R EVISTA DE Ş TIINȚE P OLITICE .

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U N I V E R S I T Y O F C R A I O V A

F A C U L T Y O F L A W A N D S O C I A L S C I E N C E S

P O L I T I C A L S C I E N C E S S P E C I A L I Z A T I O N &

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R ^{EVISTA DE} Ş ^TIINȚE P ^OLITICE .

R ^{EVUE DES} S ^CIENCES P ^OLITIQUES

N O . 41 • 2014

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Revista de Ştiinţe Politice.

Revue des Sciences Politiques

No. 41 • 2014

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M I H A I C I MP O I

P r e s i d e nt of t h e Aca d e m y o f t h e R e p u b l i c of M ol d a vi a , M ol d ova M I C H A E L R A D U

S e n i o r F el l o w, F or e i gn P ol i c y R e s e a r ch In s t i t u t e , C o - C h a i rm a n, F P R I’ s C e n t e r on T e r r or i s m , C ou n t e r -T e r r or i s m a n d H om e l a n d S e cu r i t y, P h i l a d e l ph i a, U S A Y O H A N A N M A N O R

P r o f e s s or , U n i ve r s i t y o f J e r u s al e m , Is r a e l , P r e si d e n t , C e nt e r for M on i t or i n g t h e Im p a ct o f P e a ce ( C M IP )

J O Z E P I R J E V E C

P r o f e s s or , U n i ve r s i t y o f T r i e s t e , It a l y P A T R I C I A G O N Z A L E Z - A L D E A P r o f e s s or , Universidad Carlos III de Madrid, M a d ri d , S p a i n

O L I V E R F R IG G I E R I

P r o f e s s or, U n i ve r s i t y o f M a l t a , M al t a C R I S T I N A B E J A N ,

Wa d h a m C ol l e ge , O x for d , G r e a t B ri t ai n S L A V C O A L M Ă J A N

Professor, University of Novi Sad, Serbia N I C U C I O B A N U

P r e s i d e nt , „ Li b e r t at e a ” P u b l i s hi n g H ou s e , N o vi S a d , S er b i a

S A N D O R R I C H T E R

S e n i o r E c o nom i s t , Vienna Institute for International Economic Studies (WIIW), Austria

J U N E T E U F E L D R E Y E R

P r o f e s s or , D e p a rt m e n t of P ol i t i ca l S ci e n ce , U n i ve r s i t y o f M i a m i , U S A H A S A N J A S H A R I

P r o f e s s or, S ou t h E a s t E u r op e a n U n i ve r s i t y, T e t ov o, M a ce d on i a J O N U Z A B D U L L A I

P r o f e s s or, S ou t h E a s t E u r op e a n U n i ve r s i t y, T e t ov o, M a ce d on i a S on j a B U N Č I Č

P r o f e s s or, U n i ve r si t y U n i on , F a cu l t y o f La w , B e l gr a d e , S er b i a

H A R U N A R I K A N

P r o f e s s or, C u k u r ova U n i ve r s i t y, Ad a n a , T u r k e y

A L I P A J A Z I T I

P r o f e s s or, S ou t h E a s t E u r op e a n U n i ve r s i t y, T e t ov o, M a ce d on i a K L A U S M Ü L L E R,

P r o f e s s or, AG H U n i ve r s i t y o f S ci e n ce

& T e ch n ol o g y, K r a k ó w , P ol a n d S T E V E N D . R O P E R

P r o f e s s or, U n i ve r s i t y o f Il l i n oi s , U S A L I L L I A N B A R R I A

P r o f e s s or, U n i ve r s i t y o f Il l i n oi s , U S A F r a n ce s c o G U I D A

P r o f e s s or, U n i ve r s i t á d e gl i S t u di R om a T r e , R om e , It a l y

CONTACT: REVISTA DE STIINTE POLITICE. REVUE DES SCIENCES POLITIQUES University of Craiova, 13^th A. I. Cuza Street, Craiova, 200585, Dolj, Romania.

Phone /Fax: +40251418515, Email: [email protected], [email protected].

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(Online) - ISSN 2344 – 4452 ISSN–L 1584 – 224X

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No. 41 • 2014

Revista de Ştiinţe Politice.

Revue des Sciences Politiques

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RRSSPP • • NNoo.. 4411 •• 22001144

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Revista de Ştiinţe Politice. Revue des Sciences Politiques RS R SP P • No. 41 • 2014

Special Issue: East & West Post-Communist Encounters: Ideologies, Policies, Institutions Under Scrutiny

C C O O N N T T E E N N T T S S

EDEDITITOORRSS’’ NNOOTTEE

Anca Parmena OLIMID, Cătălina Maria GEORGESCU, Cosmin Lucian GHERGHE,

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……….

