Daria-Maria Buhus - Erasmus Student, Romania

The restriction of the exercise of fundamental rights and freedoms as a

dimension of COVID-19 in Romania

I. Introduction

As we all know, nowadays, humanity is facing a tumultuous period not only concerning the
public healthcare system but also regarding the legal system related to the fundamental rights. A
balance between the protection of the right to life and the compliance of the other fundamental
rights such as the freedom of movement or the right to privacy needs to be established for the
State not to lose control over the COVID-19 situation in such unfortunate circumstances.
Moreover, this pandemic reached the level of threatening the life of the nation as a whole and as
a consequence our daily life has completely changed in unthinkable ways.

Analyzing this issue from a legal perspective, the greatest challenge that rises is how the
Government of each state is going to address this situation, what restrictive measures it should
take to prevent the spread of this contagious disease and how, in the meantime, the fundamental
rights are going to be protected against the abuses that may occur. First of all, we need to agree
on the fact that we can not talk about exceptional measures without an exceptional legal context.
This exceptional legal context is translated through the state of emergency which allows the State
to achieve its objectives legitimately. However, as we will discuss later on this essay, the
declaration of a state of emergency does not automatically entail the restriction of certain rights
and freedoms or vice versa.

Another aspect that should be taken into consideration is not only the negative obligation of the
State not to interfere in the normal exercise of the rights of the citizens but also the positive
obligation of the State to take measures to guarantee the compliance of these fundamental rights.
In this way, the limitations of fundamental rights could be the only solution for the public
interest to prevail. At first glance, this restriction could be mistakenly interpreted as a
characteristic against the values that a democratic and liberal society promotes. But if we take a

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Daria-Maria Buhus - Erasmus Student, Romania

closer look at the meaning of these restrictions it is needless to say that guaranteeing
fundamental rights through domestic or international regulations does not exclude their limiting.
“The lack of the exercising limits and conditions prescribed by law, constitutions or international
legal instruments can lead to arbitrariness or abuse of law, because it would not allow the
differentiation of illegal behavior from the legal one.”1 Article 4 of The French Declaration of
Rights of Man and Citizen is very suggestive to prove this point of view: "the exercising of each
man’s natural rights has no limits, others than those which provide every member of society the
possibility to exercise those rights."

In fact, what my paper is trying to prove is in which measure the limitations of the exercise of the
fundamental rights are lawful and proportional to an emergency and what are specifically the
normative acts that could establish such exceptional regulations especially referring to the
Romanian legal framework.

II. The “jus cogens” of non derogable fundamental rights

Before diving into the core of the paper namely the specific way of limiting the exercise of some
fundamental rights according to the Romanian Constitution, we must put into discussion the
inviolability of a considerate number of fundamental rights that is recognized as jus cogens at an
international level. This means that certain rights and freedoms regulated in international
conventions can never be infringed on, not even in exceptional circumstances such as time of
crisis, state of emergency or armed conflict. For instance, the provisions of the International
Covenant on Civil and Political Rights (ICCPR), adopted 16 December 1966 by the General
Assembly of the UN are very eloquent in this regard. Thus, Article 4 (2) states that “No
derogation from articles 6, 7, 8 (paragraphs I and II), 11, 15, 16 and 18 may be made under this
provision.” It follows that no matter what unpredictable circumstances may appear, the right to
life and the right not to be deprived of one’s life, the prohibition of torture or cruel, inhuman, or

1
Andreescu Marius - Reasons concerning the restriction of some rights in compliance with the provisions of Art. 53
of Constitution - The International Conference “Challenges of the Knowledge Society” Bucharest, 12th - 13th May
2017, 11th Edition, p. 348

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Daria-Maria Buhus - Erasmus Student, Romania

degrading treatment or punishment, the prohibition of slavery, slave trade, and servitude, the
right for everyone, everywhere, to be recognized as a person before the law and all the other
similar rights that were listed on the Article 4 mentioned before, are inalienable rights which
constitute the absolute minimum standard concerning the compliance of fundamental rights by
any State.

