Abstracts Nr 1, 2009

Corneliu-Liviu Popescu, The Institutional Undermining of the Rule of Law


Acts of Parliament, of the Romanian President, the Constitutional Court or the Government, respectively, have on several occasions called into question the existence and nature of state agencies which remain essential to the institutional architecture of Romanian democracy. The latter include the Parliament itself, the office of the minister in general and the Ministry of Justice particularly, the Supreme Council of National Defense, the National Council for Combating Discrimination, or the National Council for the Study of Securitate Archives. The article analyzes the undermining of the rule of law and of the democratic regime thus effected, and discusses the threat of an authoritarian regime.

Keywords: rule of law, stability of legal relationships, constitutional value, abuse of power, unconstitutionality


Gabriel Andreescu, The Need for Trained Judges in Cases of Collaboration with the Securitate as a Political Police


The study looks at decisions by the Bucharest Court, Section IX - Administration and Fiscality, dating from the end of 2008, in cases in which the National Council for the Study of Securitate Archives (CNSAS) had filed for the acknowledgement of the alleged cooperation with the Securitate. Three cases are discussed: two involve informants, the third a Securitate officer. Despite written pledges, incriminating informant notices, and punitive decisions made by the officer, the Bucharest Court, Section IX, ruled out the CNSAS's acknowledgements. The article analyzes the errors contained in the three legal decisions and argues that judges ruling in cases involving the collaboration with the communist political police need specialized training.

Keywords: Securitate officer, collaborator, political police, informant notice, warning, National Council for the Study of Securitate Archives


Asztalos Csaba Ferenc, Secularism and Cooperation between the State and Religious Denominations 


The article looks at the relationships between the state authorities and religious denominations from the perspective of international standards, international models and national characteristics. The relation between the state and the culte is analyzed starting from the principle of freedom of religion, with a view to identifying the effects of church-state relations on the latter. To safeguard the exercise of freedom of religion, whether individually or as a group, the state has both positive and negative obligations. The relation of inter-dependence between the state and the denominations must aim at balancing the two. Church-state relations should take into account legal principles and international models, as well as the national and international case law in the field.

Keywords: religious freedom, laicity, secular state, religious symbols, state neutrality, negative obligations, positive obligations


Dezideriu Gergely, The Segregation of Roma Children in the Romanian Educational System and the Legal Protection Against Discrimination


The present thesis explores the issue of the segregation of Roma children in education and the legal protection against segregation as a form of direct or indirect discrimination. The main premises of the analysis are the minimal standards as set by the Racial Equality Directive (2000/43/EC) and the recent judgments of the European Court of Human Rights against the Czech Republic, Greece and Croatia. In comparison with the jurisprudence of the European Court of Human Rights the author analyses the jurisprudence of the National Council for Combating Discrimination and its approach in solving several complaints dealing with the segregation of Roma children in Romanian education.

Keywords: Roma, racial segregation, legal protection, directives, equal treatment, European Court of Justice, European Court of Human Rights


Sonia Drăghici, The Fundamental Law, between Definition and Legal Effects


The article discusses the main lines of research in the field of individual rights, as defined in the French and German legal systems. The choice of system is determined by the fact that each represents a crucial moments in the development of these rights: the natural rights, and the basic rights. The importance of the notion of basic rights and its definition in the jurisprudence of the Constitutional Council generated, in the French legal order, the need to define the doctrine and even the existence of such a legal category in the system. The age of this notion in the German system made the most important doctrinal debate move beyond the need to acknowledge fundamental law as a new legal category, and discuss the effects of this category of rights on the legal order. These effects depend on the double nature, objective and subjective, of fundamental rights in the German order, as defined under constitutional jurisprudence. This descriptive discussion of specific legal aspects of fundamental rights in the two legal orders is justified by the fact that formulating a Romanian view of the matter depends directly on such issues.

Keywords: human right, fundamental right, defensive rights, public liberty, subjective rights, constitutional value


Valentin-Stelian Bădescu, Some Thoughts on Romania's Legal Protection of Refugees from the Perspective of Euro-Atlantic Integration


This study analyses the issue of refugee rights as part of human rights and in relation to international humanitarian law. The dynamic character of this "institution" mirrors the fluctuating nature of migration, and in particular of refugee flows, and was correlated with the policies and practices of states and international organizations. The latter tried, with relative success and with varying degrees of political determination, to identify solutions to preserve the dignity and integrity of persons by adapting specific systems of protection. The article discusses the lack of precision of the term "protection" in this context, showing why the lack or denial of protection is the main question of refugee law under the international law. It further stresses the importance of placing refugee protection in the wider context of the rights of each human being to life, liberty and security, which are endangered by the violation of the refugee status.

            Keywords: refugees, international protection, international humanitarian law, UN High Commissioner for Refugees, Euro-Atlantic integration