Abstracts Nr 1, 2020
Valentin Constantin, Our issues and the issues of judge Mihaela Niță
Abstract: I see in the decision in the criminal case no. 196/F on 07.10.2019 before the Court of Appeal in Bucharest – Criminal Section I, decision made by judge Mihaela Niță, a sign of the more general issues present in the Romanian criminal system. I argue that the preeminent role of the personal conviction of the judge gives the latter a great power that must be counterbalanced. Relying on a single judge in criminal trials goes against this principle. I explain why the Criminal Law is the strongest connection of the State with its totalitarian past. I discuss prescription, which allows inveterate criminals to elude criminal prosecution, the law-enforcement system and full punishments. I argue for the advantages of the adversarial system, as opposed to the inquisitorial system, which has been used in all the instances of political retaliation. Regarding the motivation of the judge, I find it irrational to take into consideration the paltry and the insignificant as aims for a legal norm. The arguments of the judge hurts unnecessarily the feelings of those close to Gheorghe Ursu, and her value judgments seem extracted from the legal ideology built up during communism.
Keywords: criminal sentence, Gheorghe Ursu, Mihaela Niță, prescription, adversarial system, inquisitorial system, political retaliation
Cristian Nuică, A legal point of view regarding the manifestation of national identity under conditions of equal opportunities in education
Abstract: The article intends to present, in the context of the case Adam vs. Romania in front of the ECHR, some answers regarding, on the one hand, the existence of a possible form of discrimination regarding the fact that Romanian students belonging to the national minorities have to take, as part of their baccalaureate exam, both written and oral exams of Romanian language and literature, as well as of their own language and literature; and on the other hand regarding the possible discriminatory character of the way in which the written and oral exam in their mother tongue is organized for students belonging to national minorities, in that the students have less time to prepare and / or rest between exams compared to students who do not have such a test. The author expresses his opinion that the first issue analyzed is not a form of discrimination, as the right of persons belonging to a minority to maintain their national identity, including in the sense of education and training, throughout life, in the mother tongue, goes along with the duty to assume the official language and to integrate into society.
Respecting the principle of non-discrimination implies taking into account the different and specific situation of national minorities, which imposes the right to receive different treatment, including in the field of education, in the sense of special measures or affirmative / positive public policies. Such measures may take the form of special school programs for learning the Romanian language, specifically aimed at members of a national minority, different from the mainstream classes both regarding the methods of teaching the Romanian language and literature, as well as the organization of specific examinations in the official language, adapted to the special situation of minority students.
Keywords: case of Adam vs. Romania; national minorities, national identity, equal opportunities and non-discrimination
Vladimir-Adrian Costea, Enforcement of punishment, the basis of the aspiration for the preservation of public order and public safety
Abstract: In this article, we aim to discuss the nature of juridical punishment applied to detainees charged with crimes against national security or against public order and safety, especially when the interrogation and enforcement mechanisms are put into practice in a way that falls short of transparency standards. The specific manifestation of violence within law-enforcement processes goes against the very ideatical core of the principle of human dignity, which flagrantly violates the provisions of the European Court of Human Rights. More concretely, we will refer to the recent ECHR ruling regarding the case Al Nashiri vs. Romania, where we will analyze the situation of the enforcement of prison sentences in secret detention facilities, where detainees were exposed to alleged systematic torture and inhuman treatments. We will thus explore the situation when the rights of defendants who stand accused of high crimes are severely curtailed in the name of the national security imperatives.
Keywords: sentence, human dignity, ECHR rulings, public order and safety, national security, secret detention facilities