Abstracts Nr 2, 2007
Radu Chiriţă, The Independence and Fairness of Magistrates, or Types of Neutrality of the Judicial Power (I)
The study looks at the concepts of independence and fairness as two faces of the same notion of magistrate neutrality. It discusses the most important criticisms leveled against the “théorie de l’apparence” (saying it is not necessary for the person invoking the absence of neutrality to prove actual bias against the parties, but merely that an outside observer would reasonably infer bias) and the development of the relevant jurisprudence of the European Court. Several counter-arguments against the criticisms of the “théorie de l’apparence” are explored. The issue of independence is analyzed according to the criteria of (1) the absence of any involvement from other state agencies or the parties, and (2) the existence of real guarantees against any possible external pressures, as well as in the light of the relevant jurisprudence of the ECHR.
Gabriel Andreescu, The DIICOT Indictment in the MISA Case: The Presumption of Guilt
In making the DIICOT bill of indictment against MISA adepts available to the public opinion by means of the media, the agency effectively undermined the presumption of innocence in this criminal case. The „technical and scientific findings” presented in the file put together by prosecutor Marian Delcea prove to be a collection of insults, together with sundry claims meant to support the theses of the prosecutors by systematically replacing facts with “presumed facts”. The language in which the bill of indictment is written is a thinly disguised, mocking, offensive salvo against the defendants. It violates the magistrate’s code of the ethics and, to an equal extent, the professional duties of a prosecutor. The most likely consequence of the language of the DIICOT document and its availability on the internet will be a complaint filed by the defendants invoking a violation of the presumption of innocence, an essential component of the right to a fair trial.
Corneliu-Liviu Popescu, Presidential Discrimination in Media Relations
The paper shows that the use, by the Romanian President in reference to journalists, of expressions such as “faggot”, “pussy” and “stinking gypsy” constitutes discrimination based on sexual orientation, sex and, respectively, race. The article further argues that the public vs. private distinction is irrelevant in the cases in question. It first examines the facts; then discusses the criteria used in determining whether an act is discriminatory; finds the existence of discrimination; discusses the condition of publicity and its relevance to the cases; establishes whether making public such discriminatory statements by the president is appropriate; and ends with a discussion of the issue of freedom of the press and a set of conclusions.
Dan Claudiu Dănişor, Elena Mădălina Nica, On the Decision of the Constitutional Court no. 61 of 18 January 2007
In its Decision no. 61 of 2007, the Constitutional Court resolved that the provisions of Art. 2(1) and 2(3) of Law no. 249/2006 are unconstitutional. The paper shows that the provisions in question are indeed contrary to the Constitution, but also that the arguments advanced by the Court are marred by a number of issues: (1) the Constitutional Court decided on matters with respect to which it has no jurisdiction; (2) the Court failed to take into account subtler aspects of the principle of the non-retroactivity of the law, failed to distinguish it from immediately applicable retrospective laws, and failed to anticipate the consequences in the Romanian electoral system of party-list voting; (3) the Court was wrong in assessing the limits of its jurisdiction, and indeed transgressed them in deciding on the law’s failure to comply with Art. 78 on the coming into force of the laws; (4) in evaluating the quality of the law under the normative exigencies imposed by the principle of the rule of law, the Court relied solely on the jurisprudence of the ECHR, despite also having at its disposal Art. 1(3) of the Romanian Constitution, which specifically mandates the conditions of clarity, precision, definiteness and predictability.