Human dignity in Romanian law
| Author | Elena-Mihaela Fodor |
| Pages | 79-92 |
Human dignity in romanian law 79
HUMAN DIGNITY IN ROMANIAN LAW
Elena-Mihaela FODOR1
ABSTRACT
Dignity is a concept that has evolved according to the moral and ethical requirements of a certain
time and space, following the shifts of life of the community which sanctions it. It has come to signify
the birth-given right of the individual to be valued by others and to be treated accordingly. Regarding
the legal aspect of dignity, it is undisputed that it is one of the fundamental rights of the human being.
It is no longer a question of whether one realizes or wastes dignity, because the law is made to protect
this value no matter what the actual situation of one is in society. As according to the Romanian
Constitution the international conventions ratified by Romania take precedence over national
legislation, the same being valid for European Treaties and other mandatory community regulations,
these international legal norms are included in the national legislation. Their legal force is equal to the
force of the Constitution. The paper analyses the legal frame for protection of dignity in Romania
through the international conventions protecting human rights that Romania has adhered to, its
Constitution, the Civil code (Law No. 287/2009) and the Criminal code (Law No. 286/2009). Case
law of the European Court of Human Rights, which enlarges the normative field by including in the
interpretation of the European Convention of Human Rights other international acts, and of the
European Court of Justice is presented. Although a very wide concept, human dignity is perceived in
connection with other human rights in a common manner in the international community. Romanian
legislation is in line with international norms, but not always co rrectly applied.
Keywords: Public law, human rights, dignity, conventions on human rights, personal rights.
1. Introduction
Social norms are a way of directing the activity of humans towards objectives
with the nature of collective values. In order to attain their goal, the norms encourage
desired behaviours with different stimulants and discourage undesirable behaviour
by different sanctions. The most appreciated values in a society are protected by
legal norms, since such norms are the only one containing a sanction applied by
the constraining force of the state. Values are ranked in the legal system, the most
important values being protected by the most severe sanctions. Personal values,
such as life, health, body integrity are protected by criminal law. Such values have
an objective value and any serious injury of those values is punished by the state
1 Associated Professor, Ph.D., „Dimitrie Cantemir” Christian University, Faculty of Law Cluj-Napoca,
Romania
Law Review vol. III, Special issue 2017, pp. 79-92
80 ELENA-MIHAELA FODOR
regardless the claim of the victim. Among the most praised values protected by
legal norms is human dignity.
As dignity is considered a human value around the world, some researchers
considered that its intrinsic meaning has been left to intuitive understanding,
conditioned in large measure by cultural factors [1]. Although the meaning of
dignity may present some particularities in different cultures as it points to
different deeper foundations, the main characteristics are similar, so we agree with
the opinion that dignity is one of the universal human rights associated to the
social structure and functionality and not to culture [2].
It is extremely difficult to forge a definition of human dignity, although
everyone understands the basic meaning of the term. Kant attaches to this social
value the need of consciousness, as he considers that by dignity a person commands
respect for himself from all from rational beings, with whom he can measure
himself and value himself on equal footing [3]. Kant attaches dignity to moral, a
human being his/her own legislator, determining some modern thinkers to consider
that dignity exists when a person is capable to exercise his/hers moral capacity [4].
