Publicaţie bilingvă, editată semestrial

CONSTITUTIONAL COURT JURISPRUDENCE REVIEW
IN RELATION TO THE FIRST SEMESTER OF 2009

Tudorel TOADER

Judge at the Constitutional Court

Laura TUTUNARU

Assistant Magistrate

Legal dispute of a constitutional nature
Following the reference formulated by the President of Romania, Mr. Traian Băsescu, the Constitutional Court ascertained the existence of a legal dispute of a constitutional nature between the judicial authority, on one hand, and the Parliament of Romania and the Government of Romania, on the other.

The legal dispute of a constitutional nature between the said authorities was determined by two decisions concerning the appeals in the interest of the law grounded on the non unitary practice of courts with regard to the granting of certain salary rights to judges, public prosecutors, other magistrates, tax judges, tax prosecutors, tax controllers or to the ancillary specialized staff within the courts and prosecution offices.

As from the analysis of the decisions rendered by the supreme court in solving the appeals in the interest of the law which are mandatory for courts, the Constitutional Court finds that the High Court of Cassation and Justice adopted the thesis with principle value and general applicability according to which the courts may adjudicate as on the constitutionality of repealed provisions by virtue of the principle of completeness of jurisdiction in the cases pending before them. Thus, the review of constitutionality and the settlement of the objection of unconstitutionality concerning repealed rules, by interpretation per a contrario of Article 147 paragraph (1) with reference to Article 126 paragraph (1) of the Constitution, are of the competence of the courts of law, and not of the Constitutional Court, which, pursuant Article 29 paragraph (1) of Law no. 47/1992 may adjudicate only on the unconstitutionality “of a law or ordinance, or of a provision from a law or ordinance into force”, provision that excludes de iure any conflict of jurisdiction in this matter.

Invoking vices of legislative technique or flaws of unconstitutionality, the High Court of Cassation and Justice has reinstated rules which applicability had ceased being repealed by normative acts of the legislative authority.

Such procedure is equivalent, as the court of constitutional contentious stated in its jurisprudence¹⁵⁹, to giving to the provisions of a normative act a meaning by which the courts are granted with the power to abolish legal rules set by law and to create other rules or to substitute them with rules comprised in other normative acts. Such is obviously unconstitutional since it infringes the principle of separation of powers enshrined by Article 1 paragraph (4) of the Constitution, as well as the provisions under Article 61 paragraph (1) according to which the Parliament is the sole legislative authority of the country.

The Constitutional Court stated that in exercising its power provided under Article 126 paragraph (3) of the Constitution the High Court of Cassation and Justice must secure the unitary interpretation and application of the law by all courts, in compliance with the basic principle of separation and balance of powers enshrined by Article 1 paragraph (4) of the Constitution of Romania. Thus, the High Court of Cassation and Justice does not have the constitutional jurisdiction to set up, modify or repeal legal rules with force of law or to carry out the constitutional review thereof.

The Constitutional Court found that, according to the Basic Law, the sole authority authorized to exercise the constitutional review of laws and ordinances is the constitutional court. Therefore, neither the High Court of Cassation and Justice nor the courts of law or other public authorities of the State have the power to review the constitutionality of laws or ordinances, regardless if the same are in force or not.
Decision no. 838 of May 27^th 2009, published in the Official Gazette

of Romania, Part I, no. 463 of July 3^rd 2009

Legislative delegation – areas in which emergency ordinances cannot be passed
Adjudicating within the a posteriori review, the Constitutional Court allowed the objection of unconstitutionality raised directly by the Advocate of the People and held that the Government Emergency Ordinance no. 230/2008 for the amendment of certain normative acts concerning the pensions in the public system, State pensions and occupational pensions is contrary to Article 115 paragraph (6) of the Constitution.

The provisions under the said ordinance prohibit pension cumulation with the income from an occupation carried out within public authorities and institutions and, correlatively, require persons in the situation referred to opt for retirement or for revenues derived from labour, otherwise said, to abandon the pension continuing their professional activities or to leave their professional work that brings income and to preserve pension.

