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Aplicarea Directivei 2000/43/CE de către Curtea de Justiţie a Uniunii Europene

Author(s): István Haller / Language(s): Romanian Issue: 3/2015

The current analysis compares the interpretations of the Directive 2000/43/CE used by the European Court of Justice when implementing the principle of equal treatment of individuals regardless of their race or ethnicity, and the provisions of national law. I used as a source the EU database (www.curia.europa.eu) and the decisions of the NCCD Board. I highlighted the importance of including within national practice the jurisprudence of the European Court of Justice, which has decided that discrimination is not dependent upon the violation of a specific right – contrary to ECHR jurisprudence. I also criticized the fact that, while the ECJ treats racial (ethnic) discrimination as a serious form of discrimination, the NCCD often decides on only symbolic sanctions – warnings instead of fines.

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Stigma în discursul public despre avort în România

Author(s): Raluca Iustina Ionescu / Language(s): Romanian Issue: 3/2015

The article looks at pro-life organizations in Romania. I describe the legal and ideological framework within which the public discourse on abortion takes place in Romania. I identify the main organizations that represent the pro-life movement and their most visible public displays on the subject of abortion. I evaluate the visibility of their endeavors and characterize them from the point of view of political ideology (religious fundamentalism). Last I present a text analysis of public statements occasioned by the pro-life marches organized by pro-life organizations for the past six years in Romania. Using a coding scheme of eleven points, I look at the social processes that produce and reproduce stigma.

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Hotărârea CNCD privind declaraţii discriminatorii la adresa cetăţenilor din Republica Moldova

Author(s): Author Not Specified / Language(s): Romanian Issue: 3/2015

Complainer: National Council for Combating DiscriminationDefendant: Radu BanciuSubject: Discriminatory statements against the Moldovan citizens who come to study in Romania, especially against womenCollege director retained that the defendant in his capacity as moderator of a TV show made serious allegations; apart from insults to the Moldovan citizens, created and instigated a negative attitude towards them. Quality of defendant as a show host is important in assessing the analyzed scene, being public person occupying a position whose main object "transmission of information". College director notes that it is essential for people who express the public to avoid comments that can spread and lead to increased intoleranceCollege director decides: 1. The aspects notified are subject to Art. 2 para. (1) and Art. 15 of O.G. no. 137/2000 on preventing and sanctioning all forms of discrimination, republished; 2. Sanctioning defendant with civil penalty to 5000 lei, according to art. 2 para. (11) and Art. 26 para. (1) O.G. no. 137/2000 in conjunction with art. 8 O.G. no. 2/2001 regarding the legal regime of contraventions, as amended and supplemented.

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Hotărârea CNCD privind instigarea părinţilor împotriva elevului cu ADHD

Author(s): Author Not Specified / Language(s): Issue: 3/2015

Petitioner: Carmen SultanaDefendants: Raluca Andreea Pana, SC Lumina Educational Institutions - International Middle School Spectrum PloiestiObject: instigation of parents against pupil with ADHD, and thus determine the complainant to withdraw his son from school.The petitioner maintains that she shot the child at a private educational institution in order to prevent his son, who is diagnosed with ADHD, should be subjected to abuses by state educational institutions and other parents.College director decides: 1. The issues brought before them, to refer to teacher behavior, falls under art. 2 para. (4) and (5) in conjunction with art. 15 of Ordinance no. 137/200, republished.

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Hotărârea CNCD privind afirmaţii care pot încălca imaginea publică şi demnitatea dlui Klaus Iohannis

Author(s): Author Not Specified / Language(s): Romanian Issue: 3/2015

Complainers: Alexandru Muraru Vice President National Liberal Party - Iasi county organization, Liliana Poenaru, Andreea Maria PaulDefendant: Gabriela Vrânceanu FireaSubject: statements that may violate public image and dignity of Mr Klaus Johannis, Christian Liberal Alliance candidate for the Romanian Presidency and the dignity of individuals / families without children.The notification concerns the statements of Senator Gabriela Vrânceanu Firea made on 7 October 2014 in the press conference of the Social Democratic Party, namely: "You're not a complete man if not raise a child ....", and others.The petitioner consider the claims of the defendant as discrimination against family Johannis and families without children for reasons beyond their control and calls CNCD finding and punishing acts of discrimination and order the publication of the summary judgment in mass media.The defendant seeks to reject complain, as on 07.10.2014, the subject of the press conference at the headquarters of PSD was the claims made in public by Mr Johannis that 'investing in real estate, not in children's education. "College director decides: 1. aspects notified art covered. 2 para. 1 and Art. 15 of O.G. 137/2000 on preventing and sanctioning all forms of discrimination, republished.