It is broadly considered that dignity is hurt by humiliation. This also leads to the
question of the necessity of consciousness: can a person that is not conscious of
what is happening to him/her be humiliated and thus hurt in his/her dignity? For
an answer we have to establish if human dignity is a subjective or an objective
value. This discussion was often brought up in connection with medical interventions
upon human embryos [4], [5]. In our opinion this is a false perspective, as the main
discussion in this case is weather a human embryo is a human person with rights
attached, or, at what stage of a human embryo’s development it may be considered
as such. In order to find an answer, we consider that a correct approach is to find
out if in the related concepts dignity – humiliation consent is relevant [5]. In this
respect, German administrative courts decided that peep shows (in which striptease
and other obscene acts were performed by women, while spectators watched behind
widows) could be prohibited as they were incompatible with human dignity, even
if women were performing voluntarily [5]. It has also been pointed out that there
are two aspects of dignity that should be considered: a subjective one, referring to
each individual’s sense of honour, and an objective one, regarding reputation, the
esteem granted by the community [6]. Many legislations protect the dignity of
human remains. This also leads to the idea that dignity has an objective value, as
these bodies, even if they died hundreds or thousands of years ago, do not lose their
human dignity in the eyes of later generations [7]. We can conclude that human
dignity is related to personal status, the way a person perceives herself in relation
with others, or, the way he/she is perceived by others. The way a person perceives
herself in relation with others is closer related to freedom and equality, and the way
a person is perceived by others is closer related to morals and culture. Dignity is
related to a great number of situations of life. Infringements of human dignity may
be produced by physical or psychological injuries. A combination of those two are
Human dignity in romanian law 81
related to the wellbeing of humans. In the case of psychological injuries, words or
images may be used. The way a person is perceived by others is related to the
concept of reputation, as a sum of values attached to the person that are valued by
the society.
International conventions regarding human rights are part of the Romanian
legislation, being included in the so-called “constitutionality block”. According to
art. 20 para. 2 of the Romanian Constitution where any inconsistencies exist
between the covenants and treaties on the fundamental human rights Romania is a
party to, and the national laws, the international regulations shall take precedence,
unless the Constitution or national laws comprise more favourable provisions. As
Romania is member of the European Union since 2007, the Constitution of Romania
places the European treaties and European legislation in the same “constitutionality
block”. According to art. 148 para. 2 of the Constitution “As a result of the accession,
the provisions of the constituent treaties of the European Union, as well as the other
mandatory community regulations shall take precedence over the opposite provisions
of the national laws, in compliance with the provisions of the accession act”.
Together with the international conventions, the case law of the international
courts that survey the compliance with certain conventions also takes precedence
in the same conditions.
The article is highlighting some of the main international legal documents
Romania has adhered to that refer to the protection of human dignity and the way
the jurisprudence of the European Court of Human Rights (ECtHR or Court) and the
Court of Justice of the European Union (CJEU) are considering such international
documents. The article also comments on the way human dignity is protected by
the Romanian Constitution, the Romanian Civil and Criminal codes.
2. Protection of human dignity by international conventions Romania is a
party to
The main international situations where people were hurting each other were
the wars. The first Geneva Convention (Geneva Convention for the Amelioration of
the Condition of the Wounded in Armies in the Field, 1949) protects the human
dignity of combatants in international armed hostilities against „unnecessary
suffering” [8] obliging that the wounded or sick combatants, to whatever nation they
may belong, shall be collected and cared for (art. 6). The Geneva Convention relative
to the Treatment of prisoners of War (revised in 1949), prohibits outrages upon
personal dignity, in particular, humiliating and degrading treatment, in the case of
persons taking no active part in the hostilities, including members of armed forces
who have laid down their arms and those placed hors de combat by sickness,
wounds, detention, or any other cause (art. 3). The same text prohibits cruel treatment
and torture. As, unfortunately, armed conflicts are a constant of modern and
82 ELENA-MIHAELA FODOR
contemporary world, remedies against the infringements these conflicts are bringing
to human dignity of the victims include international criminal courts. It was affirmed
that international courts are complementary to national courts and have to fill the
gaps when states are unwilling to act because of breakdown of domestic judicial
infrastructure or political reasons related to the fact that suspected perpetrators are
high-ranking persons close to the country’s leadership [9].
Protecting human dignity was a constant concern for the United Nations
Organisation (UNO). In the Universal Declaration of Human Rights proclaimed by
the United Nations General Assembly in Paris on 10 December 1948, several norms
aim to protect human dignity against physical abuse. It has to be underlined that
dignity is distinctly mentioned in the first sentence of the preamble of the Declaration,
alongside with „equal and inalienable rights” as constituting the „foundation of
freedom, justice and peace in the world”. Art. 1 of the Declaration links dignity to
equality, stating that „All human beings are born free and equal in dignity and
rights”. The text emphasizes that dignity comprises the same values for all human
beings and inequality of rights can lead to harming of human dignity. The
Declaration is further protecting life, liberty and security of person (art. 3), is
banning slavery and servitude (Art. 4), torture, cruel, inhuman or degrading
treatment or punishment (art. 5).
