FACIAS CASE
FACIAS indicated that state institutions in Romania do not follow ECHR decisions.
In 1998, a Romanian family established a humanitarian foundation with relatives from the United States with the primary goal of bringing and providing aid to impoverished families in Romania. The foundation brought from abroad various products (clothes, footwear, food, household appliances, books, toys, and so on), which were collected by Romanians in the United States and delivered to poor families in Romania.
Such a shipment, which came at the port of Constanța in the form of container HCLU 403457-7 in the spring of 1999, was blocked in Constanța by the authorities without explanation, forcing the foundation's representatives to pay for stationing in the port (over $ 300) The container was later delivered to the "February 16" Station in Bucharest, and the owners were summoned before a Commission made up of representatives from the I.G.P., the General Directorate of Customs, and the North Station Constanța who informed them that the container needed to be checked but did not specify why. The owners, who were honest individuals, accepted, and the products were thoroughly checked. The container was refilled, sealed, and confiscated by authorities after nothing was discovered to be wrong. The owners have not received a "Clearance by customs" or any explanation for the confiscation. In this situation, the container was parked on the railway and handed over to the CFR Cargo administration without explanation. The contents of the confiscated container were relocated to three other CFR containers over the course of many months. Only after 10 months did the owners obtain a report of "Confiscation of the goods," which did not include any explanation for this procedure.
17 years of waiting for the restoration of damage caused by the Romanian state.
Deposed of their own property, the owners filed complaints against the authorities involved in this series of illegalities before suing the General Directorate of Customs and CFR Cargo. The trial lasted almost a year, during which the owners were unable to track the status of the confiscated property. The action filed by the foundation's representatives was dismissed by the court of first instance as unjustified. An appeal was filed against that verdict, arguing that the seized property was being plundered by the State. The Bucharest Tribunal dismissed the foundation representatives' appeal under civil decision number. 108 / A. On 28.11.2001, the Bucharest Court of Appeal admitted the foundation's action and collectively obliged the General Directorate of Customs within the Ministry of Finance as well as SN CFR S.A. upon the return of the abusively confiscated container and, if it is no longer possible to return it, then they will refund its equivalent value, respectively the amount of 70,000 dollars, the decision being final.
The General Prosecutor of Romania declared an appeal for annulment against the final decision of the Bucharest Court of Appeal on November 28, 2001, and on May 30, 2003, the Supreme Court of Justice admitted the appeal for annulment and invalidated the final decision, thus rejecting the restitution foundation's action.
Meanwhile, the General Directorate of Customs' legal obligations in this matter have been taken up by the Ministry of Finance, via the National Agency for Fiscal Administration.
Although justice should be a factor of balance and social stability in a state regulated by the rule of law, the decision has not been enforced by state officials and is insufficient to be taken seriously by the institutions obligated to compensate the owners. Even a foreclosure strategy, devised in 2002, had little impact on CFR Cargo or ANAF.
Is it possible to avoid ECHR decisions as a public institution in Romania?
The foundation's representatives submitted a request to the ECHR, claiming that by quashing their final decisions following the General Prosecutor of Romania's declaration of annulment, they violated art. 6 of the Convention and art. 1 of Protocol 1 to the Convention, which states:
Article 6
"Everyone has the right, in complete equality, to a fair and public hearing in front of an independent and impartial tribunal in the determination of his rights and obligations, as well as any criminal charge brought against him."
Protocol No. 1 Article 1
"Every natural or legal person has the right to have his or her property respected. No one's possessions shall be taken from someone except in the public interest and under the conditions defined by law and the general principles of international law."
After a lengthy trial, the ECHR granted the request on September 25, 2012, and reiterated that the right to a fair trial before a court, as guaranteed by Articles 6 and 1 of the Convention, must be interpreted in light of the Convention, whose relevant provisions provide that the rule of law is the principle of legal certainty, which implies, among other things, that once the courts have issued a final ruling, their judgment should no longer be questioned and changed. (Case Brumărescu vs. Romania).
In this case, late enforcement of a judgment infringes the right to a fair trial and the right to property, so the European Court of Justice has determined unequivocally and legally that the respondent State must pay the interested party.
But not even the ECHR judgement in this instance had the power to hold any of the institutions involved accountable for repaying anyone who had been damaged. The applicants filed yet another appeal against the enforcement procedure. In response, ANAF indicated that it had noted the establishment of seizures in the enforcement file, but that it did not have these amounts in its account at the time. Furthermore, the National Railway Company "CFR" SA requested that the enforcement action be terminated because it was not a participant to the litigations in which the decisions were enforceable, but rather the National Railway Freight Company "CFR CARGO” SA.
Thus, despite 17 years of court processes, penalties, enforcement proceedings, and an ECHR judgement condemning Romania, the foundation's representatives were not reimbursed for the damage, a delay caused by the authorities.
FACIAS draws attention to the fact that by failing to implement the corresponding sanctions, the Romanian state encourages its institutions to be abusive to Romanian individuals. The disproportionate extension of the term for the execution of final and irrevocable court decisions infringes these fundamental rights, as the European Court of Human Rights has frequently ruled. The right to a court would be meaningless if a Contracting State's legal order allowed a final and irrevocable ruling to be considered obsolete to the prejudice of a party.
Thus, the Romanian state institutions cannot benefit from a privileged status before the law and must assume and respect their obligations resulting from an act of justice, especially when it is supported by an ECHR decision.