Romanian Constitution Research Articles

Critical considerations regarding the limits of the power to revise the Romanian Constitution

By starting from several principle considerations regarding the relations between the constituent power, the original and the derived constituent authority, I shall make a critical analysis of the limits of the power to revise the Constitution, such as they regulated in 1991 Constitution of Romania. The material limits of the revision raise certain problems in terms of necessity, clarity and, in the case of Republican form of government, of the validity of introduction into the legal system. The teleological limits which prohibit revisions that result in the suppression of fundamental rights and freedoms or their guarantees raise several definition problems, especially when the effect targeted by the constitutional interdiction is indirectly obtained. Finally, the limitation in exceptional situations betrays the lacunae of the Constitution of Romania in their definition, and in the case of the prohibition of revision in times of war, the contradictory historical experiences.

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

A New Dedication from Olbia and the Problems of City Organization and of Greco-Barbarian Relations in the 1st Century ad

Abstract This article contains a publication of a dedication by strategoi to Augustus, his heir Gaius Iulius Caesar and to the People, which was found in Olbia in 2006 and dates from the period between the year 1 bc and the year ad 4. It is the earliest inscription from post-Getic Olbia to have been discovered. Analysis of it makes it possible to suggest that Olbia was rebuilt after the rout by Burebistas in the last years bc under Roman control. The state organization of Olbia, which took shape after the city had been restored, reproduced certain features of the Roman constitution. Despite suggestions often voiced to the effect that Scythians or Sarmatians were included among its citizens, they were only granted the status of Olbian citizens later on – in the years 50-80 ad. The city was restored by Greeks who, at least in part, had come from Asia Minor and Thrace.

The Constitutional Court and Others in Romanian Constitutionalism – 25 Years After

Abstract The current Romanian constitutional system, established in 1991, has undergone numerous formal and informal developments in the last 25 years. The main issues that arose in the decade since the country’s adhesion to the European Union were the respect for the rule of law, independence of the judiciary and the fight against corruption. In this context, the Constitutional Court has been one of the central elements of the rule of law guarantee in Romania. This paper intends to present a critical overview of the actual role of the Constitutional Court in the Romanian constitutional system, in the different contexts that link the Court with ‘others’, ie mainly with State powers (the Court itself being and independent organ, placed outside the judicial power).

The Changing Status of Women as Others in the Romanian Constitution

Abstract This article investigates the extent to which the Romanian Constitution has provided for adequate means to enhance women’s equal citizenship in its first twenty-five years of existence. Taking as its starting point Simone de Beauvoir’s thought, encompassed in the idea that gender inequality is derived from defining women as ‘the Others’ or as totally opposite to men, the article shows that since its adoption in 1991, the Romanian Constitution began to depart from the stereotypical and antagonistic understanding of women and men’s roles in society that Romania had inherited from its Socialist past. In 2003, when the Constitution was reviewed for Romania’s EU and NATO accession, the requirement that only men should serve in the military was replaced with the guarantee of equal opportunities for men and women to occupy public, civil or military positions. Meanwhile, the Constitutional Court inched toward being an active actor in advancing gender equality. For example, in 2005 the Court held that allowing only women in the military, but not men in the same position, to take parental leave was unconstitutional and, in that same year, it gave women’s reproductive rights a rather liberal interpretation. However, this article argues that the developments that have taken place have not been progressive enough. The Constitution still provides only for paid maternity leave, provides special working conditions only for women, does not explicitly mention the protection of reproductive autonomy, does not connect bodily rights with equality but with privacy, and lacks clarity on the admissibility of measures – such as gender quotas – to promote more women into the public sphere.

Considerations Regarding the Legal Regime of the State of Siege in Romania

Abstract Considered to be one of the most important functions of the state, the national defense encompasses all the measures adopted both in peacetime and in crisis or war situations in order to guarantee the national sovereignty, independence and unity of the state. An appropriate training for the complexity of a crisis situation can not exclude the proper legal foundation, because without a well-built legislative structure the response to a threat against the state may be delayed or inexistent. In order to ensure the normative framework, alongside the Romanian Constitution, the Government Emergency Ordinance no. 1/1999 offers, even with small gaps, the legal elements necessary for the realization of a unitary system of response to crisis in which various public, civil and military authorities intertwine their attributions in the establishment and implementation of siege-specific measures.