The United Nations Organisation also focused on special groups that may be
vulnerable. The starting point in the protection of such groups is the Declaration of
Human Rights. Children are under the guidance of parents, educational institutions
or different state institutions. Children are vulnerable as they have to obey their
guides and against disobedience disciplinary measures may be taken. The
Convention on the Rights of the Child (1989) stipulates that school discipline has to
be administered in a manner consistent with the child’s human dignity (art. 28).
Also, every child (the Convention is defining as being a child a person with the age
under 18 years old) deprived of liberty shall be treated with respect for the
inherent dignity of the human person, taking into account the needs of persons of
his/her age (art. 37). Also, the Convention requires that every child alleged as,
accused of, or recognized as having infringed the penal law should be treated in a
manner consistent with the promotion of the child’s sense of dignity and worth
(art. 40). The Convention on the Elimination of All Forms of Discrimination against
Women states in its introduction that discrimination against women violates the
respect for human dignity. The Convention on the Rights of persons with
Disabilities (2006) calls for the protection of the dignity of such persons who find
themselves in disadvantaged situations in comparison with others. The Preamble
of the Convention mentions that discrimination against any person on the basis of
disability is a violation of the inherent dignity and worth of the human person.
According to the Convention, respect for the dignity of persons with disabilities
includes individual autonomy, freedom to make one’s own choices and
independence of persons (art. 3). The Convention against Torture and other Cruel,
Human dignity in romanian law 83
Inhuman or Degrading Treatment or Punishment adopted by the UNO General
Assembly in 1984 also mentions in its preamble that the equal and inalienable
rights of all members of the human family, that are the foundation of freedom,
justice and peace in the world derive from the inherent dignity of the human
person. The definition of torture mentions acts that inflict intentionally severe
suffering on a person, of both physical and mental nature.
The advances in biomedicine lead to the Council of Europe’s Convention for
the protection of Human Rights and Dignity of the Human Being with regard to
the Application of Biology and Medicine (known as the Oveido Convention, 1999).
It provides framework structure for the preservation of dignity in relation with the
field of bioethics [10].
3. European protection of human dignity
3.1. European Convention of Human Rights and the case law of the European
Court of Human Rights concerning human dignity
At the European level, the European Convention of Human Rights (ECHR or
Convention) does not mention explicitly dignity as a protected right, with the
exception of Protocol no. 13, for the protection of Human Rights and Fundamental
Freedoms concerning the abolition of the death penalty in all circumstances, which
mentions that the abolition of the death penalty is essential for the protection of
everyone’s right to life and for the full recognition of the inherent dignity of human
beings. Nevertheless, the ECtHR condemned the states for infringing or not being able
to protect the rights explicitly protected by the Convention, due to infringements of
human dignity. The judgements of the Court consider the international conventions.
Human dignity can be associated with all rights protected by the Convention. Our
article mentions only a few examples.
