"INSTITUTIONAL SUPPORT TO THE COUNTRIES OF SOUTH EASTERN EUROPE"

Phase B
1st Workshop
Athens, 16th - 22nd February 2003

GENERAL REPORT ON THE ENFORCEMENT OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS AND THE COMPATIBILITY WITH THE LEGISLATION IN ALBANIA, BULGARIA, ROMANIA, FYROM, SERBIA & MONTENEGRO

Introduction

The signing of the European Convention for Human Rights (ECHR), however, is only but one step in this direction.

At the end of the 1980’s and the beginning of the 1990’s most of the Eastern and Central European countries had signed the ECHR. It was a political presumption for entering the Council of Europe. In addition, most of the new constitutions of these countries have tried to harmonize the internal legal order to the Convention requirements and standards. The influence of the ECHR over the constitutional order of these countries can also easily been proven from the fact that a large number of provisions contained in the ECHR were incorporated into the text of these constitutions and continued with the adjustment of many national laws to the ECHR.

On the subject of the countries of Southeastern Europe involvement with the judicial procedure-taking place before the ECHR, the following main points can be drawn from the submitted national Reports:

1.      In Albania the ratification of the European Convention on Human Rights (ECHR) and the subsequent acknowledgment of the European Court’ s competence were realized by a Law of 1996. Due to the constitutional order in place, after ratification the ECHR provisions have precedence over national provisions eventually dealing with human rights. Up to now there have been only a small number of applications to the Court of Strasbourg by Albanian citizens and no decisions have been rendered against Albania. Due in part to that fact, public awareness of the said procedure, except of course by lawyers and public authorities, is deemed to be low. 

2.      In Bulgaria the ECHR was ratified in 1992 and its provisions also have precedence over national acts. Moreover, criminal proceedings can be instigated for any established and significant violation of the Convention. Many cases have been brought before the Court of Strasbourg, mainly concerning the conditions of detention and the respect of the principles of fair trial in criminal proceedings. There is a high level of public awareness concerning the existence of ECHR and the judicial procedure established by it, enhanced by relevant publications, comments of the Court decisions on specialized magazines and the help provided by Ministerial experts to the public. There is also a satisfactory level of compliance with the Court’ s decisions against Bulgaria, whereby certain decisions of public authorities have been upheld (e.g. the prohibition by local authorities to organize peaceful assemblies) and legal provisions of the internal order have been modified according to the Court case-law (e.g in the field of detention).

3.      In FYROM the ECHR was ratified in 1995, but previously the whole body of the relevant internal legislation had been modified (the procedure started in 1991) in order to become compatible with the Convention’ s principles. Out of circa 100 requests deposited up to now to the Court by individuals and dealing for the most part with issues linked to fair trial, property rights and the freedom of expression no decision has yet been issued on their favour.  Thus public awareness has up to now been conditioned to an important degree by uncertainty as to whether the ECHR procedure could possibly have any tangible results for the citizens of FYROM.

4.      Romania ratified the ECHR in 1994, but with an explicit reservation concerning the enforcement of internal provisions on the correlation of liberty and military discipline. The ratified ECHR has become part of the Romanian legal order and it prevails over other provisions in case of conflict. 169 cases have been recorded according to the country Report, most of them dealing with rights stemming from immovable properties confiscated during the communist regime. There have been 42 decisions rendered against Romania, which have received lavish media attention and have resulted to high public awareness of the importance of the Court of Strasbourg. A high level of compliance is also reported, realized either through legislation modifications (e.g the provisions of the new Criminal Code), or by other means, as in the case of confiscated properties, where in-kind restitution was out of the question. Romanian case law, most notably of the Constitutional Court, has, after an initial period of relative reluctance, been influenced by decisions rendered by the Strasbourg Court.

5.      Finally, in Serbia-Montenegro the ECHR has yet to be ratified, but a Charter of Human Rights directly inspired by it has been incorporated to the new Constitution. After ratification the ECHR will have precedence over national law.       

 In more detail:

Accession to the ECHR

Albania, Bulgaria, FYROM and Romania have all acceded the ECHR.

