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EUROPEAN COURT: Bivolaru and Moldovan v. France: A new challenge for the EU?

Bivolaru and Moldovan v. France: A new challenge for mutual trust in the European Union?

By William Julié, founding partner of William Julié Law Office and international criminal law officer at the International Bar Association, and Juliette Fauvarque, trainee lawyer at William Julié Law Office.

Strasbourg Observers (22.06.2021) – https://bit.ly/3gZftxE – In the recent Bivolaru and Moldovan v. France case, the European Court of Human Rights (ECtHR) handed a landmark judgment in relation to the execution of European arrest warrants (EAWs) between Member States of the European Union (EU) and the equivalent protection doctrine. For the first time, the ECtHR decided that the execution of an EAW violated Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture, inhumane and degrading treatment. As we shall see, this case sends a clear warning to all European judges – national or supranational – that the execution of EAWs is subject to the ECtHR’s jurisdiction.

Under the doctrine of equivalent protection, also known as the ‘Bosphoruspresumption (by reference to the case in which it was first established by the Court), States Parties to the ECHR are presumed to have abided by their obligations under the Convention when applying EU law. This presumption was established by the ECtHR in consideration of the fact that the EU, as an international organization, offers substantive guarantees in the protection of fundamental rights under the Charter of Fundamental Rights, general principles of EU law and the case law of the Court of Justice of the European Union (CJEU).

Two applications were joined in this case. Both concerned French decisions granting the execution of EAWs issued by the Romanian authorities against Romanian nationals for the purpose of serving a custodial sentence. The joinder of these two cases nevertheless resulted in different verdicts, as the Court found a violation of Article 3 in respect of one of the applicants, and no violation in respect of the other.

Facts

The first applicant, Mr. Codrut Moldovan, was convicted by a Romanian court to seven years and six months imprisonment for crimes of human trafficking committed in France and Romania. A European arrest warrant was subsequently issued by the Romanian authorities. With references to the case law of the CJEU and the ECtHR, Mr. Moldovan argued that his surrender to Romania would lead him to endure conditions of detention contrary to Article 3 of the ECHR. The Romanian issuing authority assured the French executing authority that Mr. Moldovan would be detained in conditions compatible with Article 3. These assurances were found sufficient by the Court of Appeal of Riom, which granted execution of the EAW. This decision was then upheld by the French Court of Cassation.

The second applicant, Mr. Gregorian Bivolaru, was convicted in absentia by a Romanian court in 2013 to a term of six years imprisonment on counts of sexual offences against a minor. During investigations, the defendant had fled to Sweden and been the subject of first extradition proceedings for the purpose of being tried in Romania. The Swedish Supreme Court denied his extradition on the ground that he would face persecution in Romania based on his religious beliefs and his activities as leader of the ‘movement for spiritual integration into the absolute’. The Swedish authorities subsequently granted Mr. Bivolaru the status of refugee under the Geneva Convention. After his conviction, the applicant was arrested in France pursuant to a Romanian EAW issued for the purpose of serving his sentence. He argued before the Paris Court of Appeal that his refugee status barred his surrender to Romania. He also claimed that he would be subject to inhuman and degrading detention conditions in Romania. The Paris Court of Appeal, having sought further information from Swedish authorities, concluded that the applicant’s refugee status did not constitute an obstacle to the execution of the EAW, as Romania had, since then, acceded to the EU. Besides, this argument fell outside the grounds of non-execution of EAWs, which are exhaustively listed in the EAW Framework Decision. Furthermore, the allegations made by the applicant were considered too vague to create a grave risk that he would be subject to inhuman conditions of detention if surrendered. Consequently, the French Court of Appeal granted the execution of the EAW, and that decision was upheld by the Court of Cassation.

Mr. Moldovan and Mr. Bivolaru decided to challenge the decisions against them before the ECtHR on the ground that their surrender to Romania would violate the prohibition of inhuman and degrading treatment under Article 3. In substance, the applicants were alleging that the execution by a Member State of its obligations under the law of the EU constituted a violation of the ECHR – a situation likely to create a conflict of norms between EU law and the ECHR.

Read the FULL article at https://strasbourgobservers.com/category/by-topic/article-3/

HRWF Comment

In 2013, HRWF investigated the Bivolaru case in Romania itself and interviewed his alleged minor victim of sexual abuse in the presence of her husband. The concerned minor told HRWF that she was interrogated for 13 hours without the help of a lawyer and outside the presence of her parents. She was forced to write a statement that was afterwards misused to give her the status of injured party – first without her knowledge and afterwards against her will – and to incriminate Gregorian Bivolaru. Despite the fact that with the help of a lawyer she retracted her statement the next morning, the case was channelled through irreversible judicial proceedings. Later on, Gregorian Bivolaru was accused of alleged illegal border crossing attempt.

See HRWF Report here: https://bit.ly/2SpK53q

See as well HRWF’s judicial monitoring of the Bivolaru case in the framework of HRWF research on the implementation of the European Arrest Warrant between Romania and other EU countries: https://hrwf.eu/wp-content/uploads/2019/03/Romania.pdf

Photo: European Court in Strasbourg

Further reading about FORB in France on HRWF website





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EUROPEAN COURT / ROMANIA : LGBTI – Lack of proper legal framework, Strasbourg says

LGBTI rights groups welcome judgement finding Romania in violation of the European Convention on Human Rights because of a lack of proper legal framework for legal gender recognition

ILGA Europe (19.01.2021) – https://bit.ly/39BzKqO – Romania has been found to be in violation of the European Convention on Human Rights because its authorities present transgender people with an impossible dilemma.