On the other hand, although the inviolability of fundamental rights is raised at the rank of a
supreme rule, the international conventions allow derogations from this rule but only in specific
contexts and with the accomplishment of stringent conditions. Thus, the ICCPR expressly states
in Article 4 (1) that “In time of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed, the States Parties to the present Covenant may take
measures derogating from their obligations under the present Covenant to the extent strictly
required by the exigencies of the situation, provided that such measures are not inconsistent with
their other obligations under international law and do not involve discrimination solely on the
ground of race, colour, sex, language, religion or social origin.” Moreover, in the same spirit,
Article 15 of European Convention for the Protection of Human Rights and Fundamental
Freedoms allows the Parties to take measures derogating from its obligations under this
Convention, in time of war or other public emergency threatening the life of the nation in so far
as such measures are strictly required by the exigencies of the situation and are not inconsistent
with its other obligations under international law. Furthermore, Article 18 of the same
Convention establishes the additional obligation for the Parties not to abuse the power conferred
for any purpose other than those for which they have been prescribed.

The last international convention that is worth mentioning although it has not a compelling
character is The Charter of Fundamental Rights of the European Union because Article 52 (1)
contains conditions extremely similar to those in the Romanian Constitution: “Any limitation on
the exercise of the rights and freedoms recognised by this Charter must be provided for by law
and respect the essence of those rights and freedoms. Subject to the principle of proportionality,
limitations may be made only if they are necessary and genuinely meet objectives of general

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Daria-Maria Buhus - Erasmus Student, Romania

interest recognised by the Union or the need to protect the rights and freedoms of others.” The
fact that all these international documents’ regulations concerning the fundamental rights area
are very well detailed, rigorous and strict proves the tendency of the international community to
accept the limitation of the exercise of fundamental rights only in circumstances that are
compatible with the democracy standards imposed nowadays.

III. Reasons concerning the restriction of certain rights in compliance with the
provisions of Article 53 of the Romanian Constitution

The increased necessity of protecting the fundamental rights through international regulations
has led to a national consecration of this matter in the Romanian legal framework, the most
relevant example being the Romanian Constitution. The fundamental law of Romania establishes
a balance between “two extreme attitudes that have been outlined: sacrificing rights and
freedoms in the interests of social order and the preeminence of rights and freedoms, even if thus
are sacrificed the interests and social order.”2 The legal doctrine3 has made a distinction between
the common and special circumstances that can explain the restriction of certain rights and
freedoms. Thereby, the common circumstances are subjected to the provisions of Article 53 of
the Constitution and are temporary and fortuitous by their nature. On the other hand, the special
circumstances are permanent and are specific to certain rights and freedoms. But we should not
forget that no circumstance, be it common or special, can justify the restriction of an absolute
right.

What is more intriguing about Article 53 is that, according to a consistent jurisprudence of the
Romanian Constitutional Court, “it only concerns fundamental rights and freedoms and not any
rights and freedoms, even if they arise from normative acts or consensual acts.”4 By fundamental
rights the Romanian literature of speciality understands “subjective rights which are essential for
physical and mental existence of individuals, physical and intellectual development, as well as to

2
Deleanu Ion - Constitutional Law and Political Institutions -1999 - p. 123
3
Muraru Ioan & Tănăsescu Elena Simina - The Romanian Constitution. Comment on articles - 2008 - p. 531
4
Constitutional Court Decision no. 11/2004; C.C.D. no. 223/2001; C.C.D. no. 214/2005; C.C.D. no. 13/1999

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Daria-Maria Buhus - Erasmus Student, Romania

ensure their active participation in state governance enshrined and guaranteed by the Constitution
and other laws of the state.”5

Thus, Article 53 of the Romanian Constitution states:

“(1) The exercise of certain rights or freedoms may only be restricted by law, and only if
necessary, as the case may be, for: the defence of national security, of public order, health, or
morals, of the citizens' rights and freedoms; conducting a criminal investigation; preventing the
consequences of a natural calamity, disaster, or an extremely severe catastrophe.

