The dilemma of positive legislator or the difficulties of the constitutional procedural law

• Author: Anamaria Bianov
• Position: Dept. Of Private Law, Transilvania University Of Brasov
• Pages: 167-172

Page 167

Freedom of expression is one of the real gains of the Romanian society after 1989. Commonly known as freedom of speech (even if we prefer the juridical term "expression", since we do not deal only with the verbal statements in this case), this individual right is contained in the most important documents ratified or adopted by Romania, such as Universal Declaration of Human Rights, European Convention of Human Rights or the Constitution of Romania. Even if Romanians tend to give an absolute power to this particular gain of a democratic society, freedom of expression is not an absolute right.

The Constitution of Romania also provides explicit restriction of freedom of expression. Thus, freedom of expression shall not be prejudicial to the dignity, honour, privacy of a person, and to the right to one's own image. Any defamation of the country and the nation, any instigation to a war of aggression, to national, racial, class or religious hatred, any incitement to discrimination, territorial separatism, or public violence, as well as any obscene conduct contrary to morality shall be prohibited by law. The Romanian Criminal Code used to incriminate in the articles 205 and 206 the offences related to human's dignity in order to offer a serious counterpoint for the Art. 30 paragraph 6 of the Romanian Constitution. By means of the offences of slander and libel the Romanian legislator desired to protect the right to dignity, honour, privacy of a person, as well as the right to one's image. Slander is a type of defamation. Slander is an untruthful oral (spoken) statement about a person that harms the person's reputation or standing in the community. If the statement is made via broadcast media -for example, over the radio or on TV - it is considered libel, rather than slander, because the statement has the potential to reach a very wide audience.

But for a greater protection of pressPage 168freedom and independence, the Minister of Justice initiated in Parliament a project of amending the Criminal Code, a project that repealed the offense of slander and libel. The two chambers of the Romanian Parliament adopted the project and it became Law No. 278/2006 for amending the Romanian Criminal Code after being promulgated by the President of Romania. Promulgation is the constitutional act by means of which a legal text can be sent to Romanian Official Gazette to be published. Three days after publishing, the law comes into force and produces juridical effects.

Due to these circumstances, in front of the Timisoara, Targu Jiu and Sibiu courts, three different persons invoked the objection of unconstitutionality. The three courts admitted the exception and addressed to the Constitutional Court of Romania to solve this litigation.

The Constitutional Court represents, as defined in Article 142 of the fundamental law, the guarantor for the supremacy of the Constitution of Romania. The Constitutional Court has the following powers: a) to adjudicate on the constitutionality of laws, before the promulgation thereof upon notification by the President of Romania, one of the presidents of the two Chambers, the Government, the High Court of Cassation and Justice, the Advocate of the People, a number of at least 50 deputies or at least 25 senators, as well as ex officio, on initiatives to revise the Constitution; b) to adjudicate on the constitutionality of treaties or other international agreements, upon notification by one of the presidents of the two Chambers, a number of at least 50 deputies or at least 25 senators; c) to adjudicate on the constitutionality of the Standing Orders of Parliament, upon notification by the president of either Chamber, by a parliamentary group or a number of at least 50 Deputies or at least 25 Senators; d) to decide on objections as to the unconstitutionality of laws and ordinances, brought up before courts of law or commercial arbitration; the objection as to the unconstitutionality may also be brought up directly by the Advocate of the People; e) to solve legal disputes of a constitutional nature between public authorities, at the request of the President of Romania, one of the presidents of the two Chambers, the Prime Minister, or of the president of the Superior Council of Magistracy; f) to guard the observance of the procedure for the...