Romanian comments [as of 28 January 2010]

Draft Declaration
Romania is grateful to the Swiss presidency for the revised draft of the Interlaken
Declaration, circulated on the 13th of January, 2010.
Romania wishes to express its gratitude for the work done and for taking into account
some of our comments. Still, taking into account the need for clarity in assuming commitments
and for focus on the issues which should be emphasized in the future declaration - the strong
commitment of the States Parties to the Court and the Conventional system; the general
directions of the reform envisaged; the timetable for the adoption of the relevant measures, we
suggest some concrete comments and amendments to the present revised draft declaration, which
we hope will be fully taken into account in preparing the final version of this document:

Preamble paragraph 8 of the Revised Draft Declaration

Taking into account that the large number of applications submitted to the Court is a sign of
concern for the optimal functioning of the mechanism, but also a sign of trust and confidence
shown by the individuals under the jurisdiction of States Parties and that picturing the situation
as a “circumstance capable of causing serious damage … and a threat” could send the wrong
signal to individuals that have become more conscientious on their fundamental rights and on
measures to protect them, Romania suggests rewording this paragraph,

“Considering that this situation causes serious damage to the effectiveness and credibility
of the Convention and its supervisory machinery, generates an urgent need to introduce
certain additional procedures to the Convention in order to maintain and improve the
efficiency of its control system for the long term, as well as to assure the quality and the
coherence of the case-law and the authority of the Court, and that it represents a threat to
the judicial protection mechanism;”

The suggested wording is inspired by the one used in the Preamble of Protocol 14.

4th operative paragraph of the Revised Draft Declaration

Romania is reaffirming its suggestion to separate the two components of the phrase into two
elements of the operative part:
“
• Stress the need for effective measures to reduce the number of clearly inadmissible
applications, the need for effective filtering of applications;
• Stress the need to find solutions for dealing with repetitive applications;…”

Justification: The wording, read in conjunction with paragraph 7 of the Action Plan, suggests
that the same mechanism is to be applied to admissibility exam of the applications and to the
adjudication of repetitive ones. However, the essential difference between the two categories of
applications - the repetitive ones are admissible applications, but referring to a question of
respect of human rights already adjudicated by the Court in a pilot judgment – must be respected
and maintained, in order not to affect the exercise of the right of individual petition. Moreover,
the role of the filtering mechanism is to asses the admissibility of individual applications, and in
order not to create confusions, its role - filter -should be reflected in its attributions.
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Former operative paragraph 7 of the initial Declaration, now deleted

Romania welcomes and strongly supports this revised wording of the operative part of the
Declaration, as it underlines the need for efficient use of measures, methods and mechanisms
already existent shows a possible discrepancy between the Declaration and the Action Plan. The
possible revision of the execution system could only be an eventual step, subsidiary to the
assessment of the whole structure and the unlikely conclusion that no relevant efficiency gains
exist.

7th element of the operative part of the Declaration

Romania proposes the rewording of this element:

“
• Stress the need to simplify the procedure for reforming the organizational aspects of the
judicial machinery of the Convention; …”

Justification: We consider that a simplified procedure to amend the Convention may be

envisaged exclusively for organizational, not procedural issues. While recognizing the benefits
of a more rapid amendment of the organizational aspects of the Court, the essential procedural
issues should remain governed by the amendment regime that involved the Parties to the
Convention.

Para 2 of the Action Plan

Romania welcomes and supports the revised wording of this paragraph, as we consider that the
Committee of Ministers should be vested with the power to analyze and decide if and what
measures are suitable and beneficial for the efficiency of the control system.

Para 3 of the Action Plan

Romania welcomes and supports the revised wording of this paragraph, as it underlines the fact
that an effective protection of the right of individual petition is the primary goal of State Parties
and that the list contained in the paragraph is exemplificative and that not all measures
enumerated within will be implemented.

Para 5 of the Action Plan

We welcome and support the new wording, as it emphasizes the option of recourse to existing
accompanying mechanisms, especially as the can offer support and have already shown their
availability in assisting State Parties.

Para 6 letter d) of the Action Plan

Romania welcomes the revised wording of this paragraph. If, after detailed examination, the
Committee of Ministers would arrive to the conclusion that such a filtering mechanism is able to
contribute to a more efficient performance of the control system, Romania would support such a
measure. Still, this mechanism should conserve the characteristics of independence and
impartiality that characterize the present system and that represent the foundation of the Court’s
success and credibility.

Therefore, we opt for the following wording of this letter:

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d) calls upon the Committee of Ministers to consider, in the long term, the setting up of a
filtering mechanism within the Court going beyond the single judge procedure, including,
in particular, a new, separate body of judges within the Court, and the discharge of certain
judicial powers by members of the Registry under the control of the Court;

Paragraph 7 letter c), second bullet, of the Action Plan

Romania proposes the following wording:

• whether repetitive cases should be handled by a new category of judges

responsible for filtering (see above Section C);

Justification: As shown in the explanations under Operative paragraph 4 of the Revised

Declaration, using a single filtering mechanism or procedure for the repetitive and inadmissible
applications would erase the differences between the two categories. This would be detrimental
to the former category, as in reality the repetitive cases are in principle meritorious and not
inadmissible ones.

• how best to bring about a cooperative approach including all relevant parts of the
Council of Europe such as the Commissioner for Human Rights, the Venice
Commission and the Secretariat in order to present possible options to a country
required to remedy a structural problem in a judgment.

Para 9 of the Action Plan

Romania welcomes the partial rewording of this paragraph, in particular the clarifications
concerning the application of the de minimis principle. Still, Romania considers that more
rewording is necessary, as follows:

“9. The Conference, acknowledging the shared responsibility between the Court and the
States, stresses that the Court:

a) is not a fourth instance court that should reconsider questions of fact or national law that
have been considered and decided by national authorities;

b) a) should apply admissibility criteria rigorously and should take into account its
subsidiary role in the application and interpretation of the Convention the role of the Court
is to ensure the observance of the engagements undertaken by the High Contracting Parties
to the Convention; …”

Justification: Constantly, the Court and the States parties affirmed that the ECHR does not
represent a forth level of jurisdiction, the recollection of the role and scope of the Court, which
are unambiguously described in the Convention, seeming redundant. On the other hand, the
clear-cut indication of the obligation to rigorously implement the admissibility criteria might be
perceived as an unacceptable interference by states in the area of the decisional power of the
Court, a more lenient wording being preferable.

Para 11 of the Action Plan

Romania proposes the following wording:

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“In this context, the Conference expresses its support for the constant preoccupation of the
Committee of Ministers to develop and render more effective its means and working
methods in the execution phase and stresses the urgent need for the Committee:

…”

Justification: While para. 11 in its present form stresses the genuine need to render the CM
working methods more efficient, one should not overlook the efforts which have already been
made by the Committee to better manage the execution process, e.g through drafting working
methods or imposing action plans. In this context, the assertion that the working methods need to
be revised would be a premature one while no assessment of their efficiency seems to be
envisaged and the continuity of the process is not underscored.

Para 12 of the Action Plan

Romania suggests the deletion of the term “procedural”, while maintaining the remaining text:

“The Conference calls upon the Committee of Ministers to examine, by means of an

amending Protocol, the possibility of introducing a simplified procedure for any future
amendment of certain provisions of the Convention relating to organizational or procedural
issues.

Justification: We reiterate that a simplified procedure to amend the Convention may be

envisaged exclusively for organizational, not procedural issues. Also, upholding of the reference
to the Statute of the Court is justified provided that this possible instrument is perceived as an
international treaty or as a part of it, like in the case of other international jurisdictions (e.g. ICJ).