Romanian Institute for Human Rights
Council of Europe
Human rights, democracy and the rule of law are the essential values of the Council of Europe. Observance of human rights and fundamental freedoms means their protection and promotion through legal norms that institute control procedures and provide a collective safeguard at European level. This way, except for defence issues, all big and various aspects of the European society are covered.
The Council of Europe is the first organization of essentially political and cultural vocation. It presently provides the most efficient mechanism for the protection and promotion of human rights through the European Court of Human Rights, as well as by identifying the new threats to human rights and human dignity, by promoting education and training in the field of human rights. You can access the List of the European instruments signed and ratified by Romania.
European Convention on Human Rights and its Optional Protocols
The European Convention on Human Rights, based on the Universal Declaration of Human Rights, adopted in Rome on 4 November 1950, came into force on 3 September 1953. The Convention is the first international treaty providing a collective safeguard by the States belonging to the Council of Europe for the respect of human rights and fundamental freedoms.
Romania signed the Convention on 7 October 1993, the same day when the instruments of accession to the Status of the Council of Europe were presented. The Convention was ratified under Law No. 30/1994 and came into force on 20 June 1994. According to art. 11 paragraph (2) of the Constitution of Romania, the Convention is part of the national law, with direct applicability. Also, the provisions of art. 20 of the Constitution are applicable in relation to the Convention as well.
Since the Convention came to force, 16 additional Protocols have been elaborated, which brought along additions and clarifications with a view to extend the guaranteed rights and improve the procedures.
(First) Protocol to ECHR (ETS 009)
Additional Protocol No. 1 to the Convention adds several fundamental rights to those protected under the Convention, namely: the right to peacefully enjoy one’s possessions, the right to education and the right to free elections by secret ballot.
Protocol No. 2 to ECHR (ETS 044)
Additional Protocol No. 2 to the Convention confers the European Court of Human Rights the competence to give advisory opinions.
Protocol No. 3 to ECHR (ETS 045)
Additional Protocol No. 3 to the Convention modifies articles 29, 30 and 34 of the Convention (according to the numbering in force before 1 November 1988).
Protocol No. 4 to ECHR (ETS 046)
Additional Protocol No. 4 to the Convention provides for certain rights and fundamental freedoms not included in the previous texts: prohibition of imprisonment for debt, right to freedom of movement and to choose one’s residence, prohibition of expulsion of nationals, prohibition of collective expulsion of aliens.
Protocol No. 5 to ECHR (ETS 055)
Additional Protocol No. 5 to the Convention modifies articles 22 an 40 of the Convention (according to the numbering in force before 1 November 1988).
Protocol No. 6 to ECHR (ETS 114)
Additional Protocol No. 6 to the Convention refers to the abolishment of death penalty.
Protocol No. 7 to ECHR (ETS 117)
Additional Protocol No. 7 to the Convention extends the list of the rights protected under the Convention and its Protocols nos. 1, 4 and 6, by adding the following:
- the right of aliens to procedural safeguards in case they are expelled from the territory of a State;
- the right of a person convicted for a criminal offence to have his conviction or sentence reviewed by a higher tribunal;
- the right to compensation for wrongful conviction;
- the right not to be tried or punished twice for an offence for which he has already been finally acquitted or convicted (ne bis in idem);
- equality between spouses in rights and duties.
Protocol No. 8 to ECHR (ETS 118)
Additional Protocol No. 8 to the Convention conferred the European Commission of Human Rights the possibility to establish Chambers, each made up of at least seven members to examine the individual petitions that could be admitted on the basis of the existing jurisprudence or did not raise questions that would have affected the interpretation or the application of the Convention. Also, according to the Protocol, the Commission could establish committees, each made up of at least three members, having the power, based on a unanimous vote, to declare a petition to be inadmissible or delete it from the list of cases when such a decision could be made with no further examination. All these provisions did not apply to the petitions filed by States.
Protocol No. 9 to ECHR (ETS 140)
Additional Protocol No. 9 to the Convention gives a petitioner the right to present his case before the Court, under certain circumstances.
Protocol No. 10 to ECHR (ETS 146)
Additional Protocol No. 10 to the Convention improved the monitoring procedures of the Convention. It changed the required majority rule when the Committee of Ministers has to vote whether the Convention had been violated in those cases that were not submitted to the European Court of Human Rights, from two thirds, as provided by article 32 of the Convention, to the simple majority of the Member States.
