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Results in Journal Revista de Drept Constituțional: 93

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Sonal Rawat, Prabhpreet Singh
Revista de Drept Constituțional pp 11-20; https://doi.org/10.47743/rdc-2021-1-0001

Abstract:
“Fake News” or Misinformation can be categorized as one of the deadly plagues of this digital global world, as it poses a threat to democracies. It can impede reforms, generate misleading narratives, and potentially cause social unrest in the society. As a result, countries have taken measures to counteract the spread of digital misinformation- ranging from task force bodies to legislations. The Coronavirus Pandemic has accelerated this trend, prompting governments to become more vigilant of the dissemination of fake news. However, this has also sparked a trend for governments to stifle freedom of expression and suppress opposition. India has a susceptibility for the rapid propagation of fake news and rumours, with a large number of social media users on all platforms. Therefore, India will need to adopt measures to tackle it. In this paper, we have focused solely on the legislations introduced by various countries and have discussed their implications. We have also emphasised the positive and negative aspects, outlining what measures India should take to prevent fake news. India should attempt to strike a balance between the government's interests and the interests of the people by allowing considerable freedom of expression.
Mohleen Kaur
Revista de Drept Constituțional pp 57-65; https://doi.org/10.47743/rdc-2021-1-0006

Abstract:
An authenticated attempt to understand the apprehensions of expectant mothers during COVID-19 rampant, the study primarily focuses on decoding the unpropitious ramification of such pandemic on the pregnant women. The process of giving birth to the child is itself risky, however, the existence of COVID-19 virus has made this process more complicated, tedious, and cumbersome. The social distancing practice has raised question upon the reproductive liability and has contemplated the immediate need of inclusion of maternal health provisions amongst the essential medical services in contemporary times. Research Methodology and Reference Materials: The author has employed doctrinal research methodology and has used existing qualitative data to uncover the plight of pregnant women in India. For reference, the study of the health reports laid down from time to time by the UNFPA, UNICEF and the Centre for Reproductive Rights, (India) is made. Conclusion: The present study helps us to delineate such means and methods which can help in improving the reproductive health of pregnant women.
Sailaja Petikam
Revista de Drept Constituțional pp 43-49; https://doi.org/10.47743/rdc-2021-1-0004

Abstract:
Every human being should enjoy right to life. Article 21 of the Indian Constitution as well as under article 3 of International Convention Universal Declaration of Human Rights, 1948, guaranteed the right to life. Every aspect of right to life has been always subject to consideration of judiciary and depend upon the facts and situations. Right to die is also claimed under this head. Euthanasia is interpreted as 'mercy killing' or 'good death'. It is advocated that there are different situations in which it should be allowed to the person to let him choose his death in place of compelling him living alive. There are different approaches in this regard which either opposes the grant of mercy killing or denies to grant the death as right to die due to some causes. Everyone has the right to live dignified life according to his wish being living into certain limits and it is expected that a human being should struggle also in adverse circumstances around him. He should not lean in front of the situations. The Indian culture gives us such teachings. Hindu religion believes in the eternity of soul. Death is only the way to change a body. The soul never dies, it is eternal. Muslim religion also believes that life should be finished only upon the wish of Allah, it condemns the unnatural ending of life. But in present society in some situations, it is defended that the person should have the right to choose death. Thus, in this context the paper concentrated on the law of euthanasia in India in a legislative perspective and judicial interpretations on euthanasia.
Asmita Patel
Revista de Drept Constituțional pp 50-56; https://doi.org/10.47743/rdc-2021-1-0005

Abstract:
Modern fast-progressing society has brought advancements in science and technology touching almost all aspects of our cultural and social lives. Law enforcement is not an exception to it with DNA Profiling being a giant leap in investigation procedure. Despite wide application in law enforcement in many countries of the world, India does not have a standalone law regulating the application of DNA as a method of identification yet. Further, admissibility and reliability of DNA evidence is a debated issue and a comprehensive study of legislative and judicial discourse is necessary to appreciate its value and bring reformation in the regulatory framework. This paper firstly discusses the meaning and concept of DNA profiling including its significance and application in criminal and civil investigations. Secondly, the present legal framework in India concerning DNA Profiling is discussed to analyze the shortcomings and insufficiency. Thirdly, the judicial approach towards evidentiary value of DNA Profiling is discussed. In the fourth part of the paper, the author has addressed the constitutional challenges to DNA profiling in India and provided suggestions and recommendations to make it more comprehensive and accountable. The paper concludes with the way forward in this legal reformative discourse around DNA profiling. The nature of research is doctrinal and both primary and secondary sources of data comprising of legislations, regulations, debates, research papers, journals, books, newspaper articles and judgments are relied upon by the author.
Revista de Drept Constituțional pp 32-42; https://doi.org/10.47743/rdc-2021-1-0003