The Parliament Control on Ombudsman Institution

Abstract The Parliamentary control is exerted not only on the Government but also on some autonomous administrative authorities and on some special bodies under its subordination. The constitutional norms are extremely synthetic on this form of parliamentary control, as only the art. 116 par. 2 of the Constitution stipulates that specialised bodies may be established which to function under Government subordination or as autonomous administrative structures, by organic law. The Ombudsman Institution is an autonomous administrative authority established according to the Constitutional provisions, the activity of which is under Parliament control. For the first time, the Ombudsman has been established in Sweden as additional tool to the control exerted by the Parliament on the executive power. Additional guarantees were enforced by it, as being an institution with democratic character, for the defence of the rule of law and for the protection of the individual rights and freedoms. On the Ombudsman’s appointment and role, the article 58 of the 1991 Romanian Constitution stipulates that the person in charge is to be appointed by the Chamber of Deputies and the Senate in joint meeting, its appointment being of five years and that the Ombudsman cannot have another civil or private service except for the teaching positions in higher education.

The Romanian Constitution and Civic Engagement

Abstract The article discusses civic engagement in Romanian constitutionalism. First, I briefly discuss theoretical dimensions of the relation between citizens and constitutional change. Second, the Romanian Constitution will be analyzed in terms of formal constitutional instruments of civic participation. Third, civic engagement in constitution-making and constitutional reform since 1991 will be studied. I will conclude that in the early years of Romanian democratic constitutionalism, citizens’ formal possibilities and actual capacities for engagement in constitutional politics have been severely limited. Civic participation has, however, become more promising and prominent in the 2003 and 2013 reform processes. The Romanian dual experience with the Forum Constituţional ought to be studied as part of a larger wave of participatory constitutional reform in Europe, which also helps to bring out a more general problem of such reform, ie, the lack of formal institutionalization of civic participation.

Special Topic: The Romanian Constitution at 25 – A Critical Examination of Romanian Constitutionalism

Special Topic: The Romanian Constitution at 25 <b>–</b> A Critical Examination of Romanian Constitutionalism

The Multinational State That Wasn’t: The Constitutional Definition of Romania as a National State

Abstract This article looks at the constitutional label of Romania as a ‘national state’ and the constitutional discourse surrounding it. It argues that this label is unavoidably linked to a project of constitutional nationalism. The article examines the origins of the provision enshrining this state characteristic, as well as the eternity clause declaring it unamendable, so as to reconstruct the genealogy of the idea of the national state in Romania. The article traces the origins of the concept to early-twentieth century nation-building discourse but links its current incarnation to the distinctive type of nationalism promoted in late communist and early post-communist Romania and its fear of the Hungarian ‘other’. This fear seeped into debates in the 1990–1991 constituent assembly debating the new constitution, which proceeded to disregard calls for a more pluralist definition of the state and clearer constitutional protection for national minorities. While some of these choices were revisited during the 2003 revision of the constitution, the fundamental law retains its emphasis on the national state. To this day, Article 1 (1) continues to be contested, especially by representatives of the Hungarian community. At the same time, it is invoked and creates confusion every time administrative territorial reorganisation is entertained. The article argues that greater clarity is required in understanding the concept and operation of the national state provision, as well as openness to an inclusive national dialogue surrounding this constitutional unsettlement. Only by moving the constitutional discourse beyond the highly politicised debates of years past, and the ‘us versus them’ mentality informing them, can Romanian constitutionalism show a maturity in keeping with its recent 25-year anniversary.

