CONSTITUTIONALITY OF RESTRICTING THE EXERCISE OF CERTAIN RIGHTS AND FREEDOMS IN EXCEPTIONAL SITUATIONS

Marius Andreescu and Andrada Puran

FIAT IUSTITIA, 2021, vol. 15, issue 1, 6-23

Abstract: The Romanian Constitution uses a simple and efficient procedure for regulating the restriction of the exercise of certain rights and freedoms (common circumstances), through the provisions of a single article. The provisions of Art 53 allow the restriction of the exercise of some fundamental rights and freedoms, but only conditionally. The issue of interpretation and application of the provisions of Art 53 presents a special complexity because the restrictions may concern the exercise of any fundamental right or freedom enshrined and guaranteed by the Constitution, except for those considered to be absolute. The complexity is also due to the diversity of concrete situations that justify the restriction of the exercise of certain rights. The rules established by the provisions of art. 53 have the value of a constitutional principle, because they are applicable to all the fundamental rights and freedoms of the citizens. The Constitutional Court and the courts are the main state institutions that have the competence to guarantee the observance of the exercise of fundamental rights and freedoms of citizens, to verify the conformity of normative acts with the Fundamental Law and to the constitutionality of limits, conditions and restrictions of exercise of rights, power of Parliament and the Government when adopting restrictive measures. In exceptional situations, such as the state of emergency or the state of alert established for a long time on the Romanian territory, the rulers have restricted the exercise of some essential fundamental rights, restrictions that seriously affect the private and social life of the people. In this study we analyse, based on the jurisprudence of the Romanian Constitutional Court, some international courts and other courts, the legitimacy and constitutionality of these restrictive measures.

Keywords: fundamental rights and freedoms; exceptional situations; restriction on the exercise of certain rights and freedoms; legitimacy and constitutionality of restrictions (search for similar items in EconPapers)
JEL-codes: K38 (search for similar items in EconPapers)
Date: 2021
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