Abstract:
Right against self-incrimination is recognized as a Fundamental Right under the Indian Constitution. It is based on the maxim “nemo tenetur seipsum accusare” which implies that no man shall be obliged to be a witness against himself. The right is recognized in various International Conventions and Declarations. The right has also been incorporated as a right of accused in different countries. The Apex Court of India has emphasized time and again the significance of the right in its various Judgments. However, with the growth of Science and Technology, the dimensions of Right have undergone a considerable change. It has raised the issues of Testimonial Compulsion and violation of Rights of the accused. The present paper will be an attempt to examine the Impact of growing technology in relation to right against self-incrimination and effort will be made to analyze whether the growth of Science and Technology has in fact resulted or not in violation of the right.
Evripidis Stylianidis
Revista de Drept Constituțional pp 21-31; https://doi.org/10.47743/rdc-2021-1-0002

Abstract:
The state of exception is provided for in constitutions in response to emergency situations. The resilience of constitutions is tested in such situations, which are marked by the concentration of power in the executive and limitations in the exercise of fundamental rights. Although the Greek Constitution allows for the declaration of a state of siege, this does not include the case of a public health crisis. Nevertheless, particular constitutional provisions form an emergency mechanism, which proved to be effective against the COVID-19 pandemic and in accordance with democracy and the rule of law.
Soham Kulkarni
Revista de Drept Constituțional pp 66-71; https://doi.org/10.47743/rdc-2021-1-0007

Abstract:
Provisions to a dignified end to life definitely must be a concern that our constitutional founders had in mind while framing the foundation of our nation. The term "Palliative care" was coined much later. The WHO defined palliative care as "an approach that improves the quality of life of patients and their families facing the problems associated with life-threatening illness, through the prevention and relief of suffering by means of early identification and impeccable assessment and treatment of pain and other problems, physical, psychosocial, and spiritual”. The Government of India formed a committee in 2006 to create a national policy for palliative care. However, even after the being hit by Corona times, the National Policy for palliative care has not seen the light of the day. In view of the above, the study aims to explore Palliative Care under the provisions of Article 21 and other fundamental rights; it aims to interrogate the aspect of ‘dignity’; the role of the Government; evolution of the field through judicial proceedings; legal position in other jurisdictions of the world and an urgent need to reinforce “Palliative healthcare” in India.
Ioana Narcisa Anițulesei
Revista de Drept Constituțional pp 31-36; https://doi.org/10.47743/rdc-2020-2-0004

Abstract:
In the present study, the author analyzes the provisions of art. 4881 of the Code of Criminal Procedure which, until now, have been the subject of multiple exceptions of unconstitutionality examined by the Constitutional Court. Mainly, the study focuses on the considerations set out in Decision no. 26/2021 pronounced by Constitutional Court in which was statued the constitutionality of the provisions of art. 4881 paragraph 2 and 3 of the Code of Criminal Procedure. In his approach, the author makes additional arguments in support of the unconstitutionality of the rule by reference to national and European provisions enshrining the principle of equality of citizens before the law.
Mihnea Valentin Stoicescu
Revista de Drept Constituțional pp 32-45; https://doi.org/10.47743/rdc-2016-3-0002

