Constitutional Court Of Romania Research Articles

Reform of the Romanian Judiciary and the Cooperation and Verification Mechanism – Considering the Practice of the Romanian Constitutional Court

Romania, an EU Member State since 1 January 2007 was subject to a Mechanism for Cooperation and Verification following the rules set forth by the European Commission’s Decision 2006/928/EC. This specific rule of law mechanism covered the functioning of the judiciary and the fight against corruption. Any method by which a Member State is monitored based on vague, subjective, and imprecisely measurable criteria is likely to cause political friction and scientific disputes. In the case of Romanian justice reform, there were more than simply disputes. The Court of Justice of the European Union (CJEU) and Romanian Constitutional Court interpreted the situation differently. Beginning from an element of justice reform in Romania – the establishment of a special prosecutorial section to investigate crimes committed by judges and prosecutors – this study proposes to analyse these differences from a strictly scientific viewpoint, while raising some fundamental issues of European integration: the transfer of sovereignty, the concept of the rule of law, constitutional identity, and the competition of the Union’s regulatory power with that of Member States, as reflected by this fundamental disagreement between the CJEU and the Constitutional Court of Romania.

Protection of Private, Family, and Intimate Lives

Abstract The Constitutional Court of Romania (CCR) holds an essential position in guaranteeing the observance of human rights within the country’s constitutional and legal framework. Through its attribution to interpret and verify the compliance of laws with the Constitution, the CCR has built a vast and particularly significant caselaw regarding the individual’s fundamental rights. By studying the Constitutional Court of Romania’s judicial practice in the field of human rights, we can examine how fundamental rights are interpreted and implemented in the national legal system. In this regard, the CCR plays a vital role in ensuring the protection and promotion of these rights by interpreting the Constitution and applicable legislation in accordance with international standards. It is important to highlight that the CCR’s human rights caselaw reflects the constant attempt to ensure a balance between the individual’s and society’s interests, protecting fundamental rights in accordance with the principles of the rule of law and international standards in the field. Through the analysis of concrete cases and constitutional interpretation, the CCR strengthens its essential role in human rights promotion and defense in Romania.

Theoretical and Practical Aspects regarding the Duties of the President of Romania in the Procedure of Naming the Government – Part I

According to the current constitutional provisions in force, the President of Romania has duties in regard to the naming of the Government, as he is the one who begins this procedure by appointing a candidate for the position of prime minister; the President is also the one who concludes this procedure, based on the vote of confidence granted by the Parliament. Considering these constitutional provisions, state practice, doctrine, jurisprudence of the Constitutional Court of Romania, but also the constitutional provisions of other states, we aim to analyze certain delicate aspects which occur in the exercise of these duties. We will appreciate on the existence or inexistence of a discretionary power of the head of state in the exercise of these duties. In this scientific endeavor, we will use specific methods of research, as is the comparative one, the logic one, the systemic and/or the teleological one.

The Relationshipbetween EU Law and National Constitutional Law in the Field of Fundamental Rights

The Constitutional Court of Romania carries out the control of the constitutionality of the laws and ordinances of the government and pronounces decisions that have a binding effect erga omnes. Within the constitutionality control, a special position is occupied by the EU law. In our paper we will focus on the interferences that may arise between the national norm, the EU law and the national Constitution, from the perspective of the jurisprudence of the Constitutional Court and the principle of priority of the EU law.

Connecting Gender Identity and Freedom of Conscience in Recent Romanian Constitutional Case-Law

The Constitutional Court of Romania has recently ruled unconstitutional a new provision amending the Law regarding national education, meant to prohibit “any activity of disseminating the theory or opinion of gender identity, understood as the theory or opinion that gender is a concept different from biologic sex and that the two are not always the same”. This provision was found in breach of several constitutional principles, including freedom of conscience and freedom of expression. This decision makes for a brief ingression into the legal nature of gender identity and that of freedom of conscience, allowing for the former to serve as a means to clarifying the scope of application of the latter. Since gender identity recognition is not a “world view”, but a reflection of diversity which is integral to a plural, democratic society, the only way the said provision breached freedom of conscience involved its interior dimension: the freedom of thought of pupils and students. But it did not even involve an interference with the right to manifest a “conviction”, as far as pupils, students and also teachers are concerned. Nonetheless, it breached their freedom of expression.

