Perspective_politice_2021_1_si_2.qxd The Consolidation of the System of the European Convention for Human Rights at National Level – Argument* Abstract: The rule of law is the central piece of the puzzle of a state’s democracy. From the point of view of institutions, the three powers of the State are called, together, to create and strengthen the mechanisms for the functioning of democracy. In this equation, the respect for human rights is the motive of the ap- proach, and parliaments, through their mission and strategic position in relation to governments, can be guarantors of this approach. Based on the principles underlying the European edifice and on the rele- vant documents of the Parliamentary Assembly of the Council of Europe on the restoration of violated rights and by supervising and monitoring the enforcement of judgments delivered by the European Court of Human Rights, we argue that national parliaments, through internal control structures, can be the foundation of state democracy. Keywords: enforcement of ECHR judgments, national parliaments, shared responsibility, control mech- anisms. I. Reference elements The European Convention for the Protection of Human Rights and Fundamental Freedoms represents a guarantee of observing the rule of law and the fundamental principles of democracy, being, at the same time, “the first instrument of international law that has organised the protection of the individual against its own state, guaranteeing them fundamental rights and freedoms”1. European Court of Human Rights (ECHR) and the Committee of Ministers represent the complex institutional edifices by which the ef- fective application of the Convention’s provisions2 is made. The European Court of Human Rights (ECHR) has international ju- risdiction and full powers to deliver by judgements with imperative, mandatory value on individual claims (sub- mitted by individuals, groups of individuals, companies or non-governmental organisa- tions on the violation of their rights) or of member states, which invoke the violation of the Convention; The Committee of Ministers is the main political institution of the Council of Europe, to whom the Convention, by article 46, has entrusted the specific responsibility of moni- toring and supervising the measures taken by states for the application and execution of the Court’s3 judgements. Alina Mihaela GRIGORESCU PhD candidate, National University of Political Studies and Public Administration, Bucharest, Romania aline.grigorescu2000@gmail.com Perspective_politice_2021_1_si_2.qxd 2/3/2022 9:05 AM Page 105 In order to become efficient, this monitoring carried out by the Committee of Ministers must be accompanied by a direct inspection from national institutions vested with powers for the implementation of the Convention, and of the judgements of the European Court of Human Rights acquiring, due to these reasons, a bivalent nature4, which describes the interdependen- cy between the national jurisdiction and the jurisdiction of the supranational law system, de- scribed by the European Convention and additional protocols. Currently, it is becoming more and more obvious that the standpoint according to which the efficient implementation of the Convention’s provisions in the internal system, the prevention of human rights violation, the guaranteeing and protection of human rights, but also the imple- mentation of effective remedies at national level is the mutual responsibility of all the three powers of the state. Thus, the legal force of the judgements delivered by the European Court is completed by the control function of the judgements’ execution, their exercise being doubly structured, vertically, by the Committee of Ministers, and horizontally, at the level of the three powers of the State, legal (by court judgements), legislative (by the regulations it adopts and by parliamentary control), executive (by the Romanian Government Agent for ECHR). Thus, we are discussing about a shared responsibility, where, within the limits of the main separa- tion and legitimacy scopes, the institutions involved consolidate their collaboration for the cre- ation of a Europe of rights and of a united5 transnational legal area. Moreover, “the fundamen- tal rights are the essential element in the process of creation and implementation of regulations6”. Lastly, this regulatory framework maintains, on a long term, the efficiency of the European Convention, this complex and unique system which in 2020 has celebrated 70 years from its signing, on 4 November 1950. II. Main documents for the exercise of control at parliamentary level In agreement with the subsidiarity principle, due to reasons of consolidation of the suprana- tional