Abstract:
La lutte contre le financement du terrorisme représente l'une des méthodes les plus efficaces et les moins dangereuses de prévention du terrorisme moderne car celle-ci ne peut plus fonctionner comme avant, à savoir uniquement par la conviction de ses membres. Dans ce contexte, afin d'empêcher un potentiel terroriste de trouver l'abri dans un État plus tolérant, la communauté internationale développe rapidement des normes par lesquelles elle guide les États en ce qui concerne les modalités d'incrimination les actes de financement du terrorisme. Cet article vise à identifier les réglementations internationales pertinentes, pour analyser ensuite les normes d'incrimination relevant du droit pénal roumain et dernièrement déterminer si celles-ci respectent tous les standards internationaux qui sont imposés. En outre, cet article souhaite indiquer les méthodes établies par lesquelles le terrorisme est financé, ainsi que les techniques de dépistage et de lutte développées par les autorités.
Mona-Maria Pivniceru, Karoly Benke
Revista de Drept Constituțional pp 73-93; https://doi.org/10.47743/rdc-2015-1-0002

Abstract:
This study aims at presenting a more complex image of the principle of proportionality through an analysis that combines the theoretical and the jurisprudential perspectives. The precondition of this analysis is the classic opinion of this originally German principle which requires a distinction between the objective and subjective conditions of limitation/restriction of fundamental rights/freedoms, each of which shall be subject to a separate test in order to determine whether limitations/restrictions thus established are justified. However, we reveal the way in which such principle has been accepted in the case-law of the European Court of Human Rights, of the European Court of Justice and of the Constitutional Court of Romania, indicating the variations achieved in their case-law. As concerns the acceptance manner of the principle of proportionality in the case-law of the Constitutional Court of Romania, we analyze the fundamental differences between the classic principle of proportionality, which intrinsically characterizes the relative fundamental rights/freedoms, and the principle of proportionality covered by Article 53 of the Constitution. Likewise, the focus is on the analysis of subjective conditions of limitation of fundamental rights/freedoms in the light of the proportionality test conducted by the Constitutional Court of Romania and on the need for a precise constitutional review in order to avoid the development of distorted forms of implementation of this principle
Slobodan Milacic
Revista de Drept Constituțional pp 137-156; https://doi.org/10.47743/rdc-2015-1-0004

Abstract:
Le point de vue adopté dans ce «papier» vise à remobiliser la problématique du juge dans l’Etat de droit contemporain en le positionnant au sein du système démocratique et libéral, restructuré par le néolibéralisme. Le juge apparaît alors non seulement comme le «gardien des libertés» fondamentales, c'est-à-dire essentiellement individuelles, mais aussi comme le gardien des normes et de l’esprit des normes démocratiques, relatives aux institutions et procédures politiques, qui constitue l’autre profil du juge, relativement négligé par les discours ambiants. A ce double titre le travail du juge constitutionnel implique aussi et nécessairement le politique, qu’il n’y a pas lieux de dénoncer trop rapidement au motif de la «politisation du juge» et du danger d’un «gouvernement des juges»! D’autant plus qu’au-delà du droit et du juge, le système aujourd’hui désigné de façon raccourcie comme l’«Etat de droit» est structurellement garanti par les valeurs et les procédures plus spécifiquement démocratiques. Si le juge garantit la norme, c’est la démocratie pluraliste qui établit la norme libérale et garantit le juge, avec son statut de «troisième pouvoir»; primordialement juridique, mais avec des implications politiques-légitimes, puisque la démocratie, elle-même, est substantiellement politique ou elle n’est pas
Dan Claudiu Dănișor
Revista de Drept Constituțional pp 11-27; https://doi.org/10.47743/rdc-2016-4-0001

Abstract:
In a liberal democracy, the sphere of law cannot be unlimited. The first category of its limits results from the necessity to temper the mutability of the legal system. Firstly, the law must not be perishable. The passage of time should not, in itself, affect the legal system. Thus, the law must limit the desire for change only for the sake of change and the desire to turn regulations into a performance. The limitation of such tendencies is not legally effective under any circumstances, meaning that the choice of regulatory methods must take into account formal principles and the context of their application as well. Secondly, law cannot be receptive to all changes. It must shift only under certain circumstances, commensurate with the magnitude of social changes. Any social conflict, change of ideological orientation, or political, economic or structural modification should not determine modifications with respect to the legal order. Thirdly, the mutability of the legal system may be determined by systemic dysfunctions. However, any structural conflict within the legal order should not bring about systemic changes. Basically, only certain dysfunctions can be classified as systemic, and the reaction towards them should be limited to drawing up structural modifications.
Diego Colas, Brice Fodda
Revista de Drept Constituțional pp 45-58; https://doi.org/10.47743/rdc-2016-4-0003