(2) Such restriction shall only be ordered if necessary in a democratic society. The measure shall
be proportional to the situation having caused it, applied without discrimination, and without
infringing on the existence of such right or freedom.”

As we can notice, Article 53 requires the fulfillment of several conditions in order for the
exercise of certain rights and freedoms to allow derogations:

➔ ​restriction of the exercise should be made by law​;

Due to the democratic legitimacy of the legislative power and its wide decision-making
competence, which should be exercised only in the limits imposed by the Constitution,
the law maker may be offered an express delegation from the constituent power to
intervene exclusively in the field of the exercise of fundamental rights. Therefore, by
“law”, the majority of doctrine understands its narrow essence - normative act of
Parliament. Moreover, according to the principle “delegata potestas non delegatur” the
legislative power could not delegate this competence further to the executive power.6
However, the legal practice in the field shows that the term of “law” has also assimilated
the concept of common or emergency ordinance.

5
Deaconu Ștefan - Constitutional Law- 2011 - p.191
6
Muraru Ioan & Tănăsescu Elena Simina - The Romanian Constitution. Comment on articles - 2008 - p. 535

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Daria-Maria Buhus - Erasmus Student, Romania

➔ ​restriction is made only if necessary and only in certain situations​;

What is essential regarding this condition is that it explicitly involves a rather exhaustive
than descriptive list of circumstances that may restrain the exercise of certain rights and
freedoms. Correlating this provision with the actual not only national but global context,
needless to say that the COVID-19 pandemic successfully falls under the incidence of
this condition, specifically under the public health issue. Unlike the provisions of the
international conventions which regulate the same aspect, the provisions of Article 53 of
the Romanian Constitution are much more detailed and permissive regarding the power
of the law maker. Thus, the latter include objectives of public interest other than “time of
public emergency which threatens the life of the nation”7 or “time of war or other public
emergency threatening the life of the nation”8 such as aspects through which the state
authorities can impose the solidarity of the citizens (preventing the consequences of a
natural calamity) or actions specifically related to the repressive function of the state
(criminal investigation).

➔ ​restriction is possible only if necessary in a democratic society​;

This third condition was introduced in the constitutional text after the revision of the
Romanian Constitution in 2003, having the purpose to consecrate the relevant
jurisprudence of The European Court of Human Rights and prepare Romania for a
European Union adherence. It implicitly suggests the temporary character of the
limitation of the exercise of certain rights and freedoms according to the liberal principles
that the nature of democracy promotes.

➔ ​restriction must be proportionate to the cause;

The principle of proportionality could be analyzed from different perspectives either as a

principle inherent to the legal function of the state or as a principle involved in the field

7
International Covenant on Civil and Political Rights
8
The European Convention for the Protection of Human Rights and Fundamental Freedoms

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Daria-Maria Buhus - Erasmus Student, Romania

of the protection of fundamental rights.9 Correlating these two perspectives, Article 53 of

the Romanian Constitution establishes a relation of proportionality between the legal
measure which establishes the restriction of the exercise of certain rights and freedoms
and one of the limiting clauses in which such a restriction could be made. Furthermore, a
distinction must be made between a legitimate restriction which is therefore
constitutionally justified, and a restriction that is proportional to the cause on the basis of
which this measure was taken. Thus, even if the restriction of a certain right is motivated
by a cause explicitly mentioned by the Constitution, it would be declared unconstitutional
because it could be disproportionate to these specific causes. For example, supposing that
from now on Romania would register no more COVID-19 cases and the measure
regarding the national lockdowns would be maintained until the end of the year, such
incredible measures would be obviously considered disproportionate (although
legitimate) and as a consequence declared unconstitutional. The principle of
proportionality is thus a constitutional guarantee that allows The Romanian
Constitutional Court to sanction the arbitrary interference of Parliament or Government
in the letter and the spirit of our Constitution.10