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ORORIIGGIINNAALL PPAAPPEERRSS Dan Claudiu DĂNIŞOR,

Justification of necessity to limit the exercise of rights and liberties in a liberal society

13 Irina GVELESIANI,

Recent Developments of the Georgian and Lithuanian “Trust-like” Mechanisms (Terminological Peculiarities)

24 Ruxandra RĂDUCANU,

Right to Life and Its Guarantees through the Norms of the New Romanian Criminal Code (2014)

34 Kamila KRAJEWSKA,

Relation on the Line Government-Media (Based on the Situation in Poland after 1945)

43 Anca Parmena OLIMID,

The “Import” of the Rule of Law as a Democratic Tradition in Post-communist Constitutional Usage: Charting a Multi-Level Theoretical Matrix

53 Petr JUST,

Split of Czechoslovakia as One of the Outcomes and Results of the Transition to Democracy?

65 Ruxandra DIACONU,

The Conflict between Ideology and Academia in David Lodge's Campus Novels 75 Octavian GRUIONIU,

On Ethics, Economy and Capitalism. An Aristotelian Approach 84 Adrian BOGDAN,

Aspects concerning the phenomenon of discrimination from the perspective of the equal rights principle in contemporary international law

94

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RSRSPP •• NNoo.. 4411 •• 22001144

E. PONOMAREVA, P. ANANENKOVA, M. LEVASHOVA, M. KUZNETSOV, Gender Inequality in the Social and Labor Sphere: Experience of Sociological Research of the Federation of Independent Trade Unions of Russia

103 Jan BUREŠ,

Political Change in Czechoslovakia: The Fall of the Nondemocratic Regime in 1989 in the perspective of theory of Transition

115 Stamatis POULAKIDAKOS, Antonis ARMENAKIS,

Propaganda in Greek public discourse. Propaganda scales in the presentation of the Greek MoU- bailout agreement of 2010

126 Jakub CHARVÁT,

The Czech Party System Change since 2010: From Fragile Stability to Stable fragility

141 Florentin-Remus MOGONEA, Florentina MOGONEA,

Postmodernism and the Culture of Values. Brief Radiography Regarding the Axiological Education of Teenagers

155 Ileana NICULA,

The competence – a new paradigm in training and educational sectors 169 Cristina ILIE GOGA,

The European context for applying judicial mediation procedure. Case Study:

Romania

181 Adriana-Florina BĂLĂŞOIU,

Brief considerations on the impact of the European Convention on Human Rights on the Romanian civil trial

195 Ecaterina Sarah FRĂSINEANU,

The quality of Romanian education after 1989: theoretical and applied approach in official reports on the secondary education

204 Marina Loredana BELU, Roxana Cristina RADU, Marius Cristian NEAMŢU, Oana Maria NEAMŢU

The Protection Ability of the Main Social Assistance Benefits within the Romanian Social Security System since 1989

214 Karina Paulina MARCZUK,

“The Danube Strategy” project: a new dimension of the EU’s policy 224 Gabriela ILIE,

Applying Wallerstein’s Theory to Explain the Change of the Global Power and Economic Poles during Financial Crisis

232 Alina-Maria VĂDUVA,

Global Banking-the New Rules of the Game 241

Cătălina Maria GEORGESCU,

Interpreting Continuity and Change in Post-Communist Policy-Making: Applying the New Historical Institutionalist Approach to the Study of Public Organizations

250

Cosmin Lucian GHERGHE,

Building Liberal Theory in the Age of Modern Constitutionalism: Judicial Interpretations and Political Thinking in Emanoil Chinezu’s Studies

262

RSP Manuscript Submission 271

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RRSSPP •• NoNo.. 4141 • • 22001144

CEPOS

Editors’ Note

Joint Note of the Editors of the Revista de Ştiinţe Politice. Revue des Sciences Politiques, CEPOS STAFF (Center of Post-Communist Political Studies Staff) &

CEPOS CONFERENCE 2014 Board of Directors

Anca Parmena Olimid^*, Cătălina Maria Georgescu**,

Cosmin Lucian Gherghe***

CEPOS Conference 2014 under Scrutiny

On the morning of April 4, 2014 participants in the Fourth International Conference After Communism. East and West under Scrutiny gathered in Craiova, where the authorities of the University of Craiova and Faculty of Law and Social Sciences and the three co-coordinators of the conference Associate Professor Anca Parmena Olimid, Ph.D., Lecturer Cătălina Maria Georgescu, Ph.D., Lecturer Cosmin Gherghe, Ph.D.

(Political Sciences Specialization, University of Craiova, Editors at the Revista de Științe Politice. Revue des Sciences Politiques) welcomed all participants and media guests at the House of the University for the presentation of the keynote addresses of the conference and welcoming message of the Rector of the University, Professor Dan Claudiu Dănişor, Ph.D.

