CONSTITUTIONAL REVIEW:

DOCTRINE ANDPRACTICE IN THE CASE-LAW OF THE CONSTITUTIONAL COURT OF ROMANIA

Presentation by Mr Augustin Zegrean,

President of the Constitutional Court of Romania

Mr. Chairman,

President Valery Zorkin,

Distinguished Colleagues,

On behalf of the Constitutional Court of Romania, as well as on my own behalf, I would like to congratulate the Constitutional Court of the Russian Federation on its 20th anniversary and also to express our gratitude for organizing this International Conference. I am greatly honoured to address to this august audience. Allow me therefore to express my appreciation for the generous hospitality we found here.

Ladies and gentlemen,

The evolution of the Constitutional Court of Romania, in almost twenty years since creation, is a notable one, indeed, and manifested itself also as a change of attitudedue to the realization of its role in complete awareness, in what regards the decisions rendered. This has been constantly underlined in the Court’s case-law starting with Decision No.1/1995 of the Plenum, wherein it was held that the res judicata authority of jurisdictional decisions is attached not only to their operative part, but also to the ratio decidendi. Accordingly, as the Court stated, both the Parliament and the Government, and also all public authorities and institutions must fully comply with the reasoning and the decision itself. Such specific effects arising of the Constitutional Court pronouncements are consequence to its role, which cannot not materialize in entirety unless the binding value of the interpretation given by the Court to the texts and concepts entrenched in the Basic Law, to the meaning identified in the constituent’s will has been acknowledged. The meaning established by the Constitutional Courtin constitutional concepts and principles is then taken on into the social sphere and so determines the state of constitutionality in society, while also eliminating any possible differences among the other addressees of constitutional norms. In doing so, it furthermore lays constitutional foundationsto the law-making and law-enforcing activities, respectively.

With a view to ensuring full access to constitutional justice, the Constitutional Court of Romania has recently resorted to an interpretation of provisions in its own Law of organization and functioning in accordance with Article 21 of the Constitution, on free access to justice. By Decision No. 766 of 15 June 2011[1], the Court has held that the wording "in force" in Article 29, paragraph (1) and in Article 31, paragraph (1) of Law No. 47/1992 on the organization and functioning of the Constitutional Court, republished, is constitutional to the extent that such is interpreted in the sense that laws or ordinances or provisions of laws or ordinances whose legal effects are perpetuated, even though formally lost vigour, are also subject to constitutional review. The Court held that in the Romanian system of concrete review of constitutionality of laws, it is possible to launch the a posteriori review only incidentally, by way of an exception of unconstitutionality raised before the courts of general jurisdiction or commercial arbitration, not by an "actio popularis" based on direct appeal by anyone. Hence, it follows that a constitutional review may be requested only in regard of those legal provisions that, in concrete cases, are incident for the adjudication of disputes by the courts, i.e. laws or ordinances in their entirety, or certain parts thereof. Institution of review proceedings as to the constitutionality of the law applicable in the case being tried on its merits by the ordinary court, as a form of access to justice, will necessarily imply to give an equal opportunity for anyone who has a right, a legitimate interest, capacity and locus standi. Certainly, the pre-requisite here is that the legal provision contested as being unconstitutional is related to the settlement of the case, which is necessary but also sufficient. To add supplementary requirements–namely that the legal provision should be effective from a formal viewpoint,whose non-fulfilment amounts to a drastical sanction of inadmissibility of any referral to theConstitutional Court with an exception of unconstitutionality – is a restriction of free access to constitutional justice, thus contrary to the provisions of Article 21, paragraphs (1), (2) and (3), corroborated with the provisions of Article 146, paragraph d) of the Constitution.The more so since the formal repeal or loss of vigour of a legal norm does not necessarily mean, in all cases, its inapplicability. Even though law is vivid, and must adjust itself to changes in line with evolutions in society, all legislative events (that laws are repealed, have reached a set deadline or outcome, are amended, supplemented, suspended or simply become obsolete, on account of new social relationships, requirements and opportunities), the normative solutions contained therein must still observe the principles of the Basic Law. Once apprised, the Constitutional Court has the task to carry out its review,without making it conditional on the removalfrom active legislation, regardless under what form, of the act impugned to be unconstitutional.

Due to time constraints, I will mention however just a few aspects of the case-law of the Constitutional Court in my country, more precisely, some decisions of a larger impact not only for the development of constitutional doctrine, but also for the public, because of their resonance and intense mediatization.

In the context of Romania’s membership of the European Union, I would like to mention, first of all, a number of decisions[2]whereby the Court has held that it lacks competence “to examine the conformity of provisions of national law with the Treaty on the Functioning of the European Union, seen through the prism of Article 148 of the Constitution[3]. Such competence, namely to establish whether national law is in conflict with the Treaty, would be for ordinary courts to deal with,but in that case, either ex officio or upon request by the party, they might have to raise a preliminary question […] That because, should the Constitutional Court consider itself competent to adjudicate on whether national legislation complies with the law of the European Union, there would arise a conflict of jurisdiction between the two courts, which is inacceptable at this level”.

