Revista

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Universidad

del Zulia

Fundada en 1947

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Ciencias

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Año 14 N° 41

Septiembre - Diciembre 2023

Tercera Época

Maracaibo-Venezuela

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Yurii Kozar et al // The Human Rights and Freedoms in Constitution of Romania of 1866, 473-486

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The Human Rights and Freedoms in Constitution of Romania of 1866

Yurii Kozar*

Yaroslav Popenko**

Tetiana Sergiіenko***

Olga Venger****

Irina Yeremieieva*****

Liudmyla Holovii******

ABSTRACT

The purpose of the article is the analysis of the provisions of the first Constitution of

Romania of 1866 in terms of guaranteeing of Human Rights and freedoms by the state. The

article points out that the adoption of the Constitution of 1866 became a fateful state legal

act for the entire Romanian people, since it meant a radical change in the ratio of external

and internal factors in the state-building process of the Romanian state. To achieve this

goal, general scientific and special-scientific methods of cognition were used, in particular,

dialectical-legal-comparative, legal-formal. It has been determined that the accepted

Constitution in 1866 in terms of guaranteeing Human Rights and freedoms has had a truly

liberal character and has become the progressive state-legal act for the state-building

process of Romania; the need to follow the norms of the Basic Law gradually have made

constitutionalism as the form of thinking, which has contributed to the further expansion

of democratic rights and freedoms and the development of the democratic views in the

country.

KEY WORDS: State, Constitution, liberal-democratic reforms, Human Rights and

freedoms.

*Uzhhorod National University, Ukraine. ORCID: https://orcid.org/:0000-0002-6424-6419. E-mail:

vovo4ka23@ukr.net

** Bogdan Khmelnytsky Melitopol State Pedagogical University, Ukraine. ORCID: https://orcid.org/:0000-0003-0841-

0875. E-mail: popenkoaroslav80@gmail.com

***Dnipropetrovsk State University of Internal Affairs, Dnipro, Ukraine. ORCID: http://orcid.org/0000-0002-4654-

9248. E-mail: sergienko7921@gmail.com

**** Zaporizhzhia National University, Zaporizhzhia, Ukraine. ORCID: https://orcid.org/0000-0002-3758-7891. E-

mail: vengerolya14@gmail.com

***** Dnipropetrovsk State University of Internal Affairs, Dnipro, Ukraine. ORCID iD: https://orcid.org/0000-0002-

9056-6512. E-mail: irina_erema@ukr.net

****** National University of Life and Environmental Sciences of Ukraine. ОRCID: https://orcid.org/0000-0002-5537-

0944. E-mail: Lyudmyla_Holoviy@nubip.edu.ua

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Recibido: 24/04/2023 Aceptado: 15/06/2023

Los Derechos Humanos y las libertades en la Constitución de

Rumania de 1866

RESUMEN

El propósito del artículo es analizar las disposiciones de la primera Constitución de

Rumania en 1866 desde el punto de vista de la garantía de los Derechos Humanos y las

libertades por parte del Estado. El artículo señala que la adopción de la Constitución de

1866 se convirtió en un acto legal estatal fatídico para todo el pueblo rumano, ya que

significó un cambio radical en la proporción de factores externos e internos en el proceso de

construcción estatal del Estado rumano. Para lograr este objetivo, se utilizaron métodos de

cognición científicos generales y científicos especiales, en particular, dialéctico-legal-

comparativo, legal-formal. Se ha establecido que la Constitución adoptada en 1866, desde el

punto de vista de garantizar los Derechos Humanos y las libertades, era de naturaleza

verdaderamente liberal y se convirtió en un acto legal estatal progresivo del proceso de

construcción del Estado rumano; la necesidad de seguir las normas de la Ley Fundamental

convirtió gradualmente al constitucionalismo en una forma de pensamiento, lo que

contribuyó a una mayor expansión de los derechos y libertades democráticos y al desarrollo

de puntos de vista democráticos en el país.