Protocol No. 11 to ECHR (ETS 155)
Additional Protocol No. 11 to the Convention improves the mechanism for the enforcement of the rights and freedoms guaranteed under the Convention. Thus, it establishes, among others, that all cases considered to be violations of the people’s rights shall be submitted directly to the new standing Court, that in most cases the Court shall convene in Chambers made up of seven judges and that the Court shall analyze both the individual cases and the inter-State petitions.
Protocol No. 12 to ECHR (ETS 177)
Additional Protocol No. 12 to the Convention refers to the general prohibition of any form of discrimination.
Protocol No. 13 to ECHR (ETS 187)
Additional Protocol No. 13 to the Convention abolishes the death penalty in all cases, including for crimes committed in time of war or imminent threat of war. No reservations or derogations from Protocol No. 13 are admitted.
Protocol No. 14 to ECHR (ETS 194)
Additional Protocol No. 14 to the Convention introduces several modifications, such as the introduction of an admissibility criterion, treatment of repetitive cases or definitely inadmissible cases, with the purpose of improving the functioning of the European Court of Human Rights.
Protocol No. 15 to ECHR (ETS 213)
Adopted at the Committee of Ministers meeting of 16 May 2013, it aims at implementing measures designed to simplify the procedures and speed up the pace at which the cases are analyzed. Thus, it provides for:
- shortening from six to four months the time limit within which an application must be made to the Court;
- amending the ‘significant disadvantage’ admissibility criterion to remove the second safeguard preventing rejection of an application that has not been duly considered by a domestic tribunal;
- replacing the age limit for the beginning of a European Court judge’s mandate from 70 to 65 years of age;
- removing the right of the parties to a case to object to relinquishment of jurisdiction over it by a Chamber in favour of the Grand Chamber.
The Protocol has been ratified by Romania. It enters into force in three months since all High Contracting Parties to the Convention will have expressed their consent to be a party to the Protocol.
Protocol No. 16 to ECHR (ETS 214)
Adopted on 16 July 2013 and in force since 1 August 2018, Protocol 16 to the European Convention on Human Rights allows for the highest national courts and tribunals designated by the Member State concerned to request the European Court of Human Rights offer advisory opinions on matters of principle regarding interpretation or enforcement of the rights and freedoms defined by the Convention or its additional Protocols. The advisory opinions, to be presented by the Grand Chamber, shall include motivations and shall be not binding. The requests for advisory opinions shall be made in the context of cases pending before the national courts, the Court being free to accept or to reject such a request.
The European Court of Human Rights
The European Court of Human Rights is the competent judicial authority to issue decisions in relation to the applications filed against a State for violation of the European Convention on Human Rights. To access the webpage of the European Court of Human Rights, click here.
The pilot-judgment procedure
In case the Court is submitted several complaints based on one and the same provision that has been at the core of successive violations of human rights, the Court may select and assign priority to one or several complaints, under the pilot-judgment procedure.
When the cases indicate that there is a structural or systematic violation, the Court decides what general measures shall be taken at national level and postpones the examination of the complaints, while waiting for the general measures to be implemented, within the time period established by the Court.
It is up to the involved State to choose, under the surveillance of the Council of Europe Committee of Ministers, how it will fulfill its obligations in compliance with art. 46. If the State complies with the Court’s decisions, the respective cases will be removed from the Court.
The control mechanism for the implementation of the Court’s decisions
According to art. 46, it is the Committee of Ministers that monitors the implementation of the Court’s decisions. First, the accused State is requested to inform the Committee of Ministers about the measures it has taken in order to implement every Court’s decision. The case is put again on the agenda of the Committee of Ministers every six months until the State complies with the Court’s decision and then the Committee adopts a resolution.
At the same time, art. 46 authorizes the Committee of Ministers to request the Court an interpretation of a final decision to make monitoring its implementation easier. Secondly, it institutes a recourse procedure in the absence of the State. The Committee may decide by a two thirds majority to submit the case to the European Court if a State refuses to comply with a final decision pronounced in a litigation against the same State.
The case may be submitted to the Court after the domestic remedies at law have been exhausted;
The application has to be filed within 6 months since the final domestic decision (the date of the last national decision pronounced in relation to the last remedy at law by which all domestic remedies at law have been exhausted);
It shall not be anonymous;
It shall not be essentially the same as an application previously examined by the Court;
It shall not have been examined by another international Court, unless it contains new facts;
It shall be compatible with the provisions of the Convention;
The petitioner shall have suffered a significant disadvantage.