➔ restriction should be applied without discrimination​;

This condition is also a consequence of the revision of the constitutional text from 2003.
The meaning of the term “nondiscriminatory” itself reveals the essence of this provision,
not being necessary to start a debate upon this aspect. In a few words, the legal
regulations enforced by the State authorities must be equally and reasonably applied to all
citizens, regardless of any criteria or consideration.

➔ restriction does not affect the existence of rights​.

Not to forget that, the restriction in question aims on the exercise of certain rights and
freedoms, not on the very substance of them, such action being profoundly against the

9
​Muraru Ioan & Tănăsescu Elena Simina - The Romanian Constitution. Comment on articles - 2008 - p. 541
10
Muraru Ioan - Constitutional Protection of the liberties of opinion - p. 22-23

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Daria-Maria Buhus - Erasmus Student, Romania

constitutional order imposed nowadays. Thus, “we must make a distinction between the
legal concept of “restriction” and “reduction” since they are not the same legally, because
if the restriction of certain rights is allowed, their reduction is not.”11

IV. The restriction of the exercise of certain rights and freedoms - a direct consequence
of the declaration of the state of emergency?

A common confusion has been clarified by the Decision no. 872/25.06.2010 of the Romanian
Constitutional Court namely the distinction between the legal institution of the exercise of
fundamental rights and freedoms regulated by the Article 53 of the Romanian Constitution and
the legal institution of the state of emergency or the state of siege regulated by the Article 93 -
“Emergency measures” - of the Romanian Constitution: “Even if the establishment of the state of
emergency may have as a consequence the restriction of the exercise of certain rights and
freedoms, the scope of Article 53 is not limited only to the situations regulated in Article 93.” In
other words, the state of emergency does not automatically imply the restriction of certain rights
and freedoms, even though in principle it is difficult to conceive such an exceptional
circumstance that excludes derogations from the exercise of fundamental rights of citizens.
Nevertheless, in case these two situations overlap, the constitutional provisions regulated in both
Article 53 and Article 93 must be complied cumulatively.

V. Impact on daily life - concrete measures to address the outbreak

Being a tough test not only for the society but also for the global legal framework, strict
measures were needed to be taken in order for fighting against the virus. The legal standards
imposed by the Governments profoundly impacted the civil, political and socio-economic rights
granted to citizens and their effects will be visible in the long run in various areas such as social
life, education, work, and freedom of movement, as well as asylum and migration. Romania, as
all EU Member States, introduced measures based on the social distancing concept to contain the
COVID-19 outbreak. Concretely, referring to the Romanian Constitution, the fundamental rights

11
Aramă Elena & George Coca - Express restriction of fundamental rights by the constitutional provisions of
Romania and The Republic of Moldova - Romanian Law Studies Review - 2009 - p. 42

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Daria-Maria Buhus - Erasmus Student, Romania

affected by these kind of limitations were numerous: the rights to liberty and security (Article
23), respect for private and family life (Article 26), freedom of thought, conscience and religion
(Article 29), freedom of expression (Article 30), freedom of assembly and of association (Article
40), freedom of the arts and sciences (Article 33), freedom of movement (Article 25) and right to
education (Article 32).

