Fundamental rights and freedoms, a possible triggering factor of rethinking the Law in the context of new migration crisis in Europe

AuthorIoana Cristina Vida
Ioana Cristina VIDA
With the adoption of the Lisbon Treaty, the European Union reaches a new generation on the
interpretation of human rights in relation to the action taken to achieve the objectives of social
inclusion, economic growth and competitiveness.
The European Union law is a relatively new legal construction in which human rights occupy a
constantly developing position.
In the light of recent events caused by the refugees’ crisis in the European Union, the EU law
tends to be marginalized in favor of national restrictive measures that put national safety first at the
expense of free movement. Ideally, it would be that both EU and Member State to rally
simultaneously visible to the universal values of human rights and focus to identify fair and
equitable balance between protection of human rights and security of the citizens.
Migration is charactering the entire history of mankind, but in recent years has acquired a
universal dimension.
Key-words: rights and freedoms, migration crisis, social inclusion, competitiveness, the right
of asylum.
The creation and enforcement of law is a sovereign right of a state. In this
framework are drafted laws, other normative acts and are highlighted the formal
sources of law. Law making process is based on the needs of population and the
need to respect human rights and the survival of national being.
On national and international level, human rights are divided into
fundamental rights, freedoms and duties and they are submitted to fundamental
laws, international and European regulations. Romanian Constitution devotes Title
II to fundamental rights, freedoms and duties. At European level, it operates the
European Convention on Human Rights and the Charter of Fundamental Rights of
the European Union. There are identical relations between the national and
European regulations but also inconsistency in implementation of those
provisions. Sometimes it is considered that the application of European provisions
Parliamentary advisor to the Chamber of Deputies of the Romanian Parliament and
collaborator at the Faculty of Public Administration from the National School of Political and
Administrative Studies, email: ioana_vida @ .
Law Review vol. VI, special issue, December 2016, p. 102-110
Fundamental rights and freedoms, a possible triggering factor… 103
cannot defeat national constitutional provisions, while respecting other rights
enshrined in national law shall be subject to the principle of subsidiarity, according
to the rules established by the accession treaties to the European Union.
The European Union law is a relatively new legal construction in which
human rights occupy a constantly developing position.
The ordination and guarantee of human rights in the European Union enjoys
an independent legal nature as to legal will through which the European Union
Starting from the extended concept of human rights, the European Union,
from its beginnings, took over from the catalog of constitutional traditions of the
Member States, the principles and values that are within the scope of general law,
namely those universal rights that matched its functioning and organization.
In the European Union, the term ”fundamental rights” is used to express the
concept of “human rights”, in a specific internal EU context. In this sense, the
Treaty of Rome (1957) sets up the legal framework for the protection of individual
human rights in the economic context of the European Union founding, namely
non-discrimination based on grounds of nationality (art. 7), free movement of
persons (art. 48) and equal pay between man and women ( art. 119).
In full accordance with the constitutional terms, Deleanu (2006) often talks
about “fundamental rights and freedoms”. This raises a sign of equality between
fundamental rights and fundamental freedoms. Such rights and freedoms are
characterized by the fact that they are enshrined by the fundamental law and they
are protected and guaranteed through national and European courts.
Consequently, human rights and fundamental rights have a similar content that
interprets differently according to the Charter of Fundamental Rights of the
European Union, European Convention on Human Rights or the European Social
Charter. In the context of Union law, the fundamental rights set out minimum
standards to respect and guarantee human rights at regional level.
With the adoption of the Lisbon Treaty, the European Union reaches a new
generation on the interpretation of human rights in relation to the action taken to
achieve the objectives of social inclusion, economic growth and competitiveness.
Moreover, the Charter of Fundamental Rights became legal basis that ensures the
promotion, respect and guarantee of fundamental rights in the European Union,
around certain basic social values: human dignity, fundamental freedoms, human
equality, solidarity, citizenship and justice. Therefore, we can say that the new
“generation” is characterized by the fact that all EU policies have a solid
component of fundamental rights. Correlatively, Dauses (2006) considers that
“fundamental rights have not only individual defense character, but also a political
position”. In other words, the general principles of the European Union does not
specify only the legal pattern for the evaluation of the Union constitutional order
and national legal orders, but is also a political commitment from Member States.