In particular:

1. By Law No. 8137 of 31 July 1996 Albania has ratified the European Convention on Human Rights and its Protocols and has since deposited its instruments of ratification on 2 October 1996.  The great importance of this ratification for the protection of human rights in Albania lies in the primacy accorded to the Convention as a ratified international agreement under the new Albanian Constitution.
2. On 7 May 1992 Bulgaria became the 27^th member state of the Council of Europe and signed ECHR; it was ratified by Bulgaria on September 7^th, 1992 and entered into force the same day. Since Bulgaria has an automatic system of incorporation of international treaties in domestic law, the European Convention on Human Rights is considered as constitutional law.
3. FYROM signed the ECHR on 11 November 1995. The ECHR entered into force in respect of FYROM on 10 April 1997, the date when the instruments of its ratification were deposited with the Secretary General of the Council of Europe.
4. Romania became a member of the Council of Europe on 7 October 1993 and it signed, the same day, the ECHR that has been ratified by Law no. 30/1994. The instrument of ratification was deposited on 20 June 1994 and the Convention entered into force the same day. Upon ratification, Romania has formulated a reservation, concerning Article 5 of the Convention – “Right to liberty and security”- stating as follows: “Article 5 of the Convention does not exclude the application by Romania of the provisions of Article 1 of Decree no. 976 of 23 October 1968 regulating the system of military discipline, provided that the period of the deprivation of liberty does not exceed the time-limits specified by the legislation in force”. Article 1 of Decree no.976 of 23 October 1968 stipulates: “For breaches of military discipline provided for in the military regulations, the commanding officers and commanders-in-chief may apply to servicemen the disciplinary sanction of arrest for up to 15 days”.

The Federal Republic of Yugoslavia has not as yet become member of the ECHR. The government appointed an Expert Working Group for examination  of compatibility of Yugoslav legislation with the ECHR. Pursuant  to the Government decision on establishement of the Working group, the Federal Ministry of Justice was to coordinate activities of the Working Group with the Council of Europe. The Final Draft on Compatibility of Yugoslav Law with the Convention was adopted during the Conference in Belgrade, organised by the Federal Ministry of Justice in June 2002.

Status of the Convention in the domestic legal order

Regarding the Status of the Convention in the domestic legal order, the following can be concluded:

All Constitutions examined herein provide for a mechanism of incorporation of the international treaties into the domestic legal order and for their status vis-à-vis the national instruments of law.

In particular:

1. The Constitution of the Republic of Albania of 1998 has been a significant achievement in the process of establishing democracy in Albania and in guaranteeing respect for human rights. Henceforth, the compliance of Albanian laws with international law will have a constitutional base in Article 5 of the Constitution which provides as follows:  "The Republic of Albania applies the international law mandatory for it." The meaning of this statement is laid down in a separate chapter and includes especially the ECHR. In a much more detailed manner than the previous constitutional provisions, the Constitution treats “International Agreements” in an entire, separate chapter (Articles 121, 122, 123), which includes two important principles: that every ratified international agreement is a part of the internal legal system and takes priority over conflicting domestic laws; and that such treaties shall be directly effective except in cases when their provisions are not self-executing and their implementation therefore requires the passing of laws or regulations. According to Article 122 of the Albanian Constitution, the European Convention on Human Rights is fully part of the Albanian domestic legal system.
    
2. Bulgaria has an automatic system of incorporation of international treaties in domestic law, the ECHR is considered as constitutional law. Article 5, para. 4 of the Constitution of Bulgaria stipulates that all international instruments, ratified, promulgated and entered into force in the Republic of Bulgaria, are considered part of the domestic legislation and have priority over those provisions of the domestic law, that contradict them. Consequently, the domestic courts should apply the Convention directly, giving it priority over any domestic legal provisions, which might eventually be contradictory.
    
3. The position and legal effect of the Convention into FYROM’s legal order may be assessed from two points of views: first, from the point of view of Article 118 of the Constitution, which provides that international agreements ratified in accordance with the Constitution are an integral part of the domestic legal order and may not be amended by laws of the FYROM; and second, in the light of Article 8, paragraph 1, item 1, according to which individual human rights and fundamental freedoms recognized in international law and set forth in the Constitution are a fundamental value of its  constitutional order. The first aforementioned article of the Constitution implies that the Convention has a superior status compared to that of other domestic laws, but it has an inferior status to that of the 1991 Constitution. However, following the rationale of Article 8, it could be considered that the Convention has the same legal effect as the Constitution because there is a high level of compliance between these two documents in the area of human rights and freedoms. Even more accurately, the Convention can be regarded as a constitution in a “material sense”.  
    