Abstract:
Dans son arrêt du 3 septembre 2008, Kadi et Al Barakaat International Foundation/Conseil et Commission (C-402/05 P, dit «arrêt Kadi I», point 81), la Cour de Justice de l’Union Européenne a souligné avec une certaine solennité que «la Communauté Européenne est une communauté de droit en ce que ni ses États membres ni ses institutions n’échappent au contrôle de la conformité de leurs actes à la charte constitutionnelle de base qu’est le traité de l’Union». Dans le cadre de la même affaire, quelques années plus tard, dans son arrêt du 18 juillet 2013, Commission, Conseil et Royaume-Uni/Kadi (C‑584/10 P, C‑593/10 P et C‑595/10 P, dit «arrêt Kadi II», point 66), la Cour de Justice de l’Union Européenne a de nouveau qualifié de «constitutionnelle» la garantie qu’incarne, dans une Union de droit, le contrôle juridictionnel de la légalité de tout acte de l’Union, y compris de ceux qui, comme en l’occurrence, mettent en œuvre un acte de droit international, au regard des droits fondamentaux garantis par l’Union. Ainsi, c’est à l’occasion de la lutte contre le terrorisme qu’a été rappelée et consacrée une caractéristique qui, certes, existait déjà en droit de l’Union3 et qui permettait à l’Union Européenne de considérer son traité fondateur comme un acte qui n’était pas seulement de nature contractuelle ou synallagmatique, mais comme véritablement constitutionnel, c’est-à-dire fondateur d’un ordre juridique construit sur des valeurs partagées.
Tudorel Toader, Marieta Safta
Revista de Drept Constituțional pp 67-101; https://doi.org/10.47743/rdc-2016-3-0004

Abstract:
This study continues the presentation on the development of the constitutional court’s case-law, from ascertaining the unconstitutionality of the legal rule to ascertaining the unconstitutionality of the legal solution promoted by that rule with punctual respect to criminal procedure. The constitutional review transcends the strict boundaries of referrals brought before the Court in order to purify the legal system from those that reproduce legal solutions found to be unconstitutional. Thus, it is emphasized both the effect of sanctioning the rule which was the subject matter of the exception of unconstitutionality, and the preventive effect of constitutional review, by the inability of the legislature to resume a legal solution found unconstitutional, except where there is a change of the social and economic context.
Dubravko Ljubic
Revista de Drept Constituțional pp 49-64; https://doi.org/10.47743/rdc-2016-3-0003

Abstract:
The study presents the human dignity as the basis of every legal order, its ethics and all the other factors that make a legal system just, a condition for the existence of rights in general. Croatian Constitution does not recognize human dignity as the highest value and the basis of design of the basic legal sphere, but, by accepting the Charter of Fundamental Rights of the European Union human dignity is not becoming just the source and means of interpretation of the basic legal sphere, but it is also becoming the basis for establishing relations between the individual and the state and individuals themselves
Darian Rakitovan
Revista de Drept Constituțional pp 61-111; https://doi.org/10.47743/rdc-2016-4-0004

Abstract:
After the referendum, on the 8th of November, 2006, the Assembly of the Republic of Serbia promulgated the currently valid Constitution of the Republic of Serbia. However, from the moment of its adoption, this Constitution was subjected to a great deal of criticism. Even the manner of its adoption was disputed. Currently, there are numerous demands for its amendment. Political parties in Serbia also more or less agree that the current Constitution should be amended, especially in the light of European integrations. Most frequently heard objections are to the provisions regarding the too high number of deputies in the Parliament, the content of the preamble, provisions regarding judiciary, the matter of regionalization etc. This paper reviews and provides a short commentary on certain provisions of the Constitution of the Republic of Serbia, which we deem necessary to be pointed out when debating this matter. Particular focus is placed on certain normative solutions which we believe are not adequately regulated, i.e. those provisions we believe should be altered in order to adapt this supreme legal act to the intentions of Serbia to become a full member of the European Union, and which are at the same time in the interest of the citizens of Serbia.
Tudorel Toader, Marieta Safta
Revista de Drept Constituțional pp 91-107; https://doi.org/10.47743/rdc-2016-1-0006