The Charter does not specifically distinguish between fundamental rights and
fundamental freedoms or between fundamental rights and principles. But these
distinctions are highlighted through the structure and content of the Charter, and
also through European Union’ essence of existence.
Establishing a single market of the European Union was accomplished
through the free movement of persons, goods, services and capital. In case of
Omega Spielhaus, C-36/02, the Court of Justice distinguished between the concept
of fundamental freedoms and fundamental rights indicating that it can derogate
from a fundamental freedom in order to respect a fundamental right. Subsequently
in Torfaen case, C-145/88 and Stichting Collective, C-288/89, the Court of Justice
notified the existence of a distinction between a fundamental right and a
fundamental freedom in the context of cultural diversity.
Apetriei (2010) considers that the non- inclusion of European fundamental
freedoms in the Charter may be interpreted as “a silent differentiation operated
between these and fundamental rights and not a mere omission”. On the other
hand, the relationship between fundamental rights and principles requires a
hierarchy of the human rights catalog of instruments. The principles enshrined in
the Charter are diversified, comprehensive, general and there are imposed to states
as obligations of means. Therefore, the principles and rights provided for in the
Charter have the same legal status and produce the same effects. The exception to
this rule occurs with the provisions of Art. 52 and 53 of the Charter, which refers
only to the rights and fundamental freedoms. Apetriei (2010) considers that this
omission is deliberate, in order to limit the scope of some principles. Thus,
subjective rights shall be respected, whereas principles shall be observed as the
main guidelines in adoption of national laws. The coherent functioning process of
the European Union is the rule of law. The rule of law concept presents an
important distinction to guarantee fundamental rights, since it has a wide margin
of discretions, ensuring both legal security for economic operators, boosting
investments, jobs and growth, as well as independent, impartial, effective and
responsible legal systems. There is a interdependent relation between promoting
the rule of law and ensure fundamental rights – each, by the other, increases legal
security and contributes to deeper regional integration. The rule of law is a
prerequisite to protect all other fundamental values and to support all the rights
and obligations arising from treaties.
In the light of recent events caused by the refugees’ crisis in the European
Union, the EU law tends to be marginalized in favor of national restrictive
measures that put national safety first at the expense of free movement. Ideally, it
would be that both EU and Member State to rally simultaneously visible to the
universal values of human rights and focus to identify fair and equitable balance
between protection of human rights and security of the citizens.
Migration is charactering the entire history of mankind, but in recent years has
acquired a universal dimension. At first, the European Union, faced with problems
Fundamental rights and freedoms, a possible triggering factor… 105
related to decreasing labor, birth rate and decreasing working population observed
indulgently or even encouraged this phenomenon. During the phenomenon, it was
found that self-direction of the migration towards certain Member States could
endanger their security. Migration itself revealed that she gives birth also to
dangerous phenomena, among those who migrate for humanitarian purposes and
infiltrate terrorists, particularly members of Jihad, who indulge in violent actions in
the member state that enter.
Through the European Agenda on security, the European Commission agrees
that the responsibility for internal security is primary for the Member States but
points out that cross-border challenge are testing the ability of different countries
to act individually, which requires support of the Union to create a trust climate
and facilitate cooperation, exchange of information and joint actions. European
agenda on security identifies as priorities the following areas: counter-threats
regarding security and the fight against terrorism, criminal organizations and
digital crime.
Due to the adoption of agenda on security, measures have been taken which
regulates the regime of firearms and explosives, which reinforces the fight against
financing terrorism and to creating solid and intelligent systems to ensure border
security etc.
In April 2016, the European Commission proposed an effective and real UE
union on security, identifying a series of solutions to the terrorist threat:
Fight against foreign terrorists threat;
Preventing and combating radicalization;
Terrorist punishment and those who support them;
An improvements in information exchange;
Strengthening the European Counter Terrorism Centre;
Suppression of terrorist access to firearms and explosives;
Suppression of terrorist access to funds;
Protect citizens and critical infrastructures.
A different document that has a strong impact on the amendment of EU law
is” the European Agenda on migration”.