Related to Art. 3 of the Convention, that prohibits torture, inhuman or
degrading treatments, in the case of Centre for Legal Resources on behalf of Valentin
Câmpeanu v. Romania, the Court judged upon the treatment applied by the state to a
person that was abandoned at birth and thus placed in an orphanage and later
diagnosed with “profound intellectual disability, an IQ of 30 and HIV”. The Court
found that in the case were incident the provisions of the United Nations Convention
on the Rights of Persons with Disabilities. A major problem risen by this case was
the possibility of persons with mental disabilities to protect themselves before
justice against different forms of violations of their dignity. In this respect, the UNO
Universal Declaration of Human Rights says that everyone has the right to
recognition everywhere as a person before the law (Art. 6). As a third party, The
European Commissioner for Human Rights considered that nongovernmental
organisations (NGOs) „played an important role, including by facilitating vulnerable
people’s access to justice”. The Commissioner also referred to case-law of other
84 ELENA-MIHAELA FODOR
international courts, such as the Inter American Court of Human Rights, which
granted locus standi to NGOs acting on behalf of alleged victims, even when the
victims had not appointed these organisations as their representatives, as in the case
of Yatama v. Nicaragua. The Court considered the view of the Bulgarian Helsinki
Committee saying that “crime against institutionalised individuals with mental
disabilities was shielded from the enforcement of laws designed to ensure its
prevention, punishment and redress”. After an extensive analysis of previous
jurisprudence, the Court found that the complaint was admissible, despite the fact
that the NGO that lodged it had no power of attorney from the victim and the
victim died before the lodging of the complaint, considering that any other solution
will allow the respondent State to escape accountability. The Court found that the
treatments that Mr. Câmpeanu was subjected to, namely negligent medical care,
failure to provide adequate care, living conditions such as lack of food, lack of
heating and presence of infectious diseases, met the conditions to consider that art.
3 of the ECHR has been violated. Considering the definition from the Convention
against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,
it is obvious that the dignity of the victim has been severely hurt, although it is
improbable that the victim has personally perceived an infringement of his dignity.
At the same time, the judgement underlines that one has the right to the protection
of dignity even if one has ceased to live.
In the case of Siliadin v. France, the European Court of Human Rights found
that obtaining of performance of services for no payment or for manifestly
disproportionate underpayment, and the subjection of another to living or working
conditions incompatible with human dignity was a violation of art. 4 of the European
Convention of Human Rights – prohibiting forced labour. The conclusion were
also applied in the case of C.N. v. the United Kingdom.
Restraining one’s freedom is clearly an imposition to one of the most
important human rights. This is why, according to art. 5 of the ECHR, the measure
can only be taken if it is provided by the law. The person has to be informed
promptly, in a language which he understands, of the reasons for his arrest and of
any charge against him, and shall be brought promptly before a judge or the officer
authorised by the law to exercise judicial power for trial within a reasonable time.
In the case of Khlaifia and Others v. Italy, the UNO’s International Law Comision’s
„Draft articles on the expulsion of aliens” were referred by the ECtHR. According
to art. 13 of this international document, all aliens subject to expulsion shall be
treated with humanity and with respect for the inherent dignity of the human
person at all stages of the expulsion process. During the proceedings of the case it
was argued that under art. 1 of the European Union’s Charter of Fundamental
Rights, which protects human dignity, any measures entailing the deprivation of
liberty of migrants and the conditions of such detention had to ensure respect for
their human dignity.
Human dignity in romanian law 85
Art. 6 of the Convention protects the right to a fair trial. It has been
emphasized that all procedure rules established as rules of a fair trial, such as
equality between the parties, adversity and ruling by an independent and impartial
judge concur to a dual purpose: facilitating both a fair outcome and a fair process
which respects the parties’ dignity [11]. In the case of D.M.D. v. Romania, the Court
found a violation of art. 6 of the Convention due to the incapacity of national
administrative authorities and courts to protect a child against domestic violence
as the investigations and procedures that led in the end to the conviction of his
father lasted for over eight years, as well as for the lack of compensation for the
sufferings enduring due to the excessive length of procedures. The judgement
referred to the Council of Europe Convention on Preventing and Combating Violence
against Women and Domestic Violence (Istanbul Convention) that requires States
Parties to prevent violence against women, protect victims and prosecute the
perpetrators. It also mentions the Guidelines on child-friendly justice adopted on
17 November 2010 at the 1098th meeting of the Ministers’ Deputies, the Committee
of Ministers (CM/Del/Dec(2010)1098/10.2) that requires that the best interest of
children must be a primary consideration in all matters involving or affecting them
and that justice must be adapted to and focused on the needs and rights of the
child, including his or her right to respect for his or her physical integrity and
dignity and recognise the children’s right to legal counselling and to expeditious
proceedings.
