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Controversy in Terms of Enforcement by Seizure of Public Institutions

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The work proposed a principled assessment of the place and the standards that the enforcement procedure by seizure aimed at capitalizing the claims to the State must hold, comply with respectively, taking the stand upon the fact that the procedure in question is subject to controversial national rules with negative effects in practice.
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Procedia Economics and Finance 00 (2012) 000000
EMQFB 2013
Roșia Montană
Pros and Cons exploitation in terms of Human Rights
Nicolae Ploeșteanua, Iulia David b
a,b Petru Maior University, Department of Law and Administration, No. 69 Livezeni Street, 540566
Tîrgu Mureș Romania
Abstract
Exploitation at Roșia Montană (Romania) is a very important issue, not only from the economic point of view but also
socially, historical and not the least, political. This project is widely publicised and its impact goes beyond the borders of
Romania. This study aims to realise an analysis of the issue of starting the exploitation of Roșia Montană in relation to
international case law based especially on the respect of human rights standards imposed by the European Convention of
Human Rights.
Keywords: Roșia Montană, Human Rights, European Convention of Human Rights, Jurisprudence
1. Introduction
The project at Roșia Montană, Europe’s largest opencast gold mine, has sparked a big controversy: golden
profits versus environmental concerns. The European Convention of Human Rights aims for fair balance
between the demands of the general interest of the community and the requirements of the protection of the
individual’s fundamental rights (Sporrong and Lonnroth v. Sweden, 1982). The fair balance principle is a
judicial creation which has its origins in the essence of the Convention where member States undertake to
respect the fundamental rights of their populations. So, in case of Roșia Montană, it is important to analyse if
2 Author name / Procedia Economics and Finance 00 (2012) 000000
there is a fair balance between the nation’s economic welfare, particularly when evaluated by a temporary
government, and the respect due to fundamental rights of the Roșia Montană community.
2. Potential violation of article 2 of the European Convention of Human Rights: The right to life
in connection with the right to health and the right to a healthy environment
Article 2 of the Convention regarding the right to life can only be called into question if corroborated with the
right to a healthy environment. The community of Roșia Montană depends on its lands with which it has an
ancestral connection. Furthermore, the area is linked with a historical scene which is part and parcel of
national history. A safe, clean, healthy and sustainable environment is integral to the full enjoyment of a range
of human rights, including the right to life. As the R.M. Gold Corporation mining project will use cyanide to
extract gold and silver, it is unquestionable that there is a real risk of an environmental disaster.
The right to life is guaranteed for every human being and it states that nobody shall be deprived of his life
intentionally. Within the arbitrary means of violation of this right, all human actions and activities must be
included which, through degradation of environment or of its elements (air, water, soil, woods), could cause
life loss (Iancu, 1998).
At the present moment, neither the European Convention of Human Rights nor its additional protocols
recognise expressly the fundamental right to a healthy environment, mostly due to historical reasons, because
at the moment of the treaty’s adoption, the dangers which might threaten the environment were practically
nonexistent (Duțu, 1998). Through article F (2) of the Maastricht Treaty
1
, the right to a healthy environment
has reached an indirect recognition, most often in corroboration with the right to life (Duțu, 1998). According
to article 191 (2) of The Treaty on the Functioning of the European Union, Romania, as a European Union
member state, shall obey all regulations included in the founding and additional treaties. In the academic
literature, it has been considered that the guarantee of the right to life could be violated in at least three
environmental issues: a) in case of massive pollution with seriously harmful effects; b) in case of accidents
with serious environmental consequences (e.g. Chernobyl, Baia Mare); c) in case of systematic and high
proportions of emissions exceeding the tolerable limits legally admitted for particularly hazardous substances
(Popescu, 1991).
1
Article F, paragraph 2 of Treaty on European Union: The Union shall respect fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from
the constitutional traditions common to the Member States, as general principles of Community law.
Author name / Procedia Economics and Finance 00 (2012) 000000 3
Taking into account the considerations above, and drawing a parallel with the Roșia Montană mining project,
we could conclude that the use of cyanide for the exploitation of metals, which is a hazardous to the health
and life of humans, plants and animals (Mazilu, 2008), represents a real threat to the right to life. According
to some reports, the Roșia Montană project would use cyanide, which will have to be poured at a rate of 40
tons per day, amounting to 12.000 tons of cyanide annually. As, a mining engineering professor Dr. Marcello
Viega states the use of cyanide sparks fear into people because of some notorious incidents (Logan, 2013),
such as the Baia Mare cyanide spill in 2000, which was called the worst environmental disaster in Europe
since the Chernobyl incident. Since that disaster, Germany, the Czech Republic, Hungary and Turkey have
banned cyanide in gold extraction. The amount of cyanide used in the Rosia Montană project is more than
130 times the amount used in the Romanian Baia Mare gold mine, according to an online article in Der
Spiegel.
