Revista Drepturile Omului

Nr.2 | 2019 | Vedeti revista aici



I. STUDII, CERCETARI, ARTICOLE

Adrian Bulgaru, Maria-Beatrice Berna

Convenția de la Istanbul: contextualizare europeană și analiză națională

In its social manifestations, the phenomenon of violence against women generates interest from both the point of view of causes and the repercussions it has. In this paper, we have highlighted the relevance of documents adopted by the Council of Europe in the period prior to the adoption of the Istanbul Convention, thus indicating the roadmap of the concerns of European officials in the field of violence. The approach postulated in the paper is more analytical than factual, so that our research is directed to the logical correlation between the provisions of the Istanbul Convention and the way in which the provisions of the Convention produce concrete effects within the internal legal framework. The main objective of this paper is to highlight the achievements and challenges related to the process of combating violence against women undertaken at national level.

Keywords: violence against women, addressing the issue at European level, etiology of violence, legal remedies, national regulations and case law

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Anca Moț

Educația și respectarea dreptului la educație în România

This paper analyses the topic of Education and the right to education in Romania from the perspective of the principles and provisions of the Convention on the Rights of the Child. The study is comprised of two sections: the first part consists of a brief overview of the Convention and provisions regarding the right to education. The second part presents the fulfilment of the right to education in Romania based on periodical reports submitted to the Committee on the Rights of the Child, and especially on the assessment made by this body and synthesised in its final recommendations, but also based on post-2015 global trends in this area, analysed by different specialised entities.

Keywords: UN Convention on the Rights of the Child the right to education, Report of the Committee on the Rights of the Child – Romania, post-2015 trends

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Radu Ștefan Pătru

Dreptul la informare și consultare a lucrătorilor din perspectiva reglementării internaționale și a legislației interne

The right to inform and consult the workers is a very important right, being relevant both for the individual labor relations between the worker and the employer, as well as for the collective labor relations, from the perspective of setting up an effective social dialogue. Given the importance of the aforementioned right, it is regulated both in the main international legal documents (such as European Union legislation or the European Social Charter) and in national law. In this study, we will analyze the regulation of the right to inform and consult the workers, as it appears from the international documents that regulate it, with reference to aspects of national law and jurisprudence.

Keywords: right to inform and consult the workers, international law, internal law

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Daniela Albu

Combaterea schimbărilor climatice – prioritate mondială

The paper presents the latest developments regarding the Paris Agreement. Since 2015, several countries have pledged to reduce their emissions to zero. Also, the latest developments show the involvement of states in the fight against climate change and their determination to limit the increase of temperatures to + 1.5°C above pre-industrial levels. However, so far, the states have failed in reaching a consensus on the global emissions trading scheme, which is of paramount importance.

Keywords: Paris agreement, climate change, COP 21, COP 25, United Nations Framework Convention on Climate Change, global emissions trading scheme

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Fabiana Fragnito

Respecting the Rights of Unaccompanied Migrant Children in Europe

Copiii migranți neacompaniați reprezintă una dintre cele mai vulnerabile categorii de migranți. Statele trebuie să poată acorda protecția necesară în baza dreptului internațional și a reglementărilor aplicabile la nivel regional. Interesul superior al copilului trebuie să prevaleze în orice situație. Lucrarea de față prezintă principalele instrumente juridice utilizate la nivel european, inclusiv la nivelul Uniunii Europene, și dezvoltarea acestora.