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Hotărârea CNCD privind neacordarea unei locuinţe sociale persoanei cu dizabilităţi

Author(s): Author Not Specified / Language(s): Romanian Issue: 3/2015

Complainers: B.C.Defendant: Mayor Institution Piatra NeamtSubject: not providing a social housing for persons with disabilitiesThe applicant considers discriminatory denial of social housing. He show that is an orphan and has a disability.College director decides: Award a score only 7 points handicap / disability degree, compared Scoring level of education (which can reach 35) is discrimination according to art. 2 para. (1) in conjunction with art. 10 letter h) the O.G. no. 137/2000;Apply defendant, Mayor Institution Piatra Neamt, civil penalty by 1,000 lei according to art. 26 para. (1) O.G. no. 137/2000.

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Cauzele A.K. c. Liechtenstein şi Nazarenko c. Rusia

Author(s): Diana Botău / Language(s): Romanian Issue: 3/2015

Art. 6 of the Convention; The right to a fair trial; Art. 8 of the Convention; The right to respect for private and family life; DNA test

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Sinuciderea asistată: opinia filosofilor

Author(s): Ronald Dworkin / Language(s): Romanian Issue: 3/2015

The Supreme Court decided two cases posing the question whether dying patients have a right to choose death rather than continued pain and suffering. We print here the brief filed as amicus curiae in these cases by the group of six moral philosophers listed above, with an introduction by Ronald Dworkin.The philosophers’ brief answers these questions in two steps. First, it defines a very general moral and constitutional principle—that every competent person has the right to make momentous personal decisions which invoke fundamental religious or philosophical convictions about life’s value for himself. Second, it recognizes that people may make such momentous decisions impulsively or out of emotional depression, when their act does not reflect their enduring convictions; and it therefore allows that in some circumstances a state has the constitutional power to override that right in order to protect citizens from mistaken but irrevocable acts of self-destruction. States may be allowed to prevent assisted suicide by people who—it is plausible to think—would later be grateful if they were prevented from dying.Each individual has a right to make the “most intimate and personal choices central to personal dignity and autonomy.” That right encompasses the right to exercise some control over the time and manner of one’s death.The patient-plaintiffs in these cases were all mentally competent individuals in the final phase of terminal illness and died within months of filing their claims.

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Jurisprudenţa Curţii Europene a Drepturilor Omului: iunie-septembrie 2015

Author(s): Dragoş Nicolae Costescu / Language(s): Romanian Issue: 3/2015

Case 1. Article 3, 8 and 14 of the Convention; Prohibition of torture, inhuman and degrading treatment. The right to private and family life; Prohibition of discrimination - Costel Gaciu v. Romania:In its judgment, the ECHR condemned Romania for the conditions endured by the applicant during pre-trial detention and for discrimination and violation of the right to respect for family life, setting authorities have applied this differential treatment when they refused demand to receive conjugal visits from his wife during a particularly long detention, 1 year and 10 months respectively.Case 2. The right to private and family life; Article 8 of the Convention - Olari and others v. ItalyFacts: The applicants in this case three gay couples wishing to marry Italians or enter into a civil partnership in Italy, were denied by the Italian authorities. The Constitutional Court held that "family" and "marriage" cannot be interpreted so as to alter the very essence of these notions that marriage is only the union between a man and a woman for the purpose of founding a family. ECHR finds "that the Italian Government has exceeded the discretion and failed to discharge their positive obligation to ensure that applicants provide a specific legal framework to ensure their recognition and protection of their same-sex unions".Case 3. The right to private and family life; Article 8 of the Convention - Sérvulo & Associados, Sociedade de Advogados, RL et al v. PortugalThe applicants in this case are a law firm and four Portuguese citizens, lawyers in that company. Central Department for investigative authorities opened an investigation on a few citizens of Portuguese and German, including a lawyer who worked for the applicant company, with the suspicion of corruption, conflict of interest and money laundering in connection with acquisition the Portuguese Government to a consortium of two German submarines.The Court considered that there was a breach of art. 8 of the Convention.

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Temele „legii antilegionare” din perspectiva eticii memoriei

Author(s): Gabriel Andreescu / Language(s): Romanian Issue: 4/2015

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.

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Realizarea controlului de constituţionalitate şi a controlului de convenţionalitate în România: despre interesul justiţiabilului

Author(s): Laura-Maria Crăciunean / Language(s): Romanian Issue: 4/2015

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?

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La protection de la propriété intellectuelle dans le système de la Convention EDH

Author(s): Elena Lazăr / Language(s): French Issue: 4/2015

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.

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Identitatea culturală – o posibilă circumstanţă atenuantă? Admisibilitatea clauzei culturale în procesele penale din România

Author(s): Măriuca Oana Constantin / Language(s): Romanian Issue: 4/2015

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.

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