The growing and multifarious challenges (political, legal, social, and economic) that global migr... more The growing and multifarious challenges (political, legal, social, and economic) that global migration raises for contemporary states requires solutions related not only to constitutional identity, but also to a better protection of human rights. Although less visible in the ‘big picture’, cultural rights are an important category of human rights. An absent or a precarious protection of these rights might affect other rights. That is why a balance must be struck between society’s needs and the cultural rights of the individual. In this context, questions may be asked: could there be common points regarding the cultural rights of migrants and of minorities in Europe? Is ‘living together’ a concept that can ensure the full respect of the human dignity of migrants, especially as regards cultural rights? The chapter attempts to answer some of these questions, mainly through the prism of the case law of the European Court of Human Rights (ECtHR).
Migration and the European Convention on Human Rights
The growing and multifarious challenges (political, legal, social, and economic) that global migr... more The growing and multifarious challenges (political, legal, social, and economic) that global migration raises for contemporary states requires solutions related not only to constitutional identity, but also to a better protection of human rights. Although less visible in the ‘big picture’, cultural rights are an important category of human rights. An absent or a precarious protection of these rights might affect other rights. That is why a balance must be struck between society’s needs and the cultural rights of the individual. In this context, questions may be asked: could there be common points regarding the cultural rights of migrants and of minorities in Europe? Is ‘living together’ a concept that can ensure the full respect of the human dignity of migrants, especially as regards cultural rights? The chapter attempts to answer some of these questions, mainly through the prism of the case law of the European Court of Human Rights (ECtHR).
Constitutional change has been one of the most interesting debates in the recent constitutional l... more Constitutional change has been one of the most interesting debates in the recent constitutional law scholarship. A distinction has been drawn between formal and informal constitutional changes, by using as a criterion the compliance with the requirements of the constitutional text regarding constitutional change. Usually, informal constitutional change is determined by various factors, among which the lack of clarity or the extreme rigidity of the Constitution. Constitutional Courts are among the authorities who are frequently responsible of making informal constitutional changes. The present article comprises a brief introduction on the differences between formal and informal constitutional changes, as well as the analysis of the Romanian case regarding informal constitutional changes.
Ius Gentium: Comparative Perspectives on Law and Justice, 2016
The perception and application of the European Convention on Human Rights by various national jur... more The perception and application of the European Convention on Human Rights by various national jurisdictions depends fundamentally on the way in which the Convention has been introduced into national law, as well as, in some countries, by how constitutional jurisdictions shaped this relationship. The article examines the reception of the Convention by a few European states, with a special regard on the case of Romania. Romanian courts, including the Constitutional Court and the supreme court, had a hesitant approach of the principle established by 1991 Constitution of the priority of international law of human rights over domestic law. In the context of the diversity of sources of the European law of human rights, there is an active effort at the European level to create a more coherent order amongst this plurality of human rights protection instruments, in the context of the imminent adhesion of the European Union to the European Convention and of the high number of states-parties to the Convention. The most recent example is the adoption of Protocol no. 16 to the Convention, on 17 July 2013, which will help domestic jurisdictions in their efforts to incorporate the Convention’s standards into the internal law of the states-parties. With the analysis of all these aspects, the paper is aiming to contribute to the topical debate on the convergence of fundamental rights in Europe.
The current Romanian constitutional system, established in 1991, has undergone numerous formal an... more The current Romanian constitutional system, established in 1991, has undergone numerous formal and informal developments in the last 25 years. The main issues that arose in the decade since the country’s adhesion to the European Union were the respect for the rule of law, independence of the judiciary and the fight against corruption. In this context, the Constitutional Court has been one of the central elements of the rule of law guarantee in Romania. This paper intends to present a critical overview of the actual role of the Constitutional Court in the Romanian constitutional system, in the different contexts that link the Court with ‘others’, ie mainly with State powers (the Court itself being and independent organ, placed outside the judicial power).
