Key facts of the case:
A court decision ruled upon the parental responsibilities of the parties in terms of their minor child aged 13 years old who was entrusted into his father’s custody and care. His mother, who lived in Andorra, was given rights of access that included the right to spend 30 days with her son during the summer holidays. Owing to the fact that her son was not handed over to her in the period agreed upon, the mother asked for her right be enforced coercively. Furthermore, she requested that the father be condemned to pay a fine of up to € 249.90 and compensation to the sum of € 1,000 in her own and the child’s favour (to compensate expenses incurred with travel costs to come to fetch the child in vain), as well as a compulsory monetary penalty, to the sum of €50 for each day’s delay in handing over the child. The child was heard in the presence of his parents, and said that his father did not stop him or pressure him not to go on holiday with his mother. It had solely happened because he had to take tests in order to get accepted into a music school. Moreover he stated that he was not able to join his mother in August because he was a member of a musical group and had to play in several festivals that were being held that month; his presence at them was important for his future in the event that he was admitted to the music school. The Public Prosecutor stated that the mother’s petition should be overturned because there was no indication that the arrangement had not been respected. The sentence that was passed therefore dismissed the case, whereupon the mother lodged an appeal.
Therefore, the Court finds that the legal provisions in question, as far as they allow for limiting the legality of individual administrative acts issued before the entry into force of Law 554/2004, are in breach of Article 6 of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights, as well as Article 47 of the European Union Charter of Fundamental Rights, by going against the “principle of legal certainty, which is an integral part of all the articles of the Convention and which is one of the key elements of the rule of law”(European Court of Human Rights (ECtHR), Beian v. Romania, No. 30658/05,6 December 2007, paragraph 39).
Astfel, Curtea reţine că dispoziţiile susmenţionate din Legea contenciosului administrativ, în măsura în care permit cenzurarea legalităţii actelor administrative cu caracter individual emise anterior intrării în vigoare a Legii nr. 554/2004, încalcă dreptul la un proces echitabil, consacrat de art. 6 din Convenţia europeană a drepturilor omului şi în practica C.E.D.O., precum şi de art. 47 din Carta drepturilor fundamentale a Uniunii Europene, prin prisma atingerii aduse „principiului securităţii juridice, care este implicit în totalitatea articolelor Convenţiei şi care constituie unul din elementele fundamentale ale statului de drept (C.E.D.O., Hotărârea din 6 decembrie 2007, Beian contra României, parag. 39).