Summaries of the Constitutional Court’s jurisprudence ... si statistici/Buletin 2014... ·...

Summaries of the Constitutional Court’s jurisprudence during the first half of 2014

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Summaries of the Constitutional Court’s jurisprudence13 during the first half of 2014

From 1 January 2014 to 30 June 2014, the Constitutional Court has settled 541 case‐

files, rendering 388 decisions. Time for the constitutional review/Power in the exercise of which the decisions were

rendered In this respect we mention the following: – 10 decisions were delivered following the a priori constitutional review, respectively

in the exercise of the power provided for in Article 146 a) of the Constitution – the constitutional review of laws before promulgation;

– 370 decisions were delivered following the a posteriori constitutional review, in the exercise of the power provided for in Article 146 d) of the Constitution – settlement of the exception of unconstitutionality of laws and ordinances.

Apart from the powers relating to the constitutional review of laws (a priori or a posteriori) and ordinances (a posteriori), the Court also delivered:

– 5 decisions in exercising the power provided for in Article 146 e) of the Constitution – settlement of legal disputes of a constitutional nature between public authorities;

– 1 decision in exercising the power provided for in Article 146 k) of the Constitution – settlement of the claims having as object the constitutionality of a political party;

– 3 decisions under Article 146 l) of the Constitution and Articles 27 – 28 of Law no. 47/1992 on the organization and operation of the Constitutional Court – the constitutional review of the decisions of the Plenary Assembly of the Chamber of Deputies/Senate/joint Chambers of the Parliament.

Solutions pronounced: By the above‐mentioned documents, the following solutions have been delivered: – 9 solutions of admission of the objection/exception/referral/request; – 273 solutions of rejection as unfounded of the objection/exception/ referral/

request; – 64 solutions of rejection as inadmissible/having become inadmissible of the

objection/exception/referral;

13 Heading by: Marieta Safta, First Assistant Magistrate, Benke Karoly, Assistant‐Magistrate‐in‐chief, Valentina

Bărbățeanu, Andreea Costin, Ionița Cochințu, Irian Loredana Gulie, Patricia Ionea, Fabian Niculae, Simina Popescu, Ingrid Tudora, Laura Afrodita Tutunaru, Assistant‐Magistrates, and Violeta Ştefania Țigănescu, expert.

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– 42 mixt solutions – of rejection as inadmissible/having become inadmissible/ unfounded/partially granted, as the case may be, of the exception/referral of unconstitutionality.

Authors of the referrals The authors of the objections/exceptions/referrals settled during the reference period: – 3 referrals by the President of Romania; – 4 referrals by MPs or the presidents of the two Chambers of Parliament; – 1 request by the President of the Superior Council of Magistracy; – 4 referrals by the Advocate of the People; – 529 referrals by the courts/parties to the proceedings.

I. Constitutional review of initiatives purporting a revision of the Constitution [second sentence of Article 146 a) of the Constitution]

Decision no. 80 of 16 February 2014 on the legislative proposal concerning the revision of the Constitution of Romania, published in the Official Gazette of Romania, Part I, no. 246 of 7 April 2014

Full text

1. The case at issue concerns the examination ex officio of the legislative proposal for the revision of the Constitution of Romania, case that constitutes the subject matter of Case‐file no. 95A/2014 of the Constitutional Court.

2. The legislative proposal for the revision of the Constitution, signed by 108 Senators and 236 Deputies, has been forwarded by the president of the Senate through Letter no. 191 of 7 February 2014, registered with the Constitutional Court under no. 520 of 7 February 2014.

3. The Senators who signed the legislative proposal for the revision of the Constitution are the following: […]

4. The Deputies who signed the legislative proposal for the revision are the following: […]

5. The legislative proposal for the revision of the Constitution has the following wording: “Sole Article. — The Constitution of Romania, republished in the Official Gazette of

Romania, Part I, no. 767 of 31 October 2003, shall be amended and supplemented as follows:

1. In Article 1, after paragraph (1), a new paragraph shall be inserted, paragraph (11), which reads as follows:

“(11) Romania recognizes the historical role in the establishment and modernization of the Romanian State of the Orthodox Church and of the other religious denominations recognized by the law, of the Royal House and the national minorities.”



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“(21) Human dignity is the source of all fundamental rights and freedoms and shall be inviolable. All forms of public authority must respect and protect human dignity.”

3. Paragraph (3) of Article 3 shall be amended as follows: “(3) The territory is organised, administratively, into communes, towns, counties and

regions. Some towns are declared municipalities according to the provisions of the law.” 4. After paragraph (3), a new paragraph shall be inserted, paragraph (31), which reads

as follows: “(31) By organic law, traditional areas may be recognized as administrative subdivisions

of regions.” 5. In Article 4, paragraph (2) shall be amended as follows: “(2) Romania is the common and indivisible homeland of all its citizens. Any

discrimination based on sex, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership to a national minority, property, birth, disability, age or other status shall be prohibited.”


“(11) The legal representatives of national minorities may establish, according to the statute of national minorities adopted by law, their decision‐ making and executive bodies with competences concerning the right to preserve, develop and express their identity.”

7 In Article 6, after paragraph (2), a new paragraph shall be inserted, paragraph (21), which reads as follows:

“(21) Decisions of central and local public authorities on the preservation, development and expression of their ethnic, cultural, linguistic and religious identity are taken after consultation with the national minorities’ organisations.”

8. Article 7 shall be amended as follows: “The State shall support the strengthening of ties with the Romanians living abroad and

shall act to preserve, develop and ensure free expression of their ethnic, cultural, linguistic and religious identity, in compliance with the laws of the State whose citizens they are or where they are located, as well as with international law.”

9. Article 10 shall be amended and supplemented as follows: “(1) Romania shall foster and develop peaceful relations with all the States, and, in this

context, good neighbourly relations, as well as with the other subjects of international law and, as part of its foreign policy, it acts to achieve national interest, based on mutual respect and in accordance with the principles, the international treaties it is a party to and with other generally recognized rules of international law.

(2) Romania is a Member State of the European Union.” 10. Paragraph (1) of Article 12 shall be amended as follows: “(1) The flag of Romania is tricolour with the country’s coat of arms on the yellow

background; the colours are arranged vertically in the following sequence from the flag‐pole: blue, yellow, red.”


“(41) National minorities may freely use, in public and private areas, their own symbols that represent their ethnic, cultural, linguistic and religious identity.”

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12. Paragraph (1) of Article 15 shall be amended as follows: “(1) Romanian citizens are born free and live freely, they enjoy the rights and freedoms

guaranteed and established by the Constitution and other laws and are subject to the obligations laid down therein.”

13. Paragraph (4) of Article 16 shall be amended as follows: “(4) European Union’s citizens who comply with the requirements set out in the organic

law shall have the right to vote and stand for election as members of the local public administration authorities.”

14. Paragraphs (3) and (4) of Article 21 shall be amended as follows: “(3) Parties shall be entitled to a fair trial and to have their case solved within an

optimum and foreseeable time. (4) Administrative special jurisdictions are free of charge.” 15. Paragraphs (4) and (8) of Article 23 shall be amended as follows: “(4) Only exceptionally and based on duly substantiated reasons, search and trial

proceedings in criminal cases shall be conducted with deprivation of liberty of the person concerned. Pre‐trial detention is ordered by the judge of the court of law that has jurisdiction to hear the merits of the case, under the conditions set by law and only in the course of the criminal trial, after the initiation of the criminal proceedings.

[...] (8) Anyone taken to the police station, detained or arrested shall be promptly informed,

in a language that (s)he understands, of the reasons for him/her being taken to the police station, detained or arrested, and notified of the charges against him/her as soon as possible; the notification of the charges shall be made only in the presence of a lawyer of his/her own choosing or appointed ex officio.”


“(131) The use of illegally obtained evidence shall be forbidden, unless where these are in favour of the accused.”

17. Paragraph (2) of Article 24 shall be amended as follows: “(2) The parties shall have the right to be assisted, throughout the proceedings, by a

lawyer of their own choosing or appointed ex officio and to have adequate time and facilities to prepare their defence.”


“(21) The principle of equality of arms between prosecution and defence shall be guaranteed throughout the criminal proceedings.”

19. Article 26 shall be amended as follows: “Personal, family, private life and personal data (1) Public authorities shall guarantee the right to personal, family and private life. (2) Any natural person has the right to freely dispose of himself/herself unless (s)he

thereby encroaches upon the rights and freedoms of others or on public order.


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(3) Public authorities shall guarantee the right to protection of personal data and are bound to take measures to protect such data.

(4) Compliance with the provisions of paragraph (3) is subject to review by an autonomous authority.”

20. Paragraph (3) of Article 27 shall be amended as follows: “(3) Searches shall only be ordered by a judge of the court competent to decide on the

merits of the case and shall be conducted under the terms and in the forms stipulated by law.” 21. Article 28 shall be amended as follows: “(1) Secrecy of letters, telegrams and other postal communications, of telephone

conversation, of other types of communications using electronic devices, of traffic data, location data and of any other legal means of communication is inviolable and guaranteed.

(2) The retention, remission or search of postal communications, wire taping, ambient taping, computer search and access to a computer system or to a computer data storage device, the finding of computer data, including of traffic data and location data, the identification of the subscriber, owner, user of an electronic communication system or of an access point to a computer system or similar techniques are ordered by the judge of the court competent to rule on the merits of the case and only during the criminal trial.”

22. Article 29 (4) shall be amended as follows: “(4) Any form, means, act or action of religious enmity shall be forbidden.” 23. Article 30 (3), (5), (7) and (8) shall be amended as follows: “(3) Freedom of expression also includes the freedom to establish mass media. [...] (5) Mass media are bound to publicly declare their financing sources and shareholding

structure. The declaration procedure shall be established by law. [...] (7) Defamation of the country and nation, desecration of the national flag, 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 morals are prohibited by law.

(8) Civil liability for any information or creation made public falls upon the author, the person who exercises editorial responsibility or the mass medium, as applicable, subject to the law. Indictable offences of the press shall be established by law.”

24. In Article 31, after paragraph (2) a new paragraph is inserted, paragraph (21), which reads as follows:

“(21) Draft legislation to be adopted by public authorities and institutions, with the exception of those of emergency nature under the law, shall be subject to public debate, at least 30 days prior to their adoption.”

25. Article 31 (5) shall be amended as follows: “(5) Public radio and television services, as well as public press agencies, shall be

autonomous. They must guarantee the exercise of the right to broadcasting time for all significant social and political groups. The organisation of these press services and agencies, as well as parliamentary oversight of their activity, are laid down by an organic law.”

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26. Article 32 shall be amended as follows: “Right to education (1) Access to education is guaranteed, in accordance with the law. (2) The right to education is guaranteed, in accordance with the law, and ensured by

pre‐school education, compulsory general education, higher education, as well as by other forms of training and advanced studies provided for by law.

(3) Education shall be directed to the full development of the human personality and to the strengthening of the respect for fundamental rights and freedoms.

(4) General education shall be conducted in Romanian. Under the terms of the law, education may also be conducted in a foreign language of international use.

(5) The right of persons belonging to national minorities to learn their mother tongue, and their right to be taught in this language are guaranteed; the ways to exercise these rights shall be determined by law.

(6) Public education shall be free, according to the law. The State shall grant social scholarships to children or young persons coming from underprivileged families, and to those institutionalised, as well as merit scholarships, as stipulated by law.

(7) Education provided at all levels is conducted in public, private, or confessional schools, according to the law, in compliance with the quality standards in education for each level and form of education.

(8) The autonomy of universities is guaranteed. The autonomy of universities involves the capacity of higher education institutions to manage their heritage directly and immediately, to independently choose or, where appropriate, appoint their management structures and positions and to establish, according to the legal provisions and quality standards, their educational and research mission.

(9) The State shall ensure the freedom of religious education, in accordance with the specific requirements of each religious denomination. In public schools, religious education is organized and guaranteed by the law.”

27. In Article 33, a new paragraph shall be inserted after paragraph (1), paragraph (11), which reads as follows:

“(11) The national cultural legacy made up of the immovable cultural legacy, the movable cultural legacy and the intangible cultural legacy is the element of durability of the national identity and cultural legacy and it is protected by law.”

28. Article 33 (3) shall be amended as follows: “(3) The State must ensure the preservation of spiritual identity, the support of national

culture, the fostering of arts, the protection and conservation of cultural heritage, the development of contemporary creativity, and the promotion of Romania’s cultural and artistic values throughout the world.”


“(31) The State shall promote the diversity of cultural expression at national level and shall encourage intercultural dialogue.”

30. In Article 35, two new paragraphs shall be inserted after paragraph (2), paragraphs (21) and (31), which read as follows:


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“(21) The State shall ensure protection, sustainable use and restoration of the natural heritage.

(31) Cruelty to animals, defined in accordance with the law, shall be prohibited.” 31. In Article 37, a new paragraph shall be inserted after paragraph (2), paragraph (21),

which reads as follows: “(21) Only candidates who have had their residence in Romania at least six months

before the elections may participate in the elections for the Senate, the Chamber of Deputies and the office of President of Romania.”

32. Article 38 shall be amended as follows: “Romanian citizens have the right to vote and to stand as candidates in the elections for

the European Parliament, in accordance with the law and in compliance with the provisions of the European Union Treaties.”

33. Article 40 (2) shall be amended as follows: “(2) The political parties or organizations which, by their aims or activity, militate

against political pluralism, respect for human rights and fundamental freedoms, the rule of law, sovereignty, integrity or independence of Romania shall be unconstitutional.”

34. Article 41 (2) and (4) shall be amended as follows: “(2) Persons conducting an activity based on an employment contract have the right to

measures of social protection. These concern the safety and health at work, the working conditions for women and young persons, the setting up of a minimum gross salary per economy, weekly rest periods, paid rest leave, work performed under difficult or special conditions, training courses, as well as other specific conditions determined by law.

[...] (4) For equal work with men, women shall get equal pay.” 35. Article 44 (1) shall be amended as follows: “(1) The right to property and the debts incurring on the State shall be guaranteed. The

debts incurring on the State shall have the same legal regime as the payment of tax obligations, in accordance with the law.”

36. Article 48 (1) shall be amended as follows: “(1) The family shall be based on the freely consented marriage of the spouses, on their

full equality and on the parents’ right and duty to ensure the upbringing, education and instruction of their children, while respecting the principle of the best interests of the child.”

37. Article 49 (1) and (2) shall be amended as follows: “(1) Children and young persons shall enjoy special protection and assistance in the

pursuit of their rights, while respecting the principle of their best interests.” (2) The State shall grant allowances for children, and aids for the care of ill or disabled

children. Other forms of social protection for children and young persons are shall be established by law.”

38. Article 50 shall be amended as follows: “Protection of disabled persons Disabled people shall enjoy all human rights and fundamental freedoms, with equal

opportunities. The State must ensure the implementation of a national policy for equal opportunities and inclusion, prevention and treatment so that disabled persons can

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effectively participate in the life of the community, in keeping with the rights and duties of their parents or legal guardians.”

39. A new article shall be inserted after Article 51, Article 511, with the following title and content:

“The right to good administration Everyone has the right to be treated, in their relations with the public administration,

with impartiality and fairness, as well as to obtain, within a reasonable time, a reply to their requests.”

40. Article 52 (1) and (3) shall be amended as follows: “(1) Any person aggrieved by a public authority in their rights or legitimate interests

through an administrative act or failure, by the public authority, to solve their request within the time‐limits established by law is entitled to obtain the acknowledgement of their claimed right or legitimate interest, the invalidation of such act and reparation for the damage suffered by means of a fair compensation.

[...] (3) The State shall bear pecuniary liability for any damage caused by a miscarriage of justice.

The State liability is determined according to the law and shall not eliminate fault liability of the magistrates having exercised their vested powers in ill‐faith or gross negligence. The State shall exercise its right to sue for compensation, in accordance with the law.”

41. Article 53 (2) shall be amended as follows: “(2) Such restriction shall only be ordered if necessary in a democratic society. The

measure must be proportional to the situation having caused it and applied in a non‐discriminatory manner, for a limited period and it must be lifted once the situation which has generated it has ceased, without prejudice to the existence of such right or freedom.”


“(31) Romania is a member of the North Atlantic Treaty Organisation.” 43. Paragraph (1) of Article 58 shall be amended as follows: “(1) The Advocate of the People is an independent institution whose purpose is to

promote and protect the rights and freedoms of citizens in their relations with public authorities.”


“(11) The Advocate of the People shall be appointed for a term of office of 5 years. The deputies of the Advocate of the People are specialized per fields of activity. The term of office of the Advocate of the People shall cease before its expiry in case of resignation, incompatibility with other public or private offices, impossibility to exercise his powers for more than 90 days or in case of death.”

45. Paragraph (2) of Article 61 shall be amended as follows: “(2) Parliament consists of the Senate and the Chamber of Deputies.” 46. Article 62(1) and (3) shall be amended as follows: “(1) The Senate and the Chamber of Deputies shall be elected by universal, equal,

direct, secret and free suffrage, in accordance with the election law.


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[...] (3) The number of Deputies cannot be greater than 300. The representatives of national

minorities are to complete this number.” 47. Article 63 (1) and (2) shall be amended as follows: “(1) The Senate and the Chamber of Deputies are elected for a term of office of 4 years,

which may be extended as of right in the event of mobilization, war, siege, or emergency, until such event has come to an end.

(2) Elections to the Senate and the Chamber of Deputies shall be held within 3 months at the most from the expiry of the term of office or Parliament dissolution.”

48. Article 64 (2) and (3) shall be amended as follows: “(2) Each Chamber shall elect its Standing Bureau. The President of the Senate and the

President of the Chamber of Deputies shall be elected for the duration of the Chambers’ term of office. The other members of the Standing Bureaus shall be elected at the opening of each session. The members of the Standing Bureau may be dismissed before the expiry of the term of office.

(3) Senators and deputies may be organised into parliamentary groups, according to the Standing Orders of each Chamber. The parliamentary groups of political parties or formations that participated in the elections are constituted at the beginning of the parliamentary term. No new parliamentary groups can be constituted during the parliamentary term.”


[…] “(41) Any person of public law, private legal person and individual must appear, directly

or through legal representative, before a parliamentary committee, following a written invitation from the latter, except for magistrates. The activity of the parliamentary committee cannot substitute for judicial bodies.”

50. Article 64 (5) shall be amended as follows: “(5) The Standing Bureau and parliamentary Committees shall be made up so as to

reflect the political spectrum of each Chamber as resulted from the elections.” 51. Article 65 (1) and (2) shall be amended as follows: “(1) The Senate and the Chamber of Deputies meet in separate sittings. (2) The Chambers may also meet in joint sessions, based on the regulations passed by a

majority vote of all Senators and Deputies, in order to: a) receive messages from the President of Romania; b) suspend the President of Romania from office; c) approve the State budget and the State social security budget; d) grant the vote of confidence to the Government; e) debate and vote on motions of censure; f) hold the Government responsible under the terms of Article 114 of the Constitution; g) approve Romania’s national strategy of homeland defence; h) declare general or partial mobilization; i) declare a state of war;

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j) suspend or terminate armed hostilities; k) fulfil any other prerogative, which, in accordance with the Constitution, is exercised in

a joint session.” 52. Article 66 (1) and (2) shall be amended as follows: “(1) The Senate and the Chamber of Deputies shall meet in two ordinary sessions every

year. The first session begins in February and cannot exceed the end of June. The second session begins in September and cannot exceed the end of December.

(2) The Senate and the Chamber of Deputies may also meet in extraordinary sessions, at the request of the President of Romania, of the Standing Bureau of each Chamber, or of at least one third of all Senators or Deputies.”

53. Article 67 shall be amended as follows: “The Senate and the Chamber of Deputies shall pass laws, and carry resolutions and

motions, in the presence of the majority of their members.” 54. A new article shall be inserted after Article 67, Article 671, named and worded as

follows: “Powers in the field of EU affairs (1) The Senate and the Chamber of Deputies shall verify compliance with the principles

of subsidiarity and proportionality of the draft legislation at the level of the European Union in accordance with the European Union’s founding Treaties, as determined by the organic law.

(2) The Senate and the Chamber of Deputies are engaged in formulating Romania’s positions within the decision‐making process at the level of the European Union.

(3) In order to carry out the powers referred to in paragraphs (1) and (2), the Senate and the Chamber of Deputies shall adopt by‐laws by majority vote of the members present.”

55. The name of Section 2 shall be amended as follows: “Statute of Senators and Deputies” 56. Article 69 (1) shall be amended as follows: “(1) In the exercise of their mandate, Senators and Deputies shall be in the service of

the people.” 57. Article 70 shall be amended as follows: “Term of office of Senators and Deputies (1) Senators and Deputies shall begin the exercise of their office on the day the

Chamber whose members they are has lawfully met, provided that the election is validated and the oath is taken. The form of the oath is established by an organic law.

(2) The capacity as Deputy or Senator shall cease: a) when the newly elected Chambers have lawfully convened; b) in case of resignation; c) in case of disenfranchisement; d) in case of incompatibility; e) on the date of resignation from the political party or formation on behalf of which (s)he

was elected or on the date of his/her registration to another political party or formation; g) in case of death.”


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58. Article 71 (1) and (2) shall be amended as follows: “(1) No one may be a Senator and a Deputy at the same time. (2) The capacity as Senator or Deputy is incompatible with the exercise of any public

office in authority, except that of a Member of the Government.” 59. Article 72 shall be amended as follows: “(1) No Senator or Deputy shall be held legally responsible for the votes cast or the

political opinions expressed in the exercise of their office. (2) Senators and Deputies may be object to criminal investigation or criminally

prosecuted for acts that are not related to the votes or political opinions expressed in the exercise of their office. Senators and Deputies shall not be searched, detained or arrested without the consent of the Chamber whose members they are, after being duly heard.

(3) In case of a crime committed in flagrante delicto, Senators or Deputies may be taken into temporary custody and searched. The Ministry of Justice shall forthwith inform the President of the Chamber in question on such custody and search. Where the Chamber concerned finds no reasons for detainment, it shall order that the measure be cancelled out at once.”

60. In Article 73 (3), point e) shall be amended as follows: “e) the organisation of the Government and of the National Security Council;”. 61. In Article 73 (3), four new points shall be inserted after point i), points i1), i2), i3)

and i4), as follows: “i1) the statute of legal professions; i2) the statute of the National Bank of Romania; i3) the organisation and functioning of the Constitutional Court of Romania; i4) the organisation and functioning of the Court of Audit;”. 62. Article 74 (1) and (4) shall be amended as follows: “(1) Legislative initiative shall lie, as the case may be, with the Government, Deputies,

Senators, or at least 75,000 citizens holding the right to vote. The citizens who exercise their right to initiate legislation must belong to at least one quarter of the country’s counties, while, in each of those counties or in the Municipality of Bucharest, at least 5,000 signatures should be registered in support of such initiative.

[...] (4) Senators, Deputies and citizens exercising the right of legislative initiative may

present proposals only in the form required for bills.” 63. Article 75 (1)‐(4) shall be amended as follows: “(1) Legislative initiatives are subject to debate and adoption in the Senate, as first

competent Chamber, except for those related to the organisation of local public administration, to territory, as well as to the general regime on local autonomy, including those regarding the granting of external loans and those whose regulatory object are the legislative measures resulting from the application thereof, for which the Chamber of Deputies is the primary Chamber referred to.

(2) The primary Chamber thus referred to shall decide within 30 days. For codes and other particularly complex laws, the time limit will be of 45 days. If such time limits are exceeded, the bills or legislative proposals shall be deemed as having been passed.

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(3) The Senate shall appoint or elect, as appropriate, under the conditions set by law or by its own Standing Orders:

a) the Advocate of the People; b) the president and the section presidents of the Legislative Council; c) the advisers of the Court of Audit; d) the president of the Social and Economic Council; e) the directors of intelligence services; f) the representatives of any other public authority or institution under parliamentary

control. (4) The Senate shall exercise parliamentary control over all public authorities or

institutions referred to in paragraph (3), according to its Standing Orders.” 64. Article 75 (5) shall be repealed. 65. A new paragraph shall be inserted after Article 75 (5), paragraph (51), which reads

as follows: “(51) In the case of legislative initiatives subject to debate in the joint sessions of the

Senate and the Chamber of Deputies, as well as in the case of the adoption of the national security strategy, Parliament shall decide within 6 months, at the most, as of the time it was referred to.”

66. Article 76 (1) shall be amended as follows: “(1) Organic laws, laws that restrict the exercise of certain rights or freedoms, under the

terms of Article 53, as well as the resolutions on the Standing Orders of the Chambers shall be passed by a majority vote of the members of each Chamber.”


“(21) Legislative interventions on organic laws cannot be made by normative acts of a lower level.”

68. Article 77 (2) and (3) shall be amended as follows: “(2) Before promulgation, the President of Romania may return a law to Parliament for

reconsideration, and he may do so only once. (3) Where the President may have requested reconsideration of a law or where such

may have been subjected to a constitutionality review, promulgation shall follow within 10 days from the receipt of the law as is passed after reconsideration, or from the receipt of the decision ruled by the Constitutional Court acknowledging its constitutionality.”

69. In Article 78, a new paragraph shall be inserted, paragraph (11), which reads as follows:

“(11) Access to the electronic version of the Official Gazette of Romania is free of charge and it may not be restricted.”

70. Article 80 (1) and (2) shall be amended as follows: “(1) The President of Romania is the Head of State, he represents the Romanian State

and is the guarantor of national independence, unity and territorial integrity of the country. (2) The President of Romania shall see to the observance of the Constitution and the

proper functioning of the public authorities. To this effect, the President of Romania shall act as a mediator between State Powers as well as between the State and society.”


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71. The title of Article 81 shall be amended as follows: “Election of the President of Romania” 72. Article 82 (2) shall be amended as follows: “(2) The candidate whose election has been validated shall take, before the Senate and

the Chamber of Deputies, in a joint sitting, the following oath: ‘I solemnly swear to dedicate all my strength and the best of my abilities for the spiritual

and material welfare of the Romanian people, to abide by the Constitution and laws of the country, to defend democracy, the fundamental rights and freedoms of my fellow‐citizens, Romania’s sovereignty, independence, unity and territorial integrity. So help me God!’”

73. Article 83 (1) shall be amended as follows: “(1) The term of office of the President of Romania is of 4 years, and shall be exercised

from the date the oath was taken.” 74. Article 85 (1)—(3) shall be amended as follows: “(1) The President of Romania shall designate a candidate to the office of Prime

Minister and appoint the Government based on the Parliament’s vote of confidence. (2) In the event of government reshuffle or vacancy of office, the President of Romania

shall dismiss and appoint, upon proposal of the Prime Minister, after hearing the candidate before the specialized committees of Parliament, some Members of the Government.

(3) If, through the reshuffle proposal, the political structure or composition of the Government is changed, the President of Romania shall be entitled to exercise the power stipulated under paragraph (2) only based on the Parliament’s approval granted following the proposal of the Prime Minister.”


“(31) The President of Romania cannot refuse the proposal of the Prime Minster to revoke and appoint certain members of the Government.”

76. Article 87 (1) shall be amended as follows: “(1) The President of Romania may participate in the meetings of the Government debating

matters of national interest with regard to foreign policy, defence of the country, ensurance of public order, as well as in other instances, at the request of the Prime Minister.”

77. Article 89 (1) shall be amended as follows: “(1) After consultation with the presidents of both Chambers and with the leaders of

parliamentary political parties, formation or alliances, the President of Romania may dissolve the Parliament if it did not grant its vote of confidence for the investiture of the Government within 60 days after the first request, and only after rejection of at least three requests for investiture.”


“(11) The President of Romania shall also dissolve the Parliament in the event that a resolution to this effect is adopted by the vote of two thirds of the members of each Chamber.”

79. Article 90 shall be amended as follows: “(1) The President of Romania or at least 250,000 citizens with the right to vote may

request the people to express their will by referendum on issues of national interest, except on issues referring to the revision of the Constitution.

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(2) Citizens who initiate the organisation of the referendum must come from at least half of the country’s counties, and in each of these counties or in Bucharest at least 10,000 signatures must be registered in support of this initiative.

(3) The referendum shall be deemed valid if at least 30% of the persons registered in the electoral rolls participate in the referendum.”


“(11) The President shall represent Romania to the European Union meetings on EU foreign relations, common security policy, the amending or supplementing of the founding Treaties of the European Union.”

81. The name and paragraph (1) in Article 92 shall be amended as follows: “Powers in matters of national security (1) The President of Romania is the Commander‐in‐Chief of the Armed Forces and the

head of the National Security Council.” 82. Article 92 (2) shall be amended as follows: “(2) He may declare, with prior approval by Parliament, partial or general mobilization

of the Armed Forces. In exceptional cases only, the decision of the President of Romania may be subsequently submitted to Parliament for approval, but no later than 5 days of the adoption thereof.”

83. In Article 92, new four paragraphs shall be inserted after paragraph (4), paragraphs (5)—(8), which read as follows:

“(5) The President of Romania shall propose to the Senate the candidates for the position as head of the Romanian Intelligence Service and that as head of the Foreign Intelligence Service.

(6) The President of Romania shall appoint the Chief of General Staff, at the Defence Minister’s proposal, endorsed by the Prime Minister.

(7) Within up to 6 months after taking the oath, the President of Romania shall submit to Parliament the National Security Strategy.

(8) The President of Romania shall present each year a message to the Parliament on the state of the national security.”

84. Article 95 (1)‐(3) shall be amended as follows: “(1) In case the President of Romania has committed serious offences in violation of the

Constitution, he may be suspended from office by the Senate and the Chamber of Deputies, in joint sitting, by a majority vote of the Senators and Deputies, and after seeking opinion from the Constitutional Court. The President of Romania can give explanations before Parliament with regard to imputations brought against him.

(2) The proposal of suspension from office may be initiated by at least one third of the number of Senators and Deputies, and the President of Romania shall be immediately notified thereof.

(3) If the proposal of suspension from office has been approved, a referendum shall be held within 30 days in order to remove the President of Romania from office.”



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“(31) If the referendum for the removal from office is valid, but the proposal for removal does not meet a majority of 50% plus one of the votes validly cast, the Parliament shall be dissolved and early parliamentary elections shall be held within the following 45 calendar days. The provisions of Article 90 (3) shall apply accordingly.”

86. Article 96 shall be amended as follows: “(1) The Senate and the Chamber of Deputies may, in joint sitting, decide on the

impeachment of the President of Romania for high treason, with the vote of at least two‐thirds of the number of Senators and Deputies.

(2) The impeachment proposal may be initiated by a majority of Senators and Deputies and shall, without further delay, be notified to the President of Romania so that he can give explanations about the facts he is being held accountable for.

(3) From the date of impeachment up to his removal from office, the President of Romania shall be suspended as of right.

(4) Jurisdiction for trial belongs to the High Court of Cassation and Justice. The President of Romania shall be dismissed as of right on the date the court decision passing conviction is final.”

87. Article 98 (1) shall be amended as follows: “(1) In case of vacancy of the office of President of Romania, or if the President is

suspended from office or is temporarily unable to exercise his powers, the interim shall devolve, in this order, on the President of the Senate or the President of the Chamber of Deputies.”

88. Article 100 (2) shall be amended as follows: “(2) The decrees issued by the President of Romania in the exercise of his powers

provided under Article 91 (1) and (2), Article 92 (2) and (3), Article 93 (1), and Article 94 a), b) and d) shall be countersigned by the Prime Minister.”

89. Article 102 (1) shall be amended as follows: “(1) The Government shall, in accordance with its governing programme approved by

Parliament, ensure the implementation of the country’s domestic and foreign policy, and exercise the general management of public administration.”


“(31) The Government shall ensure representation of Romania at the meetings of the European Union institutions, except for those provided in Article 91 (11).”

91. Article 103 (1) and (3) shall be amended as follows: “(1) The President of Romania shall designate as candidate for the office of Prime

Minister a representative proposed by the political party or the political alliance having participated in the elections and having obtained the largest number of parliamentary seats, according to the official election result. If there are several political alliances that have participated in the elections and have obtained the same number of seats, the President of Romania shall designate as candidate for the office of Prime Minister the representative proposed by the political party or the political alliance having participated in the elections and having obtained the highest number of votes, according to official election result.

[...]

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(3) The programme and list of the Government shall be taken up for debate by the Senate and Chamber of Deputies, in joint sitting. Parliament shall grant its confidence to the Government by a majority vote of Senators and Deputies.”

92. In Article 103, three new paragraphs shall be inserted after paragraph (3), paragraphs (31)—(33), reading as follows:

“(31) If the candidate for the office of Prime Minister resigns from office, does not appear before Parliament for the vote of confidence within the prescribed period or does not obtain the vote of confidence, the President of Romania shall appoint as candidate for the office of Prime Minister the representative proposed by the political party or political having participated in the elections and having obtained the second highest number of parliamentary seats, according to official election result.

(32) If the second candidate for the office of Prime Minister resigns from office, does not appear before Parliament for the vote of confidence within the prescribed period or does not obtain the vote of confidence, the President of Romania shall appoint as candidate for the office of Prime Minister the representative proposed by a coalition of parliamentary political parties totalling the absolute majority of parliamentary seats, according to official election result.

(33) If the third candidate for the office of Prime Minister resigns from office, does not appear before Parliament for the vote of confidence within the prescribed period or does not obtain the vote of confidence, the President of Romania shall dissolve the Parliament.”

93. Article 104 (1) shall be amended as follows: “(1) The Prime Minister, the Ministers and the other Members of the Government shall

individually take an oath before the President of Romania, as provided under Article 82.” 94. Article 107 shall be amended as follows: “The Prime Minister (1) The Prime Minister shall head the Government and coordinate the activity of its

Members, while observing the powers incumbent on them. Likewise, he shall submit reports and statements concerning Government policies to the Senate or the Chamber of Deputies, and such shall be taken for debate with priority.

(2) The President of Romania cannot remove the Prime Minister from office. (3) Should the Prime Minister find himself in any of the situations stipulated under

Article 106, except for the removal from office, or where he is unable to exercise his powers, the President of Romania shall designate another Member of the Government as Acting Prime Minister, to discharge the Prime Minister’s powers until a new Government is formed. The interim during the Prime Minister’s impossibility to exercise powers shall cease if the Prime Minister resumes his activity within the Government.

(4) Provisions under paragraph (3) shall apply accordingly to the other Members of the Government, upon proposal by the Prime Minister, for a period of 45 days at the most.”

95. A new article shall be inserted after Article 107, Article 1071, with the following title and content:

“Powers in matters of national security The Prime Minister shall act as the Vice‐President of the National Security Council.”


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96. Article 108 (4) shall be amended as follows: “(4) Decisions and ordinances issued by the Government shall be signed by the Prime

Minister, countersigned by the Ministers who are bound to carry out their implementation, and shall be published in the Official Gazette of Romania. Failure to publish any of the decisions or ordinances causes their non‐existence. Decisions of a military nature shall be conveyed only to the institutions concerned.”

97. Article 109 (2) shall be amended as follows: “(2) Solely the Senate, the Chamber of Deputies and the President of Romania have the

right to demand criminal prosecution be taken against Members of the Government for acts committed in the exercise of their office. Where criminal proceedings have been requested, the President of Romania may decree suspension from office. Indictment of a Member of the Government shall result in his/her suspension from office. Jurisdiction for trial belongs to the High Court of Cassation and Justice.”

98. Article 110 (1) shall be amended as follows: “(1) The Government shall exercise its term of office until the investiture of the new

Government.” 99. Article 111 (1) shall be amended as follows: “(1) The Government and the other bodies of public administration must, within the

framework of parliamentary control of their activity, supply any information and document requested by the Senate, the Chamber of Deputies, or parliamentary committees, through their respective Presidents. Where a legislative initiative involves the amendment of the provisions of the State budget or of the State social security budget, the request for information shall be compulsory.”

100. Article 112 (2) shall be amended as follows: “(2) The Senate or the Chamber of Deputies may carry a simple motion expressing their

position as to a matter of domestic or foreign policy or, as the case may be, to a matter having been the subject of an interpellation.”

101. Article 113 (1), (2) and (4) shall be amended as follows: “(1) The Senate and the Chamber of Deputies may, in joint sitting, withdraw the

confidence granted to the Government, through a motion of censure carried by a majority vote of the Senators and Deputies.

(2) The motion of censure may be moved by at least one fourth of the total number of Senators and Deputies, and shall be notified to the Government upon the date of its tabling.

[...] (4) If the motion of censure is rejected, the Senators and Deputies who signed it cannot

table another one during the same session, except for the case where the Government assumes responsibility in conformity with Article 114.”

102. Article 114 (1) shall be amended as follows: (1) Only once during a parliamentary session, the Government may assume its

responsibility before the Senate and the Chamber of Deputies, in joint sitting, with respect to a programme, a statement of general policy, or a bill.”

103. Article 115 (6) shall be amended as follows: “(6) Emergency ordinances cannot be adopted in the fields of constitutional laws or on

the regime of offenses, penalties and execution thereof, nor may these affect the status of

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State fundamental institutions or any of the rights, freedoms and duties set forth in the Constitution, the electoral rights, or envisage any measures for the forcible transfer of assets into public property.”

104. Article 119 shall be amended as follows: “National Security Council (1) The National Security Council shall see to the organisation and unitary coordination

of activities concerning national security, participation in maintaining international security and in collective defence arrangements within the systems of military alliance, as well as in peace‐keeping or restoring missions.

(2) The National Security Council shall issue decisions that are binding for the public administration authorities and public institutions.

(3)The National Security Council shall submit activity reports to the Parliament annually or whenever requested.”

105. A new section shall be inserted after Article 119, section 11, named “The central public administration in the territory”, consisting of Article 1191 — “The Prefect and the Sub‐prefect”, as follows:

“Section 11 The central public administration in the territory Article 1191. — The Prefect and the Sub‐prefect (1) The Government shall appoint, in administrative‐territorial units, prefects and sub‐

prefects, under the law. (2) The prefect and the sub‐prefect are the local representatives of the Government and

they manage the decentralized public services of ministries and of the other central public administration bodies of administrative‐territorial units.

(3) The powers of the prefect and sub‐prefect shall be established by organic law. (4) There are no subordination relationships between prefects and sub‐prefects on the

one hand, local councils, mayors, county councils and their presidents, as well as regional councils and their presidents, on the other hand.

(5) The Prefect may challenge, before the administrative court, an act of the regional, county or local council, of the president of the county council, of the president of the regional council or of the mayor, if he deems it unlawful. The challenged act may be suspended only by the court competent under the law.”

106. Article 120 (1) shall be amended as follows: “(1) The public administration in the territorial‐administrative units shall be based on

the principles of decentralization, local autonomy and deconcentration of public services. The decentralization of public services is achieved, in compliance with the subsidiarity principle, by providing in full the financial resources needed for the exercise, in good conditions, of the powers transferred.”

107. Article 122 shall be amended as follows: “Regional and county authorities (1) The County Council and its president represent the public administration authority

responsible for coordinating the activities carried out by communal and town councils, in order to provide any public service of county interest.


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(2) The Regional Council and its president represent the public administration authority responsible for coordinating the activities carried out by county councils, in order to provide any public service of regional interest.

(3) The county council and regional council are elected and operate under the law. (4) The president of the County Council and the president of the Regional Council are

elected and fulfil their powers according to the law.” 108. Article 123 shall be repealed. 109. Article 126 (4) shall be amended as follows: “(4) The composition and the organization of the High Court of Cassation and Justice, as

well as the regulations as to its functioning are laid down by its organic law.” 110. The introductory part and point b) in Article 133 (2) shall be amended as follows: “(2) The Superior Council of Magistracy consists of 21 members, of whom: [...] b) 4 representatives of the civil society, specialists in the legal field, who enjoy high

professional and moral reputation, elected by the Senate; these shall only participate in plenary proceedings;”.

111. Article 133 (3) and (4) shall be amended as follows: “(3) The President of the Superior Council of Magistracy shall be elected for a non‐

renewable term of office of one year, from among the judges listed under point a) of paragraph (2).

(4) The length of the term of office of the members of the Superior Council of Magistracy shall be of 4 years.”


“(41) The magistrates elected as members of the Superior Council of Magistracy shall be removed from office by the general meetings of the courts or prosecutors’ offices that they represent, according to the special law of organisation and operation.”

113. Article 134 (1) shall be amended as follows: “(1) The Sections of the Superior Council of Magistracy shall submit proposals to the

President of Romania for the appointment of judges and public prosecutors, trainees excepted, according to the law. The Judges Section of the Superior Council of Magistracy shall manage exclusively the professional career of judges, whilst the Prosecutors Section of the Superior Council of Magistracy shall manage exclusively the professional career of prosecutors. The decisions issued by the Sections can be appealed against directly before the High Court of Cassation and Justice.”

114. Article 135 (2) shall be amended as follows: “(2) The State shall guarantee and promote increased competitiveness of the Romanian

economy by: a) freedom of economic activities, protection of fair competition, consumer protection,

the setting up of a favourable framework for the use of all the factors of production; b) protection of national interests in economic, financial and currency‐related activities; c) stimulation of national scientific and technological research, the arts, and the

protection of copyright;

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d) exploitation of the production resources with maximum economic efficiency and by granting non‐discriminatory access to all those interested;

e) economic development while safeguarding the environment and maintaining an ecological balance;

f) creation of all necessary conditions so as to increase the quality of life; g) implementation of regional development policies in compliance with the objectives

of the European Union.” 115. A new article shall be inserted after Article 137, Article 1371, with the following

title and content: “National currency and central bank (1) The National Bank of Romania is the central bank of the Romanian State, an

autonomous public authority, whose powers, administration and operation shall be regulated by law, in accordance with the international legal rules arising from the treaties to which Romania is a party.

(2) In exercising its powers, the National Bank of Romania may not seek or receive instructions from any State authority or institution.

(3) The central bank has the right to issue legal tenders in Romania. (4) According to the founding Treaties and the European Union legislation, the following

can be regulated by an organic law: a) transfer of powers of the National Bank of Romania to the European Central Bank; b) recognition of circulation and replacement of the national currency with the Euro.” 116. Article 138 (1) and (2) shall be amended as follows: “(1) The National Public Budget shall comprise the State budget, the State social

security budget, and the local budgets of communes, towns, counties and regions. (2) The Government shall prepare the drafts for the State budget and for the State

social security budget on an annual or multiannual basis, and such are submitted to EU institutions, after prior notification of the Parliament on their content.”

117. Article 140 (3)—(6) shall be amended as follows: “(3) At the request of the Senate or the Chamber of Deputies, the Court of Audit shall

review the management of public resources, and report on its findings. (4) Audit advisers shall be appointed by the Senate for a term of office of 9 years, which

cannot be extended or renewed. Members of the Court of Audit shall be independent in the exercise of their term of office and irremovable throughout its duration. They shall be subject to the incompatibilities as stipulated by law for judges.

(5) Every 3 years, the Court of Audit shall be renewed with one third of the audit advisers appointed by the Senate, under the terms laid down in the Court’s organic law.

(6) The Senate shall be entitled to remove members of the Court of Audit from office, in the instances and under the terms stipulated by law.”

118. Article 142 (3) shall be amended as follows: “(3) Three Judges are appointed by the Senate, three by the Chamber of Deputies, and

three by the President of Romania.”


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119. Article 146 b) and e) shall be amended as follows: “b) to adjudicate on the constitutionality of treaties or other international agreements,

ex officio or upon referral by the President of either of the Chambers, at least 25 Senators or at least 50 Deputies;

[...] e) to settle legal disputes of a constitutional nature between public authorities, at the

request of the President of Romania, the President of either of the Chambers, the Prime Minister, or the President of the Superior Council of Magistracy;”.

120. Article 146 l) shall be repealed. 121. The name of Title VI shall be amended as follows: “Romania’s membership to the European Union and to the North Atlantic Treaty

Organisation” 122. Article 148 (1) and (2) shall be amended as follows: “(1) Ratification of treaties amending or supplementing the founding Treaties of the

European Union, as well as treaties amending or supplementing the North Atlantic Treaty shall be made by a law adopted in a joint sitting of the Senate and the Chamber of Deputies, by a majority vote of two‐thirds of the number of Senators and Deputies.

(2) Romania shall ensure compliance, within its national legal order, with the European Union law, according to the obligations undertaken under the Act of Accession and the other Treaties signed within the European Union.”

123. Article 149 shall be repealed. 124. Article 150 (1) shall be amended as follows: “(1) The revision of the Constitution may be initiated by the President of Romania at the

proposal of the Government, by at least one quarter of all Senators or Deputies, as well as by at least 500,000 citizens having the right to vote.”

125. Article 151 (1) and (2) shall be amended as follows: “(1) The bill or proposal for revision must be adopted by the Senate and by the

Chamber of Deputies, by a majority of at least two‐thirds of the members of each Chamber. (2) If no agreement can be reached following the mediation procedure, the Senate and

the Chamber of Deputies shall, in joint sitting, decide by the vote of at least three‐quarters of the number of Senators and Deputies.”

126. Article 151 (3) shall be amended as follows: “(3) Revision shall be final after approval by a referendum held within 30 days of the

date of enactment of the bill or proposal for revision. The provisions of Article 90 (3) shall apply accordingly.”

127. Article 154 (2) shall be amended as follows: “(2) The Legislative Council shall, within 3 months after the entry into force of the law

for the revision of the Constitution, examine the compliance of the legislation with this Constitution, and shall accordingly forward proposals to Parliament or Government, as may be applicable.”

128. Article 155 (4)—(6) shall be repealed. 6. Having debated the legislative proposal for the revision of the Constitution during the

proceedings of 14, 15 and 16 February 2014,

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THE COURT, having examined the legislative proposal for the revision of the Constitution, the report

drawn up by the judge‐rapporteurs, the provisions of the Constitution, as well as the provisions of Law no. 47/1992 on the organisation and functioning of the Constitutional Court, holds the following:

7. The power of the Constitutional Court to settle the present case is laid down by the provisions of the final sentence of Article 146 a) of the Constitution, according to which the Constitutional Court decides, ex officio, on initiatives purporting a revision of the Constitution.

8. In exercising this power, the Constitutional Court adjudicates on the compliance with the formal and substantive constitutional requirements on the revision of the Constitution, set forth in Title VII of the Basic Law — “Revision of the Constitution”, conditions concerning the initiative and the limits of the revision.

The initiative purporting a revision of the Constitution 9. According to Article 150 (1) of the Constitution, “A revision of the Constitution may be

initiated by the President of Romania at the proposal of the Government, by at least one quarter of all Deputies or Senators, as well as by at least 500,000 citizens having the right to vote.”

10. In this case, the legislative proposal purporting a revision of the Constitution is signed by a total of 108 Senators and 236 Deputies, i.e. by more than a quarter of all Senators and, respectively, Deputies. Therefore, the exercise of the right of legislative initiative for the revision of the Constitution was made in compliance with Article 150 (1) of the Constitution.

11. The legislative proposal purporting a revision of the Constitution is presented as a bill, accompanied by a statement of reasons and the Legislative Council’s Opinion no. 242 of 28 June 2013, registered at the Standing Bureau of the Senate under no. 429 of 28 June 2013

12. According to Letter no .429 of 7 February 2014 of the Joint Committee of the Chamber of Deputies and the Senate drafting the legislative proposal for the revision of the Constitution of Romania, whereby the legislative proposal for the revision of the Constitution was transmitted to the Standing Bureau of the Senate, it results that its wording is the one “finalised following the amendments brought as a result of the proposals made by the Legislative Council”.

Limits on matters of revision of the Constitution 13. Concerning the limits on matters of revision, Article 152 of the Constitution

provides: “(1) None of the provisions of this Constitution with regard to the national, independent, unitary and indivisible character of the Romanian State, the Republican form of government, territorial integrity, independence of the judiciary, political pluralism and official language shall be subject to revision.

(2) Likewise, no revision shall be possible if it leads to the suppression of any of the citizens’ fundamental rights and freedoms, or their safeguards.

(3) The Constitution may not be revised during a state of siege or a state of emergency, or at wartime.”

14. The cited text regulates requirements of intrinsic constitutionality of the initiative for revision [Article 152 (1) and (2)] and extrinsic constitutionality thereof [Article 152 (3)].


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15. In terms of extrinsic constitutionality, concerning the normality of the circumstances of revision of the Constitution, the text of Article 152 (3) of the Basic Law, which forbids revision of the Constitution during a state of siege or at wartime must be read in conjunction with that of the second sentence of Article 63 (4) of the Constitution, under which the Constitution cannot be revised during the time period in which the Chambers’ term of office extends until the new Parliament has lawfully convened.

16. The Court finds that, in the present case, none of the cases referred to in the aforementioned constitutional texts apply and, therefore, the requirements of extrinsic constitutionality of the initiative for revision have been complied with.

17. For these reasons, by unanimous vote, the Court finds that the legislative proposal for the revision of the Constitution was initiated in compliance with the provisions of Article 150 (1) of the Constitution.

18. In order to adjudicate on the intrinsic constitutionality, the Court must examine the amendments in relation to the provisions of Article 152 (1) and (2) of the Constitution, to determine whether or not the object of revision is the national, independent, unitary and indivisible character of the Romanian State, the Republican form of government, territorial integrity, the independence of the judiciary, political pluralism, or the official language, as well as whether or not the amendments lead to the suppression of any of the citizens’ fundamental rights and freedoms, or of their safeguards.

Examination of the amendments proposed in relation to the provisions of Article 152 of the Constitution

A. Title I — General principles Article 1 — The Romanian State 19. Through point 1 of the Sole Article of the legislative proposal for the revision of the

Constitution, a new paragraph is inserted after Article 1 (1) of the Constitution, paragraph (11), which reads as follows: “Romania recognizes the historical role in the establishment and modernization of the Romanian State of the Orthodox Church and of the other religious denominations recognized by the law, of the Royal House and the national minorities.”

20. The Court finds that the text quoted does not state a principle. The word “principle” signifies a fundamental element, and the general principles of a system are defined as representing a set of directories having in their subordination the structure and development of that system.

21. Within a Basic Law, the general principles represent the framework on which all its other norms are grafted. However, the recognition of the historical role of certain institutions, entities, persons cannot be regarded as having that meaning, but represents a statement which was intended to be given a certain importance by the initiators of the legislative proposal for the revision of the Constitution by its insertion in the Constitution. This can be achieved, possibly, in a preamble or a statement of reasons, not in the body of the Constitution and, even less, in its title dedicated to the general principles.

22. Moreover, by analysing the content of the text proposed to be introduced, the Court finds that it refers to the Orthodox Church and the other religious denominations recognized by law, being unclear why only one of these religious denominations, i.e. the Orthodox Church, is mentioned separately, while the other legally recognized religious

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denominations are not individualized. In addition, given that new religious denominations can always be recognized by law, setting, as a principle, a historic role thereof in the establishment and modernization of the Romanian State is unjustified.

23. Similarly, there is no justification in mentioning only the Royal House of all the entities that were instrumental in the establishment and modernization of the Romanian State.

24. In the same list, on an equal footing with the Orthodox Church, the other religious denominations and the Royal House, in terms of “historical role in the establishment and modernization of the Romanian State”, are mentioned the national minorities. No equality or similarity can be held between national minorities and the other entities found in the same text, including in terms of the role that the text refers to.

25. In conclusion, the text proposed to be inserted does not represent a general principle and is inaccurate in terms of content. That being so, by majority vote, the Court recommends its removal.

Article 2 — Sovereignty 26. After Article 2 (2) of the Constitution, point 2 of the Sole Article of the legislative

proposal for the revision of the Constitution introduces a new paragraph, paragraph (21), which reads as follows: “Human dignity is the source of all fundamental rights and freedoms and shall be inviolable. All forms of public authority must respect and protect human dignity”.

27. The Court finds that the insertion of this paragraph within Article 2 of the Constitution, on Sovereignty, is devoid of legal logic. Such text, which enshrines dignity as “source of all fundamental rights and freedoms”, would better fit under Title II of the Constitution — Fundamental rights, freedoms and duties, possibly in Chapter I — General provisions. This even more as Article 1 (3) of the Constitution, which remained unchanged, lists human dignity amongst the supreme values of the Romanian State, so that regulation of a separate text on the same, in the title dedicated to the General principles, appears as redundant.

28. For the reasons set forth above, by unanimous vote, the Court recommends the removal of paragraph (21) proposed to be inserted under Article 2 of the Constitution.

Article 3 — Territory 29. Points (3) and (4) of the Sole Article of the legislative proposal for the revision of the

Constitution amend Article 3 (3) of the Constitution by introducing a new paragraph, paragraph (31), as follows:

“(3) The territory is organised, administratively, into communes, towns, counties and regions. Some towns are declared municipalities according to the provisions of the law.

(31) By organic law, traditional areas may be recognized as administrative subdivisions of regions.”

30. Examining the provisions of the newly‐introduced paragraph (31), the Court finds that it is inconsistent with the preceding paragraph of the same article which, establishing the modality of organisation of the territory of Romania, lists, specifically and exhaustively, the categories of administrative‐territorial units: communes, towns, counties and regions. Paragraph (31) accepts the possibility of “recognition” of other structures apart from those


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exhaustively listed, the so‐called “traditional areas”, as “administrative subdivisions of regions”.

31. These structures have an unclear legal status since the phrase “traditional areas” lacks a definition, and their classification as “administrative subdivision” does not clarify their organisation and their relation with the “administrative‐territorial units” listed under the preceding paragraph of the same article.

32. Therefore, the word “traditional” in the name of the new administrative structures puts into question the criteria the infra‐constitutional legislator is to take into account for delineation thereof. The word “tradition” designates a set of concepts, customs, traditions and beliefs that are historically established within social or national groups and are transmitted (orally) from generation to generation and accounted as specific feature for each social group. So what would characterise and give the specificity of the “traditional” area are the common concepts, customs, traditions of a part of the Romanian population, which would assign it an identity distinct from the rest of the population. According to the initiators of the legislative proposal for the revision of the Constitution, this identity gives to the population group the ability to be “recognized”, i.e. identified within the population as a whole, with the consequence of granting a status and a distinct territorial administrative organization.

33. The Court also notes that such administrative structures put into question the national character of the Romanian State, trait which, according to Article 152 (1) of the Constitution, cannot be subject to revision. Unity of the nation, including in terms of traditions, is not compatible with the recognition of a distinct status for the purposes of administrative autonomy for part of the population of the country, on the basis of the identity of “traditions”.

34. The delineation of such “areas” and the acquiring of the status of administrative subdivisions, whereas the legal status of these structures is not defined in any way, induce the idea of territorial autonomy of some population groups solely on the basis of the aforementioned criterion. However, given that the administrative‐territorial organization requires regulation of public administration authorities and application of the principles of decentralization, local autonomy and diffusion of the public service, “recognition” of administrative areas is not reduced to a matter related to traditions, but it affects the administrative organization, economy, taxation, given the possibility of autonomous bodies to enact binding rules for the members of the community.

35. In conclusion, accepting another administrative‐territorial organization, with a substantiation different from that underlying the delineation of territorial‐administrative units expressly and exhaustively provided by the Constitution, is likely to affect the unitary character of the State, constituting also a violation revision limits.

