Abstracts No 2, 2011
Gabriel Andreescu, The Institutionalized Discrimination of the Greek-rite Catholic Church in Romania: The Intervention of the National Council for Combating Discrimination
Abstract: The study looks into variety of instances in which the Board of the National Council for Combating Discrimination (NCCD) has, without an external notification, approached the condition of the Greek-rite Catholic Church (GRCC) in Romania as presented by the US Department of State’s Religious Freedom Report for 2009. The decisions of the Board do not, generally speaking, find instances of discrimination against the GRCC – either because the cases are said not to involve relevant provisions of Government Ordinance 137/2000, or because the Council claims no jurisdiction over the matters at hand. The appropriate verdict of (serious) discrimination against the GRCC is constantly passed over because the object of the cases or the complaints is improperly defined. The study analyzes the historical discrimination against the Greek-rite Catholic Church, especially at the hand of the Romanian state and/or the Romanian Orthodox Church (ROC). The study criticizes in particular the solution adopted as early as 1990, namely, involving the ROC in the procedures of retrocession of former GRCC places of worship. Although was is notorious both that the ROC was involved in the disestablishment of the Greek-rite Catholic Church in 1948, and that the former targeted the eventual dismantling of the latter, the Romanian Orthodox Church was granted the privilege to veto the act of historical reparation, which it has duly abused to this date.
Keywords: discrimination, legal action without external notification, reversing the burden of proof, Greek-rite Catholic Church, Romanian Orthodox Church
Lucian Bojin, The Conflict of Principles: A Comment on the Grand Chamber Decision in the Lautsi Case
Abstract: This is a technical commentary on the kind of legal thought that has determined the final decision of the European Court of Human Rights in Lautsi v Italy. The Grand Chamber established a clear hierarchy between the importance of Article 2 of the Protocol and Article 9 of the European Convention in granting priority to the first – a step not taken by the initial court. The complaints of plaintiff Lautsi would have stood a better chance of being judged favorably had Article 9 been accorded preeminence. This is because this article has a broader sphere of applicability than Article 2 of the Protocol (the entire social framework of a person versus the more limited educational environment). This broad sphere of applicability enables numerous connections and the discovery of varied meanings of freedom of religion.
Keywords: the Lautsi case, right to education, freedom of thought, conscience and religion, margin of appreciation, European Court of Human Rights
Dezideriu Gergely, Interpreting the Minimal Standards of the Race Equality Directive Through Jurisprudence: Discrimination by Association, Segregation Based on Ethnic Origin and Delimitations between Positive Discrimination and Positive Action
Abstract: The present article explores the jurisprudence of the National Council for Combating Discrimination, as part of the implementing report of the Race Equality Directive in Romania, recently communicated to European Commission. The article analyses the interpretation of several concepts, such as discrimination based on racial or ethnic origin, and discrimination by association with national or ethnic origin and color. In this context, we offer a commentary on the case law regarding the right of a person belonging to a national minority to freely choose to be treated or not as such, and on the legal consequences in connection with the principle of non-discrimination; on the case law on segregation of Roma children in education as a form of direct discrimination on the ground of ethnic origin, as well as the importance to achieve a just balance between the interests of the child and of the school. Subsequently, we look into the practical distinction between the prohibited positive discrimination and the allowed positive action/affirmative measures in relation with the political participation of national minorities and the special places for Roma candidates in admission processes in education.
Keywords: direct discrimination, discrimination by association, segregation, ethnic origin, European Commission, National Council for Combating Discrimination