In the same line of reasoning, the Court – while recognizing itself as neither a positive legislator, nor as a court of general jurisdictionauthorized to interpret and apply the law of the European Union in litigations bearing upon individual rights –has observed that utilization of norms of the European law within the constitutional review, such being interposed to the norm of reference, implies cumulative requirements in the context of Article 148 of the Constitution of Romania: on the one hand, such norm must be itself sufficiently unambiguous, accurate and unequivocal, or its meaning should have been established in an unambiguous, accurate and unequivocal manner by the Court of Justice of the European Union; on the other hand, such norm must circumscribe to a certain degree of constitutional relevance, so that its normative content should take to a possible contradiction between national legilation and the Constitution – the latter being the only direct norm of reference for the constitutional review. Under the hypothesis, the Constitutional Court’s survey would then appear to differentiate from a mere application and interpretation of the law (a competence which lies with ordinary courts and administrative authorities), or matters pertaining to legislative policies endorsed by Parliament or the Government, as the case may be. Seen in the light of these cumulative requirements, it remains for the Court to decide whether to apply judgments made by the Court of Justice of the European Union or whether to raise itself a preliminary question in order to have the content of the European norm thus established. Such attitude is a reflection of the cooperation between the national constitutional court and the European judge, as well as their judicial dialogue, without bringing into question any aspects which would implicate a hierarchical relationship among them[4].

In the framework of these principles, the Constitutional Court, whereindirectly confronted with the law of the European Union, has always carried out its role as the guarantor of the national Basic Law and constitutionally safeguarded fundamental rights and freedoms.A relevant example in that regard is its decision[5]concerning the Law no.298/2008 on the retention of data generated or processed by the providers of publicly available electronic communication services or of public communications networks, and for amending Law no.506/2004 on the processing of personal data and the protection of privacy in the electronic communications sector, an Acttransposing into national law the Directive 2006/24/CE of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC; in the instance, the Constitutional Court of Romania – finding it susceptible to cause impairment, even in indirect ways, to the exercise of fundamental rights and freedoms, namely the rights to personal, private and family life, to the secrecy of correspondence and freedom of expression, all that in a manner which does not satisfy the requirements under Article 53 of the Constitution, regarding the cases of limitations to the exercise of certain rights and freedoms – has declared unconstitutional the national law which transposed a European Directive. The solution as well as its underlying reasoning was later on to encounter in the case-law of other European Constitutional Courts, of long-standing tradition, when called upon to look into the same issue of principle; which once againmay indicate the place taken by the Constitutional Court of Romania thereamongst.

The Constitutional Court’s newly ascribed powers after the 2003 revision of the Constitution, as well as the juridical and socio-political evolutions over the last few years have also afforded an opportunity for the Court to firmly consolidate its role.

Thus, in what concerns the constitutional status of representatives of the State powers, the Constitutional Court of Romania already has a rich jurisprudence in the resolution of legal disputes of a constitutional nature between public authorities; the solutions delivered in such cases have established the conduct to be followedin accord with the constitutional role and responsibilities of the authorities concerned. For example, in finding the existence of a legal conflict of a constitutional nature between the Government and the President of Romania, in connection with designation of a particularperson to the position of Minister of Justice, the Court held that the President of Romania, in the exercise of his powers under Article 85, paragraph (2) of the Constitution, can refuse, but only once, while also giving hisreasons, the Prime Minister’sproposal for appointmentof a certain person to the vacant position of a Minister. The Prime Minister must then nominate someone else (Decision No. 98 of 7 February 2008). In another decision, while finding the existence of a constitutional legal conflict between the Public Ministry - the Prosecutor’s Office attached to the High Court of Cassation and Justice, on the one hand, and Parliament - the Chamber of Deputies and the Senate, on the other hand, regarding the procedure to be followed in the case of requests for initiating criminal proceedings against members or former members of the Government for acts committed in the exercise of their function and who, at the time of such request also had the status of a Deputy or Senator, the Court indicated the procedure to end up the legal conflict(Decision No. 270 of 10 March 2008). Similarly, where it foundthe existence of a constitutional legal conflict between the President of Romania, on the one hand, and the judiciary, represented by the High Court of Cassation and Justice, on the other hand, having arisen in that the High Court of Cassation and Justice ignored a decision of the Constitutional Court [a declaration of unconstitutionality of a law which providedadvancement in rank of colonels and commandersin imperative terms, thus imposing on the President of Romania an obligation to awardsuch ranks without the benefit of a margin of assessment whether or not he should do so] as well as the legal provisions applicable, the Constitutional Court ruled that, under Article 94 letter b) of the Constitution, awarding the rank of a general is the exclusive power of the President of Romania (Decision No. 1222 of 12 November 2008).Likewise, where it found the existence of a constitutional legal conflict between the judicial authority, on the one hand, and the Parliament of Romania and the Romanian Government, on the other hand [insofar as the High Court of Cassation and Justice, adjudicating on two appeals in the interest of law, had not only confined itself to clarify the meaning of certain legal norms or their scope, but also, invoking technical defaults in legislation or unconstitutionality flaws, revived norms that had ceased applicability, being repealed by normative acts of the legislative authority, which is an operation reserved for the legislative authority], the Constitutional Court established the conduct to be followed so as to prevent further occurrence of such conflicts of a constitutional nature. Thus, in the operative part of its decision, the Court has held that, in exercising its power under Article 126, paragraph (3) of the Constitution, the High Court of Cassation and Justice must provide for the interpretation and uniform application of the law by all courts, while observing the fundamental principle of separation and balance of powers, as enshrined in Article 1, paragraph (4) of the Constitution of Romania. The High Court of Cassation and Justice has no constitutional authority to establish, modify or repeal legal norms having the force of a law or to review their constitutionality (Decision No. 838 of 27 May 2009). More recently, in Decision No. 1431 of 3 November 2010, the Court found that the assuming responsibility by the Government before the Chamber of Deputies and the Senate, subject to Article 114, paragraph (1) of the Constitution, on the draft Law of Education was unconstitutional and engendered a legal conflict of a constitutional nature between the Government and Parliament, whereas the bill was currently being legislated in the Senate as a decision-making chamber. By Decision No. 1525 of 24 November 2010, the Constitutional Court found the existence of a constitutional legal conflict between the Government and Parliament, generated by Parliament's refusal to take into debate the motion of censure tabled by the parliamentary opposition, since once initiated, such debate can no longer be halted, given the provisions of the Constitution.