36. For these reasons, by majority vote, the Court finds unconstitutional the supplementation of Article 3 of the Constitution with a new paragraph, paragraph (31), relating to the possibility of recognizing the traditional areas as administrative subdivisions of the regions, since it infringes the national and unitary character of the Romanian State, contrary to the provisions of Article 152 (1) of the Constitution.

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Article 6 — Right to identity 37. Two new paragraphs, paragraph (11) and paragraph (22) are inserted under Article 6

through the Sole Article (6) and (7) of the legislative proposal for the revision of the Constitution, as follows:

“(11) The legal representatives of national minorities may establish, according to the statute of national minorities adopted by law, their decision‐making and executive bodies with competences concerning the right to preserve, develop and express their identity.”

(21) Decisions of central and local public authorities on the preservation, development and expression of their ethnic, cultural, linguistic and religious identity are taken after consultation with the national minorities’ organisations.”

38. The Court notes that the newly‐introduced paragraph (11) permits the setting‐up of decision‐making and executive bodies of national minorities, separate from the State bodies. However, according to Article 1 (1) of the Constitution, Romania is a unitary state, and what characterises a unitary state is the existence of a single ensemble of institutions with political and legal discretion (a single legislative authority, a single executive authority, a single judicial authority).

39. Creation of “own decision‐making and executive bodies” of some communities of Romanian citizens, based on the status as “national minorities”, i.e. on ethnic criteria, is likely to cause confusion, accrediting the idea of autonomy of decision and execution thereof, incompatible with the concept of unitary state. In this way, each national minority may have own decision‐making and executive bodies whose status and relations with the decision‐making and executive bodies of the State is in no way defined, with the consequent achievement of a political collective autonomy on ethnic criteria.

40. Circumstantiation of the competence of these bodies only on the “right to preserve, develop and express the identity” of national minorities is not likely to lead to a conclusion different from the one stated above. This is because adoption of decisions on measures to ensure the right to identity of national minorities, as well as execution of these decisions, lies with all state bodies and not with some parallel own bodies of national minorities.

41. Conferring decisional autonomy to national minorities, as indicated above, appears as a privilege granted to them, in contradiction with the principle of equal rights between citizens, as well as with the provisions included in the same constitutional text which enshrine the right to identity and which establish that “Measures of protection taken by the Romanian State with a view to the preservation, development and expression of identity of persons belonging to national minorities must be consistent with the principles of equality and non‐discrimination as to the other Romanian citizens”.

42. For these reasons, by majority vote, the Court finds unconstitutional the supple‐mentation of Article 6 of the Constitution with a new paragraph, paragraph (11), permitting the legal representatives of national minorities to establish, pursuant to the statute of national minorities adopted by law, their own decision‐making and executive bodies, because it infringes the unitary character of the Romanian State, in contradiction with the provisions of Article 152 (1) of the Constitution.

43. With regard to the provisions of the newly‐introduced paragraph (22), the Court notes that a similar wording was proposed also during the 2011 initiative for the revision of


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the Constitution, formulated by the President of Romania, at the proposal of Government. On that occasion, through Decision no. 799 of 17 June 2011 on the bill for the revision of the Constitution of Romania, published in the Official Gazette of Romania, Part I, no. 440 of 23 June 2011, the Court held the following: “The new text, which provides the obligation incumbent on public authorities to consult the organisation of citizens belonging to national minorities on the decisions concerning the preservation, development and expression of their ethnic, cultural, linguistic and religious identity, gives expression to the State’s obligation to acknowledge and guarantee, as concerns this category of persons, the right to preserve, develop and express their identity, as provided by paragraph (1) of the same article, representing one of the means to guarantee the right referred to in the constitutional text. This amendment does not put into question any of the limits in matter of revision provided by Article 152 paragraphs (1) and (2) of the Constitution. The Court does however hold that regulation of means in which the State guarantees the right to identity of national minorities is not to be established in the Constitution, but in a law, because there is no justification to transform any of these guarantees into a constitutional principle. Should this regulation be maintained, in order to avoid that the decisions of organisation of citizens belonging to national minorities on preservation, development and expression of their ethnic, cultural, and religious identity contravene the principles of equality and non‐discrimination in relation to the other Romanian citizens, it should also be established these organisations’ obligation to consult in written the public authorities on the decisions they are about to adopt.”

44. Given that there is no justification for enshrining as constitutional principle such safeguard, the Court, by majority vote, recommends the removal of paragraph (22) proposed to be introduced under Article 6 of the Constitution.

Article 10 — International relations 45. Through point (9) of the Sole Article of the legislative proposal for the revision of the

Constitution, a new wording is given to Article 10 of the Constitution, as follows: “(1) Romania shall foster and develop peaceful relations with all the States, and, in this

context, good neighbourly relations, as well as with the other subjects of international law and, as part of its foreign policy, it acts to achieve national interest, based on mutual respect and in accordance with the principles, the international treaties it is a party to and with other generally recognized rules of international law.

(2) Romania is a Member State of the European Union.” 46. With regard to the provision of paragraph (2) of the cited text, the Court finds that

they do not enunciate a principle, but a finding as to the capacity of Romania as Member State of the European Union, which finds its place under Title VI of the Constitution — Romania’s membership to the European Union and to the North Atlantic Treaty Organisation, and not under Title I of the Constitution, enshrined to general principles.

47. Consequently, by unanimous vote, the Court recommends that this text be included under Title VI of the Constitution.

Article 12 — National symbols 48. A new paragraph is inserted through point (11) of the Sole Article of the legislative

proposal for the revision of the Constitution, paragraph (41), under Article 12 of the

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Constitution, as follows: “National minorities may freely use, in public and private areas, their own symbols that represent their ethnic, cultural, linguistic and religious identity.”

49. The Court notes that the provisions of the newly‐introduced paragraph (41) concern own symbols of national minorities and not “national symbols”, so that they cannot be placed under Article 12 of the Constitution of Romania, but, possibly, under Article 6, on the Right to identity. In the latter case, the text should be supplemented, in the sense of specifying that own symbols of national minorities can only be used next to national symbols of the Romanian State.

50. To accept the contrary, in the sense of introduction of this text under Article 12 of the Constitution, is to accept that also own symbols of national minorities are “national symbols”. Thus, given the wording of paragraph (41) and in lack to a specific indication on the obligation that own symbols be accompanied by national symbols, it would result that national minorities have a right of option between using own symbols and the national symbols of the Romanian State.

51. Consequently, by majority vote, the Court finds unconstitutional the supplementation of Article 12 of the Constitution with a new paragraph, paragraph (41), on the use of own symbols of national minorities, since it infringes upon the national character of the Romanian State, coming against the revision limits set forth in Article 152 (1) of the Constitution.

B. Title II — Fundamental rights, freedoms and duties Chapter I — General provisions Article 15 — Universality 52. Through point (12) of the Sole Article of the legislative proposal for the revision of

the Constitution, Article 15 (1) of the Constitution is amended, as follows: “Romanian citizens are born free and live freely, they enjoy the rights and freedoms

guaranteed and established by the Constitution and other laws and are subject to the obligations laid down therein”.

53. The Court finds that the current Article 15 (1) of the Constitution has a normative nature and it represents a text of principle which reunites citizens’ constitutional and legal individual rights, freedoms and duties. Introduction with regard to Romanian citizens of the phrase “are born free and live freely” has as reverse side the denial /exclusion of the concept enunciated also with regard to aliens or stateless persons. But this principle concerns a distinctive feature of man, of human condition, and not of citizen. In this regard, the Court invokes Article I of the Declaration of the Rights of Man and of the Citizen of 1789, which states that “Men are born and remain free and equal in their rights”, as well as Article 1 of the Universal Declaration of Human Rights, which states that “All human beings are born free and equal in dignity and rights”.

54. The Court finds that this principle is specific to declarations of rights, but declarations of rights are only proclamations, lacking both legal safeguards for their implementation, as well as a binding force in case of violation thereof. Thus, they do not contain actual rules of law, binding on all subjects of law; they are simple statements of principles, whose violation does not trigger a sanction from the State to restore the authority of the rule infringed and to repair the harm to subjects of law. They should not be


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confused with guarantees of rights that are secured by legally binding rules enshrined constitutionally.

55. Consequently, the Court holds, on the one hand, that the phrase proposed for insertion is not a regulatory text but a proclamation, and therefore there is no reason to have it included in the Constitution, and, on the other hand, the applicability of the principle proposed to be introduced in the Constitution is not to Romanian citizens, but also to aliens and stateless persons. In this context, the Court finds that the way in which the authors of the legislative proposal for the revision of the Constitution decided to insert it in the text of the Constitution is contrary to the principle of the rule of law set forth in Article 1 (3) of the Constitution. The principle of the rule of law represents the prerequisite of the values in consideration of which the specific revision limits have been established, which leads to the conclusion of an implicit incorporation thereof in the normative contents of Article 152 of the Constitution.

56. For these reasons, by unanimous vote, the Court finds unconstitutional the amendment to Article 15 (1) of the Constitution on the insertion of the phrase “Romanian citizens are born free and live freely”, since it infringes the revision limits set forth in Article 152 of the Constitution.

Article 21 — Free access to justice 57. Point (14) of the Sole Article of the legislative proposal for the revision of the

Constitution amends Article 21 (3) and (4) of the Constitution, as follows: “(3) Parties shall be entitled to a fair trial and to have their case resolved within an

optimum and foreseeable time. (4) Administrative special jurisdictions are free of charge.” 58. The Court notes that point 14 of the Sole Article proposes the amendment of Article

21 (3) of the Constitution in the sense of replacement of the term “reasonable time” with “optimum and foreseeable”. The Court notes that Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms uses the term “reasonable time”.

59. The reasonable time is an essentially variable concept, and its assessment is made according to the circumstances of the case, taking into account the complexity of the enforcement proceedings, the applicant’s own behaviour and that of the competent authorities, the amount and the nature of court award (see the Judgement of 15 February 2007, delivered in Case Raylyan v. Russia, § 31). Furthermore, the concept “reasonable time” must be viewed from the perspective of the citizen and of the state and must be assessed and determined from the concurrent analysis of general interests of society and those of citizens.

60. The Court considers that the terminology currently used in the Constitution is far more appropriate for a rule of constitutional status, it enshrines a guarantee of the right to a fair trial, namely reasonable time. The terminology proposed to be introduced is a development that is rather appropriate for introduction in a law of that constitutional guarantee. The optimum and foreseeable time is actually a component of the reasonable time, and the latter does not exclude, but rather involve, among other things, an optimum and foreseeable. Thus, if the “reasonable” time concerns the limit between compliance/violation of the right to a fair trial, the optimum and foreseeable time is a

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component ‐ which can be regulated at infraconstitutional level – of the reasonable time [see, to that effect, also the Framework Program “A new objective for judicial systems: the processing of each case within an optimum and foreseeable timeframe”, adopted on 15 September 2004 by the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe].

61. Furthermore, the Court notes that Article 6 of the Code of Civil Procedure regulates the optimum and reasonable time, while Article 8 of the Code of Criminal Procedure refers to reasonable time, both texts respect and regulate the constitutional guarantee of the right to a fair trial – the reasonable time.

62. In view of the above‐mentioned, by unanimous vote, the Court recommends removal of the amendment to Article 21 (3) of the Constitution.

63. The Court also notes that point 14 of the Sole Article proposes the amendment of Article 21 (4) of the Constitution, in the sense that special administrative jurisdictions are free of charge. According to the constitutional text in force, introduced by Law no. 429/2003 amending the Constitution of Romania, published in the Official Gazette of Romania, Part I, no. 758 of 29 October 2003, they are both optional and free of charge. Therefore, now the citizen can choose to directly address the courts or, at first, the special administrative jurisdiction, and subsequently, if dissatisfied with the solution, the courts.

64. The administrative‐jurisdictional proceedings constitute a measure of protection of the citizen, so that the existence of administrative bodies of jurisdiction cannot remove the intervention of courts. That is why the existence of special administrative jurisdictions is not unconstitutional ab initio (except where they establish a procedure that lacks celerity) and it is not contrary to Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (see the Judgement of 23 June 1981 delivered in Case Le Compte, van Leuven and de Meyere v. Belgium, § 51). However, they do not meet the requirements of an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention, so that their decisions should be subject to censorship of the courts; only in this way requirements set forth in the Constitution and in the Convention as concerns the right to a fair trial are complied with (see, to that effect, the case‐law of the European Court of Human Rights, for example, the Judgment of 9 January 2013 delivered in Case Oleksandr Volkov v. Ukraine, § 123).

65. Apart from the right to a fair trial, the Court finds that, while the 2003 derivative framers introduced the optional nature of these jurisdictions and thus has enabled citizens’ possibility to directly address the courts ‐ an expression of the right of free access to justice – free access to justice cannot be subsequently placed under certain conditions, through an amendment of the Constitution. The mandatory nature of administrative jurisdictions is a condition to such access and once eliminated after the 2003 revision of the Constitution, it cannot be reintroduced in the current constitutional regime, as it would amount to the unlimited possibility of the derivative framers to vary, firstly ascending and then descending the degree of protection of the citizen in terms of rights and freedoms. Such protection in the sense of Article 152 (2) of the Constitution can be subject solely to an ascending orientation

66. The Court notes that, at present, the optional nature of special administrative jurisdictions is a guarantee of access to justice, the choice ‐ electa una via ‐ belonging to


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citizens. Therefore, removal of the optional nature creates the potential imposition of mandatory administrative jurisdictions, which has the effect of excluding the possibility of citizens to choose between the two paths of access to courts, since the State will impose a single one result that implies a compulsory administrative‐jurisdictional procedure. Therefore, the proposed change is likely to suppress a guarantee of access to justice.

67. For these reasons, by unanimous vote, the Court finds unconstitutional the amendment to Article 21 (4) of the Constitution on the removal of the optional nature of special administrative jurisdictions, since it infringes the revision limits set forth in Article 152 (2) of the Constitution.

Chapter II — Fundamental rights and freedoms Article 23 — Personal liberty 68. Points (15) and (16) of the Sole Article of the legislative proposal for the revision of

the Constitution amend Article 23 (4) and (8) of the Constitution and introduce a new paragraph, paragraph (131), under the same article, as follows:

“(4) Only exceptionally and based on duly substantiated reasons, search and trial proceedings in criminal cases shall be conducted with deprivation of liberty of the person concerned. Pre‐trial detention is ordered by the judge of the court of law that has jurisdiction to hear the merits of the case, under the conditions set by law and only in the course of the criminal trial, after the initiation of the criminal proceedings.

[...] (8) Anyone taken to the police station, detained or arrested shall be promptly informed,

in a language that (s)he understands, of the reasons for him/her being taken to the police station, detained or arrested, and notified of the charges against him/her as soon as possible; the notification of the charges shall be made only in the presence of a lawyer of his/her own choosing or appointed ex officio”.

“(131) The use of illegally obtained evidence shall be forbidden, unless where these are in favour of the accused”.

69. Point (15) of the Sole Article proposes the amendment of Article 23 (4) of the Constitution in the sense of introduction of two sentences on pre‐trial detention measure.

70. As concerns the first sentence, the Court finds that the terms “search and trial proceedings” is improper, as the constitutional text should refer to the two phases of the criminal trial, the prosecution and the trial proceedings. However, insofar the criminal trial concept is used in the examined text itself, it becomes redundant to mention both phases thereof, as pre‐trial detention is, in principle, applicable in both phases.

71. Given the above, by unanimous vote, the Court recommends the rewording of the proposed amendment on the introduction of the first sentence under Article 23 (4) of the Constitution.

72. In respect of the second sentence, the Court finds that the rule is open to criticism given that a constitutional text is to refer to the functional, material jurisdiction, according to the capacity of the person, and the territorial jurisdictional of courts when it states that pre‐trial detention is ordered by the judge “of the court competent to rule on the merits of the case”, jurisdiction established based on criteria contained in a law (Article 35 et seq. of the Code of Criminal Procedure). Furthermore, the rule is unclear since it would result that solely

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the court with jurisdiction to hear the merits of the case can order pre‐trial detention, apparently excluding thus other situations that can occur during criminal proceedings. Thus, the judge of rights and freedoms, the preliminary proceedings judge or the judge that tries the case in appeal apparently has no longer jurisdiction to order pre‐trial detention. Moreover, the explanatory memorandum to the present proposal for the revision of the Constitution does not contain any mentioning on this provision that is proposed for introduction in the Constitution, so that the Court cannot determine the will of the authors of the legislative proposal for revision.

73. Moreover, the rule proposed seems to induce the idea that at the level of courts, besides judges, there are also other persons vested with the power to interpret the law (jurisdictio). The Court notes that the framers have consistently used the term “court” when referring to the courts set forth in Article 126 (1) of the Constitution; thus, the Constitution would have a non‐uniform terminology if we would accept also the introduction of the term “court of law”.

74. In addition to the aforementioned issues, the Court holds that the level of detail of the constitutional principles must be a minimum one, as details must be set forth in normative acts of lower level. Moreover, a very thorough regulation of a field / of social relationships results in instability of the constitutional text. In this respect, the European Commission for Democracy through Law (Venice Commission) has pointed out that “the need for amendment in a given system is also dependent upon the length and level of detail of the constitutional text.” The lengthier and more operational a constitutional text is, the more it resembles ordinary legislation, and the more prone it should and will be to relatively frequent amendment (see the Report on Constitutional Amendment, adopted by the Venice Commission at its 81st Plenary Session, 11‐12 December 2009).

75. Therefore, the Court finds that, in the light of the revision procedure, the Constitution of Romania is rigid so that regulations detailing thoroughly constitutional principles ‐ true constants of law ‐ cannot be included in the text of the Constitution. Of course, the Court holds that, in terms of the fundamental rights and freedoms, the objective of constitutional revision can only be that to increase the protection of citizens both by broadening fundamental rights and freedoms and by providing effective safeguards of the already existing rights, which exclude minor changes to a constitutional text. Therefore, the Court finds that the phrase “court competent to rule on the merits of the case” cannot be of the level of a constitutional rule, which must be characterized, among other things, by generality and stability.

76. Given the above, by unanimous vote, the Court recommends removal of the amendment concerning the introduction of second sentence under Article 23 (4) of the Constitution.

77. As concerns the amendment of Article 23 (8) of the Constitution, the proposal for revision is aimed at specific introduction in the Constitution of the measure consisting in taking a person to the police station, separate from that of detention and arrest.

78. The Court finds that the measure consisting in taking a person to the police station is not a suppression of individual liberty or of any of its safeguards; all the contrary, it is a genuine guarantee of individual freedom insofar as it regulates the conditions in which such


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measure can be taken and the rights of the person subject to such measure; thus, the police officer — in exercising his legal prerogatives — can only take this measure in the conditions laid down by law.

79. However, as concerns the actual regulation, the Court notes that the proposal for revision requires some rewording and correlations. Thus, as concerns the introduction of the phrase “the person taken to the police station” under Article 23 (8) of the Constitution, the Court finds that it seems to refer to an administrative measure already regulated in a previous constitutional text; however, the mentioned measure is not mentioned in the Constitution. That is why, if its constitutionalisation is intended, Article 23 (2) of the Constitution should also refer to this measure.

80. Likewise, by amendment of Article 23 (8) in the sense of introduction of the concept of “person taken to the police station”, the use of the term “charges” for all three situations becomes improper, as it refers, as a generic term, solely to detention and arrest, as preventive measures.

81. Therefore, the Court finds that, on the one hand, the aforementioned measure must be clearly separated from the preventive measures that can be taken during criminal proceedings and, on the other hand, its normative enshrining in the Constitution itself must appear as a genuine guarantee of individual liberty.

82. Given the above, by unanimous vote, the Court recommends rewording the proposed amendment to Article 23 (8) of the Constitution.

83. Point (16) of the Sole Article proposes the introduction of a new paragraph, paragraph (131), under Article 23 of the Constitution, which would regulate the regime of evidence obtained unlawfully during criminal proceedings.

84. According to the Romanian criminal procedure system, the evidence must be obtained under the conditions of the Code of Criminal Procedure, whether or not they are favourable to the “accused”. The judiciary authorities “have an obligation to ensure, based on evidence, the finding of the truth of the facts and circumstances of the case, as well as of the identity of the suspect or the defendant" [Article 5 (1) of the Code of Criminal Procedure]. Therefore, “The prosecution has a duty to obtain and administer evidence both to the benefit and to the detriment of the suspect or the accused. Rejection or failure to record, in bad faith, the evidence in favour of the suspect or the accused is punishable under the provisions of this Code” [Article 5 (2) of the Code of Criminal Procedure].

85. The Court finds that lawfulness in obtaining evidence is a guarantee of the right to a fair trial and the remedy against the circumvention of this guarantee is the prohibition on the use of evidence thus obtained. Moreover, Article 102 (2) of the Code of Criminal Procedure provides that “Evidence obtained unlawfully cannot be used in criminal proceedings”.

86. The Court notes that the assumption the analysed text departs from is itself misleading, since it assigns to unlawfully obtained evidence a probative efficiency. Such an assumption may lead to think that the intention is to create or shape a legal status thereof, which means that in principle, the proposed text would suggest the possibility of obtaining evidence unlawfully. Thus, one could understand that the evidence in criminal proceedings can be obtained both lawfully and unlawfully, and use of evidence thus obtained can differ,

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enshrining an own legal regime thereof. After obtaining evidence, either the judge or the prosecutor must determine which ones are lawfully obtained and which not, and to reassess unlawfully obtained evidence and decide, in relation to facts of the case, the evidence favourable to the “accused” with the consequence of use and storage thereof and removal of the incriminating ones.

87. Given the above, the Court notes that the legislative proposal for the revision of the Constitution, on the one hand, accepts the possibility of obtaining evidence outside the legal framework and, on the other hand, gives legal efficiency to those obtained unlawfully.

88. Evidence lawfully obtained, guarantee of the right to a fair trial, is more favourable to the citizen than the standard set by the case‐law of the European Court of Human Rights with respect to evidence obtained unlawfully. According to that case‐law, it is to be noted that the analysis of the European Court of Human Rights covers the fairness of the procedure as a whole, including analysis of how evidence obtained, insofar Article 6 of the Convention does not lay down rules concerning the admissibility of evidence, which primarily fall within national legislation, so that the Court’s task is not to determine whether certain evidence has been obtained unlawfully but whether such “unlawfulness” led to infringement of another right protected by the Convention (see judgment of 11 July 2006 in case Jalloh v. Germany, paragraph 94 et seq.; judgment of 5 February 2008 in Case Ramanauskas v. Lithuania, paragraph 52 et seq., and judgment of 17 December 2013 in Case Szilágyi v. Romania, paragraph 26 et seq.

89. Accordingly, the Court considers that, by means of revision of the Constitution, it is not permitted the abolishment of a guarantee of the right to a fair trial and thus the setting of premises for inobservance of the law, i.e. criminal procedure law.

90. The Court also notes that it is questionable the introduction under Article 23 of the Constitution of a text concerning evidence, as the collection and use of evidence refer to the fair trial covered by Article 21 of the Constitution.

91. For these reasons, the Court unanimously found unconstitutional the completion of Article 23 of the Constitution by a new paragraph, paragraph (131), on the use of evidence obtained unlawfully, as contravening the limits of the revision set forth in Article 152 (2) of the Constitution.

Article 24 — Right to defence 92. Through points (17) and (18) of the Sole Article of the legislative proposal for the

revision of the Constitution, Article 24 (2) of the Constitution is amended and a new paragraph is introduced, paragraph (21) under the same article, as follows:

“(2) The parties shall have the right to be assisted, throughout the proceedings, by a lawyer of their own choosing or appointed ex officio and to have adequate time and facilities to prepare their defence.”

“(21) The principle of equality of arms between prosecution and defence shall be guaranteed throughout the criminal proceedings.”

93. The Court notes that the proposed amendment to paragraph (2) of Article 24 of the Constitution needs to be reworded, as the use of the verb “to have” is not recommended in the legislative context of the text. In this context, the verb “to have” means “to have at their disposal, to have the possibility to use something or someone at their own discretion”;


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however, the assumption based on which the proposed amendment was introduced is that the parties enjoy the necessary time and facilities for the preparation of their defence. Otherwise, it could be read to mean that the criminal depends on the parties, which is inadmissible. It is therefore necessary to replace the verb “to have” with “to benefit” for correctly expressing the legislative meaning of the amendment proposed.

94. In view of the above, by unanimous vote, the Court suggests rephrasing proposed amendment to Article 24 (2) of the Constitution.

95. With regard to paragraph (21) proposed to be introduced under Article 24 of the Constitution, the Court observes that the principle of equality of arms is a guarantee of the fair trial, and not of the right to defence, and its scope is not confined only to criminal proceedings, but covers also other categories of disputes (see the judgment of the European Court of Human Rights of 27 October 1993 in Case Dombo Beheer B.V. v. Netherlands, paragraph 33). The Court also observed that the principle of equality of arms in criminal proceedings does not concern the prosecution and the defence, but the parties to the proceedings.

96. In view of the above, by unanimous vote, the Court recommends the rephrasing of the proposed amendment to Article 24 (21) of the Constitution and reconsidering its location in Article 21 of the Constitution, as it represents a component of the concept of fair trial.

Article 26 — Personal, family and private life 97. Point 19 of the Sole Article of the legislative proposal for the revision of the

Constitution amends both the marginal title of Article 26 of the Constitution, i.e. “Personal, family, private life and personal data” and the content of that article, as follows:

“(1) Public authorities shall guarantee the right to personal, family and private life. (2) Any natural person has the right to freely dispose of himself/herself unless (s)he

thereby encroaches upon the rights and freedoms of others or on public order. (3) Public authorities shall guarantee the right to protection of personal data and are

bound to take measures to protect such data. (4) Compliance with the provisions of paragraph (3) is subject to review by an

autonomous authority.” 98. The Court notes that, in paragraph (2), the proposed text stipulates that any natural

person has the right to freely dispose of himself, “unless (s)he thereby encroaches upon the rights and freedoms of others or on public order”, abolishing therefore the term “morals”. Consequently, it is understood that any natural person is entitled to dispose of himself/herself even if his/her conduct would violate the accepted principles of morality.

99. In this respect, the Court concluded that freedom as a fundamental principle of the rule of law is the foundation of all moral principles, and requires the development of such rules of law as to allow all people to behave according to their options in relations with the other members of the Community. That conception follows from the active side of the free development of human personality, being the expression of the natural person’s freedom of action. However, freedom to act in respect of one’s personal, family and private life cannot be and is not absolute, it must include and respect the values of the society, of the local community; therefore, the individual cannot make abusive and anti‐social use of his/her

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rights to dispose of himself/herself, which justifies setting certain limits on those rights, including morals.

100. According to the Court’s case‐law in relation to the terms “accepted principles of morality” or “public morality”, these are evolving concepts, concerning in principle rules of coexistence and attitude in society. They shall be identified and must be understood “in terms of the social behaviour rules of the natural person in his conduct and way of expression in any form whatsoever”, which mean, inter alia, “public sentiment of modesty and decency, whose disregard cannot be tolerated by that community. Conduct contrary to public decency are socially dangerous because they deny one of the conditions of existence of the society and because they prevent education of young generations in respect of moral values of society. Public morality and good conduct are fundamental values enshrined in the Constitution. The fundamental rights and freedoms which it lays down may not be exercised in a manner contrary to morals or which would undermine public morality” (see Decision no. 108 of 2 November 1995, published in Official Gazette of Romania, Part I, no. 9 of 17 January 1996).

101. In principle, a person’s right to dispose of himself/herself consists of two elements, namely an active element inherent to the right to freely express himself, through his/her actions, and a passive element with regard to the right of the person to be protected from the interference of other subjects of law. The freedom of action of an individual is necessarily limited by the right of others to respect for fundamental rights and freedoms or moral values. Therefore, the Constitution should provide the same level of protection in relation to both aspects of the right of the person to dispose of himself and enshrine a fair balance between the two.

102. However, the constitutional amendment proposed, supplementing the guarantees of the natural person’s right to dispose of himself under the active aspect, has the effect of annulling guarantees this right as regards its passive aspect. In other words, this would result in the situation that the freedom of action available to the natural person affects the rights and freedoms of other persons with which (s)he interacts by default.

103. Having regard to the above, the Court finds that the proposed amendment removes a guarantee of the natural person’s right to dispose of himself/herself by removing the constitutional protection granted to one of the passive element of this right.

104. For these reasons, the Court unanimously found unconstitutional the amendment of Article 26 (2) of the Constitution on the removal of the word “morals” as it violates the revision limits set forth in Article 152 (2) of the Constitution.

Article 27 — Inviolability of the home 105. Point 20 of the Sole Article of the legislative proposal for the revision of the

Constitution amends Article 27 (3) of the Constitution as follows: “(3) Searches shall only be ordered by a judge of the court competent to decide on the

merits of the case and shall be conducted under the terms and in the forms stipulated by law.”

106. The proposed amendment on Article 27 (3) of the Constitution concerns the insertion of the phrase “court competent to decide on the merits”. Regarding the use of this phrase in the Constitution itself the grounds set out in the analysis on a similar amendment to Article 23 (4) of the Constitution are applicable mutatis mutandis.


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107. In view of the above, by unanimous vote, the Court recommends the removal of the proposed amendment on Article 27 (3) of the Constitution.

Article 28 — Secrecy of correspondence 108. Point 21 of the Sole Article of the legislative proposal for the revision of the

Constitution amends Article 28 of the Constitution, as follows: “(1) Secrecy of letters, telegrams and other postal communications, of telephone



109. The Court notes that the secrecy of correspondence is one aspect of the right to personal, family and private life of the person, in relation to which public authorities must, on the one hand, have a conduct characterized by abstention, avoid interferences, and, on the other hand, they must create a legal framework which would reflect the inviolability thereof in relation to the other subjects of law. However, the abstention is not unlimited, but must take into account the existing realities, in the sense that the State must be active in case of an existing and imminent danger for citizens. However, the wording of the text reduces the possibility for State intervention in postal secrecy, as this is envisaged in the proposal for the revision of the Constitution, only to criminal proceedings, but clearly ignores other situations — which must be strictly determined — in which it would be required. This would be tantamount to State’s impossibility to comply with its positive obligations as regards the protection of fundamental rights and freedoms (see mutatis mutandis judgment of 24 July 2012 in Case Đorđević v. Croatia, § 139). Thus, under the proposal for the revision of the Constitution, in case of natural disasters, serious accidents or other serious threats against persons, public authorities with competence in the management of such situations would not be allowed to make every effort in order to save lives, especially when considering limits set forth in terms of traffic or location data.

110. The possibility of interference with the exercise of this right is now regulated indirectly by Article 26 (1) of the Constitution, thus entrusting the infraconstitutional legislator with the power to adopt provisions to ensure compliance with the general interest of the community. However, the general interest of the community is not subsumed solely under criminal proceedings but also under unforeseeable circumstances in which the State must respond immediately; However, in the absence of legal levers, the measures it will take will not have the expected results, for example with regard to defence of physical or psychological integrity of individuals from the action or inaction of third persons (see judgment of 12 November 2013 in Case Söderman v. Sweden, § 80 et seq. and judgment of 24 July 2012 in Case Đorđević v. Croatia, § 138 et seq.).

111. Having regard to the foregoing, the Court considers that, in terms of the elements newly introduced in Article 28 (1) of the Constitution, it cannot be claimed that there is a

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legal protection identical to that of the traditional meaning of correspondence, even as it has been developed by the European Court of Human Rights in its judgment of 3 April 2007 in Case Copland v. the United Kingdom, § § 41 and 42. According to this judgement, e‐mails sent from work should be similarly protected under Article 8, as should information derived from the monitoring of personal Internet usage.

112. The Court notes that also traffic and location data benefit from legal protection, but such cannot be assimilated to the protection ensured for legal means of communication, as they do not subsume under concept. For this reason, they must be treated separately from this concept, because, otherwise, it would lead to the possibility of suppressing the rights and freedoms of others.

113. For these reasons, by a majority vote, the Court finds the unconstitutionality of the amendment to Article 28 of the Constitution, on secrecy of correspondence, as it is contrary to the revision limits set forth in Article 152 (2) of the Constitution.

Article 31 — Right to information 114. Point 25 of the Sole Article of the legislative proposal for the revision of the

Constitution amends Article 31 (5) of the Constitution, as follows: “(5) Public radio and television services, as well as public press agencies, shall be

autonomous. They must guarantee the exercise of the right to broadcasting time for all significant social and political groups. The organisation of these press services and agencies, as well as parliamentary oversight of their activity, are laid down by an organic law.”

115. The Court notes that the proposed amendment to Article 31 (5) of the Constitution is imprecise. The word order in the first sentence of that paragraph could mean that public radio services and public press agencies are autonomous, whilst televisions are autonomous, whether public or private. Therefore the Court recommends the redrafting of this sentence as to show that public service broadcasters, as well as the public press agencies are autonomous.

116. In view of the above, by unanimous vote, the Court recommends the rephrasing of the proposed amendment on Article 31 (5) of the Constitution.

Article 32 — Right to education 117. Point 26 of the Sole Article of the legislative proposal for the revision of the

Constitution amends both the marginal title of Article 32 of the Constitution, i.e. “Right to education”, as well as the legislative content of the mentioned article, as follows:

“(1) Access to education is guaranteed, in accordance with the law. (2) The right to education is guaranteed, in accordance with the law, and ensured by

pre‐school education, compulsory general education, higher education, as well as by other forms of training and advanced studies provided for by law.

(3) Education shall be directed to the full development of the human personality and to the strengthening of the respect for fundamental rights and freedoms.

(4) General education shall be conducted in Romanian. Under the terms of the law, education may also be conducted in a foreign language of international use.

(5) The right of persons belonging to national minorities to learn their mother tongue, and their right to be taught in this language are guaranteed; the ways to exercise these rights shall be determined by law.


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(6) Public education shall be free, according to the law. The State shall grant social scholarships to children or young persons coming from underprivileged families, and to those institutionalised, as well as merit scholarships, as stipulated by law.

(7) Education provided at all levels is conducted in public, private, or confessional schools, according to the law, in compliance with the quality standards in education for each level and form of education.

(8) The autonomy of universities is guaranteed. The autonomy of universities involves the capacity of higher education institutions to manage their heritage directly and immediately, to independently choose or, where appropriate, appoint their management structures and positions and to establish, according to the legal provisions and quality standards, their educational and research mission.

(9) The State shall ensure the freedom of religious education, in accordance with the specific requirements of each religious denomination. In public schools, religious education is organized and guaranteed by the law.”

118. On the amendments to Article 32 of the Constitution, the Court notes that the new marginal title of the article is “Right to education”, a concept which includes the right to education, as well as the right to culture or the right to information. However, the examined article, except for paragraphs 1 and 3, refer to the right to education. In this context, the Court considers that the right to education should be inserted in a separate article, comprising paragraphs 1 and 3, and its placement to be reconsidered, respectively before the constitutional article on the right to information.

119. In view of the above, by unanimous vote, the Court recommends a reconsideration in terms of insertion of paragraphs (1) and (3) of Article 32 in the structure of a new article of the Constitution.

120. Consequently, Article 32 is to preserve its current title, so that, by unanimous vote, the Court recommends to rewording of the proposal amending the marginal title of Article 32 of the Constitution.

121. In these circumstances, paragraph (2) of the examined article should relate to the right to education. Furthermore, it is also noted that the changes envisaged in paragraph (4) concerns the inclusion of the phrase “general education”, which is neither enshrined in the Constitution, nor in the National Education Law no. 1/2011, published in Official Gazette of Romania, Part I, no. 18 of 10 January 2011, as subsequently amended and supplemented, and therefore it is not clear to what it refers. Moreover, the wording under consideration can neither be replaced with “compulsory general education” as it leave unregulated, for example, the situation of higher education. Therefore, the Court recommends maintaining the current wording, namely “education provided at all levels”.

122. In view of the above, by unanimous vote, the Court recommends the reformulation of the proposed amendment to Article 32 (2) and (4) of the Constitution.

123. With regard to the proposed amendments to Article 32 (8) of the Constitution, the Court notes that they define university autonomy just to avoid definition of a constitutional concept through a normative act with a lower legal force (see also Article 123 of Law no. 1/2011 — Definition of university autonomy). However, the Court notes that, according to Article 123 (2) of Law no. 1/2011, “university autonomy entitles the university community to

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establish its own mission, institutional strategy, structure, activities, own organisation and functioning, management of material and human resources, in strict compliance with the legislation in force”, which means that the definition of university autonomy in the proposal for revision is limited to only certain parts of it. The Constitutional Court does not deny that the derivative framers can regulate or define in principle a certain concept, whilst it is, of course, excluded the provision of thorough details. However, the elements in the proposed definition of a constitutional concept — university autonomy — reflect a selective approach and rather imprecise, aimed more at devising a decision‐making independence in terms of patrimonial elements of university autonomy than at the constitutionalisation of the component elements of this concept. Moreover, any constitutionalisation must meet the requirements of accuracy, clarity and foreseeability of the law on an aggregate basis so as not to adversely affect the constitutional concept already recognised.

124. The Court notes that key elements of the proposed definition of the concept of university autonomy relate to the management of their heritage and the designation of their management structures and positions. The educational and research mission is only mentioned at the end of the text and does not cover all aspects of the concept of university autonomy. The definition thus analysed concerns rather the economic side than the educational side of university autonomy and, in this context, paves the way for functional and organisational independence in relation to the management of their heritage and the election or appointment of their management structures and positions.

125. The Court finds that direct management of their heritage, in lack of a legal regulation generally applicable to higher education institutions, would have the effect of a discretionary management of the heritage by the managing bodies of the higher education institution and, possibly, transmission of the higher education institution’s right to property over certain assets in its private property to other persons, which is likely to affect the necessary resources of the educational process. Furthermore, direct election or designation of the management structures and positions of universities fall outside the concept of university autonomy.

126. However, university autonomy cannot be confused with independence. In this respect, the Court, by Decision no. 2 of 4 January 2011, published in Official Gazette of Romania Part I no. 136 of 23 February 2011, analysing the situation at European level, has shown that university autonomy does not amount to independence and that the “The State or local public administration bodies shall have sufficient powers to enable it/them to ensure that universities meet the quality standards necessary for creating the European Higher Education Area”.

127. In these circumstances, the Court concluded that the definition of university autonomy is inappropriate and thus generates an absolute independence of higher education institutions both in the management of their heritage and in the designation of management structures and positions, leading to cancellation of a guarantee of the right to education, conferred by the university autonomy.

128. For these reasons, by a majority, the Court finds unconstitutional the amendment to Article 32 (8) of the Constitution on the definition of the university autonomy, as contravening the revision limits set forth in Article 152 (2) of the Constitution.


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Article 35 — Right to a healthy environment 129. Point 30 of the Sole Article of the legislative proposal for the revision of the

Constitution inserts two new paragraphs, paragraphs (21) and (31) under Article 35 of the Constitution, as follows:

“(21) The State shall ensure protection, sustainable use and restoration of the natural heritage.

(31) Cruelty to animals, defined in accordance with the law, shall be prohibited”. 130. With regard to the proposed amendments to Article 35 of the Constitution, the

Court notes that the paragraph (31) expressly enshrines a rule of conduct deriving from the concept of “human dignity”. Human dignity, under constitutional aspect, has inherent two dimensions, namely relations between people, which concerns people’s right and obligation to be respected and, correlatively, to respect fundamental rights and freedoms of others, and people’s relationship with the environment, including animal world, which implies, as regards animals, the moral responsibility to look after these beings in a way likely to illustrate the level of civilisation attained (see, to that effect, Order no. 1 of 11 January 2012, published in Official Gazette of Romania, Part I, no. 53 of 23 January 2012).

131. However, the Court finds that the wording of the legislation is imprecise, whether the words “defined by law” refer to animals or to cruelty to animals.

132. In view of the above, by majority vote, the Court recommends the rephrasing of paragraph (31) proposed for insertion under Article 35 of the Constitution.

Article 37 — Right to be elected 133. Point 31 of the Sole Article of the legislative proposal for the revision of the

Constitution inserts a new paragraph under Article 37 of the Constitution, paragraph (21), as follows:

“(21) Only candidates who have had their residence in Romania at least six months before the elections may participate in the elections for the Senate, the Chamber of Deputies and the office of President of Romania.”

134. The Court notes that this text is aimed at introducing a new condition on the right to be elected to the office of President of Romania, to that of Senator or Deputy. Thus, the candidate must have had residence in Romania at least 6 months before the date of elections.

135. The text of the current Article 37 of the Constitution is a permissive one and, read in conjunction with Article 16 (3) of the Constitution, leads to the conclusion that, in order to be able to participate in the elections for the Senate, the Chamber of Deputies and the office of President of Romania, candidates must have Romanian citizenship and they must live in Romania. The introduction of a temporal condition as to the residence on the candidate, regardless of its duration, is an obvious suppression of Romanian citizens’ rights to stand for elections not contained in the legal rule. Such a conclusion arises as Romanian citizens, irrespective of the length of time they have been resident in Romania enjoy the rights and freedoms enshrined in the Constitution; otherwise, also their equal rights would be affected. Furthermore, the Court also raises the issue of the date from which that period is calculated, i.e. the date of elections. However, such a reference date is also arbitrary as a Romanian citizen might have had his residence in the country for a long time, but not during the last six

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months before the elections day. Consequently, the condition imposed by the text submitted to the Court’s examination is contrary to equal rights.

136. Accepting such a temporal condition relating to residence of the candidate would be tantamount to accepting by default the derivative framers’ possibility to impose temporal conditions also other with regard to the other requirement that must be complied with in order to be able to stand for election — nationality — or to add to the existing requirements new ones. However, imposing temporal conditions, in the present case, i.e. that the Romanian citizens must have had their residence in Romania with at least 6 months before the elections, comes against the limits of revision of the Constitution, suppressing the principle of universality of rights, covered by Article 15 (1) of the Constitution, the right to stand as a candidate for citizens residing in Romania which do not meet the new restrictive rule, as well as of a the guarantees thereof, i.e. equal rights.

137. For these reasons, by majority vote, the Court finds unconstitutional the completion of Article 37 of the Constitution with a new paragraph, paragraph (21), concerning the condition of residence in Romania with at least 6 months prior to the date of the election to the Senate, the Chamber of Deputies or the office of President of Romania, as contravening the revision limits set forth in Article 152 (2) of the Constitution.

Article 40 — Right to association 138. Point 33 of the Sole Article of the legislative proposal for the revision of the

Constitution amends Article 40 (2) of the Constitution, as follows: “(2) The political parties or organizations which, by their aims or activity, militate

against political pluralism, respect for human rights and fundamental freedoms, the rule of law, sovereignty, integrity or independence of Romania shall be unconstitutional.”

139. The Court notes that a feature of the rule of law is the respect for fundamental rights and freedoms, and militating against them amounts to a breach of the principles of the rule of law, which draws the unconstitutionality of the party or of the organisation. Therefore, the legislative solution proposed is an explicit embodiment of a principle which underlies the rule of law.

140. However, in this context, the Court notes that, in accordance with Article 146 k) of the Constitution of Romania and Article 45 of the Political Parties Law no. 14/2003, republished in the Official Gazette of Romania, Part I, no. 550 of 6 August 2012, the Constitutional Court decides on challenges as to the unconstitutionality of political parties, according to Article 30 (7) and Article 40 (2) and (4) of the Constitution. The Court finds that political parties are not ab initio unconstitutional, but they are declared unconstitutional because of non‐compliance with a legislative rule set forth in the Constitution, in the present case. In this respect, Article 41 (1) of Law no. 47/1992 provides that “political parties can be declared unconstitutional”.

141. Therefore, the Court considers that the wording of Article 40 (2) of the Constitution must be consistent with that of Article 30 (7) of the Constitution in order to emphasize the conduct prohibited and not the effect of the decision of the Constitutional Court.

142. In view of the above, by unanimous vote, the Court recommends the rephrasing of the amendment to Article 40 (2) of the Constitution.


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Article 44 — Right to private property 143. Point 35 of the Sole Article of the legislative proposal for the revision of the

Constitution amends Article 44 (1) of the Constitution, as follows: “(1) The right to property and the debts incurring on the State shall be guaranteed. The

debts incurring on the State shall have the same legal regime as the payment of tax obligations, in accordance with the law”.

144. Removal of second sentence of Article 44 (1) of the Constitution on the establishing by law of the content and the limits of the right to property is tantamount to an absolutisation thereof.

145. This text is used by the Constitutional Court in its case‐law, when examining the limits of the right to property. In order to examine whether such a measure is justified, the Court considers that Article 44 of the Constitution contains a specific provision — expressed as a special condition — allowing regulatory establishing of limits on the right to private property. However, this specific provision is contained in Article 44 (1) second sentence of the Constitution, proposed to be removed. Therefore, the Court held that the right to property is not absolute, it may be subject to certain limitations, according to Article 44 (1) of the Constitution; however, the limits of the right to property, whatever their nature might be, cannot be confused with abolishment of the right itself. The Court found that, according to Article 44 of the Constitution, the legislator is entitled to determine the content and the limits of the right to property. In principle, these limits concern the object of the right to property and attributes thereof and are established in order to defend general social and economic interests or to protect the rights and freedoms of others; it is however essential to avoid complete denial of the right to property (see Decision no. 266 of 21 May 2013, published in Official Gazette of Romania, Part I, no. 443 of 19 July 2013).

146. These limits can protect various fundamental rights and freedoms, from the right of information (decision previously cited) to the right to property (Decision no. 59 of 17 February 2004, published in Official Gazette of Romania, Part I, no. 203 of 9 March 2004).

147. Deletion of the second sentence of paragraph (1) of Article 44 renders the right to property absolute and the legislator will no longer be able to protect concurring fundamental rights and freedoms of other citizens. Thus, the Court notes that a guarantee of fundamental rights and freedoms set forth in Title II of the Constitution was abolished, guarantee which ensures the exercise thereof together with the exercise of the right to private property.

148. For these reasons, by unanimous vote, the Court found unconstitutional the removal of the current second sentence of Article 44 (1) of the Constitution, on the conditions and limitations of the right to property as it violates the revision limits set forth in Article 152 (2) of the Constitution.

149. It is suggested to insert a new sentence in paragraph (1) of Article 44 which reads as follows: “The debts incurring on the State shall have the same legal regime as the payment of tax obligations, in accordance with the law”.

150. The Court notes that de plano the debts which incur on the State cannot have the same legal regime as the payment of the tax obligation, but possibly with the tax obligation. Similarly, it is not possible to place the sign of equivalence between the two concepts, since

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they cover specific elements which distinguish them from one another. The Court also notes that the explanatory memorandum to the proposal for revision makes no reference to this amendment, so it is not possible to know the rationale behind the introduction of this text.

151. Therefore, the Court considers that this sentence should be reworded to be unambiguous, precise and foreseeable (as to the scope of those terms, see Decision no. 1 of 11 January 2012). Such a conclusion is further supported by the fact that the regulatory solution proposed represents a departure from the current constitutional and legislative framework existing in tax matters.

152. In view of the above, by majority vote, the Court recommends the rephrasing of the amendment proposed to Article 44 (1) second sentence of the Constitution.

Article 49 — Protection of children and young persons 153. Point 37 of the Sole Article of the legislative proposal for the revision of the

Constitution amends Article 49 (1) and (2) of the Constitution, as follows: “(1) Children and young persons shall enjoy special protection and assistance in the

pursuit of their rights, while respecting the principle of their best interests.” (2) The State shall grant allowances for children, and aids for the care of ill or disabled

children. Other forms of social protection for children and young persons are shall be established by law.”

154. The words “respecting their best interests’ is taken from the Declaration of the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1959, and the Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989, ratified by Law No 18/1990, republished in Official Gazette of Romania, Part I no. 314 of 13 June 2001. The Court notes that this principle is expressed also at infraconstitutional level, i.e. Law no. 272/2004 on the protection and promotion of the Rights of the Child, published in the Official Gazette of Romania, Part I, no. 557 of 23 June 2004.

155. The Court also notes that the definition of the child, in line with the provisions of that Convention, is given in Article 4 (a) of Law no. 272/2004, i.e. “any person who is not 18 years old and does not have full civil capacity, in accordance with the law”.

156. Having regard to the amendment made to the Article 48 (1) of the Constitution introducing as concerns children the phrase “while respecting the principle of their best interests”, the Court finds that the reiteration of the same also in Article 49 (1) of the Constitution is redundant.

157. In addition, the Court notes that this phrase as is placed, shall also apply to young people. However, the principle of the best interest of the child characterises the legal situation of children and not also of young people. The text, as it stands, creates inequality between the citizens at the age of majority ‐ who have reached the age of 18 years — on grounds of age which induces the idea of a preferential legal treatment by comparison with the other age groups.

158. In view of the above, by unanimous vote, the Court recommends the deletion of the proposed amendment to Article 49 (1) of the Constitution.

Article 50 — Protection of disabled persons 159. Point 38 of the Sole Article of the legislative proposal for the revision of the

Constitution amends both the marginal title of Article 50 of the Constitution, i.e. “Protection of disabled persons”, as well as the normative content of the mentioned article, as follows:


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“Disabled people shall enjoy all human rights and fundamental freedoms, with equal opportunities. The State must ensure the implementation of a national policy for equal opportunities and inclusion, prevention and treatment so that disabled persons can effectively participate in the life of the community, in keeping with the rights and duties of their parents or legal guardians”.

160. The Court, examining the normative content of the text proposed, notes that its premise is that today, individuals with handicap/disabilities do not enjoy all human rights and fundamental freedoms. The new text therefore grant them all fundamental rights and freedoms; however, and this is detailed evidence, i.e. with equal opportunities with people without handicap/disabilities. However, ab initio those two categories of persons are not in the same situation, since their “physical, sensory, mental, psychological and/or associated problems prevent completely or limit their access to equal opportunities in society, requiring protection measures in support of integration and social inclusion” [Article 2 (1) of Law no. 448/2006 on the protection and promotion of the rights of disabled persons, republished in the Official Gazette of Romania, Part I, no. 1 of 3 January 2008). Moreover, even the law recognises that they cannot act with equal opportunities, formal equality must be replaced with the result equality to achieve integration and social inclusion of people with handicap/disabilities.

161. The current constitutional text substantially establishes a special regime for the protection of persons with handicap/disabilities, aspect overlooked by the new regulatory solution envisaged. The derivative framers cannot depart from this solution because, otherwise, it would achieve a restriction/violation on this special protection regime. Therefore, the amendment to Article 50 of the Constitution may concern only an improvement of this system and in no case a reduction of the degree of protection afforded to persons with handicap/disabilities or even abolishment of the right of persons with handicap/disabilities to a special protection regime.

162. For these reasons, by unanimous vote, the Court found unconstitutional the amendment to Article 50 of the Constitution relating to the special protection enjoyed by people with disabilities as it violates the revision limits set forth in Article 152 (2) of the Constitution.

Article 511 — The right to good administration 163. Point 39 of the Sole Article of the legislative proposal for the revision of the

Constitution inserts a new article, i.e. Article 511 — The right to good administration, as follows:

“Everyone has the right to be treated, in their relations with the public administration, with impartiality and fairness, as well as to obtain, within a reasonable time, a reply to their requests”.

164. The Court finds that, by introducing Article 511 in the Constitution, the legislator aims to establish a new fundamental right — the right to good administration, takeover with adaptations of the homonymous right covered by Article 41 (1) of the Charter of Fundamental Rights of the European Union.

165. It recommended, however, linking it with the other constitutional texts, the Court having regard to Article 31 (2) and Article 51 (4) of the Constitution. Thus, between the two

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texts referred to and that of Article 511 proposed to be introduced there is a partial overlap, as obligations of public authorities are covered, namely to inform the citizen on questions of personal interest and to respond to petitions. However, such obligations may be contained in the body of the new legislative text.

166. In view of the above, by unanimous vote, the Court recommends the rephrasing of Article 511 of the Constitution.

Article 52 — Right of a person aggrieved by a public authority 167. Point 40 of the Sole Article of the legislative proposal for the revision of the

Constitution amends Article 52 (1) and (3) of the Constitution, as follows: “(1) Any person aggrieved by a public authority in their rights or legitimate interests

through an administrative act or failure, by the public authority, to solve their request within the time‐limits established by law is entitled to obtain the acknowledgement of their claimed right or legitimate interest, the invalidation of such act and reparation for the damage suffered by means of a fair compensation.

[...] (3) The State shall bear pecuniary liability for any damage caused by a miscarriage of

justice. The State liability is determined according to the law and shall not eliminate fault liability of the magistrates having exercised their vested powers in ill‐faith or gross negligence. The State shall exercise its right to sue for compensation, in accordance with the law”.

168. The Court notes that the proposed amendment to paragraph (1) refers to the entitlement of the person aggrieved by a public authority to “reparation for the damage suffered by means of a fair compensation”. In the current wording, the person aggrieved in his rights is entitled to obtain compensation for the damage. Such a provision is full reparation of the damage; however, as regulated in the legislative proposal for the revision of the Constitution, the reparation of the damage is going to be achieved through a fair compensation. However, the fairness does not amount to a full reparation (see, mutatis mutandis, with regard to the concept of complete and full reparation, also Decision no. 395 of 1 October 2013, published in Official Gazette of Romania, Part I, no. 685 of 7 November 2013), so that the aggrieved person will see himself in the situation where his damage will be repaired only in part, and not in full. Such an approach is an obvious suppression of guarantee which accompanies the right of a person aggrieved by a public authority, namely full compensation of the damage it produced.

169. For these reasons, by unanimous vote, the Court found unconstitutional the amendment to Article 52 (1) of the Constitution concerning the removal of the full reparation for the damage suffered by a person aggrieved by a public authority as it violates the revision limits set forth in Article 152 (2) of the Constitution.

170. The Court notes that the proposed amendment to Article 52 (3) of the Constitution concerns the insertion of a new sentence in the content of this text, namely “The State shall exercise its right to sue for compensation, in accordance with the law”.

171. The text of Article 52 (3) of the Constitution provides that financial liability of the State for damage caused by judicial error. The proposed insertion does not cover an action under a right to sue for compensation initiated by the State against the magistrates for


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damages caused by any miscarriage of justice, but only by those legal errors which emerged from the exercise of the function in ill‐faith or serious negligence.

172. According to the normative content of Article 52 (3) of the Constitution the loss caused by judicial error is ensured in all cases by the State, the injured party may only proceed with the action against the State, represented by the Ministry of Public Finance (see Article 96 (6) of Law no. 303/2004 on the status of judges and prosecutors, republished in the Official Gazette of Romania, Part I, no. 826 of 13 September 2005). In this respect, Article 542 of the Code of Criminal Procedure and Article 96 of Law no. 303/2004 lay down the conditions in which the injured party may initiate and action for compensation for material damage caused by judicial error; the admissibility of the action is subject to certain conditions: either the judgment and the order of judicial bodies ascertaining a legal error, i.e. unlawful deprivation of liberty, have become final, or, in advance, by a final judgment, it is established the criminal or disciplinary responsibility, as the case may be, of a judge or prosecutor for an offence committed during the trial proceedings and if that act is likely to cause a miscarriage of justice.