The calamitous effects of this wild and anti-ecological exploitation (Mazilu, 2008) are stringently evidenced
by the Romanian doctrinaire, Dumitru Mazilu, who states that it is scientifically proven that cyanide is not the
only danger caused by this exploitation technology; sludge and water resulted from this process could also
cause pollution, including the toxic metals resulting from mining (Mazilu, 2008). This leads to the violation of
European regulations that stipulate: a) the maintenance, protection and improvement of environmental
quality; b) the protection of human health; c) the prudent and rational use of natural resources; d) the
promotion of measures concerning regional or world environmental issues at an international level (UN,
1998). Thus, the main victims of the cyanide method used by the R.M. Gold Corporation on the Roșia
Montană landscape shall be both the environment itself and its residents, not only the current generation, but
also the future generations because those who don’t exist yet, will be born in the future, have the right to a
safe environment, at least in the same conditions as the present generations have enjoyed it, and for this
reason, contemporaries have the obligation not to destroy the environment (Iancu, 1998).
The implementation of this project is contrary to the EEC No. 92/34 Directive concerning the preservation of
natural habitats and wild fauna and flora, as Roșia Montană is under protection and it was declared as the rural
area with the richest heritage in Romania.
Last but not least, the right to health must also be taken into account in connection with the right to life. The
Roșia Montană community faced an unacceptable situation. In 2002, the general medical practitioner of Roșia
Montană (G.P.) received an offer from the company to stop practicing medicine in Roşia Montană. The
mining company S.C. R.M. Gold Corporation offered the general practitioner, Dr. Florin Georgescu, the
amount of 840.000.000 lei, just to leave Roşia Montană. For one year, the parish had no medical assistance.
4 Author name / Procedia Economics and Finance 00 (2012) 000000
(Lupescu, 2004, no. 617). This strategy discouraged and intimidated the remaining locals, which were
already left without neighbours, relatives, a pharmacy, a bakery and food stores. After eight months without
medical assistance, the locals presented this situation to the Alba County Health Department. In the meantime,
three doctors from Italy volunteered to work in Roşia Montană, asking only for a work space. The Health
Department did not accept the initiative of the Italian doctors, telling them that a new doctor was going to be
appointed as soon as possible. For a period of time, the general practitioner of the community provided
medical services only two-three days per week.
In conclusion, through the violation of the right to a healthy environment, it is not only possible, but it is
highly likely that the right to life would also be violated.
3. Potential violation of article 8 of the European Convention of Human Rights: respect of private
and family life
Article 8 of the European Convention of Human Rights is the first in a series of four provisions that protect
the social respect for the individual (Chiriță, 2007).Therefore, the Convention establishes an efficient
applicability control for these provisions. Regarding the definition of “private life”, the Court has avoided
describing this notion, considering that it would have been too restrictive for the term to be limited to an
exclusive group, were anyone could live as he desires, sheltered from the outside world. Nevertheless, the
respect of private life must include the right of developing social relations with other persons (Niemietz
Case).
The community of Roșia Montană, from an administrative point of view, is a township comprising 16
villages. Besides that, the community is strongly connected to the spiritual heritage of the place. Serenity,
peace, nature, spirituality, culture, history, all these are the distinctive features of this community, considered
a cultural heritage of a unique identity. As Dr. Horia Ciugudean, one of Romania’s foremost archaeological
experts declared, Rosia Montană is an area where the spirit of the place is more visible, more present than in
other areas, and at the same time an area where exactly the disregard of the spirit of the place has generated
a social drama with unpredictable consequences (Community of Rosia Montană, 2013).
Referring to all the dramatic consequences that are caused by the implementation of the mining project, there
is an unquestionable violation of article 8 of the Convention. The Court stated in Tașkin et alii vs. Turkey
case, that article 8 is applicable to serious prejudice of the environment, which could affect the wellbeing of a
person and the free enjoyment of one’s home in such a way that it could damage private and family life
(Chiriță, 2007). Therefore, since 2002, when the area of industrial development was reserved for the gold
mining project, there has been an endless string of actions or inactions promoted by the state or by R.M. Gold
Author name / Procedia Economics and Finance 00 (2012) 000000 5
Corporation which have led to a process of decay of Roșia Montană’s community life, at all levels:
demographic, social, psychological, emotional, economic and cultural.
The changes to which the community was subjected, without taking into consideration the spirit of local
people, have changed and compromised the community’s spiritual identity and have degraded its immaterial
values. The cessation of representative markets and festivals such as Roşia Montană Fair (marking the
beginning of the spring), The Autumn Market (marking the end of autumn), or the Labor Day Fair, showed
that the community has lost its traditional celebrations.
The actions of displacement and expropriation have engendered community and family divisions and have
increased instability among family members (relatives who do not speak for years because of the conflicts
related to the sale of the properties, children who have sold the homes of their parents or grandparents, elderly
homeless people). This process was possible even without the certainty that the project will happen, as the
environmental permits were still not obtained in March 2013. It is stated that a special protection of the
residence should be provided because that is the place where a person develops most of his/her private and
family life and also due to strong feelings connected to that place (Chiriță, 2007). In addition, the failure to
adequately preserve the environment where cultural and natural heritage can be found, the destruction of
landscape and the degradation and loss of cultural patrimony has had a severe impact on the community’s
emotional life, causing feelings of abandonment, isolation, confusion, hopelessness and loss of confidence
and trust in state and local authorities.