Decisions of strong resonance in the legal plan but also in terms of the public perception are those aimed at safeguarding the fundamental rights and freedoms. Their significant number makes it difficult to list,however a few examples, such as Decisions Nos. 872, 873 and 874 of 25 June 2010[6], are eloquent in that regard.

Thus, with its Decisions No. 872 and No. 874 of 25 June 2010, given in a priori review, the Court found unconstitutional the provisions of Article 9 of the Law concerning certain measures required for restoring a budgetary balance, which provided for a 15% cut-down of the gross amount of pensionsdue or on the payroll. Given the practice of the European Court of Human Rights in this area, the jurisprudence of other constitutional courts and its own case-law, the Court essentially held that in what concerns the amount of pensions established according to the contributory principle, such constituted acquired rights,therefore its diminution could not be accepted, not even on a temporary basis. With the contributions paid to the social insurance budget, the person concerned has practically earned his/her right to receive a pension in the amount which results from the application of the contributory principle; therefore, the contributory principle is of the essence of anyone’s right to pension, and derogation, even if a temporary one, as to the State’s obligation to pay the amount of pensions as it results after application of said principle, affects the very substance of pension rights. Given the high degree of protection afforded by the Constitution of Romania to such rights, the Court also held that cutting down the amount of a contribution-based pension, regardless in what percentage and for how limited a period cannot be accepted.

By Decision No. 873 of 25 June 2010, the Court found, also within a priorireview proceedings, the unconstitutionality of Article 1, paragraph c) of the Law concerning certain measures relative to pensions which provided for the elimination of professional pensionsfor magistrates, as being contrary to the principle of judicial independence. On that occasion the Court has held that the constitutional status of judges – a status that is further developed by the organic law and includes a number of incompatibilities and interdictions, as well as the responsibilities and risks implied by the exercise of that profession - imposes the provision of professional pensions as a component of the independence of the judiciary, which is a guarantee of the rule of law as provided under Article 1, paragraph (3) of the Basic Law.

Thank you very much for your attention.

1

[1]published in the Official Gazette ofRomania, PartI, No. 549 of 3 August 2011

[2] Decision no.1249 of 7 October 2010, published in the Official Gazette of Romania, Part I, no.764 of 16 November 2010; Decision no.137 of 25 February 2010, published in the Official Gazette of Romania, Part I, no.182 of 22 March 2010, and Decision no.1596 of 26 November 2009, published in the Official Gazette of Romania, Part I, no.37 of 18 January 2010

[3]ARTICLE 148: Integration into the European Union

(1) Romania's accession to the founding Treaties of the European Union, for purposes of transferring certain powers into the hands of community institutions, as well as for exercising in common with the other Member States the competencies stipulated in such Treaties, shall be under a law adopted in a joint session of the Chamber of Deputies and the Senate, by a majority of two-thirds of the number of Deputies and Senators.

(2) Following accession, provisions in the founding Treaties of the European Union, as well as other binding regulations under community law shall prevail over any contrary provisions of domestic law, while observing provisions in the accession instrument.

(3) 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.

(4) The Parliament, the President of Romania, the Government, and the judicial authority shall guarantee that any obligations arising from the accession instrument and from provisions under paragraph (2) are put into effect.

(5) The Government shall send the draft for any binding regulations to the Chambers of the Parliament prior to submitting such for approval to the European Union institutions.

[4] Decision no.668 of 18 May 2011, published in the Official Gazette of Romania, Part I, no.487 of 8 July 2011.

[5] Decision no.1258 of 8 October 2009, published in the Official Gazette of Romania, Part I, no.798 of 23 November 2009.

[6]published in theOfficial Gazette ofRomania, PartI, No. 433 of28 June 2010.