173. On the other hand, the State may proceed with the claim for redress against the magistrate only if the event giving rise to damage occurred in bad faith or with at least serious negligence [Article 542 (1) of the Code of Criminal Procedure], i.e. the magistrate has committed a legal error giving rise to damage in bad faith or serious negligence (see Article 96 (7) of Law no. 303/2004). In the action under a right to sue for compensation, it is for the State to demonstrate that the magistrate has performed his duties in bad faith or serious negligence.

174. Although the phrase to be introduced appears to concern the holder of the right to sue for compensation in the event of damage caused by any miscarriage of justice which was the result of the exercise of the function in bad faith or serious negligence, in reality, by reason of its wording requires the State to exercise their right to sue for compensation. The imperative nature of the phrase proposed to be placed in the body of the Article 52 (3) of the Constitution may lead to an inadmissible situation, in which the State will promote the action under a right to sue for compensation automatically whenever it pays a damage caused by a miscarriage of justice and it no longer has a right of discretion about whether the magistrate has performed duties in bad faith or serious negligence, requesting the intervention of court mechanically. Therefore, the proposed legislation should consider, possibly, State’s ability to exercise his right to sue for compensation in accordance with the law.

175. Therefore, the text of the Constitution cannot compel the State to initiate, in all cases, the action under a right to sue for compensation; it must be left to its discretion the exercise of this action and, of course, finally, the court is the one to decide on the action thus initiated.

176. In view of the above, by unanimous vote, the Court recommends the rephrasing amendment to Article 52 (3) of the Constitution.

Chapter III — Fundamental duties Article 55 — Defence of the country 177. Point 42 of the Sole Article of the legislative proposal for the revision of the

Constitution inserts a new paragraph, paragraph (31), under Article 55 of the Constitution, as follows:

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“(31) Romania is a member of the North Atlantic Treaty Organisation”. 178. The Court notes that the envisaged modification does neither have legislative

character nor it relate to citizens’ fundamental duties. It states the membership of Romania to the North Atlantic Treaty Organisation, as Romania became a member of this organisation after adoption of Law no. 22/2004 for Romania’s accession to the North Atlantic Treaty, signed in Washington on 4 April 1949, published in the Official Gazette of Romania, Part I, no. 185 of 3 March 2004.

179. In view of the above, by unanimity, the Court recommends reconsideration in terms of inserting Article 55 (31) in Title VI of the Constitution.

Chapter IV — The Advocate of the People Article 58 — Appointment and role 180. Point 43 of the Sole Article of the legislative proposal for the revision of the

Constitution amends Article 58 (1), as follows: “The Advocate of the People is an independent institution whose purpose is to promote and protect the rights and freedoms of citizens in their relations with public authorities”.

181. The Court notes that the proposed wording of Article 58 (1) is unconstitutional in limiting the powers of the Advocate of People to the protection of “the rights and freedoms of citizens in their relations with public authorities” for the reasons which will be set out below.

182. In the Venice Commission’s Opinion no. 685 of 17 December 2012 on the compatibility with constitutional principles and the rule of law of actions taken by the Government of Romania and the Parliament of Romania in respect of other State institutions and on the Government Emergency Order on amendment to the Law no. 47/1992 regarding the organisation and functioning of the Constitutional Court and on the Government Emergency Ordinance on amending and completing Law no. 3/2000 on the organisation and holding of a referendum in Romania, adopted at its 93rd Plenary Session, Venice, 14‐15 December 2012, it is stated that “the Advocate of the People performs an essential role for the protection of human rights” (paragraph 80). The Court observes that the scope of subjects of law who can benefit from the protection offered by the Advocate of the People is envisaged, in that document, in a much broader perspective than in the exhaustive formula referring exclusively to “citizens”, proposed by the authors of the legislative proposal for the revision of the Constitution.

183. The drafting proposed represents a step backwards with respect to the current constitutional rules regarding the protection of the rights and freedoms through the Advocate of the People, which should cover all natural persons who are on Romanian territory, in the spirit of the Universal Declaration of Human Rights and other international treaties and agreements that put the safety of the individual at the centre of attention and consider it essential that human rights should be guaranteed, but also protected by effective legal and institutional mechanisms.

184. In this respect, moreover, Article 18 (1) of the Constitution provides that aliens and stateless persons who are resident in Romania shall enjoy general protection of person and wealth as guaranteed by the Constitution and other laws. The proposed revision exclude aliens and stateless persons from the scope of action of the Ombudsman, as an institution


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designed to ensure effective protection of human rights and fundamental freedoms. Even if the proposed text would be interpreted under the principle ubi lex non distinguit, nec nos distinguere debemus in the sense that it refers not only to Romanian citizens but also to foreign ones, a category of individuals would still remain outside the protective action of the Advocate of the People where there is nothing to justify discriminatory treatment, namely the stateless persons.

185. As a result of this limitation of the scope of powers of the Advocate of the People, its competence is reduced and its role within a democratic and social State governed by the rule of law can no longer be carried out fully.

186. Accordingly, by unanimous vote, the Court notes the unconstitutionality of replacing the term “individual” with the term “citizens” in Article 58 (1) of the Constitution as it violates the revision limits set forth in Article 152 (2) of the Constitution.

187. Currently, one of the ways in which the Basic Law gives the Advocate of the People the possibility to fulfil the role enshrined at constitutional level is contained in Article 146 (d) second sentence and consists of its competence to raise directly exceptions of unconstitutionality. The entry which is proposed to be introduced in Article 58 (1) of the Constitution, on promoting and protecting “citizens” rights and freedoms only “in their relations with public authorities”, is capable of calling into question the possibility of effective and efficient exercise by the Advocate of the People of that right, since there are also laws and simple or emergency Government Ordinances that do not concern citizens’ relations with public authorities. A possible restriction of the right of the Advocate of the People to challenge the constitutionality of such legislation by means of the exception of unconstitutionality would be antinomic to Article 146 (d) of the Constitution, which states that the Advocate of the People has the specific power to refer to the Constitutional Court on laws and Government Ordinances, without making any distinction according to whether or not their regulatory object contain provisions that relate to the protection of human rights.

188. A similar statement is also found in the Venice Commission Opinion quoted above, i.e. “If the Advocate of the People were not able to appeal to the Constitutional Court against government emergency ordinances in all cases – not only in human rights cases –, a serious gap in the necessary control of such ordinances would occur. No other state body than the Advocate of the People can directly appeal against such ordinances to the Constitutional Court and, consequently, all emergency ordinances, which do not relate to human rights, could not be controlled at all” (paragraph 55), Furthermore, referring to the hypothesis that the Advocate of the People would be deprived of the possibility to challenge the constitutionality of government emergency ordinances directly, independently of the existence of court proceedings, the Venice Commission found that “Such a serious lacuna in the system of democratic checks and balances cannot be justified by the purported urgency of the measures adopted” (paragraph 55).

189. A similar reasoning applies also to the laws. It is true that they can be subjected to constitutional review before promulgation thereof, pursuant to Article 146 (a) first sentence of the Constitution, upon notification from certain subjects of law, expressly set out in the text of the Constitution, including the Advocate of the People. But, once in force, laws and

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ordinances can be subjected to constitutional review only during their application in a trial before a court of law or of commercial arbitration, upon request of the parties, the public prosecutor or the court of its own motion. However, it is possible that none of those listed take the initiative to raise an exception of unconstitutionality, and therefore unconstitutional legislation would continue to be enforceable, which would be in contradiction with the principle of the rule of law as a fundamental feature of the Romanian State and as a precondition for enshrining, guaranteeing, maintaining and protecting fundamental rights and freedoms.

190. Consequently, the Court concludes that restriction of the scope of action of the Advocate of the People exclusively to citizens’ relations with public authorities affect its role in the protection of human rights against any infringements which may originate from any type of entity. Such a restriction represents, in some cases, a lack of one of the guarantees of fundamental rights and freedoms, contrary to Article 152 (2) of the Constitution.

191. For these reasons, by majority vote, the Court finds unconstitutional the completion of Article 58 (1) of the Constitution with the phrase “in their relations with public authorities” as it violates the revision limits set forth in Article 152 (2) of the Constitution.

192. Further, the Court notes that, point 44 of the Sole Article of the legislative proposal for the revision of the Constitution inserts a new paragraph under Article 58, paragraph (11), which reads as follows: “The Advocate of the People shall be appointed for a term of office of 5 years. The deputies of the Advocate of the People are specialized per fields of activity. The term of office of the Advocate of the People shall cease before its expiry in case of resignation, incompatibility with other public or private offices, impossibility to exercise his powers for more than 90 days or in case of death”.

193. The Court notes that the proposed revision brings to constitutional level the regulation of cases of early termination of the mandate of the Advocate of the People. These are currently enshrined in Article 9 (1) of Law no. 35/1997 on the organisation and functioning of the institution of Advocate of the People, as republished in Official Gazette of Romania, Part I no. 844 of 15 September 2004, as subsequently amended and supplemented, on resignation, removal from office, incompatibility with other public/private functions, the inability to perform duties for more than 90 days, established by medical examination, and death. The Court notes that the proposed amendment rules out the possibility of revocation from office of the Advocate of the People, maintaining all other situations.

194. Although the proposed text is without prejudice to the limits of the constitutional revision, the Court considers that the cases of early termination of the mandate of the Advocate of the People should be listed in the organic law on the organisation and functioning of the institution, not in the basic law.

195. At the same time, the Court notes that revocation should be amongst the cases of early termination of the mandate of the Advocate of the People. At least in theory, it cannot be ruled out that the person appointed as Advocate of the People can abuse of the powers which are conferred on him by the Constitution and the law, or divert them from their legal purpose or fail to fulfil them properly, infringing thus the constitutional values and principles. The abolition of the possibility of Parliament to remove from office the person who, in the performance of his duties as Advocate of the People, is found to have acted in


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breach of the Constitution and of the law, would be unacceptable and incompatible with the fundamental values of the Romanian State laid down in Article 1 (3) of the Basic Law. Of course, the situation in which the revocation may occur must be individualised precisely in the law and the procedure to be followed in that case should also be established by rules lacking any ambiguity so as to avoid the risk of an arbitrary revocation. Consequently, the Constitutional Court recommends regulating the cases of early termination of the mandate of the Advocate of the People by the law on the organisation and functioning of the institution, including among them also the case of revocation.

196. For the reasons set out, the Court, by unanimous vote, recommends the deleting the third sentence of paragraph (11) proposed to be inserted in Article 58 of the Constitution.

C. Title III — Public authorities Chapter I — Parliament Article 62 — Election of the Chambers 197. Point 46 of the Sole Article of the proposal for the revision of the Constitution

amends Article 62 (3), as follows: “(3) The number of Deputies cannot be greater than 300. The representatives of national minorities are to complete this number.”

198. The proposal aims at replacing the current regulation of Article 62 (3) of the Constitution, which states that “The number of Deputies and Senators shall be established by the election law, in proportion to Romania’s overall population”. The current rule rightly mentions both groups of parliamentarians and refers to the electoral law, which will determine their number under a constitutional criterion, namely by reference to the population of the country.

199. The amending provisions omit the category of Senators, they no longer lay down criteria for establishing the number of Deputies and Senators, they just set a maximum number of members — 300. Furthermore, they expressly provide that the number so fixed does not include the representatives of citizens’ organisations belonging to national minorities, which, according to the provisions of Article 62 (2) of the Constitution, may vary according to the number of votes obtained by these organisations in order to be represented in the Parliament — Article 62 (2) first sentence and the number of organisations of citizens belonging to national minorities — Article 62 (2), second sentence, the legislation, arguably, creating the appearance a separate specific status of members representing national minorities.

200. The Court, by unanimous vote, recommends the removal of the proposed amendment and preservation of the present rule which covers both the rule of representation and a unitary constitutional framework in relation to the members of Parliament.

Article 64 — Organisational structure 201. Point 49 of the Sole Article of the proposal for the revision of the Constitution

amends Article 64, by inserting a new paragraph, paragraph (41), to read as follows: “(41) Any person of public law, private legal person and individual must appear, directly or through legal representative, before a parliamentary committee, following a written invitation from the latter, except for magistrates. The activity of the parliamentary committee cannot substitute for judicial bodies.”

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202. In accordance with Article 64 (4) of the Basic Law, “Each Chamber shall set up standing Committees and may institute inquiry committees or other special committees. The Chambers may set up joint committees”. This constitutional text states, without doubt, that these committees shall be composed and shall operate in each Chamber, which according to their autonomy to have own standing rules, establish their specific mode of organisation and operation, in the exercise of parliamentary scrutiny in the constitutional democracy.

203. With regard to the duties of such committees, it follows from a combined reading of the constitutional texts that, before the committees, it is necessary to appear only those subjects of law which have a specific constitutional relationship with Parliament under Title III, Chapter IV of the Constitution, entitled Relations between Parliament and Government. Other subjects of law may be invited to take part in the debate in the Committee.

204. These committees do not have statutory or constitutional empowerment to establish the guilt or innocence of a person, but are the expression of parliamentary scrutiny. Their aim is to clarify the circumstances and causes of those particular events under investigation. Therefore, these committees investigate/verify the facts or circumstances, and not individuals. They have to establish the existence or inexistence of facts for which the committee was created, without establishing the financial, disciplinary, administrative or criminal liability of any person.

205. These committees do not have the power to give a verdict, but to draw up a report on the facts under investigation, indicating the conclusions reached on the basis of papers and documents which they had consulted and the hearings carried out (see in this regard Decision no. 924 of 1 November 2012, published in Official Gazette of Romania, Part I, no. 787 of 22 November 2012).

206. Having regard to the aforementioned reasons, the Court finds that establishing the obligation on persons of public law other than those covered by Article 111 of the Constitution, private legal persons and individuals to appear directly or through a legal representative, as appropriate, before parliamentary committees is contrary to the role and purpose of these committees and, implicitly, to the constitutional role of Parliament as legislative authority, in breach of the constitutional principle of separation and balance of powers enshrined in Article 1 (4) of the Constitution. Even though the amending proposal stipulates that “The activity of the parliamentary committee cannot substitute for judicial bodies”, in fact, through the establishment of a constitutional obligation incumbent on the listed persons to appear before the parliamentary committee of parliamentary investigation, the legislative proposal for revision infringes personal liberty enshrined in Article 23 of the Constitution, which may be restricted only in the cases expressly and exhaustively provided for in the Constitution.

207. Furthermore, the proposed changes confer wide powers to this committee, which creates confusion as to the legal nature of its activity and may be described as a form of special jurisdiction, which, although it does not replace the judicial authority, carries out its activity in parallel with the latter.

208. Consequently, the Court concluded, by a majority vote, that the amendment to constitutional provisions infringes the principle of separation and balance of powers and


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individual liberty, being contrary to the provisions of Article 152 (2) of the Constitution relating to the revision limits.

Article 65 — Sittings of the Chambers 209. Point 51 of the Sole Article of the proposal for the revision of the Constitution

amends Article 65 (2), to read as follows: “(2) The Chambers may also meet in joint sessions, based on the regulations passed by a majority vote of all Senators and Deputies, in order to:

a) receive messages from the President of Romania; b) suspend the President of Romania from office; c) approve the State budget and the State social security budget; d) grant the vote of confidence to the Government; e) debate and vote on motions of censure; f) hold the Government responsible under the terms of Article 114 of the Constitution; g) approve Romania’s national strategy of homeland defence; h) declare general or partial mobilization; i) declare a state of war; j) suspend or terminate armed hostilities; k) fulfil any other prerogative, which, in accordance with the Constitution, is exercised in

a joint session.” 210. The Court notes that, in principle, the determination of the competence of parliamentary

chambers, in joint sittings or in separate sittings, has raised constitutional problems. 211. The proposed amendment aims to correlate these provisions with other

constitutional provisions which already establish the cases in which the two Chambers of Parliament operates in joint sitting: Article 88, Article 95, Article 103 (3) or Article 113. The Court notes that the same category includes the following cases: oath‐taking by the President of Romania, set for in Article 82 (2), impeachment of the President of Romania, set forth in Article 96, adoption of laws to accede to the acts amending the constituent treaties of the European Union, set for in Article 148 (3), and adoption of the Law for the revision of the Constitution, if agreement cannot be reached following the mediation procedure, as set forth in Article 151 (2), which were omitted from the list. For a proper systematisation of the normative act and for the accuracy of its contents, the Court recommended that such cases be covered by the provisions of Article 65 (2), following its amendment by the law for revision.

212. Furthermore, through the proposed revision of the Constitution is amended point k), which is now worded as follows: “fulfil any other prerogatives, which ‐ in accordance with the Constitution or the Standing Orders – shall be exercised in a joint sitting”. The new provision, which abolishes the standing orders of the joint activities of the two Chambers as the basis for establishing additional tasks to those set forth in the Constitution, gives expression to the principle of bicameralism and each Chamber’s autonomy to establish own regulation, enshrined in Article 64 (1) first sentence of the Constitution, which states that “The organisation and functioning of each Chamber shall be regulated by its own Standing Orders”. The amendment thus aims to limit the Chambers’ joint sittings only to the situations set out in the Constitution and to remove the possibility that, through standing orders, other cases be added to those established under the Basic Law.

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213. However, if the situations set out in the Constitution are easily identifiable, the Court, by unanimous vote, recommends the rephrasing of the amendment proposed to Article 65 (2) in the sense of an exhaustive listing thereof and the repeal of the provisions of point k), which have thus become redundant.

Article 70 — Term of office of Deputies and Senators 214. Point 57 of the Sole Article of the proposal for the revision of the Constitution

amends Article 70 (2), as follows: “(2) The capacity as Deputy or Senator shall cease: a) when the newly elected Chambers have lawfully convened; b) in case of resignation; c) in case of disenfranchisement; d) in case of incompatibility; e) on the date of resignation from the political party or formation on behalf of which

(s)he was elected or on the date of his/her registration to another political party or formation;

g) in case of death.” 215. The amendment aims to complete the cases of termination of the parliamentary

term of office with two new cases: resignation from the political party or political formation on behalf of which he was elected and registration in another political party or any other political formation.

216. The provisions of Article 69 of the Constitution, which state that, in the exercise of their mandate, Deputies and Senators are in the service of the people and that any compelling mandate shall be null and void, constitute the legal foundation of the representative mandate. This constitutional text underpins the interpretation of constitutional relationship between the MP, on the one hand, and his voters, the political parties or the political formations that had supported that candidacy and the Chamber to which he belongs, on the other hand. However, under this Article, the responsibility for a particular political choice, i.e. the resignation from the political party on behalf of which he was elected or the entry in another political party can only be a political one, moral at the most, but in no case a legal one. Therefore, the application of the sanction of loss of his parliamentary mandate is seriously undermining the interests of voters whom he represents and disregards one of the foundations of parliamentary democracy — the representative mandate.

217. The provisions contained in the legislative proposal are aimed at suppressing the freedom of the MP to join a parliamentary group or another or to become independent from all the parliamentary groups. However, this freedom of choice should be expressed according to own political affinities and the possibilities offered by different parliamentary groups to the MP in order to plenary valorise the voters’ interests, whereas the representative mandate is a guarantee for promotion of and respect for human rights and fundamental freedoms of citizens in parliamentary democracy.

218. We also find relevant the arguments deployed in the Report on the Imperative Mandate and Similar Practices, adopted by the Venice Commission at its 79th Plenary Session, 12‐13 June 2009. According to the Report, “one of the problems in modern democracies, from the point of view of parliamentary stability and fidelity to voters’ choices is the practice of elected representatives abandoning parties in whose lists they were


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elected. [...] Once elected, deputies should be accountable primarily to the voters who elected them, not to their political party. This flows from the fact that they hold a mandate from the people, not from their party. The fact that a deputy has resigned from or has been expelled from the party should therefore not entail their expulsion from parliament.”

219. According to the Report, this point, manifestly contrary to democratic standards, has led to the repeal of the Electoral Law of the Republic of Serbia, which stipulated that the mandate of an elected member of parliament expired if she/he ceased to be a member of the political party or coalition on whose candidate list she/he had been elected, after the Constitutional Court of Serbia, by the decision of 27 May 2003, found that those provisions were unconstitutional. The decision of the Court addressed the question whether the mandates belong to the member elected or to his/her political party. According to the considerations of principle stated in Decision of the Constitutional Court, maintained by the subsequent decision of 25 September 2003 on the same subject, relating to the mandates of members of municipal assemblies, termination of membership of a political party may not constitute grounds for revoking the mandate of an elected member.

220. For the reasons set out above, the Court finds, by a majority vote, that the amendment to the provisions of Article 70 (2) as regards point e), supresses a guarantee of fundamental rights and freedoms — the representative mandate enshrined in Article 69 of the Constitution, violating the revision limits set forth in Article 152 (2) of the Constitution.

Article 72 — Parliamentary immunity 221. Point 59 of the Sole Article of the proposal for the revision of the Constitution

amends Article 72 (2), as follows: “(2) Senators and Deputies may be object to criminal investigation or criminally prosecuted for acts that are not related to the votes or political opinions expressed in the exercise of their office. Senators and Deputies shall not be searched, detained or arrested without the consent of the Chamber whose members they are, after being duly heard.” The amendment concerns the repeal of the second and the third sentence of the current Article 72 (2) which states that “Investigation and prosecution shall only be carried out by the Public Prosecutor’s Office attached to the High Court of Cassation and Justice. The High Court of Cassation and Justice shall have jurisdiction over this case.”

222. Regulation of parliamentary immunity in the Constitution is justified by the need for protection of the parliamentary term of office in order to guarantee the achievement of the constitutional prerogatives and it is also a prerequisite for the functioning of the rule of law. In its work, the MP must enjoy genuine freedom of thought, expression and action so as to exercise his mandate effectively. The concept of parliamentary immunity, under its two forms, protects the MP against possible pressure or abuse committed against his person and thus ensures his independence, freedom and safety in the performance of his rights and obligations under the Constitution and laws (see in this regard Decision no. 799 of 17 June 2011 on the bill for the revision of the Constitution of Romania).

223. Examining the provisions which are currently subject to constitutional review, the Court notes that the regulation in the Constitution of the Prosecutor’s Office attached to the High Court of Cassation and Justice competence to carry out the search and prosecution and the High Court of Cassation and Justice jurisdiction for settlement of cases relating to

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Senators and Deputies, constitutes, in relation to the latter, a constitutional guarantee of a procedural nature, meant to protect the public interest, namely the carrying out the act of law‐making through the exercise of their mandate. In other words, Article 72 (2) of the Constitution institutes a measure of protection of the mandate exercised by the members of the Parliament, therefore having the objective nature of a constitutional guarantee of individual liberty of the person holding the public office and of the right to a fair trial. However, by repealing the provisions referred to, the constitutional guarantee is removed, which is likely to infringe the provisions of Article 152 (2) of the Constitution.

224. Furthermore, having made a comparative analysis of the constitutional provisions and the legislative proposal for revision, the Court notes that the provisions on the jurisdiction of the High Court of Cassation and Justice are listed and kept also in case of other public office‐holders: the provisions of Article 96 (4) with regard to the impeachment of the President of Romania for high treason or Article 109 (2) on the liability of members of the government. From this perspective, the proposal amending only the provisions of Article 72 (2) relating to the liability of Members of Parliament appears to be discriminatory, likely to create inequalities between persons occupying high offices in the State. Thus, the new Constitution establishes a privileged status in terms of protection of the public office mandate for the representatives of the executive power (President of Romania and the Government), public functions acquired by election or nomination, while for the representatives of the legislative power (Senators and Deputies), who acquire their mandate by universal, equal, direct, secret and free suffrage (just like the President of Romania) this constitutional guarantee of criminal procedural nature is abolished.

225. Furthermore, insofar the provisions of the Article 105 (1) first sentence of the Constitution, according to which “Membership of the Government is incompatible with the exercise of any other public office in authority, except for the office of a Deputy or Senator”, are not subject to amendments, it is created discrimination within the same legal category — Members of Parliament, between Senators or Deputies who also have the capacity as member of the Government, on the one hand, and other MPs, on the other hand.

226. Consequently, the Court concludes, by unanimous vote, that the repeal of the second and the third sentence of the current Article 72 (2) removes a constitutional guarantee of individual liberty of the person holding the public office and of the right to a fair trial and violates the principle of equal rights of citizens that hold public offices, and therefore the proposed amendment is unconstitutional, in breach of the revision limits set for in Article 152 (2) of the Constitution.

Article 73 — Classes of laws 227. Point 61 of the Sole Article of the proposal for the revision of the Constitution

amends Article 73(3), i.e. four new points are inserted after point i), as follows: „i1) the statute of legal professions; i2) the statute of the National Bank of Romania; i3) the organisation and functioning of the Constitutional Court of Romania; i4) the organisation and functioning of the Court of Audit”. 228. The proposal aims to complement the category of organic laws with respect to the

laws governing the organisation, operation or status of certain public authorities. For a


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better systematisation of the legislative act, in view of the regulatory object, the Court recommends, by unanimous vote, the redrafting of the provisions in Article 73 (3) by including therein also other organic laws referred to in the Constitution: Article 58 (3) — the Advocate of the People, Article 79 (2) – the Legislative Council or Article 141— the Economic and Social Council.

229. Furthermore, the Court notes that point i4) of the proposed amendment is inconsistent with Article 73 (3) l), which mentions “the organisation and functioning of the Superior Council of Magistracy, the courts of law, the Public Ministry, and the Court of Audit”, which should be amended accordingly.

Article 74 — Legislative initiative 230. Point 62 of the Sole Article of the proposal for the revision of the Constitution

amends Article 74(1), to read as follows: “Legislative initiative shall lie, as the case may be, with the Government, Deputies, Senators, or at least 75,000 citizens holding the right to vote. The citizens who exercise their right to initiate legislation must belong to at least one quarter of the country’s counties, while, in each of those counties or in the Municipality of Bucharest, at least 5,000 signatures should be registered in support of such initiative.”

231. The proposed amendment aims at lowering the threshold of the number of citizens who may have legislative initiative from 100,000 at present to 75,000. The purpose of the rule is to facilitate the legislative process at the citizens’ level and it is in line with the provisions of the Constitution on the revision limits.

232. The constitutional rule provides, among the conditions for citizens’ legislative initiative, the territorial dispersion — citizens who declare their right of legislative initiative must come from at least a quarter of the counties of Romania. However, insofar by the proposal for the revision of the Constitution changes are made in respect of the provisions of Article 3 of the Constitution, i.e. it is introduced the region as a territorial‐administrative division, the Court recommends, by unanimous vote, the rewording of paragraph (1) of Article 74, so that the new provisions be linked with the proposed amendments to Article 3 (3) of the Constitution.

Article 75 — Referral to the Chambers 233. Point 63 of the Sole Article of the proposal for the revision of the Constitution

amends Article 75 (1)—(4), as follows: “(1) Legislative initiatives are subject to debate and adoption in the Senate, as first

competent Chamber, except for those related to the organisation of local public administration, to territory, as well as to the general regime on local autonomy, including those regarding the granting of external loans and those whose regulatory object are the legislative measures resulting from the application thereof, for which the Chamber of Deputies is the primary Chamber referred to.

(2) The primary Chamber thus referred to shall decide within 30 days. For codes and other particularly complex laws, the time limit will be of 45 days. If such time limits are exceeded, the bills or legislative proposals shall be deemed as having been passed.

(3) The Senate shall appoint or elect, as appropriate, under the conditions set by law or by its own Standing Orders:

a) the Advocate of the People;

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b) the president and the section presidents of the Legislative Council; c) the advisers of the Court of Audit; d) the president of the Social and Economic Council; e) the directors of intelligence services; f) the representatives of any other public authority or institution under parliamentary

control. (4) The Senate shall exercise parliamentary control over all public authorities or

institutions referred to in paragraph (3), according to its Standing Orders.” 234. On the proposed amendments in relation to paragraph (1), the Court notes that

the new wording of the constitutional provisions on legislative competence does not remove the principle of bicameralism but simplifies its requirements, in that it restricted the scope of normative act in relation to which the Senate has decision‐making powers. Thus, draft laws or legislative proposals adopted by the Senate are transmitted to the Chamber of Deputies for a final examination. The Senate remains solely a chamber which shall examine the draft legislative act or legislative proposal before the casting vote of the second Chamber. It is a rationalised formula of adoption of law in bicameral system by the casting vote of the Chamber of Deputies. Exception to this rule concern only the legislative initiatives on the organisation of local public administration, organisation of territory, the general rules on local autonomy, the ratification of international instruments, including those on external lending and those covering regulatory legislative measures resulting from their implementation. This option of the framers cannot be censured by the Constitutional Court insofar the two Chambers are on an equal position and have the same legitimacy. However, the Court notes that the preservation of shared competence for the examination of draft laws of the two Chambers, although within strict limits, may lead to a conflict of competence, so that there is no need to repeal the constitutional provisions on resolution of such legislative bottlenecks.

235. Therefore, the Court recommends preserving the current legislative solution with regard to the resolution of conflicts of competence between the two chambers.

236. The provisions of paragraph (1) also contain an inconsistency in terminology: there are therein mentioned the concept of “first competent Chamber” and “primary Chamber referred to”. In order to remove any doubts, the Court recommends the use of the uniform and unequivocal terms whereas in legislative language, the same concepts are only expressed using the same terms.

237. The rule also provides the ratification of the “international instruments”. In the Constitution, there are several provisions which refer to “treaties”, “international agreements” and “covenants”, i.e. those of Article 11, Article 20, Article 91 or Article 146 (b).

238. Pursuant to Article 1 (a) of Law no. 590/2003 on treaties, published in the Official Gazette of Romania, Part I, no. 23 of 12 January 2004, “treaty means the legal act, regardless of name or form, which writes down an agreement at State level, at government level or at departmental level, with the aim to create, modify or extinguish rights and obligations of legal or other nature, governed by public international law and recorded in a single instrument or in two or more related instruments”.

239. The Court therefore recommends the use, throughout the legislative act, of the generic term “treaty”‘, which circumscribes the totality of international legal instruments.


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240. The Court also points out the terminological inconsistency contained in this paragraph: if the second sentence refers, in addition to codes, solely to draft laws, the third sentence refers to draft laws or legislative proposals. The Court notes that from the conjunction of the applicable constitutional provisions, it follows that the legislative initiative represents the proximate genus, whilst the draft laws and the legislative proposals represent the specific differences depending on the holder of a right of initiative: the Government, in case of draft law [Article 74 (3) of the Constitution] and the Senators, Deputies and citizens in case of legislative proposal [Article 74 (4) of the Constitution]. In order to remove any doubts, the Court recommends the use of legal terminology in line with their meaning determined in accordance with constitutional or legal provisions.

241. As regards the changes made to Article 75 (3) and (4), the Court notes that they regulate parliamentary scrutiny on some public authorities or institutions, exercised by the Senate, according to its standing orders.

242. A first observation is that relating to the topography of those provisions. Thus, the marginal title of Article 75 is “Referral to the Chambers”, which is likely to cause the normative content of the article, i.e. the powers of the two Chambers of Parliament in the drafting process, the time‐limits for debate, as well as the ways of resolving potential conflicts of competence. However, the provisions on parliamentary scrutiny have a distinct content, extrinsic to the legislative process, and therefore it is necessary to regulate them in a separate, stand‐alone article with this designation.

243. Therefore, the Court, by unanimous vote, proposes the insertion of the provisions relating to the Senate’s control in the structure of a new article of the Constitution.

244. In accordance with the amending provisions contained in paragraph (4) of Article 75, the Senate exerts parliamentary control over all public authorities or institutions referred to in paragraph (3), according to its standing orders. After the explicit listing contained in points (a) – (e), paragraph (3) f) provides a general rule, namely “the representatives of any other public authority or institution under parliamentary control”. That being so, the Court notes that, reading paragraph (3) f) in conjunction with paragraph (4), it could be interpreted that, the Senate Standing Orders can lay down new cases of parliamentary control on other public authorities or institutions. But the Standing Orders of the Chambers of Parliament are resolutions which enshrine their own internal organisation, such that their provisions can only establish rights and obligations for MP, as well as for authorities, public officers and public servants, depending on their constitutional relationships with the Chamber. Therefore, the Standing Orders of a Parliament’s Chamber cannot establish rights and even less obligations on certain subjects of law unrelated to the same, subjects not listed amongst those above. Such provisions may be included solely in laws, as legal acts of the Parliament.

245. The Court therefore, by unanimous vote, recommends the supplementing of the provisions of Article 75 (3) f) with the phrase “‘in accordance with the law”, so that the category of public authorities or institutions under parliamentary scrutiny can be established only by law.

Article 76 — Passing of bills and resolutions 246. Point 66 of the Sole Article of the proposal for the revision of the Constitution

amends Article 76 (1), to read as follows: “(1) Organic laws, laws that restrict the exercise of

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certain rights or freedoms, under the terms of Article 53, as well as the resolutions on the Standing Orders of the Chambers shall be passed by a majority vote of the members of each Chamber.”

247. In accordance with the provisions of Article 73 of the Constitution, entitled Classes of laws, paragraph (1) establishes that “Parliament enacts constitutional, organic, and ordinary laws.” Therefore, the legal classification enshrined in the Basic Law in respect of laws, with effects on the hierarchy of legislative acts adopted by Parliament, the regulatory and legislative process, is limited to the three categories expressly listed.

248. By amending Article 76 (1), the initiators of the legislative proposal for the revision of the Constitution introduce, in the provisions relating to the procedure for the adoption of laws, a new category of legislative acts, i.e. laws that limit the exercise of certain rights or freedoms, under the terms of Article 53 of the Constitution.

249. It is true that, according to its established case‐law, the Constitutional Court held that the restriction of the exercise of certain rights or freedoms can only be achieved by law as a legal act adopted by Parliament, and in compliance with the conditions strictly and exhaustively set for in Article 53 of the Constitution. But the interpretation of the legal concept contained in Article 53 was intended to limit the possibility of the delegated legislator — the Government —to regulate by emergency ordinance on fundamental rights and freedoms of citizens, in the sense of restriction thereof, in breach of Article 115 (6) of the Constitution.

250. On the other hand, the drafting proposed is open to criticism because it generates confusion in terms of examination of the compliance with the conditions laid down in Article 53. The phrase “the laws that restrict the exercise of certain rights or freedoms, under the terms of Article 53” raise an appearance of a constitutional review carried out prior to adoption of the legislative act where it is found that the conditions laid down in Article 53 of the Constitution are complied with. However, the review of constitutionality is carried out by the Constitutional Court exclusively under the conditions set out in Articles 142‐147 of the Constitution, upon notification, and only after adoption of the law by the Parliament.

251. Therefore, if the framers consider necessary to introduce additional conditions that the ordinary legislator must respect on adoption of laws which limit the exercise of certain rights or freedoms, the solution is not to create a separate category of law, in addition to those listed in the Constitution, but inclusion of the laws with such regulatory object in the category of organic laws.

252. The Court therefore, by unanimous vote, recommends the deletion of the phrase “the laws that restrict the exercise of certain rights or freedoms, under the terms of Article 53” from Article 76 (1).

Article 78 — Coming into force of laws 253. Point 69 of the Sole Article of the proposal for the revision of the Constitution

amends Article 78, by inserting a new paragraph, paragraph (11), as follows: “(11) Access to the electronic version of the Official Gazette of Romania is free of charge and it may not be restricted.”

254. The provisions of Article 1 of Law no. 202/1998 on the organisation of the Official Gazette of Romania, republished in Official Gazette of Romania, Part I, no. 206 of 11 April


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2013, state that “the Official Gazette of Romania is the official publication of the Romanian State, which publishes the acts stipulated in the Constitution, in this law and in other legislation” and, according to Article 3 (1) of the Law “The publishing of the Official Gazette of Romania constitutes a public service ensured by Regia Autonomă ‘Monitorul Oficial’, operating under the authority of the Romanian Government, exercised through the Secretariat General of the Government”.

255. As regards access to the official publication, the provisions of Article 19 of the Law provide that “Regia Autonomă ‘Monitorul Oficial’ shall produce an electronic product containing published acts, which can be accessed free of charge over the Internet and which is available in a readable version for 10 days following publication of the acts in question. Summaries of official gazettes shall be accessible on a permanent basis.”

256. The proposed modification concerns free and unlimited access to the electronic version of the official publication. The advantage of the permanent access, from any location, at no cost, to the acts published in the Official Gazette of Romania creates the potential to enhance individuals’ right to have access to any information of public interest set forth in Article 31 of the Constitution. It is thus fulfilled also the requirement of accessibility of legislative acts, requirement imposed also in the international regulations relating to fundamental rights and freedoms.

257. On the other hand, the Court notes that ensuring free and unlimited access to an electronic version of the official publication must necessarily relate to public‐interest acts adopted by public authorities, general acts applicable at national level, that is, those provided for by Article 5 of Law no. 202/1998, republished, such as: legal acts of Parliament, acts of political nature of the Parliament and of the two Chambers, acts of the President of Romania, acts of the Government, the legislative acts issued by specialised bodies of the central public administration subordinated to the Government, within their jurisdiction established by law, adopted with a view to organising the implementation of laws, decisions, rulings and advisory opinions of the Constitutional Court, acts of the plenary of the Superior Council of Magistracy, decisions pronounced by the United Sections of the High Court of Cassation and Justice, following the resolution of appeals in the interest of the law, decisions and judgments of the European Court of Human Rights handed down in cases in which the Romanian State is the defendant.

258. A similar provision exists also at EU level with regard to the acts adopted by the European Union institutions, i.e. in Regulation (EU) no. 216/2013 of 7 March 2013 on the electronic publication of the Official Journal of the European Union, which, under Article 2 (3), states that ‘the electronic edition of the Official Journal shall be made available to the public on the EUR‐Lex website in a non‐obsolete format and for an unlimited period. Its consultation shall be free of charge.”

259. The Court therefore, by unanimous vote, recommends the rephrasing paragraph (11) proposed to be inserted in Article 78 of the Constitution in the sense that free and unhindered access must be ensured in relation to the electronic version of the Official Gazette, Part I.

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Chapter II — The President of Romania Article 85 — Appointment of the Government 260. Point 75 of the Sole Article of the proposal for the revision of the Constitution

amends Article 85, by inserting a new paragraph, paragraph (31), as follows: "(31) The President of Romania shall designate a candidate to the office of Prime Minister and appoint the Government based on the Parliament’s vote of confidence.”

261. With regard to the normative content of the legislative proposal for the revision of the Constitution, the Court notes that the President, in case of government reshuffle, revokes and appoints, while in case of vacancy of the office, he only appoints some members of Government.

262. As regards the appointment of the members of the Government, in case of investiture of the Government and approval of the governance programme, Parliament verifies, through the standing committees, the candidates for the position of Minister and then discusses and approves by decision, in the joint sittings of the Chambers of Parliament, by a majority vote of Deputies and Senators, the government programme and the complete list of the government. The Parliamentary Resolution, signed by the Presidents of the Chambers is submitted by them immediately to the President of Romania, in order to proceed to the appointment of the Government, as provided for in Article 90 of the Regulation the Joint Sittings of the Chamber of Deputies and the Senate, republished in the Official Gazette of Romania, Part I, no. 461 of 25 July 2013. Appointment of Government by the President of Romania is not made upon referral from the Prime Minister, but upon referred from the Presidents of the two Chambers of Parliament and based on the Parliamentary Resolution for approval of the governance programme and the complete list of Government members. The constitutional obligation of the President of Romania is based on the Parliamentary Resolution and, and in its enforcement, the President issues the decrees of appointment of the members of the Government, followed by the oath‐taking stipulated by law. This is the legal framework required for the situations specified in Article 85 (1) and (3) and Article 103 of the Constitution, provisions developed in the provisions of the Regulation of the Joint Sittings of the Chambers of Parliament.

263. It follows from the text of the Constitution that, in the cases provided for in paragraphs (1) and (3) of Article 85, appointment of Ministers by the President of Romania is an act of enforcement of the resolution of Parliament and investiture, on that basis, of Ministers, by the Head of State. The resolution of the highest representative body of the Romanian people is a binding act, and if the President refuses to enforce it he commits a serious offence of infringement of the Constitution.

264. By contrast with the rules enshrined in Article 85 (1) and (3) of the Basic Law, paragraph (2) of the same Article provides that “the President shall dismiss and appoint, upon proposal of the Prime Minister, some members of the Government”. The interpretation of the wording requires the conclusion that in such a case the President does not enforce a decision of the Parliament, but he is in a position to decide himself on the appointment of Ministers on a proposal from the Prime Minister.

265. The Court notes that the intention of the initiators of the legislative proposal for the revision of the Constitution was to eliminate the differences set out in the three


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paragraphs of Article 85, i.e. to amend paragraph (2) in the sense of removing the decision‐making power of the President of Romania in appointing Members of the Government. The proposed constitutional rule provides, however, as parliamentary procedure, only the hearing of candidates for the position of Member of the Government in the specialised committees of Parliament.

266. Regarding the role of the standing committees, the Court finds that they are internal working bodies of the Chambers of Parliament whose activity is preparatory in order to provide the deliberative forum with all necessary information to adopt the decision. The specialised debates taking place at committees’ meetings shall result in reports or opinions which have the role of preparing and facilitating the work of the Chambers and the debates that will take place in the plenary thereof. Given the parliamentary committees’ characterisation as internal working bodies, the legal nature of the reports or opinions adopted by them is a preliminary act, adopted as a recommendation, to suggest a particular conduct, in terms of decision‐making, to the plenary of each Chamber or to the Joined Chambers. Reports and opinions are binding only in terms of requesting them, and not also in terms of the solutions they propose, as the Senate and the Chamber of Deputies are the only deliberative bodies through which the Parliament performs its constitutional powers.

267. That being so, the amendment proposed with regard to the procedure on the appointment of a Member of the Government in case of government reshuffle or vacancy of office, i.e. establishing the constitutional obligation to hear the candidate in Parliament’s specialised committees, internal working bodies of the Chambers of Parliament whose activity is of preparatory nature, do not create a situation identical cases laid down in paragraphs (1) and (3) of Article 85, where the appointment of Ministers by the President of Romania is an act of enforcement of the resolution of Parliament and investiture, on that basis, of Ministers, by the Head of State.

268. The Court notes that, as the Parliamentary Standing Committees are entitled to verify compliance of the candidate for the function proposed, in relation to certain conditions‐criteria laid down by law [according to Article 2 of Law no. 90/2001 on the organisation and functioning of the Romanian government and ministries, published in the Official Gazette of Romania, Part I, no. 164 of 2 April 2001, “The following may be Members of the Government: persons who have only Romanian citizenship and residence in the country, who enjoy electoral rights, who have not been convicted for criminal offences and who do not find themselves in one of the situations of incompatibility referred in Book I, Title IV of Law no. 161/2003 on measures to ensure transparency in the exercise of public offices, of public positions and in the business environment, and to prevent and punish corruption, as amended], without exercising a right of veto, so neither the President of Romania has a veto against the proposal of the Prime Minister, but he may refuse it for non‐compliance with the conditions laid down by law. That being so, the proposal for amendment of Article 85 (2) does not affect the decision‐making power of the President of Romania in appointing the Members of the Government.

269. Having regard to those arguments, the proposal for the revision of the provisions of Article 85 is devoid of legal logic by introducing paragraph (31) stating that the President of Romania cannot refuse the proposal of the Prime Minister to appoint certain Ministers.

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Moreover, in the context analysed above, between the moment of formulation of the proposal and the appointment of the Minister, in accordance with paragraph (2), the candidate is heard in Parliament’s specialised committees to verify compliance with the conditions appropriate to the function, so that that the provisions of paragraph (31) ignore the Parliament’s role in the procedure of appointment of Ministers.

270. The Court considers that the provisions of Article 85 (31) do not have any justification in the constitutional framework thus regulated. The Prime Minister may not impose a particular option with regard to persons who will occupy the function of Member of the Government, either to Parliament or to the President, as State authorities have the constitutional obligation to exercise in good faith and in the spirit of sincere cooperation the powers which the law imposes on each of them.

271. The Court therefore, by unanimous vote, recommends the rephrasing of the provisions of Article 85 (31) in the sense that the President of Romania may refuse the proposal of the Prime Minister on appointment of certain Members of the Government if they do not comply with the legal requirements.

Article 89 — Dissolution of Parliament 272. Point 77 of the Sole Article of the proposal for the revision of the Constitution

amends Article 89 (1), as follows: “(1) After consultation with the presidents of both Chambers and with the leaders of parliamentary political parties, formation or alliances, the President of Romania may dissolve the Parliament if it did not grant its vote of confidence for the investiture of the Government has been obtained within 60 days after the first request, and only after rejection of at least three requests for investiture.”

273. The proposed amendment concerns the constitutional provisions on the power of the President to dissolve Parliament. A first change concerns the condition of prior consultation of president of parties, parliamentary political formations or alliances, which replaces the consultation of leaders of parliamentary groups provided for in the current Constitution.

274. While this Constitution provides for the possibility of the President to dissolve Parliament, the proposed change creates an obligation to dissolve the Parliament if the conditions are met cumulatively: no vote of confidence to form the Government has been obtained within 60 days after the first request, on the one hand, and rejection of at least three requests for investiture, on the other hand. The number of requests for investiture has been increased to three in order to correlate the constitutional provision with the proposed amendment to Article 103 on the procedure for the investiture of the Government.

275. However, the Court notes that there is a contradiction between the cases of implementation of the constitutional provisions thus amended: on the one hand, the mandatory rule imposing an obligation on the President to dissolve Parliament if the two conditions mentioned above are met cumulatively, and, on the other hand, the condition of prior consultation of parties, parliamentary political formations or alliances. In other words, even if the objective conditions relating to the failure to obtain the vote of confidence to form the Government within 60 days after the first request and rejection of at least three requests for investiture would be complied with and such would allow the President to dissolve Parliament, the condition of prior consultation of subjects of law set out in the


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amendment — which clearly cannot be enshrined only technically, without giving it legal effect ‐, cancels the mandatory nature of the subsequent provisions.

276. That being so, in order that the constitutional provisions of Article 89 (1) produce the legal effects for which they were regulated, the Court recommends, by unanimous vote, that the text be redrafted so that the President can dissolve Parliament in the conditions strictly established.

277. As regards the concepts introduced, the Court notes that, according to Article 1 of Law no. 14/2003, republished in the Official Gazette of Romania, Part I, no. 550 of 6 August 2012, “political parties are associations of a political nature of Romanian citizens with the right to vote, freely participating in the expression and exercise of their political will, fulfilling a public task constitutionally guaranteed. They are legal persons governed by public law” and, according to Article 28 (1), “Political parties may work together on the basis of a Protocol of Association as a political alliance”. The law does not contain any reference to the content of the notion of “political formations”. The Court therefore takes the view that the framers, in the rules they enact, should not use terms and notions which are not to be found in the application of the law, use a precise, concise language and lay down rules of principle.

Article 90 — Referendum 278. Point 79 of the Sole Article of the proposal for the revision of the Constitution

amends Article 90, as follows: "(1) The President of Romania or at least 250,000 citizens with the right to vote may

request the people to express their will by referendum on issues of national interest, except on issues referring to the revision of the Constitution.

(2) Citizens who initiate the organisation of the referendum must come from at least half of the country’s counties, and in each of these counties or in Bucharest at least 10,000 signatures must be registered in support of this initiative.

(3) The referendum shall be deemed valid if at least 30% of the persons registered in the electoral rolls participate in the referendum.”

279. The proposed modification aims to introduce a new holder of the right to initiate a national referendum on matters of national interest, the collective subject consisting of 250,000 citizens with voting rights, which respects the territorial dispersion conditions imposed by paragraph (2) of Article 90 — citizens who declare their right of legislative initiative must come from at least half of the counties of Romania. However, whereas the proposal for the revision of the Constitution brings changes in respect of the provisions of Article 3 of the Constitution, i.e. introduces the region as a territorial‐administrative division, the Court recommends, by unanimous vote, the rewording of paragraph (1) of Article 90, so that the new provisions t be linked with the proposed amendments to Article 3 (3) of the Constitution.

280. The initiators of the proposal for the revision of the Constitution propose also a restriction of the scope of issues which may be covered by national referendum, excluding those which are likely to entail a revision of the Constitution. The proposal is in line with the provisions of Article 150 of the Constitution, which stipulates that “Revision of the Constitution may be initiated by [...] at least 500,000 citizens with the right to vote”. Therefore, citizens may take the initiative of revision of the Constitution provided for by the

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Constitution and by law, thereby removing the criticised situation of organisation of two referenda having the same purpose: one that would constitute the ground for initiating the procedure for the revision of the Constitution and another that would finalize the revision procedure pursuant to Article 151 (3) of the Constitution.

281. However, the Court considers that the phrase “except on issues pertaining to the revision of the Constitution” have a great degree of generality, which can cause confusion as to the interpretation and application thereof, and therefore recommends, by unanimous vote, replacing them with “except those on issues requiring the revision of the Constitution”.

282. With regard to the procedure for the organisation and conduct of the referendum, the role of the Constitutional Court, under Article 146 i) of the Constitution, is to ensure compliance with the procedure and to confirm the results of the referendum. However, in the new situation created by the introduction of the collective subject consisting of 250,000 voters, the Constitutional Court will have to check the compliance with the conditions for the exercise by citizens of the initiative to initiate a referendum: the minimum number of supporters for the promotion of the initiative and the constitutionality of the initiative to initiate a referendum — respect of the limit set forth by the framers.

283. In this context, the Court notes that the referendum, regardless of its nature – binding or consultative referendum, is a way of exercising national sovereignty, based on Article 2 of the Constitution, which enshrines the will of the Romanian framers in the sense that, within representative democracy, national sovereignty belongs to the Romanian people, but it cannot be exercised in a direct way, at individual level, the form of the exercise being the indirect and intermediated one, through the process of election of representative bodies, by expressing the will of citizens in free, regular and fair elections and by referendum.

284. Whereas there may be circumstances in which the issues on which the people is called upon to express its will may affect the interests of elected representatives (such as reducing the number of MEPs or reduce parliamentarians’ allowances), the Venice Commission, in the document entitled Guidelines on the holding of referendums, adopted at the 68th Plenary Session (13‐14 October 2007), held that referendums should be clearly specified in the Constitution or by law whether referendums are legally binding or consultative. It is preferable for referendums on questions of principle or generally‐worded proposals to be consultative. If they are legally binding, the subsequent procedure should be laid down in specific constitutional or legislative rules.

285. In the case of the consultative referendum, the fact that none such subsequent procedure is established does not imply the lack of effect of this referendum. In this light, what distinguishes a consultative referendum from a binding referendum is not primarily the question relating to respect for the will of the people — that will cannot be ignored by the people’s elected representatives, whereas it is an expression of national sovereignty — but the effect (direct or indirect) of the referendum. Unlike the binding referendum, the consultative referendum produces an indirect effect in the sense that it requires the intervention of other bodies, mostly legislative bodies, to enforce the will expressed by the electoral body (see Decision no. 682 of 27 June 2012, published in Official Gazette of Romania, Part I, no. 473 of 11 July 2013).


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286. That interpretation is also based on the principle of constitutional loyalty, arising from and interpreted in relation to the constitutional provisions of Article 1 — “The Romanian State”, Article 2 — “Sovereignty” and Article 61 — “Role and structure” (of Parliament), a principle which, in this matters, requires that the authorities with decision‐making powers in areas affected by the issues subject to the referendum (in this case the Parliament) take into account, analyse and identify ways of implementing the will expressed by the people. Another view on t referendum e effects of the consultative referendum would reduce it to a purely formal exercise, a simple opinion poll.

287. In conclusion, the Court recommends, by unanimous vote, the regulation in Article 90 (1) of the Constitution of the legal effects of the consultative referendum and the subsequent procedure for conducting such scrutiny.

288. In making such recommendation, the Court also took account of the legal situation created by organisation of the national referendum of 22 November 2009, initiated by the President of Romania and confirmed by the Constitutional Court of Romania in its Ruling no. 37 of 26 November 2009, published in Official Gazette of Romania Part I no. 923 of 30 December 2009. On that occasion, the Court held that the political will of the people, expressed through the referendum, was that to renounce to one of the Chambers of Parliament and to establish a maximum number of MPs, determined according to the legal requirements, major changes in the structure of the legislative authority, requiring amendment of the Basic Law. The popular will expressed in that scrutiny has become devoid of legal consequences.

289. As regards the provisions of Article 90 (3), they establish at constitutional level the threshold/condition for validating the national referendum: participation of at least 30 % of the number of people entered on electoral rolls.

290. Regulating or modifying the conditions for the validity of the referendum is of exclusive competence of the legislator, it alone entitled under Article 73 (3) (d) of the Constitution to establish by organic law the organisation and conduct of this instrument of popular consultation.

291. The Court considers that determining the quorum of participation in the referendum is an attribute of the ordinary legislator, so that it is not necessary to establish a rule of constitutional status with such object.

292. Therefore, the Court recommends, by unanimous vote, removal of the provisions of Article 90 (3), proposed to be introduced by the law for revision.

293. Where the constitutional legislator does not endorse the recommendation made by the Court, it is necessary to insert into the Constitution transitional rules on the moment of entry into force of provisions establishing the quorum for the referendum, which cannot be earlier than that established by the Constitutional Court in its Decision no. 334 of 26 June 2013, published in Official Gazette of Romania Part I no. 407 of 5 July 2013, namely before the expiry of one year from the date of publication in the Official Gazette of Romania, Part I, of the legal provisions amending the referendum law.

Article 91 — Powers in matters of foreign policy 294. Point 80 of the Sole Article of the proposal for the revision of the Constitution

amends Article 91, by inserting a new paragraph, paragraph (11), as follows: “(11) The

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President shall represent Romania to the European Union meetings on EU foreign relations, common security policy, the amending or supplementing of the founding Treaties of the European Union.”

295. The wording of the second sentence of Article 10 (2) and of Article 15 (2) of the Treaty on the European Union concerning the composition of the European Council — the Heads of State or Government of the Member States — is a general one and does not oblige Member States with two‐headed executive power to ensure their representation both through the Head of State and the Government, but an teleological interpretation of the text leads rather to the idea that the aim is to ensure Member State’s representation at the highest level by the competent public authority.

296. Therefore the expression used in the legislative proposal for the revision of the Constitution, according to which “the President shall represent Romania to the meetings of the European Union”, are of highly general nature, creating confusion about the Presidential institution’s powers in this area.

297. The Court, by unanimous vote, recommends the redrafting of these provisions in the sense of circumstantiating the obligation of representation of Romania by the Head of State at the meetings of the European Council.

Article 95 — Suspension from office 298. Point 85 of the Sole Article of the proposal for the revision of the Constitution

amends Article 95, by inserting a new paragraph, paragraph (31), as follows: “(31) If the referendum for the removal from office is valid, but the proposal for removal does not meet a majority of 50% plus one of the votes validly cast, the Parliament shall be dissolved and early parliamentary elections shall be held within the following 45 calendar days. The provisions of Article 90 (3) shall apply accordingly.”

299. The amending rule establishes a political sanction applied to Parliament if the proposal for dismissal of the President of Romania, following the suspension from office through a decision adopted by the Senate and the Chamber of Deputies, in joint sitting, fails to secure a majority of 50 % plus one of the votes validly cast in a referendum for dismissal of the Head of State. If Parliament’s decision to suspend and then dismiss the President from office does not have the people’s support, democratically exercised by referendum, the penalty imposed on the legislator appears as a natural consequence in the functioning of the institutions of the State, within constitutional democracy.