control mechanisms, the Convention’s institution has developed subsequent institutions at national level, and the member states have been indirectly bound, within the limits defined by own historical or political transformations, to found supplementary monitoring institution- al mechanisms for the observance of fundamental human rights and the judgements delivered by ECHR. Thus, by the judgements and recommendations7 of the Parliamentary Assembly of the Council of Europe (PACE), it was adequately formulated and reiterated constantly to party states the request regarding the creation of „internal mechanisms and procedures – at govern- ments and parliaments level – which would allow the guaranteeing of the application of the Court’s judgements in a quick and efficient manner, due to the concerted action of all nation- al players involved and with the necessary support from the highest political level8”. The decision regarding the involvement of national parliaments in the supervision and con- trol of the execution of the European Court’s judgements is also mentioned in most of the PACE documents, with the purpose of concretely improving the activity of the European Court. The Interlaken Conference9 (18-19 February 2010), by the Common Declaration10 of the representatives of the 47 states has reiterated the theme of increasing the efficiency of the Court by increasing the operational efficiency of the national systems for the protection of 106 Perspective politice Perspective_politice_2021_1_si_2.qxd 2/3/2022 9:05 AM Page 106 human rights. Parliaments, as well as governments and courts, have a fundamental role in guaranteeing the protection of human rights at national level11. At the same time, Judgement 1787 (2011) of PACE mentions that one of the main causes for the deficiencies of the execution of ECHR judgements is the lack of internal mechanisms and procedures in order to ensure the implementation of adequate measures that would enforce the consolidated and coordinated action of internal institutions. Furthermore, specific conferences and intergovernmental meetings, which have taken place subsequently, have reiterated the stringent need for the party states that they take addi- tional measures for the consolidation of the involvement of national parliaments in the moni- toring of the execution of judgements delivered by the Strasbourg Court. Thus, the Brighton Conference (2012) encouraged party states “iii. to facilitate the important role of national par- liaments in the monitoring of the full implementation of the measures ordered” (F. 29. a. iii.)12. This message of substantial involvement of national parliaments has also been given by the Brussels Conference (2015) which, “especially encourages the direct involvement of national parliaments in the execution process of the judgements delivered by ECHR” (Action Plan B. 2. h). The implementation of the Convention on national level from the Action Plan contained in the Brussels’ Declaration13 launched in the high level conference carried out in March 2015 also reminds of the responsibility of the party States for the effective application of the Con- vention. Thus, within the effective application of the Convention’s provisions, the first level of responsibility is borne by the courts, which ensure the direct application of the Convention and of the ECHR case law within internal law, according to the subsidiarity principle. The action plan invites the party states: 1. Before and independently from the analysis of the cases carried out by the Court; a) To make sure that potential claimants have access to information about ECHR and about the content of the Convention, especially regarding the scope and limits of protection ensured by the Convention, the limits of the Court’s jurisdiction and regarding admissibility criteria; b) To consolidate, at national level, the efforts of awareness of parliaments’ members, in order to improve the training of prosecutors and judges, lawyers and law practicians in the im- plementation of the Convention and the execution of the Court’s judgements, ensuring that this represents an integrant part of the constant professional training of law practicians; c) To take the adequate measures to improve the verification and compatibility of draft acts, of regulations and of the internal administrative practice with the provisions of the Convention and in line with the Court’s case law; d) To ensure the effective implementation of the Convention at national level, in order to prevent the violations of its provisions; e) To take necessary and efficient measures so that the national legal systems ensure the ex- istence of effective internal remedies for the settlement of the alleged violations of the Con- ventions’ provisions; f) To take the necessary measures to found, at national level, independent institutions for human rights. 