Abstract:
The Constitutional Court has ruled that, by adhering to the legal order of the European Union, Romania agreed that, in those areas where exclusive jurisdiction is conferred on the European Union, regardless of the international treaties priorly signed, implementation of its obligations arising therefrom is subject to the rules of the European Union. Otherwise, this would result in the undesirable situation where, through bi or multilateral internationally assumed obligations, Member State would seriously affect the Union’s competence and, in practice, would act in its place in the aforementioned areas. For this reason, in the field of competition, any State aid falls within the competence of the European Commission and appeal proceedings fall within the jurisdiction of the European Union. Therefore, pursuant to Article 11 para. (1) and Article 148 para. (2) and (4) of the Constitution, Romania applies in good faith the obligations resulting from the Accession Instrument, without interfering with the exclusive competence of the European Union and, by virtue of the compliance clause contained in the text of Article 148 of the Constitution, Romania cannot adopt a legislative act contrary to the obligations assumed as a Member State. All those already highlighted are subject to certain limitations, expressed in what the Court described as “national constitutional identity”.
Marian Enache
Revista de Drept Constituțional pp 22-43; https://doi.org/10.47743/rdc-2016-1-0002

Abstract:
The European right represents the set of juridical norms that may be enforced in the European juridical order and, according to an interpretation of the Court of Justice within the European Communities' Union, the current Court of Justice of the European Union, it constitutes “an own juridical order that is integrated into the juridical system of the member states”. As for the content of the European right, it has the character of a juridical order, namely it represents an organised and structured series of juridical norms having its own sources, endowed with bodies and procedures able to issue them, to interpret them as well as to find and sanction the possible violations. Making reference to the internal juridical order of the member states, the European right is an autonomous and original juridical order that involves the following aspects: the autonomy of the European right's sources, the autonomy of the European right's notions that do not depend on the qualifications acknowledged by the national right, the autonomy of the European norms that cannot be deprived of efficacy (of the useful effect) by the internal right rules of the member states. Several criteria to classify the European juridical norms have been expressed in the doctrine whereas the juridical force criterion had the largest support. Thus, according to its sources, the European right can be divided into the original or primary right5 and the derived or secondary right.
Mihaela Mazilu-Babel
Revista de Drept Constituțional pp 65-74; https://doi.org/10.47743/rdc-2016-1-0004

Abstract:
In the last years the Constitutional Court of Romania was asked to rule on the constitutionality of the erga omnes obligatory interpretations provided by the High Court of Cassation and Justice. Through such constitutionality review, the Constitutional Court manages to impose its own interpretation of the European Convention on Human Rights on all national ordinary courts whenever such courts are to ensure that the European Convention of Human Rights is observed and respected in a pending case. This paper sumarises a couple of such rulings, pointing out that through such constitutionality review rulings, the Constitutional Court of Romania has also established that it has the competence to impose, at the national level, the unique interpretation that can be given to a norm whenever that unique interpretation was already imposed by the High Court of Cassation and Justice.
Tudorel Toader, Marieta Safta
Revista de Drept Constituțional pp 115-132; https://doi.org/10.47743/rdc-2016-4-0005

Abstract:
The study continues the presentation of the jurisprudential evolution of the constitutional court, from the acknowledgement of the legal norm’s unconstitutionality to the acknowledgement of the unconstitutionality of the legislative solution promoted through the said norm, with precise reference to the field of substantive criminal law. The constitutionality control transcends the strict framework of the limitations of the referrals addressed to the Court, aimed at removing from the legislative system those provisions which resume the legislative solutions acknowledged as being unconstitutional. Thus, it is emphasized not only the sanctioning effect upon the norm constituting the subject matter of the exception of unconstitutionality, but also the preventive effect of the constitutionality control, through the legislator’s impossibility to resume the legislative solution declared unconstitutional, with the exception of the situation in which a change of the social and economic context takes place.
Andrei-Nicolae Popa
Revista de Drept Constituțional pp 37-57; https://doi.org/10.47743/rdc-2020-2-0003