300. Thus, the proposed rule establishes a new case of dissolution of Parliament, which occurs de jure under the constitutional provision. But the norm is not clear and foreseeable in terms of the moment when the penalty applies — “Parliament shall be dissolved” — or in terms of the legal act establishing the dissolution. As long as the dissolution and depends on the validity of the referendum and on the confirmation of the results thereof, tasks falling within the competence of the Constitutional Court, the Court, by unanimous vote, recommends the supplementing of the constitutional rule in the sense that, in the given case, the dissolution of Parliament must be established by the ruling of the Constitutional Court confirming the results of the referendum.

301. Whereas the Court has recommended the removal of the amendments proposed in relation to the provisions of Article 90 (3), which establish the quorum of participation in


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the referendum, on the grounds that the regulation does not have constitutional status, by unanimous vote, it is recommended also the removal of the provisions of Article 95 (31), second sentence.

Chapter III — The Government Article 102 — Role and structure 302. Point 90 of the Sole Article of the legislative proposal for the revision of the

Constitution inserts a new paragraph, paragraph (31), within the same article, as follows: “(31) The Government shall ensure representation of Romania at the meetings of the

European Union institutions, except for those provided in Article 91 (11)”. 303. The Court notes that the proposed amendment on Article 102 of the Constitution,

by introducing paragraph (31), is one which may affect the proper functioning of State institutions.

304. In terms of the terminology used, there is a difference between this text which refers to “meetings of the European Union institutions” and that of point 80 of the Sole Article of the proposal for revision concerning the insertion of a new paragraph (11) to Article 91 of the Constitution, which concerns “the meetings of the European Union”.

305. It is also clear that the meetings of European Council may cover multiple areas and subjects (from internal policy to external policy of the European Union) and that the meetings of other European institutions, regardless of the topic under discussion (external relations, security), are attended only by Government representatives (e.g. Council of the European Union).

306. To accept the logic of the texts proposed would mean that there is a parallel and shared representation of Romania to the European Council, and that both the Prime Minister and the President of Romania can attend its meetings. Moreover, if one and the same meeting refers to topics which, according to the initiative for the revision of the Constitution, fall within the scope of competence of the President of Romania and of the Prime Minister, we find ourselves in a situation where representation of Romania is fragmented, the President participating in the meetings on some items of the agenda and the Prime Minister participating in the meetings on other items of the agenda. Such an approach on the competencies of the two institutions is contrary to the provisions of the Treaty on European Union, according to which the Member State is represented by one representative per meeting.

307. Likewise, to accept the logic of proposed texts would mean, for example, that the representation of Romania to the European Union, would be ensured, depending on the scope of the activities of its formation, by the President of Romania or the Prime Minister. Thus, Article 16 (2) of the Treaty on European Union provides that “The Council shall consist of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote”.

308. Furthermore, according to the first and second sentences of Article 16 (6) of the Treaty on European Union, the European Council “shall meet in different configurations”, and one of these configurations, namely the General Affairs Council, “shall ensure consistency in the work of the different Council configurations […] It shall prepare and ensure the follow‐up to meetings of the European Council, in liaison with the President of

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the European Council and the Commission.” Moreover, another configuration, respectively, the Foreign Affairs Council “shall elaborate the Union’s external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union’s action is consistent.” [third sentence of Article 16 (6) of the Treaty]. Therefore, the prerogative to attend meetings of the Council lies with representatives at ministerial level of each Member State.

309. In this context, the Court concluded, first, that the representation of Romania to the European Council should be consistent, and, on the other hand, it cannot be denied the Government’s plenary jurisdiction to ensure the representation of Romania to the European Union irrespective of the issues discussed in its configurations.

310. The text must be in accordance with Article 10 of the Treaty to achieve a unified representation of Romania to the European Council. In this regard, a solution is also the current one, namely the representation of the State by the President of Romania, in accordance with the conditions laid down by Constitutional Court Decision no. 449 of 6 November 2013, published in Official Gazette of Romania Part I no. 784 of 14 December 2013, and the President is to mandate the Prime Minister to attend these meetings, if certain objective criteria are met, such as: (1) the public authority best placed in relation to the subjects addressed at the European Council, (2) the position of the President of Romania or that of the Prime Minister on these topics be justified by a viewpoint consistent with that of Parliament or (3) the difficulties involved in the implementation of those established within the European Council.

311. Therefore, the Court finds that, in no event, the Constitution can contain a restrictive approach, such as that envisaged in the proposal for the revision of the Constitution, because otherwise, such would lead to the creation of bottlenecks in terms of the constitutional powers of the two authorities involved. For this reason, the proposed regulatory solutions have to be reassessed and correlated so that ultimately they do not result in infringement of the Treaty on European Union.

312. In view of the above, by unanimous vote, the Court recommends the rephrasing of the amendment of Article 102 of the Constitution, by inserting a new paragraph, paragraph (31).

Article 103 — Investiture 313. Points (91) and (92) of the Sole Article of the legislative proposal for the revision of

the Constitution amend Article 103 (1) and (3) of the Constitution and insert there new paragraphs under the same article, paragraphs (31)—(33), as follows:

“(1) The President of Romania shall designate as candidate for the office of Prime Minister a representative proposed by the political party or the political alliance having participated in the elections and having obtained the largest number of parliamentary seats, according to the official election result. If there are several political alliances that have participated in the elections and have obtained the same number of seats, the President of Romania shall designate as candidate for the office of Prime Minister the representative proposed by the political party or the political alliance having participated in the elections and having obtained the highest number of votes, according to official election result.

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(3) The programme and list of the Government shall be taken up for debate by the Senate and Chamber of Deputies, in joint sitting. Parliament shall grant its confidence to the Government by a majority vote of Senators and Deputies.”

„(31) If the candidate for the office of Prime Minister resigns from office, does not appear before Parliament for the vote of confidence within the prescribed period or does not obtain the vote of confidence, the President of Romania shall appoint as candidate for the office of Prime Minister the representative proposed by the political party or political having partici‐pated in the elections and having obtained the second highest number of parliamentary seats, according to official election result.

(32) If the second candidate for the office of Prime Minister resigns from office, does not appear before Parliament for the vote of confidence within the prescribed period or does not obtain the vote of confidence, the President of Romania shall appoint as candidate for the office of Prime Minister the representative proposed by a coalition of parliamentary political parties totalling the absolute majority of parliamentary seats, according to official election result.

(33) If the third candidate for the office of Prime Minister resigns from office, does not appear before Parliament for the vote of confidence within the prescribed period or does not obtain the vote of confidence, the President of Romania shall dissolve the Parliament.”

314. The modifications proposed to Article 103 of the Constitution govern a new procedure for nominating the candidate for the position of Prime Minister. According to these modifications, the President of Romania is required to designate as candidate the representative proposed by the political party or the alliance of political parties which obtain the highest number of seats in the elections or, in the event of parity in the number of seats, the representative proposed by the political party or the alliance of political parties who received the largest number of votes in the elections. If he resigns his mandate, does not appear before Parliament for the vote of confidence within the time limit set or does not obtain a vote of confidence, the President of Romania is required to designate as candidate the representative proposed by the political party or the alliance of political parties which has obtained the second highest number of parliamentary seats in the elections. If also he resigns his mandate, does not appear before Parliament for the vote of confidence within the time limit set or does not obtain a vote of confidence, the President of Romania will designate as candidate for the position of Prime Minister the representative proposed by a coalition of parliamentary political formations which has an absolute majority of parliamentary seats, according to the official results of the elections. Finally, if Government formation fails also in this situation, the President is required to dissolve Parliament.

315. The Court notes that the initiators of the proposal for the revision of the Constitution raise a procedure for designation of the candidate for the position of Prime Minister in three steps based on both the electoral result obtained by the political parties or alliances participating in elections ranked on the 1st two positions and on the ability of a parliamentary political alliances to ensure an absolute majority of parliamentary seats. The Court notes that the text under consideration focuses on electoral result obtained by the political parties or alliances participating in elections, placing as last and purely alternative option the capacity of a parliamentary political alliances to ensure an absolute majority of parliamentary seats.

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316. According to the legislative proposal for revision, these criteria are not concurrent, but consecutive, so only if, for any reason, the Government’s investiture cannot be made under the first criterion, the President will call on the second. Establishing a rigid order in designating the candidate could cause serious problems likely to affect the proper functioning of the State, and the Court mentions, as an example, the case where the political party or the political alliance participating in elections which obtained the highest number of parliamentary seats does not have an absolute majority of parliamentary seats. Often, there are arrangements/agreements between political parties/alliances — that have not obtained the highest number of seats — on the designation of a particular person as candidate for the position of Prime Minister, especially where two or more parties obtained a similar number of seats; in this case, it can be created an absolute parliamentary majority consisting of political parties or alliances ranked on the next positions. According to the proposed text, the President of Romania is obliged to designate as candidate a person proposed by the political party/alliance that obtained the largest number of seats, although it is clear, at the outset, that he will not be able to obtain the investiture vote of the Parliament. Therefore, the new text does not take account of the political reality and it is likely to create the premises for repeated early elections.

317. The Court also notes that the text proposed to be added to Article 103, paragraph (33), is not correlated with that proposed under Article 89 (1) of the Constitution, to the effect that if the President of Romania is obliged to dissolve Parliament, it is no longer justified the need to consult the presidents of the two Chambers of Parliament and the presidents of parliamentary political parties, alliances or formations. Such consultation would have been necessary only if he could dissolve the Parliament — as envisaged in the current Article 89 (1) of the Constitution. Moreover, it is also noted that time limit within which Parliament will be dissolved is not mentioned therein.

318. Having regard to the shortcomings that the procedure above analysed could create, the Court notes that the procedure for designating the candidate for the function of Prime Minister must consider concurrently the two criteria mentioned above, because one cannot ignore the electoral result of election competitors or the purpose of the procedure, namely the designation of a candidate who can ensure a parliamentary majority in order to obtain vote of confidence.

319. Therefore, the President of Romania, as he may not play a decision‐making role in this procedure but a role of arbitrator and facilitator between the political forces, has only the power to designate as candidate the representative proposed by of the political alliance or political party that holds the absolute majority of parliamentary seats or, if no such majority exists, the representative proposed by the political alliance or political party which can provide the parliamentary support needed to obtain to vote of confidence of the Parliament.

320. Furthermore, the Court notes that the current wording of Article 103 of the Constitution refers to a situation in which the Government’s term of office ends before expiry, according to Article 106, first sentence of Article 107 (3), Article 113 or Article 114 of the Constitution. The proposed new legislation is premised on only the situation in which the President of Romania designates the candidate for the position of Prime Minister


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immediately after the parliamentary elections. Thus, although the Government has been dismissed by a motion of censure, the candidate will be invariably proposed by the political party/ alliance participating in elections which obtained the highest number of parliamentary seats regardless of the political situation. However, it may happen that during the parliamentary term the political party or political alliance participating in elections which obtained the highest number of seats be dissolved or split, which would involve both difficulties in determining the political party or political alliance whose representative must be designated as a candidate and the obligation to carry out a procedure which in any event would not have any purpose in obtaining the vote of confidence.

321. Consequently, the Court finds that the proposed text, through the mechanisms of designation of candidates for the position of Prime Minister, establishes a monopoly for the political party or political alliance participating in elections which obtained the highest number of seats, without holding an absolute majority, on the proposal of the representative to be designated as a candidate, failing to take account of the need to ensure the governance act in the conditions of a parliamentary support which would allow the granting of the investiture vote and the implementation of the governance programme. Accordingly, setting a binding mechanism on the freedom of action of the parliamentary political parties has as effect the inability to adapt the examined regulatory solution to new situations.

322. Thus, although apparently the examined text clarifies the powers of the President of Romania, by the excessive rigidity of the procedure for designation of the candidate for the position of Prime Minister, on the one hand, does not cover all possible constitutional hypothesis and, on the other hand, fails to take account of the political configuration/situation in Parliament. In these circumstances, such a procedure lacking flexibility can easily give rise to political crisis and thus become a real constitutional obstacle.

323. The Court also notes that, in terms of the terminology used in case of the candidate designated for the position of Prime Minister, the following words are repeated “resigns from office, does not appear before Parliament for the vote of confidence within the prescribed period or does not obtain the vote of confidence” where all three assumptions have regard to the fact that he did not obtain the vote of confidence irrespective of the reasons for this.

324. On the other hand, by the method of designation of the candidate for the position of Prime Minister, it is disregarded the vote freely expressed by voters in the parliamentary elections, as it creates the premises for designation of the candidate from amongst the members of the political party or political alliance with the greatest number of votes or seats at the detriment of a post‐election political alliance which can secure parliamentary support for obtaining the vote of confidence of the Parliament. Thus, the result of the elections, representing the will of the electoral body expressed through the ballot, requires the President of Romania to designate as candidate for the position of Prime Minister the representative proposed by the political alliance or political party that possesses the absolute majority of parliamentary seats or, if no such majority exists, the representative proposed by the political alliance or political party which can provide support to parliamentary vote of confidence of the Parliament.

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325. To regulate, even at constitutional level, the right of a parliamentary minority to invariably propose the designation of the candidate for the position of Prime Minister is to accept that a government without electoral legitimacy may obtain the investiture. Not to take account of the fact that citizens have opted in favour of some election competitors that are forming or may form an absolute majority, which could ensure the investiture of the Government, is to affect decisively the right to vote, as the right to vote directly concerns Parliament’s political configuration and, indirectly, the investiture of the Government. In these circumstances, the Court finds that the proposed text removes a guarantee of the right to vote, i.e. the respect for the outcome of the free suffrage.

326. For these reasons, by majority vote, the Court notes the unconstitutionality of the amendment to Article 103 (1) and (3) of the Constitution, as well as of the completion to Article 103 of the Constitution with three new paragraphs, paragraphs (31)—(33), relating to the method of designation by the President of the candidate for the position of Prime Minister, as contravening the revision limits set forth in Article 152 (2) of the Constitution.

Article 110 — Cessation of the term of office 327. Point 98 of the Sole Article of the legislative proposal for the revision of the

Constitution amends Article 110 (1) of the Constitution, as follows: “(1) The Government shall exercise its term of office until the investiture of the new

Government.” 328. The Court notes that the proposed text removes a guarantee of the right to vote,

namely the respect for the outcome of free suffrage. In this respect, the Court notes that the current wording of Article 110 (1) of the Constitution provides that the Government exercises office until the validation of the general elections for Parliament. Such a solution is justified, whereas investiture was carried out by a Parliament whose political configuration was the result of parliamentary elections where citizens expressed their vote, resulting thus a certain parliamentary majority. The legitimacy of Government to exercise its term continues for the duration of the term of office of the Parliament that invested it. Therefore, the vote of investiture from Parliament legitimises the Government until the electoral body expresses new political options during new parliamentary elections. Therefore, continuation of the term of office of the Government after the elections were validated until the investiture of the new Government, as proposed in point 98 of the Sole Article, disregards the will freely expressed by the electoral body during parliamentary elections.

329. Such a transitional situation namely the period from validation of general parliamentary elections and the investiture of the new Government, may take a very long time and depends exclusively on the constitutional and political conduct of public authorities involved in the investiture of the new Government.

330. It is thus disregarded the vote expressed by voters during parliamentary elections, which crucially affects the right to vote. Not to take account of the fact that citizens have elected a new Parliament and that, with voting through free elections, the Government invested in the previous election results is de‐legitimised, is to cancel the guarantees of the right to vote, i.e. respect for the outcome of free suffrage.

331. Therefore, the expression of the right to vote concerns, directly, a new political configuration of Parliament and, implicitly, of the Government and, indirectly, the loss of the


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popular legitimacy by the Parliament elected according to the options expressed in previous elections and by the Government it invested. Moreover, in the current constitutional regulation, Parliament’s terms of office is 4 years and such extends until the new Parliament legally meets and the Government exercises his term until parliamentary elections and may carry out only acts of administration until the oath‐taking by the members of the new Government. In these circumstances, the Court finds that in the period between the expiry of the terms of office obtained on the basis of elections and until the meeting of the new Parliament or the investiture of the new Government is a transitory situation that cannot justify the existence of a full term of office as of right of the Parliament or the Government resulted on the basis of a previous popular vote.

332. The Court notes that the authors of the proposal for revision did not correlate the amendment thus proposed — which infringes the revision limits — with paragraph (4) of the same Article 110, which makes a further reference to paragraph (1), in the sense that it refers to a Government whose term of office ended on the date of validation of the general parliamentary elections and that fulfils only the acts required for the administration of public affairs. However, newly introduced hypothesis refers to a Government with full term of office, excluding the possibility of a Government whose term has ceased during the period between validation of general parliamentary elections and the date of investiture of the new Government.

333. For these reasons, the Court, by unanimous vote, found unconstitutional the amendment of Article 110 (1) of the Constitution, on the Government’s term of office, as contravening the revision limits set forth in Article 152 (2) of the Constitution.

Chapter IV — Relations between Parliament and Government Article 114 — Assuming responsibility by the Government 334. Point 102 of the Sole Article of the legislative proposal for the revision of the

Constitution amends Article 114 (1) of the Constitution, as follows: “(1) Only once during a parliamentary session, the Government may assume its

responsibility before the Senate and the Chamber of Deputies, in joint sitting, with respect to a programme, a statement of general policy, or a bill”.

335. On this regulatory solution, the Court, by Decision no. 799 of 17 June 2011 on the bill for the revision of the Constitution of Romania, stated that “the quantitative limitation of the Government’s possibility to use this procedure during a parliamentary session removes the premises for abusive exercise by the Government of its constitutional right to assume responsibility before the Parliament, and, as regards the legislative authority, it can exercise its full jurisdiction, as provided for by Article 61 (1) of the Constitution”.

336. In this context, the Court recalls its recommendation proposed in the text of Decision no. 799 of 17 June 2011, on completing the provisions of Article 114 (1) of the Constitution, to limit the regulatory object on which the Government can assume responsibility to a programme, a policy statement or a single draft law regulating in an uniform manner the social relations pertaining to a single area. By that decision, the Court held that “the absence of such a conditionality with regard to the scope of regulation of the draft law would result in circumvention of the constitutional provisions proposed to be amended, namely the possibility for assume responsibility once per session, whereas they

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enable the Government to assume responsibility through a draft law, which formally complies with the constitutional requirements, but which, through a complex structure and heterogeneous content, would encompass regulations from very different social fields”.

337. In view of the above, by unanimous vote, the Court recommends the rephrasing of the proposed amendment to Article 114 (1) of the Constitution.

Article 115 — Legislative delegation 338. Point 103 of the Sole Article of the legislative proposal for the revision of the

Constitution amends Article 115 (6) of the Constitution, as follows: “(6) Emergency ordinances cannot be adopted in the fields of constitutional laws or on

the regime of offenses, penalties and execution thereof, nor may these affect the status of State fundamental institutions or any of the rights, freedoms and duties set forth in the Constitution, the electoral rights, or envisage any measures for the forcible transfer of assets into public property”.

339. The proposed amendment to Article 115 (6) of the Constitution concerning the lack of material competence of the Government to adopt emergency ordinances on the regime of offence, penalties and execution thereof, which is likely to preclude the possibility of attributing criminal liability through emergency ordinance, which shall enter into force on the day of its publication. It is avoided the qualification as an offence of the facts committed on the day of publication of the emergency ordinance in the Official Gazette of Romania, Part I (see, with regard to a similar situation, Decision no. 28 of 5 February 2013, published in Official Gazette of Romania, Part I, no. 164 of 27 March 2013), since the mentioned matter can be governed only by organic law, which, according to Article 78 of the Constitution, shall enter into force on the third day after the date of publication or at a later instant as is specified therein.

340. In this vein, whereas the emergency ordinance is a law‐level normative act, the subjects to whom it addresses must have a minimum period to become aware of the regulations therein and adjust their conduct accordingly, the Court expressly suggests that it is necessary to clarify the date of entry into force of the emergency ordinance, i.e. the day following that of its publication in the Official Gazette of Romania, Part I.

Chapter V — Public administration Article 119 — National Security Council 341. Point 104 of the Sole Article of the legislative proposal for the revision of the

Constitution amends Article 119 on the Supreme Council for National Defence. According to the normative content of the proposal the new regulation envisages the same institution, whose title is changed to “National Security Council”.

342. Article 119 (1), in the proposed wording, is to read as follows: “The National Security Council shall see to the organisation and unitary coordination of activities concerning national security, participation in maintaining international security and in collective defence arrangements within the systems of military alliance, as well as in peace‐keeping or restoring missions”.

343. The Court notes that, unlike the current regulation, the proposed wording omits from the scope of activities that the National Security Council is to organise and unitarily coordinate the “defence of the country”, by merely referring to “national security”. Clearly,


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the term “national security” does not automatically include “the defence of the country”. This is because “the defence of the country” implies the possibility of active and dynamic intervention in case of attacks or hostile actions from the outside, whereas “national security” involves activities intended to keep a pre‐existing state of peace and internal security.

344. The Court recommends the reintroduction of the phrase “defence of the country”, as its deletion has no justification. This is all the more so since, as regards the external component of the activity of the National Security Council, refers both to “international security” and “collective defence”. Therefore, by unanimous vote, the Court recommends to redrafting of the proposal amending the provisions of Article 119 (1) of the Constitution.

345. The Court notes that Article 119 (2), according to the proposal for revision, will read as follows: “The National Security Council shall issue decisions that are binding for the public administration authorities and public institutions”.

346. Currently, the Supreme Council for National Defence is organised and operates pursuant to Law no. 415/2002, published in the Official Gazette of Romania, Part I, no. 494 of 10 July 2002, which, in Article 3, provides that “in carrying out the tasks incumbent upon it, the Supreme Council of National Defence issues decisions, pursuant to the law, which are binding on the public authorities and public institutions to which they refer. They shall be liable, in accordance with the law, of the measures taken for their implementation”. Therefore, at the present moment, the decisions issued by this institution are binding only on some authorities and institutions, i.e. those to which they refer.

347. The Court notes, under the proposed amendment, the decisions of the National Security Council will be binding for all public institutions and public administration authorities, without any differentiation. From this perspective, the National Security Council becomes a legislative forum, whose acts are equally binding on all public administrative authorities and public institutions, the mandatory nature imposed at constitutional level confers them effects similar to those of laws. However, such assimilation is inadmissible in a state governed by the rule of law organised in accordance with the principle of separation and balance of powers within the constitutional democracy, where Parliament is the highest representative body of the Romanian people and the sole legislative authority of the country.

348. Furthermore, the Court notes that the general binding effect attributed to the decisions of the National Security Council may affect the independence of justice, as intangible constitutional value, which cannot be the subject of revision.

349. Moreover, there is a risk that in some cases, the new constitutional provision might lead to the suppression of certain fundamental rights and freedoms of citizens or of certain guarantees thereof, contrary to the provisions of Article 152 (2) of the Basic Law.

350. The Court notes that the third paragraph that is to complete Article 119 of the Constitution places the National Security Council under Parliament’s scrutiny, stating that it “shall submit activity reports to the Parliament annually or whenever requested”. This provision, although it represents a guarantee for the functioning of the National Security Council within the limits imposed by the requirement of constitutional democracy, however,

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is not sufficient, whereas the reporting activity becomes a mere information whereas the Parliament itself would be bound to apply the decisions of the Council.

351. For these reasons, the Court, by unanimous vote, finds unconstitutional the introduction of paragraph (2) under Article 119 of the Constitution, on the binding nature of the decisions of the National Security Council, since it disregards the provisions of Article 152 (1) and (2) of the Basic Law.

Section 11 — The central public administration in the territory Article 1191 — The Prefect and the Sub‐Prefect 352. Point 105 of the Sole Article of the legislative proposal for the revision of the

Constitution concerns the insertion into Chapter V — “Public administration” of a new section, section 11 — “The central public administration in the territory”, which would comprise a Sole Article, i.e. Article 1191 — “The Prefect and the Sub‐Prefect”.

353. Article 1191 (5) provides that “The Prefect may challenge, before the administrative court, an act of the regional, county or local council, of the president of the county council, of the president of the regional council or of the mayor, if he deems it unlawful. The challenged act may be suspended only by the court competent under the law”.

354. The Court notes that the new regulation maintains the competence of the prefect to challenge in the administrative court the acts deemed unlawful issued by some public authorities. Unlike the current constitutional provision contained in Article 123 (5) of the Basic Law, stating that the decision challenged is suspended as of right, it is proposed that the challenged decision be suspended only by the competent court, in accordance with the law.

355. The Court notes that the inclusion of such a specification in the text of the Constitution is unnecessary, since it does not reveal any specificity of the effects of the action introduced by the prefect by comparison with those initiated by any person who feels aggrieved in his right or legitimate interest by a public authority through an administrative act or through the failure to resolve an request within the legal time‐limit. In accordance with the Law no. 554/2004 on Administrative Proceedings, published in Official Gazette of Romania Part I no. 1.154 of 7 December 2004, any person who considers to be aggrieved may request the court to suspend the enforcement of the administrative act pending judgment on the merits, and the latter will assess whether to suspend it. As such, the second sentence of paragraph (5) of Article 1191 appears superfluous.

356. By a majority vote, the Court recommends the deletion of the second sentence of paragraph (5) of Article 1191 that is proposed to be introduced in the Constitution.

Article 122 — Regional and county authorities 357. Point 107 of the Sole Article amends Article 122 — Regional and county authorities.

In the new wording, Article 122 (1) reads as follows: “The County Council and its president represent the public administration authority responsible for coordinating the activities carried out by communal and town councils, in order to provide any public service of county interest”.

358. The Court notes that the wording is confusing as it is not clear if each of the two entities is a public administration authority or if only together, as multiple subject, they might be considered as representing the respective public administration authority.


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359. The Court therefore, by unanimous vote, submits to the attention of Parliament the observation on the rephrasing of the proposal for amendment of Article 122 (1) and, for the same reasons, the rephrasing of paragraph (2) of that Article, on the Regional Council and its President.

Chapter VI — Judicial authority Section 1 — Courts of law 360. Point 109 of the Sole Article of the legislative proposal for the revision of the

Constitution completes Article 126 (4) in the sense that a separate organic law (“its law”), governs the composition, organisation and operating rules of the High Court of Cassation and Justice.

361. The modification does not call into question the revision limits. The Court notes, however, that there is no justification for a separate regulation in relation to this court, since it is subject to the same general rules of procedure governing all courts. In this regard, the explanatory memorandum puts forward arguments relating to tradition and the distinction to which even the constitutional provisions refer, by specifically mentioning the High Court of Cassation and Justice. The Court notes, however, that reasons of uniform regulation of the organisation and functioning of courts of law and efficiency of the system support the currently existing legislative solution, i.e. a single law of organisation and functioning of all courts.

362. Thus, by unanimous vote, the Court recommends reconsidering the legislative solution concerning the amendment of Article 126 (4) of the Constitution.

Section 3 — The Superior Council of Magistracy Article 133 — Role and structure 363. Pursuant to point 110 of the Sole Article of the proposal for the revision of the

Constitution, “The introductory part and point b) in Article 133 (2) shall be amended as follows:

‘(2) The Superior Council of Magistracy consists of 21 members, of whom: [...] b) 4 representatives of the civil society, specialists in the legal field, who enjoy high professional and moral reputation, elected by the Senate; these shall only participate in plenary proceedings.’

364. The difference in relation to the current wording of the text consists of increasing the number of a category of members of the Superior Council of Magistracy i.e. that of the representatives of civil society, from 2 to 4, maintaining unchanged the number of magistrates (judges and prosecutors) in the Council and the number of members as of right.

365. Examining the relevant constitutional provisions on this matter, in terms of evolution in time, the Court notes that the original constitutional legislator has designed a Superior Council of Magistracy composed only of magistrates.

366. With the revision of 2003, the legislator set up a different structure of the Superior Council of Magistracy introducing the category composed of civil society representatives. The constitutional text of reference has now the following wording: “The Superior Council of Magistracy consists of 19 members, of whom: a) 14 are elected in the general meetings of the magistrates, and validated by the Senate; they shall belong to two sections, one for judges and one for public prosecutors; the former section consists of 9 judges, and the latter

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of 5 public prosecutors; b) 2 representatives of the civil society, specialists in law, who enjoy high professional and moral reputation, elected by the Senate; these shall only participate in plenary proceedings.”

367. In 2011, at the initiative of the President of Romania for the revision of the Constitution, it was proposed the following composition of the Superior Council of Magistracy: “The Superior Council of Magistracy consists of 19 members, of whom: a) 10 are elected in the general meetings of magistrates, and validated by the Parliament; they shall belong to two sections, one for judges and one for public prosecutors; the fomer section consists of 5 judges and the latter of 5 prosecutors; b) 6 representatives of the civil society, who enjoy high professional and moral reputation: 3 appointed by Parliament, and 3 by the President of Romania”.

368. By Decision no. 799 of 17 June 2011 on the bill for the revision of the Constitution of Romania, the Constitutional Court noted that “the amendments to paragraph (2) (a) and (b) [...] under Article 133 are unconstitutional, as they result in violation of the independence of justice, in contradiction with the provisions of Article 152 (1) of the Constitution”. The Court held that: “the constitutional role of the Superior Council of Magistracy, that of guarantor of judicial independence, as well as of the main tasks concerning career and disciplinary liability of magistrates, implies that judges and prosecutors must be represented in a number corresponding to the constitutional requirement, enshrined in Article 133 (1). That is, by virtue of the powers of the Superior Council of Magistracy, the composition of this body should reflect the specificity of this activity, the capacity as magistrates of its members ‐ as requires the title itself of this supreme representative body, who know directly the implications of the work of this professional category, being characteristic for the decisions ruled by the Council.. [...] Thus, the increase in the number of civil society representatives, persons outside the court system, and the change in the proportion of representation in the Council, have negative consequences in the work of the judiciary.”

369. The present proposal left unchanged the number of magistrates of the Superior Council of Magistracy, increasing the number of civil society representatives, resulting in a change in the proportion of representation on the Board. Therefore, the reasons which underpinned the decision of the Constitutional Court referred to above apply also in this case, whereas, by changing the proportion of representation, by increasing the number of persons coming from outside the judiciary, members of the Council, is likely to have a negative impact on the activity of the judiciary.

370. In conclusion, by majority vote, the Court notes that the amendment to the introductory sentence and paragraph (2) b) in Article 133 is unconstitutional, as it has the effect of infringing the independence of justice, in contradiction with the provisions of Article 152 (1) of the Constitution.

371. According to point 111 of the Sole Article of the proposal for the revision of the Constitution of Romania, “Article 133 (3) and (4) shall be amended as follows: ‘(3) The President of the Superior Council of Magistracy shall be elected for a non‐renewable term of office of one year, from among the judges listed under point a) of paragraph (2).

(4) The length of the term of office of the members of the Superior Council of Magistracy shall be of 4 years’ ”.


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372. With regard to the drafting of the proposed text, the Court notes, however, that use of the term “renewable”, with reference to the one year length of office of the President of the Superior Council of Magistracy, is capable of leading to divergent interpretations and confusions.

373. The Court notes, moreover, that, unlike the drafting of Article 133 (3) which, referring to the length of office of the President of the Superior Council of Magistracy, establishes that it is “non‐renewable”, paragraph (4) of the same article, which relates to the members’ length of office no longer contains a similar specification. However, identical drafting on this point of the current constitutional text led to practical difficulties and to the challenging of the infraconstitutional provisions that limit the renewal of the mandate of members of the Supreme Council of Magistracy. Ruling on the constitutionality of the first sentence of Article 51 (1), the expression “without possibility of re‐investiture” of Law no. 317/2004 on the Superior Council of Magistracy, republished in the Official Gazette of Romania, Part I, no. 628 of 1 September 2012, the Constitutional Court has proceeded to a teleological and schematic interpretation of the constitutional texts to determine the framers’ intention in the adoption of these rules, bearing in mind in that regard that, “although the constitutional provisions of Article 133 (4) do not prohibit expressis verbis the re‐investiture of elected members of the Superior Council of Magistracy ‐ the only interpretation consistent with the constitutional principles and provisions and with the spirit of the Basic Law is that the 6‐year length of office in acting as an elected member of the Superior Council of Magistracy is non‐renewable” (Decision no. 22 of 17 January 2012, published in Official Gazette of Romania, Part I, no. 160 of 9 March 2012).

374. Thus, for the clarity and precision of the rule, it is necessary to complete Article 133 (4) of the Constitution, symmetrically with Article 133 (3) in order to add the same phrase: “non‐renewable”. Moreover, even the 2011 bill for the revision of the Constitution proposed the specific prohibition mentioned above, and by Decision no. 799 of 17 June 2011, the Constitutional Court noted that “the proposed amendment does nothing but constitutionalise the rule contained in the organic law”.

375. In conclusion, by unanimous vote, the Court recommends to redraft the proposal amending Article 133 (3) of the Constitution as to replace the word “renewable” by “new”, and completion of Article 133 (4) of the Constitution as regards the reference to the length of office of the members of the Superior Council of Magistracy, with the words “non‐renewable”.

376. The Court notes, moreover, that the proposal for a revision of the Constitution determines a different length of office of the members of the Superior Council of the Magistracy, i.e. 4 years instead of 6 years as provided in the Constitution in force. This amendment requires completing, accordingly, the provisions of Article 155 — Transitory provisions of the Constitution, by stating explicitly that the amendment does not affect ongoing mandates of current members of the Superior Council of Magistracy who will continue their activity until the date of expiry of the term for which they were appointed.

377. Thus, by unanimous vote, the Court recommends completion of Article 155 of the Constitution by the introduction of transitional rules on the length of office of the members of the Superior Council of Magistracy.

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378. Point 112 of the Sole Article of the proposal for the revision of the Constitution inserts a new paragraph, paragraph (41), in Article 133 of the Constitution, to read as follows: “The magistrates elected as members of the Superior Council of Magistracy shall be removed from office by the general meetings of the courts or prosecutors’ offices that they represent, according to the special law of organisation and operation.”

379. The Court notes that this text, introduced immediately after the paragraph providing for the length of office of the members of the Superior Council of Magistracy, refers only to one of the modalities of the termination of membership of the Superior Council of Magistracy, i.e. removal from office. However, neither this modality is regulated in full, as it is mentioned only the removal from office at the request of general meetings of the courts or prosecutors’ offices, and not that of removal from office requested the President, the Vice‐President or one third of the members of the Superior Council of Magistracy, currently regulated at infraconstitutional level.

380. Paragraph (41), proposed to be introduced in the structure of Article 133 of the Constitution, refers only to removal from office by general meetings of the courts or prosecutors’ offices, which creates uncertainty in terms of the role of the Superior Council of Magistracy in respect of this procedure. However, the intention of the initiators of the proposal for the revision of the Constitution was not and could not be to exclude from the competence of the plenary of the Superior Council of Magistracy such a function, which is essential to the role of this authority, although the wording chosen “shall be removed from office” and not “may be removed from office”, would lead to the idea of an exclusivity of general meetings of courts or prosecutors’ offices for removal from office of the elected members of the Superior Council of Magistracy.

381. It is true that the text refers to “the special law of organisation and operation” but this reference aims only to the removal from office by “the general meetings of the courts or prosecutors’ offices that they represent”. In addition, the formula used is not rigorous in terms of terminology used and is unclear what could be the legal status of “special” law, as long as the Constitution refers in Article 73 to three categories of laws: constitutional, ordinary and organic, stating that the organisation and functioning of the Superior Council of Magistracy will be regulated by organic law.

382. In conclusion, the Court takes the view that there is no justification for constitutionalisation solely in relation to one of the modalities of termination of membership of the Superior Council of the Magistracy and solely one of the cases of removal from office. Regulation of the modalities of termination of membership of the Superior Council of the Magistracy must occur via an organic law and not a constitutional law. The formula chosen by the initiators lacks clarity and foreseeability and therefore it is likely to create difficulties of interpretation and implementation.

383. For these reasons, by unanimous vote, the Court recommends the deletion of paragraph (41) proposed to be introduced in the structure of Article 133 of the Constitution.

Article 134 — Powers 384. Point 113 of the Sole Article of the proposal for the revision of the Constitution

provides the rewording of paragraph (1) of Article 134, concerning the powers of the Superior Council of Magistracy, for the purposes of determining the jurisdiction of the


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sections of the Supreme Council of Magistracy proposals for the appointment of judges and prosecutors, except trainees, and supplementing the same paragraph as follows: “The Judges Section of the Superior Council of Magistracy shall manage exclusively the professional career of judges, whilst the Prosecutors Section of the Superior Council of Magistracy shall manage exclusively the professional career of prosecutors. The decisions issued by the Sections can be appealed against directly before the High Court of Cassation and Justice”.

385. The wording is unclear, insufficiently developed and linked to other paragraphs of the same article and the proposed legislative solution is partly open to criticism.

386. Thus, the last sentence of paragraph (1) of Article 134 as proposed to be amended, provides that “The decisions issued by the Sections can be appealed against directly before the High Court of Cassation and Justice”. Although the literal interpretation of the wording would lead to the idea that all decisions issued by the Sections can be appeal directly before the High Court of Cassation and Justice, conclusion based on the absence of any distinction with regard to matters which could be covered in those decisions, the interpretation of the sentence cited in the same paragraph and the establishes the jurisdiction of sections with regard to the career of judges and prosecutors, leads to the conclusion that these are the decision which concern only the matter of career judges and prosecutors.

387. The systemic interpretation of Article 134 of the Constitution leads to the same conclusion, while keeping the current wording of paragraph (2) of that article, according to which “The Superior Council of Magistracy is competent, through its sections, to sit in judgment on disciplinary proceedings against judges and public prosecutors [...]”, as well as that of paragraph (3) which states that “Decisions ruled by the Superior Council of Magistracy in disciplinary proceedings may be appealed against before the High Court of Cassation and Justice”.

388. On the basis of the systemic interpretation of Article 134 of the Constitution, after its amendment according to the proposal, it is deducted that a distinction is made as regards appeals against decisions issued by the Superior Council of Magistracy. Thus, the decision issued by sections referred to in paragraph (1) of Article 134 can be appealed “directly” before the High Court of Cassation and Justice, while the decisions issued in disciplinary matters cannot apparently be appealed against directly, while there is no clarification in paragraph (3) to lay down with regard to them that they “may be appealed directly before the High Court of Cassation and Justice”. Such a distinction is likely to create an inconsistency between paragraph (3) of Article 134 of the Constitution and paragraph (2) of the same article, which refers expressly to the jurisdiction of the Sections of the Superior Council of Magistracy, and not of the Superior Council of the Magistracy (the Plenary) in the field of disciplinary proceedings against judges and prosecutors. The latter view underpins, moreover, the current infraconstitutional regulation on disciplinary proceedings, i.e. the provisions of Articles 44‐53 of Law no. 317/2004 on the Superior Council of Magistracy. According to Article 51 (3) of Law no. 317/2004, the decisions issued by the Sections of the Superior Council of Magistracy in disciplinary matters may be appealed against, and the competence for settlement thereof lies with a panel consisting of 5 Judges of the High Court of Cassation and Justice. Therefore, the decisions issued by Sections in disciplinary matters

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may be appealed directly before the High Court of Cassation and Justice, excluding the jurisdiction of the plenary of the Superior Council of Magistracy, and this is the meaning of the constitutional rule of reference, which so far has not been challenged. Therefore, if this is the intention of the initiators of the proposal for revision, Article 134 (3) of the Constitution should be duly amended, by introducing the term “directly” with reference to appeals brought before the High Court of Cassation and Justice against decisions of the Superior Council of Magistracy in disciplinary matters.

389. As concerns the content of the legislative solution proposed by the new wording of Article 134 (1) of the Constitution, it is questionable the option to contest decisions relating to the career magistrates, handed down by the Sections of the Superior Council of Magistracy, directly at the High Court of Cassation and Justice, excluding the jurisdiction of the plenary of the Superior Council of Magistracy also with regard to the career of magistrates. The possibility of challenging them before the plenary of the Superior Council of Magistracy would ensure a more rapid settlement of this category of disputes, reduction of cases pending before courts and avoidance of court costs. The Court notes in this regard that the notion of “career of judges and prosecutors” covers a very broad category of issues, as is apparent from the provisions of Title II — Career of judges and prosecutors of Law no. 303/2004 concerning the status of judges and prosecutors, republished in Official Gazette of Romania, Part I no. 826 of 13 September 2005, as amended, which states as follows: admission to the magistracy, initial professional training, appointment of judges and prosecutors following the passing of the relevant examination, permanent vocational training and periodic evaluation, promotion of judges and prosecutors and the appointment to management functions, delegation, posting and transfer, suspension from office and cessation of the office as a judge or prosecutor, assistant‐magistrates of High Court of Cassation and Justice. This means also bringing before the High Court of Cassation and Justice, directly, any cases on these issues.

390. Similarly, the Court also notes that, the possibility of introducing an appeal against decisions on career magistrates before the plenary of the Superior Council of Magistracy would give substance to Article 133 (1) of the Constitution, which remained unchanged, which states that “The Superior Council of Magistracy shall guarantee the independence of justice”.

391. For those reasons, by unanimous vote, the Court recommends the reconsidering of the legislative solution enshrined in the last sentence of Article 134 (1) stating that ‘The decisions issued by the Sections can be appealed against directly before the High Court of Cassation and Justice”.

392. In this context, the Court recalls the reasons set forth in Decision no. 148 of 16 April 2003 on the constitutionality of the legislative proposal for the revision of the Constitution of Romania, published in the Official Gazette of Romania, Part I, no. 317 of 12 May 2003 and Decision no. 799 of 17 June 2011 on the bill for the revision of the Constitution of Romania, on the need to review the definitive and irrevocable character of decisions of the Superior Council of the Magistracy enshrined in Article 133 (7) of the Constitution.

393. Although the proposal to complete paragraph (1) of Article 134 with the sentence stating that “The decisions issued by the Sections can be appealed against directly before the


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High Court of Cassation and Justice”, satisfied, in part, by rules of constitutional level, the requirement of ensuring access to justice in this matter, the rationale of the decisions mentioned above is valid as regards other decisions of the Superior Council of Magistracy, i.e. other than those concerning disciplinary matters and career, which remain subject to the regime laid down by Article 133 (7) of the Constitution, i.e. are final and irrevocable. This legislative solution preserves the antinomy at constitutional level in relation to the provisions of Article 21 which regulate free access to justice, noted by the Constitutional Court in the aforementioned decisions.

D. Title IV — Economy and public finance Article 135 — Economy 394. Point 114 of the Sole Article of the proposal for the revision of the Constitution

amends the initial phrase, as well as points a), d) and e) of Article 135 (2), to read as follows: “The State shall guarantee and promote increased competitiveness of the Romanian

economy by: a) freedom of economic activities, protection of fair competition, consumer protection,

the setting up of a favourable framework for the use of all the factors of production; (…) d) exploitation of the production resources with maximum economic efficiency and by

granting non‐discriminatory access to all those interested; e) economic development while safeguarding the environment and maintaining an

ecological balance;”. 395. The Court notes that, currently, Article 135 (2) d) provides that the State must

ensure “exploitation of the natural resources in conformity with the national interests” and the legislative proposal intends to introduce exploitation “of the production resources with maximum economic efficiency and by granting non‐discriminatory access to all those interested”, without referring to the national interest.

396. Concerning this amendment, the Court notes that the legislative proposal for revision replaces the condition of exploitation of resources in accordance with the national interest with the condition concerning economic exploitation maximum efficiency.

397. The Court notes that State action in line with the national interest provides a guarantee for citizens in terms of protection of their rights and freedoms. Accordingly, the Court finds that, as result of the amendment, it is ignored the general interest transposed in the concept of national interest in favour of a particular interest, of “those interested”, the only condition being its exercise with the greatest possible economic efficiency.

398. In view of the above, the Court, by unanimous vote, notes that the amendment to the provision in Article 135 (2) (d) exceeds the revision limits set forth in Article 152 (2) of the Constitution.

399. As regards Article 135 e), the Court finds that in the current wording the State must ensure environmental protection and recovery, as well as preserve of a well‐balanced environment, while the draft law for revision stipulates that the State guarantees economic development in conditions of environmental protection and maintenance of ecological balance.

400. The Court notes that the current wording of the Basic Law corresponds exclusively to the State’s positive obligation concerning the right to a healthy environment provided for

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in Article 35 of the Constitution. On the other hand, the proposed amendment brings forward the economic development, the latter being ensured and promoted by the State. The Court considers that this results in an amendment to the text drafting formula, which rules out the obligation of the State to restore and preserve the environment and maintain the ecological balance.

401. The Court concludes that, as regards the right to a healthy environment, the State has both negative and positive obligations. With regard to the positive obligations of the State, they involve the creation of a legislative and administrative framework aimed at the effective prevention of damage to the environment and human health (Judgment of the European Court of Human Rights of 27 January 2009 in Case Tătar v. Romania, paragraph 88). Accordingly, the measures in question must aim at preventing environmental degradation, establishing the necessary remedies and regulating the sustainable use of natural resources.

402. That being so, the Court, by unanimous vote, finds that the amendment to the provision in Article 135 (2) e) results in the cancellation of the guarantees of the right to healthy environment set forth in Article 35 of the Basic Law, in breach of Article 152 (2) of the Constitution.

Article 1371 — National currency and central bank 403. Point 115 of the Sole Article of the proposal for the revision of the Constitution

aims to inserts a new article, Article 1371, on national currency and the National Bank of Romania, as follows:

“National currency and central bank (1) The National Bank of Romania is the central bank of the Romanian State, an

autonomous public authority, whose powers, administration and operation shall be regulated by law, in accordance with the international legal rules arising from the treaties to which Romania is a party.

(2) In exercising its powers, the National Bank of Romania may not seek or receive instructions from any State authority or institution.

(3) The central bank has the right to issue legal tenders in Romania. (4) According to the founding Treaties and the European Union legislation, the following

can be regulated by an organic law: a) transfer of powers of the National Bank of Romania to the European Central Bank; b) recognition of circulation and replacement of the national currency with the Euro.” 404. The Court notes that the newly‐introduced article would bear the marginal title —

“National currency and central bank’. In this respect, the Court recommends either to delete the words “national currency” as the currency is determined by the provisions of the first sentence of Article 137 (2) of the Constitution or, if the legislator insists to maintain the marginal title, to move the first sentence of paragraph (2) of Article 137 after paragraph (1) of Article 1371, renumbering the other paragraphs.

405. Next, the Court notes that, according to Article 73 (3) i2), proposed to be introduced by point 61 of the Sole Article, the status of the National Bank of Romania shall be governed by organic law and, according to Article 1371 (1), its powers, administration and operation shall be regulated by law.


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406. The Court notes that, currently, the status of the National Bank of Romania is governed by Law no. 312/2004, published in the Official Gazette of Romania, Part I, no. 582 of 30 June 2004. It follows from the analysis of this normative act that it gives details of the powers, administration and operation of the National Bank of Romania. These notions are included in the concept of “status”.

407. The Court finds that the proposed texts used parallel notions that have the same meaning, and which led to confusion as to the category of laws that may be used for the adoption of the status of the National Bank of Romania. In view of this, the Court recommends the correlation of the provisions of Article 73 (3) i2) with those of Article 1371 (1).

408. The Court also recommends that the provisions of Article 1371 (4) (b) of the legislative proposal for revision be correlated with those of Article 137 (2) second sentence of the Constitution, given that, although both texts govern the same situation — recognition of circulation and replacement of the national currency ‐ they use an inconsistent terminology, i.e. currency of the European Union and euro currency.

409. In view of the above, by unanimous vote, the Court recommends the rewording of Article 1371 proposed to be introduced in the Constitution.

Article 138 ‐ National public budget 410. Point 116 of the Sole Article of the proposal for the revision of the Constitution

suggests the amendment of Article 138 (1) and (2) as follows: “(1) The National Public Budget comprises the State budget, the State social security

budget and the local budgets of communes, towns, counties and regions. (2) The Government drafts the State budget and the State social security budget, on an

annual or multi‐annual basis, which shall be submitted to the institutions of the European Union, following prior notification of the Parliament concerning their content.”

411. The Court notes that the provisions of Article 138(1) refer to the regions’ budget, thus in correlation with Article 3(3), according to which the territory is organised, administratively, into communes, towns, counties and regions. From this perspective, the Court, unanimously, recommends the correlation of the provisions of Article 138(1) with those of Article 139(2), which refer to the establishment of taxes and duties at local and county level, but not to the establishment of taxes and duties at regional level.

412. In what concerns Article 138(2), the Court finds that it has ruled on a similar text through Decision no. 799 of 17 June 2011 on the draft law on the revision of the Romanian Constitution, holding that the proposal for the amendment of the constitutional text concerns the Government’s obligation to send the draft State budget and the draft State social security budget to the institutions of the European Union, after prior notification of the Parliament. The convenience of enshrining in the Constitution such an obligation, which is limited to the dispatch of these drafts to the institutions of the European Union raises criticism. Thus, insofar as Romania is a Member State of the European Union and, as such, it exercises, together with the other Member States, the competencies established by the Union’s treaties, the enshrining of this obligation at constitutional level seems redundant and excessive.

413. Thus, the Court, unanimously, recommends a rewording of the provisions of Article 138(2).

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Article 140 ‐ The Court of Audit 414. Point 117 of the Sole Article of the proposal for the revision of the Constitution

suggests the amendment of Article 140 (3) to (6) as follows: “(3) At the request of the Senate or the Chamber of Deputies, the Court of Audit shall

review the management of public resources, and report on its findings. (4) Audit advisers shall be appointed by the Senate for a term of office of 9 years, which

cannot be extended or renewed. The members of the Court of Audit shall be independent in exercising their term of office and irremovable throughout its duration. They shall be subject to the incompatibilities stipulated by law for judges.

(5) The Court of Audit shall be renewed with one third of the audit advisers appointed by the Senate, every 3 years, under the terms stipulated by the organic law of the Court.

(6) The Senate shall be entitled to remove the members of the Court of Audit from office, in the instances and under the terms stipulated by law.”

415. In what concerns the amendment of Article 140 (4) to (6), the Court finds that it refers only to the appointment and removal from office of the members of the Court of Audit. According to the legislative proposal for revision, the appointment and removal from office of the members of the Court of Audit should be made by the Senate and not by the Parliament.

416. In what concerns these aspects, the Court finds that Article 139 (4) of the Basic Law of 21 November 1991, published in the Official Gazette of Romania, Part I, no. 233 of 21 November 1991, stated that the members of the Court of Audit, appointed by Parliament, were independent and irremovable, according to the law, and subject to the incompatibilities referred to by law for judges. The constitutional text did not refer to the possibility of removing the members of the Court of Audit from office.

417. The legislative proposal for the revision of the Constitution of 2003, on which the Constitutional Court had ruled through Decision no. 148 of 16 April 2003 on the constitutionality of the legislative proposal for the revision of the Romanian Constitution, published in the Official Gazette of Romania, Part I, no. 317 of 12 May 2003, was limited to the amendment of Article 139(1) and (4) and to the introduction of a new paragraph, paragraph (5).

418. After conducting the constitutional review, through the third sentence of point (72) of the Sole Article, two new paragraphs, paragraphs (5) and (6), have been introduced in Law no. 429/2003 for the revision of the Romanian Constitution as follows: “(5) The Court of Audit shall be renewed with one third of the audit advisers appointed by Parliament, every 3 years, under the terms stipulated by the organic law of the Court.

(6) The Parliament shall be entitled to remove the members of the Court of Audit from office, in the instances and under the terms stipulated by law.”

419. The Court finds that, in relation to the members of the Court of Audit, both the Basic Law and the legislative proposal for revision state that they are independent in exercising their term of office and irremovable throughout its duration, as well as the fact that they can be removed from office. Tenure, as a guarantee for independence, excludes the removal from office as a method of termination of the term of office of a person holding a public office.


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420. In view of the above, the Court, unanimously, recommends a re‐analysis of the statute of the members of the Court of Audit and its correct establishment considering the fact that independence and tenure exclude removal from office in the case of one and the same person.

E. Title V ‐ The Constitutional Court Article 146 ‐ Powers 421. Point 119 of the Sole Article of the proposal for the revision of the Constitution

amends the provisions of Article 146 b) of the Constitution in relation to the mechanism for referring to the Constitutional Court for conducting the constitutional review of international treaties or other agreements. This shall be conducted “ex officio or upon referral by the President of either of the Chambers, of at least 25 Senators or at least 50 Deputies”.

422. The novelty consists in the introduction of the referral ex officio, currently covered only in relation to the power of the Constitutional Court to control the initiatives for the revision of the Constitution [second sentence of Article 146 a) of the Constitution], respectively of the law for the revision of the Constitution, adopted by Parliament [Article 146 l) of the Constitution, with reference to Article 23 of Law no. 47/1992 on the organisation and operation of the Constitutional Court].

423. The Court finds that the amendment suggested does not put into question the limits of the revision, but is aimed at ensuring the efficiency of Article 11 (3) of the Constitution, according to which, “If a treaty to which Romania is to become a party comprises provisions contrary to the Constitution, ratification shall only take place after the revision of the Constitution”.

424. From the perspective of its wording, the text proposed still requires clarifications in the sense of explaining the referral “ex officio” compared to the referral “by the President of either of the Chambers, of at least 25 Senators or at least 50 Deputies”. The use of the conjunction “or” in the wording of the text leads to the interpretation according to which these are alternative methods of referral, which requires the setting of a concrete manner to conduct the referral ex officio of the Constitutional Court, considering that, compared to the other two powers in the case of which the Court’s review is conducted ex officio, in this situation there are alternative methods of referral.

425. Therefore, the Court holds that it is necessary to reformulate the text proposed, depending on the purpose considered by the authors of the proposal for the revision of the Constitution and with the necessary correlations.

426. Thus, if the purpose considered is the introduction of the constitutional review as a mandatory stage of the procedure for the ratification of international treaties or other agreements, the appropriate legislative solution is the regulation of a systematic and ex officio constitutional review. In this situation there would no longer be a need for an alternative method of referral, i.e. by qualified subjects, but only the regulation at infraconstitutional level of the mechanism by which international treaties and agreements are sent to the Constitutional Court to rule on them. Such a regulation would not be likely to exclude the possibility, for the authorities competent to negotiate/sign/ratify international treaties and agreements, to formulate pleas of unconstitutionality, authorities that would be requested to send the appropriate viewpoints, which is also covered at the level of an organic law.

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427. The adoption of this legislative solution requires the correlation of the provisions of Article 146 b) with those of Article 147 (3) of the Constitution, respectively the elimination of the hypothesis in which the international treaty or agreement has not been subject to the a priori constitutional review. Following the logic of constitutional norms, the elimination of this hypothesis would lead to the exclusion of international treaties or agreements from the a posteriori review, which can no longer be the subject‐matter of exceptions of unconstitutionality under Article 146 d) of the Constitution. It is obvious that, in itself, this legislative solution is also questionable, as long as certain aspects of unconstitutionality can be raised only in the practice of the implementation of the respective provisions, i.e. after the ratification of the international treaty.