The official language of the conference was English (a few papers were presented in Romanian due to the specific of their research). In the plenary and common sessions of the first and second day the audience warmly welcomed the news structure of the CEPOS Conference 2014 ten Panels , workshops and working papers series such as:

Political theory , ideology and social actions in transitions; Comparative policies and regional development;Transitions and justice reform; Integration, identity, mobility and

* Associate Professor, PhD, University of Craiova, Faculty of Law and Social Sciences, Political Sciences specialization, CEPOS Staff, Member of the Board of Directors of the CEPOS Conference 2014; Phone: 0040251418515, E-mail: [email protected]

** Lecturer, PhD, University of Craiova, Faculty of Law and Social Sciences, Political Sciences specialization, CEPOS Staff, Member of the Board of Directors of the CEPOS Conference 2014Phone: 0040251418515, E-mail: [email protected].

*** Lecturer, PhD, University of Craiova, Faculty of Law and Social Sciences, Political Sciences specialization, CEPOS Staff, Member of the Board of Directors of the CEPOS Conference 2014Phone: 0040251418515, E-mail: [email protected].

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Anca Parmena Olimid, Cătălina Maria Georgescu, Cosmin Lucian Gherghe

human rights in European legal systems; Regional economics, public administration and social movements; Religion, cultural history and education in aglobal perspective;

Revolution and political theory; Security and diplomacy in National and Euro-atlantic environment; Media, communication and politics; Public policies in trnasition (evaluation and fundamentals) , additional two workshops: Workshop 1: Ukraine-a New East & a New West and Workshop 2: Globalisation & East-West Challenges and CEPOS Student Working Papers Series 2014.

In brief, the conference gathered 18 countries participating: Romania, New Zealand, Czech Republic, Greece, Macedonia, Poland, Turkey, Armenia, Georgia, Spain, Moldova, Albania, Estonia, Azerbaijan, Serbia, Iraq, Japan, and Pakistan.

The conference also gathered the studies and research materials of more than 165 participants (senior researchers, academics, professionals) and the 4 young researchers panels and workshops organized within the THIRD INTERNATIONAL STUDENTS’

SCIENTIFIC SYMPOSIUM AFTER COMMUNISM. EAST AND WEST UNDER SCRUTINY. They all reflected the current situation of the post-communist research focused on the following approaches: values and academia, social, legal and political controversies in communism and post-communism, reform of the political institutions, politics and politicians, integration, identity and mobility in Europe, history and political transition, political theory and action, regional economics, security and diplomacy, public policies etc.

At the end of the second day of the conference, four special international panels and workshops (see the titles above) gathered selected students’ papers from the University of Craiova, Faculty of Law and Social Sciences, especially from the Political Sciences specialization. All students’ papers pointed the changes occurred in the East and West thinking and action as a direct effect of the 25 years of transition.

CEPOS Conferences 2012-2014 under Scrutiny

All panels of the CEPOS Conferences Series 2012-2014 directly contacted those involved on both sides of the “post-communist bridge” as an encounter in time and space between History and Present/ East and West/ Old and New and as an inventorying of values, traditions, ideas, ideals models, and methods of researching the post-communist transition.

The conference panels organized during the last three editions of the CEPOS CONFERNCE involved a complex thematic of the post-communist transition considering public policies and regional development, political thinking and social representations, political action: citizens and elites, politics and public administration, cultural education and history, reforms and new policies in justice, political theories, doctrines and ideologies after communism, political parties and electoral participation, etc. (see Chart 1. CEPOS Dynamics Number of participants-Applications received- Students Participating in the Student Organizing Committee 2012-2014; Chart 2. CEPOS Dynamics of the Conference Workshops organized 2012-2014)

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Editors’ Note

11

Chart 1. CEPOS Dynamics Number of participants-Applications received-Students Participating in the Student Organizing Committee 2012-2014

Chart 2. CEPOS Dynamics of the Conference Workshops organized 2012-2014

By all accounts and reviews, the Fourth International Conference After Communism. East and West under Scrutiny, Craiova, 4-5 April 2014 was very well received by the national media and successfully indexed in more than 9 international databases, catalogues and NGO’s databases such as: American Political Science Association, USA, http://www.apsanet.org/conferences.cfm; Journal of Church and State, Oxford, http://jcs.oxfordjournals.org/content/early/2014/01/23/jcs.cst141.full.pdf+html;

NATO Council of Canada (section events/ international conferences), Canada, http://atlantic-council.ca/events/international-conferences/; International Society of

Political Psychology, Columbus, USA,

CEPOS CONFERENCE 2012

1

2

Organized workshops 4

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Anca Parmena Olimid, Cătălina Maria Georgescu, Cosmin Lucian Gherghe

http://www.ispp.org/uploads/attachments/April_2014.pdf; Academic Biographical Sketch, http://academicprofile.org/SeminarConference.aspx; Conference alerts, http://www.conferencealerts.com/show-event?id=121380; Gesis Sowiport, Koln, Germany, http://sowiport.gesis.org/; Osteuropa-Netzwerk, Universität

Kassel, Germany, http://its-vm508.its.uni-

kassel.de/mediawiki/index.php/After_communism_:_East_and_West_under_scrutiny _:_Fourth_International_Conference; Ilustre Colegio Nacional de Doctores y Licenciados en Ciencias Políticas y Sociología, futuro Consejo Nacional de Colegios Profesionales, Madrid, http://colpolsocmadrid.org/agenda/.