THE QUESTION OF EXCLUDING EVIDENCE OBTAINED IN CRIMINAL PROCEEDINGS AS A RESULT OF ENFORCING NATIONAL SECURITY WARRANTS BY THE ROMANIAN INTELLIGENCE SERVICE (SRI)

Starting with 2016, the Constitutional Court of Romania issued a series of decisions whereby it repeatedly established that the interference of intelligence services in a criminal prosecution is not allowed, so that the evidence obtained with the help of these structures cannot be used in criminal proceedings, being affected by absolute nullity. This article summarizes the most relevant decisions of the constitutional court in this matter, as well as the recent practice of the High Court of Cassation and Justice, which we hope will signal other courts to ensure unitary jurisprudence at the national level.

The Court of Justice of the European Union Is Facing a New Challenge: Compliance with the Rule of Law or not as a Result of the Effects of Decisions Delivered by the Constitutional Court of Romania

The Court of Justice of the European Union Is Facing a New Challenge: Compliance with the Rule of Law or not as a Result of the Effects of Decisions Delivered by the Constitutional Court of Romania

Constitution Review- between necessity and opportunity

The present article aims to rediscuss the variables of constitutional revision. This effort stems from the recent initiatives purporting “to reform the Constitutional Court of Romania” and observations regarding the “major deficit of parliamentary democracy in the legislative procedure”, generated by the special procedures of “tacit adoption”, “assuming responsibility” and the excess of legislative power on part of the Government, as expressed through ordinances. Given a constitution needs a certain level of stability and the possibility to adapt to new, political and social realities, this article showcases the procedural rules and limits in relation to constitutional revision. It selectively presents possible outcomes of a future constitutional revision – stemming from the observation of disfunctions manifested in the functioning of the constitutional-statal mechanism (particularly the parliamentary practice of tacitly adopting bills and legislative proposals and the governmental practices in the field of assuming responsibility before Parliament and of adopting emergency ordinances). It showcases the constitutional and infraconstitutional framework regulating the organization and functioning of the Constitutional Court of Romania and remarks a recent bill to amend Law No. 47/1992. Last but not least, it analyses whether constitutional amendments would actually play a part in consolidating the democratic regime of Romania if not paired with a reform of the political elite, reshaping the conduct of the main political and institutional actors

Using New Means of Technology during the Penal Proceedings in Romania

The new legal framework created since 2014 while the new Code of penal procedure entered into force in Romania has opened a different way of approaching the justice in criminal matters. In such a legal context the judicial bodies are more accustomed with the idea of using the new means of technology in such a way not to infringe the parties' procedural rights during the penal trial knowing the fact that using illegal protocols signed by the prosecutor offices with the Romanian Intelligence Service was prohibited by the Constitutional Court of Romania. In the current paper, a qualitative research has been carried out on both legislative and jurisprudence items regarding the new means of technologies currently used in the penal justice. The main purpose of the paper is to analyze the effect of the new means of technology including the use of digital evidence which occur in the penal trial in Romania as well as to discuss the legal consequences they produce in practice. Some practical points of view have been highlighted taking into account the new means of technologies' efficiency. Moreover, in order to improve the penal procedure into force certain proposals of de lege ferenda have been provided.

A nemzeti kisebbségek jogainak érvényesülése a román alkotmánybírósági esetgyakorlatban

The constitutional provisions concerning national minorities are listed in triple perspective in the Constitution of Romania, namely as fundamental principles, fundamental rights and part of the organisation of the state. In addition to the constitutional provisions, there have been enacted provisions having the force of law that regards the rights of the persons belonging to national minorities. These laws or parts of them – in most of the cases – have been under constitutional review and in this context the Constitutional Court decisions defined and pointed out the significance and the sphere of applicability of the rights of national minorities. This study presents the constitutional provisions regarding the rights of national minorities, the Constitutional Court of Romania, its constitutional powers and its relevant case law developed in the aforementioned field.