In consideration of the provisions under Article 115 paragraph (6) of the Constitution, according to which emergency ordinances cannot affect the rights and freedoms provided by the Constitution, the Constitutional Court held that the provisions under the Government Emergency Ordinance no. 239/2008 are unconstitutional because they affect the abovementioned basic rights.

In the same time, the Court determined that, following the ascertainment of the unconstitutionality of the Government Emergency Ordinance no. 236/2008, the Government is not impeded to promote, in compliance with the principles of non retroactivity of the law, non discrimination and equal rights and with the other rules and principles comprised in the Constitution, the necessary measures with regard to the circumstances and conditions in which the pension may be cumulated with the revenues derived from labour.

Decision no. 82 of January 15^th 2009, published

in the Official Gazette of Romania, Part I, no. 33 of January 16^th 2009

Protection of honour and dignity of person. Access to courts
Adjudicating within the a posteriori review, the Constitutional Court allowed the objection of unconstitutionality and held that the provisions under Article I item 4 of the Government Ordinance no. 34/2001 on judicial stamp duty are unconstitutional. The subject matter of the examined objection of unconstitutionality repealed Article 15 paragraph f¹) of Law no. 146/1997.

Patrimonial liability for non material damage was allowed by means of jurisprudence, as from 1990 and by means of legislation, the existence of this type of legal answerability was enshrined by Article 15 paragraph f¹) of Law no. 146/1997 on judicial stamp duty, text inserted in the law by Government Ordinance no. 11 of January 29^th 1998, approved by Law no. 112/1998, providing the exemption from payment of judicial stamp duty of actions and applications, including those for the exercise of avenues of appeal, concerning the “ascertainment and granting of indemnities for non material damage prejudicial to the honour, dignity or reputation of a natural person”.

This regulation represented a specific modality of protection of honour and dignity of person, characterized under Article 1 paragraph (3) of the Constitution of Romania as supreme values for the rule of law. Thus it ensured the access to courts unconditional of the payment of a stamp duty to persons injured by utterance of insulting expressions, slander or smear done by any means, directly or by mass media.

Taking into consideration these grounds of Article 1 paragraph (3) of the Constitution of Romania justifying the exemption from judicial stamp duty of those actions concerning the ascertainment and granting of compensation for non material damage prejudicial to the honour, dignity and reputation of a natural person, the Constitutional Court held that the repeal of Article 15 paragraph f¹) of Law no. 146/1997 on judicial stamp duty contravenes the provisions under Article 1 paragraph (3) and those under Article 21 paragraphs (1) and (2) of the Constitution of Romania, as well as those under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Decision no. 778 of May 12^h 2009, published

in the Official Gazette of Romania, Part I, no. 465 of July 6^th 2009

Equal rights
Adjudicating within the a posteriori review, the Constitutional Court allowed the objection of unconstitutionality and held that the provisions under Article 44 paragraph (2) of Law no. 303/2004 on the statute of judges and public prosecutors are unconstitutional. The subject matter of the objection of unconstitutionality had the following contents: “Upon calculation of the length of service provided under paragraph (1) shall be taken into consideration also the period in which a judge or public prosecutor acted as a lawyer”.

Of the people allowed at the contest of admission in the magistracy, only those who acted as lawyers may subsequently get registered at the contest of promotion within higher courts or prosecution offices without having the effective length of service in magistracy as required pursuant Article 44 paragraph (1) of Law no. 303/2003 and benefiting of the assimilation of the length of service as lawyer with the length of service as magistrate.

Therefore, as concerns the requirements that should be met with a view to accede to the office of judge or public prosecutor within higher courts or prosecution offices, it is established a privilege in favour of those who were lawyers detrimental to the others. Taking into account the fact that, upon registration at the contest for allowance in the magistracy, all candidates were equal in terms of profession and length of service required pursuant Article 33 paragraph (1) of Law no. 303/2004, appears as inequitable such privileged treatment at a later instance of a certain category of magistrates. There is nothing that may justify the occurrence of such differentiation between the two moments in the career of a magistrate, respectively the moment of allowance in magistracy and that of promotion. As long as all were allowed at the contest of admission in the magistracy, it can only be assumed that all magistrates, irrespective of their previous occupation in the legal field, have evolved and improved within similar professional landmarks, and therefore there is no reason as concerns the promotion to higher courts or prosecution offices of a certain category of magistrates as during the professional development the discrepancies derive only from the individual training, and not from particular circumstances, preceding the allowance in magistracy.
Decision no. 778 of May 12^h 2009, published

