Abstracts Nr 2, 2008

Dan Claudiu Dănişor, Reflections on the Constitutional Regulation of Restrictions on the Exercise of Specific Rights and Liberties

 The constitutional regulation of the possibility of restraining the exercise of certain rights or liberties was revised in 2003 in order to bring it to the standards of the European law of human rights. The theoretical explanation and the practical application of this constitutional provision are nevertheless far from manifesting the consistency and the systematic character which its importance may suggest. The present study intends to uncover the systematic character of the provision and of its application, as well as to analyze each stage of the constitutionality assessment of a restraint to the exercise of a particular right or liberty. The study offers a new interpretation certain ideas concerning the meaning of the term “law” in the context of Art. 53 of the Constitution or the application of this provision to all rights and liberties (rather than only to the fundamental ones); it provides an original analysis of the causes which may authorize the limitation of the conditions of necessity or proportionality in a democratic society; and explores the connection of non-constitutionality to the manner in which the law is applied.


Corneliu-Liviu Popescu, The Fascist Public Discourse of Foreign Affairs Minister Cioroianu and the Complicitous Passivity of the Public Authorities 

 The public statements made by the former Foreign Affairs Minister Adrian Cioroianu concerning the purchase by the Romanian state of land in the desert where ethnic Romanian citizens (presumably Roma) ought to be exiled, as well as the latter’s commitment to disciplinary battalions where they ought to be subjected to hard work (read: in concentration and extermination camps), provide a typical sample of fascist discourse. Fascist discourse violates the dignity and rights of man and undermines democratic institutions, and is therefore not protected by freedom of expression. Unfortunately, the ex-minister’s fascist discourse was followed by the benevolent and complicitous passivity of political public authorities (Parliament, President, Prime Minister), as well as of the politically-neutral ones (Public Ministry, Ombudsman, National Council for Fighting Discrimination).


Mihail C. Barbu, Dana Barbu, The Ability of Orthodox Clergy under Recent Acts to Exercise Their Rights as Subjects of Procedural Law 

 The Government Decision no 53/16.01.2008 published in the Romania’s Official Monitor on the date of 22 January 2008 recognized the Statute for the Organization and Functioning of the Romanian Orthodox Church. According to art. 50 letter e second thesis,  the monks and clerks of the Romanian Orthodox Church may appear, may present themselves or may be brought before a court of justice, in person or by representative, in any type of causes, including in causes of personal interest, only with the written preliminary approval of the bishop.

Using this normative text as a starting point, the present study (elaborated in 6 chapters) analyses the possibility of the orthodox clerks to exercise their rights as subjects of processual law, relating art. 50 letter e of the Government Decision to art. 6 corroborated with art. 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms and to art. 21 and 24 of the Romanian Constitution, in the Romanian normative ensemble.

The study conclusions show that the provisions of art. 50 letter e second thesis of the Government Decision no 53/16.01.2008 are unconventional, unconstitutional and unlawful, which draws its inapplicability given the character of the superior norms and the possibility to go to the administrative contentious, and suggest that de lege ferenda it is necessary to bring alterations to the normative text.


Valentin Constantin, Some Notes on Voiculescu v. Romania

 This paper analyzes from the perspective of J.M. Bocenski’s distinction between deontic and epistemic authority the article published by Professor Corneliu-Liviu Popescu in this journal (issue 2/2008) on the power-grab by the Constitutional Court in censuring the legal provisions on the uncovering of the communist political police. The first type of authority concerns directives and imposes rules of behavior, while the second concerns propositions in general. The Constitutional Court’s decision in Voiculescu v. Romania cannot have, given the errors of legal categorization, any epistemic authority. It is additionally undermined by some contextual matters, notably the position of the judges targeted by the invalidated law. Nevertheless, from the perspective of Bochenski’s distinction, the deontic authority of the decision remains unaffected by the lack of epistemic authority.


Gabriel Andreescu, The Bucharest Court of Appeals on Freedom of Religion

On 20 February 2008 judges Monica Niculescu and Cristina Petrovici of the Bucharest Court of Appeals, Section VIII, ruled on the case brought by the Pro-Vita Association against the National Council for Fighting Discrimination on the matter of the display of religious icons in public schools. The study discusses the arguments put forward by the Court and claims they provide a clear and systematic analysis of the doctrine of freedom of thought, conscience, and religion; and that, as such, the ruling deserves to be considered a reference for other cases concerning possible violations of these freedoms. The study also parts with the judges’ analysis on two counts: Romania’s inclusion among the group of states characterized by laicity; and the legitimacy of decisions made by local communities concerning the display of religious icons in schools when such decisions are unanimous