Abstracts No 3, 2011

Valentin Constantin, The illusion of the ex-ante constitutional control

Abstract: The article calls into question the effectiveness of the ex-ante constitutional control and, also, the usefulness of non-binding (advisory) decisions of the Constitutional Court of Romania. The conclusion is that the control itself is of little efficiency and that a negative effect on the prestige and authority of the Constitutional Court exists. The recent 789 decision of June 17, 2011, by which the Constitutional Court ruled on the draft law revising the Constitution, shows, in my opinion, that this type of control fails in the case of the two analyzed proposals to revise. The first proposal concerns extending the duration of detention of a person from 24 hours to 48 hours, the second concerns the establishment of a financial liability of judges for judicial errors they have caused, liability that would be regulated by organic law.

Keywords: Constitutional Court, ex-ante constitutional control, duration of detention, financial liability of judges, judicial errors

Gabriel Andreescu, Discrimination against vs. discrimination for, hence against...

Abstract: The study looks at the importance of a particular type of discrimination, widespread within the Romanian democracy, an anarchic democracy where the rule of minority interests  over the common good is an invariant of electoral transitions.  Three cases of  the state favoring  private social actors: the State-Church partnership, the system of special pensions and the status of religious minorities within the public media, provide the framework for defining  "discrimination for, hence against." This type of discrimination encompasses privileges that remove or limit the access of individuals or groups to legitimate opportunities. To the extent that the "legitimate opportunities" correspond to economic, social and cultural rights, the issue of the "discrimination for, hence against" finds its natural framework for interpretation and application in the International Covenant on Economic, Social and Cultural Rights.

Keywords: anarchic democracy, legitimate opportunities, discrimination for, hence against, International Covenant on Economic, Social and Cultural Rights

Mariuca Oana Constantin, The cultural defense within the Romanian criminal law system. An interdisciplinary study of early marriages in traditional Roma communities.

Abstract: The study raises the issue of whether the cultural defense is being applied in Romania in spite of the fact that there is no legal framework in this regard, and shows that the defense operates de facto in the criminal jurisprudence, by being invoked before the courts and by influencing verdicts and the individualization of punishment. The research looked at the "early marriages" taking place in some traditional Roma communities, with consequences in the criminal law realm. We developed an outline of the ethical and legal reasoning of judges in solving this problem and we compared it to the ethical criteria of admissibility of cultural exemptions set by the theories that have tried to detect the conflict between the norms and customs. We showed that an illiberal multiculturalism operates in Romania in relation to some of the cultural practices of some traditional Roma minorities, practices affecting the rights and freedoms of some of their members. The conclusions of the study serve to raise awareness of the profound and yet hard to discern effects of this pattern of verdicts in the socio-political realm.

Keywords: cultural defense, illiberal multiculturalism, early marriages, traditional Roma communities, women rights, child rights

Delia Panait, Changes within the Family International as an issue concerning freedom of thought, conscience and religion

Abstract: This paper examines the issue of the religious freedom of members of the Family International community, one of the new religious movements present within Romania for the last 20 years. I find of relevance the current status of this religious minority; its interaction with the Romanian legislative framework, public attitudes, the media and the Romanian authorities; and the consequences of choosing "to be a member of the Family International." The study describes, for the first time in scientific literature, the radical transformation that the Christian organization The Family International is undergoing. I assess the implications for the social, professional or civic life of its members, for the collective dimension, for the defining of and the creation of the group of Romanian citizens or aliens with permanent residence in Romania who adhere to the convictions and religious beliefs of this religious minority. We document the cases showing that the Romanian state does not provide adequate protection to the Family International, despite legislative and constitutional guarantees.

Keywords: Family International, new religious movements, beliefs, religious minority, freedom of thought, conscience and religion