Jurisprudence Of The Constitutional Court Of Romania On The Adoption Of Emergency Ordinances

Although executively, to the Government is conferred by art. 115 of the Constitution of Romania a series of legislative provisions. This justifies the issuance of emergency ordinances in the context of the need for the exercise of power. However, the principle of separation in the state is not affected by legislative delegation, but this phenomenon is necessary for the purpose of carrying out, by the Government, a more dynamic activity in terms of simplifying the procedures for approving the laws when necessary. In this respect, the present paper aims at reporting some justifying elements demonstrating the necessity of the constitutional text of art. 115 of the Romanian Constitution. How to cite: Ungureanu, C., & Nesteriuc, O. (2017). Jurisprudence of the Constitutional Court of Romania on the Adoption of Emergency Ordinances. European Journal of Law and Public Administration , 4(2), 76-82. https://doi.org/10.18662/eljpa/16

The Constitutional Court of Romania against the direction of the constitutional moment of 1991

Abstract The year 1991, the year when the current Romanian fundamental law came in to force, designed a constitutional moment built on profound political and societal emotions. These emotions pushed the Constituent Assembly in search of an answer, in the form of a solution, to the question „What do we not want?” The answer was: “An authoritarian president / chief of state!” Consequently, the position of the head of state in the political scaffolding received an increased attention. Unlike the Communist president, who exercised great powers, the new president was thought and designed antagonistic to his predecessor. He was reduced to a role of a simple mediator. However, more than 20 years after the fall of the communist regime, the “traditional” authoritarian personality of the president transcended - of course, not as pronounced as in the communist era - the finality of the presidential role and of the presidential attributions stated in the Constitution. As we shall see, the “player president” emerged and got confirmed by the Romanian Constitutional Court against the desideratum of the constitutional moment of 1991.

Constitutional Court of Romania: The Constitutionality of the Citizens’ Initiative for the Revision of Article 48 (1) of the Constitution (‘Family’)

Abstract The Constitutional Court found that Article 48 of the Constitution of Romania enshrines and guarantees the right to marriage and family relations resulting from marriage, apart from the right to family life/respect for and protection of family life, a concept with a much broader legal content, which is also embodied and protected by Article 26 of the Constitution. Insofar the analysis is limited solely to the scope of the right to marriage, the proposed amendment of Article 48 of the Constitution, ie replacement of the words ‘of the spouses’ with the words ‘between a man and a woman’, constitutes a mere indication as regards the exercise of the fundamental right to marriage, namely the specific determination of the fact that marriage is concluded between partners of different biological sex. The amendment proposed is not likely cause the disappearance, removal, deletion or cancellation of the concept of marriage. Furthermore, the safeguards of the right to marriage, as enshrined in the constitutional text of reference in its original form, remain unchanged. Therefore, the initiative for revision of the Constitution is constitutional in respect of the provisions of Article 152 of the Constitution, as it does not remove the right to marriage or the safeguards thereof and it does not bring into question any other limit on matters of revision.

Special Topic: Procedural Rules and Practices Grounding the Decisions of the Constitutional Court of Romania

The significant powers given by the Romanian Constitution to the Constitutional Court represent various and effective instruments to achieve its main role, meaning to guarantee the supremacy of the Constitution. Since the Constitutional Court’s decisions are generally binding, and given their role to ‘remodel’ the entire legal system, for the purposes of its constitutionalisation, it is vital to make them known and understood, also with reference to the underlying decision-making process. In this regard, the configuration of the procedure to settle the cases referred to the Constitutional Court represents in itself a framework ensuring the transparency in the decision-making process, in particular through the involvement in this process of public authorities representing the three State powers which are asked, according to the law, to express their written opinions in almost all cases judged by the Court. There are also other professionals, bodies, and authorities that may be requested to submit information and opinions and, furthermore, we have to underline the legal duty of publication of the decisions of the Constitutional Court in the Official Journal of Romania. This framework, as well as other instruments such as the system which provides for an online, direct access of the media, or the viewing/listening of Constitutional Court’s public sessions, press releases, other tools and practices aiming at informing on the activity of the Constitutional Court provide openness and transparency to its activity.