428. Insofar as the objective considered is only the extension of the possibility to refer to the Constitutional Court, one solution would be precisely the one proposed by the authors, but in the above‐mentioned circumstances.

429. A different solution than the referral ex officio would be to extend the group of subjects that can refer to the Constitutional Court, by including the public authorities with specific competencies in negotiating/signing/ratifying treaties. The Court thus finds that, according to the first sentence of Article 91 (1) of the Constitution, “The President shall, in the name and on behalf of Romania, conclude international treaties negotiated by the Government, and then submit them to the Parliament for ratification, within a reasonable time limit”. Also, given the role of the Advocate of the People, as detailed in the provisions of Article 58 of the Constitution, as defender of the rights and freedoms of individuals, its inclusion in the category of the subjects that can refer to the Constitutional Court would be justified.

430. The Court also holds that, in view of correlating Article 146 b) and Article 11 (3) of the Constitution, it is necessary for the constitutional text to foresee the stage in which the Constitutional Court can be referred to. Such an explanation would lead to a better clarification of the constitutional standard, which, currently, includes no mentioning of this aspect.

431. For the above‐mentioned reasons, the Court, unanimously, recommends the rewording of the proposal to amend Article 146 b) of the Constitution.

432. Point 120 of the Sole Article of the legislative proposal for the revision of the Constitution repeals the provisions of Article 146 l) of the Constitution ‐ according to which the Constitutional Court “also fulfils other prerogatives stipulated by the organic law of the Court”. According to explanatory statement, this repealing follows a recommendation that the Constitutional Court has made through Decision no. 799 of 17 June 2011 on the draft law for the revision of the Constitution of Romania. The recommendation was justified by the circumstance according to which, under the constitutional text proposed for being repealed, “the powers of the Constitutional Court can be multiplies whenever the interests of the political forces require the amendment or supplement of the law on the organisation of the Court”. The Court also stated that, “by discarding the constitutional provision, the independence of the constitutional court is ensured and the will of the original constitutional power concerning the Court’s powers exhaustively referred to only in the Constitution is observed”.


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433. In the recitals of the same decision, the Court held the need to supplement the provisions of Article 146 a) and c) of the Constitution in the sense of enshrining in the Constitution the standards referred to in Article 23 (1) and Article 27 (1) of Law no. 47/1992, texts that regulate the powers of the Constitutional Court to review the law for the revision of the Constitution adopted by Parliament and, respectively, to review the constitutionality of the by‐laws of the Plenum of the Chamber of Deputies, the by‐laws of the Plenum of the Senate and the by‐laws of the Plenum of the two joint Chambers of Parliament.

434. Therefore, the recommendation of the Constitutional Court did not concern a simple repeal of Article 146 l) of the Constitution, because, in the absence of a contingent amendment of points a) and c) of the same article, this repeal violates the provisions of Article 152 of the Constitution ‐ The limits on matters of revision.

435. Thus, it is compelling that the revision law adopted by Parliament, before being subject to a referendum under Article 151 (3) of the Basic Law, be examined by the Constitutional Court in order to establish, on the one hand, whether or not the decision of the Court on the draft law or on the proposal for the revision of the Constitution has been complied with and, on the other hand, whether or not the amendments and supplements to the draft law or to the revision proposal undergoing parliamentary debate and adoption are compliant with the constitutional principles and provisions related to revision. In the absence of such a review mechanism there is the risk to circumvent the generally binding effect of the decision of the Constitutional Court issued on the initiative for the revision of the Constitution and to deprive of efficiency the constitutional review performed, consequences that are incompatible with the principles of the rule of law and the role of the Constitutional Court.

436. The need to eliminate such consequences has basically substantiated the regulation of this power of the Constitutional Court through Law no. 232/2004 amending and supplementing Law no. 47/1992 on the organisation and operation of the Constitutional Court, published in the Official Gazette of Romania, Part I, no. 502 of 3 June 2004. By examining the explanatory statement of this law, it is found that the legislator has considered the transposition of the new regulations introduced by the revision of the Constitution into the Law no. 47/1992 on the organisation and operation of the Constitutional Court, the main coordinates concerned being the regulation of the procedural rules for exercising the powers of the Constitutional Court, the realisation of the necessary correlations and the introduction of a series of guarantees for the express introduction of the erga omnes binding nature of the decisions of the Constitutional Court. More precisely, in the wording of the comparative table of the law in force and the amendments proposed, the regulation of the Constitutional Court’s power to review the constitutionality of the law for the revision of the Constitution adopted by Parliament is supported by the following argument: “for a rigorous regulation of the procedure for the review of the initiative for the revision of the Constitution, referred to in Article 151 of the Constitution, republished”.

437. Therefore, the legislator has designed this power of the Constitutional Court as being inextricably related to the one concerning the constitutional review of the initiatives for the revision of the Constitution, reason likely to substantiate a joint regulation and the adequate supplementing of Article 146 a) of the Constitution as follows: “a) to adjudicate on

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the constitutionality of laws, before promulgation, upon referral by the President of Romania, the President of Parliament, the Government, the High Court of Cassation and Justice, the Advocate of the People, of at least 50 Deputies or at least 25 Senators, as well as ex officio, on the initiatives to revise the Constitution and the laws for the revision of the Constitution, prior to their approval through referendum”;

438. In what concerns the power of the Constitutional Court to reviews the by‐laws of the Plenum of the Chamber of Deputies, the by‐laws of the Plenum of the Senate and the by‐laws of the Plenum of the two joint Chambers of Parliament, this represents an expression of the requirements of the rule of law and a guarantee for the fundamental rights and freedoms.

439. In this regard, the Venice Commission has retained that “with its Rules of Procedure and other general rules, Parliament however adopts normative acts, which are a yardstick for Parliament as a whole and its members individually. Judicial control of the application of normative acts is an essential element of the rule of law. The absence of judicial control means that the majority in Parliament becomes the judge of its own acts. If only the majority can decide on the observance of parliamentary rules, the minority has nowhere to turn for help if these rules are flouted. Even if the acts concerned are individual ones, this affects not only the rights of the parliamentary minority but, as a consequence, also the right to vote of the citizens who have elected the parliamentary minority.” Therefore, “judicial control of individual acts of Parliament is therefore not only a rule of law issue but, as the right to vote is affected, even a question of human rights”. (Opinion on the compatibility with Constitutional principles and the Rule of Law of actions taken by the Government and the Parliament of Romania in respect of other State institutions and on the Government emergency ordinance on amendment to the Law N° 47/1992 regarding the organisation and functioning of the Constitutional Court and on the Government emergency ordinance on amending and completing the Law N° 3/2000 regarding the organisation of a referendum of Romania, adopted by the Venice Commission at its 93rd Plenary Session, 14‐15 December 2012).

440. Similarly, the Constitutional Court has underlined the fact that the introduction of this power represented the expression of a diversification and strengthening of the Constitutional Court’s power and a gain in the efforts for achieving a democratic rule of law. The constitutional review, in its whole, and, integrated thereto, the constitutional review of the by‐laws of Parliament, represents a fundamental legal guarantee for the supremacy of the Constitution (Decision no. 727 of 9 July 2012, published in the Official Gazette of Romania, Part I, no. 477 of 12 July 2012).

441. When regulating this power, one should take into consideration the distinctions made by the Constitutional Court in the sense that “can be subject to constitutional review only the by‐laws of Parliament, adopted after the granting of the new power, by‐laws that affect constitutional values, rules and principles or, where appropriate, the organisation and operation of constitutional authorities and institutions.” (Decision no. 53 of 25 January 2011, published in the Official Gazette of Romania, Part I, no. 90 of 3 February 2011).

442. In conclusion, the constitutionalisation of the two powers currently regulated at infra‐constitutional level is required by the repeal of Article 146 l) of the Constitution. Their


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removal through a simple repeal of the constitutional text under which they were regulated is likely to violate access to constitutional justice for the safeguarding of constitutional values, rules and principles, i.e. the removal of a guarantee for such values, rules and principles that also include the scope of fundamental rights and freedoms.

443. For the above‐mentioned reasons, the Court, unanimously, ascertains the unconstitutionality of the repeal of Article 146 l) of the Constitution, as this is in breach of the limits for the revision referred to by Article 152 (2) of the Constitution, insofar as it is not accompanied by the duly constitutionalisation of the Constitutional Court’s powers to review the law for the revision of the Constitution adopted by Parliament and, respectively, to review the constitutionality of the by‐laws of the Plenum of the Chamber of Deputies, the by‐laws of the Plenum of the Senate and the by‐laws of the Plenum of the two joint Chambers of Parliament, by‐laws that affect constitutional values, rules and principles or, where appropriate, the organisation and operation of constitutional authorities and institutions.

F. Title VI ‐ Euro‐Atlantic integration Article 148 ‐ Integration into the European Union 444. The Sole Article, points 121 and 122 of the legislative proposal for the revision of

the Constitution amends both the marginal name of Title VI, which becomes “Romania’s membership to the European Union and the North Atlantic Treaty Organisation”, as well as the normative content of Article 148 (1) and (2) as follows:

“(1) The ratification of the treaties amending or supplementing the European Union’s founding Treaties, as well as treaties amending or supplementing the North Atlantic Treaty is made through a law adopted in joint session of the Senate and the Chamber of Deputies, with the vote of two thirds of the number of Senators and Deputies.

(2) Romania shall ensure observance, within its national legal order, of the European Union law, according to the obligations undertaken through the accession document and the other treaties signed within the Union.”

445. The Court notes that, according to the legislative proposal for revision, Title VI shall become “Romania’s membership to the European Union and the North Atlantic Treaty Organisation”, and Article 148 shall remain the only article in the title referring exclusively to the European Union, given that Article 149 on accession to the North Atlantic Treaty is proposed for repeal. Thus, as held in paragraphs 178 and 179, the Court recommends the repositioning of the text referring to Romania’s membership to the North Atlantic Treaty from Article 55 ‐ Defence of the country ‐ in Title VI ‐ “Romania’s membership to the European Union and the North Atlantic Treaty Organisation”.

446. Also, the Court unanimously recommends the rewording of the marginal title of Article 148, considering that it refers to “integration into the European Union”, while the new provisions of Title VI refer to “membership to the European Union”.

447. In what concerns Article 148 (1), the Court finds that the proposal updates the constitutional provisions adopted prior to Romania’s accession to the European Union and the North Atlantic Treaty.

448. Thus, the new content of Article 148 (1) echoes the constitutional solution referring to the ratification of the treaties amending or supplementing the European Union’s

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founding Treaties, through laws adopted by Parliament, with a majority of two thirds of its members. In relation to this aspect, for bigger clarity, the Court unanimously recommends that the indent on treaty ratification have the following wording: “[...] shall be carried out by means of a law adopted in the joint sitting of the Senate and the Chamber of Deputies, by a majority of two thirds of the number of Senators and Deputies”.

449. Furthermore, the Court unanimously recommends a correlation of the two new paragraphs with paragraph (3) of Article 148 of the Constitution in force. The latter refers to the fact that “the provisions of paragraphs (1) and (2) shall also apply accordingly for the accession to any instrument purporting a revision of the founding Treaties of the European Union”. Essentially, the instruments purporting a revision of the founding Treaties of the European Union refer to the same documents amending or supplementing the founding Treaties, thus generating a non‐correlation concerning the referral standard.

450. In what concerns the amendment of Article 148 (2), the Court finds that it is unconstitutional for the reasons to be presented below.

451. Through the Judgement of 9 March 1978, issued by the Court of Justice of the European Communities (currently of the European Union) in Case C‐106/77, it was stated that “in accordance with the principle of the precedence of community law, the relationship between provisions of the treaty and directly applicable measures of the institutions on the one hand and the national law of the Member States on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but ‐ in so far as they are an integral part of, and take precedence in, the legal order applicable in the territory of each of the member states ‐ also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with community provisions”.

452. The Court finds that the current constitutional text states that the provisions of the European Union’s founding Treaties, as well as the other binding community regulations have precedence over contrary provisions in domestic laws, in compliance with the provisions of the accession document. In what concerns the concept of “domestic laws”, through Decision no. 148 of 16 April 2003 on the constitutionality of the legal proposal for the revision of the Romanian Constitution, the Court distinguished between the Constitution and the other laws. Moreover, the same distinction is made by the Basic Law through the final sentence of Article 20 (2), which states that international regulations are to be applied with priority, except when the Constitution or domestic laws include more favourable provisions.

453. The Court holds that the constitutional provisions do not have a declarative nature, but are mandatory constitutional standards, without which the existence of the rule of law, referred to in Article 1 (3) in the Constitution, cannot be envisaged. Also, the Basic Law represents the framework and the extent to which the framers and the other authorities can act; all the same, the interpretations that can be made of the legal standard must take into account this constitutional requirement set out in Article 1 (5) of the Basic Law, according to which, in Romania, the observance of the Constitution and of its supremacy is mandatory.

454. Furthermore, through Decision no. 668 of 18 May 2011, published in the Official Gazette of Romania, Part I, no. 487 of 8 July 2011, it established that the European Union’s binding documents were standards interposed within the constitutional review.


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455. By establishing that the European Union law applies without any circumstantiation within the national legal order, the fact of making no distinction between the Constitution and the other domestic laws equals to placing the Basic Law in the background compared to the legal order of the European Union.

456. From this perspective, the Court holds that the country’s Basic Law ‐ the Constitution ‐ is the expression of the people’s will, which means that it cannot lose its binding force through the simple existence of a non‐concordance between its provisions and European ones. Likewise, the accession to the European Union cannot affect Constitution’s supremacy over the entire legal order (see, to the same purpose, Ruling of 11 May 2005, K 18/04, issued by the Constitutional Tribunal of the Republic of Poland).

457. The Court also finds that constitutional courts “benefit from a power by conferral, but enjoy full jurisdiction in relation to the powers set. The Constitutional Court of Romania abides only by the Constitution and its organic law of organisation and operation no. 47/1992, its powers being established by Article 146 of the Basic Law and by Law no. 47/1992” (see, to this purpose, Decision no. 302 of 27 March 2012, published in the Official Gazette of Romania, Part I, no. 361 of 29 May 2012).

458. Therefore, accepting the new wording proposed in Article 148 (2) would equal to setting the premises necessary for limiting the Constitutional Court’s power, in the sense that only the normative acts adopted in fields that are not subject to the transfer of powers to the European Union could still be subject to constitutional review, while the normative acts regulating, from a material point of view, the shared fields would be exclusively covered by the legal order of the European Union, being thus excluded from constitutional review. Regardless of the field that normative acts regulate, they must observe the supremacy of the Romanian Constitution, under Article 1 (5).

459. Thus, the Court finds that such a modification would equal to a limitation of the citizens’ rights to address to the constitutional justice for the safeguarding of certain constitutional values, rules and principles, i.e. discarding a guarantee of these values, rules and principles, which include the scope of fundamental rights and freedoms.

460. Therefore, the Court, unanimously, finds that the amendment of the provisions of Article 148 (2) is unconstitutional, since it violates the limits of the revision referred to by Article 152 (2) of the Constitution.

G. Title VII ‐ Revision of the Constitution Article 151 ‐ Procedure of revision 461. Point 126 of the Sole Article of the legislative proposal for the revision of the

Constitution aims at introducing a new sentence in Article 151 (3) as follows: “(3) Revision shall be final after approval by a referendum, held within 30 days of the

date of enactment of the bill or proposal for revision. The provisions of Article 90 (3) shall be duly applicable.”

462. The Court considers, as held in paragraph 291, that the setting of a turnout quorum for the referendum falls under the competence of the ordinary legislator, so that it is not necessary to regulate a constitutional standard with such an object.

463. Consequently, the Court, unanimously, recommends the discarding of the provisions referring to Article 90 (3), proposed to be introduced by the revision law.

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464. In what concerns the provisions of the legislative proposal for the revision of the Constitution referring to the amendment of Article 61 (2), Article 64 (3) and Article 80 (1), as well as to the introduction of Article 1071 in the Constitution, the Court, by a majority vote, finds that these are not contrary to the constitutional provisions.

465. As for the other provisions in the legislative proposal for the revision of the Constitution, the Court, unanimously finds that these are not contrary to the constitutional provisions.

For the reasons stated above, under the final sentence of Article 146 l), of Article 150 (1) and of Article 152 of the Constitution, as well as under Articles 19 to 21 of Law no. 47/1992 on the organisation and operation of the Constitutional Court,

THE CONSTITUTIONAL COURT In the name of law DECIDES: I. It unanimously finds that the legislative proposal for the revision of the Romanian

Constitution was initiated in compliance with the provisions of Article 150 (1) of the Constitution.

II. Since it violates the limits of revision referred to in Article 152 of the Constitution: 1. by a majority vote, it finds the unconstitutionality of the supplementing of Article 3 of

the Constitution by a new paragraph, paragraph (31), referring to the possibility of recognizing traditional areas as administrative subdivisions of regions;

2. by a majority vote, it finds the unconstitutionality of the supplementing of Article 6 of the Constitution by a new paragraph, paragraph (11), referring to the introduction of the possibility, for the legal representatives of national minorities, to establish, according to the statute of national minorities adopted by law, their own decision‐making and executive bodies;

3. by a majority vote, it finds the unconstitutionality of the supplementing of Article 12 of the Constitution by a new paragraph, paragraph (41), referring to the use of symbols specific to national minorities;

4. unanimously, it finds the unconstitutionality of the amendment of Article 15 (1) of the Constitution referring to the introduction of the phrase “Romanian citizens are born free and live freely”;

5. unanimously, it finds the unconstitutionality of the amendment of Article 21 (4) of the Constitution referring to the removal of the optional nature of administrative special jurisdictions;

6. unanimously, it finds the unconstitutionality of the supplementing of Article 23 of the Constitution by a new paragraph, paragraph (131), referring to the use of illegally obtained evidence;

7. unanimously, it finds the unconstitutionality of the amendment of Article 26 (2) of the Constitution referring to the removal of the word “morals”;

8. by a majority vote, it finds the unconstitutionality of the amendment of Article 28 of the Constitution referring to the secrecy of correspondence;

9. by a majority vote, it finds the unconstitutionality of the supplementing of Article 32 (8) of the Constitution referring to the definition of university autonomy;


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10. by a majority vote, it finds the unconstitutionality of the supplementing of Article 37 of the Constitution by a new paragraph, paragraph (21), referring to the condition of the domicile in Romania with at least 6 months prior to the elections for the Senate, the Chamber of Deputies or for the office of President of Romania;

11. unanimously, it finds the unconstitutionality of the removal of the current second sentence of Article 44 (1) of the Constitution, referring to the conditions and limits applying to the right to property;

12. unanimously, it finds the unconstitutionality of the amendment of Article 50 of the Constitution referring to the elimination of the special protection that disabled persons benefit from.

13. unanimously, it finds the unconstitutionality of the amendment of Article 52 (1) of the Constitution referring to a reparation in integrum for the damage incurred by the person aggrieved by a public authority;

14. unanimously, it finds the unconstitutionality of the replacement of the word “individual” with the word “citizens” in Article 58 (1) of the Constitution;

15. by a majority vote, it finds the unconstitutionality of the supplementing of Article 58 (1) of the Constitution by the phrase “in their relations with public authorities”;

16. by a majority vote, it finds the unconstitutionality of the supplementing of Article 64 by a new paragraph, paragraph (41), referring to the obligation of any person of public law, private legal person and individual to appear, directly or through legal representative, before a parliamentary committee;

17. by a majority vote, it finds the unconstitutionality of the supplementing of Article 70 (2) e) referring to the cessation of the capacity as Deputy or Senator on the date of resignation from the political party or formation on behalf of which (s)he was elected or on the date of his/her registration to another political party or formation;

18. unanimously, it finds the unconstitutionality of the removal of the second and third sentences in Article 72 (2) on the competence of the Prosecutor’s Office attached to the High Court of Cassation and Justice to investigate and prosecute, respectively on the jurisdiction of the High Court of Cassation and Justice in cases involving Senators and Deputies;

19. by a majority vote, it finds the unconstitutionality of the amendment of Article 103 (1) and (3) of the Constitution, as well as of the supplementing of Article 103 of the Constitution by three new paragraphs, paragraphs (31) to (33) referring to the method of designation of the candidate for the position as Prime Minister by the President of Romania;

20. unanimously, it finds the unconstitutionality of the amendment of Article 110 (1) of the Constitution referring to the duration of the Government’s term of office;

21. unanimously, it finds the unconstitutionality of the introduction of paragraph (2) in Article 119 of the Constitution on the binding nature of the rulings of the National Security Council;

22. by a majority vote, it finds the unconstitutionality of the amendment of the introductory part and of point b) in Article 133 (2) referring to the increase in the number of members of the Superior Council of Magistracy representing the civil society;

23. unanimously, it finds the unconstitutionality of the amendment of Article 135 (2) d) referring to the exploitation of the production resources with maximum economic efficiency and by granting non‐discriminatory access to all those interested;

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24. unanimously, it finds the unconstitutionality of the amendment of Article 135 (2) e) referring to economic development while safeguarding the environment and maintaining an ecological balance;

25. unanimously, it finds the unconstitutionality of the repeal of Article 146 l) of the Constitution, insofar as this is not accompanied by the duly constitutionalisation of the powers of the Constitutional Court to review the law for the revision of the Constitution adopted by Parliament and, respectively, to review the constitutionality of the by‐laws of the Plenum of the Chamber of Deputies, the by‐laws of the Plenum of the Senate and the by‐laws of the Plenum of the two joint Chambers of Parliament affecting constitutional values, rules and principles or, where appropriate, the organisation and operation of constitutional authorities and institutions;

26. unanimously, it finds the unconstitutionality of the amendment of Article 148 (2), according to which Romania ensures the observance, within its domestic legal order, of the EU law, pursuant to the obligations undertaken by the accession document and the other treaties signed within the Union.

III. Unanimously, it submits to the Parliament’s attention comments on: 1. the removal: ‐ of paragraph (21), proposed for being introduced in Article 2; ‐ of the proposed amendment of Article 21 (3); ‐ of the proposed amendment referring to the introduction of the second sentence in

Article 23 (4); ‐ of the proposed amendment of Article 27 (3); ‐ of the proposed amendment of Article 49 (1); ‐ of the third sentence in paragraph (11), proposed for being introduced in Article 58; ‐ of the amendment of Article 62 (3); ‐ of the proposed amendment of Article 76 (1); ‐ of paragraph (3), proposed for being introduced in Article 90; ‐ of the second sentence in Article 95 (31); ‐ of paragraph (41), proposed for being introduced in Article 133; ‐ of the second sentence in Article 151 (3); 2. The rewording of the proposal for the amendment of: Article 23 (4) concerning the

introduction of the first sentence, Article 23 (8), Article 24 (2) and (21), Article 31 (5), the marginal title of Article 32, Article 32 (2) and (4), Article 40 (2), Article 511, Article 52 (3), Article 65 (2), Article 73 (3), Article 74 (1), Article 75, Article 78 (11), Article 85 (31), Article 89 (1), Article 90 (1), Article 91 (11), the first sentence of Article 95 (31), Article 102 (31), Article 114 (1), Article 119 (1), Article 122 (1) and (2), Article 133 (3) and (4), Article 1371, Article 138 (1) and (2), Article 140 (3), (4) and (6), Article 146 b) and Article 148 (1);

3. the reconsideration of the position: ‐ of paragraph (2) of Article 10 within the structure of Title VI of the Constitution; ‐ of paragraph (21) of Article 24 within the structure of Article 21 of the Constitution; ‐ of paragraphs (1) and (3) of Article 32 within the structure of a new article in the

Constitution; ‐ of paragraph (31) of Article 55 within the structure of Title VI of the Constitution;


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‐ of paragraphs (2), (3) and (4) of Article 75 within the structure of a new article in the Constitution;

4. the reconsideration of the legislative solution referring to the amendment of Article 126 (4) and Article 134 (1) of the Constitution.

IV. By a majority vote, it submits to the Parliament’s attention comments on: 1. the removal: ‐ of paragraph (11), proposed for being introduced in Article 1; ‐ of paragraph (21), proposed for being introduced in Article 6; ‐ of the second sentence in paragraph (5) of Article 119, proposed for being introduced

in the Constitution; 2. the rewording of the supplementing of Article 35 by a new paragraph, paragraph (31),

and of the amendment of second sentence in Article 44 (1) of the Constitution. V. Unanimously, it submits to the Parliament’s attention the comments on the

supplementing of Article 155 of the Constitution by introducing some transitional standards referring to the term of office of the members of the Superior Council of Magistracy.

VI. By a majority vote, it finds that the provisions of the legislative proposal for the revision of the Constitution referring to the amendment of Article 61 (2), Article 64 (3) and Article 80 (1), as well as to the introduction of Article 1071 in the Constitution are not contrary to the constitutional provisions.

VII. Unanimously, it finds that the other provisions in the legislative proposal for the revision of the Constitution are not contrary to the constitutional provisions.

Final and generally binding. The decision shall be notified to the Presidents of the two Chambers of the Romanian

Parliament and shall be published in the Official Gazette of Romania, Part I. Delivered during the meeting of 16 February 2014. DISSENTING OPINION

on the unconstitutionality of the supplementing of Article 58 (1) of the Constitution by the phrase “in their relations with public authorities” referred to in paragraphs 186 to 190 of the Decision no. 80 of 16 February 2014.

Contrary to the majority opinion, I consider that the segment in the definition of the

Advocate of the People included in the phrase “in their relations with public authorities” is not unconstitutional and, under no circumstances, it violates the limits of the revision referred to in Article 152 (2) of the Constitution.

First, it should be noted that, in point 43 of the Sole Article of the proposal for the revision of the Constitution, the authors’ intention is to compensate for an obvious omission of the Constituent Assembly, unnoticed not during the revision of the Constitution of 2003, i.e. the absence of a definition of the institution of the Advocate of the People. To this purpose, the text proposed for Article 58 (1) was worded as follows: “(1) The Advocate of the People is an independent institution whose purpose is to promote and protect the rights and freedoms of citizens in their relations with public authorities.”

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This is the classic definition of the Ombudsman that we can find starting with the Constitution of its country of origin ‐ Sweden ‐ and continuing with the fundamental documents of other European countries that enshrine it under different names (France ‐ defender of rights, Spain ‐ Defensor del Pueblo, Netherlands, Greece and Portugal ‐ Ombudsman, Poland ‐ Commissioner for the Rights of Citizens, Hungary ‐ Commissioner for Fundamental Rights).

This definition clearly establishes the legal nature of the institution, its fundamental role, its goal and objectives. In principle, this institution is designed as an autonomous authority for defending the citizen against abuses, excesses, any violation of his/her rights by the administrative authorities, by any body belonging to the executive power.

The role of the institution of the Advocate of the People must be seen as a counterweight between the citizen and the State, more precisely the Executive. The intervention of the Advocate of the People in defending the citizen’s rights cannot be extended to another type of relation, to any violation generated, for example, by other citizens or by any other entity which is not part of the Executive.

“The Advocate of the People can and must intervene only in disputes between individuals and the authorities of the public administration (ministries, prefectures, public clerks, police authorities, prison authorities, etc.)”; the Advocate of the People cannot intervene in disputes between individuals”, has underlined prof. Ioan Muraru, former President of the Constitutional Court and former Advocate of the People.

The extension of the powers of the Advocate of the People concerning the safeguarding of the citizens’ rights to any subject that might violate their rights would equal to granting an omnipotence to this institution, to its transformation into a parallel justice and, in fact, to preventing it from fulfilling its natural mandate.

The reference to the citizens’ relations with the public authorities cannot be considered as a restriction or even a discarding of any of the guarantees for fundamental rights and freedoms. The Advocate of the people has never had such powers. It has never solved disputes between citizens.

The arguments in support of the majority opinion aim, in fact, at a different issue, a different, supplementary facet of the Advocate of the People, who is involved, together with other institutions and entities, in the review of the constitutionality of laws. This is the case of a power joined to the original one, which is based on other reasons and which mainly considers the fact that the laws and the other normative acts concerned have erga omnes effects and, as such, the entire society is interested in them being fair and, first of all, constitutional. However, the two categories of powers are not incompatible and do not exclude each other.

Judge, Prof. Valer Dorneanu, PhD DISSENTING OPINION Contrary to the majority opinion, I consider the following: I. The amendment of Article 28 of the current Constitution, through point 21 of the Sole

Article of the legislative proposal for the revision of the Constitution, is constitutional for the following reasons:


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The text proposed is worded as follows: “Article 28 — Secrecy of correspondence (1) Secrecy of letters, telegrams and other postal communications, of telephone



According to Article 28 of the Romanian Constitution in force, “Secrecy of letters, telegrams and other postal communications, of telephone conversations, and of any other legal means of communication is inviolable.”

Therefore, the object of the amendment is only the introduction in the current wording of Article 28 of the Constitution of: “of communications using electronic devices, of traffic data, location data”, as the framers felt the need to adapt the current wording of Article 28 to the realities and evolution of the society following the development in the information and communication technology.

Furthermore, the framers also wanted to give efficiency to and guarantee the constitutional text by binding the competent authorities to have, whenever the need to use such data appears, access granted by the judge of the court competent to rule on the merits of the case and only during the criminal trial.

Therefore, from the beginning, the intention of the framers focuses on criminal cases and does not consider the exceptional situations that can appear (natural disasters, imminent dangers or other likewise).

The solution rendered by the Constitutional Court starts precisely from the idea that the State must actively prove itself when an actual and imminent danger for the citizens appears, situation in which the text proposed would reduce the State’s possibility to intervene in matters related to the secrecy of correspondence.

According to the Court, if the revision proposal was accepted, in the case of natural disasters or severe accidents, the public authorities competent to manage such situations would not be allowed to take all the necessary efforts for saving lives, especially if we are considering the limitation conducted in relation to traffic data.

As shown above, the restriction imposed on authorities focuses on criminal cases. On the other hand, pursuant to the provisions of Article 18 of the new Criminal Code, an

act referred to by the criminal law does not constitute a crime if one of the reasons referred to by law exists and the state of necessity is referred to in Article 20 (1) and (2) of the same code.

Consequently, the authorities’ activity in the case of a state of necessity cannot be restricted in the sense that, in order to locate a person, an approval from the judge is required.

Also, the Court holds that traffic data and location data are not subordinated to the concept of legal means of communication and, consequently, cannot benefit from the legal

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protection that the latter enjoy. Therefore, we notice that, besides the fact that this conclusion is inappropriate, it is also unfounded.

II. As for the amendment introduced by Article 32 of the Constitution, especially by paragraph (8) defining university autonomy, and which the Court finds unconstitutional for violating the limits of the revision of the Constitution, I consider, on the contrary, that the framers wanted to give efficiency to the decisions of the Constitutions Court no. 2 of 4 January 2011, published in the Official Gazette of Romania, Part I, no. 136 of 23 February 2011, and no. 681 of 27 June 2012, published in the Official Gazette of Romania, Part I, no. 477 of 12 July 2012, by which the constitutional court found the unconstitutionality of certain provisions of the Law on national education no. 1/2011, precisely for violating Article 32 (6) of the Constitution, according to which “The autonomy of universities is guaranteed”.

It can be easily noticed that the Court’s rationale is largely based on the fact that, on constitutional level, the concept of university autonomy has not been explained.

In this context, the Court accuses the framers precisely of wishing to give an exact definition to the concept of university autonomy through “the capacity of higher education institutions to manage their heritage directly and immediately, to independently choose or, where appropriate, appoint their management structures and positions and to establish, according to the legal provisions and quality standards, their educational and research mission”.

Besides the fact that “a constitutional text cannot be a priori assessed as unconstitutional”, the Court also fails to motivate which are the fundamental rights and freedoms violated, since the regulation does not question the national, independent, unitary and indivisible character of the Romanian State, or the republican form of government, or the integrity or the independence of the judiciary, or the political pluralism, or the official language.

The entire Court’s rationale is based on the idea that this would lead to the setting up of an absolute right and to a full independence for universities in managing their heritage and choosing or appointing their management structures and positions, although without these prerogatives we cannot conceive university autonomy.

The Court also holds that the educational and research mission is mentioned only in the end of the text (as if the position of a provision grants it a higher or lower legal force ‐ s.n.) and that it does not cover all the aspects related to the concept of university autonomy.

Therefore, we can notice that, on the one hand, the Court is unhappy with this detailing and, on the other hand, that it does not cover all the aspects related to the concept of university autonomy.

I also notice that, according to the revision proposal, the educational and research mission is established according to the legal provisions and quality standards, the framers leaving the detailing regulation of this aspect for the ordinary legislator, respectively at infra‐constitutional level, reason for which I cannot understand the Court’s worries and concerns on this aspect.

Concerning this full independence of the higher education institutions in relation both to the management of their heritage and to the appointing of their management structures and positions, the Court’s statement that these prerogatives would suppress the guarantee


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of the right to education granted by university autonomy, I find that this assessment is purely formal and subjective, and has nothing to do with the right to education, which is not granted by university autonomy, but by Article 32 (4), (5), (6) and (7) of the revision proposal, respectively Article 32 (1), (2), (4) and (5) of the current Constitution.

Furthermore, in what concerns the aspects above, we should also mention the dissenting opinion to Decision no. 681 of 27 June 2012, which details both the “heritage” and the “university autonomy”.

III. On the contrary, as a general observation, I consider that the revision of the Constitution must be strictly referred to the “limits of the revision” as mentioned in Article 152 of the Basic Law and not to the dynamics of the case‐law of the Constitutional Court, as the constitutional review considers the compatibility of the infraconstitutional standards with the constitutional ones. While conducting the constitutional review, the adoption of normative acts must also be considered from the perspective of the constitutional provisions in force at that time, respectively the date of adoption, according to the principle tempus regit actum. Also, the Constitution of 1991, revised in 2003, stated that “The laws and all the other normative acts shall remain in force, insofar as these are not contrary to the current Constitution” [Article 154 (1) of the Constitution].

Furthermore, Article 147 of the Constitution, with the marginal title “The Decisions of the Constitutional Court”, establishes the effects of the decisions issued by the constitutional court.

If the revision of the Constitution does not strictly consider the provisions of Article 152, by considering that the case‐law of the Constitutional Court produces effects beyond those established through the will of the original or derived framers, we come to the conclusion that a revision could not take place anymore, as, effectively, the “constitutionalisation” effect applies to any infraconstitutional standard and to any decision of the constitutional court.

Judge, Petre Lăzăroiu DISSENTING OPINION I. Contrary to the solution adopted ‐ by a majority vote ‐ through Decision no. 80 of 16

February 2014, I consider that the Constitutional Court has wrongfully: ‐ found the unconstitutionality of the supplementing of Article 3 of the Constitution by a

new paragraph, paragraph (31), referring to the possibility of recognizing traditional areas as administrative subdivisions of regions;

‐ found the unconstitutionality of the supplementing of Article 6 of the Constitution by a new paragraph, paragraph (11), referring to the introduction of the possibility, for the legal representatives of national minorities, to establish, according to the statute of national minorities adopted by law, their own decision‐making and executive bodies;

‐ found the unconstitutionality of the supplementing of Article 12 of the Constitution by a new paragraph, paragraph (41), referring to the use of symbols specific to national minorities;

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‐ submitted to the Parliament’s attention the removal of paragraph (21), proposed to be introduced in Article 6, referring directly to the obligation of central and local public authorities to consult the organisations of citizens belonging to national minorities in certain fields.

Next, I will present the reasons underlying this dissenting opinion, which relies both on the existing national and international legal framework and on the elements of comparative law that the Court refused to consider; by ignoring these grounds, the Court has issued, in relation to the above‐mentioned articles, a wrong solution, based on an artificial reasoning.

II. In relation to the power of the Constitutional Court to adjudicate on initiatives for the revision of the Constitution, we note that the standard of reference for this review is Article 152 of the Constitution. While paragraph (3) of this article includes the intrinsic conditions of such initiative, the first two paragraphs refer to the extrinsic ones. In this last category, we find that Article 152 (2) refers to the prohibition of the suppression of a right, of a fundamental freedom or of a guarantee thereof, so that, through a revision of the Constitution, we could adopt regulations with positive consequences thereon; in exchange, the first paragraph in Article 152 of the Constitution refers to an outright regulatory ban. Therefore, the original framers of 1991 have made it compulsory for the derived framers to prevent any amendment to the Constitution from referring to the content of the current provisions of Article 1 (1) and (2), Article 8 (1), Article 13 or Article 124 (3), except for the situation of an amendment of Article 152 (1) of the Constitution.

Thus, the phrase “cannot be subject to revision” refers to the fact that, while Article 152 (1) of the Constitution is maintained, the derived framers cannot regulate at all in relation to the previously mentioned constitutional texts.

As shown below, the revision initiative did not aim at these limits, as the constitutional texts regulating them remained untouched. It cannot be claimed, not even implicitly, that this aspect has been regulated since the concepts proposed to be introduced were organically integrated into Article 1 of the Constitution.

I consider that the Court’s analysis has exceeded the necessary framework, as the decision issued starts axiomatically and directly from the idea that this field has been regulated. What the Court had to prove was precisely this, because it is only under these circumstances that we could reach the conclusion that the subject of the revision would be the national and unitary character of the Romanian State. Therefore, instead of limiting itself to its powers and instead of proving whether or not the object of the revision was the national and unitary character of the Romanian State, the Court went further and analysed whether or not the amendments made affected these features of the State.

Consequently, I think that the Court’s power relating to the limits of the revision, set out in Article 152 (1) of the Constitution, is obviously limited only to establishing whether or not the revision initiative regulates those fields and nothing more.

III. As for point 4 of the Sole Article of the proposal for revision, it is found that it sets to recognize certain traditional areas as administrative subdivisions of regions. The text does not refer to national minorities and it does not establish a certain name for the administrative subdivision, but it only indicates the criterion for its delineation. Such


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administrative‐territorial subdivisions exist in several European countries, declared through the Constitution as unitary countries (Italy, Spain).

The organisation of administrative‐territorial subdivisions, based on this criterion, does not aim at or affect the quality of “unitary state”.

The notion of “unitary and indivisible State” refers to an unique series of institutions, to a sole legislative body (see Decision no. 176 of 16 November 1999, published in the Official Gazette of Romania, Part I, no. 64 of 14 February 2000), to a sole executive and to a sole judiciary; or, none of the elements defining the notion of “unitary and indivisible State” is concerned or affected by the recognition of certain areas with historical traditions as being subdivisions of regions.

Following the same line of thinking, through Decision no. 80 of 15 September 1995, published in the Official Gazette of Romania, Part I, no. 280 of 30 November 1995, the Court stated that “the existence of different normative acts for certain areas of the country is not likely to affect the unitary character of the State, but it only raises the question of a spatial implementation of the respective acts”.

The existence of subdivisions of the regions territorially subordinated to traditional regions like “Țara Moților”, “Székely Land”, “the historical region of Maramureş”, “the Country of Buzaielor”, “Burzenland” or “Bucovina”, would not affect in any way the unitary character of the Romanian State.

Moreover, I do not believe that such subdivisions of regions could aim at, nor affect, the national character of the Romanian State. “The nation belongs to all citizens” state Mihai Constantinescu, Antonie Iorgovan, Ioan Muraru and Elena Simina Tănăsescu, authors of the volume “Constituția României – revizuită” (“The Romanian Constitution ‐ revised” ‐ n.tr.), All Beck Publishing House, 2004.

Starting from this finding and considering that “within a State’s population we can identify three categories of people, i.e. citizens, foreigners and stateless persons, [and] these last two categories are not included in the nation category” (Constituția României — Comentariu pe articole, coord. I. Muraru and E.S. Tănăsescu, C.H. Beck Publishing House, 2008) (The Romanian Constitution ‐ Comments on articles ‐ n.tr.), we can highlight the fact that, from a legal point of view, the word “nation” includes all citizens, regardless of their ethnic origin; thus, we could reach an unwanted conclusion, i.e. that the ethnic minorities are “the foreigners” or the “stateless persons”.

Recommendation 1735 (2006) referring to the concept of “nation”, adopted by the Parliamentary Assembly of the Council of Europe on 26 January 2005, states in point 5 that, in some Council of Europe member states, the concept of “nation” is used to indicate citizenship, which is a legal link (relation) between a state and an individual, irrespective of the latter’s ethno‐cultural origin, while in some other member states the same term is used in order to indicate an organic community speaking a certain language and characterised by a set of similar cultural and historic traditions, by similar perceptions of its past, similar aspirations for its present and similar visions of its future.

Under these circumstances, in order to include ‐ and not exclude ‐ the national minority in the constitutional syntagm of “national State”, the nation must be understood as a legal relation having nationality as its core element, and, under these circumstances, a specific

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regulation of the State’s administrative‐territorial organisation ‐ acknowledging the historical reality ‐ does not concern nor affect in any way this legal relation between the State and the citizen.

Moreover, under Article 3 of Law no. 2/1968 on the administrative organisation of Romania’s territory, published in the Official Bulletin no. 163 of 20 December 1968, “Counties are composed of towns and communes ‐ basic units of the country’s administrative‐territorial organisation ‐ depending on the geographical, economic, social and political and ethnic conditions and on the cultural and traditional links of the population”. Thus, the legal regulation currently in force acknowledges that the counties’ delineation ‐ administrative‐territorial units ‐ considers “the population’s traditional [...] links”.

Besides, Article 8 of the same law, as well as Article 1 (2) h) of the Law on local public administration no. 215/2001, republished in the Official Gazette of Romania, Part I, no. 123 of 20 February 2007, enshrines the notion of “administrative‐territorial subdivision” in relation to the sectors of the municipality of Bucharest.

Therefore, the rationale considering as unconstitutional the provisions examined by this dissenting opinion cannot rely, under any circumstance, on the “damage to the national and unitary character of the Romanian State”.

IV. In relation to the amendments envisaged to Article 6 of the Constitution, we hold the following:

1. Point I of the Resolution of the Alba‐Iulia National Assembly of 18 November/1 December 1918, “The National Assembly of all Romanians in Transylvania, Banat and Hungary, gathered through their authorised representatives in Alba‐Iulia on 18 November/1 December 1918, hereby decrees the union of these Romanians and of all the territories that they inhabit with Romania”. Article III of the same document, expression of the democratic option of the “Romanians in Transylvania, Banat and Hungary” refers to “Full national freedom for all cohabiting peoples. Each people shall have the right to education, administration and judgement carried out in its own language by its members and each people shall be granted the right of representation within the legislative bodies and the country’s government, proportionally to the number of its members”.

Besides, the roots of this text reside precisely in the claims of the Romanian nation of Transylvania even since the XIXth century. In this context, we also mention the National Petition adopted by the Blaj National Assembly (15‐17 May 1848), which, in point 1, states: “The Romanian nation, based on the principle of freedom, equality and fraternity, hereby claims [...] to have representatives in the country’s parliament proportionally to the number of its members, to have clerks in all administrative, judiciary and military branches in the same percentage, to use its own language in all aspects concerning it, both in relation to legislation and administration”. Furthermore, point 7 states that “The Romanian nation demands its freedom of speaking, writing and printing without any censorship”.

Thus, these democratic traditions have been reflected, mutatis mutandis, in the Resolution of the Alba‐Iulia National Assembly of 18 November/1 December 1918 referring to “cohabiting peoples”.

2. The Paris Minority Treaty, signed between the Allied and Associated Powers, on the one hand, and Romania, on the other hand, on 9 December 1919, states in Article 11 that


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“Roumania agrees to accord to the communities of the Szecklers (Hungarian Székelys) and Saxons in Transylvania local autonomy in regard to scholastic and religious matters”.

3. Currently, as no statute of national minorities has been adopted, Law no. 86/1946 is in force in this field (see also, to this purpose, the Opinion of the Legislative Council no. 575/23 May 2005), law referring in its appendix to the two above‐mentioned documents.

We note that, more than 10 years after the revision of the Constitution14, the organic law on the statute of national minorities has not yet been adopted. On the contrary, a draft law, supposed to regulate this field and initiated by the Government on 26 May 2005, has been rejected by the Senate on 24 October 2005 and, for more than 8 years, it has been pending analysis within the Chamber of Deputies.

4. We consider that it is without doubt that all Romanian constitutions adopted after 1918 have obviously considered this act of union of Transylvania with Romania, but the implementation of the democratic principle set forth in Article III of the Proclamation ‐ referring to the “cohabiting peoples” ‐ has represented and still does a problem of the modern Romanian State which remains unsolved.

5. In this context, we consider that, for the Romanian State, the Alba‐Iulia Declaration is an act of constitutional value and, consequently, it forms a block of constitutionality with the Constitution adopted in 1991.

5.1. The concept of “block of constitutional norms” Without resuming the theory of the block of constitutional norms15, we would like to

refer to the Ruling of the Constitutional Court of the Republic of Moldova no. 36 of 5 December 2013, which, in paragraph 87, states that “through the reference in the Preamble to the Constitution, the Declaration of Independence has, unquestionably, the value of a constitutional text. Even if such a reference was lacking from the Preamble to the Constitution, the Declaration of Independence of the Republic of Moldova would still, through its nature, have the value of a constitutional text as it represents the major expression of the people’s will to build and live in a free and independent country, will that predetermines the need to adopt the Constitution and binds the framers to the ideals, principles and values of the Declaration”.

5.2. The interpretation of Article 1 (3) of the Romanian Constitution Although the Romanian Constitution has no preamble, we find that Article 1 thereof is a

basic text, enshrining the general guiding principles and the characteristics of the Romanian State and which, in paragraph (3), acknowledges the “the spirit of the democratic traditions of the Romanian people”. Under these circumstances, we consider that, regardless of the

14 Following the 2003 revision of the Constitution, it was established that the statute of national minorities would

be regulated through organic law [Article 73(3) r)]. This is the first constitutional enshrining of the idea of a statute of national minorities.

15 The notion of “block of constitutional norms” was established in France and was generated by the extensive interpretation of the idea of Constitution. In this context, the block of constitutional norms includes the 1958 Constitution, the Declaration of the Rights of Man and of the Citizen of 1789, the Preamble to the 1946 Constitution and the basic principles acknowledged by the laws of the Republic. Therefore, in its case‐law, the French Constitutional Council has used as a reference text, besides the 1958 Constitution, the Declaration of the Rights of Man and of the Citizen of 1789 (Decision no. 73‐51 of 27 December 1973), the Preamble to the 1946 Constitution (Decision no. 75‐54 of 15 January 1975) and the basic principles acknowledged by the laws of the Republic (Decision no. 71‐44 of 16 July 1971).

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existence or absence of a Preamble to the Constitution, and given that Article 1 (3) of the Constitution deviates, under certain aspects, from the strictly normative nature imposed by the Constituent Assembly of 1991, the content of this last text fully acknowledges “the spirit of the democratic traditions of the Romanian people”. This is a wide and extensive notion, implicitly acknowledging the general and unchanging principles also enshrined in acts of constitutional value. Thus, the purpose of the framers was to expressly state, if, such was necessary, the need and the obligation of the Romanian State to observe the democratic traditions of the Romanian people. Indeed, these democratic traditions are not limited to the post‐December 1989 period, but they consider all those real manifestations of democracy of the Romanian people that laid the foundation of the modern Romanian State.

5.3. In this context, we find that the Alba‐Iulia Resolution represents the democratic manifestation of an original popular will, which requires respect, acknowledgement and development throughout the entire history of the Romanian State. As its foundation, it is obvious that, regardless of the number of years passed by, the principles that it acknowledges represent elements that remain unchanged from the perspective of the Romanian people, and such an original and direct manifestation of democracy can only require its observance by the subsequent constitutional acts, therefore, implicitly, by the 1991 Romanian Constitution as well.

Also, it is found that the constitutional reference to the “the spirit of the democratic traditions of the Romanian people” cannot remain without results, as it was included therein precisely for being observed and not evaded or set aside. Therefore, from this perspective, the concept of “block of constitutional norms” must be accepted by the Romanian law as well.

5.4. We note that the democratic traditions of the Romanian people cannot be incorporated partially truncated because this would lead to unacceptable situations in the sense that certain parts of documents of constitutional value are the expression of the democratic traditions, while others are not. Thus, the democratic traditions are not chosen, but acknowledged and imposed according to the requests and aspirations of those concerned.

6. As also mentioned in the above‐mentioned decision of the Constitutional Court of the Republic of Moldova, “no provision in the Constitution, reflected in the text of the Declaration of Independence, can violate the limits (provisions) of the Declaration”. Mutatis mutandis, no provision of the Romanian Constitution reflected in the Resolution of the National Assembly of Alba‐Iulia cannot violate the limits (provisions) of the Resolution.

In this context, the text proposed for being introduced refers to the setting up of decision‐making and executive bodies of the national minorities, which can only be considered as a necessary element for preserving, developing and expressing the identity of national minorities within the existent constitutional framework, and not as a matter affecting the unitary and national character of the Romanian State.

This text refers to the fact that the decisions related to the training of the members of national minorities in their own language must be incumbent upon them ‐ in accordance, we might add, with the document of 18 November/1 December 1918. Because it is only through education that a person becomes aware of his/her identity, of the fact that (s)he belongs to


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a certain national minority. Without education, a person could not really express his/her identity and, in time, would lose it.

Consequently, we consider that education is one of the basics of the ethnic, cultural, linguistic and religious identity of national minorities, so that any aspect related to the assertion, preservation and development of the identity of a national minority must fall exclusively under its scope.

7. There is a contrast between the fact that the right to the preservation, development and expression of the identity of national minorities, regulated by Article 6 of the Constitution in force, does not affect the national and unitary character of the Romanian State and the fact that the existence of decision‐making bodies with competences in this field or the consultation, in this field, of the organisations of persons belonging to national minorities is contrary to the unitary and national character of the state. Such a construction can only be a contradiction in terms, as it appears to start from the premise that the majority forces the minority to preserve, develop and express its identity in a certain manner.

8. We consider that such a provision does not question, in any way, the unitary character of the state, character that takes into consideration the structure of the state; the unitary state is opposed to the federative state, and the purpose of the initiative for revision is far from this, it does not question the unitary character of the state, but it aims, on the one hand, at a decision‐making autonomy in matters related to education, culture, traditions and, implicitly, to the identity of national minorities, and, on the other hand, at a consultation of the national minority when setting the legal framework for its decisions ‐ therefore, eventually, the decision establishing the framework within which the national minorities shall exercise their own competences with regard to the preservation, development and expression of their identity still belongs to the central and local public authorities (exclusive/shared/delegated competences). Moreover, the texts examined do not refer to Romania’s character as a national state, which is a rather historical concept based on the idea of a nation‐state.

9. The notion of “own bodies” should not be seen as a structure separated from the authority of the Romanian State, but as an intrinsic structure thereof, representing the minority, consisting of its representatives and deciding on matters related to education conducted in the minority’s language, respectively its cultural identity. The right referred to in Article 6 of the Constitution cannot be expressed in the sense that the majority should decide on how the minority should preserve, develop and express its identity.

10. The text proposed for being introduced is a matter of principle, it cannot regulate down to the smallest detail a certain principle, which is incumbent upon the infraconstitutional legislator by the adoption of the statute of national minorities.

I am not denying that this text would have needed a certain rewording in order to be clear, accurate and predictable, but from this to ascertaining the violation of the unitary and national character of the Romanian State is a long way, which questions the very notion of good faith while interpreting the legislative solution under scrutiny.

V. We could challenge point 11 in the Sole Article as being vaguely worded, but we cannot claim that it violates the limits of the revision of the Constitution.

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It is the minority’s inherent right to use its own symbols, as a direct expression of Article 6 of the Constitution. The fact that this text was placed in Article 12, under the marginal title National symbols does not mean that this is a way to try and include the symbols of national minorities within this concept. In Spain, as shown above, the symbols of autonomous communities are covered by an article entitled Flag, and this does not imply a change/upgrading of a regional symbol to national level.

Furthermore, the Constitutional Court of Romania finds this article as “unconstitutional” because it has not been properly placed, while a different text on equality of arms, wrongfully placed in Article 24 ‐ The right to defence, is not found “unconstitutional” for being inconsistent with the marginal title of the text, recommending its repositioning within Article 21 of the Constitution.

As for the phrase “public and private areas”, we find, once again, that it falls upon the law to define the terms used in the Constitution and not necessarily through the text of the Constitution; if the phrase is vague, it does not mean that the right to use the symbols of a national minority is also contrary to the Constitution.

Is it currently prohibited to the members of national minorities to use their own symbols in their “private” areas? Such an interpretation would remove guarantees which are specific to the right to personal, family and private life, freedom of expression or freedom of conscience, contrary to Article 152 (2) of the Constitution.

Not being able to use symbols which are specific to the minority that one belongs to, especially within the administrative‐territorial units where the overwhelming majority is represented by persons belonging to the national minority, equals to ignoring and, eventually, denying the right to identity of the respective national minority.

VI. In support of the above, we can also mention provisions of certain international documents or aspects of comparative law on national minorities.

1. The international documents ratified in this field are part of Romania’s national law, under Article 11 (2) of the Constitution, and, under Article 11 (1) of the Constitution, the Romanian State must “fulfil as such and in good faith its obligations as deriving from the treaties to which it is a party”, which is obviously an expression of the principle of international public law pacta sunt servanda.

2. We consider relevant for the matter under scrutiny here the following documents referring to national minorities:

‐ Article 27 of the International Covenant on Civil and Political Rights ‐ Rights of persons belonging to minorities. In what concerns this text, through Decision no. 2 of 4 January 2011, published in the Official Gazette of Romania, Part I, no. 136 of 23 February 2011, the Constitutional Court has established that, “according to point 1 of the General Comment no. 23 on Article 27 of the International Covenant on Civil and Political Rights ‐ Rights of persons belonging to minorities ‐, this article of the Covenant establishes and recognizes a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant (right to own cultural life, to teach and practice one’s own religion or to use one’s language). Point 6.1 of the same Comment states that, although Article 27 is expressed in negative terms, that article, nevertheless,


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does recognize the existence of a “right” and requires that it shall not be denied. Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. Moreover, according to point 6.2 of the Comment, the rights of persons belonging to national minorities depend, in turn, on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group. Finally, the protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole (see, to this purpose, point 9 of the Comment)”;

‐ Article 1 (1) of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the 92nd plenary meeting of the General Assembly of the UN on 18 December 1992, states that “States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity”. Moreover, “National policies and programmes shall be planned and implemented with due regard for the legitimate interests of persons belonging to minorities” [Article 5 (1) of the Declaration].

We note that Romania became a member of the United Nations Organisation on 14 December 1955;

‐ Article 3 (2) of the Framework Convention for the Protection of National Minorities, signed in Strasbourg on 1 February 1995, ratified through Law no. 33/1995, published in the Official Gazette of Romania, Part I, no. 82 of 4 May 1995, states that “Persons belonging to national minorities may exercise the rights and enjoy the freedoms flowing from the principles enshrined in the present framework Convention individually as well as in community with others”. Then, Article 5 (1) of the same framework convention states: “The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage”;

‐ the Preamble to the European Charter for Regional or Minority Languages, adopted on 5 November 1992 in Strasbourg, ratified through Law no. 282/2007, published in the Official Gazette of Romania, Part I, no. 752 of 6 November 2007, states that “the protection and promotion of regional or minority languages in the different countries and regions of Europe represent an important contribution to the building of a Europe based on the principles of democracy and cultural diversity within the framework of national sovereignty and territorial integrity”.