The last three decades have brought important changes to the Romanian judicial system, especially... more The last three decades have brought important changes to the Romanian judicial system, especially concerning the struggle for independence and autonomy within the separation of powers equation. The internal and external context – i.e. the transition to democracy, after 1989, and the intention to join the European Union – determined an orientation towards the “Euro-Model” of judicial self-government. This has not come without difficulties and perils, both from the inside and from the outside. The article provides a comprehensive analysis of the Romanian system of judicial self-government in the context of these perils and emphasizes the link between the attempts to reinforce judicial independence and the anti-corruption fight, required by the supervision mechanism under which Romania has been placed at the moment of the EU accession. The increase in the number and intensity of such perils in the recent period has coincided with an increase in the number of high-level political corrup...
The growing and multifarious challenges (political, legal, social, and economic) that global migr... more The growing and multifarious challenges (political, legal, social, and economic) that global migration raises for contemporary states requires solutions related not only to constitutional identity, but also to a better protection of human rights. Although less visible in the ‘big picture’, cultural rights are an important category of human rights. An absent or a precarious protection of these rights might affect other rights. That is why a balance must be struck between society’s needs and the cultural rights of the individual. In this context, questions may be asked: could there be common points regarding the cultural rights of migrants and of minorities in Europe? Is ‘living together’ a concept that can ensure the full respect of the human dignity of migrants, especially as regards cultural rights? The chapter attempts to answer some of these questions, mainly through the prism of the case law of the European Court of Human Rights (ECtHR).
Migration and the European Convention on Human Rights
The growing and multifarious challenges (political, legal, social, and economic) that global migr... more The growing and multifarious challenges (political, legal, social, and economic) that global migration raises for contemporary states requires solutions related not only to constitutional identity, but also to a better protection of human rights. Although less visible in the ‘big picture’, cultural rights are an important category of human rights. An absent or a precarious protection of these rights might affect other rights. That is why a balance must be struck between society’s needs and the cultural rights of the individual. In this context, questions may be asked: could there be common points regarding the cultural rights of migrants and of minorities in Europe? Is ‘living together’ a concept that can ensure the full respect of the human dignity of migrants, especially as regards cultural rights? The chapter attempts to answer some of these questions, mainly through the prism of the case law of the European Court of Human Rights (ECtHR).
Constitutional change has been one of the most interesting debates in the recent constitutional l... more Constitutional change has been one of the most interesting debates in the recent constitutional law scholarship. A distinction has been drawn between formal and informal constitutional changes, by using as a criterion the compliance with the requirements of the constitutional text regarding constitutional change. Usually, informal constitutional change is determined by various factors, among which the lack of clarity or the extreme rigidity of the Constitution. Constitutional Courts are among the authorities who are frequently responsible of making informal constitutional changes. The present article comprises a brief introduction on the differences between formal and informal constitutional changes, as well as the analysis of the Romanian case regarding informal constitutional changes.
Ius Gentium: Comparative Perspectives on Law and Justice, 2016
The perception and application of the European Convention on Human Rights by various national jur... more The perception and application of the European Convention on Human Rights by various national jurisdictions depends fundamentally on the way in which the Convention has been introduced into national law, as well as, in some countries, by how constitutional jurisdictions shaped this relationship. The article examines the reception of the Convention by a few European states, with a special regard on the case of Romania. Romanian courts, including the Constitutional Court and the supreme court, had a hesitant approach of the principle established by 1991 Constitution of the priority of international law of human rights over domestic law. In the context of the diversity of sources of the European law of human rights, there is an active effort at the European level to create a more coherent order amongst this plurality of human rights protection instruments, in the context of the imminent adhesion of the European Union to the European Convention and of the high number of states-parties to the Convention. The most recent example is the adoption of Protocol no. 16 to the Convention, on 17 July 2013, which will help domestic jurisdictions in their efforts to incorporate the Convention’s standards into the internal law of the states-parties. With the analysis of all these aspects, the paper is aiming to contribute to the topical debate on the convergence of fundamental rights in Europe.
