Abstracts Nr 3, 2008
Rodoljub Etinski, Retrospective and prospective of human rights in the European Union
The text comments on the specificities of the process of recognition and development of human rights in the EU law. It evaluates the present state of human rights in the EU and casts light on possible further developments. It assesses the consequences of granting the UE Charter on Fundamental Rights a status equal to that of the founding treaties. As the general principles of community law were acknowledged as controlling the legality of secondary laws, human rights now constitute criteria for the legality of the Union’s normative acts. The article stresses the significance of article 263(4) of the Treaty on the functioning of the EU, which provides for the right of a private or legal person to go to court against acts targeting it directly and individually, as well as against acts which, while targeting another person, are directly relevant to it.
Keywords: human rights, European Union, Founding Treaties, general principles of Community law, Charter of Fundamental Rights of the EU
Aurora Ciucă, Advocaten voor de Wereld VZW, a decision of the European Court of Justice concerning the European Arrest Warrant
The study looks at the institution of the European arrest warrant, conceived as a simplified instrument providing legal assistance in the field of criminal law and designed to replace the extradition procedures among member states. The author sees the European arrest warrant as a clear, unique procedure and is favorable toward its strictly judicial status. The study further analyzes the implications of creating an European legal area, including the remission of nationals. Moving from the theoretical framework to the decision of the Court of Justice in the case of Advocaten voor de Wereld VZW vs. Leden van de Ministerraad, the study discusses (a) the claim that the goals of the EU treaties include the creation of an area of freedom, security and justice; and (b) the distinction between the role of the European arrest warrant and the question of harmonizing criminal law systems.
Keywords: European arrest warrant, European legal area, criminal law, Schengen Agreement, Court of Justice of the European Communities
Gabriel Andreescu, An assessment of the arguments for the new official offensive against collective rights
The study is a systematic deconstruction of the case against collective rights, of arguments to the effect that collective rights are substantively vague and procedurally impracticable; that their end is to ensure a legal status for minorities both nationally and internationally; that the concept aims to ensure the self-determination of minorities; that – as Romania has constantly claimed – rejecting collective rights for minorities is a position confirmed and supported by the EU’s fundamental documents. The article discusses the arguments offered by Romanian officials in refusing to recognize Kosovo’s independence, presented as a corollary of the rejection of collective rights.
Keywords: collective rights, individual rights, national minorities, self-determination of minorities, Framework Convention for the Protection of National Minorities
Dezideriu Gergely, The comparability test in the determination of discrimination: the principle of equal pay in courts
The article explores the test of comparability in determining a case of discrimination and the criteria of the margin of appreciation on “similarly/analogous” situations in line with the provisions of Article 14 of the European Convention for the Protection of Human Rights and according to the case law of the European Court of Human Rights. Beside the theoretical analysis and the forays into European Court jurisprudence, the article emphasizes the application of the principle of equality in national law through the jurisprudence of the National Council for Combating Discrimination related to complaints lodged by judges, prosecutors, court clerks, civil servants and other Court staff. The article focuses on particular cases, underlining how the Steering Board of the National Council for Combating Discrimination has applied the test of comparability alone or in conjunction with the test of salary justification (remuneration) in complaints lodged by judges or court-related staff.
Keywords: discrimination, National Council for Fighting Discrimination, European Convention on Human Rights, jurisprudence, legal system
Alina Gentimir, The right of suspected terrorists to be informed with respect of the reasons for their arrest
The exercise of police powers such as arrest and detention represents an invasion of personal liberty which is tolerated in the interests of the prevention and detection of crime. The use of these powers remains a contentious matter which continues to attract public attention, especially as it has frequently been suggested that they may be employed in discriminatory fashion. Deprivation of liberty, in the form of stop, search or arrest, can occur only on the basis of law and in specific circumstances, including, under article 5 paragraph 1(b) ECHR, the detention of a person in order to secure the fulfillment of any obligation prescribed by law; and, under article 5 paragraph 1(c) ECHR, the lawful detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of the person’s having committed an offence. Not less important is the requirement that the information should be given in a language which the suspect understands.
Keywords: terrorism, deprivation of liberty, legal liability, criminal liability, racial prejudice, European Convention on Human Rights, European Court of Human Rights