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Case study onCase study onfreedom of expression vs. right freedom of expression vs. right to equalityto equality

RomaniaRomania

Romanian legislation

Romanian Constitution

ROMANIAN STATEArt. 1 (3) Romania is a democratic and social state, governed by the rule of law, in which

human dignity, the citizens' rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values, in the spirit of the democratic traditions of the Romanian people and the ideals of the Revolution of December 1989, and shall be guaranteed.

FREEDOM OF EXPRESSIONArt. 30(1) Freedom of expression of thoughts, opinions, or beliefs, and freedom of any creation,

by words, in writing, in pictures, by sounds or other means of communication in public are inviolable.

(6) Freedom of expression shall not be prejudicial to the dignity, honour, privacy of a person, and to the right to one's own image.

(7) Any defamation of the country and the nation, any instigation to a war of aggression, to national, racial, class or religious hatred, any incitement to discrimination, territorial separatism, or public violence, as well as any obscene conduct contrary to morality shall be prohibited by law.

Romanian Criminal Law

INSULTArt. 204 (1) Offending the honor or the reputation of a person by using words, gestures or

exposing that person to mockery by any other means, shall be punished by fine.(2) The same punishment shall be applied if a person is attributed a flaw, a disease or an

infirmity, even true, which should not be revealed.(3) The penal action will start by complaint of the affected person. Agreement reached

between parts annuls the punishment.CALUMNYArt. 205(1) Exposing publicly, in any ways, of a deed attributed to a person which, if proven true,

would attract penal, administrative or disciplinary action against that person or would expose them to public contempt shall be punished by fine.

(2) The penal action will start by complaint of the affected person. Agreement reached between parts annuls the punishment.

NATIONALIST CHAUVINISTIC PROPAGANDAArt. 317Any nationalist chauvinistic propaganda or incitement to racial or national hatred which

does not constitute an offence under Article 166 shall be punishable by a term of imprisonment of between 6 months and 5 years.

Government Ordinance no. 137/2000on preventing and punishing all forms of

discrimination

DEFINITIONSArt. 2. (5) Any behaviour that on the ground of race, nationality, ethnicity, language, religion,

social category, beliefs, sex or sexual orientation, belonging to a disfavoured category, age, handicap, refugee or asylum seeker status any other criterion aiming to create a humiliating, hostile, degrading or offending atmosphere constitute harassment and it is sanctioned as contravention.

THE RIGHT TO PERSONAL DIGNITYArt. 15Under the ordinance herein, any public behaviour with a nationalistic-chauvinist

character, any incitement to racial or national hatred, or any behaviour aiming to prejudice a person’s dignity or to create a hostile, degrading, humiliating or offending atmosphere, perpetrated against a person, a group of persons or a community on account of race, nationality, ethnic group, religion, social category or belonging to a disfavoured category, on account of beliefs, sex or sexual orientation shall constitute contravention, unless the deed falls under the incidence of criminal law.

SANCTIONSArt. 26(1) The contraventions provided under articles 2 paragraph (5) and (7), 5-8, 10, 11

paragraphs (1), (3) and (6), 12, 13 paragraph (1), 14 and 15 of the ordinance herein shall be sanctioned with a lei 400 to lei 4000 fine if perpetrated against a natural entity or with a lei 600 to lei 8000 fine if perpetrated against a group of persons or a community.

Interpretationof the National Council to Combat

Discrimination

Steering Board

Formed of 9 members having the rank of secretary of state, appointed in the plenary session by the two Chambers of the Parliament;

Decision by vote, supermajority (majority of the entire membership) Interpretation

no. 1: using the jurisprudence of the European Court of Human Rights; no. 2: priority of the freedom of expression except incitement against a

group of persons no. 3: priority of the freedom of expression any time

Political interference ‘blond hair politician’ – in the press regarding a ruling party politician – is

discriminatory ‘Roma are physiologically criminals’ – minister of foreign affairs – is not

discriminatory

Case study

Case of Ilie Năstase

THE FACTS OF THE CASEMr. Ilie Năstase, being in Paris, was asked by a journalist by phone from Romania what

can be done with Roma in France. He declared the followings: „You know what would I do if I had been the president of Romania? I have been sent the gypsies in Harghita county, because in any case there are a lot of Hungarians and only a dozen of Romanians. I would create conditions for them. In this way, it would be changed the ethnic composition of the region. Ceuşescu made a mistake. He should made in Harghita what the Russian done in Basarabia”

THE ACTION TAKEN BY THE NCCDComplaint ex officio;The result of the analyse:

the affirmations was not denied by Mr. Ilie Năstase; the affirmations are related to the Roma ethnic group and not to delinquent

individuals; sending Roma people to Harghita county has the reason of changing the ethnic

composition of a region; the affirmations represent a harassment and violates the right to dignity of two

ethnic communities (Roma and Hungarian), also represent a public incitement to displace persons in order to change the ethnic composition of a region;

the affirmations exceed the freedom of expression by the jurisprudence of the ECHR, because not contribute to any form of public debate capable of leading to an improvement of human relations, but offends two communities;

sanction: fine of 600 Lei, taking into consideration that Mr. Ilie Năstase is a ‘country brand’.