PALABRAS CLAVE: Estado, Constitución, reformas liberales democráticas, Derechos

Humanos y libertades

Introduction

The scientific novelty lies in the fact that it has been analyzed comprehensively in it,

how there has been a formation of the national legal system in terms of guaranteeing and

protection of the personal rights and freedoms on the background of the historical

processes of the formation of Romania as a state. It is defined that the actuality of the

article is due to the main task of any democratic state to create the sufficiently effective

system of the protection of human rights and freedoms, which are built on the principles of

legality and equality of everybody before the law. It should be noted that the fixing in

Constitution of Romania of 1866 of the socio-legal principles of the building of the state

have foreseen all fullness of political, socio-economic, cultural and other rights and

freedoms of human and citizen. It is, in turn, contributed to the formation and the

unification of the uncoordinated Romanian ethnic group into the single state-political

nation.

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During the second half of the 19th century. the Romanian political leadership

significantly intensified state-building processes, which, on the one hand, were aimed at the

establishment of Romania as a sovereign state, and on the other hand, at the unification of

Romanians into a single political nation. One of the most important tasks faced by the then

ruling elite of the principality was the formation and development of the legal foundations

of the state. First of all, this concerned the adoption of the Basic Law of the country, which

some Romanian researchers call "a preamble to national independence and the affirmation

of Romanian identity" (Banciu, 2018, p. 27).

1. Materials and methods

The aim of the study. To investigate the peculiarities of the formation of

constitutionalism in Romania. To determine the system of rights and freedoms of Romanian

citizens guaranteed at the constitutional level.

Research methodology. The complex nature of the work with its combination of

legal and social aspects led to a complementary approach to the choice of scientific research

methods. When choosing the appropriate scientific tools, the authors took into account its

compliance with such criteria as efficiency, objectivity and reliability. A number of

approaches were used during the research: dialectical, descriptive, formal-legal and

comparative-legal.

2. Analysis of sources and recent research

A separate study that would comprehensively examine the development of the

constitutional foundations of the formation of Romania during the second half of the 19th

century is absent in Ukrainian historical and legal science. Certain aspects related to the

study of state authorities and management of Romania at the end of the 19th and the

beginning of the 20th centuries are presented in the works of I. Toronchuk. Russian

historians mainly considered the state mechanism of Romania in this period superficially.

In most of their works, they analyzed the historical aspects of the formation of the

principality based on the results of the revolutionary events of 1848-1849. This page of

Romanian statehood presents the works of V. Vynogradov. It is quite obvious that the

process of development of constitutionalism has attracted and continues to attract the

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attention of Romanian historians and lawyers. In particular, various aspects of the

"constitutional" history of Romania are presented by the works of such authors as: A.

Bancu, I. Negru, T. Maiorescu, A. Ungurianu, M. Enash, M. Safta, and others.

3. Results and discussion

The evolution of constitutionalism in Romania has undergone a long period of

development from the first Basic Law of 1866 to the current Constitution of 1991 with

changes in 2003. During this time, the Constitutions have been repeatedly changed and

supplemented, taking into account the historical conditions of the state's existence. This

happened in 1923, 1938, 1948, 1952 and 1965. At certain historical stages, in particular,

during the communist regime, concepts, principles and guarantees of basic human rights

and freedoms were relegated to the "second" plan in the state administration system. But

the restoration of the democratic form of government in the country and the adoption of the

current Constitution proved not only the existence of the Romanian constitutional

identity, but also the supremacy of law and the rule of law in the direction of observing and

guaranteeing basic human rights and freedoms.

Before proceeding to the analysis of the provisions of human rights and freedoms in

the first Romanian Constitution, it should be briefly recalled in which internal and foreign

political conditions it was adopted.

In general, the very idea of the national state revival of the Romanian ethnos was

actively developed during the 18th century. A prominent role in this process belonged to

representatives of the so-called "Transylvanian school" S. Miku-Klein, G. Shinkai, P. Mayor.