4. The status of the ECHR in the Romanian domestic law is constitutionally regulated by Article 11 (2) (“the international treaties ratified by the Parliament are part of the domestic law”; this constitutional provision does not exclusively refer to the international treaties in the field of human rights but to all international treaties ratified by the Parliament) and Article 20 (paragraph 1: “The constitutional provisions regarding the rights and freedoms of the citizens shall be interpreted and enforced in compliance with the Universal Declaration of Human Rights, the Covenants and the other treaties Romania is party to”; paragraph 2: “In case of conflict between the covenants and treaties regarding the fundamental human rights Romania is party to and the domestic laws, the international regulations shall prevail”). Thus, the ECHR enjoys legal status superior to the laws and becomes the milestone for the interpretation of the constitutional provisions in the field of human rights. The Romanian Constitutional Court has constantly and explicitly asserted this role.
    
5. The future status of the Convention in the legal system of Serbia and Montenegro will broadly be determined by Article 10 of the Constitutional Charter of the State Union of Serbia and Montenegro according to which international treaties on human rights and minority rights and civil liberties shall be applied directly on the territory of Serbia and Montenegro. According to Article 16 of the Constitutional Charter of the State Union of Serbia and Montenegro, which refers to the supremacy of international law over domestic law. This provision states that ratified international agreements and the generally accepted rules of international law shall have precedence over the law of Serbia and Montenegro and over the law of the member states. This means that the State Union is the final guarantor of the enjoyment of human rights in the country and that the latter shall be responsible towards the international community for respecting and implementing these rights.

Cases brought before the ECHR

Turning now to the Cases brought before the ECHR, “the Court” has not rendered a decision against the Albanian State so far but there are two cases pending for judgment before it.

The issues that give rise to most applications against Bulgaria are related to the lawfulness of detention (mostly under Article 5 para. 3 - judge or other officer), and also to the length of proceedings or in other words to the “reasonable time”, as a criterion for lawful detention (Article 5 para. 3) or as a criterion for a fair trial (Article 6 para. 1). A large portion of the violations found on Bulgarian cases concern the right of appeal on the grounds of unlawfulness of detention under Article 5 para. 4 of ECHR.  An analysis of this type of violations will disclose that some of them derive from legal acts that, at the time the violation took place, were not in conformity with the Convention /”promptly brought before a judge or other officer authorized by law to exercise judicial power”/. The number of complaints under these Articles is expected to decrease with time, as Bulgaria has changed its legislation accordingly. Other violations derive from unlawful acts of state officers, policemen or other officials. The practice is more difficult to change than the legislation. To that end, Bulgaria takes steps to provide education in human rights, awareness raising and dissemination of the decisions of the European Court of Human Rights on Bulgarian cases, etc.

Currently, there are about 150 applications filed against FYROM before the Court in Strasbourg. Out of this number, admissibility decisions have been rendered in two cases, ten applications have been communicated to the respondent Government for observations, and the remaining cases are awaiting decision. Without an intention to be inclusive most of the complaints concern alleged violations of the right to a fair trial and trial within a reasonable time, property rights, freedom of expression, freedom of thought and religion, right to education, ill-treatment by the police, procedural guarantees relating to expulsion of aliens, etc. So far, the Court has rendered one judgment finding no violation of Article 6(1) and (3) of the Convention in the case of Solakov v. Macedonia; the case of Janeva v. Macedonia concerning length of civil proceedings was resolved with a friendly settlement, and three applications were declared inadmissible (Osmani v. Macedonia, Trajkovski v. Macedonia, and Nakov v. Macedonia).   There is no doubt that in the years to come the number of applications filed against Macedonia before the European Court of Human Rights will increase, and its judgments will influence and improve the protection of human rights and freedoms at the national level.  