Constitutional Court of Romania: Postal Voting

The Court decided that the regulation of postal voting for the Romanian citizens domiciled or resident abroad is aimed at ensuring the highest participation of the Romanian citizens in the electoral process, taking account of the need to apply in full the principle of universal suffrage. The regulation shall ensure a fair balance between universal suffrage on the one hand, and free and fair elections as well as direct, secret and free suffrage, on the other.

The established obligation for the ordinary courts to interpret the law in the light of the interpretation provided to the Convention by the Constitutional Court of Romania

In the last years the Constitutional Court of Romania was asked to rule on the constitutionality of the erga omnes obligatory interpretations provided by the High Court of Cassation and Justice. Through such constitutionality review, the Constitutional Court manages to impose its own interpretation of the European Convention on Human Rights on all national ordinary courts whenever such courts are to ensure that the European Convention of Human Rights is observed and respected in a pending case. This paper sumarises a couple of such rulings, pointing out that through such constitutionality review rulings, the Constitutional Court of Romania has also established that it has the competence to impose, at the national level, the unique interpretation that can be given to a norm whenever that unique interpretation was already imposed by the High Court of Cassation and Justice.

The Romanian Constitutional Court and the Principle of Primacy: To Refer or Not to Refer?

This Article aims to constructively analyze the emerging constitutional dialogue between the Constitutional Court of Romania (the CCR or the Court) and the Court of Justice of the European Union (CJEU). It focuses, in particular, on the lack of a reference for a preliminary ruling from the first court, and aims to unveil the possible motives underlying this passive behavior.

Constitutional Court of Romania: The Requirements for the Registration of a Political Party

The Constitutional Court of Romania declared unconstitutional the provisions of Article 19 para 3 of the Political Parties Act No 14/2003, which covered one of the formal conditions for fulfilling the legal procedure for the registration of a political party, namely the requirement of a minimum of 25.000 founding members residing in at least 18 counties and in Bucharest, but not less than 700 persons for each of these counties and Bucharest. The Court held that this requirement is excessive, disproportionate in the current socio-political context of the country and to the measures in force targeting public funding of political parties and election campaigns and parliamentary representation of the electorate.

Constitutional Court of Romania: National Cybersecurity versus Fundamental Rights and Freedoms

The limitation of the exercise of personal rights with regard to certain specific collective rights and public interests related to cybersecurity breaks the right balance that should exist between individual interests and rights, on the one hand, and those of the society, on the other hand, as the impugned law does not regulate sufficient guarantees to ensure an efficient protection of personal data against risks of abuse, as well as against any illegal access and usage thereof. The lack of any provision within the law ensuring the possibility of the person whose rights, freedoms or legitimate interests have been affected by acts or facts based on the provisions of the Law on the cybersecurity of Romania to address an independent and impartial court is contrary to the provisions of Article 1 para 3 and 5 and Article 21 of the Romanian Constitution, as well as of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Constitutional Court of Romania: Constitutionalization of the Obligations under International Treaties and European Union binding Acts

The Constitutional Court of Romania assessed that the right to measures of social protection provided by the Constitution has to be interpreted in the light of the international treaties to which Romania is a party. As a result of this interpretation of the Constitution, the aforementioned fundamental right comprises the right of the employees to information and consultation in the event of collective redundancies. Moreover, the Court held that the failure of the legislative to comply with certain obligations of constitutional relevance that are incumbent on as the result of Romania’s accession to the European Union is in breach with the Constitution of Romania.