It was they who scientifically substantiated and promoted the idea of Romanian equality

and their establishment as a "historical nation" (Vinogradov 2001, 396). Gradually, the idea

of a state political union of Romanians found support and supporters in the broad circles of

Romanian society at that time. Moreover, as of the 1830s, all possible internal political

prerequisites for the political and state unification of Romanians within one principality

were laid. The "Spring of Nations" of 1848-1849, as an external factor, also contributed to

unifying tendencies in the Romanian environment. In March 1849, the outstanding

Romanian historian and one of the leaders of the revolutionary movement in Wallachia and

Transylvania, N. Belchescu, addressed the Romanians and noted: "There can be no

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happiness without freedom, there can be no freedom without strength, and we, Romanians,

cannot become strong until we unite into a single political body" (Vinogradov 2001, 416).

He emphasized that the Romanians faced an extremely difficult and long-term task of

creating their own state. According to him, the revolution of 1848-1849 for Romanians has

not yet ended, it has only begun (Vinogradov 2001, 416).

Over the ime, the revolutionary slogans of the revival of the Romanians were

embodied in the practical programs of various political parties and figures. One of these

national leaders was M. Kogalniceanu, whose name is largely associated with the creation

of Romania as a state (Padurariu, 2013). M. Kogalniceanu wrote the work "Wishes of the

National Party of Moldova" in which a program of reforms and specific actions aimed at the

creation of a single Romanian principality (Kogalniceanu) was outlined in 34 points.

On January 5, 1859, A. Kuza was elected as the master of Moldavia. On January 25 of

the same year, he also became the master of Wallachia, thus uniting both principalities in a

personal union (Negru 2014, 115). De jure, it was A. Cuza who became the first monarch of

the united Romania during 1862-1866. Together with the head of the government, M.

Kogalniceanu, during 1863-1865, the Romanian ruler managed to implement a number of

liberal and democratic reforms in the principality. In particular:

1. An agrarian reform was carried out and a partial secularization of monastic lands

took place;

2. Military and judicial reforms were carried out (criminal and civil codes were

adopted);

3. Administrative management system was reorganized;

4. Changes also took place in the education system (the adopted law on education)

(Negru 2014, 115–117).

The reform of the electoral system in 1864 was important for the formation of the

constitutional foundations of the Romanian state, as a result of which the age and property

requirements for citizens who could participate in voting were reduced (Ivănescu 2001,

315).

In general, the reforms initiated by the monarch and supported by the government

were aimed at the modernization of Romanian society and the state-management

structures of the time. According to some Romanian researchers, these processes of

modernization of society and transformation of state institutions during the time of A.

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Cuza "allowed the intensification of the process of European integration of Romania"

(Banciu 2018, 26). At the same time, despite their moderate and rather limited nature, the

reforms were opposed by both conservative and liberal parties and led to the emergence of

strong political opposition in the principality.

It should be noted that the preparation and adoption of the first Romanian

Constitution took place against the background of an extremely difficult international

political situation in Europe, in particular on the Balkan Peninsula. In general, the "eastern

question" or "the question of the Danube principalities", according to the expression of the

eyewitnesses of those events, was similar to "... the sword of Damocles, in relation to the

peace and peaceful development of European society" (Eastern question in its present phase

1864, 449). The influence of Paris on Romania was strengthened due to the fact that in his

reform of public administration, A. Cuza took the model of the French Empire as a basis.

Instead, the Austrian Empire negatively perceived the processes of Romania's

integration into a single state. Firstly, Vienna sought to extend its influence on navigation

on the Danube waterway through Romania. Secondly, a significant part of Romanians lived

in the territory of Transylvania, which at that time was an Austrian province, and therefore

the Romanian unification movement could also cover other lands of Austria.

England perceived the changes in the territory of the Principality more cautiously,

since directly opposing the Romanians in their desire for independence would mean acting

in favor of Austria and Russia. On the other hand, the existence of a strong and unified state

in the Mediterranean basin with the potential to have a fleet was not included in the plans

of the English monarchy.