LEARNING FROM EXPERIENCE: POLYBIUS AND THE PROGRESS OF ROME

Perhaps the most striking aspect of Polybius’ work is the frequency with which the historian pauses his historical narrative and embarks upon digressions, including entire books devoted to the topics of geography (Book 34), historiography (Book 12) and, most famously, the discussion of the Roman constitution in Book 6. Such digressions have naturally drawn the attention of modern scholars, but in the past the tendency in Polybian scholarship had been to read such digressions in isolation, and even to deny their relevance outside of their immediate context. While it is true that these digressions cannot be regarded as strict blue-prints upon which Polybius’ historical narrative is to be precisely mapped, more recent scholarship has suggested that such passages are not as irrelevant to this narrative as they had for a long time appeared. Moreover, a parallel trend in Polybian scholarship is currently calling for a renewed focus into the composition of his historical narrative in order to apply the level of scrutiny to the text of Polybius previously reserved, for example, for his more famous predecessors, Herodotus and Thucydides. An appropriate recognition of the relationship between the more famous passages of Polybius’ work found in his digressions and the broader narrative of historical events will help to alleviate this deficiency. Careful study of the text of Polybius in this manner will reveal that his historical narrative does not simply represent a bare record of historical facts but is rather composed by the historian in a way that demonstrates and reinforces the principles presented in the more abstract digressions, which have attracted more attention.

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.

EXECUTIVE POWERS IN RELATIONS WITH THE PARLIAMENT. PART I

By art. 1 para. (4), Romanian Constitution, republished, enshrined the principle of separation and balance of powers. Therefore, this principle implies the existence of collaboration but also of a mutual control between these powers, including between the legislative and executive power, thus being expressed the balance between these two powers. By constitutional established powers, the two central authorities of the executive power - the President of Romania and the Government - will participate at the observance and application of this principle, including by those duties they perform in their relations with the legislative power.

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.

Legal Aspects Of The Right To Respect Private And Family Life

Abstract Free development of human personality and dignity, which are values proclaimed by the Romanian Constitution, right in the Article 1, can not exist without respecting and protecting married, family and private life. The right to respect and protect married, family and private life is part of the list of fundamental rights and freedom, and has a complex content. Belonging to the legal category of fundamental rights clarifies the legal character of the right to respect private and family life, but even its definition is not as clear as such. The legal aspect of family is, at its turn, complex and can be divided into two major coordinates: protecting family as a social entity by establishing legal requirements to ensure access to such status and establishing mutual rights and duties of family members.

The Aftermath of Digital Rights Ireland: Romanian Constitutional Court Declares Overarching Cybersecurity Law Unconstitutional

The Aftermath of Digital Rights Ireland: Romanian Constitutional Court Declares Overarching Cybersecurity Law Unconstitutional

The Place and the Role of the Prosecutor in the Criminal Trial according to the New Code of Criminal Procedure

The paper outlines and critically approaches the changes in the new Code of Criminal Procedure with regards to the functional competence of the prosecutor and the court after the introduction in the criminal trial of some new principles such as the principle of separation of judicial functions, of opportunity in the exercise of a criminal action, of the right to a fair trial within a reasonable time, of the diminished exercise of the active role of the court and after the introduction in the criminal trial of the adversarial type elements. The changes with regards to the competence of the prosecutor emerge from the modifications of the basic principles of the criminal trial, which, along with the classical ones are meant to provide Romania with a new model of criminal proceedings in accordance with: the Romanian Constitution, the founding treaties of the European Union, the European Convention for the Protection of Human Rights and Fundamental Freedoms, of all the other European Union regulations along with covenants and treaties on fundamental human rights to which Romania is a member. We refer to the principle of the separation of judicial functions in the criminal trial (art. 3 of the new Code of Criminal Procedure); the opportunity in the exercise of the criminal action [art. 7 paragraph. (2) of the new Code of Criminal Procedure); the right to a fair trial within a reasonable time (Art. 8 of the new Code of Criminal Procedure); the right to liberty and security (Article 9 of the new Code of Criminal Procedure); ne bis in idem (art. 6 of the new Code of Criminal Procedure); and the loyalty in obtaining evidence (art. 101 of the new Code of Criminal Procedure).