It was furthermore announced that the Fourth International Conference After Communism. East and West under Scrutiny would take place on 24-25 April 2014 at the University of Craiova. In short, the Fourth International Conference After Communism.

East and West under Scrutiny created a descriptive and analytical sketch of what is usually referred to as post-communist period. The Organizing Committee presents its most sincere and warm thanks to all the members of the Scientific Committee: Professor Dan Claudiu Dănișor, Ph.D. (University of Craiova), Associate Professor Parmena Olimid, Ph. D. (University of Craiova), Lecturer Cătălina Georgescu, Ph. D.

(University of Craiova), Lecturer Cosmin Gherghe, Ph. D. (University of Craiova), Professor Patricia Gonzalez-Aldea, Ph.D. , (Universidad Carlos III, Madrid, Spain), Professor Hasan Jashari, Ph.D. (South East European University, Skopje, FYROM), Professor Jonuz Abdullai, Ph.D. (South East European University, Skopje, FYROM), Professor Sonja Bunčič, Ph.D. (University Union, Faculty of Law, Belgrade, Serbia), Professor Harun Arikan, Ph.D. (Cukurova University, Adana, Turkey), Professor Ali Pajaziti, Ph.D. (South East European University, Skopje, FYROM), Associate Professor George Girleșteanu, Ph.D. (University of Craiova), Associate Professor Sebastian Rădulețu, Ph.D. (University of Craiova), Associate Professor Elena Oancea, Ph. D. (University of Craiova), Professor Iordan Gheorghe Bărbulescu, Ph.

D. (National School of Political and Administrative Studies, Bucharest, Romania), Professor Ioan Horga, Ph. D. (University of Oradea, Romania), Professor Nicu Gavriluţ, Ph. D. (Univesity A. I. Cuza, Iaşi, Romania), Associate Professor Adrian Basarabă, Ph. D. (West University of Timişoara, Romania).

As we ussually conclude Editors’ notes, we would like to give our sincere thanks to our outstanding international conference participants. Once again thank you all for your involvement and participation and see you in 2015!

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RRSSPP •• NoNo.. 4141 • • 22001144

O O

RIRIGGIINNAALL

P P

AAPPEERR

Justification of necessity to limit the exercise of rights and liberties in a liberal society

Dan Claudiu Dănişor

^*

Abstract

The exercise of rights and liberties may be limited for the reasons enumerated in art.

53(1)C. But their application may not be done in a limitless manner. There has to be a procedural framework which shall limit the modality in which the state may claim these reasons. This procedural framework has to be able to achieve the fundamental purpose of the constitutional provision: protection of individual liberty against possible abuse of the state. The purpose of art. 53C coincides with the general purpose typical to any liberal society: the priority of liberty over authority. Thus, it would be natural for the principle of liberalism to create the procedural framework of limits regarding claiming the reasons of general interest or of perfectionist values in order to justify the limitation of exercise of rights and liberties. This framework may be called in brief „the necessity of limitation in a liberal society”. Before judging the necessity of limitation in a democratic society, we have to judge its necessity in a liberal society. This is the structural logic of art. 53C, because the constitutional provision does not have as goal the authorization of limitation of exercise of rights and liberties, but the maximization of protection of the person through strict legal framework of the state’s action, which means that the enumeration of the reasons which may represent the basis of limitations has to be interpreted as a restrictive framework, as producing the maximum constraint for the state authorities. Thus, art. 53(1)C has to be interpreted in the sense of creating a procedural framework for the limitation of the state, even if it appears to authorize its action. I will endeavour to demonstrate the modality in which the liberal understanding of the reasons for the limitation may create this framework. Synthetically, this framework supposes that the managing ideas of liberalism – priority of liberty, priority of just over good, priority of self determination of the individual and state neutrality – are transposed in a system of procedural limits of the possibility to claim which justifies the limitation of liberty.

Keywords: limitation of the exercise of liberties; limitations of claiming the general interest; necessity of limitation; liberalism; proportionality.

* Professor, PhD, University of Craiova, Faculty of Law and Social Sciences, Law Department, Phone: , Email: [email protected].