For the Ottoman Empire, the process of creating a unified Romania posed a direct

threat to state interests, as other peoples enslaved by the Ottomans could take it as a model

for their own national revival. The Russian monarchy perceived the integration processes

on the territory of the principality in the same ambiguous way. Fearing to lose influence on

the territory of the Danube principalities, the tsarist government wanted the Moldavian-

Wallachian revolution to be suppressed by the Turks. That is why Emperor Nicholas I and

Minister of Foreign Affairs K. Nesselrode repeatedly offered the sultan to restore "lawful

order". In turn, the Ottoman Empire also hoped to use the revolution to undermine the

position of the Russian monarchy in the region (Vinogradov 1990, 213). As a result,

according to the words of the modern Russian historian V. Vinogradov, the gradual

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destruction of the Ottoman state did not lead to a strengthening, but rather to a weakening

of Russian positions in South-Eastern Europe (Vinogradov 2003, 7).

In general, a combination of both internal and external factors caused drastic

changes in the country. On the night of February 10-11, 1866, the so-called "terrible

coalition" (Monstruoasa coaliţie - Romanian) staged a coup d'état. On the morning of

February 11, the Monitorul Oficial published A. Kuz's resignation from power. The former

ruler soon left the territory of the principality (Maiorescu 1925, 8). Soon, a three-member

Regency Council was formed in Bucharest - one representative from liberals, conservatives,

and the army (Drozdov 2009, 91). The council included N. Golescu (representative of

Muntenia), L. Katarzhiu (representative of Moldova) and artillery commander Colonel N.

Haralambie. The interim government was headed by I. Hick (Sulyak 2009, 33).

It is worth noting that the changes in the political leadership of the country did not

affect the desire of Romanians to create a sovereign state. On the initiative of I. Hick, a

parliament was convened, which declared Philip the Belgian Count of Flanders as the

prince of Romania, but the latter refused the proposal. On April 28, the Chamber of

Deputies was convened and ratified the election of Karol Hohenzollern-Sigmaringen as the

new ruler of the principality (Drozdov, 2013, p. 240). On May 10 (22), he took an oath

before the Parliament of Romania (Giurescu, 1939, p. 6) (in October 1866, Karol I received a

firman from the Ottoman Empire recognizing him as the prince of Romania - author). This act

confirmed the determination of the intentions of the Romanian political elite to intensify

the process of creating an independent state, relying on a monarch who came from Western

European dynasties. On the other hand, according to the expression of V. Vinogradov, at

that time political situation in the principality, "constitutional monarchy as a state system

that ensured social stability, "order" in society and excluded the struggle and threat for the

highest position in the country was attractive" (Vinogradov 2016 , 15).

Looking ahead, it will be appropriate to note that Karol I lived up to the

expectations placed on him by the elite of the principality. The famous Romanian

statesman T. Maiorescu characterized the ruler as follows: "The tenacity with which the

prince pursued his goal, his persistence and patience, unwillingness to flatter, steadfast

performance of daily duties, refusal of intrigues and services of henchmen, from any

interference in personal life, exemplary family life - all these character traits sharply

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distinguished him from previous rulers, they were his personal qualities" (Podgoreanu 2006,

9).

So, in such historical conditions, the Basic Law of the Principality was adopted. The

first Romanian Constitution was adopted by the Constituent Assembly on June 30, 1866. It

was written on the model of the Belgian Constitution, but adapted to the Romanian

realities of the state political and legal systems (Safta 2018, 123). The Basic Law was

promulgated on July 1 of the same year by the ruler of the United Principalities of Wallachia

and Moldavia, Karol I (Ungureanu, 2009, p. 133). He took an oath to abide by the

Constitution and laws of the country (Ştefan 2020, 75).

The adoption of the Constitution became a fateful state legal act for the entire

Romanian nation, as it meant a radical change in the ratio of external and internal factors in

the state-building process of the principality. By adopting the Basic Law, the Romanian

political leadership clearly demonstrated its desire to create a sovereign state with defined

borders (territory), population, the presence of state authorities and management,

sovereignty, the ability to issue laws and conduct international policy (Safta 2018, 123). The

first Romanian Basic Law consisted of eight chapters (Curpăn 2014, 111).

Chapter I of the Basic Law "On the Romanian Territory" contained fundamental

constitutional and state prescriptions for the creation and development of the country.