Keywords: migrație, refugiați, solicitanți de azil, migranti, copii neacompaniați, protecție internațională

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II. JURISPRUDENTA

Maria-Beatrice Berna

Hotărârea Curţii Europene a Drepturilor Omului în cauza Mihalache împotriva României

The right not to be subjected to a trial and punished twice (“bis”) for the same act (“idem”) distinguishes itself within the framework of prerogatives established by means of the European Convention for the Protection of Human Rights and Fundamental Freedoms through its absolute, non-derogatory character and through its legal purpose – respectively that to obtain and maintain the security of legal relations. In the case Mihalache vs. Romania the theoretical requirements derived from the content of article 4, and Additional Protocol no. 7 to the European Convention on Human Rights are critically assessed. Aspects such as: the correct way to evaluate the definitive character of the solutions advanced by the prosecutors of a particular case; the applicability of the principle of hierarchical subordination to the activity of the Public Ministry; balancing the report between the prosecutor's right of disposal by reference to a pending case and the intervention of the hierarchical superior prosecutor with regard to a solution that is already pronounced; - represent the essential elements that have been analyzed in the studied case.

Keywords: dual proceedings, final conviction, legal remedies, juridical security

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Andreea Moroianu

Hotărârea Curţii Europene a Drepturilor Omului în cauza Tănase împotriva României

Following a car accident, the applicant considered that he was subjected to ill-treatment by national authorities and that the investigation of his case was quite lengthy. He also alleged that national authorities had failed to safeguard his right to court and the right to an effective remedy. Although the applicant only invoked articles 3, 6 and 13 of the Convention, the Court analysed articles 2 and 8 as well, as they enshrine certain procedural rights related to the case. The final ruling did not find any violation of the provisions of the Convention, although several judges had separate opinions. However, the case of Tănase v. Romania may become an important reference in future judgments of the European Court of Human Rights considering the interpretation of the aforementioned articles.

Keywords: ill-treatment, right to court, European Court of Human Rights, serious injuries, severity threshold

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III. RECENZII

Mihai Bădescu

Drepturile și libertățile fundamentale în jurisprudența Curții Constituționale, vol. I-III (Marian Enache, Ștefan Deaconu, Editura C.H. Beck, București, 2019)

The constitutional protection of fundamental rights and freedoms of the individual represents a legal landmark for modern democracies. The Constitutional Court is the authority that guarantees, and ensures the respect of citizens' rights and freedoms in accordance with the provisions of the fundamental law of the state. Structured in 3 tomes, the study Fundamental rights and freedoms in the case law of the Constitutional Court represents an essential tool in the field of Romanian legal research as it analyzes every fundamental right or freedom from a double perspective: from a doctrinal point of view, and referring to the interpretations formulated through case law of the Constitutional Court. The peculiarity of the reviewed paper lies in its multidisciplinary character: the jurisprudential analysis of fundamental rights and freedoms is of interest to the field of constitutional law, but, at the same time, it has implications in all other branches of law. On the same lines, the specific aspects of the study derive from the reasoning according to which: the constitutional provisions that establish the principle of the supremacy of international law over national law determine the Constitutional Court to take into account the decisions of the regional-European courts -the Court of Justice of the European Union and European Court of Human Rights - in its case law, thus obtaining an extensive and refined perspective on the protection of fundamental rights and freedoms. In addition, the multidisciplinary nature of the paper is highlighted by its extended practicality, serving as a source of documentation for both legal specialists and those who are new to the field of legal sciences.

Keywords: fundamental rights and freedoms, legal protection, the decisions of the Constitutional Court, the objection of unconstitutionality, the exception of unconstitutionality

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Adina-Maria Nikolic

Libertatea religioasă sau de credință și securitatea: orientări politice, (Biroul OSCE pentru Instituții Democratice și Drepturile Omului, Varșovia, 2019)

The analyzed report provides guiding principles, practical guidance and recommendations in order to ensure a human rights-based, gender-sensitive approach to freedom of religion or belief, and security. The purpose of the report is to guarantee a better understanding of the two issues for policymakers and security practitioners, civil society organizations, religious or belief communities, and also the media, especially on matters which are often found at the intersection of freedom of religion or belief and security. More so, the report touches sensitive issues surrounding extremism, violence and the relationship between state and religious or belief communities in the attempt of keeping a safe environment for everyone.

Keywords: religion, faith, security, rights, freedom, extremism

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