The current Romanian constitutional system, established in 1991, has undergone numerous formal an... more The current Romanian constitutional system, established in 1991, has undergone numerous formal and informal developments in the last 25 years. The main issues that arose in the decade since the country’s adhesion to the European Union were the respect for the rule of law, independence of the judiciary and the fight against corruption. In this context, the Constitutional Court has been one of the central elements of the rule of law guarantee in Romania. This paper intends to present a critical overview of the actual role of the Constitutional Court in the Romanian constitutional system, in the different contexts that link the Court with ‘others’, ie mainly with State powers (the Court itself being and independent organ, placed outside the judicial power).
The last three decades have brought important changes to the Romanian judicial system, especially... more The last three decades have brought important changes to the Romanian judicial system, especially concerning the struggle for independence and autonomy within the separation of powers equation. The internal and external context – i.e. the transition to democracy, after 1989, and the intention to join the European Union – determined an orientation towards the “Euro-Model” of judicial self-government. This has not come without difficulties and perils, both from the inside and from the outside. The article provides a comprehensive analysis of the Romanian system of judicial self-government in the context of these perils and emphasizes the link between the attempts to reinforce judicial independence and the anti-corruption fight, required by the supervision mechanism under which Romania has been placed at the moment of the EU accession. The increase in the number and intensity of such perils in the recent period has coincided with an increase in the number of high-level political corrup...
I. Les droits fondamentaux 1. La dimension négative des droits fondamentaux 1.1. Pour maintenir u... more I. Les droits fondamentaux 1. La dimension négative des droits fondamentaux 1.1. Pour maintenir une grille d'analyse unitaire, je ferai référence en ce qui suit notamment aux méthodes utilisées par la Cour constitutionnelle de la Roumanie dans son rôle de garant des droits fondamentaux. Pourtant, afin de mieux comprendre le phénomène de réception des droits fondamentaux en Roumanie, je vais aussi souligner quelques particularités des méthodes d'analyse des tribunaux ordinaires, tant par rapport à la Constitution, qu'au droit européen des droits de l'homme, en mettant en évidence seulement les traits les plus importants. Le texte de la Constitution de 1991 contient quelques dispositions de principe sur les droits fondamentaux, parmi lesquelles se distingue la priorité du droit international des droits de l'homme. Ainsi, la Constitution consacre ce principe dans l'article 20, en s'inspirant partiellement du modèle français, mais aussi de la Constitution espagnole (article 10 §2). En ce qui concerne le droit international général, l'article 11 §2 de la Constitution roumaine prévoit, dans une manière moniste, que les traités internationaux, ratifiés par le Parlement, font partie du droit interne ayant, ainsi, applicabilité directe, sur la seule base de la loi de ratification. Une position spéciale est conférée aux traités de droits de l'homme, qui ont un statut constitutionnel privilégié. L'article 20 de la Constitution établit la subordination de l'interprétation et de l'application des dispositions constitutionnelles et tous les autres lois internes au droit international des droits de l'homme ratifié par la Roumanie, en appliquant, en même temps, le principe de la subsidiarité ou lex mitior (i.e. sauf les dispositions du droit interne plus favorables) : (1) Les dispositions constitutionnelles relatives aux droits et libertés des citoyens seront interprétées et appliquées en concordance avec la Déclaration universelle des droits de l'homme, avec les pactes et les autres traités auxquels la Roumanie est partie. (2) En cas de non-concordance entre les pactes et les traités portant sur les droits fondamentaux de l'homme auxquels la Roumanie est partie, et les lois internes, les réglementations internationales ont la primauté, sauf le cas des dispositions plus favorables prévues par la Constitution ou les lois internes. Apparemment, ce principe constitutionnel impose à tous les interprètes de la Constitution et du droit interne en matière des droits fondamentaux de se rapporter dans leurs démarches
Paper presented at the 2015 edition of the Comparative Constitutional Law Congress at the Univers... more Paper presented at the 2015 edition of the Comparative Constitutional Law Congress at the University of Regensburg, "Constitutional Courts and Ordinary Courts - Cooperation or Conflict?" and forthcoming in the Congress' volume, 2017.
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Papers by Bianca Selejan Gutan