Legally, the official name was fixed. Thus, Art. 1 proclaimed: "The united Romanian

principalities form an indivisible state and is called Romania" (Negru 2014, 119). Art. 2-4 of

the Basic Law determined that the territory of Romania is inalienable and inviolable, with

its own administrative and territorial division and organization. Only the national

regulatory framework (Constitutiunea Romaniei din 1866) was to function throughout the

territory of the principality. Thus, the legal fixation of such foundations of state building

became a kind of Romanian response to the foreign political opposition, which sought to

keep the principality either in its immediate "zone of influence" or to preserve the "status

quo" in the arrangement of forces in the region (Enache, 2016).

Section II of the Constitution entitled "On the Rights of Romanians" deserves special

attention, since that the constitutional rights and freedoms of a person and a citizen of

Romania at that time were enshrined there (Andia 2005, 510). At the same time, it was

noted that the Constitution and other laws of the state in terms of guaranteeing political

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rights to citizens are a necessary condition for the existence and realization of the

corresponding rights (Article 6).

Therefore, the rights and freedoms of Romanian citizens, which were provided for by

the Basic Law of that time, can be conditionally divided into three groups.

The first of them is the personal rights and freedoms of a person (civil, natural)

directly related to the very essence of a person as a natural person:

1.1. The right to freedom of conscience (Article 5);

1.2. The right to acquire and renounce Romanian citizenship (Articles 7, 9);

1.3. It was noted that there are no class and social differences on the territory of

the country, all Romanians are equal before the law, but are obliged to work for the benefit

of the state (Article 10);

1.4. All foreigners who lived on the territory of Romania were guaranteed

protection of both personal and property rights by the state (Article 11);

1.5. All former privileges, benefits and class monopolies were abolished (Article

12);

1.6. Individual freedom was guaranteed (no one could be held criminally liable,

except in the cases provided for by law; no one could be detained or arrested, except in

cases of a reasoned court order, which should have been notified at the time of the arrest or

no later than 24 hours after the arrest ( Articles 13-14);

1.7. The inviolability of the home was declared (invasion of the premises, searches

had to be duly formalized according to the procedure defined by law) (Article 15);

1.8. The death penalty was abolished (Article 18), with the exception of certain

cases provided for by the current Criminal Code (Toader 2017, 207);

1.9. The Constitution guaranteed every citizen freedom of thought and speech; the

concept of censorship was abolished; publication of materials in the press did not require

permission from the authorities; no publication could be banned. At the same time, it was

stipulated that each author/publication should be responsible for its material" (Article 24);

1.10. The right to secrecy of correspondence and telegraphic messages was

proclaimed (Article 25).

The second group is the political rights and freedoms of Romanian citizens, related

to the relationship between a person and the state, a person and state authorities, a person

and political parties and other state and political institutions of the state and society:

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2.1. The right to freedom of press and assembly was proclaimed (Article 5);

2.2. Only Romanian citizens could hold state, civil, and military positions (at the

same time, it was allowed that foreigners could also hold relevant positions, but in

exceptional cases provided for by the current legislation) (Article 10);

2.3. Freedom of conscience and religion was guaranteed (Article 21). The state

undertook not to interfere in the internal affairs of the Romanian Orthodox Church. In this

context, it should be noted that it ment "pastoral component" of its activity, since at the

same time the state leaders of Romania were actively secularizing church-monastery lands

in order to solve the "peasant" issue (Kurganov 1899, 238). On December 4 (16), 1872, a new

law was adopted on the structure of the Romanian church, which was to be under the

administration of the General National Synod (Kurganov 1899, 666–672);

2.4. The right to peaceful assembly (without weapons) was proclaimed. In some

cases, such actions had to be agreed with state authorities and relevant law enforcement

structures (Article 26);

2.5. Romanian citizens were guaranteed the right to association (Article 27). The

specific mechanism for the formation of political parties or political organizations was

regulated by the relevant legislation;

2.6. Citizens were given the right to individually or collectively appeal to state

authorities by submitting petitions (Article 28);

2.7. All civil servants were subject to administrative or criminal liability for

committed offenses (Article 29);

2.8. The Constitution prohibited the extradition of political refugees who were on

the territory of the principality (Article 30).

