Abstracts No 3, 2012

Corneliu-Liviu Popescu, The proof of collaboration with the political police of the totalitarian communist regime 


Abstract: The national legislation regarding the uncovering of the collaborators of the secret police of the Romanian totalitarian communist regime states that one of the methods for proving this status is represented by the reports of agents of the Securitate that record in writing the verbal declarations of these individuals. In their jurisprudence, the High Court of Cassation and Justice and the Constitutional Court have consistently stated that in the absence of any direct proof of collaboration with the communist secret police (statement of collaboration, notes and reports providing information, receipts for cash payments, etc written or signed by the concerned individual) it is not acceptable to assign the collaborator status based exclusively on this type of reports written by agents of the Securitate. It is obvious that, by making this choice, real collaborators of the Securitate are left unexposed for lack of a direct proof, while knowing that it's perfectly possible that some reports of agents of the Securitate are true and the people involved really provided information to the Securitate. Nonetheless, this choice is consistent with the general principals of  law (the presumption of innocence, as a presumption of good faith), including the fundamental theoretical principle that the law is interested not in the absolute truth but only in the legal truth (which is the truth established based on evidence legally submitted to the competent courts, following procedure).

Key words: collaborator, Securitate, jurisprudence, presumption of innocence, High Court of Cassation and Justice, Constitutional Court



Valentin Constantin, The exception of unconstitutionality when invoked by the State


Abstract: The article discusses a new example of the exception of unconstitutionality invoked by the State, in this case invoked by the Ministry of Justice. Once again, the Constitutional Court’s deference led to a decision difficult to justify judicially. In the name of the separation of powers, the Court forbade the lower courts to address the laws regarding magistrates’ pay, from the point of view of internal anti-discrimination law. The Court failed however to consider the relevant international obligations of the Romanian state as they appear in European Union law and are incorporated in the Ordinance. The effects of the 12th Protocol to CEDO have not been considered either. Also, the Court failed to consider the manner in which national judges must solve the conflict of norms between the internal law and the antagonistic international treaty.

Key words: exception of unconstitutionality, Constitutional Court, the separation of powers, Governmental Ordinance no. 137/2000


Asztalos Ferenc Csaba, The gender-dependent age of retirement in Romania – a source of discrimination


Abstract: The decisions regarding the difference in age of retirement between men and women showcases the conflict between the courts and the Constitutional Courts. The courts, directly applying the jurisprudence of the Court of Justice of the European Union, decided at the lower courts level that the gender-dependent difference in the age of retirement is a form of discrimination. The appeals courts went on to nullify these decisions based on the opinions of the Constitutional Court, which had affirmed the constitutionality of the provisions establishing different ages of retirement for men and women, thereby going against. EU legislation and the jurisprudence of the Court of Justice of the European Union. We consider that in this case a change of perspective for the Constitutional Court is necessary, and that the courts are required to apply directly the jurisprudence of the Court of Justice of the European Union. The gender-dependent difference in the age of retirement, if used as a reason for firing women, is discrimination.

Key words: age of retirement, discrimination, the courts, Constitutional Court, Court of Justice of the European Union



George Eduard Roghină, Pilot Judgments of the European Court of Human Rights – effective indirect remedy for the breaching of fundamental human rights and liberties by states?


Abstract: By releasing pilot judgments, the European Court is helping – through general guidelines established in order to redress actual disputes and remedy future structural dysfunctionalities that may appear in national judicial systems – specialized authorities of the member states to consider and undertake the best solutions for the realization of citizens’ rights and liberties.

State members are the ones who are deciding on the actual measures considered as most efficient in fulfilling the objectives mentioned in the pilot judgment, but the European court is the one that points out the general goals that must be accomplished for the complete enforcement of the respective judgment.

Thus, the «Pilot Judgment» is itself appearing as an authentic effective indirect remedy for the violation of fundamental human rights and liberties by states.

Keywords: European Convention on Human Rights, European Court of Human Rights, pilot judgment, Rule 61, case Burdov v. Russia, individual and general measures.