LGBTI rights organisations, ILGA-Europe and Transgender Europe (TGEU) have welcomed today’s judgment in the cases of X and Y v Romania, the European Court of Human Rights (ECtHR) found a violation of Article 8 of the European Convention, in that Romania lacked a clear and foreseeable legal framework for the legal gender recognition. The Court’s judgment was informed by a third-party intervention submitted jointly by ILGA-Europe and TGEU.

 

The applicants in the case, Mr. X and Mr. Y, spent years in the national courts requesting the authorisation for gender reassignment from female to male and an administrative change of forename and personal digital identity code, and other necessary changes in the civil-status register indicating the applicant’s new forename and male gender. The relevant administrative corrections were refused on the grounds that persons making such requests had to provide proof that they had undergone gender reassignment surgery.

 

While Applicant X was able to obtain male forenames by deed poll in the UK in 2015, he continued suffering constant inconvenience owing to the mismatch between the female identifiers on the papers issued by the Romanian authorities and the male identifiers on the various documents he had obtained in the United Kingdom. While waiting for a decision from the European Court, Applicant Y felt compelled to undergo various surgeries in order to be able to make the necessary alterations to his civil-status records and have a new birth certificate issued.

 

The ECtHR observed that the lack of procedure and unreasonable requirements by the national courts had presented both applicants with an impossible dilemma: either they were forced to undergo the surgery, contrary to their right to respect for their physical integrity, or they had to forego recognition of their gender identity, which also came within the scope of respect for private life.

 

ECtHR finding

The Court found a violation of ECHR Article 8 in that Romania lacked a clear and foreseeable legal framework for legal gender recognition. The Court recalled recommendations by the Committee of Ministers and the Parliamentary Assembly of the Council of Europe, as well as the United Nations High Commissioner for Human Rights and the UN Independent Expert on SOGI calling on States to adopt procedures allowing persons to have their name and gender changed on official documents in a quick, transparent and accessible manner.

 

The Court also found that the State failed to provide fair balance between the general interest and the individual interests of the persons concerned.

 

Unfortunately, the Court did not address Article 14 claims on non-discrimination based on gender identity that affects the applicants, and thus did not clearly condemn any surgery requirements in legal gender recognition procedures as discriminatory.

 

Romania’s ACCEPT association estimates that around 120,000 transgender people live in the country, while less than 50 have managed to change their civil status documents in the last 20 years.

 

According Patrick Brăila, co-president of ACCEPT: “Gender identity is an inner feeling and a deeply private one, which must be ascertained by the civil status authority on the basis of the trans person’s statement, without being required to provide medical evidence, the testimonies of others, or worse, to be forced to undergo surgery on the genitals that the person in question either does not want or that are impossible to have in our country, due to the absence of specialists in the field. These interventions cost over €50,000 in foreign countries. We therefore request the Government of Romania, which has the obligation to implement this decision, to develop in collaboration with the ACCEPT Association and the transgender community in Romania, a simplified administrative procedure that allows the modification of identity documents of trans persons, respecting their dignity and personal autonomy and their right to self-determination.”

 

Welcoming the judgement, Antonella Lerca, member of the TGEU Board said: “Transgender people in Romania are very excited about the news from the European Court of Human Rights. We have been waiting for a long time to hear this, particularly those at the margins. Trans sex workers, poor and homeless trans people, have been rejected by society and been trampled on by the State. We call upon the Romanian state to respect its obligations and immediately introduce a legal gender recognition procedure that is quick, transparent, and accessible and based on self-determination.”

 

Head of Litigation at ILGA-Europe, Arpi Avetisyan added: “We welcome this judgment as it reiterates the need for establishment of a clear legal framework for the legal gender recognition without any requirements violating the right to privacy and bodily integrity in Council of Europe Member States. Putting trans people in a dilemma of choosing between having their physical integrity respected or having their gender identity recognised is unacceptable. The Court took note of declining number of Member States requiring gender reassignment surgery as a prerequisite for legal gender recognition. It is time that countries across Europe set in place legal gender recognition procedures in line with international human rights standards.”

Photo Credits : European Court of Human Rights





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Romanian rights groups condemn ban on gender identity studies

By Luiza Ilie

 

Reuters (17.06.2020) – https://reut.rs/2Z0qSoa – Romanian human rights groups and universities on Wednesday condemned a blanket ban on gender identity studies voted through by lawmakers, which they said would legitimise discrimination against the country’s LGBT minority.

 

Parliament passed the amendment to the education law on Tuesday, pushing Romania’s sexual politics onto the same authoritarian track as neighbouring Hungary and Poland.

 

The bill, approved without public debate, would consign Romanian education “back to the Middle Ages,” student associations said in a statement.

 

The groups, along with universities, said the amendment contravened human rights and freedom of expression, and urged President Klaus Iohannis – who is on record as advocating equality and who must sign all bills into law – to reject it.

 

Socially conservative Romania decriminalised homosexuality in 2001, decades later than other parts of the European Union, and is one of the only EU states that bar marriage and civil partnerships for same sex couples.

 

Lawmakers had “voted against a segment of the population they should be representing and protecting,” Patrick Brăila, a rights activist for Romanian’s estimated 120,000 transgender people, said in a statement.

 

“As such, they are directly responsible for all transgender people who are discriminated (against).”

 

In Hungary, lawmakers voted last month to ban transgender people from changing their gender on identity documents, while Polish President Andrzej Duda Poland this week compared LGBT “ideology” to communist doctrine in an election campaign speech.

 


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