


Roxana Lacatusu
Anamaria Lucia Zaharia
Lavinia Circiumaru
Ionut Militaru

Judge, Court of Bucharest


Petrica Gherghesanu
Costel Cristinel Ghigheci

Judge, Court of Appeal Brasov


Carmen-Constanta Balaci

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