SOME CONSIDERATIONS REGARDING THE PROVISIONS OF ARTICLE 53 OF THE ROMANIAN CONSTITUTION

An essential dimension of the lawful state is represented by the consecration and guaranteeing of the fundamental rights and liberties, the ensuring of the optimum conditions for their exercising. The state has the negative obligation to restrain from any arbitrary or excessive requirement that may restrict or condition the exercise of the constitutional right. In order to be legitimate and constitutional, any restriction of the exercise of the fundamental rights and liberties through the measures prescribed by the state’s authorities, needs to have the character of exemption, not to affect the substance of the law and to fulfill all conditions stipulated by item 53 of the constitution. In relation to these premises we analyze in this study the constitutional institution of restraining some rights’ exercising and the relevant aspects of jurisprudence. The observance of the principle of proportionality is one of the constitutional requirements in order for such a restrictive measure to be legitimate. The main particularities of the principle of proportionality applied in the matter of restraining some rights’ exercising are analyzed with reference to the jurisprudence of the Constitutional Court and the European Court of Human’s Rights.