The criminal law principle of nullum crimen, nulla poena sine praevia lege,
expressed by art. 7 of the Convention ensures that only the law can define crime
and prescribe penalty. However, people should be aware that social relationships
are governed by legal principles that sometimes are placed above the national
legislation. In connection with art. 7 it has been pointed out that the ECtHR may
not have the competence to apply international rules, other than the international
rules on human rights enshrined in the Convention [12]. Nevertheless, the Court
has made such application. In our opinion this is justified by the fact that the rights
protected are generally recognised human rights and their content cannot be
defined without reference to international regulations. In the case S.W. v. the United
Kingdom, the Court found no violation of art. 7 when a man was convicted for
raping his wife at knifepoint, although a common law principle dating since 1736
was in force saying that the husband cannot be guilty of rape committed by himself
upon his lawful wife. In finding so, the Court affirmed that “the abandonment of the
unacceptable idea of a husband being immune against prosecution for rape of his
wife was in conformity not only with a civilised concept of marriage but also, and
above all, with the fundamental objectives of the Convention, the very essence of
which is respect for human dignity and human freedom”. This means that in the
context of actual international legislation protecting human rights, such national rules
as marital immunity against conviction for rape are obsolete. In the Kononov v. Latvia
case, the Court had to decide if the applicant’s conduct that was qualified as war
86 ELENA-MIHAELA FODOR
crime was statute-barred. Considering the „Geneva law” (1864-1949) on the
treatment of persons and possessions under the control of the enemy, as well as the
laws and customs of war prior to the Second World War and jurisprudence related
to prosecution of war events of the second World War, the Court ruled that as in
1944 no limitation period was fixed by international law as regards the prosecution
of war crimes and neither have developments in international law since 1944
imposed any limitation period on the war crimes charges against the applicant,
any prescription provisions in domestic law were not applicable and the charges
against the applicant were never prescribed under international law.
Human dignity is often discussed in relation with family life and the respect
for private life protected by art. 8 of the Convention. Judgements of the Court
emphasized that in respect of children, who are particularly vulnerable, the
measures applied by the State to protect them against acts of violence falling
within the scope of art. 3 and art. 8 should be effective and include reasonable
steps to prevent ill-treatment of which the authorities had, or ought to have had,
knowledge and effective deterrence against such serious breaches of personal
integrity (Z and Others v. the United Kingdom, M.P. and Others v. Bulgaria) and that
such measures must be aimed at ensuring respect for human dignity and protecting
the best interests of the child (C.A.S. and C.S. v. Romania, Pretty v. the United Kingdom).
In the case of S. and Marper v. the United Kingdom, the Court had to decide if storage
of personal data such as fingerprints, cellular samples and DNA profile of persons
suspected of a crime but not convicted, violate the right to private life. The Court
observed that the protection afforded by art. 8 of the Convention would be
unacceptably weakened if the use of modern scientific techniques in the criminal-
justice system were allowed at any cost and without carefully balancing the
potential benefits of the extensive use of such techniques against important
private-life interests. Of particular concern proved to be the risk of stigmatisation,
stemming from the fact that persons who have not been convicted of any offence
and were entitled to the presumption of innocence, were treated in the same way
as convicted persons, affecting their dignity. This can lead to insufficient protection
against the misuse or abuse of such data and therefore represents a violation of art. 8.
The ECtHR also decided that by using IT means in order to monitor the
employees, an intrusion into their right to privacy occurs, as they would feel under
scrutiny and therefore, they change or censor their usual conduct, habits,
preferences [13].
The ECtHR has been a unifying instrument in applying bioethics by interpreting
art. 8 in the light of the Oveido Convention [14]. In the case of Glass v. the United
Kingdom for example, the Court reviewed the national regulatory framework on
parental consent under the Oveido Convention, although the United Kingdom has
neither signed nor ratified this convention. The Court considered that, having regard
to the circumstances of the case, the decision of the authorities to override the second
Human dignity in romanian law 87
applicant's objection to the proposed treatment in the absence of authorisation by a
court resulted in a breach of art. 8 of the Convention. The applicants in the case
considered that court involvement was crucial in a case where physical integrity,
human dignity and fundamental rights were involved.