The news of implementing the R.M. Gold Corporation project divided the community into two groups: one
for supporting the mining project and one against. This conflict has led to the degradation of human relations,
the polarisation and disintegration of what was once a united community.
Through this process, the Roșia Montană community has been denied the continuation of its ancestral
existence on the lands to which they are deeply bound. The United Nations High Commissioner for Refugees
declared that the traditional and specific lifestyle of a community must be protected because its members are
deeply rooted in their culture, and if such a measure won’t be taken in time, a generation gap shall emerge that
shall ultimately cause, the community’s disappearance (Bernard Ominayak vs. Canada, 1990).
Therefore, there is no doubt that there has been a violation of article 8 of the Convention, even without the
commencement of mining.
4. Potential violation of article 2 of Additional Protocol No.2: right to education
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Article 2 of the Additional Protocol to the European Convention of Human Rights stipulates that No person
shall be denied the right to education. In the exercise of any functions which it assumes in relation to
education and to teaching, the State shall respect the right of parents to ensure such education and teaching.
The right to education must be included in the fundamental rights and freedoms (Kjeldesen, Busk Madsen et
Pedersen c/Danemark, 1976).
The concepts of education and teaching were defined by the Court in the case of Campbell and Cosans v.
United Kingdom as follows: the education of children is the whole process whereby, in any society, adults
endeavor to transmit their beliefs, culture and other values to the young, whereas teaching or instruction
refers in particular to the transmission of knowledge and to intellectual development (ECHR, 2011). A state
has, on the one hand, the negative obligation not to deprive a person of receiving education and, on the other
hand, has the positive obligation to maintain and adapt the educational system according to the current needs
of social development (Bîrsan, 2005).
In the Rosia Montană community, the relocation implied serious consequences for the process of
education. For example, as of 2013, only 9 students from different grades remained in elementary school,
studying alltogether with only one teacher, reducing the quality of education and decreasing student
performance (Community of Rosia Montană, 2013). As a result, the educational program the students benefit
from is inadequate, because even if they go to school, they experience a quality of education that is extremely
poor, leaving them without the skills and knowledge they need (Unicef, 2007). The state failed to ensure the
adaption of the educational system to the circumstances created by the preparation for implementing the
mining project.
As a consequence, children are deprived of a good quality education, which may result in a violation of article
2 of Additional Protocol No.1.
5. Potential violation of article 9 of the European Convention of Human Rights: freedom of
thought, conscience and religion:
Freedom of thought, conscience and religion is stipulated in article 9 of the European Convention of Human
Rights.
The conflict generated by the mining project also impacted the integrity of the local churches. The fact that
the position of the local representatives of these churches opposed the official one, declared by the Orthodox
Church, generated serious imbalances within the local community concerning the affiliation to a certain
religion, with effects on human relations on a social and on a spiritual level.
Author name / Procedia Economics and Finance 00 (2012) 000000 7
In these circumstances, the confrontation between the two elements of this right could result in a violation of
article 9 of the Convention. A causal relationship has emerged between the fact that representatives of Rosia
Montană churches are entitled to freely express their beliefs about the R.M. Gold Corporation project and the
perturbation of religious conviction in the community.
Therefore, the state has the obligation to ensure the right to freedom of expression without violating the
freedom of religion. As a consequence of this dispute, the Roșia Montană community is affected not only
emotionally, but spiritually as well.
6. The implementation of the Roșia Montană project in contradictory official points of view:
It is a notorious fact that this topic raised many discussions, disputes and arguments between those who are
for and against the commencement of mining at Roșia Montană. To emphasise the main contradictory points
of view of the opposing camps, we shall evoke the arguments publicly expressed by Teodor Meleșcanu and
Andrei Paul Zlătescu. During the European Conference of International law vs. National law held by the
International Law Society on 16th September in Bucharest, when asked about his opinion on the
commencement of exploitation at Roșia Montană in connection with human rights, Mr. Teodor Meleșcanu
stated: The solution has to be a local one and one of opportune and it is up to the Government. Every people
have the Government they deserve. We can express preferences, but ultimately, there must be a decision at the
level of the executive. This is an opportune decision. We must take into account everybody’s opinions, but in
the end, the people whom we elected must decide on this point, and we must understand it more or less. On
the other hand, Andrei Zlătescu holds that: There are many factors that are to be considered when evaluating
the advantages and disadvantages of starting exploitation at Roșia Montană. The protection of human rights
and environmental protection should prevail. There still is choice in the case of Roșia Montană. The decision
must rest on factual evidence.
More or less directly, the two opinions reflect the reality of the perpetually confusing question: should or
should not the economic welfare of a nation prevail over the requirements of the protection of the individual’s
fundamental rights?
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