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Dan Claudiu Dănișor

A. Priority of liberty in the course of the procedure of limitation of its exercise In a liberal state, „a basic liberty cannot be limited or refused, except for the protection of one or several basic liberties and never […] in the name of public good or of perfectionist values” (Rawls, 2007: 351), which is equal to saying that none of the causes enumerated by art. 53C and which represents such interests or values can be claimed itself and for itself, but only for the defence of the rights and liberties of others.

As the French Declaration from 1789, „the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights”.

Among the causes derived from the general interest or perfectionist values, art. 53C also contains as possible reasons of limitation of the exercise of rights and liberties several reasons which represent prevention ones. It is obvious that the prevention of consequences of a natural calamity, disaster, or of a sinister and very serious event does not have the same nature with the defence of natural security or of public moral. The priority of liberty in the liberal society supposes that the general system for the exercise of rights and liberties is the most repressive one. The preventive system represents an exception, his sphere of applicability being of strict interpretation. The rule is, thus, the free exercise of the rights and liberties, the state intervening only if this exercise affects others. The preventive system, which supposes the authorization or prior declaration of the exercise of liberty is compatible with the liberal society only if it does not question the rule of priority of liberty.

Finally, art. 53C stipulates that the limitation of the exercise of some rights or liberties may be done for the performance of criminal instruction. The exercise of liberty may be limited in order to ensure the efficiency of functioning of the repressive system. The priority of liberty in a liberal society supposes that the insurance of functioning of the system cannot be claimed per se in order to limit the exercise of liberty. Some procedural limits must be imposed to the state when it claims its own functionality against liberty.

In order to see which are the limits imposed to the state when it claims the reasons enumerated by art. 53C, we have to clearly distinguish which is the sphere of priority of liberty, with what purpose it is imposed and in which manner its observance has to be proved in a liberal society.

a. Procedural limits resulted from the value priority of liberty

Liberty is firstly, a priority from a value point of view. This means that the general interest, the perfectionist values, the repressive system or the preventive systems shall maintain the instrumental character. They are never, in a liberal society, purposes, only means. The state shall prove the maintenance of the instrumental character of the general interest. Also, the reasoning of the Constitutional Court according to which

„through an imperative norm the legislator may grant priority to general interest”

(Decision no. 325/2005) cannot be valid per se, because the defence of general interest becomes, according to this reasoning, a purpose per se. It is simply opposed to the particular interest, being decided a priori in its favour.

From the value priority of liberty in liberal societies is derived a first procedural limit which frames the possibility to claim the cases of limitation of exercise of rights or liberties: the one who claims the reasons for limitation shall be able to prove that, through their defence, he defends the rights or liberties of the persons. The burden of

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Justification of necessity to limit the exercise of rights and liberties in a liberal society

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proof regarding the necessity of limitation in a liberal society always belongs to the state.

The state shall make proof of the concrete character of the protection of rights and liberties of persons. This means that the first test of necessity to limit the exercise of rights or liberties in a liberal society is the one of derivability of protection of persons from the protection of general interest or the perfectionist value. This protection has to be derivable in a concrete and direct manner. The limitation act shall, thus, contain in an obligatory manner, the determination of modality through which claiming the protection of a general interest case or of a perfectionist value leads to the defence of the rights or liberties of persons.

The protection granted to persons shall be concrete. The rights or liberties which the legislator defends by the limitation of the exercises of other rights should be express and certainly determined. Thus, the Constitutional Court stated, in reference to the limitation of the right of free movement through the establishment of a tax for crossing the border, that „it supposes that the legislator shall establish for which specific rights the tax was established. The determination of such rights cannot, however, be a generic one (…) but a concrete one” (Decision no. 139/1994, published in the Official Journal no. 353 from 21st of December 1994. The numbering is the one done following the rectification published in the Official Journal no. 4 from the 12th of January 1995; please see Constitutional Court, Decisions for establishment of non-constitutionality 1992 – 1998, C. H. Beck, Bucharest, 2007, p. 58). This condition is breached any time the state expressly points out the protected right or liberty. For example, when, claiming national security, the legislator limits the exercise of salary rights of state employees, without determining as effect the protection of certain rights, but only the balance of state budget, which would lead to the defence of economic security, part of the national security (Decision no. 872/2010, published in the Official Journal no. 433 from the 28th of June 2010). The state defends itself, under the pretext that it defends us all.

Such protection is real, but it is not compatible with a liberal society, due to the fact that, in such a society, the protection resulted for some persons from the limitation of rights of others in the name of causes mentioned by art. 53C has to be direct. Of course that, if you defend a general interest, you finally defend some persons. But this protection is not a direct one. Which is imposed by art. 53C is the direct derivability of the protection of a person from the protection of general interest or perfectionist value.