3.2. Charter of Fundamental Rights of the European Union and the Case Law
of the Court of Justice of the European Union
European Union has adopted its Charter of Fundamental Rights. The preamble
of the Charter shows that „the Union is founded on the indivisible, universal values
of human dignity, freedom, equality and solidarity; it is based on the principles of
democracy and the rule of law”. The first article of the Charter is dedicated to the
protection of human dignity, strongly affirming that “Human dignity is inviolable. It
must be respected and protected”.
The CJUE has underlined the importance of the value in the case of Omega
GmbH v. Bundesstadt Bonn [C-36/02]. The specific question referred to the CJUE
was whether a common legal conception in all Member States was a precondition
for one of those States being enabled to restrict the basic freedom, on the grounds
that human dignity had to be protected. The CJUE pointed out that human dignity
was one of the general principles of law recognised by the Community as in need
of protection, and that the measure taken in this context fulfilled the conditions for
justifying the service restriction. According to the CJUE, this finding was not
incompatible with the fact that the activity in question, which involved using laser
guns to simulate homicide, was not subject to any restrictions in the United Kingdom,
as Omega had imported the Laserdrome concept as a service provider from a firm
in the United Kingdom.
The CJUE also ruled against inhuman or degrading treatments, based on the
first article of the Charter. In the joined cases Aranyosy and Cldraru [C-404/15 and
C-659/15 PPU], it considered that as regards the prohibition of inhuman or degrading
treatment or punishment, laid down in art. 4 of the Charter, the prohibition is
absolute in that it is closely linked to respect for human dignity, the subject of art. 1
of the Charter. The cases related to European arrest warrants, which felt under the
incidence of the Framework Decision 2002/584/JHA regarding Police and judicial
cooperation in criminal matters. The Court stated that compliance with art. 4 of the
Charter, concerning the prohibition of inhuman or degrading treatment or
punishment, is binding, as is stated in art. 51 para. 1 of the Charter, on the Member
States and, consequently, on their courts, where they are implementing EU law,
which is the case when the issuing judicial authority and the executing judicial
authority are applying the provisions of national law adopted to transpose the
Framework Decision.
The CJUE also ruled upon situations where respect for family life implied respect
for human dignity. In the judgement A, B and C v Staatssecretaris van Veiligheid en
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Justitie [joined Cases C 148/13, C 149/13 and C 150/13], the CJUE decided that in
relation to the option for the national authorities of allowing the submission of the
applicants to possible ‘tests’ in order to demonstrate their homosexuality or even
the production by those applicants of evidence such as films of their intimate acts,
besides the fact that such evidence does not necessarily have probative value, such
evidence would of its nature infringe human dignity, the respect of which is
guaranteed by art. 1 of the Charter.
In the case S. Coleman v Attridge Law and Steve Law [C303/06], related to
discrimination, the opinion of the Advocate General was that human dignity
entails the recognition of the equal worth of every individual. „One’s life is
valuable by virtue of the mere fact that one is human, and no life is more or less
valuable than another”. He also mentioned that „The most obvious way in which
such a person’s dignity and autonomy may be affected is when one is directly
targeted because one has a suspect characteristic. Treating someone less well on
the basis of reasons such as religious belief, age, disability and sexual orientation
undermines this special and unique value that people have by virtue of being
human. Recognising the equal worth of every human being means that we should
be blind to considerations of this type when we impose a burden on someone or
deprive someone of a benefit. Put differently, these are characteristics which
should not play any role in any assessment as to whether it is right or not to treat
someone less favourably”. The Court decided that if an employer is treating some
of the employees less well than others on grounds of religion, age, disability and
sexual orientation, the employer is subjecting these individuals to unjust treatment
and failing to respect their dignity and autonomy. The court decision also pointed
out that the European Union's discrimination policy covers not just people who are
disabled (or have a particular sex, race, religion, belief and age) but people who
suffer discrimination because they are related or connected to disabled people (the
case was about a mother accused by her employer of using her child as a way to
manipulate requests for working time).
