Abstracts Nr 4, 2014
Adriana Iordache, Free Speech in the Jurisprudence of the Romanian Constitutional Court: between Personal Dignity and Anti-Discrimination
Abstract: The article addresses the topic of limiting free speech in cases of insult, libel and hate speech. It aims for a thorough review of the philosophical literature on the topic, as well as of the relevant national and international jurisprudence.
The first part of the article summarizes the philosophical debate on the proper boundary between free speech and hate speech. Authors such as Ronald Dworkin and Thomas Scanlon argue in favor of a wide margin for the freedom of speech, grounding their views in the value of autonomy. On the other hand, philosophers such as Katharine McKinnon, Abigail Levin and Caleb Yong criticize this approach, showing that allowing hate speech only enshrines already existent racism and sexism into law.
The second part of the article analyzes decisions of the United States Supreme Court, European Court of Human Rights and Romanian Constitutional Court. While the former moved from a restrictive to a permissive approach, the latter courts expressly forbid hate speech and libel in the name of the “rights and reputation of others”. Finally, the article concludes by re-interpreting the metaphor of the “marketplace of ideas”, arguing that hate speech should be forbidden, while libel or insult should be considered a form of free speech.
Keywords: United States Supreme Court, European Court of Human Rights, Romanian Constitutional Court, jurisprudence, free speech, dignity, discrimination
Elena Lazăr, Sexuality issue in the prison system in the light of the European Convention of Human Rights
Abstract: This article aims to point out the lacunas of the protection offered to prisoners regarding the aspect of sexuality. The Sexuality issue in prisons is often left aside, bearing in mind that we are talking about a closed environment, where detainees have few rights. Even if the European Court of Human Rights has recognized throughout its jurisprudence on the article 8 of the Convention the right to sexual identity and to have sexual relationships, she proves to be quite reluctant when it comes to prisoners and so, sex becomes a sensitive subject. Furthermore sexual minorities encounter a lot of problems in prison beginning with the cell they are placed in to the treatment they receive during incarceration. What is even more concerning is the fact that the case law of the ECHR is not very developed on this issue regarding detainees.
Keywords: European Court of Human Rights, sexual identity, sexual minorities, prison, detainee, incarceration
Gabriel Andreescu, The Expulsion of some Writers’ Union of Romania Members. Ethical and legal aspects
Abstract: The paper discusses the ethical and legal aspects of the expulsion from the Writers’ Union of Romania (USR) of poet Ioan Vieru, the director of the magazine Contrapunct. The legal battle between the writer and the Union, at the appellate stage at the moment of the writing of this paper, is discussed considering the general relationship between USR and its members. The paper analyzes the tradition of the organization, its status as an association in the public interest, and its public prerogatives, which lead to a unique situation of the USR member: the membership is instrumental to the recognition enjoyed by the writer in the literary world, to his access to USR holdings and required for a 50% increase in pension benefits.
Recent evolutions in USR life indicate a trend toward a concentration of power by the governing bodies of the Union. The writers elected to governing bodies enjoy significant symbolic and material benefits, hence an interest in defending these. Therefore it is necessary that the courts protect the membership status of USR members, because internal means of control within the Union cannot settle fairly disputes between USR members and the structures tasked with excluding them.
Keywords: Writers’ Union of Romania, Ioan Vieru, association, status, member, litigation, expulsion
Cristian Nuică, The juridical nature of the National Council for Combating Discrimination: areas of criminal liability and delictual civil liability in matters of non-discrimination
Abstract: The aim of the paper is to clarify the legal nature of the National Council for Combating Discrimination, in its role as the body solving petitions by following a special procedure in order to rectify the moral and material damage caused by the violation of non-discrimination principles.
This contribution offers a solution to the disputes regarding the legitimacy of the NCCD related to Constitutional Court decisions that affirm the unconstitutional nature of articles 20 and 25 of Government Emergency Ordinance no. 137/2000, by proving that the national anti-discrimination rules and the legality of NCCD aren’t affected by these constitutional decisions.
Keywords: National Council for Combating Discrimination, Constitutional Court, discrimination, independence, gratuity, optionally, contradictory proceedings