Abstracts Nr 4, 2007

Corneliu-Liviu Popescu, The Conviction of Romania by the European Court of Human Rights for the Unconventionality of the Judicial Procedure for Misdemeanors


 According to domestic Romanian Law, misdemeanors are not criminal but rather administrative acts. However, taking into consideration the European autonomous notion of "criminal", misdemeanors are criminal in character if one looks at the case-law of the European Court of Human Rights. The result is the applicability of article 6 of the European Convention on Human Rights, on the right to a fair trial, in its criminal dimension. Penalties for misdemeanors are enforced by an administrative agent and they are the subject of contesting before a judiciary court, where the plaintiff has the obligation to prove the lawfulness and the lack of merits of the administrative act establishing the facts and enforcing the penalty. This aspect changes the burden of proof and constitutes a violation of the presumption of innocence - an element of the right to a fair trial. The conviction of Romania by the European Court of Human Rights involves the obligation of the state to modify its unconventional domestic legislation.


Lucian Bojin, The Freedom of the Press v. the Authority of Justice. Dworkin's Principles and a Re-reading of the Sunday Times Decision 


The Decision of the European Court of Human Rights in Sunday Times v. The United Kingdom has influenced to a considerable extent the practice of the Court with respect to the issue of free speech. The study looks at this famous case to interpret it from the conceptual perspective of Ronald Dworkin, which affirms the importance of principles as sources of law. The Strasbourg court found, in this confrontation between freedom of expression and the authority and impartiality of the judicial power, sensitive issues which prompted it to tip the scales in favor of the former. It judged the matter from a "rule-exception" paradigm, which however determines the ex post facto redrawing of the deliberative process on each occasion. When in a case similar to a previous series in which the decisions were consistent the Court decides differently, the doctrine speaks of a "jurisprudential reinterpretation ". Tipping the scales in the opposite direction is a result of the logic of the confrontation between principles. The fact that one prevails over the other does not eliminate the relevance of the overridden principle. In this respect, commentators and authors who generalize solutions in considering them a real "legal regime of freedom of expression" are mistaken.



Gabriel Andreescu, Textbooks: Discrimination or Indoctrination?

 The study looks at two recent decisions of the National Council for the Fighting of Discrimination (CNCD) on the existence of discrimination in a school textbook and, respectively, an academic one. The first, Religion - The Orthodox Cult for the 11th grade, was considered discriminatory, while the second, Introduction to Sociology, by Constantin Schifirneţ was "saved" by the principle of academic freedom. The author shows that it is difficult to interpret, and that there are limits in interpreting, the language of textbooks in terms of discrimination and, therefore, suggests that there are other relevant categories. To prevent the pernicious attitudes promoted by various textbooks, the relevant category should be that of indoctrination. Under this doctrine, textbooks which, in the case of compulsory education, indoctrinate the students should be prohibited. Indoctrination as such is not discrimination, but it does have consequences on the acts of discrimination which legitimize the interference of the CNCD.



Iulia Voina-Motoc, Human Rights and the Human Genome

 The purpose of the paper is to outline the main issues that need to be analyzed by a special rapporteur on the human genome and human rights. Among these issues: the human genome as a common heritage of mankind; the manipulation of the human genome and human rights; discrimination and the human genome; intellectual property and human rights. Among others, the paper concludes that it is necessary to develop an international framework considering research in both the public and the private sector, while the rights of persons and the social context need to be addressed from a perspective of reciprocity and inter-relation. Constraining regulations on research in this field and their application should be combined with a permissive legal framework. Thus, national laws should specify the criteria for future genetic testing, its commercialization and development.