3. Furthermore, we are also considering Recommendation 1201 (1993) of the Council of Europe on an additional protocol on the rights of national minorities to the European Convention on Human Rights, adopted by the Parliamentary Assembly of the Council of Europe on 1 February 1993 (non‐binding document), which, in Article 8, states that persons belonging to a national minority shall have the right to set up and manage their own schools

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and educational and training establishments within the framework of the legal system of the state.

Next, through Recommendation 43 (1998) on territorial autonomy and national minorities, adopted by the Parliamentary Assembly of the Council of Europe on 29 September 2003, the Committee of Ministers of the Council of Europe recommends to member States planning to change their systems of administrative subdivisions, and in particular to create regional tiers of government in territories where national minorities represent a substantial part of the population, to:

‐ to guarantee, inter alia, the creation of territorial authorities in such a way as to prevent dispersal of the members of a national minority and to afford them effective protection;

‐ to grant the territorial authorities ‐ local or regional ‐ appropriate powers to provide adequate protection for minorities;

‐ to consult the populations concerned regarding the geographical boundaries of the authorities in question according to the provisions of Article 5 of the European Charter of Local Self‐Government;

‐ to ensure that, where regional authorities have already been created, they also enjoy substantial powers in the sphere of regional development, so that they can take full advantage of the potential offered by history, tradition and multiculturalism.

The importance of this field is also highlighted by Recommendation 1623 (2003) on the rights of national minorities, adopted by the Parliamentary Assembly of the Council of Europe on 29 September 2003, recommending the achieving of common policies in the field of the protection of national minorities at the level of the European Union (point 13).

Finally, Recommendation 1735 (2006), cited above, in point 16, invites the member States to promote in their national legislation the recognition of the cultural rights of minorities, to bring into line their constitutions with the contemporary democratic European standards which call on each state to integrate all its citizens, irrespective of their ethno‐cultural background, within a civic and multicultural entity.

4. Relevant international legislation on national minorities 4.1. Spain Article 4 of the Constitution, bearing the marginal title Flag, states the possibility of

autonomous communities to have their own flags and ensigns to be used, together with the flag of Spain, on their public buildings and in their official acts. Thus, we see here a provision of constitutional scope included in the article called Flag.

Article 143 et subseq. of the Constitution refer to the possibility of bordering provinces with common historical, cultural, and economic characteristics to constitute themselves into autonomous communities, without affecting in any way Spain’s national unity referred to in Article 2 of its Constitution.

4.2. Italy The Constitution of Italy, unitary state, mentions, in Article 116, the existence of

autonomous regions, without thus affecting the unitary and national character of the State. Moreover, Article 1 (1) of the Special Statute for Trentino‐Alto Adige states that this is an autonomous region with legal status, “within the political structure of the Italian Republic,


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one and indivisible”. According to the same text, this region comprises two administrative‐territorial subdivisions, called provinces ‐ Trento and Bolzano.

4.3. Serbia Under Article 75 (1) of the Constitution, persons belonging to national minorities shall

be guaranteed special individual or collective rights, and, under paragraph (3) of the same article, persons belonging to national minorities may elect their national councils in order to exercise the right to self‐governance in the field of culture, education, information and official use of their language and script, in accordance with the law. Moreover, Article 2 of the Law on National Councils of National Minorities states that the national minority shall take part in the decision‐making process or shall decide in matters related to the above‐mentioned fields and shall establish institutions, companies or other organisations in the above‐mentioned fields.

VII. It results from the analysis of the legislation of the above‐mentioned countries that, in order to preserve the identity of national minorities, there are different ways to defend and develop it, either by setting up autonomous administrative‐territorial units, or by other measures.

The right to identity must be supported by the State, through positive measures (see also, to this purpose, Decision of the Constitutional Court no. 2 of 4 January 2011, published in the Official Gazette of Romania, Part I, no. 136 of 23 February 2011), and not impeded/hindered. Because, very often, such an action by the State can lead to insuperable and irreversible consequences for the life of a national minority (see the situation of the German minority in Romania, which, due to the policy of the Communist regime, counts, currently, only 36,000 persons of the 400,000 existing in 1954, or the situation in Ukraine, where the law on the regional languages of national minorities has been repealed, generating disapproval from many European countries, including Romania).

VIII. For all the reasons stated above, I consider that, through Decision no. 80 of 16 February 2014, the Constitutional Court has wrongfully interpreted both the texts of the Constitution and those of the legislative proposal for the revision of the Constitution, by declaring the provisions of points 4, 6 and 11 of the Sole Article thereof as contrary to the unitary and national character of the Romanian State, as, in fact, these texts refer, on the one hand, to criteria envisaged for the organisation of the administrative‐territorial subdivisions of regions and, on the other hand, to inalienable rights of national minorities.

Judge, Puskás Valentin Zoltán

II. Decisions delivered within the a priori review

A regulation lacking clarity and precision in relation to a mechanism of derogations from the general law applicable in a certain matter is in breach of the principle of legality. Although, in principle, the legislature can always establish derogations from the regulatory framework in force, under the principle of law that specialia generalibus

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derogant, the derogatory normative act must not render ineffective the constitutional provisions. Such conduct of public authorities infringes the certainty of legal relations, because it amounts to the possibility to bypass the legal framework at all times and in all circumstances while citizens are obliged to enforce it.

Keywords: local autonomy, quality of the law, accessibility, cuality, foreseeability Summary I. The Constitutional Court has been notified pursuant to Article 146 (a) of the

Constitution with the objection of unconstitutionality against the provisions of the Law laying down certain measures of decentralisation of powers exercised by some ministries and specialised bodies of the central public administration, as well as measures for public administration reform. The impugned law has 10 titles; eight of them cover decentralisation measures in the field of agriculture and rural development, culture, tourism, secondary education, environment and climate change, health, youth and sport, transport, while two titles bring amendments to Law no.273/2006 on local public finances, published in Official Gazette of Romania Part I, no. 618 of 18 July 2006, as subsequently amended and supplemented, and to Law no.213/1998 on public property, published in Official Gazette of Romania Part I, no. 448 of 24 November 1998, as subsequently amended and supplemented, namely transitional and final provisions.

As grounds for the objection of unconstitutionality, the authors formulated both challenges of extrinsic unconstitutionality and challenges of intrinsic unconstitutionality.

As concerns the extrinsic unconstitutionality, it was argued that the Government’s assumption of responsibility on this law comes against the provisions of Article 1 (4) concerning the principle of separation and balance of powers, Article 61 (1) on the role of Parliament, Article 114 of the Constitution — Government’s assumption of responsibility, as interpreted by the Constitutional Court. In this regard, the authors invoked also the infringement of the provisions of Article 147 (4) of the Constitution concerning the generally binding nature of the decisions of the Constitutional Court.

As concerns the intrinsic unconstitutionality, the authors invoked the infringement of the provisions of the Constitution contained in: Article 1 (1), (3) and (5) ‐ the Romanian State, Article 102 (1) on the role of the Government, Articles 120‐122 — Local public administration, Article 123 — the Prefect, and Article 136 — Property.

II. Having examined the objection of unconstitutionality, the Court held as follows: 1. Extrinsic challenges of unconstitutionality The Governance Programme 2013‐2016, part of the Romanian Parliament Resolution

no. 45/2012 for granting confidence to the Government, published in Official Gazette of Romania Part I, no. 877 of 21 December 2012, and the other filed documents reveal the importance of the regulatory purpose of the law, also in terms of objectives assumed by the Government. In the explanatory memorandum and in the viewpoint submitted by the Government to the case‐file, there are arguments on the emergency of the measure, the celerity of the procedure, the immediate application of the law, corresponding to the other


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criteria established by the Constitutional Court with regard to the Government’s assumption of responsibility on a bill. In conclusion, the purpose of the impugned regulation comes under main objective contained in the governance programme, whose implementation requires the adoption of measures which are characterised by a certain degree of rapidity, namely through the immediate applicability, given the complexity of the issues related to the process of administrative decentralisation.

For these reasons, by majority vote, the Court rejected the challenges of extrinsic unconstitutionality raised

2. Intrinsic challenges of unconstitutionality Analysing the impugned regulation, the Court held that it was adopted in breach of

Framework Law no.195/2006, which constitutes a breach of Article 1 (5) of the Constitution concerning the duty to respect the laws. With regard to decentralised areas no cost standards have been developed for financing decentralised public services and public utility services or quality standards for their supply by the local public authorities. Furthermore, the transfer of powers governed by law subject to constitutional review does not comply, in terms of clarity, precision and predictability of the rule, with the Framework Law no.195/2006. The examination of the provisions of the law demonstrates the legislature’s departure from a set of rules imposed by the legal texts in the matter of legislative technique, relating to the need to organically integrate that normative act in the legislation, to establish necessary, sufficient and possible rules leading to an enhanced legislative stability and efficiency, to draft legal rules in a specific legal language and style, which must be concise, sober, clear and precise to exclude any misunderstanding, to express the same concepts, only by the same terms.

Moreover, having examined the law subject to constitutional review by reference to Article 1 (5), Article 120 and Article 136 (2) and (4) of the Constitution, the Court held that it institutes a derogatory mechanism from framework laws in the matter of property (Law no. 287/2009 on the Civil Code, republished in the Official Gazette of Romania Part I, no. 505 of 15 July 2011, as amended, Law no.213/1998, as subsequently amended and supplemented, Law no.7/1996, republished, with subsequent amendments and supplements), through which it is carried out a massive transfer of goods from the State public/private domain to the public/private domain of administrative‐territorial units. Although, in principle, the legislature can always establish derogations from the regulatory framework in force, under the principle of law that specialia generalibus derogant, the derogatory normative act must not render ineffective the constitutional provisions, which would be tantamount to disregarding the requirements on the quality of legislation.

The Court held in this regard that, in the absence of a clear distinction with respect to the assets forming the subject‐matter of the transfer between domains, in terms of whether they belong to the public or private domain of the State at the time of the transfer, the imprecise nature of the legal regime of certain immovable property or the absence of a clear regulation of the legal measure itself ordered by law in respect of some of the assets, the derogation laid down by the impugned law is at variance with the principle of legal certainty with regard to the requirements of clarity and foreseeability of the rule and that determines the violation of the legal regime of public property. On the other hand, a number of

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inconsistencies in terminology, omissions or contradictions with the texts of the law itself, able to create uncertainty in terms of legal transactions covered and the assets mentioned therein, creates a lack of coherence, clarity and foreseeability of the legal rule, which is likely to infringe the principle of legal certainty with regard to the requirements of clarity and foreseeability of the rule.

Thus, having examined the assets included in the annexes of the impugned law, it is noted that the transfer concerns immovable property (buildings, land), fixed assets, inventory items, which, by their nature, are not likely to be the exclusive object of public property, as listed in Article 136 (3) of the Constitution but, on the contrary, according to their destination, i.e. use or public local, regional or national interest, they may belong to either the public domain of the State or of the public domain of the administrative‐territorial unit, in which case the provisions of Article 869 (3) last sentence of the Civil Code are deemed relevant, in the sense that the transfer from the public domain of the State to the domain of the administrative‐territorial unit can only take place in compliance with Article 9 of Law no. 213/1998, as subsequently amended.

In this context, the Court has held that law subject to constitutional review derogates from the legal provisions cited above, substituting individual acts (Government decisions) for transfer of certain assets from the public domain of the State in the public domain of the administrative‐territorial unit, without setting the legal regime of the assets transferred, i.e. whether they belong to the national, regional or local public domain, according to the criterion of use or national, regional or local public interest and in this way it removes the judicial review of administrative acts, exercised in accordance with Law no. 554/2004 on administrative disputes, published in Official Gazette of Romania, Part I, no. 1.154 of 7 December 2004, as amended, review guaranteed by Article 126 (2) of the Constitution. The derogatory mechanism of transmission of the property, governed by the impugned law, without compliance with legal procedures in force and without proper identification of the assets, is in fact a violation of the legal framework on public property.

Furthermore, the mechanism of transmission of the property, covered by the impugned law, from the private domain of the State to the private domain of administrative‐territorial units, through the effect of the law and in lack of an acceptance from the administrative‐territorial units, constitutes an infringement of the constitutional principle of local self‐government, covered by Article 120 (1) of the Constitution, which concerns both the organisation and functioning of the local public administration and the management, on its own responsibility, of the interests of the communities represented by such public authorities.

The Court also stated and that the arrangements for establishing a right of administration of public assets, subject to the transfer between domains, under the terms of the impugned law, is incompatible with the concept and the legal features of the actual right of administration, corresponding to the right to public property and, consequently, does not comply with Article 136 (4) of the Basic Law, which enshrines at constitutional level the modalities for exercising the right of public property.

Analysing the lists in Annexes 1‐8 of the law, the Court finds that the assets subject to transfer between domains are not precisely identified in terms of whether they belong to


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the public or private domain of the State (Annexes 1 and 2 concerns only public‐owned assets; Annex 3 does not specify the legal regime governing assets listed), the holder of a management right is not indicated (Annex 3) and, in the case of transfer of immovable property, the text does not specify the State’s title to property for assets in the private domain, or the modality of acquisition of the asset belonging to the public domain. Moreover, in the case of transfer of immovable property, the text does not indicate the standard elements of technical description, i.e. surfaces, land registry number, cadastral data. At the same time, the Court noted that, in the majority of cases, the inventory values are not up‐to‐date. The incomplete and vague nature of the provisions is likely to result in a breach of Article 1 (5) of the Constitution on the quality of the law.

Apart from the issues relating to the application of Article 1 (5) and Article 136 of the Constitution, the Court ascertained the violation of the principle of local autonomy in lack of an acceptance from local government authorities for the takeover in the private property of the administrative‐territorial units of certain assets from the private domain of the State.

For these reasons, by unanimous vote, the Court upheld the objection of unconstitutionality with regard to the challenges of intrinsic unconstitutionality and established that the Law laying down certain measures of decentralisation of certain powers exercised by some ministries and specialised bodies of the central public administration, as well as measures on public administration reform is unconstitutional, as a whole.

III. Three judges have formulated a concurring opinion in relation to the solution for rejection of the challenges of extrinsic unconstitutionality.

Decision no. 1 of 10 January 2014 on the objection of unconstitutionality of the Law laying down certain measures of decentralisation of certain powers exercised by some ministries and specialised bodies of the central public administration, as well as measures on public administration reform, published in the Official Gazette of Romania, Part I, no. 123 of 19 February 2014

Regulation through emergency ordinances of measures to reduce posts occupied within public institutions and authorities of constitutional status is likely to affect their administrative capacity and their operation and thus it is in breach of Article 115 (6) of the Constitution

Keywords: Legislative delegation. Government Emergency Ordinances. Regulatory scope of emergency ordinances. Regime of fundamental State institutions. Local self‐government. Law for approval of a Government Emergency Ordinance. Effects of the decisions of the Constitutional Court

Summary I. As grounds for the objection of unconstitutionality, its authors claim that the Law

approving Government Emergency Ordinance no.77/2013 establishing measures for ensuring the operation of local public administration, the number of posts and the reduction of expenses incurred by public institutions and authorities subordinated, under the authority or under the coordination of the Government or the Ministries is unconstitutional, as the

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approved emergency ordinance is in breach of Article 115 (6) of the Constitution. This constitutional text provides that emergency ordinances cannot affect the status of fundamental institutions of the State and, according to the case‐law of the Constitutional Court, this phrase covers the organisational structure, operation, the powers, the financial resources, the number and the status of employees, the salaries and the category of legal acts adopted by the respective institution.

However, according to the authors of the objection of unconstitutionality, the impugned legislation:

‐ abolished the vacant posts in ministries; in public institutions and authorities, under the authority or coordination of the Government or the Ministries, irrespective of the financing method; in public institutions and authorities financed in whole or in part from the State social insurance budget and/or from special funds budgets; in local public institutions;

‐ reduced the total number of posts occupied; ‐ established that public institutions and authorities are obliged to modify their

functional structures so that the total number of management functions within each authority or public body whose own/specialised apparatus comprises also employees under contract or, as the case may be, that the employees under contract must amount to a maximum 12 % of the total posts approved;

‐ provided the conversion of cancelled management positions into enforcement positions corresponding to the studies and the requirements of seniority attained;

‐ changed the previously established structure of decentralized public services; ‐ established that vacant posts can be occupied by competition/exam only after a

favourable opinion has been obtained from the Government, by note initiated by the Ministry of National Education, the Ministry of Health and the Ministry of Labour, Family, Social Protection and Elderly, as applicable, and the Ministry of Public Finance, on the basis of requests from the officers authorised to carry out payments, provided such complies with the ceiling for expenses related to personnel and expenses related to personnel already approved;

— established the annual approval by the Government of the maximum number of posts to be created and occupied, in addition to those already in place.

The authors of the objection of unconstitutionality take the view that similar measures were adopted by Government Emergency Ordinance no.37/2009 on measures to improve the functioning of public administration and Government Emergency Ordinance no.105/2009 on certain measures in the field of civil service, and on strengthening the management capacity at the level of decentralized public services of ministries and other central public administration bodies of the territorial‐administrative units and of other public services, as well as regulating certain measures concerning the office of the high official in central and local public administration, the office of the prefect and the office of the locally elected officer, which have been found to be contrary to Article 115 (6) of the Constitution, by Decision no. 1.257 of 7 October 2009 and Decision no 1.629 of 3 December 2009. Further, it is considered that are applicable mutatis mutandis in the present case the considerations underlying the two decisions mentioned above.


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It is also argued, on the one hand, that the approval by law of the emergency ordinance is not such as to cover its flaws of extrinsic unconstitutionality and, on the other hand, that the legislative solution adopted seriously affects the operation of several State institutions, contrary to Article 115 (6) of the Constitution.

Accordingly, they pointed out that Government, through the impugned emergency ordinance, intervened in a field where it did not have “material constitutional competence” in violation of Article 115 (6) of the Constitution; in those circumstances, the law approving the emergency ordinance can be nothing but unconstitutional as well.

II. On these challenges, the Court held as follows: 1. The Court found that, pursuant to Article 115 of the Constitution “the Government

has specific and limited regulatory competence derived either from a delegating law or from the Constitution itself, as in case of conferred powers. The exercise of such competence is included in the same scope of the executive power and it consists in the ability to issue two categories of legislative acts: simple ordinances and emergency ordinances”.

The provisions of Article 115 (6) of the Constitution refer to the extrinsic constitutionality of a normative act, and the case‐law of the Constitutional Court agrees to that, whilst Government ordinances approved by Parliament by law, in accordance with Article 115 (7) of the Constitution shall cease to be stand‐alone acts and become legislative acts, as a result of acceptance by the legislature, even if, for reasons of legislative technique, together with the law for approval, they preserve also elements of identification assigned upon their adoption by the Government.

The Court held that it was competent to review within the a priori constitutional review concerning the law for approval also whether the emergency ordinance adopted complies with the conditions laid down in Article 115 (4) and (6) of the Constitution.

The Constitutional Court also held that the defect of unconstitutionality of simple ordinances or emergency ordinances issued by the Government could not be covered by Parliament’s adoption of such ordinances. A law approving an unconstitutional emergency ordinance is itself unconstitutional.

The provisions of Article 115 (6) of the Constitution, allegedly infringed, provide that “Emergency ordinances cannot be adopted in fields pertaining to constitutional laws, nor may these affect the status of the State fundamental institutions or any of the rights, freedoms and duties set forth in the Constitution, the electoral rights, or envisage any measures for the forcible transfer of assets into public property”. Therefore, the conditions imposed represent genuine limitations of the competence conferred on the Government and emergency ordinances cannot be issued in the areas referred to in Article 115 (6) of the Constitution, since the Government has no constitutional legitimacy in this respect.

The Court held that fundamental State institutions are those expressly covered by the Constitution, in detail, or even in terms of their existence, using explicit or only general terms (the institutions covered by Title III of the Constitution and the public authorities provided for in other Titles of the Basic Law). At the same time, the Court stressed that the prohibition of adoption of emergency ordinances is total and unconditional when stating that “cannot be adopted in the field pertaining to constitutional laws” and that “cannot envisage any measures for the forcible transfer of assets into public property”. In the other

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areas mentioned in the text, the emergency ordinances cannot be adopted if they “affect”, if they have negative consequences, but instead they can be adopted if, by the rules which they contain, they have positive consequences in the areas in which they operate. The Court then pointed out that the verb “to affect”, in the legal sense of the term, is tantamount to: “to supress”, “to infringe”, “to damage”, “to harm”, “to produce injury”, “to entail negative consequences”.

With regard to the meaning of the phrase “affect the status of the State fundamental institutions”, the Court held that it covers all the elements which define their legal regime ‐ organisational structure, operation, powers, financial resources, staff number and status, salaries, category of legal acts which they adopt, etc. Furthermore, all these components are subsumed into the organisation and functioning of the institutions of the State.

2. With regard to Government Emergency Ordinance no.77/2013, the Court held that this covers both the local public administration authorities and institutions and public authorities under the supervision, authority or coordination of the Government or Ministries. These authorities are set out in Article 116‐117 and Article 120‐123 of the Constitution and are therefore fundamental State institutions.

The cancellation of vacant posts in the institutions and public authorities is not such as to infringe Article 115 (6) of the Constitution since, although it refers to the organisational structure of the authorities concerned, it does neither affect their administrative capacity nor the operation. Therefore, even if at first sight it might be argued that the organisational structure of the public authorities concerned has been affected, the Court held that it must be related to the number of filled posts and to the number of vacant posts.

By contrast, the Court held that the measures laid down in Article 2 and Article 3 (1) of this Emergency Ordinance are likely to affect the regime of central and local public administration authorities.

It was thus shown that Article 2 provides, on the one hand, a general reduction of the total number of posts and, on the other hand, by a rule of reference contained in the same text, it mentioned the public authorities covered by this reduction and the percentage of such reduction. Thus, the rule refers to Annex 2 to Emergency Ordinance, which provides for a reduction of 4 % of the posts occupied within: the Ministry of Agriculture and Rural Development, the Ministry of the Interior, the Ministry of Regional Development and Public Administration, the Ministry of Economy, the Ministry of National Education, the Ministry of Public Finance, the Ministry of Labour, Family, Social Protection and Elderly, the Ministry of the Environment and Climate Change, the Ministry of Health, the Ministry of Transport and the Secretariat General of the Government.

In relation to these matters, the Court pointed out that, under a good legislative technique, the reduction percentage and the public authorities concerned should have been mentioned under Article 2 of the emergency ordinance. According to Article 57 (3) and (5) of Law no.24/2000 on the rules of legislative technique for drafting normative acts, republished in Official Gazette of Romania, Part I, no. 260 of 21 April 2010, as amended, the Annex must “relate solely to the subject matter determined by the reference” and its title “Synthetic


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5.expression includes the idea of the text of reference”. However, in the present case, the elements contained in the Annex are more than just a concretisation of the text of reference since they establish, in particular, the percentage of the reduction of posts filled.

The Court also stated that the legal text does not define the criteria for making that reduction, thus enabling the officers authorising payments, on a discretionary basis, to cancel posts occupied. In this regard, the Court stated that where occupied posts were cancelled, the criteria envisaged for termination of employment or service relations were explicitly mentioned (see, to that effect, Article 6 (5) and (6) of Law no.329/2009 on reorganisation of some public authorities and institutions, rationalisation of public spending, support of the business environment and compliance with the framework agreements with the European Commission and the International Monetary Fund, published in the Official Gazette of Romania, Part I, no. 761 of 9 November 2009).

The Court also found that such a reduction is likely to affect the administrative capacity and the functioning of public authorities also by the discretionary element involved in the decision to cancel certain posts. Furthermore, it obviously affects the organisational structure and number of personnel employed within these fundamental institutions of the State. Moreover, whenever measures of reduction of personnel in office were adopted, such was done by law (see Law no.329/2009).

In respect of Article 3 (1) of this Emergency Ordinance, the Court drew a distinction, stating that:

a) where the decrease in the number of management positions is due to the cancellation of existing vacancies it cannot be held that it is affected the regime of fundamental institutions of the State;

b) but, in those situations where the decrease in the number of management positions is not due to the cancellation of existing vacancies, it is affected the regime of fundamental institutions of the State by cancelling eventually occupied posts and structures of the public authorities.

The provisions of Article 3 (4) and (5) of this Emergency Ordinance are measures accompanying intrinsically those ordered by Article 1 (1), Article 2 and Article 3 (1), so that they do not require a separate examination by the Constitutional Court. Therefore, according to the principle of accesorium sequitur principale, also these legal texts affect the administrative capacity and functioning of the public authorities, as well as the organisational structure and the number of personnel.

What has been stated as regards Article 3 (1) of the emergency ordinance — in relation to the personnel under contract — applies mutatis mutandis to the provisions of Article 7 (2) c) point (2) of this emergency ordinance, which bring an identical amendment in respect of civil servants. With respect to this amendment, the Court noted that the text of Article 112 of Law no188/1999 on the statute of civil servants, republished in Official Gazette of Romania, Part I, no. 365 of 29 May 2007, as amended, no longer applies only to civil servants, but also to other personnel; such an amendment to Law no.188/1999, which

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results in the infringement of its own regulatory object, as defined in Article 1 (1), is not allowed as it would be contrary to Article 1 (5) of the Constitution on the quality of the law. Similarly, Article 52 of Law no.24/2000 on the rules of legislative technique for drafting normative acts, republished in Official Gazette of Romania, Part I, no. 260 of 21 April 2010, provides that “The general provisions include provisions that provide directions on the entire regulation, determine the latter’s object and principles”.

In relation to Article 5 of the emergency ordinance, the Court found that it is likely to affect the regime of local public authorities with direct reference to local self‐government, the principle governing this regime, as prior authorisation given by the Government to fill vacant posts is an interference in the operation of local public authorities, as the latters could not decide to occupy the vacant posts by open competition/examination even if such falls within the approved amounts of staff costs.

3. Having regard to the extrinsic unconstitutionality thus ascertained, the Court held that it affects the normative act in its entirety and cannot be covered by law. Therefore, the Law approving Government Emergency Ordinance no.77/2013 establishing measures for ensuring the operation of local public administration, the number of posts and the reduction of expenses incurred by public institutions and authorities subordinated, under the authority or under the coordination of the Government or the Ministries is unconstitutional in its entirety.

The Court has also held that, according to its case‐law, the unconstitutionality of the Law approving Government Emergency Ordinance no.77/2013 establishing measures for ensuring the operation of local public administration, the number of posts and the reduction of expenses incurred by public institutions and authorities subordinated, under the authority or under the coordination of the Government or the Ministries affects also the emergency ordinance which legal effects are going to cease under Article 147 (1) of the Constitution.

Finally, the Court held that both the reasoning part and the operative part of the decisions of the Constitutional Court are generally binding, in accordance with Article 147 (4) of the Constitution, and are equally binding on all subjects of law.

III. The Court upheld the objection of unconstitutionality raised and found that the provisions of the Law approving Government Emergency Ordinance no.77/2013 establishing measures for ensuring the operation of local public administration, the number of posts and the reduction of expenses incurred by public institutions and authorities subordinated, under the authority or under the coordination of the Government or the Ministries are unconstitutional in relation to the challenges brought, as against Article 115 (6) of the Constitution.

Decision no.55 of 5 February 2014 on the objection of unconstitutionality of the provisions of the Law approving Government Emergency Ordinance no.77/2013 establishing measures for ensuring the operation of local public administration, the number of posts and the reduction of expenses incurred by public institutions and authorities subordinated, under the authority or under the coordination of the Government or the Ministries, published in the Official Gazette of Romania, Part I, no.136 of 25 February 2014


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III. Decisions delivered within the a posteriori review

1. Exceptions of unconstitutionality [Article 146 d) of the Constitution]

By the legislative acts which it adopts, the State must protect the right to property of individuals. The infringement of the principle of proportionality affects the actual substance of the right to property, and the measure cannot be qualified as one laying down limits to the right to property within the meaning of Article 44 (1) of the Constitution

Keywords: Cuality of the law. Foreseeability and cuality. Right to property

Summary I. As grounds for the exception of unconstitutionality, its author claims, in essence,

that the impugned legal provisions are unconstitutional insofar as they are interpreted as meaning that the takeover and transfer from the applicant’s patrimony to the licensed operator’s patrimony of the investment made and in which the applicant owns a share must be free of charge. Thus, since the impugned legal provisions require the conclusion of a contract by which one party must give up free of charge its right to property, those provisions were unconstitutional.

II. Having examined the exception of unconstitutionality raised, the Constitutional Court held the following:

At the time when the parties signed the co‐financing contract on extending natural gas pipeline, the provisions of Article 65 (2) of Law no.351/2004, as amended by Law no.288/2005, were the applicable provisions.

Although the provisions of Article 65 (2) of Law no.351/2004 are expressly repealed, the Constitutional Court ruled on the impugned legal provisions criticised given that they continue to have legal effects in the case brought before the Court.

The constituent legislature established, by the provisions contained in Article 136 (3) of the Constitution, that natural resources of public interest in subsoil and other wealth established by organic law shall be exclusive part of the public property.

The Court therefore held that the Gas Law no.351/2004 regulated, as long as it was in force, a matter of public interest, namely that of Romanian State’s energy policy with a view to meeting the demand for natural gas for all categories of consumers.

According to Article 21 of Gas Law no.351/2004, natural gas transmission constitutes “a public service of national interest” and the works of construction, exploitation and maintenance of the natural gas transmission systems are “works of public utility”.

Therefore, the Court found that the distribution of natural gas is an economic activity, of public service nature, carried out by a company under the control of official authority.

As regards the granting of access to the gas distribution system to new users, the Court found that, under Article 62 of the Law, access to the system has two components, namely the connection to the system and the use of the system.

According to Chapter IV of the Regulation on the access to natural gas distribution systems, in order to obtain access to the distribution system, the applicant must lodge an

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application requesting reservation in terms of capacity and actual connection to the distribution system.

The refusal of access to the distribution system, according to Article 13 of the Regulation shall be made in accordance with the law, namely, in the present case, under Article 64 of the Gas Law no.351/2004. In this case, it results that the licensed operator has an obligation to produce a feasibility study to determine the technical and economic conditions for access of applicants to the scheme.

Where the feasibility study shows that the realisation of works for access to the system is not economically justified for the licensed operator established, the applicant has the obligation to participate in a certain share in the funding of the work together with the licensed operator. Thus, in this case, the applicant participates, in accordance with Article 65 (2) of Gas Law no.351/2004 in the co‐financing of the works necessary for connection to the gas system.

At the same time, under Article 65(2) of the Law the applicant is required to agree, by way of a contract, to the takeover and transfer in the licensed operator’s patrimony of the objectives/pipes from the moment of the commencement of their operation.

For strict adherence to the provisions of Article 65 of Gas Law no.351/2004, as amended by Law no. 288/2005, it was provided at the same time, under Article 109 point (4) of the Law, the administrative sanction applied to natural or legal persons that carry out new works, modify or extend the objectives in natural gas sector in breach of Article 65.

Under the impugned rule, i.e. in the event of takeover of objectives/pipes in the patrimony of the licensed operator, the Court has considered that the obligation to pay the expenses laid down in Article 65 (2) of the Law rests with the applicant, who has to advance the amounts necessary for the modification of the gas distribution system, once access is granted, where such changes are not economically justified for the licensed operator. It is reasonable for such costs to be borne by the person in whose interest they are incurred, but the legislature should have specified what constitutes such expenses, in the sense that they give rise to a claim or a right to private property over the objectives/pipes, so that, upon transfer to the property of the licensed operator, it should have provided for the method of compensation of the applicant.

With regard to the challenge of unconstitutionality that the transfer free of charge to the licensed operator of the share of the work funded is equivalent to an expropriation without compensation, the Court held that the impugned provision does not regulate an expropriation measure, which is a guarantee of the right to property that involves the forced transfer of an asset from private property into public property, with fair prior compensation.

Consequently, having regard to the nature of the challenges of unconstitutionality, as well as to the normative content of the legal text subject to constitutional review, the Court had to determine whether the legal solution criticised constitutes a limitation of the right to property and if the limitation is justified. The Court therefore examined whether the limits imposed by the legislature to the right to property of the applicants requesting access to the gas distribution system, by regulating their obligation to hand over the objectives/pipelines to the licensed operator, is a reasonable limitation which is not disproportionate in relation to the aim pursued.


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According to Article 555 of the Civil Code (Article 480 of the 1864 Civil Code), private property is the right of the holder to possess, use and dispose of a good exclusively, absolutely and permanently, within the limits laid down by law. The legal content of the right to property includes possession, use and disposal, attributes that configure the power which the owner has on the good. Private property is included in the civil circuit, and this is likely to ensure the essence of a competitive economy. It is one of the reasons why the right to private property is subject to a constitutional regime, being guaranteed by Article 44 of the Constitution.

In this respect, the Court, irrespective of the classification of the expenses incurred, noted that both the objectives/pipelines and the claim itself represent a good and the applicant justifies a right to property either on the objectives/pipelines within the limits of the share by which he participated to realisation thereof, or on the claim.

The Court found that the State, through the legal rule enacted, plays a role in the formation of the voluntary agreement by obliging the applicant to consent to the transfer into the licensed operator’s patrimony of the objectives/pipelines from the moment of the commencement of their operation.

The Court held that the limitation of the right to property must be justified and the justification must be based on a provision expressly provided for by the Constitution. In this respect, the Court notes that the right to property is not absolute, it may be subject to certain limitations, according to Article 44 (1) of the Constitution. However, the limits of the property rights, whatever their nature might be, cannot be confused with the actual annulment of the right to property.

As it has been explained also in the case‐law of the European Court of Human Rights, in the matter of regulation on use of goods, for example in the judgment of 19 December 1989 in Case Mellacher and Others v. Austria, § 45, and in judgment of 21 February 1986 in Case James and Others v. the United Kingdom, §§ 45‐46, it is for the State to establish the use of privately owned property when an aim of general interest is pursued, but, equally, attention should also be paid to the requirements of protection of individual interests, and keeping the proportionality report involves the granting of compensation, as the right to compensation is a constituent element of the right to property.

In this respect, the Court found that the aim pursued by the legislature in establishing the obligation of transfer of objectives/pipelines to the patrimony of the licensed operator, under the impugned rule, is to satisfy general interest, to protect the fundamental rights of individuals, to ensure security and continuity in the supply of natural gas, to provide the public service in conditions of energy efficiency and environmental protection, to comply with the requirements imposed by specific performance standards and to ensure third parties’ access to the distribution systems.

The Court found that the measure taken is appropriate as it is adapted to the aimed pursued, and it is capable, in the abstract, to meet its requirements.

Concerning the necessity of the measure, the Court held that the licensed operator’s control over the use of the systems and the performance of maintenance works represents an overriding public interest. Moreover, the absence of such measures implies the existence of many owners of objectives/pipelines, with consequences for the regime of use and

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easement over the land affected by them. The Court found that, according to Article 86 of Gas Law no.351/2004, concessionaires in the natural gas sector were granted, in accordance with the law, during the works of construction, rehabilitation, renewal of technology, exploitation and maintenance of the respective capacities, the right of use and easement over land and over other public or private property of legal or natural persons.

Therefore, the right of use and easement over property affected by capacity/natural gas pipelines may be granted only to the licensed operator and not also to the applicant (possibly owner of the objectives/pipelines), the reason for granting such rights consists, finally, in ensuring security conditions in the supply of natural gas by the licensed operator.

The Court held that the legislature is competent to establish the legal framework for the exercise of the right to property within the meaning conferred by the Constitution, in such a way as not to come into collision with the general interest or with the legitimate private interests of other subjects of law, establishing fair legal solutions. The Court noted that the legislature has inserted in the text criticised for unconstitutionality the provision concerning the consent of the applicant on the takeover to the licensed operator’s patrimony of the objectives/pipelines. Through the provisions subject to review, the legislature gave expression to the need to meet the general interest and to defend the individual fundamental rights.

The Court notes that, by rendering access to the gas system conditional on the signing of the contract provided for in Article 65 (2) of Gas Law no.351/2004 by which the applicant consents to the takeover in the licensed operator’s patrimony of the objectives/pipelines constructed, without allowing the applicant to recover the investment made from his own financial resources, as well as the interpretation that the takeover must be free of charge, are breaching the fair balance which must exist between general and individual interests. The State, through the normative acts it enacts, must protect the right to property of individuals. Thus, the infringement of the principle of proportionality affected the very substance of the right to property, and the measure cannot be qualified as one laying down limits of the right to property within the meaning of Article 44 (1) of the Constitution.

Once ascertained the violation of the aforementioned basic right, the question that arises is whether the constitutionality of the impugned legal provisions should be examined also in terms of Article 1 (5) of the Constitution.

The Court has jurisdiction to carry out the review of constitutionality also in relation to this constitutional text which becomes relevant as long as it previously found unconstitutional the legal provisions criticised in relation to the constitutional texts cited by the author of the exception of unconstitutionality. This is a natural consequence, which gives expression to the principle of supremacy of the Constitution, as laid down in Article 1 (5) of the Constitution (see, mutatis mutandis, Decision no. 100 of 9 March 2004, published in the Official Gazette of Romania, Part I, no. 261 of 24 March 2004).

However, Article 1 (5) of the Constitution enshrines the principle of mandatory compliance with laws. To be respected by its recipients, the law must fulfil certain requirements of clarity and foreseeability, so that they can adapt their conduct accordingly.

In this respect, the Constitutional Court held in its case‐law (e.g. Decision no. 1 of 11 January 2012, published in the Official Gazette of Romania Part I, no. 53 of 23 January 2012)


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that, in principle, all legislation must fulfil certain qualitative criteria, such as foreseeability, implying that it must be sufficiently precise and clear in order to be applied; i.e. a law has to be formulated with sufficient precision to enable the persons concerned – if need be with appropriate advice – to foresee, up to a reasonable degree ‐ given the circumstances, the consequences which a certain action may entail. Of course, it may be difficult to draw up laws of a total accuracy and flexibility might even prove to be desirable, but such flexibility must not affect the foreseeability of law (see, in this respect, Decision of the Constitutional Court no. 903 of 6 July 2010, published in the Official Gazette of Romania Part I, no 584 of 17 August 2010, and Decision of the Constitutional Court no. 743 of 2 June 2011, published in the Official Gazette of Romania, Part I, no. 579 of 16 August 2011).

Having examined the impugned legal rule, the Court found that the legislature has not established an amount of the apportioned share of the applicant’s participation.

However, the Court notes that under the initial amendment to the Gas Law no. 351/2004 through Government Emergency Ordinance no.116/2005, Article 65 (7) specified the share of participation of the applicant; the share represented that value of the work which, according to the feasibility study, was not economically justified for the licensed operator. However, after the approval of the Emergency Ordinance by Law no.288/2005, paragraphs (2) and (7) of Article 65 were merged, resulting in the present wording of paragraph (2), which does not make a clear specification on each contracting party share of participation in the funding of objectives/pipelines.

Likewise, it is not specified whether the assets used for the execution of the work of connection are borne by the licensed operator or by the applicant, but it is merely established that the obligation to enter into a contract by which the applicant requesting access consents to the takeover in the licensed operator’s patrimony of the objectives/ pipelines from the moment of the commencement of their operation.

From the analysis of the wording of Article 65 (2) of the Gas Law no. 351/2004 it could result that is left to the discretion and negotiation of the contracting parties both the nature of the contract they will conclude and the decision as to consideration or free of charge nature of the contract entered into. Likewise, it is not clear the nature of the right which derives from these activities.

The impugned legal text is ambiguous and thus infringes the constitutional provisions of Article 1 (5) on the precision and clarity of the legal rule.

Therefore, the legal provisions subject to criticism are unclear and they lack precision, an essential requirement for the quality and constitutionality of a rule of law, contrary to Article 1 (5) of the Constitution, and the lack of clarity and foreseeability of the normative act directly affects also the right to property, which is equally infringed.

In view of the above, the Court finds that the provisions of Article 65 (2) of Law no.351/2004 are contrary to the provisions of Article 1 (3) and (5) of the Basic Law.

For these reasons, the Court upheld the exception of unconstitutionality and found that the provisions of Article 65 (2) of Gas Law no.351/2004 are unconstitutional.

Decision no.430 of 24 October 2013 on the exception of unconstitutionality of the provisions of Article 65 (2) of Gas Law no.351/2004, published in the Official Gazette no.50 of 21 January 2014

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The role of the Public Ministry – forced execution

Keywords: principle of separation of powers Summary I. The Advocate of the People invoked the exception of unconstitutionality and argued

that the impugned legal rules are contrary to the constitutional provisions, as contrary to the role of the Public Ministry, as it results from the constitutional provisions and from the interpretation of those provisions by the Constitutional Court. In his opinion, the legislative solution established by the new Code of Civil Procedure exceeds the limits of the constitutional role of the Public Ministry in the judicial activity, transferring to the prosecutor some responsibilities in the matter of forced execution, i.e. to take measures, at the request of the bailiff, in order to obtain the information necessary for execution, in particular to identify the public and private entities where the debtor has opened accounts or has made bank deposits, has placed securities, it is a shareholder or a partner or, as the case may be, holds government securities, treasury bills and other securities that can be subject to forced execution.

II. Examining the objection of unconstitutionality, the Court held that the legal provisions subject to criticism are unclear and lack foreseeability.

A. They are unclear, because they create the false impression that the Public Ministry might receive orders from the bailiff in the phase of forced execution. In this context, it is worth stressing that, pursuant to Article 132 (1) of the Constitution of Romania, “Public prosecutors shall carry out their activity in accordance with the principle of legality, impartiality and hierarchical control, under the authority of the Minister of Justice.” Furthermore, pursuant to Article 62 (4) of Law no. 304/2004 on judicial organisation, republished in the Official Gazette of Romania, Part I, no. 827 of 13 September 2005, “Prosecutor’s Offices are independent in the relation with the courts, as well as with the other public authority”.

It is true that, in the judicial activity, the Public Ministry represents the general interests of society and protects the rule of law and the rights and freedoms of citizens, but the impugned legal provisions transfer to the prosecutor certain responsibilities in the matter of forced execution, i.e. to take, at the request of the bailiff, some concrete measures, which leads to the establishment of relations of subordination between the bailiff, on the one hand, and the prosecutor, on the other hand.

The Court notes that legislator may assign certain powers to the prosecutor in this phase of the civil trial, although the powers of the Public Ministry are exercised mainly in criminal judicial activity (see, to that effect, Decision no. 71 of 5 March 2002, published in the Official Gazette of Romania, Part I, no. 309 of 10 May 2002). However, this should be done in compliance with the constitutional provisions.

It is true that the legislature can establish various mechanisms involving also the criminal investigation bodies, whereas, the Public Ministry, in the phase of forced execution, might receive a request in view of obtaining the necessary information. However, these mechanisms must allow the prosecutor to decide on the necessity of his intervention in


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relation to the general interests of society, the need to protect the rule of law, as well as the right and freedoms of citizens [pursuant to Article 131 (1) of the Constitution].

No matter what it might decide in the future in this respect, the legislature must take into account, besides the mentioned constitutional provisions, also the case‐law of the European Court of Human Rights, such as, for example, judgement of 15 January 2009, delivered in Case Menchinskaya v. Russia, § 35. Thus, according to this case‐law, prosecutor’s intervention in civil proceedings may undoubtedly be justified in certain circumstances, for example the protection of rights of vulnerable groups – children, disabled people – who are assumed unable to protect their interests themselves, or where numerous citizens are affected by the wrongdoing concerned, or where State interests need to be protected.

Furthermore, that was the opinion of the Constitutional Court also when it held that civil proceedings, by their nature, are the proceedings where private interests are at stake. Consequently, the role of the Public Ministry is objectively reduced (see, to that effect, Decision no. 71 of 5 March 2002, published in the Official Gazette of Romania, Part I, no. 309 of 10 May 2002).

Therefore, the Court found that these mechanisms could only intervene in strictly defined cases and only after the exhaustion by the bailiff of all legal means provided by law for enforcement of writs of execution [i.e. the legal instruments set forth in Article 659 (1) in conjunction with Article 187 (1) point 2 f) and Article 189 of the Code of Civil Procedure].

B. The legal provisions also lack foreseeability, because, as claimed by the author of the exception of unconstitutionality, they do not establish the procedural means available to the Public Ministry in order to fulfil the measure established by law, they do not specify the acts and the procedural measures that the prosecutor may adopt in this respect, they do not establish the method of appeal against the measures taken and they do not specify which Prosecutor’s Office within the Public Ministry is responsible of the fulfilment of the measure [taking into account, on the latter issue, Article 650 (1) and Article 651 (1) of the Code of Civil Procedure].

The Court also noted that the impugned legal provisions are not accompanied by legal provisions (which can be included also in a separate normative act) that would allocate the necessary human and material resources (possibly additional) likely to effectively enforce the legal measures. The requirements of the rule of law impose adoption of an integrated legislative framework that would enable effective and efficient implementation of legal provisions, so that the rights and/or the measures provided therein do not remain theoretical and illusory.

III. In view of the above reasons, the Court found that the legal provisions subject to criticism violate the provisions of Article 1 (5), Article 131 (1) and Article 132 (1) of the Constitution and therefore it upheld the exception of unconstitutionality.

Decision no. 473 of 21 November 2013 on the exception of unconstitutionality of the provisions of Article 659 (3) of the Code of Civil Procedure, published in the Official Gazette no. 30 of 15 January 2014

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Extension of the right of residence of aliens in Romania in order to complete their academic studies

Keywords: Aliens, right to study, higher education, academic autonomy Summary I. As grounds for the exception of unconstitutionality, its author claims that, by limiting

the period of education established by the impugned law for aliens who have not completed their education within the period initially granted, the constitutional right to education is limited and education, according to Article 32(1) of the Basic Law, is also ensures by higher education. At the same time, the academic autonomy is violated, which, according to Article 138 of Law of National Education no. 1/2011, means that higher education institutions operate and establish the organization of their programs of studies by regulations drawn up under the approval of the university board. In this respect, the author of the exception claims that the Regulation on the professional activity of the students of “Ion Mincu” University of Architecture and Urbanism in Bucharest, whose students are, allows to repeat twice the same year of study and the expulsion interferes only if the student does not succeed to enrol in a higher year of study within three years.

II. Having examined the exception of unconstitutionality, the Court held that the Romanian State recognizes students the right to education, equally allowing and providing to exercise it on its territory, within education institutions of all ranks, irrespective of its public or private regime. For that purpose, a long residence visa for studies may be granted to aliens who require a visa for Romania as students, according to Article 45 (1) first sentence of Government Emergency Ordinance no. 194/2002. With a view to effectively achieving the objective pursued, namely the completion of courses for which the visa and residence permit in Romania were allowed, the residence right for Romania may be extended for successive periods up to one year, as it is provided for in Article 58(1) point a) of the same normative act. Moreover, the Romanian State also allows the extension of the residence right to those aliens who have not completed their studies within the period initially granted. The challenge of the author of the exception of unconstitutionality aims at this very law, in the light of limiting the extension of the residence right to one year. However, in this context, such a provision shall not constitute a limitation of the right to education. On the contrary, the fact that the text of law subject to constitutional review also allows the extension of the residence right for aliens who have not completed their education within the period initially granted, represents a benefit granted to them by the Romanian State which also takes into account the risk of any unforeseen circumstances susceptible to disrupt the alien student in attending and normally conducting his studies. Therefore, the role of this additional extension is to counteract the negative effects which certain circumstances may have on the intellectual fulfilment of the student.

The Court also noted that the bad results which lead to the failure of completing the year of study cannot be considered as the result of certain unforeseen circumstances, beyond the student’s will, except for a sole period of one year. The repeated failure of completion due to the lack of performance cannot constitute a reason for the additional


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extension of the residence right in Romania. The period of one year for which the extension may be granted, beyond the normal period of studies, falls under the European standards on the conditions of admission of third‐country national for the purposes of studies (Directive of the Council of the European Union 2004/114/EC of 13 December 2004 on the conditions of admission of third‐country national for the purposes of studies, pupil exchange, unremunerated training or voluntary service, published in the Official Journal of the European Union series L no. 375/12 of 13 December 2004), which, by Article 12 (2) point b), allows the Member States to reject the renewal of the residence permit if its holder does not make acceptable progress in his/her studies in accordance with national legislation and administrative practice. Furthermore, the European Court of Human Right also ruled that the right to education (which also includes the right to study), guaranteed by the first sentence of Article 2 of the Additional Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, claims, by its own nature, the government regulation. The court in Strasbourg also emphasized that such regulations must not affect the substance of the right to education, and the authorities shall establish the measures which they deemed to be appropriate (see Resolution of 23 July 1968 delivered in the case “Aspects on the use of languages in education in Belgium” against Belgium, paragraph 5). However, in the present case, the exercise of the right to education can be unhindered within the period of time established by the Romanian State for the alien whose residence right in Romania has been granted for that purpose, according to the provisions laid down by Government Emergency Ordinance no. 194/2002, period which is sufficient in order to cover the entire length of schooling and an additional period of time of one year during which the alien has the opportunity to complete his studies.

The author of the exception also invokes the infringement of the academic autonomy, constitutionally guaranteed by Article 32(5), claiming in this respect that the regulation on the professional activity of the students in the universities where they are enrolled give the possibility to repeat twice the same year of study, while the impugned law allows only one repeating of the year. In this matter, the Court found that, on the grounds of Article 123(2) of Law on National Education no. 1/2011, published in the Official Gazette of Romania, Part I, no. 18 of 10 January 2011, the academic autonomy involves the right of the University Community to establish “its own mission, the institutional strategy, the structure, its own activities, organization and functioning, the management of material and human resources, subject to strict compliance with the law in force, within the limits and requirements imposed by it [in this respect, see Decision no. 161 of 8 February 2011, published in the Official Gazette of Romania, Part I, no. 304 of 3 May 2011, concerning the exception of unconstitutionality of the provisions of Article 84(5) point a) of Law no. 128/1997 on the Teaching Staff Regulation].

The Court held that, on the basis of academic autonomy, the universities can actually establish their own rules through which students are allowed to repeat several times the same year of study and draw up methodologies on expulsion for that reason. The rules issued by them are generally applicable and the particular situations result from the special status of certain students, in this case from aliens, who must comply with the special regulations. In other words, the fact that the foreign students are applied special rules,

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determined by their very own different legal regime, cannot be considered an infringement of the academic autonomy.

III. For the above‐mentioned reasons, the Court rejected as unfounded the exception of unconstitutionality of the provisions of Article 58(11) of Government Emergency Ordinance no. 194/2002 on aliens’ regime in Romania.

Decision no. 542 of 17 December 2013 on the exception of unconstitutionality of the provisions of Article 58(11) of Government Emergency Ordinance no. 194/2002 on aliens’ regime in Romania, published in the Official Gazette of Romania, Part I, no. 108 of 12 February 2014

Legal provisions whose unconstitutionality has been found by prior decision of the Constitutional Court cannot form the object of an exception

Keywords: case of inadmissibility, date of the referral, interpretation. Summary I. As grounds for the exception of unconstitutionality, its author claims, in essence,

that the provisions of Article 40 (3) and (4) of Law no. 41/1994 violate the constitutional provisions of Article 1 (3), Article 30, Article 31, Article 33, Article 44 and Article 53 (2), as they impose an obligation on companies, including any subsidiary, branch, representation office or agency, to pay the public service broadcasting, even if in some cases they do not benefit from these services, “limitation which is not proportional to the situation which has created it, being discriminatorily applied in relation to companies”.

II. Having examined the exception of unconstitutionality, the Court held that, as concerns the exception of unconstitutionality of the provisions of Article 40(3) of Law no. 41/1994, by Decision no. 448 of 29 October 2013, published in the Official Gazette of Romania, Part I, no. 5 of 7 January 2014, the Constitutional Court ascertained that “the provisions of Article 40(3) of Law no. 41/1994 on the organization and operation of the Romanian Radio Broadcasting Corporation are constitutional to the extent that the fee for the public service broadcasting and television is applicable only for companies which benefit from these services.”

In such a case, in accordance with the case‐law of the Constitutional Court, respectively Decision no. 898 of 30 June 2011, published in the Official Gazette of Romania, Part I, no. 706 of 6 October 2011, to the extent that the constitutional court ascertained the constitutionality of the impugned text under a certain interpretation which results directly from the operative part of the decision, the provisions of Article 29(3) of Law no. 47/1992 become relevant, according to which “the legal provisions whose unconstitutionality has been found by prior decision of the Constitutional Court cannot form the object of an exception”. The reason for the enforcement of these legal provisions lies in the fact that, irrespective of the interpretations which may be brought to a text when the Constitutional Court has ruled in the operative part of the decision delivered within the jurisdiction provided for in Article 146(d) of the Constitution that only a certain interpretation shall be consistent with the Constitution, the presumption of constitutionality of the text is


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maintained in this interpretation, but all the other possible interpretations are excluded from the constitutional framework.

The Court finds that in such a situation, the exception of unconstitutionality has been allowed (see mutatis mutandis) and Decision no. 121 of 16 October 1996, published in the Official Gazette of Romania, Part I, no. 101 of 17 May 1997), and a new challenge of constitutionality on the interpretations which have already been excluded from the constitutional framework is tantamount to the violation of Article 147 (4) of the Constitution, in conjunction with Article 29(3) of Law no. 47/1992.

Consequently, only that interpretation of the legal norm which has not been excluded from the constitutional framework can form the object of the review of constitutionality, which is not the present case.

Therefore, on the view that this case of inadmissibility of the exception of unconstitutionality occurred after the Constitutional Court has been referred to by court, the Court rejected, as having become inadmissible, the exception of unconstitutionality of the provisions of Article 40(3) of Law no. 41/1994 on the organization and operation of the Romanian Radio Broadcasting Corporation and of the Romanian Television Corporation.

Decision no. 13 of 16 January 2014 on the exception of unconstitutionality of the provisions of Article 40(3) and (4) of Law no. 41/1994 on the organisation and operation of the Romanian Radio Broadcasting Corporation and of the Romanian Television Corporation, published in the Official Gazette of Romania, Part I, no. 109 of 13 February 2014

The extended confiscation applies solely to offences committed under the new legislative solution which has occurred when Law no. 63/2012 entered into force, respectively on 22 April 2012

Keyword: principle of retroactivity of the more favourable criminal law Summary I. As grounds for the exception of unconstitutionality, it is claimed that the provisions of

Article 1182 (2) point a) of the Criminal Code in 1969 are unconstitutional as the special confiscation could not have been ordered prior to the entrance into force of Law no. 63/2012. Therefore, the persons who, for objective reasons, had the chance to be under the old regulation, were in a more favourable situation, but discriminatory in relation to the persons who were charged after the new provisions had entered into force.

