Abstracts Nr 1, 2008
Corneliu-Liviu Popescu, A power-grab by the Constitutional Court: the censuring of legal norms on the unmasking of the communist political police
Through its Decision no. 51/2008 the Constitutional Court declared unconstitutional the entire text of Law no. 187/1999 concerning access to one’s Securitate file and the unmasking of the communist political police. Essentially, the unconstitutionality decision states that the law institutes a form of legal accountability and withholds one’s right to serve in certain offices, and that the competent state agency in this case is an extraordinary legal entity. In fact, the legal norm is a simple “truth law” rather than a lustration law, and the resolutions of the agency may be appealed in court. Furthermore, the Constitution explicitly safeguards the ideals of the anti-communist revolution of December 1989, among which the disestablishment of the communist Securitate was a paramount objective. The decision of the Constitutional Court is itself unconstitutional – an act of power-grabbing.
Bianca Selejan-Guţan, State “jurisdiction” in the jurisprudence of the Strasbourg Court: a variable concept?
The article discusses some aspects of the most important and controversial issue regarding Article 1 of the European Convention on Human Rights: the notion of „State jurisdiction”, which is crucial to establishing the Convention’s applicability to persons who raise complaints before the European Court. Having as starting point some recent jurisprudential landmarks, the article critically analyzes the Strasbourg Court’s position on the extraterritorial application of the Convention, the different interpretations of the notion of „global and effective control” on the territory, as well as the doctrinal reactions to the reasonings and outcomes of the Court’s judgments. The „variable geometry” of the notion of „jurisdiction”, to which the Court’s case-law on the matter now leads, in its turn turns the notion of espace juridique européen into a relative notion, influenced by international politics.
Oana Chiriţă, The duty to inform: one step closer to changing the traditional meaning of the legal profession?
The article approaches critically the CJCE decision of 26 June 2007 in the case C-305/05 concerning the manner in which attorneys’ duty to inform under Directive 2001/97/CE of the European Parliament and the Council may be reconciled with the guarantees offered by the right to a fair trial under Article 6 of the European Convention of Human Rights. The article discusses the extent to which Article 6 of the Convention is applicable to the attorneys’ duty to inform, as construed under the Convention, both in cases of criminal charges and in cases in which an official charge against the client has not yet been brought. The issue of the applicability of Article 6 is followed by a discussion the latter’s exigencies and the issues they may raise in the case of the attorneys’ duty to inform: the right to defense of a client involved in financial transactions which may involve laundering, on the one hand, and the attorney’s right to remain silent on being questioned by the authorities with respect to the alleged laundering operations in which his or her client may be involved. The article concludes that, since it does not comply with the provisions of the ECHR, the attorneys’ duty to inform is not an adequate instrument for the prevention of money laundering.
Gabriel Andreescu, The Tanacu case: the importance of amending the criminal law to protect citizens from torture and inhuman or degrading treatment
The study looks at the attitude of the public opinion towards the death of Irina Cornici, a young woman murdered by being exposed to inhuman treatments during an exorcism held on the premises of the Holy Trinity Monastery in the village of Tanacu; at the failure of the system protecting persons with mental disabilities in the same case; and at the nature of the charges brought against the perpetrators of the crime. The article argues that exorcism, a practice current in Romanian monasteries and churches, must be strictly monitored by state agencies. It further suggests that it is imperative to amend the Criminal Code so as to define the brutal manner in which persons with mental disabilities are treated during such religious rituals as crimes in the class of degrading treatment, ill treatment or torture.