4. Romanian Constitution, the Romanian Civil and Criminal code
Romania has mentioned human dignity as a constitutional value. The Romanian
Constitution adopted in 1991 mentions explicitly human dignity in two articles.
In art. 1 para. 3, human dignity is mentioned together with the citizens' rights and
freedoms, the free development of human personality, justice and political pluralism
as supreme values. The second time, human dignity is mentioned in connection
with fundamental rights, stating in art. 30 para. 6 that freedom of expression shall
not be prejudicial to the dignity, honour, privacy of a person, and to the right to
one's own image. In decision no. 1576/2011 the Romanian Constitutional Court
showed that the human dignity is an inalienable attribute of the human person and
in intrinsic value of the human being. The constitutional provisions regarding
Human dignity in romanian law 89
dignity lead to normative acts for social protection [15]. After December 1989,
when the communist regime was overturned, even before the new Constitution
was adopted in 1991, Romania has considered the dignity of those oppressed for
political reasons and adopted legislation for compensating the infringements
committed upon the dignity of human beings in the case of former political
prisoners [16]. The normative act was considered to restore, even if at a small scale,
the dignity of those formerly oppressed2.
The Criminal code which entered into force in 1968 strongly protected human
self-esteem, honour and dignity, as insult, slander and libel were considered to be
criminal offences, according to art. 205 and art. 206. Law no. 278/2006 abrogated
art. 205 and art. 206 of the 1968 Criminal code. The main ideas mentioned in the
statement of reasons for the adoption of Law no. 278/2006 were that limitation of
the freedom of expression should be determined by ethical reasons rather that fear
of punishment; that even if one’s dignity is injured due to the exercise of the
freedom of speech, a criminal punishment is disproportioned in respect to the
general aim pursued when sanctioning such violations and that in case freedom of
speech is abusively exercised, the injured party has the possibility of a civil remedy.
We observe that all the reasons are related to freedom of speech [17]. Law
no. 278/2006 was contested to the Constitutional Court, in connection with a press
article, the contester considering that once slander and libel were decriminalised the
text of art. 30 para. 8 of the Constitution - saying that press offences are established
by law - remained void as there is no law on the press. The Constitutional Court
agreed and in the reasoning of the decision no. 62/2007 it showed that according to
art. 1 para. 3 of the Romanian Constitution human dignity is among the supreme
values and shall be guaranteed. The Constitutional Court appreciated that
abrogating the articles that protected that value from the Criminal code created a
legal vacuum, as no other legal protection is offered. It is to be mentioned that, at
the time, Decree no. 31/1954 was in force, providing non-patrimonial ways for
repairing injuries to the human dignity, such as the right to address the court in
order to obtain the termination of the injurious act, the possibility to claim that the
offender would publish the court decision on his own expenses, or to perform other
activities that would restore the injured right, as well as art. 998 of the Civil code
enforced in 1865 that allowed compensation by patrimonial means for a non-
patrimonial injury. The Constitutional Court also decided that, as an effect of the
unconstitutionality of art. I point 56 of Law no. 287/2006, art. 205 and art. 206 of the
Criminal code re-entered into force. In another decision, no. 8/2013, the Constitutional
Court expressed the opinion that human dignity will not be protected if insult,
slander and libel are not incriminated as criminal offences. The decision also
mentioned the limits to the freedom of expression set by art. 10 para. 2 of the ECHR
and art. 19 para. 3 of the International Pact for Civil and Political Rights. The
Constitutional Court argued that “ignominy by its nature cannot be repaired and
2 Galai Court of Appeal, decision no. 339/2012.
90 ELENA-MIHAELA FODOR
human dignity cannot be priced nor compensated through material benefits”;
decriminalisation of insult, slander and libel will set a lower standard for the
protection of human dignity, against the Constitutional dispositions. A wide analysis
of comparative legislation and solutions of the ECtHR, in respect with incrimination
of insult, slander and libel as criminal offences, was also mentioned in the reasoning
of decision no. 8/2013. The fact that the new Civil code (Law no. 287/2009), that
entered into force in October 2011, provides protection for the inherent rights of the
human being, such as dignity, one’s own image and respect of private life, does not
change the situation, as civil law means of repairing the injury were considered
insufficient and inadequate.
