[Editor’s Note: This is the third installment in our Year-in-Review series. We invite scholars from around the world to prepare similar reports on their own jurisdictions for publication on I-CONnect. Earlier year-in-review reports have been published on Italy and the Slovak Republic. –Richard Albert]
—Simina Elena Tănăsescu, PhD, Professor at the University of Bucharest and Bianca Selejan-Guțan, PhD, Professor at the “Lucian Blaga” University of Sibiu
There are several major subject areas from the Court’s 2015 term. Cases focused on reforming the Romanian political system, for instance involving the freedom of association in political parties, postal voting for expatriated Romanians and parliamentary immunity. The Court also decided important civil liberty cases concerning the right to a fair trial as well as free access to justice in civil and criminal procedures. In addition, the Court presided over cases regarding the protection of , including privacy (particularly with regard to cyber-security) and social rights.
Overall, the Romanian Constitutional Court continued to emphasize the importance of protecting fundamental rights. And this occurred in cases brought by individuals via the ordinary courts (referrals of unconstitutionality) and cases initiated by specific public authorities (institutional litigation).
Since most decisions below are not available in English yet, we have presented some of them in a rather detailed manner.
Part I: Political Reform
Following incidents of civil unrest occasioned by the presidential election of November 2014, the Constitutional Court and the Parliament united in an attempt to reform the political system. While the Court focused on vindicating the right to freedom of association and postal voting, legislators aimed their attention to the reform of the political parties and campaign finance. And finally, despite latent resistance from MPs, the parliamentary immunity was revised.
1. Freedom of Association, Political Parties
In the Decision no.75/2015, the Court inter alia examined, whether a statutory threshold requiring 25,000 signatories to found a political party was constitutional. Since similar complaints had been rejected in 1996, 1998, 2006 and 2010 for falling outside its purview, the Court analysed the issue in the light of new socio-political developments. In its review, the Court invoked judgments of the European Court of Human Rights (ECHR) as well as recommendations from Venice Commission, which interpreted the right to associate in political parties as part of the freedom of association.
The Court also considered changes to the threshold of founding members required to register a political party, which was at its lowest immediately after the 1989 Revolution against the communist regime. For fear of “devaluation” of the idea of political parties, the threshold was raised to 10,000 members in 1996, and raised again seven years later to the present 25,000 member requirement. But the 2015 Court believed the scope of these provisions failed to correspond to current socio-political realities, and held: “the law is living, therefore, alongside the society, it must adapt to changes.” The Court also argued that the circumstances necessitating the 25,000 member requirement were suppressed by legislation. The Court concluded there was an unfair balance between the interests at stake—the individual interest in free association and the state interest in regulating political parties—and ruled that the new threshold violated the freedom of association.
This may be one of the most important decisions of the 2015 Court term because of its almost immediate impact on laws regulating political parties. In a dramatic shift, the threshold to found a political party now requires only three founding members, the same amount needed to create any other association in Romania.
2. Right to Vote and Postal Voting
The reforms of the political system also affected elections. Aside from the relatively minor changes in local election law and an important amendment to parliamentary elections law, the Parliament enacted a new law on postal voting in 2015, though it only applies to Romanian citizens residing abroad who vote in parliamentary elections. This law was challenged before the Constitutional Court ex ante by plaintiffs alleging that postal voting infringes constitutional features of the right to vote, mainly equality and privacy in voting (particularly through the so-called technique of the “family vote”). The Court emphasized, however, that postal voting is a special procedural technique used in specific circumstances. Since expatriated Romanians are in an objectively different situation with regard to voting than Romanian residents, the principle of equality is not breached. As to privacy, the Court held that the obligation to not disclose who they voted for also belongs to the voter, who is responsible for ensuring its secrecy. The Court found that the law also provides sufficient guarantees to ensure postal votes remain confidential. Therefore, while taking into account that voters themselves must exercise good faith, the Court found the law to be constitutional on vote secrecy grounds.
3. Criminal Repression and Parliamentary Immunity
Finally, the case law of the Constitutional Court reshaped parliamentary immunity. Requests from the Prosecutor’s Office to lift parliamentary immunity or to approve the pre-trial detention of MPs suspected of corruption often have been treated in an inconsistent manner by the parliamentary Chambers. Although immunity had sometimes been lifted without difficulty by a majority vote in the respective Chamber, other times the request had been rejected, whereas in some others the result was inconclusive. This unpredictability stemmed from complex institutional practices and the Standing Orders of the Chambers.
For example, to proceed to the pre-trial detention of one senator, the Court needed to preside over two decisions on the relevant parliamentary resolutions, two decisions regarding legal conflicts of a constitutional nature and one decision on the Senate’s Standing Order. Lifting the immunity of a deputy (and also of the Prime Minister) was also complex, for it required the Chamber of Deputies’ Standing Order and a parliamentary resolution.
