Abstracts Nr 3, 2009

Corneliu-Liviu Popescu, The Unstable Nature of Electoral Law


Although the Constitution expressly forbids the use of emergency ordinances in the field of electoral rights, which may only be regulated through organic laws, in practice all electoral laws (for the European Parliament elections, national parliaments, for the presidential and local elections) were substantially and repeatedly modified through emergency ordinances. The Constitutional Court has proven very permissive in violating the will of the constitution-makers concerning the Parliament’s monopoly of the field.

Keywords: Electoral rights, electoral laws, organic laws, emergency executive regulations, judicial constitutional review.


Dezideriu Gergely, The Constitutional Control of the Independence of the National Council Combating Discrimination and Its Compliance with the acquis communautaire and European Law


The present paper explores the question of the independence of the National Council Combating Discrimination, as initially adopted by law, as well as in the context of the subsequent amendments following Romania’s accession to the European Union and the obligation to harmonize the anti-discrimination legislation with the acquis communautaire. The article is based on the personal contribution of the author to the written arguments presented by the NCCD before the Romanian Constitutional Court on the case files challenging the constitutionality of the legal provisions related to the statute and functions of the National Council Combating Discrimination.  

Keywords: Discrimination, acquis communautaire, minimal standards, European directives, National Concil Combating Discrimination, European Commission


Anamaria Groza, The Fairness of Judicial Procedures, a Many-sided Condition of a Fair Trial


This study, which focuses especially on the jurisprudence of the European Court of Human Rights, looks at the structure, dynamics and consequences of the fairness of the judicial procedures, one of the most important guarantees of the right to a fair trial. The sources of fairness are multiple and complex, and reach beyond the strictly judicial domain. Through its creative jurisprudence, based especially on Article 6 of the European Convention of Human Rights and the constitutional traditions of the European Communities member states, the ECHR (especially) and the European Court of Justice defined and developed the substance of fairness as a procedural guarantee. While the fairness of the judicial procedures presupposes that each party has the effective opportunity to defend its rights in court in a way that does not put it at a disadvantage, the European courts have opted in favor of a form of direct control, depending on the entire process and on the circumstances of each case. This control is meant to offset procedural missteps occurring at various stages in the trial. The control of fairness also varies depending on the nature of the case, with criminal cases triggering tighter control.

Keywords: fairness of judicial procedures, equality before the law, European Court of Human Rights jurisprudence 


Ionuţ Sterpan, Same-sex Marriages: a Libertarian Perspective


Parties in the debate over legalizing gay marriage share one cast of mind: that the state is the proper institution to define the status of marriage by a one-size-fits–all formula. The libertarian solution to the problem is to deny that assumption and transfer the prerogative of sanctioning and enforcing unions to a set of competing autonomous civil organizations, lay or religious. For the case in question, economic analysis of law and public choice insights show why a libertarian favored system that first allows a diversity of unions and only rules out those that are eventually proved in a Court to be too injurious to third parties, seems less biased against gay marriages than the status-quo. It would serve better the values of liberty, equality, justice, and also satisfy the conservative insistence on close congruity between community acceptance and legal treatment. For the explosion of the definitional case against gay marriage to the effect that it is impossible for gays to “marry”, special philosophical attention is given to the natural and legitimate way in which words gain new meanings. The slippery slope objection according to which marriage liberalization legally opens the door to polygamy and matrimonial unions with animals or inanimate objects is formally sustained; it is however practically weakened due to the special psychological value that only symmetrical relationships seem to have to people.

Keywords: same-sex marriages, libertarianism, mutually advantageous agreements, civil unions, equal standing


Rodoljub Etinski, The Effectiveness of Human Rights Protection in Serbia: Two Steps Forward, Three Steps Back


The study looks at the effectiveness of human rights protection in Serbia from the perspective of the right to a court and to an effective remedy in the jurisprudence of the European Court of Human Rights. The first decisions of the Court against Serbia revealed weaknesses in the articulation and protection of the fundamental rights guaranteed under the Convention. One of the chief causes of these weaknesses is the absence of legal means and regulations capable of yielding the desired judicial effects. Another issue is related to the relationship between the courts and other state authorities. The omission of judicial reform in the current Normative Reform Strategy, 2008-2012, may be considered a serious drawback of said Strategy.

Keywords:  European Court of Human Rights, effective remedy, the right to a court, Constitution of the Republic of Serbia, reform of judiciary