Abstracts Nr 3, 2019
Rodoljub Etinski, Bojan Boźović, The Function of the Margin of Appreciation in the Jurisprudence of the ECtHR
Abstract: The ECtHR has usually consulted various sources, including the text of the ECHR, international treaties, the comparative practice of the States and case law to collate information for replying the questions submitted by the parties. Due to various reasons, it has sometimes happened that the Court cannot find enough specific information which would enable to reply to the question. The provisions of the Convention are very general and abstract and do not address the specific issues. The issue is not governed by an international treaty or another international act. The comparative practice of the State is not enough converging in respect to the question. The case law of the Court is silent. In such situation the Court has two options. It can leave the matter to discretion of the Contracting Parties and then each of them can give a separate reply to the question. Or, the Court can create law and give its answer. The situation when the Court cannot find the reply in interpretative sources may thus result in a margin of appreciation or in judicial activism. The Court has commonly opted for the combination of the margin of appreciation and the creativity in interpretation.
Keywords: interpretation, human rights, margin of appreciation
Elena Lazăr, The impact of artificial intelligence on work relations given the jurisprudence of the ECtHR
Abstract: Nowadays, taking into account the rapid development of technology, labor relations are increasingly impacted by AI. What is more, there is no direct protection of labor relations on the field of the European Convention on Human Rights and there is also no provision related to AI among its articles. In addition, the present study aims to analyze which rights related to labor relations are affected by the new developing technologies, and to what extent.
Keywords: labor, artificial intelligence, technology, discrimination
Cristian Nuică, Juridical issues on the setlement procedure about ”legislative discrimination” related to the case-law differences
Abstract: In the article I analyse the manner in which the legal norms regarding the procedure for resolving cases of "legislated discrimination" are interpreted and applied. I show that the courts are inconsistent and contradictory in their treatment of the competences of the NCCD regarding the resolution of discrimination cases created by laws. I argue that the NCCD is competent to analyse a complaint regarding "legislated discrimination", but only outside the administrative-judicial framework. When the violation of the principle of nondiscrimination is confirmed, the NCCD can submit an opinion to be appended to the decision that may contain non-mandatory recommendations. Finally, I propose the promotion of an appeal in the interest of the law regarding consistency in interpretation by relevant courts of the provisions of Art. 20 of G.O. no. 137/2000.
Keywords: National Council for Combating Discrimination, High Court of Cassation and Justice, Constitutional Court, jurisprudence, discrimination resulting from the law
Gabriel Andreescu, How to compromise research on the Holocaust. An analysis of the book Holocaust Public Memory in Poscommunist Romania, published by Indiana University Press, Bloomington, 2018
Abstract: The article is a critical analysis of the book Holocaust Public Memory in Poscommunist Romania, Indiana University Press. I showed that the contributors to this book, all (with one exception) employees or collaborators of the „Elie Wiesel” Institute, use an ethnicitized and ideological approach in studying the Holocaust, that contrasts them relative to communist crimes. They ignore the issue and the relevance of the „political genocide”, and the consistent literature on this topic. I explained why the request, by a part of the Romanian intellectual elite, to give communist crimes an attention „symmetrical” to that offered Nazi crimes is not an expression of a “parochial viewpoint”, as the book suggests. I gave several examples that show that this approach has become a doctrine of European bodies. In the last part of the article I discuss the personal attacks by two of the contributors to the volume published by Indiana University Press. Arguing that the accusations leveled by the two, Alexandru Florian and Michael Shafir, are purely calumnious, I stress that the publishing house compromises its reputation by hosting such expressions contrary to professional deontology.
Keywords: Holocaust, communist crime, public memory, political genocide, post-communist Romania, Indiana University Press, Alexandru Florian, Michael Shafir
Emil Moise, The long road in the fight for the right of children to freedom of thought, conscience and religion: obstacles, pressure, steps forward
Abstract: Among the many elements of religious (sometimes radical) proselytism present in the Romanian public schools – the religious symbols mounted in the classrooms, turning classrooms into chapels for religious services, building churches within school grounds, holding religious services in the vast majority of schools during school hours (including holding communion for children during hours allocated to mandatory subjects, often without the consent of parents and never with the consent of students) – in this study I will focus on the religious services held in public schools in Romania, during mandatory school hours. The study covers the civic efforts spanning 15 years, 2004 to 2019, towards raising awareness regarding this illegal situation. It highlights the complicity of public servants and politicians within the public educational system – from school principals to Ministers of Education – with the activities of the Romanian Orthodox Church that violate the fundamental rights of children.
I showed that the public authorities in education don’t respect the fundamental rights of the children enrolled in the public system of education and do not consider the superior interest of the child, although they are required to do so by the laws and the Constitution.
Keywords: rights of children, the superior interest of the child, religious services, religious education, Romanian Orthodox Church