Abstract:
This article begins from the hypothesis that the state of emergency should be able to be established only for reasons of national security. The main argument is that a state of emergency should be established for causes of an exceptional nature and other than those for which the exercise of fundamental rights and freedoms is currently restricted. The content of this article demonstrates that the state of emergency is a defensive- offensive act through which the state temporarily suspends some legal institutions, replacing them with others, to protect the existence of the state itself (seen as population, territory, sovereignty), this being the supreme value. protected by such measures
Rudolf Dur Schnutz
Revista de Drept Constituțional pp 36-51; https://doi.org/10.47743/rdc-2015-1-0001

Abstract:
The recent move towards the individual access to constitutional justice is a progress for protection of human rights in Europe. The explicit purpose of these efforts is to settle human rights issues on the national level and to reduce the number of cases at the Strasbourg Court. Such individual complaints have to be designed in a way that makes them an effective remedy which has to be exhausted before a case can be brought before the European Court of Human Rights. This paper points out the current state of these improvements on the national level in a difficult context on the European level and the recommendations of the Venice Commission in this regard.
Ruxandra Andreea Bănică
Revista de Drept Constituțional pp 11-30; https://doi.org/10.47743/rdc-2020-2-0001

Abstract:
The article aims to generate a preliminary radiography on the actual stage of digitalization of justice in Romania, offering a perspective on its evolution both domestically and internationally, a development forced, at least in appearance, by the COVID-19 pandemic and restrictions imposed by it. The electronic file, the usual use of electronic signatures in trials, as well as the multitude of information provided in the virtual environment by public judicial institutions are some essential aspects that define the beginnings of this deeply restructuring process. The most important question, on which no rigorous analysis has been carried out so far, remains the following: how does this process impact the constitutional rights of citizens? In the chase after the alignment to the European approaches, to the evolution and speed of the digital age in which we live, we lose sight of the fact that the Romanian citizens may not be prepared for this process. The human component fades in front of the benefits of artificial intelligence, adaptation at any cost is required by society, and indirectly, by the state, without providing the necessary resources in this regard. We propose a necessary reading from the perspective of affecting some rights guaranteed by the Constitution through digitization, aspects worthy of consideration.
Alexandru Tănase
Revista de Drept Constituțional pp 11-21; https://doi.org/10.47743/rdc-2016-1-0001

Abstract:
This study analyses the Judgment of the Constitutional Court of Moldova no. 2 of 9 February 2016 for the interpretation of Article 135 para. (1) letters a) and g) of the Constitution of the Republic of Moldova (exception of unconstitutionality), by which it has been decided that the right to raise the exception belongs to all courts of law, respectively to judges who belong to such courts, and the challenge regarding the constitutional review of certain rules which are to be applied in the settlement of a case shall be submitted directly to the Constitutional Court by the judges/panels of judges in the Supreme Court of Justice, courts of appeal and courts, where the case is at issue. Opening to every individual the opportunity to raise the exception of unconstitutionality, the existing mechanism for the protection of human rights has been redefined, representing the first significant step towards the introduction of an individual complaint to the Constitutional Court.
Jean Spreutels
Revista de Drept Constituțional pp 11-31; https://doi.org/10.47743/rdc-2016-3-0001

Abstract:
Après avoir émis quelques considérations générales et évoqué quelques données statistiques, cette étude examine successivement les rapports entre le contrôle de constitutionnalité et le contrôle de conventionalité, l’application de la doctrine de l’acte clair ou éclairé, le contrôle ultra vires, ainsi que les avantages et les inconvénients de poser des questions préjudicielles à la Cour de Luxembourg, avant de tirer quelques brèves conclusions.
Migena Leskoviku
Revista de Drept Constituțional pp 77-87; https://doi.org/10.47743/rdc-2016-1-0005

Abstract:
In this paper, have been treated some historical aspect about the establishment of the Constitutional Court, based on the Law no. 7191 of 29 April 1991 on the principle constitutional provisions. The Parliament adopted a new law – the Law no. 8577 of 10 February 2000 on the organization and functioning of the Constitutional Court of the Republic of Albania. During the activity of the Constitutional Court since its establishment in 1992, it has handled different kind of cases based on its competences, creating a rich and bold jurisprudence. An important place in this paper takes the Constitutional control exercised by Albanian Constitutional Court. The paper treats the evolution of jurisprudence of the Constitutional Court in Albania, to guarantee the principles of the constitutionality.
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