Abstracts Nr 1, 2015
Valentin Constantin, The third pillar of the New Reform at the European Court of Human Rights
Abstract: Protocol 16 to the European Convention on Human Rights ends the new reform at the Court. It is an optional protocol that will come into force once it is ratified by 10 states party to the Convention.
Through the consultative approval created by the Protocol states are granted access to the Court. The highest courts, chosen by the states, will have locus standi in the approval procedure. This last pillar of the reform changes the logic of the system of protection. It is unclear whether the consultative character of the approval is compatible with the authority of the Court in matters related to the interpretation of the Convention. Also noticeable is the contradiction between the original purpose of the system, i.e. to encourage the access of individuals to the international courts, and the current purpose, i.e. of facilitating the access of national courts to the Court.
The costs of the reform have been transferred nontransparently and somewhat undemocratically to the beneficiaries of the rights instead of being absorbed by the system of protection. This marks the end of an era in the history of the Court.
Keywords: consultative approval, interpretation of the Convention, Protocol 16, European Convention on Human Rights
Elena Lazăr, Positive obligations under Article 8 of the European Convention on Human Rights concerning the protection of detainees
Abstract: Detainees represent a vulnerable category of people due to their placement under the direct control of state authorities. Thus, their situation requires a proper protection. In this regard the European Court of Human Rights established through its jurisprudence the so called mechanism of positive obligations This mechanism represents a great evolution in the European Human Rights protection system and it implies states’ obligation not only to abstain themselves from breaching the rights guaranteed by the European Convention of Human Rights, but also to take all the necessary measures to protect them. In addition article 8 of the Convention, the right to private and family life, imposes on states certain types of obligations which prove to be extremely useful for people deprived of their liberty. The right to correspondence, the right to keep in touch with their families represent some of the most important rights for detainees. The problem with these obligations is the fact that they are concerned only with means and not results.
Keywords: prison, detainee, positive obligations, private and family life, right to correspondence, European Court of Human Rights
Corina Popescu, The protection of property rights concerning real estate confiscated during the communist regime in the light of the principle of the separation of powers
Abstract: After several decisions of the European Court of Human Rights concluding the violation of article 1 of the First Additional Protocol of the European Convention on Human Rights and after the decision in the pilot case Maria Atanasiu and others v/ Romania, the Romanian Government adopted Law no. 165/2013. Despite the fact that a period of 18 months, prolonged by another period of 9 months, was given to the Romanian Government in order to adopt and implement new legislation regarding the restitution of the properties unlawfully taken, before and after Law no. 165/2013 entered into force, the suspension of all the procedures was decided.
Also, despite the fact that the Romanian Government was supposed to solve the problems of all the persons in the same situation as the plaintiffs’ in the pilot case, Law no. 165/2013 concerns a very limited number of persons. The Constitutional Court declared that the periods set up by Law no. 165/2013 are not applicable to the persons who were either plaintiffs in a court action pending or in possession of a definitive court decision at the moment the law entered into force. These persons represent the majority, as most of the former owners or their successors started proceedings invoking the violations of their property rights during the 22 years after the first restitution law entered into force.
Keywords: restitution of the properties, real estate, the pilot case, Maria Atanasiu, Additional Protocol, European Court of Human Rights