Preliminary considerations

The measure of restricting the exercise of certain rights and freedoms provides a legal solution for adapting the general legal regime guaranteeing fundamental rights and freedoms to the ever-changing realities of social, economical and political life.

This exceptional measure is recognized both in internal law and in relevant international documents on fundamental rights and freedoms.

By reference to comparative law, it is found that there is a uniform regulation in this area. Thus, all the normative acts of reference establish strict requirements that must be fulfilled for the restriction to be legitimate:

  • the existence of exceptional circumstances, which would represent a social danger
  • the proportionality between the measure ordered and the state of affairs which led to it
  • respect for the standards of democracy
  • the temporary nature of the limitation of the exercise of thoserights

Seat of the matter in national law

By reference to national law, the restriction of the exercise of certain rights and freedoms is enshrined in the Constitution, Article 53.

This regulation refers to the exercise of fundamental rights within certain limits, when the requirements of a situation solicit it, without affecting the existence of those rights.

Article 53 therefore reconciles the necessity of taking restrictive measures, in order to restore the natural order of things, with the obligation of democratic states to guarantee to their citizens the fundamental rights and freedoms.

Regulations in international law

In addition to the regulation given by Romanian law to the institution of restricting the exercise of fundamental rights, there are international documents that contain similar stipulations. Among these, we mention:

  • Article 4 of the International Covenant on Civil and Political Rights
  • Articles 15 and 18 of the European Convention for the Protection of Human Rights and Fundamental Freedoms
  • Article 52 of the Charter of Fundamental Rights of the European Union

These normative acts give legal expression to the conditions that must be met cumulatively in order to dispose such a measure, as well as its limitations.

Situations justifying this measure

The situations in which such a derogation is possible are those periods of public necessity, which threaten the life of the nation and whose existence is officially proclaimed.

The European Convention also lays down an additional obligation for Member States to inform the Council of Europe of the actual content of the restriction, its justification and the date from which it ceases to apply. It follows from the interpretation of Article 15 that such measures are necessarily temporary.

In the same spirit, Article 52 of the Charter requires the principle of proportionality to be respected, so that the extent of the restrictions must be directly proportional to that of the danger which imposes them.

The limitations of the restriction

When it comes to this aspect, the international regulatory framework also offers a unitary solution. Article 4 of the Covenant stipulates that States may not derogate from certain expressly listed rights.

These are:

  • the right to life, protection against torture and slavery
  • the principle of legality of criminal offenses and punishments
  • the principle of non-retroactivity of the law in criminal matters
  • freedom of conscience

In addition to this, such derogations are permitted only if they do not contradict the other obligations that states have assumed internationally and do not lead to discrimination. The same provisions are found in Article 15 of the Convention.

Legal application

Analyzing the constant jurisprudence of the Constitutional Court, we can conclude that the restriction provided in Article 53 is incidental only in the field of fundamental rights, and their concrete identification falls within the competence of the constitutional judge.

The distinction between fundamental rights and all other subjective rights is of particular importance. It lies in the possibility for the legislator to change the way certain rights are exercised, even in the absence of the exceptional situations provided for in the constitutional text.

In the case of subjective rights, the Parliament has the power to establish a different legal regime applicable to their exercise by law, even if the requirements imposed by Article 53 are not met. Regarding this matter, the Constitutional Court ruled in several decisions such as Decision no. 214/2005 or Decision no. 289/2005.

The situation is different if we consider fundamental rights, which are only susceptible to the restriction of their exercise. To the extent that these restrictions do not comply with the requirements established by the constituent power, the regulation is unconstitutional, this being the solution given by the Constitutional Court by Decision no. 148/2005.

The application of restricting the exercise of certain rights in the current pandemic context

Following the spread of the COVID-19 virus, many Member States of the European Union have availed themselves of Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, according to the press statement of the European Court of Human Rights from September 2020. This statement found that between March and April 2020, several states have notified the General Secretariat of the Council of Europe regarding their decision to apply the provisions of Article 15.

These states are:

  • Latvia (16 March 2020 – 10 June 2020)
  • Romania (17 March 2020 – 15 May 2020)
  • Armenia (19 March 2020 – 16 September 2020)
  • Republic of Moldova (19 March 2020 – 20 May 2020)
  • Estonia (20 March 2020 – 18 May 2020)
  • Georgia (March 23, 2020)
  • Albania (31 March 2020 – 25 June 2020)
  • Macedonia (1 April 2020 – 30 June 2020)
  • Serbia (6 April 2020)
  • San Marino (10 April 2020 – 24 June 2020)

Ilinca Zamă

Legal Intern at R&R Partners Bucharest

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