Abstracts Nr 3, 2007

Corneliu-Liviu Popescu, Access to Constitutional Justice through Administrative Litigation

            The Romanian Constitution guarantees the right of access to the Constitutional Court for the purpose of contesting the constitutional validity of a law or of a governmental ordinance, by invoking an exception of unconstitutionality before a judicial court. In the particular case of governmental ordinances, a direct legal action before the judicial courts for administrative litigations has been considered unconstitutional by the Constitutional Court, for the reason that an exception cannot be transformed into a legal action. At the same time, a possible conflict of legal interpretation between the Constitutional Court, the judicial courts for administrative litigations and the regular judicial courts must not deny real and effective access to constitutional justice.


Gabriel Andreescu, From President Basescu’s Blunder to the Issue of Discrimination

The article argues that one may not request the prohibition of “different treatments, exclusions, restrictions and preferences” in opinions and statements made in private. As a result, in sanctioning president Basescu, the CNCD overreached. Other arguments concern the error in introducing Section V in the Ordinance no. 137/2000, which inadequately identifies the value of personal dignity as a right. The consequence of this mistaken identification was the enforcement of the law in question in the absence of adequate means of ensuring the principles of clarity, proportionality and predictability which remain fundamental to any legal norm. The repeal of this section of the Ordinance would enable the CNCD to stress acts of discrimination per se, as well as those policies which may diminish the violently exclusivist and offensive character of public language. As for the incitement to racial and xenophobic hatred, this is already the province of criminal law.


Radu Chiriţă, The Independence and Fairness of Magistrates, or Types of Neutrality of the Judicial Power (II)

The second aspect of magistrate neutrality is fairness. The European understanding of fairness involves both a subjective dimension, which prohibits magistrates’ prejudice, and a functional dimension, which prohibits magistrates to rule on issues that were previously ruled upon on a different occasion. As such, ensuring magistrate neutrality at the functional level means little beyond a prohibition of the accretion of a magistrates’ decisions for one single case, whether that sole case is the subject of one procedure or more. The final part of the study dwells on the analysis of Romanian jurisprudence in the field, which remains quantitatively limited but adds qualitative information. The final conclusion of the article offers, as a remedy to the prevalent lack of neutrality, an increase in the transparency of the act of justice.


Liviu Andreescu, Religious Education in Some European Countries

In analyzing the education system in several European countries the author shows that: (a) European practices and policies in the field of religious education formally include many or most of the attributes of religious education in Romania; (b) the existing solutions reflect historical arrangements, as well as recent developments which aim at making religious education compatible with general conceptions concerning the education of children; (c) religious education policies in Western Europe have constantly adjusted and have been subordinated to the higher-level principles of freedom of thought, conscience and religion, as well as to the higher interest of the child; (d) while in a sizeable part of Western Europe the dominant trends resulted in bringing religious education closer to the goals and strategies of the non- and/or multi-confessional solution, the Romanian trend has been to give confessional education an increasingly parochial dimension. This is one of the reasons that explain why the system of confessional education in this country is still quite prone to abuse.