Abstracts Nr 3, 2014


Carmen Achimescu, The relationship between European justice systems in the context of the European Union joining the European Convention on Human Rights 

Abstract: The coexistence of European systems for Human rights’ protection has risen up some litigation-related problems, with regard to the interference between national and European courts, but also related to the interaction between the Strasbourg and Luxemburg Courts. This issue is quite difficult, taking into account that the relationship between the two European Courts has been spontaneously built-up and it does not have yet a conventional base. The Project for the European Union’s accession to the European Convention for Human Rights provides that the European Union will accede to the Convention on an equal position with the other high contracting parties; some adjustments are nevertheless considered to be necessary in order to preserve the European Union’s particularities. Therefore, the „co-defendant” mechanism is meant to guarantee the correct delimitation between EU and member States responsibilities, while the „prior involvement” would allow the EU Court of Justice’s intervention in cases in which it has not had the opportunity to pronounce on compatibility of an EU act with fundamental rights.

Keywords: national act of application, national margin of appreciation, presumption of equivalent protection, clear failure to protect human rights.  


Valentin Constantin, How much do fundamental rights cost?

Abstract: The article analyses, from an economic perspective, the manner in which two constitutional rights work in our country: the presumption of legality of the assets owned by a person and the right to free counsel in criminal proceedings. The presumption of legality is a fundamental right not present in other constitutions and that has been compared to the presumption of innocence. The right itself is a powerful obstacle in controlling the provenance of assets. There are hard to estimate social costs implicit in respecting such a right. The right to free counsel is an example of inefficiency caused by costs. The conclusion is that it is difficult to assure efficiency in regard to these rights and this goal can be achieved only through a process of incremental growth.

Keywords: fundamental rights, constitutional rights, criminal procedures, costs, efficiency, incremental growth


Teodor Papuc, Exiting „semi-constitutionalism”

Abstract: In this paper, the author seeks to disprove some allegations made by Romanian lawyers that the Constitutional Court of Romania (‘the Court’) does not have any power to review the decisions regarding referrals in the interest of the law made by the High Court of Cassation and Justice. According to these lawyers, the text of the Constitution is strict and exhaustive in respect to the Court’s powers. The author argues against the myths that haunt the Romanian legal world which state that the Court should not enrich the text of the Constitution and the text of the law.

Drawing on the theory of a famous American professor of constitutional law and the practice of Western European courts, the author asserts that constitutional judges are not and cannot be just "the mouth that states the words of the law". The paper's conclusion is that the Romanian Court's judicial activism is a normal practice among other European courts and that in a united Europe it is difficult to sustain the application of some solutions to a single system.

Keywords: Constitutional Court, High Court of Cassation and Justice, constitutionalism, semi-constitutionalism, contentious, judicial activism


Elena Lazăr, Applying Article 3 of the ECHR to persons deprived of their liberty – an evolutionary jurisprudence measure

Abstract: The applicability of article 3 of the European Convention on Human Rights to people deprived of their liberty is of great importance in the context of the process of increasing rights of prisoners through this European instrument. Thus, by way of a constructive and progressive interpretation made by the European judges, the field of application of this article was extended to include the issue of detainees. The idea behind this jurisprudential development lies in the fact that prisoners represent the people that are most likely to be submitted to degrading, inhuman treatments or torture, given that they are placed under a subordination relationship with the authorities. In addition, the authorities dispose of a discretionary power over detainees and, under the pretext of preserving order and security in prisons, they might commit abuses.

Keywords: European Convention on Human Rights, torture, inhuman or degrading treatments, privation of liberty, detainee, discretionary power, abuse