in the Official Gazette of Romania, Part I, no. 465 of July 6^th 2009

The constitutional principle of bicameralism
Adjudicating on the reference concerning the objection of unconstitutionality of the Law for the amendment and supplementation of Law no. 818/1999 on the statute of public servants, the Constitutional Court held that the impugned provisions infringe the constitutional principle of bicameralism of the Parliament of Romania enshrined by Article 61 paragraph (2) of the Constitution.

As from the comparative analysis of the documents concerning the initiation and holding of this legislative process, namely of the legislative proposal submitted by the initiators, the wording adopted by the Senate, as first chamber referred, and that adopted by the Chamber of Deputies, as decisional chamber, the Court finds that there are major differences of legal content, the amendments and supplementations adopted by the Chamber of Deputies giving a special configuration, considerably different to the bill adopted by the Senate.

According to Article 61 of the Constitution of Romania, the Parliament is the supreme representative body of the Romanian people and the sole legislative authority of the country, and its structure is bicameral, being composed of the Chamber of Deputies and the Senate. But the principle of bicameralism, thus enshrined, is reflected not only in the institutional dualism within the Parliament, but also in the functional one, because Article 75 of the Basic Law establishes powers of legislation according to which each of the two Chambers has, in the cases strictly provided by law, either the quality of first chamber referred or that of decisional chamber. Likewise, taking into account the indivisibility of Parliament as supreme representative body of the Romanian people and its uniqueness as legislative authority of the country, the Constitution does not allow the adoption of a law by a single chamber, without the bill be debated also by the other chamber. Article 75 of the Basic Law introduced, after the revision and republication thereof in October 2003, the solution concerning the compulsoriness of reference, in certain matters, as first chamber referred, of reflection, of the Senate or, as the case may be, of the Chamber of Deputies and, therefore, the regulation of the role of decisional chamber, for certain matters of the Senate and for other matters of the Chamber of Deputies, with a view not to exclude a chamber or the other from the law making mechanism. Likewise, paragraphs (4) and (5) under Article 75 of the Constitution provide the manner of settlement of any “conflicts of jurisprudence” between the first chamber referred and the decisional chamber, but there isn’t a text of the Constitution which would allow the decisional chamber to deviate from the “limits of reference” rendered by the solution adopted by the first Chamber referred.

In its jurisprudence¹⁶⁰, taking into account the basic rules and principles abovementioned, the Constitutional Court stated that “parliamentary debate of a bill or legislative proposal cannot overlook the assessment thereof in the plenary of the two Chambers of our bicameral Parliament”. It is true that in the debate of a legislative initiative, the Chambers have their own right of decision thereto, but the principle of bicameralism cannot be observed unless both Chambers of Parliament debate and express their opinion on the same contents and the same wording of the legislative initiative.

The discrepancies between the bill adopted by the Senate, as first chamber referred, and the law passed by the Chamber of Deputies, as decisional chamber, infringe the principle of bicameralism, in the meaning that the final form of the law, in the wording passed by the decisional chamber, substantially deviates from the wording adopted by the first chamber, which is basically equivalent to the exclusion of the latter from the law making process. Or, the law must express the concordant will of both Chambers of Parliament.
Decision no. 710 of May 6^th 2009, published in the Official

Gazette of Romania, Part, no. 358 of May 28^th 2009




III. Press releases

INTERNATIONAL ACTIVITY
OF THE CONSTITUTIONAL COURT

January

Participation of the delegation of the Constitutional Court headed by Prof.Dr. Ioan Vida, President of the Constitutional Court and consisting of Judge Nicolae Cochinescu, Judge Puskás Zoltán Valentin, Judge Tudorel Toader and Mrs. Ruxandra Săbăreanu, Secretary General, in the works of the World Conference on Constitutional Justice, organised by the Constitutional Court of South Africa in cooperation with the Commission for Democracy through Law (the Venice Commission), in Cape Town, on January 22   24, 2009.