The issue of migration on different territories is not a new problem. It has a
long historic journey. Since ancient historical times, wars, hunger, ethnic and
patrimonial violence generated population exodus from a specific territory to
peaceful territories. Nowadays the same causes generate major population
migration from North Africa, from Middle East, from Asian countries to Europe.
This part of the world has become an El Dorado of those who want to escape the
bombings, other violence, hunger and insecurity.
On this background, the European Union member states started to put
questions on migration and terrorism. Is this process affecting the security of its
own citizens or not? The answer is variable in space and time.
In those circumstances, the European debate arises between migration and
security, fundamental rights and freedoms of citizens and their benefit for
migrants. In Romania, the basic law, art. 18 alin. (1) establishes that “Aliens and
stateless persons living in Romania shall enjoy general protection of persons and assets, as
guaranteed by the Constitution and other laws”.
In these circumstances the only legal problem arises when it comes to entering
the national territory. Art. 3 para. (4) of the Romanian Constitution has triggered
controversy in light of recent events on the world political scene in terms of crisis.
Our fundamental law provides that, ”No foreign populations may be displaced or
colonized on the territory of the Romanian State”. However, at the same time, we must
take into consideration art. 11 para. (1) and (2) in conjunction with art. 148 of the
Romanian Constitution. The constitutional provisions enshrines that ”The
Romanian State pledges to fulfill as such and in good faith its obligations as deriving from
the treaties it is a party to”, that the treaties ratified by the Parliament, according to
the law, are part of national law, and that, following the accession of Romania to
the constituent treaties of the European Union, the provisions of the constituent
treaties of the European Union, as well as other binding Community rules take
precedence over the contrary provisions of any domestic laws, with compliance
with the provisions of the Act of accession. Thus, on the one hand, Romania cannot
neglect its obligations from membership nor to remain deaf to the humanitarian
S.O.S. launched at European and worldwide level.
To this problem is related the current process of migration and the protection
of human rights. The general rule in this matter is considering the way it is
established the legal status of strangers in the Member States of the European
Union, putting an emphasis on granting the right of asylum. In this regard,
through the term of "asylum seeker" we understand that it's a person who has
applied for refugee status and who expects his application for asylum to be
accepted or rejected or resolved, respecting the provisions of the law.
In terms of concrete measures that the Member States wanted at the start of the
crisis of migrants, the Agenda on migration do not constitute anything more than
yet another political speech, which comes in response to the crisis with immediate
But from the standpoint of conceptualizing the law, broadly, and the exercise
of fundamental rights, narrowly, the European Agenda on migration establish for
Member States and for the European Union as a whole, the test of double solidarity
in the context of the humanitarian crisis caused by the situation of asylum seekers
in the European Union.
Through the "test of double solidarity" we can understand the insurance and
protection of freedom of movement within the Union and securing of the borders.
At the test of double solidarity participate Member States, voluntarily or as a result
Fundamental rights and freedoms, a possible triggering factor… 107
of the measure imposed1 relating to the relocation of asylum seekers, according to
which rates are established as by which each Member State gets a number of
asylum seekers in proportion to population, GDP, number of requests for asylum
made during the last year and the unemployment rate.
In addition, the European Commission has nominated the Home States that
are considered safe in the sense that their citizens no longer need international
protection and proposed a plan for the repatriation of the illegal immigrants. The
test of double solidarity does not only concern aspects concerning the
humanitarian law, but also the reciprocity between Member States, which can or
cannot assume the same position.
The Concrete measures, following the European Agenda on migration, is
acting for the future through the solutions on the medium and long term, as well
as the consecration of a legal framework to ensure employment, access to social
services and educational opportunities for displaced persons. We believe that it
goes without saying that the "present" is dealt with the legal and physical
protection of these vulnerable people2, namely food and lodging. In the same vein,
the European Council of 17-18 December 2015 goal was conjured up the "control"
of migratory flow, not it’s stopping and accelerating the implementation of
mandatory quotas.
Behold, we are facing a dilemma: how do we find a balance between the safety
of the citizens of the European Union and to ensure basic rights of vulnerable
individuals who, "beat” at the gates of the European Union which forces the
external borders.