Thus, when we protect that public moral through the limitation of the right to freedom of expression, incriminating the distribution of obscene materials, we protect a number of persons. But the problem is that this protection is mediated. Or, the modality to claim perfectionist value with the purpose to defend the rights and liberties of others shall create protection to certain persons in an unmediated way. In the criminal Romanian reasoning, in which the crime defends public moral per se, through the criminal conviction of the author which distributes obscene materials the persons protected are not individualized in any way. The goal seems rather to solve the moral issues of the community. The criminal conviction of the author does not solve anything nor regarding the moral quality of the supposed work of art, neither regarding the moral health of the community, which might be the object of the criminal norm. In fact, the means is not a priori capable to achieve the goal. The reason is simple: the purpose is incorrectly determined. It represents a perfectionist value per se and not for another.

Secondly, the state shall have to prove that the modality to defend the general interest is a priori capable to lead to the achievement of the defense of rights or liberties

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of persons. Any legitimate doubt on the result is favourable to the person, the limitation measure becoming non-constitutional. For example, the reasoning of constitutionality of limitation of salary rights mentioned before is the following: „The Court states that, in the recitals of the law criticized it is showed that, according to the European Commission’s assessment, «Romania’s economic activity remains weak» [...] and that

«in the conditions of current economic conditions, the fiscal deficit target for 2010 (…) shall not be accomplished, due to deteriorations of economic conditions, of difficulties in the collection of revenues and slidings regarding expenses». As such, the Court finds that this threat to the economic stability continues to be maintained, thus the Government has the right to adopt adequate measures in order to combat it. One of these measures is to reduce budgetary expenses, measure materialized, among others, in the diminuation of the quantum of salaries/incomes/payments with 25%" (Decision no.

872/2010, published in the Official Journal no. 433 from the 28th of June 2010) (s.n.).

The issue is that there is a legitimate doubt that the measure prepared by the state shall priori lead to getting out of the crisis, and the other obvious measures, such as better collection of the revenues to the budget or more efficient spending of public money, are not represented as alternatives or complement to the measure envisaged. The measure is unconstitutional because the state does not prove in any manner that the measure proposed is a suitable one before any experiment, due to the fact that the experiences with liberty are not allowed in a liberal society, in order to lead to the desired result.

b. Limits resuted from the procedural priority of liberty

Secondly, liberty has priority from a procedural point of view. This means that the procedure of defense of liberty is always, in a liberal society, prioritary in relation to the procedures of defence of general interest. This procedural priority is more obvious in case of limitation of the exercise of several rights or liberties in order to prevent, that is for the second category of reasons mentioned by art.53(1)C.

The procedural priority of liberty supposes that any imposition of prior authorization or of prior statement of the exercise of liberty shall have to be considered per se a limitation of its exercise. These prior authorizations or statements cannot be judged only as insurance measures of the framework of exercise of rights and liberties, but always as limitations of these. Thus, the procedures of limitation of the exercise of liberty would become priority in relation to its protection procedures.

For example, prior authorization of driving a vehicle on public roads is requested in order to ensure protection of others. It ensures the framework for the exercise of the freedom of movement. But this authorization or its withdrawal also represents a limitation to the freedom of movement. If it is not regarded as limitation of liberty, prior authorization or its withdrawal becomes a priority in relation to the liberty it claims to protect. It is what the Constitutional Court does when it finds that „the right to free movement, as regulated by the Romanian Constitution (…) does not include the right to drive vehicles, respectively to hold a driving license to that end, the constitutional provisions not mentioning the transportation means through which the freedom of movement is achieved” (Decision no. 480 of the 2nd of April 2009, published in the Official Journal no. 289 from the 4th of May 2009).

The establishment of a preventive system for the limitation a priori of the exercise of rights and liberties shall, in order for the liberty to remain a priority from a procedural point of view, refer only to the situations mentioned by art. 53, and not to others. The state may thus establish general prevention systems for the limitation of

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exercise of the rights or liberties only in order to prevent consequences of a natural disaster or of a sinister event, very serious. The establishment of a preventive limitation in the other cases must be stricter, the establishment of general preventive systems not being possible. Thus, it is forbidden that the state stablishes general prevention systems for the exercise of rights and liberties for the defense of national security, order, health or public moral.

In order for the liberty to remain a priority from a procedural point of view, the possibility of the state to limit the exercise of rights or liberties in order to prevent shall not transform the preventive regime for the exercise of rights from an exception into a rule. If the result may be obtained through the repressive system for the exercise of rights, then the preventive measures are not necessary in a liberal society. Only in this manner, the procedure for the exercise of liberty remains a priority in comparison to the procedure for their limitation.

