Abstracts Nr 4, 2009

Valentin Constantin, The Crisis of Constitutional Articles 85 and 103

 The study analyzes the current confrontation between the opposing interpretations of the initial paragraphs of articles 85 and 103 of the Romanian constitution on the nomination of the candidate for the office of prime-minister. On the basis of the distinction between rights and competences and that between competences, privileges and simple obligations, as well as in following textual and teleological interpretations, the author shows that Romania’s current constitution establishes in a straightforward manner the competences for the selection of the prime minister: the president must be guided by his constitutional role and select a person who is either objectively able to finalize negotiations and ensure the majority’s support, or subjectively able to do so (the nominee being an authority in a specific field), or both.

 Keywords:  norm, constitution, competences, obligations, president, prime-minister, absolute majority, legal relations



Gabriel Andreescu, On the Anonymizing Procedure Adopted by the National Council for the Study of Securitate Archives

 The 2007 decision of the National Council for the Study of Securitate Archives (CNSAS) to unify the anonymizing criteria for claimants and researchers has led to a precise set of criteria through which the Council aims to protect the right to privacy. The study looks at the norms for anonymizing information on the alleged collaboration of third parties with the Securitate in the absence of evidence that certifies beyond any reasonable doubt the collaborator status. The author shows that the jurisprudence of CNSAS and the appellate courts is both inconsistent and open to criticism. The “certification” of the collaboration of persons who did not directly and formally belong to the repressive apparatus, yet are mentioned as informers, agents, sources etc., is a deeply problematic issue. So are the arguments which might prove that the persons are not guilty of having served the repressive bodies. The article argues that the CNSAS should support and participate in the activities of responsible researchers who may generate a doctrine of collaborationism, rather than introduce arbitrary hindrances for their work.

 Keywords:  Securitate, CNSAS, informers, norms, anonymizing, collaborationism, private life, research, honor, jurisprudence



Raluca Bercea, On Good Faith in Proceedings and the Reasonable Character of the Romanian Government’s Defense Before the European Court of Human Rights 

 Abstract: The protection of fundamental rights in Romania is problematic on several layers. In relation to the system of the European Convention and of the European Court in Strasbourg, it proves, naturally, as vital that the State should go beyond the threshold of fulfilling a minimal obligation, namely that of enforcing the judgments pronounced against it, and assume its role as primary guarantor of the effectiveness of the fundamental rights which, as far as it is concerned, represent an obligation which results from their objective nature. At the same time, coherent with such imperative is the requirement, once again a minimal one, that through the voice of its representative within the European court proceedings, the Romanian Government should transmit, by means of a procedural good-faith and reasonable conduct, that it pursues the achievement of the same desideratum. The paper analyses, from this perspective, the Government’s defences in several affairs tried by the European Court in Strasbourg.  

 Keywords: good faith, reasonable defense, effectiveness, fundamental rights, court proceedings, European Court of Human Rights,



Corneliu-Liviu Popescu, Romania’s Interwar Fascist Politics and Its Relevance to Today’s Presidential, Direct, Populist Rule

The study looks at the deepening of anti-democratic and authoritarian reflexes in current political actions and attitudes in Romania. The study discusses the notion of a supreme leader, as a savior of the nation; the anti-party or one-party discourse; the discrediting of local autonomy; attacks against the press; the politicization of the state administration; the subordination of the repressive apparatus; attacks against important businessmen; the substitution of propaganda for debate; the use of the economic and value crisis; the obedient rallying of intellectual elites; inducing the notion that democracy has no enemies; nationalism; the myth of territorial conquest; population’s mistrust in the essential institutions of democracy, as opposed to the high level of trust in the army and the church; and the frequent shifts from left to right. In this context, it is even more necessary for democracy to claim and sustain its militant character.

 Keywords:  fascism, presidential government, crisis, democratic institutions, authoritarianism, accountability