ECHR decision of 24 March 2020 in the case "Cegolea V. Romania" (aplication N 25560/13).
in 2013, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to Romania.
The case successfully dealt with an aplication that the applicant, who is the Chairman of a Foundation representing the Italian minority in Romania, was in a less favorable position than the current candidate representing the Italian national minority in the country (who belonged to another organization), since he was not required to comply with any of the formalities in order to participate in the re-election. The case violated the requirements of article 14 of the Convention for the protection of human rights and fundamental freedoms.
There are a number of seats reserved for members of national minorities in the Romanian Parliament. They are exempt from meeting the electoral requirements applicable to political parties.
The applicant, the chair of a Foundation representing the Italian minority in the country, wanted to run for the parliamentary elections in December 2012 on behalf of the Foundation she headed.
In may 2012, the applicant applied to the Romanian Government to have her Foundation granted charitable status. The General Secretariat of the government of Romania sent the applicant's application for consideration simultaneously to two administrative authorities: the Department of interethnic relations and the Ministry of culture of Romania.
In June 2012, the Department of interethnic relations rejected the applicant's request on the grounds that the Foundation's activities did not relate to these relationships.
In July 2012, an amendment to the law on associations and foundations came into force, which provided for stricter conditions for granting charitable status to an organization.
In October 2012, the Central election Commission refused to register the applicant as a candidate for the election, since the Foundation she headed was not a charity. The applicant filed a complaint against this decision, which was rejected in the same month. At the end of the month, the deadline for candidates to submit applications for participation in the parliamentary elections expired.
After the election, the Romanian Ministry of culture informed the applicant that, although at the time of submitting the application, the Foundation she headed met the necessary criteria, it did not meet the new criteria introduced by the above-mentioned amendment to Romanian legislation.
The applicant claimed that she was in a less favorable position than the current candidate representing the Italian national minority in the country (who belonged to a different organization), since he was not required to comply with any of the formalities in order to participate in the re-election.
POINT OF LAW
Concerning compliance with article 14 of the Convention in relation to article 3 of Protocol No. 1 to the Convention. Unlike organizations that already had representatives in Parliament, the Foundation of which the applicant was a member had to be granted charitable status in order for the applicant to participate in parliamentary elections on behalf of the organization.
The present case should be distinguished from the case of Danis and the Association of ethnic Turks V. Romania (Judgment of the European Court of justice of 21 April 2015, complaint N 16632/09) in respect of only one formal aspect, namely the legal limits on the conditions for obtaining charitable status for an organization, since these conditions were changed in 2012. In this regard, the conclusions reached by the European Court of justice in the above-mentioned case regarding the existence of a two-step system for approving candidates from national minorities continued to apply. In contrast to the above-mentioned judgment Of the European Court of justice in the case of Danis and the Association of ethnic Turks V. Romania, the applicant in the present case did not suddenly learn of the new condition. Consequently, the court should have clarified whether the procedure for granting charitable status to an organization regulated by the relevant legislative amendments was transparent and not arbitrary, and whether the applicant had a proper opportunity to appeal to the court against the rejection of her application.
About the decision-making authority. According to Romanian law, the right to grant charitable status to an organization belonged to the "government of Romania", i.e. the Executive power. However, the General Secretariat of the government of Romania sent the applicant's application to two different administrative bodies, which considered the application in different ways.
About the time frame for providing a response. Romanian law set a time limit (60 and 90 days, respectively) within which the authorized administrative authorities, and then the government, had to consider the application. Whether these terms were significant or binding was not clarified during the course of the court's consideration of the present complaint. However, this was an important issue in the present case, since the decision to grant the organization the status of "charitable" had to be obtained before the deadline for submission of documents by participants in the parliamentary elections. Although the applicant received a response from The Department of inter-ethnic relations before the deadline for submitting documents, she received a response from the Romanian Ministry of culture only after the election.
About the criteria. The responses received by the applicant from the two administrative authorities differed. The grounds for refusal given by the Department of interethnic relations seemed to suggest that the applicant had failed to comply with the legal requirements (even before they were amended). For its part, the Ministry of culture of Romania expressed the view that the applicant's Fund met all the conditions in force at the time of filing the application, but it was considered in accordance with the amended requirements, which the Fund did not meet. Furthermore, the Ministry of culture does not appear to have given the applicant the opportunity to correct her original application in accordance with the new legal criteria.
About the status of responses. Romanian law stipulated that the administrative authority had to give the applicant a "reasoned response "within 30 days from the date of the"decision". However, in the present case, the General Secretariat of the government of Romania requested that the Department of inter-ethnic relations and the Ministry of culture of Romania submit their "opinions". This information was not sufficient to determine with certainty whether these conclusions were preparatory in nature or were full-fledged administrative decisions. However, the responses received from the Department of interethnic relations and the Ministry of culture of Romania marked the end of the administrative procedure in this case, since, unlike in cases where the authorized administrative body proposed to assign the status of charity to the requesting organization, in situations where the application was rejected, the law did not provide for sending the request from the organization back to the government of Romania for a formal decision.
About legal proceedings. In view of the following factors, the applicant did not have an effective remedy for responses from the Department of inter-ethnic relations or the Ministry of culture of Romania.
Regarding the limits of discretion of the Executive authorities. According to the case-law of the High court of cassation and justice (the Supreme court of Romania), the Executive authority retained the right to refuse to grant charitable status to an organization, even if the organization met all the requirements stipulated by law. In other words, the final decision was made based on practical expediency, not legal criteria. Consequently, any judicial review of the decision of The Department of interethnic relations would be limited to determining whether the requesting Foundation met the legal requirements for obtaining charitable status, and the courts would not have the right to grant such status to the Foundation, even if they decided that the organization could obtain this status.
For not being able to file a complaint in due time. Since the applicant was notified of the response of the Romanian Ministry of culture only after the last election, an appeal against this decision would not have been able to correct the circumstances complained of by the applicant in such a time as to allow her to submit documents for participation in the election.
In view of the shortcomings regarding the possibility of judicial review, which did not provide sufficient guarantees against arbitrariness, and despite the wide margin of discretion granted to the state in this regard, the difference in treatment compared to organizations of national minorities already represented in the Romanian Parliament was not sufficiently justified in relation to the stated legitimate goal, namely, to ensure that these organizations were properly represented and to encourage only genuinely interested candidates to participate in elections.
The case violated the requirements of article 14 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court held that the finding of a violation of the Convention would in itself constitute sufficient just compensation for non-pecuniary damage, and the claim for compensation for pecuniary damage was rejected.