Abstracts Nr 3, 2010

Valentin Constantin, The Constitutional Court, between fair-play and the argument from subsistence


Abstract: The article looks at the “social crisis” decisions of the Constitutional Court of 25 June 2010 in order to question the behavior of the High Court of Cassation and Justice in the case of two non-constitutional objections, the standard of fairness employed by the Constitutional Court judges in its decision on magistrates’ pensions, and the more general issues of the crisis of justice. By reference to the legal principle of fair-play as adopted in Belgium, the article argues that the moral value of fair-play should be attached the appropriate weight and that its practical importance in the working of normative systems should not be underestimated. The paper concludes that, given the lack of fair-play of the Constitutional Court and, particularly, the weak justification of its decisions, the Court has become an element in the general crisis of the system protecting the fundamental rights and liberties.


            Keywords: Constitutional Court, High Court of Cassation and Justice, constitutionality control, fair-play, standard of fairness, exceptional circumstances 


Gabriel Andreescu, Minorities of sexual practice?

Abstract: By discussing the repression of the Movement for Spiritual Integration into the Absolute (MISA) and of the religious organization The Family, the paper examines the central role of sexual allegations in the mobilization of the press and of the public opinion against these groups. The relation between the identity ascribed to such movements and their vulnerability raises the question of whether one should recognize a  category of “minority of sexual practice” alongside the more traditional minority of “sexual orientation”. An important argument involves the importance of recognizing the identity of a group in the case of serious, systematic discrimination, which degenerates into degrading treatments. One of the main counter-arguments cautions against diluting the original concepts by multiplying the categories to which they apply. Categories such as “minorities of sexual practice” are motivated only by exceptional circumstances – which, unfortunately, seems to be the case in today’s Romania.


Keywords: discrimination, harassment, repression, Movement for Spiritual Integration into the Absolute, The Family, identity, self-identification, spiritual couple, minority of sexual orientation



Raluca Nicolae,  Limits of Article 6(1) of the European Convention on Human Rights in fiscal matters

Abstract: The paper investigates the current state of the jurisprudence of Article 6(1) of the European Convention on Human Rights in fiscal matters, specifically in the context of the Ferrazzini v. Italy and Bendenoun v. France decisions. The article examines the non-application of the “civil aspect” of Article 6(1) in fiscal litigation; the concept of “civil rights and obligations”; the criticisms leveled at the Ferrazzini decision; the application of the “criminal aspects” of said article to fiscal matters; the jurisprudential criteria employed in determining a criminal charge; the fiscal criteria; and the limits in the application of the Bendenoun criteria. The article concludes that as far as the scope of the application of Article 6 is concerned, the jurisprudence seems to be still in the process of stabilization, being sometimes too vague and complex. The right to a fair trial is limited both by the traditional non-applicability of Article 6, which is in tune with the spirit of the legal text; and the strained applicability under an interpretation that, lately, has exceeded the bounds of the text. 


Keywords:  fair trial, criminal matter, civil law, taxation, fiscal law, repressive fiscal law, fiscal litigation, jurisprudence