The answer to the question gave rise to controversy and dissension between
European Governments and those in Eastern Europe, but also within the European
The European Union's first response was to open its gates to respond by
instinct, "humanitarian protection. Subsequently, in dealing with the effects of this
phenomenon, in particular of terrorism, some States have it expressly denied,
while others have started to have reservations in relation to initial promises. But
the European Union has chosen to impose the solution even relaying Member
States opposed to the sharing of refugees through a mechanism of compulsory
1 At these plans of the Commission opposed, vehemently, several Member: Hungary, the Czech
Republic, Slovakia, Poland and Romania motivating economic, social, cultural and religious aspects.
Subsequently, Poland changed its mind and voted for, what seems to have largely contributed to the
loss of legislative elections by the Liberals from the Civic Platform and at the victory of the eurosceptic
conservative party Law and Justice. Finally, the new Government in Warsaw announced that takes
into account to refuse the application of mandatory shares.
2 Agenda 2030 for sustainable development, recognizing forced displacement as a threat to
progress, which is why the refugees and displaced persons within the country are account vulnerable
Thus, it has been ignored a basic principle of the functioning of the European
Union, which, throughout its history, has targeted decisions on difficult issues by
consensus, so as not to be harmed the interests of the Member States.
As far as we are concerned, we consider that the safety of citizens is vital to the
security of States reporting, and the latter is guaranteed by the legal certainty of
national law. The issue that arises in this context is to what extent we can talk
about legal certainty in the context in which, on the one hand, the European Union
will be essential in the legal order of Member States against them and, on the other
hand, by rethinking the rules concerning the special scheme known of human
Currently, the national policies of the Member States of the European Union
are subject to the minimum standards of protection in the field of human rights.
However, recent events such as terrorist attacks, have questioned the effectiveness
of safety and public order as well as the effective protection of human rights and
In this respect, some Member States have imposed additional measures,
beyond European standards, in order to defend the nation.
Among the measures concerned was merely a new concept, of "public safety",
by which the European Union intended to invade and monitor the private lives of
individuals. In this instance, the notion of not pursuing the prevention of terrorist
acts, but also promotes the State access devices that allow total control of computer
data and interpersonal communications.
In the light of recent events, the specialty literature has emerged the idea that,
in the application of "safety demand" it is necessary to overcome organizational
statutes administered by the State and become a fundamental right of man and of
the citizen. In this respect, it considers that the safety of the citizens does not
preclude compliance with fundamental rights; however, the imposition of duties
constraints may affect the dignity of the person. As an example, Mirabelli (2007)
show that if the State devotes fewer fundamental rights, then there will be fewer
guarantees of personal safety, likely to be subjected to abuse of power, and if they
are offered less safe, the exercise of human rights will be affected.
Theoretical demarcation between terrorism and public safety becomes fragile.
The law establishing the State of emergency in France, of 20 November 2015, sets
out that any person who has a suspicious behavior constitutes a threat to public
order and safety.
The law established in a time when France was declared the State of siege, has
generated a climate of fear, of which public authorities have prevailed to ensure
the safety of French citizens by means of majeure force. Considering the fact that
the number of terrorist attacks in the EU Member States has increased, Milca (2016)
raises the question of whether States will concentrate in actions that will invoke the
increasingly more often a State of emergency on the State safely and in time this
situation to become a form of governance.
Fundamental rights and freedoms, a possible triggering factor… 109
The restriction of the exercise of certain rights or freedoms may be made "only
by law, only if it is necessary, where appropriate, for the protection of national
security, of order, of health, of morals and of the rights and freedoms of citizens ...",
so it is fully applicable in certain phases of the anti-terrorism fight3.
The restriction of the exercise of certain human rights or freedoms motivated
by fear can be considered to be a relational phenomenon, social, or even a ratio
between coercion and persuasion that can harm, whereas, the levers by acting right
in general and the fundamental characteristics of a nation can lead up to a state
bankruptcy. This claim rests on the passing idea of Mihai (2009) that "every
legislated law has a trunk" in the sense that the State and interact according to all
domestic, national, occupied the civil, political, economic, social and cultural.
