Constitutional Democracy - Between Totalitarianism and the Rule of Law. With Special Reference to the Right to Property

Published in the Constitutional jurisdiction 20 years after the fall of the Communist Curtain, Universul Juridic, Bucharest, 2014, Romania.

29 Pages Posted: 24 Nov 2014

See all articles by Ioniţa Cochinţu

Ioniţa Cochinţu

Constitutional Court of Romania

Petre Lăzăroiu

Constitutional Court of Romania

Date Written: October 28, 2014

Abstract

We note from the beginning that, in Romania, after the revolution of 1989, there was a profound process of democratization and constitutionalization of norms meant to ensure the premises of a democratic and social State, based on the rule of law, where human dignity, rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values, in the spirit of the Romanian people's democratic traditions and of the ideals of the Revolution of December 1989, and that they are guaranteed as they are enshrined in the provisions of the current Basic Law of Romania.

Thus, during this process of democratization and constitutionalization, in addition to adopting the 1991 Constitution of Romania and to the revision thereof in 2003, whereby it was first protected then also guaranteed the right to property, also a series of normative acts have been adopted with regard to restitution of properties abusively taken by the communist state authorities and a number of reparation enactments.

However, constitutional democracy in a state governed by the rule of law is not an abstraction but a reality of a system under which the supremacy of the Constitution limits the sovereignty of the legislator and where, according to the Basic Law, the Constitutional Court is the guarantor for the supremacy of the Constitution In this context, the Constitutional Court has been called, by virtue of its constitutional powers, to rule both on proposals for revision of the Constitution concerning the right to property and on the compatibility of norms adopted in the matter of the right to property with the Basic Law.

Further, we shall address the constitutional dynamics of the right to property and the limits of this right, as enshrined in the Constitution of Romania, as well as certain aspects established in the case-law of the Constitutional Court of Romania concerning the legislation regulating over time the right to property, i.e. the norms that established the nationalization, the pre-constitutional norms, as well as those adopted under the current Constitution.

Keywords: constitutional democracy, right to property, nationalization, limits of this right, process of democratization and constitutionalization.

JEL Classification: K1, K11, K30, A10

Suggested Citation

Cochinţu, Ioniţa and Lăzăroiu, Petre, Constitutional Democracy - Between Totalitarianism and the Rule of Law. With Special Reference to the Right to Property (October 28, 2014). Published in the Constitutional jurisdiction 20 years after the fall of the Communist Curtain, Universul Juridic, Bucharest, 2014, Romania.. Available at SSRN: https://ssrn.com/abstract=2515717

Ioniţa Cochinţu (Contact Author)

Constitutional Court of Romania ( email )

Palatul Parlamentului, Intrarea B1, Calea 13
Septembrie nr. 2
Bucharest, sector 5
Romania

Petre Lăzăroiu

Constitutional Court of Romania ( email )

Palatul Parlamentului, Intrarea B1, Calea 13
Septembrie nr. 2
Bucharest, sector 5
Romania

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