2. After the delivery of the Court’s judgement, among others, the Action Plan entails the development and involvement of sufficient internal resources in the full and effective execu- tion of the Court’s judgements. At the same time, it proposes the facilitation of accessibility to the Court’s judgements, action plans and reports, decisions and judgements of the Committee decembrie 2021 107Perspective politice Perspective_politice_2021_1_si_2.qxd 2/3/2022 9:05 AM Page 107 of Ministers by disseminating all necessary information to executives, parliaments and courts and, if applicable, to non-governmental institutions and organisations with activity in the pro- tection of human rights, so that all these entities be fully involved in the process of execution of the judgements of the Strasbourg Court. With the same idea, in the relation on the long-term future of the Convention system, the Board of Directors for Human Rights (BDHR) mentioned, in 2015, that “by adopting regula- tions, national parliaments have a key responsibility in the protection of human rights inter- nally” and that “national parliaments have an important role in this system, by examining the compatibility with the Convention’s standards of all regulations issued at government level and by increasing the involvement in the execution of the Court’s judgements”14. III. Concrete involvement of national parliaments in the process of monitoring the execution of ECHR judgements In the same context, the role of national parliaments has been more and more recognised as being essential in the effective performance of the implementation of the Convention at nation- al level. As we have already mentioned, traditionally, the legal system is the one with the main responsibility for the remediation of damages regarding the violation of human rights at na- tional level. It is obvious that there is no access to justice without guaranteeing the rights of individu- als15. Also, it is more and more concretely recognised the fact that the implementation of the Court’s judgements is often in a complex legal and political process, including the supplemen- tary and cumulative coordinated actions of all the powers of the state16. The Committee of Ministers finds in its documents17 that the ECHR judgements implementation mechanism has acquired an immense benefit from the involvement of national parliaments, at the same time encouraging the parliamentary control mechanisms. This involvement of national parliaments needs robust structures and procedures in order to ensure an effective and rigorous parliamen- tary control, at national level, and at European level, a subject also mentioned in the 2020 Re- port on the implementation of the judgements of the European Court of Human Rights18. The report presents a part of the roles of the national parliament within the Convention’s applica- tion system: – involvement in the procedures for the verification of compatibility of draft acts, regulations in force and administrative procedures with the standards of the Convention and the Court’s case law; – creation of permanent parliamentary structures dedicated to the monitoring of the execu- tion of the Strasbourg Court’s judgements; – notification, organisation of regular debates at parliamentary level, regarding the Court’s judgements; – creation and consolidation of effective internal control mechanisms for the implementation of judgements; – adopting regulations which review the complex structural issues to which the Court’s judge- ments are referring; Beyond all these, the PACE documents mention Romania as having major issues in the ful- filment of the Convention’s standards in several fields of activity (non-execution or late exe- 108 Perspective politice Perspective_politice_2021_1_si_2.qxd 2/3/2022 9:05 AM Page 108 cution of court judgements, excessive duration of legal procedures, precarious detention con- ditions). Furthermore, the statistics19 made for the period 1994-2020 on the compliance with the Convention’s provisions and with its protocols by Romania indicates the repeated viola- tion of article 6 of the Convention (right to a fair trial) and of article 1 of Protocol 1 to the Convention (protection of property), with a total of 495 and, respectively, 462 judgements de- livered against Romania. Other violations have been for degrading or inhuman treatments (302 judgements delivered against Romania), excessive duration of legal procedures (150 judgements delivered against Romania) the right to an effective appeal (145 judgements) and the right to