Participation of Prof.Dr. Ioan Vida, President of the Constitutional Court of Romania, in the festivities dedicated to the 50^th anniversary of the European Court of Human Rights, as well as in the other events organised on this occasion in Strasbourg, on January 30, 2008.

February

Participation of Judge Tudorel Toader in the 3^rd German Romanian Conference of Criminal Law organised within the Rule of Law Program   South East Europe of Konrad Adenauer Foundation, together with the Romanian German Association of Jurists and the Law School of Babeş Bolyai University, held in Cluj, on February 28^th 2009.

March

Participation of the delegation of the Constitutional Court headed by Prof.Dr. Ioan Vida, President of the Constitutional Court and consisting of Judge Aspazia Cojocaru and Judge Augustin Zegrean in the festivities dedicated to the 40^th anniversary of the Constitutional Supreme Court of the Arab Republic of Egypt, festivities organised in Cairo, on March 7 9, 2009.

Official visit of the delegation of the Constitutional Court of Romania headed by Prof. Dr. Ioan Vida, President of the Constitutional Court and consisting of Judge Puskás Valentin Zoltán and Mrs. Ruxandra Săbăreanu, Secretary General, at the invitation of the Constitutional Court of the Republic of Lithuania, on March 18 – 21, 2009.
April

Participation of Judge Petre Lăzăroiu in the works of the meeting of the 7th Ibero American Conference of Constitutional Justice, organised in Merida, Yucatan, on April 15 17, 2009.

May

Welcoming of the official visit of the delegation of the Constitutional Council of the Islamic Republic of Iran, headed by Ayatollahul AHMAD JANNATI, President of the Constitutional Council, Secretary of the Guardian Council, on May 20 – 24, 2009.

June

Participation of Judge Tudorel Toader in the works of the 5^th Congress of A.C.C.P.U.F. organised by the Constitutional Court of the Republic of Benin, in Cotonou, on June 22 28, 2009.

1 Sorin Popescu, Cătălin Ciora, Victoria Ţăndăreanu, Aspecte practice de tehnică şi evidenţă legislativă, Editura Monitorul Oficial, 2008, p. 7.

2 «Sintagma „prevăzută de lege” nu se referă doar la dreptul intern, ci vizează şi calitatea „legii”; prin această expresie se înţelege compatibilitatea legii cu principiul preeminenţei dreptului, menţionat explicit în preambulul Convenţiei» Curtea Europeană a Drepturilor Omului, Cauza Rotaru împotriva României, 2000, Beatrice Ramaşcanu, Jurisprudenţa CEDO în cauzele împotriva României, Ed. Hamangiu, 2008, p. 108.

3 Lucien François, Le problème de la sécurité juridique, lucrarea La sécurité juridique, Ed. Jeune Barreau de Liège, Liège, 1993, p. 10, Cosmin Flavius Costaş, fiscalitatea.ro.

4 Cauza C-381/97, Belgocodex, Culegere 1998, p. I-8153, par. 26, idem Cosmin Flavius Costaş.

5 Corneliu Bârsan, Convenţia europeană a drepturilor omului, comentariu pe articole, vol. I - Drepturi şi libertăţi, Ed. All Beck, p. 472.

6 M. Of. nr. 414 din 31 august 2000.

7 Pentru detalii, a se vedea şi Ioan Vida, Acţiunea normei juridice în timp, în Revista Dreptul nr. 12/1994, p. 81; Mihai Constantinescu, Radu Mareş, Principiul neretroactivităţii legii în cazul deciziilor Curţii Constituţionale, în Revista Dreptul 11/1999, p. 82.

8 Decizia nr. 9/1994, M. Of. nr. 326 din 25 noiembrie 1994.

9 Constituţia României – Comentariu pe articole, coordonatori I. Muraru, E. S. Tănăsescu, Ed. C.H. Beck, Bucureşti, 2008, p. 139.

10 M. Eliescu, Aplicarea legii civile în timp şi spaţiu, Conflictele de legi, în Tratat de drept civil, vol. I, Partea generală, de Tr. Ionaşcu ş.a., Ed. Academiei, Bucureşti, 1967, p. 80.