The third group is closely related to the economic, socio-cultural and family rights of

Romanian citizens:

3.1. Illegal confiscation of property was prohibited (Article 17) (Negru, 2014, p. 121);

3.2. Private property was declared inviolable (Article 19). The constitution defined

that all property is "sacred and inviolable". No one could be subject to expropriation, except

in cases of public useful necessity on legal grounds and after fair prior compensation

(Constitutiunea Romaniei din 1866). The "reasons" of expropriation for public needs were

the laying and maintenance of communications and sewerage, the construction of defense

complexes (Banciu 2018, 26). In the same article, it was determined that only "special laws

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were supposed to regulate the very procedure and order of expropriation" (Safta 2012, 109).

It is worth noting that in the context of the new agrarian reform announced in the country,

this article primarily protected the interests of large landowners;

3.3. Financial compensation for lost land or other property was guaranteed (Article

20);

3.4. Documents certifying the marital status of the spouses had to be drawn up by

state authorities (Article 22);

3.5. The state guaranteed its citizens free education (Article 23) (Ungureanu, 2009,

p. 133). It should be emphasized that at the same time, a state program for opening primary

schools throughout the territory of the principality was announced (education in state

schools was supposed to be free, primary education was compulsory, all "educational"

issues were to be regulated by a special law) (Article 23).

In general, the Basic Law of the principality proclaimed the principles of state

sovereignty, hereditary succession, inviolability and exemption from responsibility of the

monarch, representative government, principles of separation of powers, responsibility of

ministers, etc. (Safta 2018, 124). According to modern practicing Romanian judges, the

Constitution of 1866 should be characterized "as a valid act of emancipation, in the sense

that the nation has the exclusive right to revise its fundamental law, which it has

developed" (Enache, 2016).

Conclusions

Romania's constitutionalism dates back to 1866. Over the period of its existence, the

basic law of the state has been repeatedly amended and supplemented, which had a

significant impact on the development of civil society.

Countries that had their own geopolitical interests in this territory had a significant

impact on the formation of Romania as a separate state. These countries include: France,

the Austrian Empire, England, Russia, and the Ottoman Empire. Nevertheless, Romania

became an independent state, and an important element of this was the adoption of the

Constitution of 1866. It is worth noting that Constitution of 1866 was valid until March 29,

1923, when new changes were made to it, in accordance with the requirements of the time.

They mainly related to the organization of activities of higher state authorities and

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expanded the rights and freedoms of Romanian citizens (Toronchuk, 2009, p. 16).

According to V. Vynogradov: "The Constitution of 1866 was not designed for the growth of

Romanian society, but, as events have shown, it was designed for growth. The development

of society flowed into a ready-made legal norm" (Vinogradov, 2016, p. 16). We emphasize

once again that the Romanian constitutionalism of the second half of the 19th century

developed in rather difficult conditions. For example, against the background of the weak

economic power of the bourgeoisie and the middle class, which, moreover, did not have

strong parliamentary representation, there was no need to talk about the radical adoption

of democratic norms in the first Basic Law of the country. But even under such conditions,

the Constitution of 1866 proved to be viable from the point of view of state law, since

significant changes were made to it only in 1923, that is, in 57 years.

The Constitution of Romania, at the highest level, enshrined, in order to guarantee,

first of all, personal human rights and freedoms (civil, natural), directly related to the very

essence of a person as an individual. Another novelty for the society of that time was the

consolidation of political rights and freedoms of citizens related to relations between an

individual and the state, an individual and public authorities, an individual and political

parties and other state and political institutions of the state and society, and the definition

of their list. The third group of citizens' rights at the constitutional level includes economic,

socio-cultural and family rights.

The Basic Law of 1866 established new (legal) boundaries for future development,

created the regulatory and legal basis for the process of renewal of the principality and

contributed to the gradual integration of Romania into the system of European states of the

second half of the 19th and early 20th centuries. For the Romanians themselves, the

Constitution became an additional incentive for national unification into one state.

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