A new Criminal code (Law 286/2009) entered into force in 2014. Insult, slander
and libel are no longer criminal offences. In the new Criminal code, human dignity
is mentioned several times. In art. 75 para. 1 letter a) extenuating circumstances are
considered if the criminal offence was provoked by an injury to the offender’s
dignity. Art. 371 incriminates actions against human dignity that trouble the public
order and peace (Toader & Tutunaru, 2009). The protection of human dignity is
enhanced by the fact that degrading or inhuman treatment of others is considered
an aggravating circumstance, for example by art. 263 letter c) concerning the traffic
of migrants, art. 281 para. 2 regarding detention, art. 440 para. 1 letter h) regarding
war crimes [18].
The Constitutional Court of Romania also gave value to art. 1 para. 3 in the
decision no. 778/2009 when it was decided that the abrogation of letter f1) form the
art. 15 of the Law 146/1997, that exempted the judicial tax for actions seeking
remedy against infringements to dignity and honour, was unconstitutional. The
Constitutional Court considered that human dignity was no longer protected in a
manner the Constitution provisions and art. 6 of the European Convention of Human
Rights, regarding access to justice, intended.
In a recent decision, no. 33/2017, the Constitutional Court rejected a claim of
non-constitutionality of art. 226 para. 1 from the Criminal code. The plaintiff
argued that it is not constitutional to consider that photographing, capturing or
recording images, listening with technical apparatus or audio-recording a person is
to be considered a crime only if it only takes place in the person’s home (considering
the sense that the Criminal code is giving to the notion of „home”). The
Constitutional Court reasoned that the Romanian legislation provided considerable
attention to personality’s rights, regulating in the Civil code the right to private life
in art. 71 and art. 74, the right to one’s image in art. 73 and the protection of non-
patrimonial rights of the natural person in art. 257. Also, according to art. 1.357, the
one who injures another is obliged to repair the prejudice even in the case of the
slightest fault. The Constitutional Court concluded that Romania acted inside the
margin of appreciation allowed by the ECHR and the case law of the ECtHR, when
it chose not to incriminate the same actions performed in a public space.
Human dignity in romanian law 91
Unfortunately, the debate regarding the balance between the freedom of
expression and the protection of human dignity is revolving in Romania only
around the freedom of the press. The legislator is forgetting that people attack one
another often, and nowadays, under the protection of the anonymity offered by the
virtual space the attacks seem to multiply. Damages to the human dignity can be
devastating, especially among the young people, as statistics regarding cyberbullying
show.
5. Conclusions
Human dignity is considered one of the most important values among human
rights. Human dignity is in close relation with both social organisation and morals,
as one evaluates dignity in relation with the values of the group one belongs to.
Dignity can be a subjective as well as an objective value. Consciousness or the
acceptance of acts that damage one’s dignity do not change the perception of the
group regarding an infringement of the value. International conventions and
treaties consider human dignity and international courts base their jurisprudence
on international legal norms that protect dignity in relation with other human
rights, in a way that tends to form a universal understanding of the concept. The
legal frame in Romania is formed by constitutional dispositions, international
conventions regarding human rights, the European treaties and the mandatory
European legal rules, as well as by the case law of the European courts (ECtHR and
CJUE) which together form the „constitutionality block” and national legislation. The
new Civil and Criminal codes consider human dignity to be an important human
right and provide legal dispositions for protecting it. Nevertheless a better
understanding of the legal concept of human dignity and the fact this is a source
right for other human rights will result in better national legislation and better
enforcement of the legal rules.
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