A PECULIAR EPISODE FROM THE ‘STRUGGLE OF THE ORDERS’? LIVY AND THE LICINIO-SEXTIAN ROGATIONS

The struggle for and passage of the so-called Licinio-Sextian rogations of 367b.c.is generally regarded as the climactic moment of the ‘struggle of the orders’. According to Livy, this year saw the ratification of a package of three laws. One limited possession of land. Another required that all money having been paid toward the interest on a debt be counted against the principal, and that the remainder of the debt be paid off in three annual instalments. The third law, which has received far the most attention in the sources and in modern scholarship, ended the practice of the annual election oftribuni militum consulari potestate, restoring the two-man consulship and requiring that one of the two consuls each year come from theplebs.The centrality of the struggle over these laws in Livy's account of the fourth century and their obvious effect, as reflected in thefastiby the subsequent election of two consuls every year, have led scholars to accept as genuine the tradition that an important reform of the Roman constitution took place in this year. However, every element of the laws, and of the narrative of how those laws came to be, has come under the scrutiny of modern scholarship. The most thoroughgoing of these criticisms is that offered by von Fritz, who argued that Livy and his sources completely misunderstood the tradition that they were interpreting.

Decentralization in Romania: A Constant Failed Reform Under Scrutiny from the Constitutional Limits Perspective

Decentralization is mentioned in the Romanian Constitution of 1991 as a principle of public administration, without being defined. A framework-law was adopted only in 2004, after the revision of the Constitution, and it was entirely abrogated in 2006 by another framework-law. None of these laws have been fully applied, because they were made of general principles and of public policy statements. The article discusses the draft law on decentralization of 2013 that was declared unconstitutional by the Constitutional Court in January 2014. The Constitutional Court has developed in the Decision No. 1/2014 the argument that it has jurisdiction to decide not only on the unconstitutionality of the law, but also on the inconsistency between it and the legal framework. The Court relied on its previous jurisprudence and also on that of the ECHR and the CJEU and concluded that the draft law on decentralization “does not meet the constitutional requirements regarding the quality of the law”. Consequently, the account of decentralization, since the introduction of this concept in the Constitution of 1991 up to now, is extremely unsatisfactory. The transfer of powers from central to local levels, the essence of decentralization, was limited and was done mainly in a descriptive form of the competences of local authorities by the successive laws concerning the local administration. A gradual approach was preferred, extremely cautious regarding the implementation of decentralization. The European Charter on Local Autonomy, albeit transposed in Romanian law since 1997, had no influence on the drafting of two framework laws from 2004 and 2006, a rule that even the law from 2013 makes no exception to. The article describes how the principle of subsidiarity has been incomplete or faulty defined by these frameworks-laws and, consequently, it was impossible to apply it. Other principles, such as proportionality or consultation of local authorities on decisions that directly affect them, were not introduced in the Romanian legislation. Until the failed attempt to conduct the transfer of competences in 2013, an approach merely describing the principles and stages of decentralization was the option. There is also the option to specify from the very beginning which are the institutions which competences are to be transferred to a lower level due to decentralization. This alternative was avoided, probably due to the finding of a weak administrative capacity that causes decentralization to result in institutions that cannot exercise their powers invested with.

CONSIDERATIONS ON THE NECESSITY OF USING THE CONCEPT OF PUBLIC ADMINISTRATION IN THE CONSTITUTIONAL FOUNDATION OF PUBLIC ADMINISTRATION IN THE FUTURE CONSTITUTION

AbstractBeginning with the current social reality which described political actors preoccupiedwith the review of the Romanian Constitution, the present paper outlines the idea that the newRomanian Constitution has to offer, more than ever, the foundation for a clear, precise,coherent and concise legislation. This necessity is felt in all the areas related to the social life,but especially in public administration. Given that it is the moment for debates at the level ofthe society regarding how the future Constitution must look like, it has been asserted asappropriate to recall into discussion an idea stated since 2003 at monograph level. Accordingto this idea, in the activity of molding the system of structures exerting public powerprerogatives in general and molding the Romanian administrative system in particular, it isnecessary and useful to use the concept of public institution as construction element used tocraft the architecture the legislator desires. The proposal is argued as a critical analysis ofreference regulations in this area. Proposals for lege ferenda are also made.