The procedural priority is also transposed in the priority of procedures for the protection of person in relation to the repression procedures. Thus, the reason of the efficiency of performance of criminal instruction, that is of a repressive procedure, cannot be claimed if the modality of this claim voids of efficiency, a priori, the procedures for the protection of the person, such as the right to defence or free access to justice.

c. Limits resulted from the temporal priority of liberty

In the third place, liberty is, in a liberal society, prioritary in time. Irrespective of the evolution of circumstances, liberty has to be imposed. This means that the state must be imposed the neccesity to limit in time the consequences in relation to liberty due to the defense of general interest, perfectionist values, functioning of the repressive system or establishment of preventive systems. The Constitutional Court finds that „it is obvious that the limitation of exercise of a right must last as long as the threat for which the measure is taken is maintained” (Decision no. 872/2010).

The limitation in time of the constraint must be predictable, that is the subjects must be able to clearly estimate which is the limit in time for the limitation of exercise of their rights or freedoms. The state must, thus, indicate at least the means for determining the duration of limitation of the exercise of right or freedom. The absence of reasonable clues necessary in order to estimate the duration of the limitation measure makes the emasure unnecessary in a liberal society, because it makes permanent the limit of liberty, instead of making permanent liberty itself.

d. Limits resulted from the spatial priority of liberty

On the other hand, the priority of liberty is spatial. Liberty must impose not only in relation to anyone, but everywhere. The space of liberty is unlimitd per se. The consequence is that the state has the obligation to clearly determine the space of limitation of the exercise of right or liberty in the name of defending general interest etc. This condition is more obvious in the case of establishment of limitations of the exercise of liberty in order to prevent the consequences of a disaster, calamity or of a very serious sinister event in all cases, even if spatiality is understood differently, as sphere of abstract manifestation.

In the case of preventive systems, spatial priority of liberty imposes that the limitation of the exercise of rights or liberties shall be limited to the space affected by the calamity, disaster or sinister event. In all cases, this aspect of priority of liberty

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supposes that the limitation operates only regarding those rights or liberties whose free exercise might a priori endanger others or even the one who exercises them. The state has the obligation to ensure a coherent system for the prevention of consequences, which means that any measure for the limitation must be integrated into the system. We must, thus, approve the connection between any limitation of the exercise of liberty and the prevention of consequences of the exceptional situation mentioned by art. 53C.

In which regards the space priority of liberty in relation to the other cases of limitation of the exercise of rights or liberties mentioned by art. 53C, this refers to the sphere of abstract manifestation of those rights or liberties. The manifestation space of individual liberty in unlimited. Any limitation of such space must be clearly defined.

Thus, it is necessary for the state to clearly identify which is the aspect of liberty which is limited. Any doubt regarding this is in favour of the person. The reverse of this rule is the prohibition of extensive interpretation of the repressive rules.

The limitations of the exercise of liberty cannot be vague. Even if, as Ion Deleanu said, „one of the unavoidable, but solvable paradoxes of law” is the swinging between

„the imperative or rigor in the normative use of concepts and notions, their precise determination, so that the predictibility of norms may be ensured” and the

„indetermination, freedom, flexibility of norms, so that these may be transposed in any legal situation” (Deleanu, 2013: 73), in the case of limitations of the exercise of freedom, the imperative of rigor is imposed with a special intensity: „intension” of limitative norms always has priority over their „extension” (on the inevitable tension between the „intension” and „extension” of legal concepts, please consult Deleanu, 2013: 73).

e. Limits resulted from the fact that liberty is inherent to the human being

Finally, the priority of liberty supposes that, in principle, liberty is inherent to all persons. Any limitation of the exercise of rights or liberties must, thus, clearly determine which are the persons targeted by the limitation. In other words, we must always be able to determine the modality to limit the consequences of limitation to the persons expressly targeted. Only in this way we can avoid state paternalism, which we analyzed on other occasion (D. C. Dănișor, 2014: 64-67). Thus, it is necessary that a limitation measure of the exercise of liberty should not create restrictive consequences for those situated outside the direct field of application of the norm. The norm’s predictability (please consult Deleanu, 2011: 52-82) refers not only to the clarity of the norm for its recipients, but also to the clarity of positioning it inside or outside its field of application.

The priority of liberty is imposed in liberal societies, not in abstract, but in order to obtain a concrete result. Art. 53C must transpose this liberal objective from a normative point of view. Thus, it must be interpreted in the sense of maximization of protection ensured for some persons through the limitation of exercise of rights or liberties of other persons. On the other hand, the limitation of the possibility of the state to claim protection of general interest against the liberty of persons should be maximised. And, as liberty represents the rule, and the constraint represents the exception, art. 53C shall be interpreted in the sense of maximal limitation of the possibility to claim efficientization of functioning of the repressive system or to establish prevention system for the exercise of rights and liberties.

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B. Priority of just over good during the procedure of limitation of the exercise of liberty

Political liberalism supposes the priority of just over good (Deleanu, 2011: 11-33).

The procedural consequence of this principle in which concerns the necessity to limit the exercise of rights or freedoms in a liberal society is the priority of procedure of selection of the modality of defence of general interest over the substance of one or other of these modalities to satisfy public good.

