Changes in the Payment of Damages Awarded by the European Court of Human Rights (ECHR)

Under Emergency Ordinance 106 of November 23, 2023 (published in the Official Gazette No. 1065 on November 24, 2023), the Government has implemented measures aimed at ensuring the enforcement of payment obligations arising from judgments of the European Court of Human Rights (ECHR).

Where's the money?

The measure comes in response to repeated convictions and decisions of the Committee of Ministers of the Council of Europe on March 3-5, 2018, June 4-6, 2019, December 3-5, 2019, and March 3-5, 2020, establishing that authorities must ensure the prompt payment of amounts owed to applicants, as indicated by the judgments of the European Court of Human Rights (ECHR).

Extending payment obligations

• Payment obligations will be encompassed within equitable satisfaction. This includes the amounts determined by the ECHR for material and moral damages, as well as legal costs.

• Equitable satisfaction payments will be included in budget planning: the amounts required for equitable satisfaction, as determined by ECHR judgments, and those needed for payments resulting from settlements or unilateral declarations by the Government are provided for in the state budget law and adjustment laws, falling under the budget of the Ministry of Finance.

• Equitable satisfaction payments can also be made based on the unilateral declaration of the Government (i.e., a friendly settlement method allowing the resolution of a case based on an individual application against the Romanian state).

The above provisions have been introduced by amending Article 10 of Ordinance no. 94 of August 30, 1999, regarding Romania's participation in proceedings before the European Court of Human Rights and the Committee of Ministers of the Council of Europe and the exercise of the state's right of recourse following judgments and friendly settlement conventions.

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Procedure for settling debts of state-owned companies in bankruptcy or liquidation

Government Emergency Ordinance (GEO) 106/2023 introduces a procedure allowing the state to assume the debts of state-owned companies undergoing bankruptcy proceedings or already dissolved.

Accordingly, amounts established by domestic and/or arbitral court decisions against state-owned companies undergoing bankruptcy or already dissolved, whose execution must be ensured by the Romanian state, will be paid without recourse, based on the written order of the Minister of Foreign Affairs. This order specifies the payment obligation and the method of calculating interest (where not already provided in the court decision).

Preparation of an extrajudicial technical expertise

The primary payment obligation and interest are determined through extrajudicial technical expertise in cases where they are not established by domestic/arbitral court decisions, and no calculation method is determined.

The Ministry of Finance will procure the services of a judicial technical expert, who will be provided with all necessary documents, either automatically or upon request. The Ministry of Foreign Affairs will verify the factual situation in the expert report and approve it from the perspective of fulfilling the ECHR judgment. Payment of the amount determined in the expert report is carried out by the Ministry of Finance based on the written order of the Minister of Foreign Affairs.

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Background

Romania, as a member of the Council of Europe, is subject to the judicial oversight of the European Court of Human Rights (ECHR). In recent years, the country has been the subject of numerous convictions at the ECHR, indicating persistent issues in its judicial system and the respect for human rights.

After joining the European Union in 2007, Romania committed to upholding European standards regarding justice and human rights. However, numerous cases have been brought before the ECHR, accusing Romania of violating fundamental rights. The most common causes of Romania's convictions at the ECHR include:

• excessive duration of judicial proceedings: a recurring issue in the Romanian judicial system is the excessive length of legal proceedings. The European Court of Human Rights (ECHR) has condemned Romania in multiple cases for failing to uphold the right to a fair trial within a reasonable timeframe.

• inhumane detention conditions: conditions in Romanian prisons have frequently been criticized for their inhumane and degrading nature. The ECHR has issued condemnations in cases related to the inadequate treatment of detainees, emphasizing the need for improvements in prison conditions.

• violation of press freedom: Romania has often been accused of attempting to control and influence the mass media. These allegations have led to convictions at the ECHR, underscoring the importance of media independence in a democratic society.