freedom and security (123 judgements). For this purpose, this intervention is calling attention to the imperative need of founding and consolidating a mutual structure (Senate – Chamber of Deputies) for the monitoring of the execution of judgements delivered by the European Court of Human Rights. This, in consoli- dating the role of control over the Executive, according to art. 111 and 112 of the Fundamen- tal Law – within the limits defined by the principle of separation of the powers of the state. And, beyond this, for the consolidation of the rule of law and the “responsibility for exercis- ing of the act of power”20. IV. Conclusions This short incursion represents only an open path towards new directions of political action. Debates and compared law can be means of fulfilling the proposed goals, as well as the real separation of the powers within the state. Moreover, the principle of balancing the powers in a state generates the active involvement of state players in the complete undertaking of the role of member with full rights of an international organisation. There are only a few arguments – an alarm signal which should be carefully analysed and put into practice. Notes * “This paper was elaborated within the Human Capital Operational Program 2014-2020, co-financed by the European Social Fund, under the project POCU/380/6/13/124708 no. 37141/23.05.2019, with the title “Re- searcher-Entrepreneur on Labour Market in the Fields of Intelligent Specialization (CERT-ANTREP)”, coordi- nated by the National University of Political Studies and Public Administration. 1 Ovidiu Predescu, Mihail Udroiu, European Convention on Human Rights and Romanian Case Law, C.H. Beck Publishing House, Bucharest, 2007, p. 14. 2 See Irina Moroianu Zlãtescu, Elena Marinicã, European Union Law, Universul Academic Publishing House, University Publishing House, 2017, page 42: 1. The high level contracting parties undertake to com- ply with the definitive judgements of the Court in the disputes to which they are parties; 2. The definitive judgement of the Court is sent to the Committee of Ministers, who supervises its execution. 3 Article 46 – Mandatory force and judgements execution 4 We are referring to the nature of the two levels of monitoring and control of the execution of judgements delivered by the European Court of Human Rights, the international level and the national level. 5 See Irina Moroianu Zlãtescu, Execution of the judgements of the European Court of Human Rights, Human Rights Magazine, year XXIII, no. 2, 2013, IRDO, page 26-30 6 See Constanþa Mãtuºescu, The scope of application of fundamental rights guaranteed by European Union law on member states’ action. 7 Judgement 1226 (2000), Recommendation 1764 (2006), Judgement 1516 (2006), Judgement 1787 (2011), Judgement 1823 (2011), Recommendation 1955 (2011), Recommendation 2079 (2015), Judgement 2075 (2015), Judgement 2178 (2017), Recommendation 2110 (2017) decembrie 2021 109Perspective politice Perspective_politice_2021_1_si_2.qxd 2/3/2022 9:05 AM Page 109 8 Section 1, par. 4 – Rec. 1764 (2006) – https://pace.coe.int/en/files/17471/html; Par. 17, 22 – Rés.1516 (2006) – https://pace.coe.int/en/files/17472/html 9 https://www.echr.coe.int/Documents/2016_Interlaken_Process_ENG.pdf 10 High Level Conference on the Future of the European Court of Human Rights – Interlaken Declaration – 19 February 2010 http://www.eda.admin.ch/etc/medialib/downloads/edazen/topics/europa/euroc.Par.0133.F ile.tmp/final_en.pdf 11 Interlaken Declaration, par 6, see previous note 12 https://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf 13 https://rm.coe.int/enhancing-the-national-implemantation-of-the-system-of-the-european-co/16809e41 b3 – Action Plan B. 14 The Conference “Parliaments and the European Court of Human Rights”, co-organised by Middlesex University London and Helsinki Foundation for Human Rights, in Warsaw, 12 May 2015; Conference “Role of parliaments in the protection and performance of the rule of law and of human rights”, Westminster, 7 September 2015. 15 University Professor Irina Moroianu Zlãtescu PhD, University Professor Dan Claudiu Dãniºor PhD, University Lecturer Marius Nicolae Bãlan PhD, University Lecturer Raluca Bercea PhD, University Lecturer Victor Alistar PhD, University Lecturer Daniela Anca Deteºeanu PhD, University Assistant Cristina Tomuleþ, Av. University Assistant, Raluca ªtefania Lazãr PhD, Comparative study on the access to justice, assistance and legal counselling, alternative ways of solving disputes, including administrative disputes in member states of the European Union and of the European Council, Bucharest, December 2019, Transparency International Romania, page 6 16 Progress report of the Rapporteur of the Committee on Legal Affairs and Human Rights, Implementa- tion of judgments of the European Court of Human Rights, AS/Jur (2009) 36, para. 14 (Mr.Christos Pour- gourides), September 2009. 