For example, when the Constitutional Court analyzed claiming the defence of national security by balancing budget in the situation of world economic and financial crisis, it should have analyzed if the state used a correct procedure in order to select among several possibilities of action which might lead to reaching the desired purpose, prior to analyzing the substance of one or another of such measures.

This type of reasoning shall be generalized in case of any claim of general interest in order to justify the limitation of the exercise of liberty. The state must clearly show the correctness of the arbitrage procedure among multiple possibilities, in essence, good, for the protection of national security, of order, health or public moral. The omission of such justification or its inconsistency makes the measure unnecessary in a liberal society.

Thus, in the previous example, the state could have collected better the taxes, improve public expenditure and reduce salaries paid from its budget, as it states. It chose the last method, without showing according to which procedure the choice was made. The Constitutional Court analyzed the constitutionality of the substance of the measure elected by the Government, but did not analyze in advance if the Government used a correct procedure in order to select this measure and not the other possible measures. It is the reason for which the Court’s decision is not grounded. Maybe the governmental measure was the only realistic one, but it is not clear how the Government and the Court reached to this conclusion.

The priority of just over good in a liberal society imposes formal character of concepts used by art. 53C. This means that the national security, order, health and public moral have no determined abstract content. Their content depends on the type of threat to liberty eliminated by their defence. They are „vague concepts”, whose sense

„cannot be determined a priori”, but only „pro subiecta materiae, circumstantially, regarding the case”, „not regarding the general or abstract manner” (Deleanu, 2013:

89).

The notions of national security, order, moral or public health are extrajudicial notions. In order to receive a legal content, they have to be formalized (D. C. Dănișor, 2011: 52-69), which means that they have to be considered as not having a value content per se. They receive such a content only for those who operate in non-legal areas based on the formal selection done in the sphere of law. From a legal point of view, national security, order, health and public moral are not, thus, values.

The Constitutional Court holds them as values. Thus, for the Court, „the social value which represents the object of the crime and, in the same time, the object of legal protection which the legislator desires to analyze through the incrimination and punishment of the distribution of obscene materials is the public moral” (Decision no.

19/2005, www.legalis.ro) (s.n.). The Court, thus, makes the perfectionist value, per se,

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the object of legal protection, without determining which are the persons and rights thus protected.

The perfectionist value or the general interest are not thus available. They do not ensure liberty anymore. „We say that something is available when that respective thing may be used by anyone and anytime, when the respective thing is not a materialized object, it is a non-object per se” (Gh. Dănişor, 2006: 109). The unavailability of general interest or perfectionist values, through their transformation in purposes per se, with a value content, destroys the derivability of the protection of liberty from their protection.

The legal vision on the political or sociological concepts used by art. 53C supposes their transfiguration from concepts which describe a material reality into concepts which describe a form of protection of liberty. Thus, public moral has for a political man a certain consistency: it means something. For a legal counsellor, however, it remains unavailable, that is it may be used by anyone and at any moment in order to be protected, but only if it has a content, if it is a non-object, that is just a form, which, by protecting it, we protect somebody’s freedom. Its content is determined only through the priority of procedure of protection of the person in relation to a concrete moral or another.

If we apply this type of formalization to the issue of relations between public moral and limitation of freedom of expression, then the limitation of liberty is necessary in a liberal society only if the protection of persons has priority in relation to the defence of morality itself, so if the moral remains available to the person, its content not being imposed by the state. The protection of vulnerable persons from a moral point of view, of minors for example, does not have to be done through the imposition of a moral option, but by procedures for the avoidance of premature contact with certain manifestations of freedom of expression which could be morally dangerous for the minor. The procedural reaction thus precedes the substantial reaction, just precedes the good. Instead of imposing to the person expressing himself a moral option, thus limiting his liberty, we impose a procedure of limitation of contact of minors with possible obscene materials resulted from the exercise of the freedom of expression.

The state’s action for the protection of general interest or of perfectionist values has to be regarded from a legal point of view that is not by relation to social purposes, but to the formal selection of the method of action. From a legal point of view, it is not relevant which actions are better from a value point of view, but the modality in which we can choose one of the multiple possibilities without breaching a just formal balance between them. After determining this just balance, we can analyze the value substance of measures which may limit the exercise of rights or liberties.

C. Priority of self-determination of individual during the procedure of limitation of the exercise of liberty

In the liberal societies, the individual is self-determined. The state cannot impose values. This is why the Constitution of Romania makes the free development of human personality one of the supreme values of the Romanian state. When the state claims one of the reasons to limit the exercise of liberty mentioned by art. 53(1)C, it has to observe the priority of self determination of individual. This means that the limitation is not necessary in a liberal society if by it a value option is imposed to the individual.

When the state limits by law the exercise of rights or liberties, it has to affirm the general interest or perfectionist values in such a way not to affect, by the limitation