11 Legea nr. 47/1992 privind organizarea şi funcţionarea Curţii Constituţionale, M. Of. nr. 643 din 16 iulie 2004.

12 De exemplu: Decizia nr. 73/1995, M. Of. nr. 177 din 8 august 1995, Decizia nr. 56/2000, M. Of. nr. 367 din 8 august 2000, Decizia nr. 303/2001, M. Of. nr. 809 din 17 decembrie 2001, Decizia nr. 98/2002, M. Of. nr. 301 din 8 mai 2002, Decizia nr. 61/2007, M. Of. nr. 116 din 15 februarie 2007, Decizia nr. 665/2007, M. Of. 547 din 10 august 2007, Decizia nr. 755/2008, M. Of. 537 din 16 iulie 2008, Decizia nr. 830/2008, M. Of. nr. 559 din 24 iulie 2008, Decizia nr. 1345/2008, M. Of. nr. 873 din 23 decembrie 2008.

13 Decizia nr. 159/1999, M. Of. nr. 52 din 2 februarie 2000.

14 Decizia nr. 330/2001, M. Of. nr. 59 din 28 ianuarie 2002, Decizia nr. 458/2003, M. Of. nr. 24 din 13 ianuarie 2004.

15 Decizia nr. 830/2008, M. Of. nr. 559 din 24 iulie 2008.

16 „Legea se publică în Monitorul Oficial al României şi intră în vigoare la 3 zile de la data publicării sau la o dată ulterioară prevăzută în textul ei.”

17 Republicată în M. Of. nr. 777 din 25 august 2004.

18 M. Of. nr. 220 din 2 aprilie 2002.

19 M. Of. nr. 1060 din 26 noiembrie 2005.

20 Cauza C 368/89, Crispoltoni , Culegere 1991, p I-3695, par. 17, Cosmin Flavius Costaş, op. cit.

21 Cauza C-91/92, în Takis Tridimas, „The General Principles of EU Law”, Oxford EC LawLibrary,
p. 244.

22 Cauza 314/85, idem, p. 248.

23 A se vedea şi TC Hartley, „The foundations of European Community law”, Oxford University Press, 2007, p. 146 şi următoarele.

24 Jean Dabin – „Theorie Générale du Droit”, Dalloz, Paris, 1969, p. 268.

25 Jean-Claude Piris – „Union européenne: comment rédiger une legislation de qualité dans 20 langues et pour 25 Etats members”, în „Revue du droit public”, nr. 2/2005, p. 476.

26 Art. 3 din Legea nr. 24/2000.

27 M. Of. nr. 374 din 16 mai 2008.

28 M. Of. nr. 358 din 28 mai 2009.

29 M. Of. nr. 307 din 5 aprilie 2006.

30 M. Of. nr. 1154 din 7 decembrie 2004.

31 Beatrice Ramaşcanu, op. cit., p. 711.

32 M. Of. nr. 514 din 14 iunie 2006.

33 M. Of. nr. 582 din 29 noiembrie 1999.

34 M. Of. nr. 72 din 5 februarie 2003.

35 De exemplu, prin Decizia 1005/2009, M. Of. nr. 575 din 18 august 2009.

36 M. Of. nr. 461 din 3 iulie 2009.

37 În lucrarea „Ficţiunile juridice” (Ed. All Beck, Bucureşti, 2005, p. 290), profesorul Ion Deleanu, referindu-se la dispoziţiile art. 3 din Codul civil, arăta următoarele: „Semnifică aceasta o «dezlegare» pentru o activitate judiciară normativă? Credem că răspunsul nu poate fi decât negativ: pentru ca instanţa să ajungă la concluzia că legea este obscură sau incompletă ea trebuie să o «interpreteze» - o lege clară şi precisă nu trebuie interpretată, ci pur şi simplu aplicată - dar interpretarea legii nu înseamnă formularea ei, ci, după caz, clarificarea, adaptarea, nuanţarea sau extrapolarea dispoziţiilor ei, pentru a o face aplicabilă la circumstanţele cauzei.”

38 M. Of. nr. 872 din 23 decembrie 2008.

39 Nu poate fi primită interpretarea în sensul că atunci când instanţa complineşte lacunele legislative „voluntare” sau