Since the date of the ratification by Romania of the European Convention, 169 cases have been communicated to the Romanian Government, out of which 103 concerned the issue of immovable properties confiscated during communism. Among these 169 cases: in 42 cases the European Court has rendered judgements against Romania; out of these 42 judgements, 36 concerned the issue of immovable properties confiscated during communism; 29 cases, out of which 28 concerned the issue of immovable properties confiscated during communism, have been stroke out of the Court’s list;10 cases, out of which 4 concerned the issue of immovable properties confiscated during communism, have been declared inadmissible. Among the cases that were communicated to the Romanian Government, 88, out of which 35 concerned the issue of immovable properties confiscated during communism, are still pending.

Compatibility of national orders towards the ECHR

In all states there is more or less a convergence of national (constitutional or legislative measures) with the substantive provisions of the ECHR. In the case of condemnations by the Court of Strasbourg initiatives are taken to treat the discrepancy. In Yugoslavia although in principle substantial and procedural guarantees valid in Serbia and Montenegro are compatible with the international and European standards on human rights protection to a great extent, changes in both Constitutional Acts of Serbia and Montenegro as a guarantee for application of the international standards on human rights will be required when the ECHR comes into effect.

Public awareness at domestic level in relation to ECHR

In Albania, with regard to public awareness of the role and functioning of the European Court of Human Rights, it has to be accepted that this is at a very low level. The small number of applications, which have been deposited to be adjudicated by this court, indicates this. Referring to the different strata of the society, it has to be said that the level of knowledge on the role of the European Court of Human Rights differs between the community of lawyers and public authorities as compared to the broad public. Regardless of the above, the level of awareness to the procedures and decisions of this Court by the Albanian society is low.

In Bulgaria, for several years, the full translation of the text of the decisions of the European Court of Human rights on the Bulgarian cases and their publication on the website of the Ministry of Justice has been practiced. There is an extensive awareness in society of the possibility of filing an application to the European Court of Human Rights as a means to attain redress through a supra-national mechanism. Publications in the general press, commenting on the European Court of Human Rights’ decisions by briefly presenting the facts of the case, the decision of the Court and its reasoning, are not a rare occurrence. The experts in the competent directorates at the Ministry of Justice and the Ministry of Foreign Affairs are prepared to inform people, who have exhausted the domestic remedies and want to bring the case to Strasbourg, of the address and web-site of the Court. We also refer such people to a non-governmental organization – Bulgarian lawyers for Human Rights or the Bulgarian Helsinki Committee, who might take a closer look at their case. The web-site of the Court has been distributed through a circular letter to all courts in Bulgaria. In the framework of the National Strategy for Reform of the Judiciary, extensive provision of computer facilities to all courts all over the country has been planned. The financial means for this project are ensured by the pre-accession funds under the PHARE programme for 2002.  Furthermore, According to the amendments to the Law on the Judiciary of July 2002, as in force since 1.01.2003 (Article 35g), the newly appointed judges will pass a mandatory training course with a duration of 1 year at the National Institute of Justice, where they will also receive training on the European Convention of Human Rights. The National Institute of Justice will be established in place of the National Magistrate Training Centre, initially funded through a Council of Europe project. Training at the National Institute of Justice is planned to gradually encompass all judges from all over the country (in one-month or three-month courses).

The relatively high number of judgments against Romanian as well as the high number of cases brought against Romania suggests a high level of public awareness at domestic level in relation to the Convention. However, in our opinion, the conclusion needs to be more nuanced. If one thinks that more than 50% of all cases against Romania as well as more than 80% of all judgments deal with the same legal issue, namely the problem of immovable property confiscated during communism, than the whole picture changes. The conclusion should rather state that both the population at large and the legal practitioners are aware of the existence of the European Convention and think of the European Court as a forth instance court. However, none of these categories is fully aware of the provisions of the Convention or of the judicial mechanism in order to bring a case before the Strasbourg Court (most of the times, confused with the Hague Court). This state of facts accounts for the significant shortcomings in the legislation – part of which have been presented in this paper – which are not reflected in the cases brought before the European Court. It is equally worth noting that, until recently, few lawyers really knew the case law of the Court and took cases to Strasbourg. It is significant in this respect that most Romanian applicants went to Strasbourg on their own, without legal representation. Nowadays however, there seems to be a trend among legal practitioners to put some more emphasis on the European human rights standard. As far as the media is concerned, the issue of the judgments against Romania was very much present on the front page of the newspapers and in the 8 o’clock news of most television channels.

