Abstracts Nr 4, 2015


Gabriel Andreescu, “The anti-legionary law” as a matter of the ethics of memory

Abstract: This study was written in answer to the widespread debate created by the passing of Law no. 217/2015 to amend OUG no. 31/2002. It analyses the context in which the draft law was created, its argumentation, and the reactions before and after the passing of the law. One part of the study is dedicated to the main issue of concern, the banning of organizations based on ideological criteria. I showed that the option between a single or two separate laws addressing the fascist and communist past should be treated with nuance. Using as an interpretive framework the ethics of memory, I analyzed the ethnicization of the ethics of memory, and the issue of ethical respectability and legitimacy regarding the researchers and the moral ideals of the „Elie Wiesel” Institute. I showed that the purpose and motivation of a humanist ethics of memory have been supported in the last years by the European doctrine for addressing the communist past and the ECHR jurisprudence. I made a few observations regarding the definition used by the law for „the Holocaust in Romania”, I analyzed available knowledge on the gravity of anti-Semitism in Romania, and on the dangerousness of legionarism if it existed today. The intention to re-legitimize the People’s Tribunals was evaluated from the point of view of the ECHR jurisprudence. 

Keywords: legionary movement, fascism, communism, People’s Tribunal, ethics of memory, ethnicization of the ethics of memory, Law no. 217/2015, OUG no. 31/2002


Laura-Maria Crăciunean, The constitutionality and conventionality control in Romania: on the legal interest of the justice seekers

Abstract: After the fall of the Berlin Wall, many former communist states had to effectively “transplant” into their legal system not only values and principles, with which they were not at all familiar, but also brand-new institutions. Among these new legal institution one can include, for example, the Ombudsman, the Romanian Constitutional Court (RCC) - practically, the entire idea of constitutional justice, including the access of individuals to it and the exception of unconstitutionality - and the direct access of Romanian citizens to the European Court of Human Rights. In this context, this paper aims to answer several questions, namely: 1. How do the Romanian citizens, currently, have access to constitutional justice and how frequently do they use it? 2. How do the Romanian citizens have access to the ECHR and which are the main features of this form of human rights protection? and 3. What could be the impact of a future direct access to the RCC, in terms of number of complaints addressed to the ECHR? If there would be the possibility of direct access to RCC, could this be translated into a reduction in the number of complaints addressed to the ECHR?

Keywords: constitutionality control, conventionality control, human rights, constitutional justice, direct access


Elena Lazăr, The protection of intellectual property in the jurisprudence of the European Convention on Human Rights

Abstract: Intellectual property, a fairly recent right if we look at the small number of requests brought before the European Court until the ’90s, is protected by the European Convention on Human Rights through article 1 of the Additional Protocol no. 1, as a type of « possession », as well as article 10, but only on a subsidiary basis. I use the term « subsidiary » because the European Court judge makes an analysis of the competing interests involved in order to establish which limitations are justified.

Keywords: intellectual property, European Convention on Human Rights, Additional Protocol no. 1, European Court of Human Rights


Măriuca Oana Constantin, Cultural identity – a potential mitigating circumstance? The use of cultural defenses in Romanian criminal trials

Abstract: The paper defines the concept of cultural defense and identifies the challenges of its use in practice. Cultural defense means that the judge considers arguments related to cultural identity, in both criminal and civil trials, when either the parties or the facts are directly connected to a cultural background. The study only focuses on the cultural defense in the context of Romanian criminal law, where, despite the absence of a formal cultural defense, it might arise de facto as a request to mitigate or even to exonerate the lawbreaker from punishment. The paper examines the consequences of the indirect use of this defense and whether its formal regulation is ethically justifiable. Taking into account the fact that cultural identity is often used as an excuse for oppressive traditions against the most vulnerable members of certain communities, the study argues that the use of cultural defense in criminal law implicitly legitimizes the abusive practices and the proliferation of internal vulnerabilities. 

Keywords: cultural identity, cultural defense, criminal law, lawbreaker, oppressive traditions, the most vulnerable members