Reflecting the right to privacy in the decisions of the constitutional court of Romania

Author:Eliza Ene-Corbeanu
Position:Lawyer
Pages:124-139
SUMMARY

The need to protect has deep roots in the history of law. Paradoxically, the more humanity has endeavored to legislate, the abuse and the lack of real support from those responsible for ensuring security and peace have increased. That is how society felt that, besides the internal regulation of privacy, it had to appeal to international organisations whose purpose was to persuade states that they alone could be able to resist any abusive interference in the individual's privacy. The Universal Declaration of Human Rights established in 1948 that no man would be the object of arbitrary interference in his private life, as long as there is legal protection against these intrusions. Article The Right to Privacy written by Samuel Warren and Louis Brandeis, appeared in... (see full summary)

 
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LESIJ NO. XXVI, VOL. 1/2019
REFLECTING THE RIGHT TO PRIVACY IN THE DECISIONS OF THE
CONSTITUTIONAL COURT OF ROMANIA
Eliza ENE-CORBEANU
Abstract
The need to protect ha s deep roots in the histor y of law. Pa radoxically, the more humanity has
endeavored to legislate, the abuse a nd the la ck of real support from those responsible for ensuring
security and peace ha ve increased.
That is how society felt that, besides the internal regulation of privacy, it ha d to appeal to
internationa l orga nisations whose pur pose was to persuade states that they a lone could be able to
resist any abusive interference in the individual' s privacy.
The Universal Declar ation of Human Rights established in 1948 that no man would be the object
of arbitra ry interference in his private life, as long as there is legal protection against these intrusions1.
Article The Right to Privacy written by Samuel Warren and Louis Brandeis, appeared in the
Harvar d Law Review, volume IV, issue 5 of December 15, 1890, is considered to be one of the most
influential essays in the history of American law2, and the r ight to private life is defined by the authors
as the right to be left alone or the right to loneliness3.
The social evolution and the transformations of law have gradually led to an increasing distance
between the initial desideratum - that of loneliness - and the real need to ensure a safety and protection
environment for each individual.
Even if at the theoretical level any individual has the right to be left alone, in reality this right is
not necessarily illusory, but rather impossible to be respected in the way we would probably want each
one of us.
Complex threats, from wars, civil movements, terrorism, to cyber attacks, and the need for strong
nations to dominate, have transformed the right to private life into a promising slogan whenever
interest calls for it, or, worse, have reduced to noticea ble dimensions invoking the need for over-
protection of the individual by the state.
But what are governments doing in the name of protecting their own citizens? They violate
private life, but they do it under the protection of the law, they do not r espect fundamental rights, but
their action a ppears justified, they restrict liberties a nd even suppress any intimacy in the name of the
protection of the general good.
What does ultimately mean private life and how much should the state be interested in protecting it?
Of course, the notion itself is a ll-encompassing, with unspeakable valences and hidden
ramifications throughout our existence.
We have a private life from the moment we are born, but others a re responsible for it, private is
the home with all its dependencies, pr ivate information about the sta te of health, or persona l data, at
work we have the right to intimacy, even a detainee ha s the right to ensure and r espect his private life
in designated spaces a nd the list can continue.
By making a para llel between private life in the American model and the way it is pr otected in
European la w, a fundamental difference emerges.
Lawyer (e-mail: elizacorbeanu@yahoo.com).
1 http://www.un.org/en/universal-declaration-human-rights/.
2 Susan E. Gallagher, Introduction to The Right to Privacy by Louis D. Brandeis and Samuel Warren: A Digital
Critical Edition, University of Massachusetts Press, forthcoming.
3 Warren & Brandeis, paragraph 1.
Eliza ENE-CORBEANU 125
LESIJ NO. XXVI, VOL. 1/2019
If in American la w individual autonomy is the expression of absolutism, being th e core of the
existence of social rights, Europeans did not think this notion as an independent, stand alone, supreme
relation to the other rights r ecognized by the individual but as an important, but not exclusive
component or outside any limitations or restr ictions.
In Eur opean la w, the balance between the pr otection of the general interest an d the need to
guara ntee, within reasona ble limits, respect for the right to pr ivacy was maintained.
Although Romania signed the Universal Declara tion of Human Rights in 1948, the constitutional
right to privacy did not find a distinct regula tion either in the 1848 constitution or in 1952 or in 1965.
At present, th e Romanian Constitution protects and regulates the right to private life and the
authorities ha ve the obligation to respect it.
Keywords: the constitutional cour t of Romania, the right to pr ivate life, the right to family life,
unconstitutionality.
1. The proper regulation
1.1. The Right to Private Life in the
Romanian Constitution
Article 26 of the Romanian
Constitution
Intimate, family and private life
1. Public authorities r espect and protect
their intimate, family and private life.
2. The individual has the right to dispose
of himself if he does not violate the
rights and freedoms of others, public
order or good morals.
Although Article 26 of the
Constitution of Romania recognizes the
right to private life with all its valences
(intimate, family), it does not define the
notions, for the simple reason that a
fundamental law does not have the role of
limiting the situations that the practice could
generate, leaving the lawyer, the courts, the
doctrine, the freedom to interpret and create
the right.
1 Article 75 Civil Code Limits: (1) Do not violate the rights set out in this section, which are permitted by law or
international human rights conventions and pacts to which Romania is a party. (2) The exercise of constitutional
rights and freedoms in good faith and in compliance with the international covenants and conventions to which
Romania is a party shall not constitute a violation of the rights provided for in this section.
1.2. The right to privacy in t he Civil
Code
The Civil Code, which entered into
force on 1 October 2011, dedicates a whole
chapter (Chapter II) of respect for the human
being and its inherent rights, and in Section
II deals with respect for the privacy and
dignity of the human person.
According to Article 71 of the Civil
Code, every person has the right to respect
for his private life, just as no one can be
subjected to any interference in his or her
private, personal or family life, o r at home,
residence or correspondence without his
consent or without complying with the limits
laid down in Article 75 of the Civil Code1.
Particular importance is attached to
correspondence, manuscripts or other
personal documents, as well as to the
personal information of a person, which can
not be used without its consent or without
observing the limits provided by Article 75
of the Civil Code.
With a wider scope of privacy, Article
58 of the Civil Code speaks about the right

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