Level of compliance of national public authorities with the decisions of ECHR

Concerning this issue, we think that we shouldn’t provide a premature judgment, since the Court of Strasbourg has not rendered any decision against the Albanian state yet. However, we think that in the event of decisions made by this Court against our State, they would be fully implemented by the public authorities. Considering, however, that their legislation is new and in a dynamic process of amendments, it is difficult to point out the changes as a result of the decisions of the Court of Strasbourg. We think that aiming at the approximation of their legislation with that of the European Union, changes are simultaneously made, which stem from the judicial decisions of the Court of Strasbourg.

The work required to achieve the objective of harmonization of domestic legislation with the provisions of ECHR has been colossal. Important developments in the legal and social fields were reflected in the process of drafting and approving the new Constitution of the Republic of Albania. In particular, In conformity with Article 5 of the Convention on the right to liberty and security, the Constitution and the Code of Criminal Procedure clearly and accurately determine the cases when the liberty of the person may be limited as well as the conditions and criteria of deciding the measures of security in general and of arrest in particular. Moreover, as regards with the meaning of ‘family life’, referring to the term of marriage, Albanian legislation foresees marriage as an conduct of persons belonging to different sexes. Put differently, Albanian law does not recognize marriage of persons belonging to the same sex.

As regards with specific substantial rights in FYROM, constitutional provisions oblige the state institutions to protect the right to life of Macedonian citizens in all circumstances and under all conditions. In other words, the Constitution prohibits the deliberate deprivation of a citizen’s life both in peaceful times and during states of war or emergency. Under the Constitution, the physical and moral integrity of the person has to be respected in all circumstances both by state bodies responsible for policing, and individual citizens. The Constitution protects the citizen from any form of mistreatment, whether free, detained or in prison. The citizen is also protected from any form of mistreatment during peaceful demonstrations without the involvement of force or violence. The citizen is also protected from the violent behaviour of individuals on the street or in any other place. As regards with the conditions of detention, Macedonian constitutional provisions on detention have two crucial weaknesses: (1) there is no obligation to regulate police procedure by law, and (2) the period of detention is rather short and inadequate for the protection of the rights of those who have suffered loss or damage or those persons indicted in criminal proceedings. In connection with the right to ownership of property there remains the problem of the yet incomplete process of restitution in the FYROM. The draft on the Restitution Act was in the Parliament for some time before it was passed on April 22, 1998. However, the Constitutional Court rescinded several of its key provisions in 1999. A short while later the Act was amended by new provisions, which raised the right to ownership of property to a higher level than the right of occupancy. The implementation of the Act has been very slow owing to general poverty and the limited financial resources of the Macedonian state.

Although the status of the Convention in the legal system of the State Union of Serbia and Montenegro could only be referred to as the future status, it is obvious that the Charter provides for a new solution on the implementation of international treaties in our legal order in comparison to the solution given in the former Federal Constitution of the FRY, according to which international treaties ratified and published in accordance with the Constitution and generally accepted rules of international law formed part of the internal legal system. As regards with the protection of substantive rights, it is to be sait that ECHR has adopted an autonomous definition of the term of »family life«, which it concludes from a combination of different considerations. Personal and ‘family’ relationships, which don't fall within this definition, are classified as ‘private life’. A detailed account of the Union and State law regulating public and private relationships in family life are represented by the regulations for the taking of children into public care, by the enforcement of contact orders (between children and parents) and by provisions concerning domestic (home) violence. The right to express sexual orientation is not explicitly recognized in the legal system of Serbia and Montenegro. The Draft Constitution of Serbia, drawn by the Belgrade Centre for Human Rights, as well as the Draft Anti-discrimination Act, drawn up at the Institute of Comparative Law in Belgrade, propose recognition of the right to express sexual orientation as a human right. Finally, according to Serbian law freedom of expression is a very broad concept under Article 10 of the Convention. However, public officials are entitled to be protected from offensive and abusive verbal attacks in the performance of their duties (except where the remarks form part of an open discussion on matters of public concern or involve freedom of the press).

Influence of the Court’s case law on domestic case law