II. Having examined the exception of unconstitutionality, the Court ruled that, in accordance with Article 61 of the Constitution, Parliament, as sole legislative authority of the country, may adopt the measures of criminal policy in conjunction with the achievement of the legitimate interest pursued. As a result, within the system of criminal law sanctions, together with the instruments of restraint of a punitive nature, it was necessary that a complementary framework of a purely preventive nature be also established, namely that of safety measures. Such measures are intended to prevent the commitment of other criminal acts by removing the dangers which have caused the action of taking them. The safety

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measures, including the measure of extended confiscation, have the nature of criminal law sanctions, within the scope of legal categories, because they can be ordered only in relation to persons who committed criminal acts. At the same time, their application is not determined by the criminal liability for the committed act, but by the unsafe situation revealed through that act. Consequently, the unsafe situation which constitutes grounds for taking the safety measure, in conjunction with Article 111 of the Criminal Code in 1969, is different from the social danger of the offence as it concerns the person, the offender or certain things related to the act committed by him and which constitute a threat for future.

The Court held that only the norms of substantive criminal law may be subject to the constitutional regulation enshrined by Article 15(2) on the retroactivity of criminal law or more favourable contravention and not at all those of procedural criminal law which shall be immediately implemented. The set of legal norms covered by the criminal law establishes the acts which are considered offences, the sanction which is to be adopted (enforced) as for the commitment of the offence, the conditions under which the persons who commit offences may be held criminally responsible by the State, as well as the conditions under which the sentences are to be carried out and the measures which may be taken in case of committing criminal acts. Criminal law means a substantially or substantive rule of law with a legal content itself, namely a rule which establishes conducts, acts, actions of the subjects in a legal relationship, while the expression on the procedural law represents the category of the legal norms which comprise procedures, methods or means by which the substantially rules of law are enforced.

By Decision no. 1470 of 8 November 2011, published in the Official Gazette of Romania, Part I, no. 853 of 2 December 2011, the Constitutional Court, by referring to the criteria which delimit the rules of criminal law from those of criminal procedure, found that “putting these norms in the Criminal Code or in the Criminal Procedure Code does not constitute a criterion for their distinction”. Consequently, what prevails in establishing this nature consists in the regulatory object, in the aim and in the result to which the norm concerned leads. Thus, if the criterion of the regulatory object of the norm is taken into account, it shall be ascertained that Article 1182 (2) point a) of the Criminal Code in 1969 is a norm on the special confiscation which could fall within rules of substantive law and not within those of criminal procedure, as Article 2 of the Criminal Code in 1969 indicates that the criminal law also provides the measures which may be taken if offences are committed. However, the safety measure of the extended confiscation is one of them. Equally, regarding the removal of the unsafe situation and the prevention of committing the acts laid down in the criminal law, not even the criterion of the result to which the norm leads can be removed.

As concerns the institution of the extended confiscation, which is nothing else than a variety of the safety measure of confiscation, the Court found that this institution was introduced in the Romanian legislation by Law no. 63/2012 amending and supplementing the Criminal Code of Romania and by Law no. 286/2009 on the Criminal Code, published in the Official Gazette of Romania, Part I, no. 258 of 19 April 2012, a law by which Article 3 of the Council Framework Decision 2005/212/JAI of 24 February 2005 on Confiscation of Crime‐Related Proceeds, Instrumentalities and Properties is implemented in the national law,


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published in the Official Journal of the European Union, L 68 of 15 March 2005. Furthermore, the European Union Report to the European Parliament and to the Council of the European Union on Cooperation and Verification Mechanism, published in July 2011, recommends that, within the scope of the fight against corruption, our country prove convincing results in the recovery of the proceeds of crime, implementing the best practices from other Member States of the European Union and adopting a new law on the extended confiscation.

Therefore, the Constitutional Court’s analysis takes as a starting point the allegations of the authors of the referral whereby the provisions of Article 1182(2) point a) of the Criminal Code in 1969 affect the principle on the implementation of the more favourable criminal law and the equality of citizens before the law as they retroact, being discriminatory applied on the acts committed under the old law.

Thus, as referred to above, the Court found that, by its effects, the extended confiscation involves an indissolubly connection with the offence, although it is not conditional on the criminal liability. As a result, it arises as a cause for the removal of an unsafe situation and for the prevention of committing other criminal acts.

Examining the contents of the whole regulation on the extended confiscation of the Criminal Code, the Court found that the principle of the more favourable criminal law shall also be applied to this institution.

As concerns the principle on the equality of citizens before the law, the Court notes that a co‐author may be definitively judged under the old law and, as a consequence, no order on taking the safety measure of the extended confiscation shall be taken, whilst on the other co‐author, who is still engaged in judicial proceedings, such measure shall be ordered. Consequently, to the extent that the more favourable criminal law would not be enforceable, the latter would be discriminated under the legal treatment, without any objective or reasonable justification in relation to the former.

In other words, the provisions on the extended confiscation are constitutional to the extent that they apply solely to acts committed under the new legislative solution which has occurred since Law no. 63/2012 entered into force, respectively on 22 April 2012.

In conclusion, the Court held that the challenged legal norms are constitutional to the extent that they shall not prevent the enforcement of the more favourable criminal law to acts committed under the old law. However, this would not imply that that the ordinary court, in the course of justice, is not allowed to do the appropriate analysis, on a case‐by‐case basis, where it is to give a ruling in a case whose acts have been committed in a repeated form.

III. For these reasons, the Court allowed the exception of unconstitutionality and found that the provisions of Article 1182(2) point a) of the Criminal Code in 1969 are constitutional, to the extent that they allow the enforcement of the more favourable criminal law.

Decision no. 78 of 11 February 2014 on the exception of unconstitutionality of the provisions of Article 2 (a) and Article 16 of Law no. 194/2011 on countering the operations with products susceptible of having psychoactive effects, other than the ones provided by the documents in force, and of the provisions or Article 1182(2) point a) of the Criminal Code in 1969, Part I, no. 273 of 14 April 2014

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Only the state and the administrative‐territorial units, i.e. villages, towns, cities and counties, could be the property owners, and not the local or county councils which are deliberative authorities

Keywords: administrative‐territorial units, assets publicly or privately owned, deliberative

authorities, right to administration Summary A. As grounds for the exception of unconstitutionality, its author argues, essentially,

that both by the amendments to the title of the Government Emergency Ordinance no.78/2002 and by the supplements made by law for its approval, the provisions of Articles 44 and 136 of the Constitution of Romania are violated as they relate to ensuring the conditions for the functioning of some thermal and electrical power plants under the ownership of county and local councils. However, according to the constitutional provisions, only administrative‐territorial units, namely townships, towns and counties, as well as municipalities declared under the law, may have assets privately or publicly owned. As a result, the county and local councils, as deliberative authorities, cannot have a right to public property, but only the right to manage the assets publicly or privately owned by administrative ‐ territorial units.

B. The subject of the exception of unconstitutionality refers to the provisions of the sole article points 1 and 9 of Law no. 643 / 2002 for the approval of Government Emergency Ordinance no.78/2002 on ensuring the conditions for the functioning of the thermal and electrical power plants under the ownership of county and local councils, published in the Official Gazette of Romania, Part I, no. 896 of 10 December 2002.

As grounds for the unconstitutionality of such legal provisions, they invoke the constitutional provisions of Article 3 on the territory, of Article 44 on the right to private property, of Article 120 on basic principles and of Article 136 on property.

C. Examining the exception of unconstitutionality, the Court held that: I. The challenge of the author of the exception of unconstitutionality shows that she is

mainly dissatisfied with regard to Law. 643/2002 which amends the title of the Government Emergency Ordinance no.78/2002 [sole article point 1], in the meaning that the term “administration of county and local councils” is replaced by “property of county and local councils”, and therefore the legal regime of the thermal and electrical power plants is changed, namely the right to manage of the local and county councils on them was replaced by the right to property. However, this is contrary to the constitutional provisions on property, whereas according to the constitutional provisions, only administrative‐territorial units, namely townships, towns and counties, as well as municipalities declared under the law, may have assets publicly or privately owned. As a result, the county and local councils, as deliberative authorities, cannot have a right to public property, but only the right to manage the assets publicly or privately owned by administrative ‐ territorial units. Moreover, the same terminology is also used to the supplement of Government Emergency Ordinance no.78/2002, respectively the introduction of Article 8 [sole article point 9].


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II. The Court noted that, as stated in the explanatory statement to the bill [for the approval of Government Emergency Ordinance no.78/2000, which became, by adoption, Law no. 643/2002], "in accordance with the provisions of Government Decisions no. 1.088‐1.094/2001, no.183‐187/2002, no. 498/2002 and no. 104‐105/2002, it has been approved the transfer to local government authorities of the following thermal power plants within the Commercial Company of generating electrical and thermal energy "Termoelectrica" – S.A.: (...) ".

According to Article 1 of the Government Decision no.104/2002, published in the Official Gazette of Romania, Part I, no. 120 of 14 February 2002, "it is approved the unpaid transfer of the thermal power plants in Piteşti, Iaşi, Braşov, Bacău Oradea, Suceava, Timişoara and Borzeşti, with the identification data provided in the annex to the present decision, from the private sector of the State and from the Commercial Company "Termoelectrica" – S.A. to the public sector of Piteşti, Iaşi, Braşov, Bacău, Oradea, Suceava, Timişoara and Oneşti and to the administration of those local councils", [Article 1 of the Government Decision no. 104/2002], and in the annex to decision there are "The identification data of the thermal power plants which are to be transferred from the ownership of the Commercial Company Termoelectrica – S.A."

Thus, the Court finds that the ownership on the thermal and electrical power plants referred to in Government Emergency Ordinance no.78/2000 and Law no. 643/2002, was transferred from the private sector of the State and from the Commercial Company "Termoelectrica"‐S.A. to the public sector of some administrative‐territorial units and to the administration of their local councils.

III. Government Emergency Ordinance no.78/2002 was adopted to ensure the conditions for the functioning of the thermal and electrical power plants under the ownership of county and local councils, as well as to avoid the perpetuation of some crises in providing the financial resources needed to support the energy program.

By the adoption of Government Emergency Ordinance no. 78/2002, the assigned legislature's intention was, as stated above, to regulate the financial conditions in which the thermal and electrical power plants should function and conduct their activity, and not to change their legal regime as they had already been sent to local councils by Government decisions.

IV. By analysing the legislative process on the adoption of Law no. 643/2002, it has been noted the following:

‐ the title of Government Emergency Ordinance no. 78 / 2002, in its original form, was as follows: "Government Emergency Ordinance no.78 of 13 June 2002 on ensuring the conditions for the functioning of the thermal and electrical power plants under the administration of county and local councils";

‐ in the section on admitted amendments, it had been proposed: "The title of the ordinance shall read as follows: The title of Government Emergency Ordinance no. 78/2002 on ensuring the conditions for the functioning of the thermal and electrical power plants under the ownership of county and local councils";

‐ Under the heading that motivates the need for amending the title of the ordinance, it is stated that: "In compliance with Law no. 213/1998 on public property and its legal regime

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and according to the protocols concluded, thermal and electrical power plants pass into the ownership of administrative‐territorial units which shall decide the way in which they shall manage them."

Accordingly, it results that, although the legislature's intention was to specify that these thermal and electrical power plants are under the ownership of administrative‐territorial units, respectively to make a legislative correlation with Law no. 213/1998 on public property and its legal regime, the terminology used in the legal text subject to the review of constitutionality is inappropriate.

V. Given the general principle of law that a legal rule must be interpreted in its positive meaning, as generator of legal effects, the legal methods for the interpretation of legal rules should take into account not only the letter of the law, but also the spirit thereof, so that the result of the practical application of the legal rule be as close as possible to the objective pursued by the legislature, who cannot be assumed ab initio that he exercises the role of law‐making in denying both the fundamental rights and freedoms enshrined in the Constitution and the constitutional principles.

Under the provisions of Article 136(1) and (2) of the Constitution, "Property is either public or private" and "Public property is guaranteed and protected by law and belongs to the State or administrative‐territorial units".

The administrative‐territorial units (i.e. townships, towns, municipalities and counties) "are legal persons of public law with full legal capacity and their own patrimony" [Article 21(1) first sentence of Law no. 215/2001 on local public administration, republished in the Official Gazette of Romania, Part I, no. 123 of 20 February 2007].

However, under the constitutional provisions of Article 121, elected local councils and elected mayors are public administration authorities which carry out the local autonomy in townships and towns and function, under the law, as autonomous administrative authorities and manage public affairs in townships and towns. According to Article 1(2) point d) of Law no. 215/2001, deliberative authorities are "local council, county council, the General Council of Bucharest, local councils of territorial‐administrative subdivisions of municipalities".

In this context, the Court notes that the replacement, through the sole article points 1 and 9 of Law no. 643/2002 for the approval of Government Emergency Ordinance no. 78/2002 on ensuring the conditions for the functioning of the thermal and electrical power plants under the administration of county and local councils, of the phrase “thermal and electrical power plants under the administration of county and local councils” in Government Emergency Ordinance no. 78/2002 with the phrase “of some thermal and electrical power plants under the ownership of county or local councils” restricts the right to property of administrative‐territorial units, as set out in Article 136 of the Constitution [Article 135 of the unrevised Constitution], as the sole owners of property shall be the State and the administrative‐territorial units, i.e. townships, towns, cities and counties, not the local or county councils which are deliberative authorities.

D. By majority vote, the Court allowed the exception of unconstitutionality and found that the provisions of the sole article points 1 and 9 of Law no. 643/2002 for the approval of Government Emergency Ordinance no.78/2002 on ensuring the conditions for the


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functioning of the thermal and electrical power plants under the ownership of county and local councils are unconstitutional.

Decision no. 117 of 6 March 2014 on the exception of unconstitutionality of the provisions of the sole article points 1 and 9 of Law no. 643/2002 for the approval of Government Emergency Ordinance no. 78/2002 on ensuring the conditions for the functioning of the thermal and electrical power plants under the administration of county and local councils, published in the Official Gazette of no. 336 of 8 May 2014

Courts’ obligation to verify and rule on the quality of representative of a person who acts as a lawyer, exercising his/her specific professional acts and using the insignia of the lawyer’s profession

Keywords: Fair trial, right to defence, legal assistance, lawyer

Summary I. As grounds for the appeal, its author claims, essentially, that the provisions of Article

26(2) of Law no. 51/1995 on the organization and practice of the lawyer’s profession limit the right to a fair trial as civil court may verify issues which lie with criminal court, the latter having the jurisdiction to decide whether the exercise of specific professional activities, in this case the lawyer’s profession, is an offense. It is pointed out that the right to a fair trial involves, inter alia, the observance of fundamental human rights, the settlement of the case by the competent court, the compliance with the principle of certainty of legal relations, equality of arms in proceedings. Based on the impugned text, the civil court examines the lawfulness and validity of evidence brought to prove the lawyer’s quality of representative. It is also argued that the right to a fair trial is limited by the fact that the civil court does not comply with the res judicata of the judgments delivered in criminal matters on the act of exercising the lawyer’s profession, without having the right, by lawyers enrolled in the bars founded "based on the Order of the Court of First Instance, Târgu‐Jiu, of 30 July 2003" by which it has acquired legal personality and has been registered in the special register of associations and foundations, Băleşti Gorj Branch of "Potra Figaro" Association, set up under the Government Ordinance no. 26/2000 on associations and foundations, by the Decision of the General Meeting of "Potra Figaro" Association in Alba Iulia.

II. Examining the exception of unconstitutionality, the Court noted that its author argued that the impugned legal text limits the right to a fair trial because it would be for the civil court to verify certain issues which lie with the criminal court and only the latter shall have the right to decide whether the exercise of specific professional activities, in this case the lawyer’s profession, is an offense. On this challenge, the Court held that, in reality, the court which would apply Article 26(2) of Law no. 51/1995, regardless of its matter of specialization ‐ either civil or criminal, administrative or fiscal, labour disputes and social insurance or family law ‐ would not rule on the offense of exercising the lawyer’s profession, without having the right, by the person claiming to act as the representative of one of the parties to proceedings. The court will not do anything else but to ensure that the represented person shall benefit from an adequate defence conducted by a qualified person

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in that field, whose competence of lawyer shall be obtained under the law and recognized as such, in compliance with the requirements imposed for the accession to the lawyer’s profession established by Law no. 51/1995 for the organization and practice of the lawyer’s profession.

The issues concerning the existence of the offense, establishing that it was committed by the accused and the assessment of his/her guilt may potentially form the subject of a separate criminal trial, which in turn shall be subject to the demands of the right to a fair trial required by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Consequently, it is not the case that a civil court delivers a judgment establishing whether or not a person is guilty of an offense, so that it cannot be considered a possible infringement of the right to a fair trial given that there is no infringement of procedural rules relating to the substantive jurisdiction of the courts.

On the contrary, the impugned legal text enables the courts to ensure that the conduct of each proceeding, irrespective of the branch of law in which it has been arisen, complies with the rights of defence, a guarantee of the right to a fair trial. By applying the legal provisions subject to the review of constitutionality in the present case, the courts shall ensure that the right provided will be materialized by an act of professional quality conferring efficiency and effectiveness to rights of defence. In other words, due to the impugned legal text, the court has an optimal procedural framework that enables it to exercise due diligence to ensure the right of defence for the represented person, party to the proceedings. It is therefore one of the mechanisms by which the legislature has intended to give efficacy ‐ in any trial – to the provisions of Article 24(1) of the Constitution which guarantee the right of defence.

Moreover, considering the provisions of Article 2(3) and Article 4 of Law no. 303/2004 on the status of judges and public prosecutors, republished in the Official Gazette of Romania, Part I, no. 826 of 13 September 2005, under which “judges and public prosecutors, by their entire activity, shall ensure the supremacy of the law”, and even the High Court of Cassation and Justice has held that "the judicial bodies must not only take the measures necessary to ensure the defence of the accused or the defendant in criminal proceedings when it is required by law, but also note that legal assistance should be ensured by a person who has become a lawyer under Law no. 51/1995, as amended and supplemented by Law no. 255/2004, because otherwise legal assistance is tantamount to a lack of defence” (see Decision no. XXVII of 16 April 2007, published in the Official Gazette of Romania, Part I, no. 772 of 14 November 2007, delivered in the settlement of the appeal in the interest of law filed by the General Prosecutor of the Prosecutor's Office attached to the High Court of Cassation and Justice on the effects of assisting or representing parties in criminal proceedings by persons who have not become lawyers under Law no. 51/1995). On that occasion, the High Court of Cassation and Justice held that “legal assistance ensured by a person who has not become a lawyer under Law no. 51/1995, as amended and supplemented by Law no. 255/2004, is tantamount to his/her lack of defence”.

As grounds for that decision, the supreme Court held that: “in correlation with the provisions of the Criminal Procedure Code on ensuring the right to defence for the accused or suspect, throughout the criminal proceedings, as well as on the absolute nature of that


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nullity of acts performed in the absence of the counsel when the presence of the counsel and legal aid to be granted by the latter are compulsory, in accordance with the law, Law no.51/1995, as amended and supplemented by Law no.255/2004, lays down the conditions for practising the profession of lawyer”. At the same time, the High Court noted that, since the provisions of Law no.51/1995 — which is “a special law on the practice of the profession of lawyer ‐ contain certain mandatory requirements, it goes without saying that it is not possible to perform such a profession outside the framework institutionalised by that law”.

In the same vein, the Constitutional Court held in its case‐law, i.e. Decision no. 150 of 10 February 2009, published in Official Gazette of Romania Part I, no. 152 of 11 March 2009, and Decision no. 195 of 27 April 2004, published in Official Gazette of Romania Part I, no. 532 of 14 June 2004, that when ensuring the right of defence, the Constitution provides in Article 24 (2), that during the trial the parties have the right to be assisted by a lawyer, it refers to a person who has acquired the status of lawyer under the conditions laid down by law. The Court has held that this creates “a high level of guarantee to prevent performance of legal aid duties by non‐qualified personnel who escapes the professional scrutiny of bar associations’ (Decision no. 66 of 21 May 1996, published in Official Gazette of Romania, Part I, no. 325 of 5 December 1996). The Constitutional Court noted that, according to the legislature, law practice is a public service which is organised and operates on the basis of a special law and the legal profession may be exercised by a professional body selected and working according to the rules established by the law. The purpose of such a choice of the legislature is to secure a qualified legal assistance; those who wish to practise the profession of lawyer have the duty to abide by the law and to accept the rules imposed by the same. In this respect, the Court observed that this explains why the conditions for the organisation and practice of the profession of lawyer are set out in a specific law.

At the same time, by Decision no. 806 of 9 November 2006, published in Official Gazette of Romania Part I, no. 29 of 17 January 2007, the Constitutional Court noted that, “although law practice is a liberal and independent profession, its exercise must be organised in an organised framework, in accordance with pre‐established rules, which must be enforced including through the application of coercive measures, entailing the setting up of organisational structures and prohibiting of establishment of parallel structures intended for the exercise of the same activities, without legal support.”

Furthermore, by Decision no. 321 of 14 September 2004, published in Official Gazette of Romania Part I, no. 1144 of 3 December 2004, the Court noted that the organisation of the exercise of the profession of lawyer, by law, as is the case for any other activities that are of interest to society, is logical and necessary, in order to establish jurisdiction, the means and how to pursue this profession and the limits beyond which it would infringe the rights of other persons or professional categories. The Court also found, in that decision, that, as in the case of regulations specific to other professions such as notaries, physicians or experts, that mentioned law is intended “to defend the free exercise of the profession of lawyer against unfair competition from persons or structures located outside the legal framework and, on the other hand, to ensure that the rights of defence of people using the legal service by means of the guarantees provided by the organisation and the exercise of this profession within the limits set by the law”. In this regard, the Constitutional Court took the view that

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that “regulation by law of the obligation to pass the examination for admission in the profession of lawyer and the professional certification examination, the possibility of the attend the courses of the National Institute for Training of Lawyers, as well as the requirement on certain professional experience enabling lawyers to plead before higher courts, constitute guarantees for the proper exercise of this activity of public interest”.

As regards the claims of the author of the exception in the sense that, in order to comply with the obligation imposed by the impugned legal text, examination by the court of the decisions of acceptance in the professional are carried out without evidence about the legality of the “Traditional Bar Associations”, courts refusing to issue a letter to “the Self‐Entitled Traditional Bar Association in order to submit to the case‐file, in copy, the founding acts also in the absence of summons to the Gorj Bar Association which issued the decisions of acceptance in the profession subject to examination”, the Court finds these are matters of application of the legal provisions to the specific case, which cannot represent actual challenges of unconstitutionality.

The Court noted, however, that it is improper to claim the infringement of the right to a fair trial from the perspective point out by the author of the exception. This is apparent from the factual circumstances of the case. Thus, in a number of court proceedings, the author of the exception, member of “the Gorj Bar Association” set up by the Băleşti Gorj Subsidiary of the “Figaro Potra” Association, has undertaken the obligation to represent, as a lawyer, one of the parties. Based on the impugned legal text, the courts verified her capacity as representative. Following this operation, the courts have found that she lacks the capacity as lawyer, taking account of Article 1 (2) of Law no.51/1995, according to which “the legal profession is practiced only by lawyers registered on the lists of the Bar Association to which they belong, a Bar that is member of the Romanian National Union of Bar Associations” and those of Article 1 (3) of the same law, which prohibit the incorporation and functioning of Bar Associations outside of the Romanian National Union of Bar Associations.

In this context, the author of the exception has initiated court proceedings — and during the appeal, she raised the present exception of unconstitutionality — proceedings aimed at the settlement of a request to compel the Romanian State to pay moral damages in the amount of 100,000 Euro due to her subjection to inhuman and degrading treatment, which, in her view, consisted essentially in baffles generated by the fact that certain lawyers representing the adverse parties raised the exception of her lack of capacity as representative, according to Article 68 (1) of the 1865 Civil Procedure Code. The author of the exception claimed that, in this way, as well as by the insults which have been brought to her by them in courts, her right to image and reputation was infringed upon.

In the light of those circumstances, the Court held that the author of the exception did not rely on the breach of the right to a fair trial with reference to the procedural rules applicable to the proceedings where herself is the applicant, but in the light of the application of the impugned legal text in other proceedings, i.e. in those in which the exception on her lack of capacity as representative was not invoked. In such a situation, it cannot be held the interest to rely, in support of the exception of unconstitutionality, on the provisions in the Constitution and in the Convention relating to the right to a fair trial in the light of the interest of the party who she intended to represent in other proceedings.


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III. For all of those reasons, the Court rejected, as unfounded, the exception of unconstitutionality of the provisions of Article 26 (2) of Law no.51/1995 on the organisation and practice of the profession of lawyer.

Decision no. 144 of 18 March 2014 concerning the exception of unconstitutionality of the provisions of Article 26 (2) of Law no.51/1995 on the organisation and practice of the profession of lawyer, published in Official Gazette of Romania, Part I, no. 341 of 9 May 2014

The legislative measure of exclusion of assignees of rights granted under laws for restitution from the remedy of restitution in kind, as well as from that of full compensation by points, is constitutional, given that the measures of abusive transfer were not directly or indirectly exerted on them

Keywords: assignment of receivables, right to private property, equal rights

Summary I. As grounds for the exception of unconstitutionality of the provisions of Article 4

second sentence by reference to Article 1 (3) and Article 24 (2) to (4) of Law no. 165/2013, it is argued that legal relations arising before the entry into force of Law no. 165/2013, on the disposal by the holder of those rights arising from property restitution laws, are the result of the conduct adopted by the subjects of legal relationships under Article 1391 and Article 1392 of the 1864 Civil Code relating to the assignment of receivables. Thus, according to the authors of the exception of unconstitutionality, the provisions of law subject to criticism ignore the legal order existing at the time of conclusion of the legal relationship between holders of property rights and purchasers of property rights, which it applied the principle of restitution in kind of property abusively confiscated, unlike Law 165/2013 which changes this principle, replacing it by the offsetting by points. They add that the acts of alienation of the rights granted under laws for restitution were lawfully concluded, in accordance with the principle of contractual freedom and without prejudice to the legitimate interests of other persons, the acquirers of the rights transferred having the legitimate hope that will obtain possession over the goods, in accordance with the principle of legal certainty. Moreover, in the view of the authors of the exception of unconstitutionality, the legislation criticised discriminates between the persons entitled to a restitution, sanctioning those who have decided to dispose of their right, whilst the content of the right to property of the individual, i.e. to use it and to dispose of it, is severely affected by “the disregard of the freedom to dispose of property, limiting this right to 15 % of right to property”’, which is equivalent to an expropriation, in lack of a case of public utility.

II. Having examined the exception of unconstitutionality, the Court held that the legislature has regulated differently the method of compensation, in relation to individual beneficiaries of the remedies conferred by Law no.165/2013, as amended, namely that persons entitled to remedies under previous legislation on remedies, on the one hand, and persons to which the rights deriving from the laws on restitution of property were transferred, on the other hand. Contrary to the arguments brought by the authors of the exception of unconstitutionality — who are the assignees of right to compensation, this

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option of the legislature is not a sanction of initial holders who have transferred the right to obtain redress, given the fact that, by definition, his right is no longer in their property. The effect of the specific assignment of receivables, concluded prior to the entry into force of the new law on remedies, the right claimed by assignors consisting in the granting of reparatory measures under previous legislation in the area of properties abusively confiscated, was transferred to the assignees.

As regards the alleged discrimination created by the provisions of law subject to criticism, the Court held that persons entitled to redress under the previous legislation on remedies, on the one hand, and persons who have acquired, under contracts for pecuniary interest, the rights owed under the laws on restitution of property, on the other hand, are in the same legal situation as falling within the category of persons entitled to the remedies provided for in this law, within the meaning of Article 1 (3) and Article 3 (3) of Law no. 165/2013, as subsequently amended. From this point of view, the granting of different reparatory measures, depending on their beneficiaries, amounts to a different legal treatment, without this constituting discrimination, given that, in accordance with the case‐law of the Constitutional Court, any difference in treatment does not automatically mean the violation of the provisions of Article 16 (1) of the Constitution or violation of the provisions of the Convention related to the prohibition of discrimination.

In this context, the Court has held that, having regard to the regulatory purpose of Law no. 165/2013, as subsequently amended, namely some measures to complete the process of restitution, in kind or by equivalent, of property abusively confiscated under the communist regime in Romania, as well as the particular regulatory fields, consisting in the granting of some reparatory measures, in the light of the abuses committed during the communist period in matters of State takeovers of privately owned buildings of private natural or legal persons, the choice of the legislature to exclude from the remedy of restitution in kind and full compensation through points, the persons to whose patrimony was transmitted, via contracts for consideration, the right to obtain redress, appears justified on objective and reasonable grounds, given that the latters have not directly or indirectly suffered from the abusive measure. In other words, given the abusive nature of the takeover of the immovable property by the State, which has affected the persons concerned, the legislation on remedies concerned exclusively the rightholder or his heirs.

Moreover, the Court has held that, having in mind that, in the case subject to constitutional review, the legislature granted the to the assignees of the right to compensation a number of points equal to the sum of the price paid for the transfer of the right to property plus 15 % of the difference up to the value of the property, the Court concluded that the legislative measure criticised retains a reasonable relationship of proportionality between the objective pursued — full compensation only to initial holders of the right to remedies or their heirs — and the means used, as the assignee is to obtain both the price paid to the former owner or his legal or testamentary heirs, and 15 % of the difference up to the value of the property.

As regards the alleged infringement of the right to property of the assignee, the Court held that the fact that the legislature has laid down that the only remedy which may be granted to persons other than the holder of right to property, i.e. the former owner or his


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legal or testamentary heirs, is the offset by points, as well as the fact that it capped the compensations granted in a situation where the holder has transferred the rights to which he is entitled under the law on restitution of property, is not equivalent to an expropriation; this legislation falls within the scope of general measures suggested to the Romanian State even by the European Court of Human Rights. Furthermore, in this case, the legislature has granted to the assignees of the right to compensation a number of points equal to the sum of the price paid for transfer of the right to property plus 15 % of the difference up to the value of the property.

III. For all of those reasons, by majority vote, the Court also rejected, as unfounded, the exception of unconstitutionality of Article 4 second sentence by reference to Article 1 (3) and Article 24 (2) to (4) of Law no. 165/2013 on measures to finalise the process of restitution in kind or by equivalent of property abusively confiscated under the communist regime in Romania.

Decision no. 197 of 3 April 2014 on the exception of unconstitutionality of Article 4 second sentence by reference to Article 1 (3) and Article 24 (2) to (4) of Law no. 165/2013 on measures to finalise the process of restitution in kind or by equivalent of property abusively confiscated under the communist regime in Romania, published in the Official Gazette of Romania, Part I, no.448 of 19 June 2014

The term “final and binding” characterising the conclusions of the INEMRCM expert opinion, regional centres for medical assessment of work capacity or central medical‐military expertise committees of the Ministry of National Defence, the Ministry of Administration and Interior and the Romanian Intelligence Service is in fact concerned with these institutions, the territorial services of medical expertise of labour capacity which issued the initial decisions on the capacity and the expertise required for the latter entities, which will be reflected in the issuance of new medical decisions on working capacity and do not preclude free access to justice

Keywords: Free access to justice. Right to pension

Summary I. As grounds of the exception of unconstitutionality, its author argued the

impossibility to fight in court the conclusions of an expert report by the National Institute for medical assessment and recovery of the capacity to work, regional centres for medical assessment of work capacity or expertise medico‐military central committees of the Ministry of National Defence, the Ministry of Administration and Interior and the Romanian Intelligence Service, constitutes an infringement of free access to justice, and the right to a fair trial. In this respect, the same showed that the provisions subject to criticism, the conclusions of these surveys shall be final and binding, and the pensioner, although formally possessing the possibility to challenge the decision on labour capacity under Article 78 (6) of Law nr.263/2010, he does not hold evidence necessary to counter this expertise through the results of other medical examinations in question. The author also argued that the pensioner is disadvantaged by the trial court in relation to the national institute for medical assessment

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and recovery of the capacity to work, since any expertise on the role which the Court would require proof in process would originate from doctors in the institutions, as provided for in Article 191 (1) of Law nr.263/2010. The author invoked the unconstitutionality of Article 110 (3) of Law nr.292/2011 for the same reasons. In regards to social assistance, the writer claimed that Article 80 (1) of Law nr.263/2010 opposes the right to a pension, as it may result in a lower degree of disability, i.e. a lower pension amount.

II. In relation to these challenges, the Court held the following: The provisions of Article 80 (1) of Law nr.263/2010 form part of Chapter IV —

“Pensions”, section 4 “invalidity pension”, section for regulating the conditions on receiving an invalidity pension.

Under the provisions of that section, the right to an invalidity pension is acquired following a medical examination to assess the ability of the applicant, and an expertise to assess the degree of invalidity (Article 71 (2) and (3)). The assessment of medical specialists is carried out by the social security medical expert, or by committees of medical‐military expertise attached to the national defence, public order, and national security (Article 71 (1)).

As regards the work carried out by the social security medical expert, mentioned by the author of the unconstitutionality exception, such is conducted in the territorial offices of medical expertise and services of county medical expertise operating within the territorial pension houses, and in the national institute for medical assessment and recovery of the capacity to work, hereinafter referred to as INEMRCM [Article 4 (1) of the rules of organisation and operation of the National Institute for Medical Assessment and Recovery of the capacity to work and Territorial Services for Medical Assessment of work capacity, approved by Government Decision no.1229/2005, published in the Official Gazette of Romania, Part I, no. 940 of 21 October 2005).

As regards the situation of military staff, soldiers and volunteers awarded a grade, police officers and officials with special status in the prisons administration, the pertinent medical report is carried out in accordance with the provisions of Government Decision nr.56/2012 approving criteria and rules for clinical diagnosis, functional diagnosis and assessment of capacity to work to determine fitness and grading of invalidity for military officers, soldiers and volunteers, police officers and public servants with special status in the prisons administration, published in Official Gazette of Romania Part I no. 117 bis of 15 February 2012. The methodology of survey in these categories was established in the order of the Minister of National Defence, the Ministry of Administration and Interior and the Director of the Romanian Intelligence Service, no .M.124/267/6478/2012 on the organisation, operation and powers of the medical‐military expertise commissions, published in Official Gazette of Romania Part I no. 35 of 16 January 2013..

Medical decisions determining the degree of invalidity can be appealed before the medical appeals commission or the central medical‐military expertise commission of the Ministry of National Defence, the Ministry of Administration and Interior and the Romanian Intelligence Service, as the case may be. These decisions of the commission may be challenged in court, within the statutory time limits. Otherwise, said decisions become final [Article 71 (6), (9) and (10)].


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Distinct from those provisions, Article 80 (1) of Law no.263/2010 lays down the right of the National Institute for Medical Assessment and Recovery of the Capacity to Work, of the regional centres for medical assessment of work capacity or the medical‐military central expertise commissions of the Ministry of National Defence, the Ministry of Administration and Interior and the Romanian Intelligence Service to summon persons entitled to invalidity pension for the expert evaluation.

This is an additional form of check can exercise those entities to verify the correctness of decisions on the capacity to justify the grant of an invalidity pension.

Moreover, the Court notes that, in the present case, medical decision on review was carried out pursuant to the provisions of Article 106 of the implementing rules for Law no. 263/2010 on the harmonised public pension system, approved by Government Decision no. 257/2011, published in Official Gazette of Romania Part I no. 214 of 28 March 2011, that “Final decisions may be reviewed by the social security experts who issued them, upon the request of the interested party or the supervisory bodies of CNPP.”

The author of the exception of unconstitutionality interprets the provisions of Article 80 (1) second sentence of the Law no.263/2010 as an obstacle for a fair trial, since, on the one hand, it precludes a new medical examination in the case and, on the other hand, even if the court would order such expertise, it would be made by experts specialised in social security.

The Court has held that the term “final and binding” characterising the conclusions of the INEMRCM expert opinion, regional centres for medical assessment of work capacity or central medical‐military expertise committees of the Ministry of National Defence, the Ministry of Administration and Interior and the Romanian Intelligence Service is in fact concerned with these institutions, the territorial services of medical expertise of labour capacity which issued the initial decisions on the capacity and the expertise required for the latter entities, which will be reflected in the issuance of new medical decisions on working capacity. Such decisions may be contested by appeal before the medical committee for complaints or the expert medico‐military central committees of the Ministry of National Defence, the Ministry of Administration and Interior and the Romanian Intelligence Service, as the case may be, and the solutions given by those committees may be appealed against before the courts, in accordance with Article 71 (6) and (9) of Law no.263/2010. Likewise, medical decisions on work capacity issued by the entities referred to in Article 80 (1) of Law no.263/2010 shall be open to the same appeals.

Thus, the Court may order a new medical examination in the case in order to confirm or rule out the findings in the challenged medical decision on the work capacity.

That state of affairs was confirmed also by the court in the case in which the exception of unconstitutionality was raised; this court, in the Interlocutory Order of 13 August 2012, interpreting the provisions of Article 80 (1) of Law no.263/2010, found that “to consider that the expert opinion is final and the court is bound by its conclusions amounts to a restriction of the applicant’s effective access to court, since, although formally he would be able to challenge the decision on the capacity for work, he could not provide the evidence necessary to counter the findings of the Commission of medical expertise on the work capacity operating within the National Institute for Medical Assessment and Recovery of the Capacity to Work, without the possibility to order a medical examinations in the case.”

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Therefore, not only that the court did not reject the case as inadmissible but ordered a medical expert’s report in the case.

Moreover, the Court has held that the provisions of Government Decision no.1229/2005 approving the rules of organisation and functioning of the National Institute for medical assessment and recovery of the capacity to work and territorial services for medical assessment of work capacity, published in Official Gazette of Romania, Part I, no. 940 of 21 October 2005, clarifies the meaning of the legal provisions criticised.

Article 71 (4) and Article 73 of the aforementioned Regulation shows that, when carrying out their duties, the Attestation and Control Committees and the Higher Committee of Medical Expertise and Capacity of Work within INEMRCM issue definitive and binding opinions and decisions pertinent to the opinions themselves not to decisions on the capacity of work. In this regard, it is stated: “The Committees of approval and control, in the exercise of their powers, issue binding opinions on medical documentation or, as appropriate, on medical decisions.” [Article 71]. Furthermore, “the opinions delivered by the committees provided for in Articles 71 and 72 regarding cases analysed on medical grounds and methodology are final and must be applied at the level of territorial services for medical assessment of work capacity, with all the consequences regarding the right to invalidity pension.”

As regards criticism regarding the fact that the expert report carried out by the medical experts of social insurance is performed exclusively by doctors of the social security institutions provided for in the relevant Regulations, the Court held that such a regulatory capacity of medical expertise ensures a qualified and impartial assessment in terms of the medical criteria used, which represents an essential requirement considering that such mirrors the medical and welfare assistance provided by the State.

That the medical decision resolving the dispute brought against the capacity for work, in regards to which the Court orders that a medical examinations for evidentiary purposes and shall be carried out by physicians specialised in social insurance structures listed in Regulations, cannot be construed automatically as an infringement of the right to a fair hearing since expertise can be performed by doctors other than those which issued the contested decision; this aspect is to be verified by the Court.

Finally, with regard to the complaint related to infringement of the right to a pension, the Court considered that, under Article 47 (2) of the Constitution, the legislator is free to determine the content, the limits, and the conditions for such entitlement. If, pursuant to the provisions of law, it follows that the entitlement falls within conditions that bring about a cutback in the amount of the invalidity pension as established above, considering the other conditions governing reduced self‐care, such cannot be interpreted as a restriction on the right to a pension. In this regard, the Court stated that the invalidity pension shall be granted taking into account the health condition of the insured and, except where it is obvious that improvements cannot arise in the future, the pensioner needs to submit himself periodically for revaluation, the degree of invalidity resulting in an adjustment of the amount of the pension.

III. The Constitutional Court has rejected as unfounded the exception of unconstitutionality and found that the provisions of Article 80 (1) and Article 191 (1) of Law no.263/2010 on the


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unified public pension system, as well as the provisions of Article 110 (3) of Social Assistance Law no.292/2011 are constitutional in relation to the challenges brought.

Decision no. 257 of 6 May 2014 on the exception of unconstitutionality of the provisions of Article 80 (1) and Article 191 (1) of Law no. 263/2010 regarding the uniform public pension system, and of Article 110 (3) of Social Assistance Law no. 292/2011, published in the Official Gazette of Romania, Part I, no. 525 of 15 July 2014

Not all persons who worked in group I of work were subsequently employed under special working conditions. Thus, the different legal treatments which appear among the persons who worked in group I of work under retirement conditions are not contrary to Article 16 of the Constitution regarding the citizens’ equality of rights.

Keywords: Right to pension. Group of work. Special conditions Summary I. As grounds for the exception of unconstitutionality, its author claims that the

provisions of Article 30 (1) point (e) of Law no. 263/2010 on the uniform public pension system and of paragraph 7 of Annex no. 2 of Law no. 263/2010 are discriminatory. In this respect, it shows that there is a difference of treatment regarding the workplaces in special conditions among professional categories which, until the entrance into force of Law no. 19/2000 on the public pension system and other rights of social security, published in the Official Gazette of Romania, Part I, no. 140 of 1 April 2000, benefited from a uniform treatment, being equally employed in group I of work.

II. On these challenges, the Court held the following: The legislation prior to Law no. 19/2000 classified the workplaces in groups, in

accordance with the complexity of activities, the exposure grade to risks and the effort grade to which the worker was exposed. Thus, the successive provisions of Article 10 of Decree no. 92/1959 on the right to pension within the State Social Security, published in the Official Bulletin of Romania, Part I, no. 20 of 10 August 1959, of Article 6 of Law no. 27/1996 on the state social security pensions and supplementary pension, published in the Official Bulletin of Romania, no. 17‐18 of 1 February 1969, of Law no. 3/1977 on state social security and social assistance pensions, published in the Official Bulletin of Romania, no. 82 of 6 August 1977, established a classification of workplaces on groups of work, the superior groups aiming at activities with a high grade of effort and risk.

In this respect, for example, Article 1(2) and (3) of Law no. 3/1977 envisaged that “the pension is established proportionally to the contribution brought by every worker to the development of the society, according to the socialist principle of remuneration in relation to quantity, quality and social importance of work and differentiated according to seniority, remuneration and group of work”, as well as that “compared to the conditions, complexity and importance of work, the workplaces are classified in group I, II or III of work, by the decree of the Council of State.”

Repealing Law no. 3/1977, Law no. 19/2000 proposed a new classification of the workplaces according to the conditions in which the activity took place, thus Articles 19 and

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20 regulate the workplaces in particular and special conditions, different from the workplaces in normal conditions.

Through the provisions of Article 15 of the Government Decision no. 261/2001 on the criteria and methodology of classifying the workplaces in particular conditions, published in the Official Gazette of Romania, Part I, no. 114 of 6 March 2001, it was provided that “the workplaces, the activities and the professional categories classified in groups I and II of work until the entrance into force of this Decision are considered activities developed in particular conditions, except from those which, according to the provisions of Law no. 19/2000, are provided as activities developed in workplaces in special conditions.”

As concerns the special working conditions, Article 2 of the Government Decision no. 1025/2003 on methodology and criteria of employing persons in workplaces in special conditions, published in the Official Gazette of Romania, Part I, no. 645 of 10 September 2003, provided that “(1) The criteria for employing persons in workplaces in special conditions are the following:

a) framing the workplaces in group I of work, before 1 April 2001; b) conducting the activity in special conditions during the regular working hours of that

month only in the workplaces defined in Article 1(a); c) the existence of some risk factors in the workplaces in special conditions which

cannot be removed, under the conditions where the technical and organisational measures were taken to remove and reduce them, in accordance with the legislation of employment protection in force;

d) effects on persons from the point of view of security and health in work, due exclusively to certain professional causes and registered during the last 15 years.

e) effects on the working capacity and health status, assessed on the basis of the medical data registered at the level of the medical practice in enterprise, in medical structures of labour medicine or at the expertise commission on working capacity, during the last 15 years.

(2) The employment of persons in workplaces in special conditions will be achieved under the conditions of meeting all criteria mentioned in Article (1).”

The Court noticed that, although the classification of workplaces in special or particular conditions founded on reasons similar to the division of activities in groups I and II of work, reasons based both on the degree of effort and the present risk factors and the exposure to them, however, following the implementation of the methodologies of classification established by the Government Decisions mentioned above, it was not achieved a perfect superposition between the workplaces classified prior to Law no. 19/2000 in groups I and II of work and those subsequently classified in special or particular conditions. Thus, some activities and units which previously belonged to group I of work were classified into activities and units where the activity took place in special conditions, while others were classified in particular conditions, if the conditions provided in Article 2 of Government Decision no. 261/2001 were accomplished.

The workplaces classified into special conditions, according to Government Decision no. 1025/2003, were listed in Law no. 226/2006 on the classification of certain workplaces in special conditions, published in the Official Gazette of Romania, Part I, no. 509 of 13 June


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2006, being almost identically transcribed into Law no. 263/2010. Thus, the provisions of paragraph 7 of Annex no. 1 to Law no. 226/2006 are identically found in paragraph 7 of Annex no. 2 to Law no. 263/2010.

Considering those mentioned above, the Court held that, due to the different conditions imposed by the regulation subsequent to Law no. 19/2000 in relation to the previous legislation, as well as due to the procedures of classification in special working conditions, in practice, the persons who previously worked in group I of work could not be equal to those who were subsequently employed in special conditions, and the past employment in certain workplaces in group I did not automatically entail a uniform legal treatment in present in the light of employment in special conditions. Thus, the Court found that the difference in legal treatment referred to by the author of exception did not violate the principle of equal rights which meant an equal treatment for equal situations, as it was constantly ruled in the case‐law of the Constitutional Court, but it did not exclude the implementation of a different regulation for situations objectively different. In this respect there is the Decision of the Plenum of the Constitutional Court no. 1/1994, published in the Official Gazette of Romania, Part I, no. 69 of 16 March 1994.

III. The Constitutional Court rejected as unfounded the exception of unconstitutionality and held that the provisions of Article 30 (1) point (e) of Law no. 263/2010 on the uniform public pension system and the provisions of paragraph 7 of Annex no. 2 to Law no. 263/2010 are constitutional in relation to the challenges brought by.

Decision no. 259 of 6 May 2014 related to the exception of unconstitutionality of the provisions of Article 30 (1) point (e) of Law no. 263/2010 on the uniform public pension system and of the provisions of paragraph 7 of Annex no. 2 to Law no. 263/2010, published in the Official Gazette of Romania no. 536 of 18 July 2014

In order to establish a more favourable criminal law, it is forbidden to combine the provisions of successive laws

Keywords: separation and equilibrium of powers in state, role of the Parliament as sole legislative authority of the country

Summary I. As grounds for the exception of unconstitutionality, the High Court of Cassation and

Justice claims that the impugned provisions violate the constitutional provisions of Article 61 in relation to Parliament as sole legislative authority of the country, because, although the provisions of Article 5 of Criminal Code on the enforcement of the more favourable criminal law until the final judgment of the case are constitutional, in themselves, it is considered that, by the way they are interpreted and enforced in practice by the legal authorities, they can cause violations of the Basic Law, determining the combination of more favourable provisions of the successive criminal law, situation susceptible to set up a lex tertia. Thus, in the old regulation, the punishable treatment for the offence of deception was more drastic, namely a sentence of imprisonment between 3 and 15 years, whilst the new Criminal Code

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stipulates a sentence of imprisonment between 1 and 15 years for the same offence provided by Article 244 (1) and (2).

In other words, beginning with the punishable treatment in the new law which is more favourable reported to the special limits of sentence where the criminal law seems more favourable in the local institutions, the special statute of limitations of the criminal liability would rely upon that stipulated in the old Criminal Code, before the amendment made through Law no. 63/2012 resulting in its accomplishment on 13 March 2013. Meanwhile, if the more favourable criminal law was globally enforced, the special statute of limitations would be the one stipulated by the new law, barely resulting in its accomplishment on 13 September 2015. Consequently, the High Court of Cassation and Justice shall choose one of the two ways of determining the more favourable criminal law which, according to its choice, may result either in cancelling the criminal proceedings following the occurrence of the special statute of limitations of the criminal liability (for an offence of deception committed on 13 September 2005), or in carrying on the criminal proceedings.

Similarly, it is also noted the problem regarding the choice of the punishable treatment which can be implemented to a plurality of offences in the competition form if the court prefers any of the two opinions.

II. Analysing the exception of unconstitutionality, the Court found that the provisions of Article 5 of the new Criminal Code, for the interpretation which allows courts to combine the provisions of the 1969 Criminal Code with those of the new Criminal Code in order to determine the more favourable criminal law, violate the constitutional provisions of Article 1 (4) on the separation and equilibrium of powers in state and of Article 61 (1) on the role of Parliament as sole legislative authority in the country.

Pursuant to Article 1 (4) of the Basic Law, “The state is ruled according to the principle of separation and equilibrium of powers – legislative, executive and judiciary – within the constitutional democracy”, and pursuant to Article 61 (1) “Parliament represents the supreme authority of Romania and the sole legislative authority in the country.”

Related to these constitutional provisions, in its case‐law, the Court claimed that the legal provisions which rule the activities of courts and establish their positions in relation to law, accept unanimously that “the powers of judges involve the identification of the applicable rule, the analysis of its content and a required enactment thereof to the legal facts which were established, thus the legislature, being in the impossibility of preventing all legal situation, gives the judge empowered to enforce law a partial initiative. Therefore, by the interpretation of the law, the judge must achieve a balance between the spirit and the name of law, between the wording requirements and the purpose intended by the legislature, without having the competence of enacting, by the substitution of the competent authority in this matter” (see the Constitutional Court Decision no. 838 of 27 May 2009, published in the Official Gazette of Romania, Part I, no. 461 of 3 July 2009).

The judiciary power, through the High Court of Cassation and Justice, has the constitutional role to give certain interpretations to laws in order to be uniformly implemented by courts. However, this does not mean that the Supreme Court may substitute the Parliament as the sole legislative authority in the country, but it involves certain constitutional requirements related to the actual way in which the interpretation is


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achieved. In the case deduced by the judgment, the dual interpretation of the provisions of Article 5 of the Criminal Code is obvious, but, for the reasons stated, one of the interpretations violates the provisions establishing the scope of competence of the legislative authority, enshrined by Article 61 (1) in the Constitution, consequently resulting in the violation of the separation and equilibrium of powers in state, provided by Article 1 (4) of the Basic Law. Thus, the interpretation stating that the more favourable criminal law involves the implementation of the more favourable national institutions, is susceptible to violate the constitutional requirements because, on the contrary, it would break the organic connection between the criminal law institutions belonging to each successive law, with the direct consequence of changing the content and meaning of the regulatory rules enacted by the legislature.

The Court noticed that the notion of national institution is not covered by any of the two criminal codes or by the law of implementing the new Criminal Code. Therefore, even if the notion of national institution used in the legal language for certain legal categories is accepted, its national nature stipulated in doctrine and judiciary practice means that it has an independent existence and does not rely on the set of rules in which it is implemented for achieving its completion. However, such conclusion is inadmissible because it cannot be held that a rule provided by the Criminal Code regulating a certain criminal law institution (repeated infringement, multiple offences, statute of limitations etc.) is independent from the law to which it belongs. This distinction has a particular importance for understanding the meaning of law because only in this way the concept of “more favourable criminal law” may have a constitutional meaning.

The fact that the legislature defined in Article 173 of the Criminal Code the concept of criminal law as “any criminal provision covered by organic laws, emergency ordinance or other regulatory acts which were statutory on the enactment date” is not tantamount to the situation that those provisions are laws, but to the fact that they are different rules belonging to law and having its authority. The Criminal Code is a uniform law and such rules are also provided in the special laws regulating other social relations, but, at the same time, they establish facts which are considered offences (for example, offences regulated by the customs law, fiscal law etc.). Article 1 (1) of the Criminal Code establishes that “Criminal law provides the facts considered offences”, therefore, in the absence of an indictment we cannot talk about a criminal law. Thus, the meaning of criminal law enshrined by Article 173 takes into account other regulatory acts stipulating facts which are considered offences and the legislature aims at making a material connection between the Criminal Code and other special laws which, although they are not criminal and regulate on another type of social relations, they also contain criminal provisions. The criminal nature of these provisions sets them outside the scope of the main regulation matter (fiscal, customs etc.) in order to remove any objections according to which such antisocial facts could follow only such legal scheme, excluding a possible circumvention from the criminal liability. In fact, beyond the interpretation of this text, we notice that it does not decide on the implementation of the more favourable law and Article 5 of the Criminal Code establishes the requirements of this principle.

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As guarantor of rights and freedoms of citizens, the Constitutional Court shall not ignore other consequences of constitutional origin, such as requirements related to the lack of discrimination of the defendant, be it in this case positive, not only justifying, but also requiring the implementation of an identical treatment. It is assumed that suspects/defendants who committed offences under the old law, but who will be judged under the new law, must be applied, according to the more favourable law, a legal situation identical to those previously convicted according the old law or to those who will commit offences according to the new law; a third punishable treatment which combines the provisions of both codes is not allowed. Therefore, it is forbidden to alternate the criminal law institutions of both law in order to meet the constitutional provisions of Article 16 (1) according to which “Citizens are equal before law and public authorities, without privileges and discriminations”, because, on the contrary, the implementation of the more favourable law would create a positive discrimination resulting in creating a privilege for the defendant who is judged during the transition period of law.

These arguments lead to the ascertainment of violating the provisions of Article 1 (4) and Article 61 (1) of the Constitution as a third law is created, by legal way, through the combination of criminal provisions of more successive laws, which denies the criminal political rationality conceived by the legislature. Considering those mentioned above, the Court claims that the interpretation of the provisions of Article 5 of the Criminal Code on implementing the more favourable criminal law as a whole is the only one which can remove the unconstitutional flaw.

According to its case‐law, the Court enshrined its possibility and obligation to interfere, whenever referred to, if law may generate interpretations leading to the attainment of the constitutional provisions. In its recent practice, the Court ruled that “the Constitutional Court must interfere whenever law may lead to different interpretations if those interpretations lead to the infringement of the provisions of the Basic Law, without denying the constitutional role of Supreme Court whose jurisdiction is limited to non‐uniform practice. The Constitution represents the framework and measure where the legislature and other authorities may act; thus, the interpretations brought to legal rule must also consider this constitutional demand provided specifically in Article 1(5) of the Basic Law, according to which the observance of the Romanian Constitution and its supremacy is mandatory” (Decision no. 1092 of 18 December 2012, published in the Official Gazette of Romania, Part I, no. 67 of 31 January 2013).

This also applies in case the High Court of Cassation and Justice, in the exercise of achieving the constitutional powers provided in Article 126 (3), delivered a decision to uniformly interpret and enforce law when an appeal is settled in the name of law. By this, the constitutional contentious court does not belong to the jurisdiction scope of the High Court of Cassation and Justice as “the High Court of Cassation and Justice, in consistence with the constitutional provisions of Article 126 (3), has the exclusive jurisdiction to pronounce on issues related to uniform interpretation and enforcement of law whenever judicial practice requires it. Given that, a decision delivered in such procedure cannot form the censure of the constitutional contentious court (see Decision no. 409 of 4 November


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2003, published in the Official Gazette of Romania, Part I, no. 848 of 27 November 2003). However, the circumstance that a certain interpretation is given to a legal text by a decision delivered within an appeal in the name of law is not likely to be changed into an exception of inadmissibility in order to oblige the Court not to analyse the text concerned in the interpretation given by the Supreme Court, in spite of its role of guarantor of Constitution supremacy (See Decision no. 8 of 18 January 2011, published in the Official Gazette of Romania, Part I, no. 672 of 21 September 2011).