Thus, since 16 March 2020, 11 military ordinances were adopted in order to increase the social
responsibility among Romanian citizens. For instance, all movement outside the household of all
individuals located on the territory of Romania is forbidden with a few serious exceptions such
as professional interest, between the household and workplaces, receiving medical assistance that
cannot be delayed or given remotely, donation of blood or other similar justified reasons.
Another eloquent example is the fact that all persons entering Romanian territory have to
undergo isolation at home (yellow zone) or quarantine (red zone), this decision being made by
the authorities at the border. Moreover, the educational facilities, from preschool to university,
were closed down at least until the end of the state of emergency. Furthermore, all religious
gatherings must be streamed in mass-media and online, meanwhile religious acts such as
baptism, weddings and funerals can be held with a maximum of 8 people.12 It is highly debatable
if Romania overreacted by taking this aggressive type of measures, concretely two projected
months of full lockdown, and time will tell if this “pandemic treatment” risks ending up being
more damaging than the virus itself.

VI. Conclusion

To conclude with, as we have discussed earlier in this paper, any restriction of the exercise of
certain rights and freedoms may raise abuses from the State authorities who sometimes tend to
use this dangerous pandemic as an excuse for the violation of fundamental rights. It is the duty of
the Governments to solve this dilemma and to create “the right balance between imposing
discipline to save people’s lives and allowing citizens to enjoy their rights and civil liberties,
while introducing various forms of limitations on public assembly and migration, by passing a

12
https://www.suntsolidar.eu/stire/vrs/IDstire/751

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number of emergency measures and laws.”13 Despite being unpleasant, the restriction of the
exercise of certain rights and freedoms is highly necessary, or in better words compulsory in the
context mentioned above in order to preserve the most important value that citizens own beside
human dignity, namely life. However, in my opinion, the hypocrisy of certain citizens should not
be overlooked. Especially the Romanian citizens tend to have serious concerns and be very
aggressive demanding their fundamental rights, while forgetting they also have fundamental
duties. Ironically, the nationals who expect an unlimited protection on their fundamental rights
are unfortunately the ones who frequently commit breach of the legal guidelines instituted by the
authorities. Thus, the Article 15 (1) of the Romanian Constitution successfully emphasizes this
point of view: “All citizens enjoy the rights and freedoms granted to them by the Constitution
and other laws, and have the ​duties​ laid down thereby.”

13
Russia Civil Society Forum - A Pandemic Is Not an Excuse for the Violation of Fundamental Rights of Citizens in
Europe Statement by the Board of the EU

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Daria-Maria Buhus - Erasmus Student, Romania

VII. Bibliography
● Aramă Elena & George Coca - Express restriction of fundamental rights by the
constitutional provisions of Romania and The Republic of Moldova - Romanian Law
Studies Review - 2009
● Andreescu Marius - Reasons concerning the restriction of some rights in compliance with
the provisions of Art. 53 of Constitution - The International Conference “Challenges of
the Knowledge Society” Bucharest, 12th - 13th May 2017, 11th Edition;
● Board of the EU-Russia Civil Society Forum - Pandemic Is Not an Excuse for the
Violation of Fundamental Rights of Citizens in Europe Statement
● Deaconu Ștefan - Constitutional Law- 2011 - Bucharest: C.H. Beck.
● Deleanu Ion - Constitutional Law and Political Institutions - 1996 - Bucharest: Europa
Nova
● International Covenant on Civil and Political Rights
● Muraru Ioan - Constitutional Protection of the liberties of opinion
● Muraru Ioan & Tănăsescu Elena Simina - The Romanian Constitution. Comment on
articles- 2008 - Bucharest: C.H. Beck;
● Popescu C. L - The restriction of the exercise of fundamental rights and freedoms
through decrees instituting or extending state of emergency or siege and through military
ordinances, Annals’ of University of Bucharest - 2020
● Savenco Iulian Georgel - Restriction of Certain Rights and Freedoms in the Romanian
Constitution - The 9th Edition of the International Conference “European Integration -
Realities and Perspectives”
● The Charter of Fundamental Rights of the European Union
● The Constitution of Romania
● The European Convention for the Protection of Human Rights and Fundamental
Freedoms
● The French Declaration of Rights of Man and Citizen
● https://www.suntsolidar.eu

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