17 Implementation of judgments of the European Court of Human Rights, Parliamentary Assembly Recom- mendation 1764 (2006), CM/AS (2007) Rec 1764 final 30 March 2007, Reply adopted by the Committee of Ministers on 28 March 2007 at the 991st meeting of the Ministers’ Deputies, par. 1. 18 https://www.ecoi.net/en/file/local/2033883/document.pdf 19 https://www.statista.com/statistics/1098872/violations-of-the-echr-by-romania/ 20 See Emil Bãlan, Rule of Law and the Quality of Regulation – Institutions, procedures, resources of the public administration, Wolters Kluwer Publishing House, Bucharest, 2016 , page 39 References Emil Bãlan, Rule of law and the quality of regulation – Institutions, procedures, resources of the public ad- ministration, Wolters Kluwer Publishing House, Bucharest, 2016 Mãtuºescu Constanþa, The scope of application of fundamental rights guaranteed by European Union law on member states’ action. Some jurisprudential landmarks, Law Review, vol. III, Special issue 2017 Moroianu Zlãtescu Irina, Execution of the judgements of the European Court of Human Rights, Human Rights Magazine, year XXIII, no. 2, 2013, IRDO Moroianu Zlãtescu Irina, Elena Marinicã, European Union Law, Universul Academic Publishing House, Uni- versity Publishing House, 2017 Moroianu Zlãtescu Irina PhD, University Professor Dan Claudiu Dãniºor PhD, University Lecturer Marius Nico- lae Bãlan PhD, University Lecturer Raluca Bercea PhD, University Lecturer Victor Alistar PhD, University Lecturer Daniela Anca Deteºeanu PhD, University Assistant Cristina Tomuleþ, Av. University Assistant Ralu- ca ªtefania Lazãr PhD, Comparative study on the access to justice, assistance and legal counselling, alter- native ways of solving disputes, including administrative disputes in member states of the European Union and of the European Council, Transparency International Romania, Bucharest, December 2019 Predescu Ovidiu, Mihail Udroiu, European Convention on Human Rights and Romanian Case Law, C.H. Pub- lishing House Beck, Bucharest, 2007 110 Perspective politice Perspective_politice_2021_1_si_2.qxd 2/3/2022 9:05 AM Page 110 European documents European Convention for the Protection of Human Rights and Fundamental Freedoms Progress report of the Rapporteur of the Committee on Legal Affairs and Human Rights, Implementation of judgments of the European Court of Human Rights, AS/Jur (2009) 36, September 2009 The implementation of judgments of the European Court of Human Rights – Report – Committee on Legal Af- fairs and Human Rights Rapporteur: Mr Constantinos EFSTATHIOU, Cyprus, Socialists, Democrats and Greens Group Judgement 1226 (2000) – https://pace.coe.int/en/files/16834/html Recommendation 1764(2006) – https://pace.coe.int/en/files/17471/html Judgement 1516(2006) – https://pace.coe.int/en/files/17472/html Judgement 1787 (2011) – https://pace.coe.int/en/files/17953/html Judgement 1823 (2011) – https://pace.coe.int/en/files/18011/html Recommendation 1955 (2011) – https://pace.coe.int/en/files/17954/html Recommendation 2079 (2015) – https://pace.coe.int/en/files/22198/html Judgement 2075 (2015) – https://pace.coe.int/en/files/22197/html Judgement 2178 (2017) – https://pace.coe.int/en/files/23987/html Recommendation 2110 (2017) – https://pace.coe.int/en/files/23988/html Judgement 2358 (2021) – https://pace.coe.int/en/files/28996/html Websites https://www.echr.coe.int/Documents/2016_Interlaken_Process_ENG.pdf https://www.echr.coe.int/Documents/2010_Interlaken_FinalDeclaration_ENG.pdf – High Level Conference on the Future of the European Court of Human Rights – Interlaken Declaration – 19 February 2010 https://rm.coe.int/enhancing-the-national-implemantation-of-the-system-of-the-european-co/16809e41b3 – Action Plan B. https://www.ecoi.net/en/file/local/2033883/document.pdf , The implementation of judgments of the European Court of Human Rights Doc. 15123 15 July 2020 https://www.statista.com/statistics/1098872/violations-of-the-echr-by-romania/ https://www.echr.coe.int/Documents/Brussels_Declaration_ENG.pdf – High-level Conference on the “Imple- mentation of the European Convention on Human Rights, our shared responsibility” Brussels Declaration, 27 March 2015 https://www.echr.coe.int/Documents/2010_Interlaken_FinalDeclaration_ENG.pdf – Interlaken Declaration https://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf https://www.echr.coe.int/Pages/home.aspx?p=basictexts/reform decembrie 2021 111Perspective politice Perspective_politice_2021_1_si_2.qxd 2/3/2022 9:05 AM Page 111