In fact, the Constitutional Court established that, “regardless the interpretations brought to a text when the Constitutional Court decided that only one certain interpretation is consistent with the Constitution, maintaining the presumption of constitutionality of the text within this interpretation, both court and administrative bodies must comply with the decision of the Court and enforce it accordingly” (Decision no. 536 of 28 April 2011, published in the Official Gazette of Romania, Part I, no. 482 of 7 July 2011). Moreover, “by interpretation of law, courts, including also the High Court of Cassation and Justice, must comply with the constitutional framework, and the Constitutional Court must exclusively punish the exceed / violation thereof” (in this respect, see Decision no. 854 of 23 June 2011, pre‐cited).

Same rationalities also subsist on the establishment of a certain legal interpretation by previous decisions delivered under Article 475 and the following of the Criminal Procedure Code, because, in legislature’s view, the latter rules also reflect the constitutional provisions of Article 126 (3) according to which “The High Court of Cassation and Justice assures the uniformly interpretation and enforcement of law by other courts, in consistence with its jurisdiction.” However, chapter VI of Title III of the Criminal Procedure Code establishes “Provisions to ensure a uniform legal practice” which can be achieved either by appeals in the name of law or by previous rulings for explaining certain legal issues. Thus, under the interpretation given by the latter rulings, legal rule obeys to the review of constitutionality in the same way as the interpretations given to decisions settling the appeals in the name of law, according to the case‐law of the Constitutional Court mentioned above. To the extent that a certain meaning is implied to laws by the clarification given to certain legal issues, the court, ex officio, the prosecutor or the party in a trial who considers itself constitutionally prejudiced by that legal provision within the interpretation ruled by the previous ruling, may invoke the exception of unconstitutionality. The Constitutional Court claimed again that, according to the provisions of Article 147 (4) of the Basic Law, “As from being issued, decisions and rulings are general binding and rule only for future”. The Court ruled in its case‐law, as a principle, that the binding nature given to legal acts, including decisions of the Constitutional Court, is implied both to the operative part and the reasons on which it is based. Therefore, the Court held that both the reasons and the operative part of its decisions are general binding and impose themselves with the same authority on all subjects of law (in this respect, see the Decision of the Plenum of the Constitutional Court no. 1/1995 on the binding nature of the decisions delivered within the review of constitutionality, published in the Official Gazette of Romania, Part I, no. 16 January 1995, Decision no. 1415

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of 4 November 2009, published in the Official Gazette of Romania, Part I, no. 796 of 23 November 2009, and Decision no. 414 of 14 April 2010, published in the Official Gazette of Romania, Part I, no. 291 of 4 May 2010).

Therefore, in spite of the interpretations which may be brought to a text when the Constitutional Court has decided that only one interpretation shall be consistent with the Constitution, maintaining in this way, with this interpretation, the presumption of constitutionality of the text, courts must comply with the Decision of the Court and apply it accordingly. Further, the Constitutional Court ruled that, as concerns the real determination of the more favourable criminal law, “this aims at the enforcement of law and not the more harmless provisions, and the provisions of the old law and the new law cannot be combined because it would lead to lex tertia, which, despite the provisions of Article 61 of the Constitutions, would allow the judge to legislate” (Decision no. 1470 of 8 November 2011, published in the Official Gazette of Romania, Part I, no. 853 of 2 December 2011). Consequently, any other interpretation given to the text by the judicial practice provides flaws of unconstitutionality.

At the same time, the Court found that through the Decision no. 2 of 14 April 2014, the High Court of Cassation and Justice – the Panel of judges, clarifying certain issues of criminal law, decided that, in terms of the enforcement of Article 5 of the Criminal Code, the statute of limitations for the criminal liability represents an autonomous institution in relation to the institution of sanction, thus, unconstitutional valences were conferred to Article 5 of the Criminal Code, within the interpretation given. The Court found that, once this Decision has been published in the Official Gazette of Romania, the Decision no. 2 of 14 April 2014 of the Supreme Court is no longer binding in accordance with the provisions of Article 147 (4) of the Constitution and the provisions of Article 4771 of the Criminal Procedure Code.

The Court also held that the provisions of Article 5 (2) first sentence, according to which “The provisions of paragraph (1) are also implemented to regulatory acts or their provisions considered unconstitutional […] if they provided more favourable criminal provisions, when they were into force,”, are not incident as effect of delivering this Decision, because, in this case, the Court does not pronounce the unconstitutionality of a legal provision; thus, no consequences are produced on the present regulatory in the legal order of the provision subject to review, but it is just established a sole constitutional meaning of Article 5 of the Criminal Code, by way of interpretation.

III. Due to all these grounds, the Court admitted the exception of unconstitutionality and found that the provisions of Article 5 of the Criminal Code are constitutional to the extent that they do not allow the combination of provisions of successive laws in order to establish and implement the more favourable criminal law and no public authority shall ignore the constitutional meaning established in this way.

Decision no. 265 of 6 May 2014 on the exception of unconstitutionality of the provisions of Article 5 of the Criminal Code, published in the Official Gazette of Romania, Part I, no. 372 of 20 May 2014


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Summons by publication does not take place with full rights, but it is an action subsequent to the unsuccessful endeavours made in order to find out the defendant’s address or another place where he/she could be notified according to law. The person whose interests are protected through the appointment of the guardian is liable for paying in advance the remuneration of the special guardian appointed by court in terms of Article 58 and 167 of the Civil Procedure Code

Keywords: special guardian, remuneration, judicial stamp duty, access to judicial process Summary A. As grounds for the exception of unconstitutionality, its author essentially claims that

the obligation established as the claimant’s duty to pay in advance the remuneration of the special guardian appointed in order to protect the legal rights of the debtor is unconstitutional. Moreover, the author states that the regulatory act whose provisions are challenged regulate another matter, namely the judicial stamp duties or the remuneration of the special guardian, regulated by the new Code of Civil Procedure, has not the legal nature of a judicial stamp duty but that of a judicial public aid, in this way, the protection of legal rights of a party, in this case the debtor, cannot be done on the creditor’s burden to determine him/her, by duties and financial expenses, to relinquish the protection of his/her right. At the same time, the author claims that the litigant cannot be obliged to excessive expenses requested by the Romanian state in order to ensure some legal procedures, susceptible to prevent access to judicial process by financial burden.

B. The subject of the exception of unconstitutionality is represented by the provisions of Article 48 (2) of the Government Emergency Ordinance no. 80/2013 on judicial stamp duties, published in the Official Gazette of Romania, Part I, no. 392 of 29 June 2013, which contain the following: “(2) By the conclusion provided for in Article 58 (4) of the Civil Procedure Code, the Court may establish that the guardian be paid in advance by the other party when such measure is necessary in order to continue the case.”

As grounds for the unconstitutionality of these legal provisions, there are invoked the constitutional provisions of Article 16 (1) and (2) on equal rights, Article 21 (1) according to which “Every person may recourse to justice system for defending his/her legitimate rights, freedoms and interests” and Article 24 on right of the defence.

C. Analysing the exception of unconstitutionality, the Court found it as unfounded on the grounds stated below.

The institution of the special guardian was regulated by Article 44 of the 1865 Code Civil Procedure, in order to prevent and remove certain abuses which could have occurred in the exercise of procedure rights of the persons mentioned by these provisions. Thus, in case of emergency, if the individual unable to exercise his civil rights had not been duly represented, the court, on the request of the interested party, could have appointed a special guardian to represent him/her until a legal representative would have been appointed according to law. The court could have also appointed a special guardian for cases of conflict of interests between the representative and the represented one or in case a company, brought to trial, did not have a legal representative. These provisions were also duly applied to persons with

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limited capacity of exercise, and the appointment of these special guardians was done by the court competent to decide on the court summons.

By Law no. 134/2010 on the Civil Procedure Code, republished in the Official Gazette of Romania, Part I, no. 545 of 3 August 2012, the institution of special guardianship was extended. According to Article 58 (1) “In case of emergency, if an individual unable to exercise his civil rights is not duly represented, the court shall appoint a special guardian to represent him/her, on the request of the interested party, until a legal representative is duly appointed. Likewise, the court shall appoint a special guardian for cases of conflicts of interests between the legal representative and the represented one or in case a company or an institution from those provided for in Article 56(2), brought to trial, does not have a representative.” Under Article 58 (3), “the appointment of these guardians will be made by the court which judges the case, among the lawyers whom the Bar has precisely assigned for this purpose for each court. The special guardian has all rights and obligations provided for by law for a legal representative.”

It is obvious that this institution, as it is legislated in the Civil Procedure Code, is intended to give efficiency to Article 24 of the Constitution, the right of the defence being totally ensured. Thus, this institution aims to safeguard the interests of those brought to trial and unable to exercise their civil rights, including not only minors and prohibited persons – individuals, but also companies and institutions provided for in Article 56 (2) of the Civil Procedure Code.

According to Article 167(1) of the Civil Procedure Code, if the applicant demonstrates, based on grounds, that, although he/she did all he/she could, he/she could not find out the defendant’s address or another address where he/she could be notified according to law, the court may allow the publication of the defendant’s summons. As such, summons by publication does not take place with full rights, but it is an action subsequent to the unsuccessful endeavours made in order to find out the defendant’s address or another place where he/she could be notified according to law.

In such situation, the court will be able to allow, under Article 167 (1) of the Civil Procedure Code, the defendant’s summons by publication, remaining at its discretion if it shall use this option. Nevertheless, when a court allows the defendant’s summons by publication, it must appoint a guarding among the lawyers within the Bar, according to Article 58 of the same Code, who will be notified for deliberations in order to represent the defendant’s interests [Article 167 (3) “With the consent of summons by publication, the court will appoint a guardian among the lawyers within the Bar, according to Article 58, who will be notified for deliberations to represent the defendant’s interests”]. Thus, the legislature also extended the protection provided for in Article 58(1) of the Civil Procedure Code on those brought to trial and whose address could not be identified, despite all endeavours made.

However, in this respect, we must consider the provisions of the Government Emergency Ordinance no. 97/2005 on the records, address, residence and identity documents of Romanian citizens, republished in the Official Gazette of Romania, Part I, no. 719 of 12 October 2011, of Law no. 31/1990 of companies, republished in the Official Gazette of Romania, Part I, no. 1066 of 17 November 2004, of the Government Ordinance no. 26/2000 on associations and foundations, published in the Official Gazette of Romania,


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Part I, no. 39 of 31 January 2000, of the Government Emergency Ordinance no. 44/2008 on the development of economic activities by freelancers, sole traders and family owned businesses, published in the Official Gazette of Romania, Part I, no. 328 of 25 April 2008, of Law no. 36/1991 on agriculture companies and other types of agriculture association, published in the Official Gazette of Romania, Part I, no. 97 of 6 May 1991, and other regulations which rules the legal obligation of individuals and companies to announce the authorities charged with the records of individuals/companies about the change of address/residence or, as the case may be, of the headquarters.

The court allowed, in the case pending before the court, according to Article 167(1) of the Civil Procedure Code, the summons by publication of one of the parties, being obliged to appoint a guardian among the lawyers within the Bar, under Article 58 of the same Code, who will be notified who will be notified for deliberations to represent the defendant’s interests [Article 167(3) of the Civil Procedure Code], since, in this case, the imperative legal provisions do not allow the court to appreciate by itself on the appointment of the guardian.

Thus, according to Article 48(1) and (2) of the Government Emergency Ordinance no. 80/2013, the person whose interests are protected through the appointment of the guardian is liable for paying in advance the remuneration of the special guardian appointed by court in terms of Article 58 and 167 of the Civil Procedure Code. By the conclusion provided for in Article 58 (4) of the Civil Procedure Code, the Court may establish that the guardian be paid in advance by the other party when such measure is necessary in order to continue the case. By way of exception, for emergency cases which must not be postponed, the court shall allow that the special guardian be paid in advance the due remuneration from the state budget, and the amounts paid in advance from the state budget as remuneration for the special guardian represent costs and it is for the party who loses the trial to pay them [Article 49(1) of the Government Emergency Ordinance no. 80/2013]. The party who pays in advance the special guardian’s remuneration is protected by the procedural rights and his access to justice is not bounded because, at the end of the trial, the special guardian’s remuneration shall be included in the costs and paid by the party who loses the trial [Article 48(3) of the Government Emergency Ordinance no. 80/2013]. Considering those mentioned above, the challenged provisions do not prejudice the provisions of Article 16(1) and (2), Article 21(1) and Article 24 of the Basic Law as they transpose the constitutional provisions on the guarantee of the right of the defence and do not prevent the access to justice, being equally applied to all those referred to in the rules on the institution of special guardianship.

D. The Constitutional Court rejected, as unfounded, the exception of unconstitutionality raised and held that the provisions of Article 48(2) of the Government Emergency Ordinance no. 80/2013 on judicial stamp duties are constitutional in relation to the challenges brought by.

Decision no. 364 of 25 June 2014 on the exception of unconstitutionality of the provisions of Article 48(2) of the Government Emergency Ordinance no. 80/2013 on judicial stamp duties, published in the Official Gazette no. 542 of 22 July 2014

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2. The constitutional review of the resolutions of the Chamber of Deputies, of the resolutions of the Plenum of the Senate and of the resolutions of the two Joint Chambers of the Parliament [Article 146 point 1 of the Constitution]

The constitutionality challenge of a resolution by which Parliament ordered that one of the deputies of the Advocate of the People should accomplish the powers of the position of Advocate of People, after his resignation and until the appointment of a new Advocate of People. Failure to meet the conditions of the appointment. Challenging the Parliament’s possibility to transfer the powers of the Advocate of People to another person

Keywords: Advocate of People, Appointment of the Advocate of People; Constitutional review of the Parliament’s resolutions, Resolutions of the Plenum of the Joint Chambers of Parliament, National fundamental institutions

Summary I. As grounds for the referral, the challenged resolution points out that the two

Chamber of Parliament established that the powers of the Advocate of People to be overtaken by one of its deputies, namely Ecaterina‐Gica Teodorescu who does not meet the constitutional and legal conditions in this respect, the same as those for being appointed in the term of office of judge of the Constitutional Court, such as: a degree in Law, high professional competence and at least eighteen‐years of experience in the legal area or in the academic activities in Law. The authors of the referral argue that Ecaterina‐Gica Teodorescu meets none of these conditions as she is an economist and, therefore, she does not have high professional competence in the legal area. It is also pointed out that Law no. 35/1997 does not provide the institution of interim or of transferring the powers of an Advocate of People who resigned to a deputy of the Advocate of People. In such a situation, the Advocate of People who resigned should still exercise his powers until a new Advocate of People is appointed. The authors of the referral also argued that Law no. 35/1997 should have been amended or supplemented if Parliament had wanted to appoint a deputy who did not meet the conditions of being appointed as Advocate of People.

II. Analysing the referral of unconstitutionality, the Court has firstly proceeded to review its admissibility. In this respect, in accordance with its case‐law, the Court noted that, although the challenged resolution has an individual nature, it is not the basis of an inadmissibility case of the referral, as Article 27 of Law no. 47/1992 does not lay down any difference between the regulatory or individual resolutions enacted by the Plenum of the Chamber of Deputies, by the Plenum of the Senate and by the Plenum of the two Joint Chamber of Parliament. The Court also noted that the Advocate of the People is a constitutional institution as it is regulated in Chapter IV of Title II of the Basic Law so as the challenged resolution can be also reviewed in the light of the provisions envisaged by Law no. 35/1997, invoked by the authors of the referral. According to its case‐law, this is because the rule, in relation to which the constitutional review is to be exercised on the resolutions


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aiming, by their subject, at the organization and functioning of the constitutional authorities and institutions, may also be infra‐constitutional, considering the field of utmost importance where these resolution occur.

In view of the referral, the Court noted, for a start, that, by Article 1 of Decision no. 75/2013, challenged in this case, Parliament took note of the resolution of the permanent joint Chambers of the Chambers of Deputies and Senate on the ascertainment of the resignation of Mr Anastasiu Crişu from the position of Advocate of People and ordered, by Article 2 of the same Decision, that Mrs Ecaterina‐Gica Teodorescu, deputy of the Advocate of People, accomplish the powers of the Advocate of People, until the appointment of a new Advocate of People.

Regarding the challenge according to which Parliament did not have the competence to transfer the powers of the Advocate of People to another person and this action could have been taken solely by the Advocate of People itself, for a determined period of time, the Court found that, under Article 65(2) point i) of the Constitution and Article 6(1) of Law no. 35/1997, the Advocate of People shall be appointed by Parliament, in the joint session of the Chamber of Deputies and Senators. In case of temporary impossibility to exercise the position of Advocate of People, his powers will be accomplished by his deputies, according to Articles 10(3) and 121 point e) of Law no. 35/1997, in the order laid down by him. The Court also noted that the hypothesis of permanent impossibility to exercise the position is not regulated by any constitutional or legal rule. Consequently, the possibility to allocate the exercise of the powers of the Advocate of People to another person in case the holder of the position resigns, case which resulted in the current referral of unconstitutionality, is not regulated by any specific provision either in the Basic Law or in the organic law on the organization and functioning of the institution of Advocate of People.

The authors of the referral argued that, in order to meet the requirements of Article 1(3) and (5) of the Constitution, on the rule of law and binding nature to comply with the law, Parliament should have firstly supplemented Law no. 35/1997 with a text which could have also allowed it to cover the situation occurred in this case. The Court noted that this option would have been possible and desirable at the same time, but the adoption of a supplementing law for Law no. 35/1997, which requires the binding reading of a certain legislative procedure, including the drafting of a bill, its debate and adoption by the two Chambers of Parliament, would have supposed a significant period of time in which the legal operation of the institution of Advocate of People would have been affected. By the challenged Resolution, Parliament ordered that the powers of the Advocated of People be temporarily exercised by another person, until the appointment of a new Advocate of People. The Court held that Parliament adopted this solution to maintain the institution of the Advocate of People as operative, institution which is absolutely necessary for the constitutional democracy, having a significant role for the guarantee of the fundamental rights and freedoms of individuals, is a logical consequence of the constitutional provisions since the Basic Law has allowed it the competence to appoint the Advocate of People, as it implicitly may regulate the interim of the position, by the implementation of the interpreting rule qui potest plus, potest minus. Therefore, if it has the competence and the obligation at

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the same time to appoint a person as Advocate of People, it may be claimed even more that Parliament is fully entitled to appoint a person to accomplish, for a definite period of time, the power of that position, until the appointment of a new holder, in terms of Article 65(20) point i) of the Constitution.

In this respect, the Court noted the lacks of the infra‐constitutional normative framework on the assurance of the continuity of the institution of the Advocate of People if the term of office of the person appointed by Parliament to accomplish this position terminates until the due time according to Article 9(1) of Law no. 35/1997. Thus, the law should expressly provide the competence of Parliament to appoint a person to exercise for a definite period of time the powers of the Advocate of People, the conditions he must meet and the length of the term of office.

The text of Article 8(4) of Law no. 35/1997, according to which the term of office of the Advocate of People lasts until the new Advocate of People takes the oath, is enforced only if the term of office terminates due to expiry length of time for which it has been granted, as it results in its position in the corpus of law. But its term of office may also cease before the expiration of the term of appointment, in certain cases provided by Article 9(1) of Law no. 35/1997, i.e. in case of resignation, of dismissal, of incompatibility with other public or private office, impossibility of exercising his powers for more than 90 days ascertained by medical examination of specialization, or in case of death. Obviously, the term of office of the Advocate of People cannot be extended in either of the situations. Thus, the resignation represents a unilateral action and its author cannot be obliged to continue the term of office against his will, until an indefinite date and its establishment is totally exterior. Likewise, in case of resignation, the exercising of the powers of the Advocate of People, on a temporary basis, would be unacceptable, even by the person whose activity has been considered by Parliament as out of the limits laid down by the Constitution and law. In the same way, the incompatibility with other public or private offices represents a state which cannot be maintained until the appointment of a new Advocate of People. Least, the death or even the impossibility of exercising his powers for more than 90 days, ascertained by medical examination of specialization, represent situations when, objectively, the person firstly appointed as Advocate of People cannot continue, on a transitional basis, the exercising of the term of office until the new Advocate of People shall be appointed.

Accordingly, the Court found that, in order to avoid the occurrence of malfunctions at the level of a fundamental institution of the state which aims at guaranteeing the rights and freedoms of citizens in relation to public authorities, Parliament proceeded, in this case, to ensure the interim of the office of the Advocate of People by the appointment of one of its deputies to accomplish the powers of this position until a new Advocate of People shall be appointed. The possible non‐action of Parliament, provided the lack of an explicit regulatory framework, would have been susceptible to raise doubts on the effectiveness of the institution of Advocate of People until a new holder had been appointed.

Related to the challenge according to which the person appointed by Parliament to exercise the powers of the Advocate of People until a new Advocate of People would be


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appointed, does not meet the appointment requirements imposed by Article 6(2) of Law no. 35/1997, in conjunction with Article 143 of the Constitution, the Court noted that, according to Article 11 (16) of Law no. 35/1997, graduates of faculties of legal field, as well as of other fields, may be appointed as deputy of the Advocate of People. Likewise, Article 7 of the Regulations on the organization and functioning of the institution of Advocate of People, approved by the Resolution no. 5/2002 of the Standing Bureau of Senate, republished in the Official Gazette of Romania, Part I, no. 758 of 27 October 2011, as subsequently amended, provides the conditions for the appointment of deputy of the Advocate of People. Thus, as concerns the studies, he must have a degree in a faculty of legal sciences, administrative sciences, political sciences or economic sciences and at least eight‐years of experience in the specialization graduated.

Accordingly, considering that for the appointment as deputy of the Advocate of People there are not provided the same conditions with those laid down for the appointment as Advocate of People, the Court argued that Parliament had not had any constitutional or legal obligation to exclusively appoint a person to meet these conditions. All the more so as in an objective way, it is possible that none of the deputies of the Advocate of People may meet them, and, if the reasoning of the authors of the referral was followed, it would be impossible to ensure the interim of the position and the activity of an institution provided by the Basic Law would be obstructed in this way.

The Court also noted that, according to Article 10(3) of Law no. 35/1997, in case of temporary impossibility of exercising the position, the Advocate of People establishes the order in which the deputies will accomplish his powers. However, since the law allows the hypothesis that the Advocate of People, himself/herself, transfers the exercise of the powers to a deputy who has not graduated the Law School, consequently, Parliament cannot be denied such a right. Thus, the deputies of the Advocate of People are appointed, according to Article 11(1) first sentence of the same law, by the Standing Bureaus of the Chamber of Deputies and Senate, at the Advocate of People’s proposal, having the opinion of the legal committees of the two Chambers of Parliament.

Therefore, according to the challenged resolution, the fact that the person appointed to overtake the powers of the Advocate of People does not meet the conditions for being appointed as the Advocate of People is not susceptible to violate any constitutional or legal text.

III. For all these reasons, with the majority of votes, the Court rejected, as unfounded, the referral of unconstitutionality on the provisions of the Resolution of Romanian Parliament no. 75 of 20 December 2013 on the ascertainment of the cease of the term of office of the Advocate of People and the overtake of the powers of this position by a deputy of the Advocate of People.

Decision no. 41 of 22 January 2014 on the referral of unconstitutionality of the Resolution of Romanian Parliament no. 75/2013 on the ascertainment of the cessation of the term of office of the Advocate of People and the overtake of the powers of this position by a deputy of the Advocate of People, published in the Official Gazette of Romania, Part I, no. 105 of 12 February 2014

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IV. Legal disputes of a constitutional nature [Article 46 (e) of the Constitution]

The interference of the Constitutional Court becomes legal whenever the public authorities and institutions mentioned in Title III of the Constitution ignore or assume constitutional powers likely to create obstructions which cannot be removed in another way. This is the core of a legal dispute of a constitutional nature

Keywords: Legal disputes of a constitutional nature

Summary I. Through the application formulated, the Constitutional Court is required to ascertain

the existence of a legal dispute of a constitutional nature between the judiciary and the executive authority, as well as to take all necessary and useful measures to restore constitutional order that must exist between the public authorities. In this case, it is considered that the dispute has been produced by the way in which the prefect of Suceava County has understood to exercise his constitutional and legal powers, considering his refusal to render the order of cessation of the term of office of the mayor of Udeşti, as a result of the ascertainment of the state of conflict of interests by the final and irrevocable judgment delivered by the Court of Appeal of Suceava.

On 22 October 2013, Mr Ioan Stratu, alderman within the Local Council of Udeşti, addressed the Superior Council of Magistracy and required the referral of the Constitutional Court regarding the legal dispute of a constitutional nature occurred between the public authorities, namely the judiciary and the executive authority, represented by the Romanian Government.

By the Judgment of the Court of Appeal of Suceava no. 286 of 1 October 2012, final and irrevocable by non‐appeal to the High Court of Cassation and Justice, it is maintained the Assessment Report no. 26.073/G/II/11.05.2012, drawn up by the National Integrity Agency through which it is confirmed the state of conflict of interests in which Mr Săvel‐Viorel Botezatu was, the mayor of Udeşti of Suceva County, who signed commercial agreements as authorising officer of appropriations, with S.C. "Udişteana" ‐ S.R.L. of Udeşti, company in which he is the sole shareholder and his wife, Elena Botezatu, is the manager.

It is mentioned that, although the state of conflict of interests also resulted following the criminal investigation made by the Prosecution Office attached to the Court of Appeal of Suceava and the administrative fine was implemented in the criminal case, the prefect of Suceava County was notified by the National Integrity Agency and rejected the implementation of the provisions of Law no. 176/2010 on integrity in exercising public offices, amending and supplementing Law no. 144/2007 regarding the organisation and functioning of the National Integrity Agency and amending and supplementing other normative acts.

According to the viewpoint expressed by the prefect of Suceava County, attached to the letter of Mr Ioan Stratu, the sanction of cessation of the term of office as mayor following the ascertainment of a state of conflict of interests is not mandatory and it is not a reason of cessation of the term of office within the legislation applicable to the office, respectively Law


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on local public administration no. 215/2001, republished, as subsequently amended and supplemented, Law no. 393/2004 on the status of local elected officials, as subsequently amended and supplemented, and Law no. 161/2003 on measures to ensure transparency in the exercise of public offices, public functions and in the business environment, the prevention and punishment of corruption, as subsequently amended and supplemented.

II. Regarding the challenges raised, the Court held the following: Regarding the notion of legal dispute of a constitutional nature between public

authorities: Without defining its contents, both the Constitution and Law no. 47/1992 on the

organization and functioning of the Constitutional Court use the phrase “legal dispute of a constitutional nature”. Therefore, the case‐law of the Constitutional Court and the doctrine in that matter have been the main benchmark in order to establish the features of the legal dispute of a constitutional nature.

Thus, these conflicts have the same features: - they are legal disputes; - they are legal disputes of a constitutional nature; - they create institutional blocking; - they aim both at competence disputes (positive or negative) occurred between the

public authorities and at any conflict situations directly resulted from the Constitution; - they refer only to certain authorities which may result as their subjects. All these features have rather a cumulative feature, not to an alternative one, and the

failure of accomplishing any of them is, ab initio, a rejection of the referral. 1. The doctrine in the matter revealed that a legal dispute of a constitutional nature

“aims at «the powers» or «the attributions» of public authorities; in order to have «a constitutional nature», these « powers» or « attributions» must result from the Basic Law and not exclusively from a normative act subsequent to the Constitution” (in this respect, see I. Deleanu, Institutions and constitutional procedures, C.H. Beck Publishing House, Bucharest, 2006, 867 pages).

At the same time, “Article 146 (e) of the Constitution does not aim at whatever probable and possible conflict, between public authorities, but only at legal dispute and not also at political one, and of course, only at the conflict which aims at the constitutional powers” (in this respect, see I. Muraru, E.S. Tănăsescu, the Constitution of Romania, C.H. Beck Publishing House, Bucharest, 2008, 1.405 pages).

2. These opinions expressed in the doctrine are equally expressed in the case‐law in the field of the constitutional law court. Thus, the Court ruled that a legal dispute of a constitutional nature involves acts or real actions through which one or more authorities assign itself powers, attributions or competences which, in terms of the Constitution, belong to other public authorities or the omission of certain public authorities, involving the contestation of competence or the rejection of fulfilling certain acts which belong to their obligations (Decision no. 53 of 28 January 2005, published in the Official Gazette of Romania, Part I, no. 144 of 17 February 2005). At the same time, by Decision no. 97 of 7 February 2008, published in the Official Gazette of Romania, Part I, no. 169 of 5 March 2008, the Court noted that: “A legal dispute of a constitutional nature occurs between two or more

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authorities and aims either at the content or the scope of their attributions which result from the Constitution. Therefore, they are conflicts of competences, either positive or negative, and may create institutional blockings.” Furthermore, by Decision no. 270 of 10 March 2008, published in the Official Gazette of Romania, Part I, no. 290 of 15 April 2008, the Court ruled that Article 146 (e) of the Constitution “establishes the competence of the Court to settle any legal dispute of a constitutional nature occurred between public authorities and not only the conflicts of competences occurred between them.”

Therefore, according to the case‐law of the Court, legal disputes of a constitutional nature are not confined only to conflicts of competence, either positive or negative, which could create institutional blockings, but aim at any conflicting legal situations whose occurrence lies directly in the text of the Constitution.

3. Reporting the data of the case to the main considerations retained in its case‐law, the Constitutional Court is to consider whether the issues notified in the application of the President of the Superior Council of Magistracy meet the constituent elements of a legal dispute of a constitutional nature between the judiciary and the executive authority.

Thus, the Court finds that the prefect’s attribution to issue an order for the cessation of the mayor’s term of office before the deadline is provided for in Article 16 (2) of Law no. 393 / 2004, Article 69 (3) of Law no.215 / 2001 and Article 26 of Law no. 340 / 2004 in conjunction with Article 25 (2) second sentence and (3) and Article 26 (1) point i) of Law no.176 / 2010.

However, examining the constitutional provisions governing the institution of the prefect, the Court finds that the only jurisdiction expressly provided for is that in Article 123 (5) according to which "Prefect may challenge before the administrative court an act of the county council, of the local council or of the mayor council, if he deems it unlawful". At the same time, the analysis of other constitutional provisions neither establishes directly any definite competence on the role of prefect to issue an order of cessation of the mayor’s term of office nor do they result in any way from them. Furthermore, Article 123 (4) of the Constitution provides that "Between the prefects, on the one hand, local councils and mayors, as well as the county councils and their presidents, on the other hand, there are no subordination relationships."

Finally, Article 123 (3) of the Basic Law provides that "The Prefect’s attributions shall be established by organic law."

Therefore, considering the analysis of allegations brought by in this notification in relation to the constitutional provisions of Article 123 ‐ The Prefect, the Court finds that it cannot be accepted the existence of a legal dispute of a constitutional nature as the Prefect’s attributions in the examined case arise from the law and not from the Constitution.

Thus, the challenge on the non‐observance of the role of the Prefect’s institution to issue an order to remove from office and to establish a limitation period to be appointed in an eligible office for a period of 3 years from the date of cessation of the term of office cannot be accepted because, although through the failure to fulfil an obligation resulting from a normative act inferior to the Constitution, respectively Article 25 (2) second sentence and (3) of Law no.176 / 2010, resulted in a legal dispute, it cannot be assimilated to a legal dispute of a constitutional nature.


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In other words, the failure of certain obligations of legal origin does not automatically generate a legal dispute of a constitutional nature as the possible ignorance of such a power of an institution or public authority, be it even provided for in Title III of the Constitution of Romania, does not represent, eo ipso, a constitutional issue, but one of legality, because their report can be censored before the courts. In this respect, the Constitutional Court also ruled in Decision nr.901 of 17 June 2009, published in the Official Gazette of Romania, Part I, no. 503 of 21 July 2009.

Consequently, the Constitutional Court cannot settle some disputes whose jurisdiction lies in other authorities and public institutions, so that the interpretation and implementation of the relevant legal provisions lie in the achievement of justice provided that the courts be notified through specific actions.

Therefore, the intervention of the Court is legitimate whenever public authorities and institutions referred to in Title III of the Constitution ignore or assume any constitutional attributions to create blockings which cannot be removed otherwise. This is the essence of a legal dispute of a constitutional nature.

III. The Court found that the Prefect of Suceava County did not deviated from the constitutional attributions, but from the attributions which result from laws subsequent to the Basic Law and, therefore, he is not in front of a legal dispute of a constitutional nature as the Prefect’s attribution to issue an order of cessation of the mayor’s term of office is not provided by the Basic Law.

Decision no. 108 of 5 March 2014 on the application for the settlement of a legal dispute of a constitutional nature between the judiciary and executive authority, published in the Official Gazette of Romania, Part I, no. 257 of 9 April 2014

The Prime Minister has the constitutional power to refuse the countersigning of the decree of the President of Romania which confers decorations or honorary titles. The failure to state reasons for such refusal or the justified motivation of the refusal does not have legal consequences, so that they themselves cannot cause a legal dispute of a constitutional nature. The dialogue between public authorities must respect the constitutional principle of fair behaviour

Keywords: Legal disputes of a constitutional nature. Conferring decorations and honorary titles. Decrees of the President of Romania. Countersigning decrees of the President of Romania. Political responsibility of the Government.

Summary I. By the application brought by, the Constitutional Court is requested to ascertain the

existence of a legal dispute of a constitutional nature between the Prime Minister, on the one hand, and the President of Romania, on the other hand, dispute arose as a result of the Prime Minister’s failure to state reasons for the refusal of countersigning the decree of the President of Romania on conferring certain decorations to several personalities of Romanian culture who managed the Romanian Cultural Institute between 2005‐2012.

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In support of its application, the President of Romania invokes the constitutional provisions of Article 94 (a) on the attribution of the President to confer decorations or honorary titles, of Article 100 (2) on the attribution of the Prime Minister to countersign decrees issued by the President which confer decorations and honorary titles, and of Article 146 (e) on the powers of the Constitutional Court to settle legal disputes of a constitutional nature.

It is indicated that, on 25 April 2014, through the Chancery of the Orders of the Presidential Administration, the President of Romania sent to the Prime Minister, for countersigning, two draft decrees decorating certain personalities who performed senior positions within the Romanian Cultural Institute, as well as certain personalities of the Romanian community within the neighbourhood Romania, drafts accompanied by the memorandum setting out the reasons considered for granting the awards. On 29 April 2014 the Government returned the Presidential Administration the countersigned draft decree on decoration of certain personalities of the Romanian community within the neighbourhood Romania, as well as the resolution of refusal of countersigning the decree on decorating certain personalities who managed the Romanian Cultural Institute.

Consequently, it is considered that the Prime Minister unreasonably refused to countersign the draft decree on awarding three decorations, namely: The National Order “Star of Romania” – Knight, The National Order “Faithful Service” – Knight, The National Order “For Merit” ‐ Knight.

It is estimated that the refusal expressed by the Prime Minister, without any justification, created a blocking at the institutional level, generating a legal dispute of a constitutional nature between the public authorities involved in the procedure of granting decorations, namely the Prime Minister, on the one hand, and the President of Romania, on the other hand.

With respect to the attribution of conferring decorations and honorary titles, it is indicated that the President of Romania shall exercise the powers conferred by the Constitution, either by the exclusive exercise of his will or by sharing credentials with other public authorities. Analysing the provisions of Article 94 (a) and Article 100 (2) of the Constitution, it results that the Prime Minister must countersign the decree by which a decoration is to be conferred by the President of Romania. The reason that the Prime Minister shall countersign the decree of the President of Romania resides precisely in the collaboration that must exist between the signatory authorities of the document.

Having regarded to Decision no.88 of 20 January 2009, it is considered that an unjustified refusal is tantamount to a veto right exercised by the Prime Minister, which removes the constitutional attribution of the President of Romania to confer decorations and honorary titles. Although any public authority has a wide discretion, the essence of a democratic state is to specify the reasons on which the refusal of the exercise of constitutional powers is based on. To state reasons ensures transparency in the exercise of constitutional powers and therefore a good administration. In respect of the need to state reasons for the refusal to exercise constitutional powers, the case‐law of the Constitutional Court is invoked, namely Decision no. 375 of 6 July 2005, Decision no. 356 of 5 April 2007 and Decision no. 98 of 7 February 2008.


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It is also considered, in view of Decision no. 53 of 28 January 2005 that the present application concerns the ascertainment of a legal dispute of a constitutional nature arose between the Prime Minister, on the one hand, and the President of Romania, on the other hand, caused by the action of the Prime Minister not to state the reasons for the refusal to countersign the decree conferring certain decorations, which meets the constitutive elements of a legal dispute of a constitutional nature between public authorities.

Consequently, it is estimated that the Prime Minister has flagrantly disregarded the constitutional principle of loyalty and cooperation between public authorities by the way he understood to exercise his legal duty of countersigning.

Therefore, in terms of Article 142 (1) of the Constitution and the current blocking situation, the Constitutional Court is requested to restore the constitutional order as soon as possible, ruling on the manner and extent to which the Prime Minister may act to fulfil the constitutional powers to countersign the decrees of the President of Romania on conferring certain decorations and honorary titles, in respect of the obligation to state the reasons for the refusal, following that public authorities involved in the dispute to comply with this behaviour, considering the general binding nature of the decisions delivered by it, according to Article 147 (4) of the Constitution.

II. On the application brought by, the Court held the following: The President of Romania has the constitutional power to confer decorations under

Article 94 (a) of the Constitution. Pursuant to this constitutional provision, it was adopted Law no.29 / 2000 on Romania's national system of decorations, republished in the Official Gazette of Romania, Part I, no. 118 of 18 February 2014. According to Article 4 (1) of this law, the decorations shall be conferred by the President of Romania, by decree, on the basis of individual awarding proposals. The awarding proposals shall be made by the president of the Senate or by the president of the Chamber of Deputies, for the President of Romania, the Prime Minister, senators and deputies; by the Prime Minister, for the members of the Government, and by the ministers and managers of autonomous central institutions and organizations, for persons in their field of activity. As an exception, the President of Romania may also confer decorations on his own initiative, but “at a ratio of 1% of the total number established by law for each rank or class of each decoration, with the exception of ranks of Grand Officer, Grand Cross and Collar" [Article 4 (3) of the Law].

According to the case‐law of the Constitutional Court, the legal dispute of a constitutional nature involves acts or concrete actions by which one or more authorities assumes powers, duties or competences which, under the Constitution, belong to other public authorities, or the failure of certain public authorities, consisting in the declination of the jurisdiction or the refusal to perform certain acts that fall within their obligations (Decision no. 53 of 28 January 2005, published in the Official Gazette of Romania, Part I, no.144 of 17 February 2005). However, a legal dispute of a constitutional nature occurs between two or more authorities and may aim at the content or scope of their duties arising from the Constitution, which means that they are conflicts of competence, either positive or negative, and may create institutional blockings (Decision no. 97 of 7 February 2008, published in the Official Gazette of Romania, Part I, no.169 of 5 March 2008). Moreover, the Court held that the wording of Article 146 (e) of the Constitution "establishes the Court's

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jurisdiction to settle any legal dispute of a constitutional nature occurred between public authorities, and not only conflicts of competence occurred between them" (Decision no. 270 of 10 March 2008, published in the Official Gazette of Romania, Part I, no. 290 of 15 April 2008). Therefore, according to the case‐law of the Court, legal disputes of a constitutional nature "do not only confine themselves to conflicts of competence, either positive or negative, which could create institutional blockings, but also aim at any conflicting legal situations whose birth lies directly in the text of the Constitution" (see Constitutional Court Decision no. 901 of 17 June 2009, published in the Official Gazette of Romania, Part I, no. 503 of 21 July 2009, Decision no. 1.525 of 24 November 2010, published in the Official Gazette of Romania, Part I, no. 818 of 7 December 2010, and Decision no. 108 of 5 March 2014, published in the Official Gazette of Romania, Part I, no. 257 of 9 April 2014).

Relating those mentioned above to the current case, the Court held that the reason given by the President of Romania as the generator of a conflict, respectively the failure to state reasons for the refusal of the Prime Minister to countersign the decree awarding the decoration, is, in principle, a legal issue, as it aims to the existence or not of a legal obligation of the Prime Minister, in case of the refusal of countersigning the awarding decree, to state the reasons for such refusal. The Court also held that the legal issue is of a constitutional nature, since it aims at the interpretation of Article 94 (a) and of Article 100 (2) of the Constitution, namely the obligations of the Prime Minister and the President of Romania in carrying out the duties conferred by the Constitution. These obligations have a direct connection to the constitutional powers exercised, being an inextricable link between them.

However, in order to establish a conflict within the meaning of Article 146 (e) of the Constitution, the Court examined whether the public authorities involved in this dispute ‐ the President of Romania or the Prime Minister ‐ have violated any constitutional text, because only such behaviour may cause the generation of conflict.

The Court held that, according to the criterion of the conditions of the exercise, the powers of the President of Romania are classified into powers for whose exercise the actions or the presidential facts are not subject to any external conditions and into powers for whose exercise the actions or the presidential facts are subject to certain external conditions and in the latter case, the acts of the President of Romania require either the approval of Parliament, or the countersigning or the fulfilment of other extrinsic conditions.

The Court found that the exercise of the power of the President of Romania to confer decorations and honorary titles [Article 94 (a) of the Constitution] requires the concurrent exercise by the Prime Minister of its power provided for in Article 100 (2) of the Constitution which expressly provides that such a decree issued ‐ legal act of the President of Romania – is countersigned by the Prime Minister. Accordingly, the Court ruled that the exercise of the power of the President of Romania to confer decorations and honorary titles is subject to an external condition, namely to countersign the decree, condition without which it cannot be issued.

The Court, through Decision no. 87 of 30 September 1994, published in the Official Gazette of Romania, Part I, no. 292 of 14 October 1994, stated that through its place and role derived from the direct election by the people – conferring it an equivalent degree of legitimacy to Parliament, which is also directly elected, the President of Romania cannot


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participate to a parliamentary debate, because it would mean to assume political responsibility, which is contrary to his constitutional position, placing him in a similar position to that of the Government which, according to Article 108 (1) of the Constitution, politically reports to Parliament. Therefore, it follows that the President of Romania does not politically report to Parliament.

In this context, the Court found that the reason why the constituent legislature introduced the obligation of countersigning the decrees of the President of Romania laid down in Article 100 (2) of the Constitution is given both by the need for a review of legality on the act of the President and by the need for a form of political responsibility which must be assumed before Parliament by one of the public authorities involved in the procedure of issuing the decree conferring the decorations. As the President does not politically report to Parliament, this responsibility lies with the Prime Minister for the act of countersigning. Therefore, in order to countersign the decree conferring decorations, there may be a possible consultation between the President of Romania and the Prime Minister prior to issuing a decree, even informally.

The Court held that, on the one hand, this constitutional mechanism enables the manifestation of the plenary and direct parliamentary control on the work of the Prime Minister and finally on the Government’s. On the other hand, it also provides, in this way, a balance between the powers of the state, the executive power being represented by the President and by the Prime Minister, on the one hand, and the legislative one being represented by Parliament, avoiding the possibility of abuse of power from the executive power.

Therefore, the Court found that the President of Romania has the power to issue the awarding decree, while the Prime Minister has the power to countersign; the legal acts of the President (decrees), as well as the legally binding acts of the Prime Minister (countersigning) have a strong political significance, in addition to their legal element; the political responsibility assumed by the Prime Minister for acts committed during his term of office also aims at countersigning the presidential decrees; neither of the two subjects of law cannot compel the other to fulfil or agree with the fulfilment of certain acts which would affect either the political support of the electorate or the Parliament’s; the consensus should characterize the relationship between the two subjects of law when they must work together to issue a decree (signature / countersignature); and, finally, the lack of the Prime Minister’s countersignature results in the absence of the decree conferring decorations.

Under these circumstances, the Court ruled that the Prime Minister has the constitutional power to refuse countersigning the decree conferring decorations for both reasons of legality and opportunity.

By issuing a decree conferring decorations it is confirmed the existence of an agreement of wills between the President of Romania and the Prime Minister, namely between the tops of the executive power as the result of the consultations between the two public authorities. Their initiation is usually vested in the Government or Parliament, except for the situations provided for in Article 4 (3) of Law no. 29 / 2000, in which case the initiative belongs to the President of Romania. But in all cases, awarding decorations involves the occurrence of a subjective element from public authorities competent for this procedure. Thus, both the

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initiative of the procedure and the award of decorations itself are the result of their own subjective assessments of these authorities, which, for their conduct, are responsible, in political terms, directly or indirectly, to the voters or Parliament, as appropriate. It results in a range of subjective assessments which, ultimately, can lead to issue or not the awarding decree of the decoration, so that the person proposed to be awarded could not be injured in any of his rights since it has only an expectation on the decoration, and not the right. Under these circumstances, stating the reasons for the refusal of countersigning the decree cannot be described either as part of the refusal, or as having a justified or unjustified nature and, consequently, it cannot either be the subject of a judicial review conducted, possibly, by the Constitutional Court.

Therefore, neither the stating of reasons for the refusal nor the justified nature of the refusal produces legal effects, but the refusal for countersigning the decree. Stating reasons would only mean to indicate the subjective reasons underlying the decision delivered, without a legal purpose of this technical operation in terms of generating new skills within the responsibility of the President of Romania. The Constitution does not provide, either expressly or implicitly, the possibility of the President of Romania to compel the Prime Minister to countersign a decree conferring an award for an initial refusal thereof. It results that the reasons themselves for the refusal have no legal consequence.

As concerns the invoke of the constitutional principle of loyal behaviour, the Court held that the implementation of this principle is a legal bivalent operation, being equally enforceable against both public authorities involved in the procedure of issuing the decree conferring decorations and honorary titles. Therefore, based on this principle, on the one hand, the initiator of the decree – the President of Romania ‐ has the opportunity to consult with the Prime Minister to achieve a consensus between the two peaks of the executive power before the Prime Minister’s countersignature is required on the decree conferring decorations and honorary titles. On the other hand, although no constitutional text obliges the Prime Minister to state the reasons which led to the refusal for countersigning the decree, however, in the spirit of the same constitutional principle, it would be useful if the Prime Minister also worked openly with the President, including by initiating consultations with him. Also, given that neither was any consultation initiated by the President or the Prime Minister, nor was motivated the refusal for countersigning, the initiator of the decree may, in turn, to open a constitutional dialogue with the Prime Minister in order to clarify the reasons which led to the refusal for countersigning the decree mentioned and the fulfilment of a consensus, so as not to reach the referral of the Constitutional Court, the latter having no power to mediate such a consensus.

The Court also noted that the author of the referral identified two decisions of the Constitutional Court, namely Decision no. 356 of 5 April 2007, published in the Official Gazette of Romania, Part I, no. 322 of 14 May 2007 and Decision no. 375 of 6 July 2005, published in the Official Gazette of Romania, Part I, no. 591 of 8 July 2005, which established that, in its relations with the Government, the President of Romania must state its reasons for the refusal to fulfil one of its duties. Analysing those decisions, the Court found that the conclusion of the implementation of mutatis mutandis could not be reached in the present case of the reasoning or legislative solution previously mentioned. In none of the cases shall the President of Romania assume political responsibility, but only legal responsibility in terms of legality to the process


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which ends with the decree of appointment. Thus, given the major legal differences between the institution of countersigning the decree, on the one hand, and the power of the President of Romania to appoint either as a member of the Government or as other public officials, on the other hand, one cannot reach the existence of the Prime Minister’s obligation to state the reasons for the refusal of countersigning the decree.

Thus, the Court held that both the President of Romania and the Government exercised their powers under the Constitution, without assigning powers which, under the Constitution, belong to other public authorities, or omitting to perform certain acts that fell within their constitutional obligations. Each public authority has fulfilled its duties in accordance with the provisions of the Constitution, so that, under these circumstances, the dispute raised by the President of Romania on the interpretation of Article 94 (a) and Article 100 (2) of the Constitution cannot be legally tantamount to a conflict within the autonomous meaning implied by 146 (e) of the Constitution. Therefore, the Court found no legal dispute of a constitutional nature between the President of Romania, on the one hand, and the Prime Minister, on the other hand, occurred as a result of the failure of the Prime Minister to state reasons for the refusal of countersigning the decree of the President of Romania on awarding decorations to several personalities of the Romanian culture who assured the management of the Romanian Cultural Institute between 2005 and 2012.

III. The Court found that there was no legal dispute of a constitutional nature between the Prime Minister, on the one hand, and the President of Romania, on the other hand, occurred as a result of the failure of the Prime Minister to state reasons for the refusal of countersigning the decree of the President of Romania on awarding decorations.

Decision no. 285 of 21 May 2014 on the request for the settlement of the legal dispute of a constitutional nature between the Prime Minister, on the one hand, and the President of Romania, on the other hand, published in the Official Gazette of Romania, Part I, no. 478 of 28 June 2014

Note: Three judges formulated dissenting opinion.

V. Settlement of challenges dealing with the constitutionality of a political party [Article 146 (k) of the Constitution] Challenging the constitutionality of functioning as a political party of the Democratic

Union of Hungarians in Romania. Inadmissibility due to the lack of ownership of the author of the referral's right to appeal and the lack of political party of the Democratic Union of Hungarians in Romania

Keywords: Review of constitutionality of political parties, Admissibility of referral,

Owners of the right to refer to the Court, Object of the challenge Summary I. As grounds for the challenge, its author claims, in essence, that the Democratic Union

of Hungarians in Romania is registered as "a cultural union", or, according to law, the

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associations and foundations shall be considered private companies and shall not have the political rights of the parties, so they cannot be subsidized by the state budget for political activities in electoral campaigns. However, the Democratic Union of Hungarians in Romania declares itself as a political party or political configuration as it is involved in various ways in the political life of the country. Thus, it participates in governance, is considered a parliamentary party having legislative activity, proposes candidates for local and county councils, as well as for mayors, has representatives in the electoral committees, receive airtime on radio and television free of charge, being financed both as a cultural union and as a parliamentary political party by the state budget. At the same time, the author of the referral questions the constitutionality on the participation of the Democratic Union of Hungarians in Romania in elections with their own candidates, while the ethnic Hungarian political parties are registered in the Register of Political Parties.

II. Having examined the challenge brought by, the Court held that under Article 146 (k) of the Constitution, it rules upon challenges as to the unconstitutionality of a political party, a similar legal content is also provided for in Article 39 of Law no. 47 / 1992 on the organization and functioning of the Constitutional Court.

For this purpose, the Court checks on compliance with the essential conditions on the activity of the political party, laid down in Article 40 (2) of the Basic Law, which states the unconstitutionality of the parties or organizations which, by their purpose or activity, fight against political pluralism, against the principles of the rule of law or against the sovereignty, integrity or independence of Romania. However, in exercising such review, the Court relates to the provisions of Article 30 (7) of the Basic Law, which prohibit defamation of the country and of the nation, calls to war of aggression, to national, racial, class or religious hatred, incitement to discrimination, to territorial separatism or to public violence, as well as any obscene expressions, contrary to accepted principles of morality. It also takes into account Article 3 of the Political Parties Law no.14 / 2003, which stipulates that only political associations can function as political parties, set up under the law, which fights for the compliance with national sovereignty, with independence and unity of state, with territorial integrity, with rule of law and with principles of constitutional democracy. The same article states that political parties which by statute, programs, propaganda or other activities they organize, violate the provisions of Article 30 (7), of Article 40 (2) or (4) of the Constitution, are prohibited.

In solving the challenge which was referred to, the Court firstly examined its admissibility, checking the conditions which the challenges on the constitutionality of a political party must comply with, on the status of the author of the referral and its object.

Under the first aspect, the Court held that the persons who may notify the Court for the exercise of this power are expressly and exhaustively listed in Article 39 (2) of Law no. 47 / 1992, this right being given by law only to presidents of the two Chambers of Parliament, upon a decision taken by the Chamber with a majority vote of its members, and to the Government. In light of these provisions, the Court ascertained the admissibility of the challenge which was brought by a person to whom the law does not recognize the


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possibility of entrusting the Constitutional Court to settle a dispute as to the constitu‐tionality of a political party.

In addition, the Court noted that there was an impediment on the consideration of the merits of the challenge and in terms of the object of the challenge brought by. In this regard, the Court held that under Article 146 (k) of the Constitution, it has the power to decide on challenges as to the constitutionality of a political party. Or, as it results from the electronic records of the Ministry of Justice, the Democratic Union of Hungarians in Romania is not registered in the Register of political parties kept by the Court of Bucharest, but in the National Register of Non‐governmental Organizations set up under Law no. 21 / 1924 for legal entities (associations and foundations) or, where appropriate, of the Government Ordinance no. 26/2000 regarding associations and foundations.

The Court noted that, under Article 9 (6) of Law no. 35/2008 for the election of the Chamber of Deputies and of the Senate and amending and supplementing Law no. 67/2004 for the election of local authorities, Law no. 215/2001 on local public administration and Law no. 393/2004 on the Statute of local elected officials, the organizations of national minorities legally set up, provided for in Article 9 (1) ‐ (3), are applied the same legal regime as the political parties in the electoral process. Organisations referred to in Article 9 (1)‐(3) are those which have not obtained in the elections at least one term of office as Deputy or Senator, but which are entitled to a term of office as Deputy, if they have obtained, at the level of the entire country, a number of votes equal to at least 10% of the average number of valid votes cast in the country for the election of a Deputy, those represented in Parliament, as well as those of public interest and which bring before the Central Election Committee a list of members comprising a number of at least 15% of the total number of citizens who, since the last census, they have declared themselves as belonging to that minority. However, the assimilation made by law in terms of participation in the electoral process does not lead to the transformation of the Democratic Union of Hungarians in Romania into a political party, keeping the legal regime of association. However, according to Article 56 of the Government Ordinance no. 26/2000, an association may be dissolved by a judgment, at the request of any interested person, and the court of competent jurisdiction to decide on the dissolution is the court in whose constituency the association has its registered office.

Therefore, since the Democratic Union of Hungarians in Romania cannot be legally classified as a political party under Law no.14/2003 on political parties, the Constitutional Court has no competent jurisdiction to determine its constitutionality, so the challenge brought by is inadmissible in this respect.

The Court also noted that, in essence, the author of the challenge has impugned the fact that, according to the legal framework currently in force, the Democratic Union of Hungarians in Romania has the opportunity to operate in a manner similar to political parties. This method of wording may lead to the idea that the author of the challenge had the intention that the legal provisions, which establish and recognize for the organizations of national minorities the right to operate by similar rules governing political parties, be

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subject to the review of constitutionality. However, the Constitutional Court may proceed to verify the constitutionality of certain provisions of laws or ordinances than under the terms of its referral in terms of Article 146 (d) of the Basic Law, a situation inapplicable to the present case.

III. For all these reasons, the Court rejected as inadmissible the challenge on the constitutionality of functioning as a political party of the Democratic Union of Hungarians in Romania.

Decision no. 272 of 7 May 2014 on the challenge as to the constitutionality of the Democratic Union of Hungarians in Romania, published in the Official Gazette of Romania, Part I, no. 451 of 20 June 2014.

Summaries of the Constitutional Court’s jurisprudence ... si statistici/Buletin 2014... ·...

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