Abstracts Nr 1, 2013
Lucian BOJIN, Cum face față Curtea Europeană a Drepturilor Omului testului legitimității
Abstract: The paper classifies the criticisms addressed to the ECtHR activity into two categories: the criticism related to administrative issues, such as the solutions to the workload problem, and the criticism related to political issues, mainly addressing the Court’s legitimacy. In discussing the reforms brought by Protocol 14, it is showed that the quest for more efficiency entailede a decline of the judicial control of the individual claims, while its persistency is claimed in the official documents of the Council of Europe. Such an attitude is interpreted as suggesting a self-perceived lack of legitimacy of the Court. The author identifies such perceived (and self-perceived) lack of legitimacy of the Court as a common element in both abovementioned categories of criticism. Then, he tries to demonstrate that the legitimacy of the ECtHR is an inherent one, resting on the very special position of this institution between national and supranational authorities.
Keywords: ECtHR, legitimacy, Protocol 14, individual petitions, admissibility, filtering procedure, transparency, certiorari procedure, judicial activism.
Aurora Ciucă, Roxana Prisacariu, The Newest Challenges of the Oldest Minority. On Roma Inclusion
Abstract: The Roma inclusion policy is entering from politics, in the mainstream of scientific research. In the last decade, the advance in understanding and structuring a coherent conception on the topic is evident. However, it is unclear how the Roma inclusion policy is itself integrated in the evolution of Romania and how the distribution of competences between EU and Member States on this matter is evolving. The study aims to show that, in spite of growing EU involvement, the domain is currently still reined by the national authorities. But how long will Romania be able to preserve this power and how can this process be tackled at national level in order to achieve effective results? We think that the effectiveness of this policy depends, among other, on the determination to consolidate the Romanian civic nation as an inclusive nation which supports the right to distinctiveness of the national minorities’ members.
In the general centralizing trend at the European Union level, this issue could become a vehicle to transport power from the Member States to the European Union, by using subsidiarity, if the states will prove themselves unable to develop an effective Roma inclusion policy.
Keywords: Roma inclusion, national minorities, European policy, Romanian strategy
Rodoljub Etinski, Emerging Indirect Discrimination under Article 14 of the ECHR
Abstract: The ECtHR confirmed that Article 14 of the ECHR prohibits also indirect discrimination. Indirect discrimination consists of prejudicial effects produced by apparently neutral rule, general policy or measures that disproportionally or exclusively affect members of a group, which is particularly protected by European anti-discrimination law, such as a gender group or minorities. A different treatment may be justified by legitimate aims if means used for their achievement are proportional to the aims. In determination of the aims and selection of means for their achievements States enjoy certain margin of appreciation. A broadness of the margin depends on social field of State’s activity and on the ground of different treatment. Some grounds, like race or ethnic origin, permit very narrow margin of appreciation. Having in mind diversity of elementary education in Europe, States enjoy broad discretion in respect of organising primary education. However, segregation of children in primarily schools on any ground has to be justified by extremely weighty reasons. It is the case especially when segregation affects disproportionally or exclusively members of an ethnic group.
Separation of children in schools is a problem by itself. In Brown v. Board of Education, the US Supreme Court overruled “separate but equal” doctrine that had been in force in US school system. The Court decided that separation of the “Negro” and white schools which were completely equalized with respect to buildings, curricula, qualifications and salaries of teachers, and other “tangible” factors had detrimental effects upon the coloured children. It adjudged that separate educational facilities were inherently unequal.
The concept of indirect discrimination under Article 14 of the ECHR will strengthen an obligation of a State to correct inequality in enjoyment of rights and freedoms, guaranteed by the ECHR through different more favourable treatment of members of disadvantaged groups whose inferior social position is a result of inherited long lasting discriminatory processes.
Keywords: indirect discrimination, disadvantaged groups, Article 14 of the ECHR, European Court of Human Rights,
Bakk Miklos, De la drepturile minorităţilor la autonomie. O provocare cu precedent teritorial: Ţinutul Secuiesc şi regionalizarea României
Abstract: Studiul arată că într-o primă perioadă, ideea autonomiei a servit discursului identitar vizând reconstrucţia comunităţii maghiare și mobilizarea ei politică. Din 1993, au fost elaborate propuneri de legi şi statute care căutau soluţii instituţionale pentru prezervarea identităţii etnice maghiare. După respingerea primului proiect de lege UDMR privind minorităţile naţionale şi comunităţile autonome, în elita maghiară a apărut un clivaj privind rolul autonomiei în ansamblul temelor identitare publice. Curentul majoritar din conducerea UDMR, care a adoptat strategia cooperării prin coaliţii guvernamentale, a păstrat conceptul de autonomie în program, dar a pus accentual pe legiferarea unor măsuri speciale. Din anul 2000, proiectul autonomiei a fost repus pe agenda politică prin constituirea Consiliului Naţional Maghiar din Transilvania și a partidelor etnice maghiare: Partidul Civic Maghiar şi Partidul Popular Maghiar din Transilvania (PPMT). Acestea au revenit la aspirația autonomistă exprimată prin variante de autonomie culturală și teritorială cu statut special. Proiectele autonomiei teritoriale privind Ţinutul Secuiesc au urmat fie devoluţia, fie variante ale regionalizării.
Keywords: maghiari, autonomie culturală, autonomie teritorială, statut special, regionalizare, UDMR, Ţinutul Secuiesc