Therefore, there is an indissoluble between law and the nation in which he is
acting, because the force of the right relates to public power force, that is, by
excellence, State. In the event that one of these elements will become shaky and
According to Chirc (2015), "human rights constitute the favorite targets of
terrorism because their breach affects strongly the public consciousness". In what
concerns us, considering taking in the internal legal order of the represents a risk to
the safety of the State and, subsequently, for the safety of legality.
The process of creating the right, as Geny (1922) asserted is really the evolution
of social relations, of the real or natural "given" of the positive law contains
fundamental conditions underlying humanity. However, the same author
recognises that equally true is that these facts do not create legal rules, but they
prescribe the contours and especially set up for the environment necessary for the
birth of legal norms. If we start from the premise that the exercise of fundamental
rights may be affected by the domino effect of some external factors that endanger
the safety of both citizens and the nation as a whole, we can conclude that we are
witnessing an involution of the right.
Vida (2012) believes that the process of creating the right must highlight,
"social foundations, and political transformations that are taking place in society
and determines what changes should be made legal, and technical aspects which
make it is possible their legislative regulation". In other words, the restriction of the
exercise of fundamental rights according to transnational terrorist threats at State
cannot fit under the assumption the strengthening of existing rights and freedoms
by virtue of the principle of collective safety. Also, the paradigm of fundamental
rights should be understood as the universal dimension of the right which is the
sine qua non a distinct social phenomenon.
The influence of fundamental rights on the process of creating and
implementing the law manifests itself by ensuring the validity and applicability,
foreseeability of universal values that, once recognized, are imprescriptible. To the
3 The statement is that of art. 53 para. (1) of the Constitution of Romania, but in all modern
national laws .
contrary, we can wake up in the middle of a crisis of fundamental rights. In the
event that the exercise of fundamental rights is restricted only for the State to
protect citizens we learn in front of contradictions. According to Vida (2012),
"defining the law, starting from this feature becomes inoperative". In such a
situation the legislator must not dispose to terrorist claims through a "barricade",
which to secure in place of protect. Obviously, the question arises how high the
degree of protection without being censored on certain rights and freedoms. We
believe that the answer can be found in the very struggle of birth right, in
architectural social finality which, in the opinion of Kant (1972), determined that
"the man exists as purpose in itself" and which manifests itself through
strengthening the mandatory law and the re-foundation of the legal system.
Therefore, in our opinion, the right external constraints should not impose a new
legislative identity of fundamental human rights.
The current contradiction between fundamental rights and freedoms of
citizens and foreigners cannot be eliminated only through legal measures. It is
necessary to act at the root of the causes that generates the migration, primarily the
local wars, of the re-instauration of a social climate that allows a co-existence in the
local climate, unadulterated by political, social and economic vicissitudes.
1. Apetrei, A.M., (2010), Drepturile omului în Uniunea European, Editura
Lumen, Iaşi, p. 107.
2. Chirc, I. L., (2015), Terorismul, grav înclcare a drepturilor omului, în Revista
,,Drepturile Omului”, IRDO, no. (4), p. 29.
3. Dauses, M., (2006), Drepturile fundamentale ca elemente ale ordinii de drept a
Uniunii Europene, Revista ,,Dreptul”, no. (9), p. 29.
4. Deleanu, I., (2006), Instituii și proceduri constituionale – în dreptul român și în
dreptul comparat, Editura C.H. Beck, București, p. 454 și urm.
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Editura Ştiinific, Bucureşti, p. 46.
6. Gény, F., (1922), Science et technique en droit privé positif, Second Partie,
Recueil Sirey, Paris, p. 371.
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starea de excep ie, în Revista ,,Drepturile Omului”, IRDO, no. (2), p. 22.
8. Mihai, Gh., (2009), Fundamentele dreptului, Vol. I, Ştiina dreptului şi ordinea
juridic, C.H. Beck, Bucureşti, p. 88.
9. Mirabelli, C., (2007) Libertà e sicurezza, la falsa alternativa, Oasis Center, Anno
III. No.5, Marzo 2007, [Online] Disponibil pe:
articoli/2007/03/01/libert%C3%A0-o-sicurezza-la-falsa-alternativa [Accesat la
data de 05.11.2016].
10. Vida, I., (2012), Legistic formal, Universul Juridic, Bucureşti.