On March 25, 2015, a request from the Minister of Justice to arrest a Senator gathered 79 votes in favor, 67 votes against and 5 annulled votes, which was more than the simple majority that is constitutionally required to adopt parliamentary resolutions, but fewer than the absolute majority required by the applicable Senate’s Standing Order and by law on the Statute of Deputies and Senators. In this instance, no legal act was adopted by the Senate; the request was considered rejected.
In its Decision no.259/2015 the Constitutional Court held that the omission of the Senate and of Parliament to set the law and the Senate’s Standing Order (SO) in accordance with the Constitution and with the Court’s previous jurisprudence did not create a legal conflict of a constitutional nature between the Prosecutor’s Office and the Parliament. More precisely, even if the Court had previously found that the Senate’s SO requires an absolute majority to adopt resolutions for which the Constitution only requires a relative majority, the Court estimated there was no obligation for the Senate to revise its SO because those specific provisions had not been found unconstitutional. Also, because previous decisions of the Court only concerned the criminal responsibility of government members and excluded senators, the Senate could not be held responsible for not having set other SO articles in accordance with the Constitution. Therefore, the Court removed any possibility that the Constitution would directly apply in this particular case.
However, in Decision no.261/2015, under the same facts as Decision no.259/2015, the Constitutional Court found that there had been a constitutional conflict between the Senate and the Prosecutor’s Office. This case focused on the Senate’s failure to adopt an actual resolution. The Senators’ vote, which only received a simple majority, did not reach the requisite absolute majority threshold. The Constitutional Court thus considered the Senate’s refusal to draft and publish the resolution adopted with the constitutionally required majority to represent a breach of a constitutional obligation.
Five days after the vote that did not lead to a resolution, the Senate amended its SO to require only a simple majority to adopt all kinds of parliamentary resolutions. In Decision no.260/2015, the Constitutional Court was therefore compelled to reject, as having become inadmissible, a request regarding the article from the Senate’s SO that required an absolute majority for the resolutions lifting parliamentary immunity of senators, since the contested provision was brought in accordance with the Constitution between the request and judicial decision.
A month and a half later, as a logical consequence of Decision no.261/2015, the Senate drafted a resolution in which it stated that, at the time the votes were cast, the necessary, absolute majority had not been met.
At the same time, the Parliament amended the status of parliamentarians law. The legislature added the simple majority requirement for parliamentary immunity, arrest or pre-trial detention of deputies and senators resolutions.
In the Decision no.341/2015, the Constitutional Court held that the resolution drafted by the Senate gave the vote a different meaning than the one provided by the Constitution. Because a simple majority is required by the Constitution, and that threshold had been met, the resolution should have approved the pre-trial detention of the senator and the Constitution should have been applied directly. Without being embarrassed that in a previous decision the Court had refused the direct application of the Constitution, the Constitutional Court invalidated the resolution on grounds of adoption for its unconstitutional provisions of the law and of the SO.
In a revival of the same case, the Senate repeated the decision-making process on the initial request of the Minister of Justice, and concluded that it must be rejected. In the Decision no.499/2015, the Constitutional Court rejected as inadmissible the parliamentary opposition’s request to invalidate this new parliamentary resolution. Without considering the fact that it was a repetitive vote in the same request of pre-trial detention of a Senator, the Court affirmed that the simple majority had not been met in the latter case; therefore, the rejection was considered to conform with formal Constitution and new Senate SO requirements. Considering that the new vote in the Senate was a way of applying its previous Decision no.341/2015, the Court believed that all parties agreed with the general compulsory character of its case law.
Finally, the immunity of the Senator in question has been lifted, and he was brought to justice, albeit in a different corruption case.
A shorter story concerned lifting the immunity of the (former) Prime Minister, who was also a Chamber of Deputies member. In the Decision no.548/2015, the Constitutional Court stated that lifting parliamentary immunity belongs to the plenum of the respective Chamber, regardless of the contrary opinion of the parliamentary committee examining the issue. The draft parliamentary resolution, made by the permanent committee of the Chamber of Deputies, does not create an obligation for the plenum of the Chamber, which must take its decision by a secret vote. Moreover, the Chamber of Deputies’ Standing Order confirms this interpretation, which justified the Constitutional Court’s rejection of the complaint.
Part II: Fair Trial and Access to Justice
Romania undertook a vast revision to its basic codes. The new Civil Code and the Code of Civil Procedure came into force October 1, 2011, and February 15, 2013, respectively, while the new Criminal Code and the new Code of Criminal Procedure both came into force on February 1, 2014. The Constitutional Court has constantly sifted through these statutes over the past few years, particularly with regard to the right to a fair trial and access to justice. In 2015, the Court has placed stronger emphasis on criminal proceedings.
1. Fair Trial in Criminal Proceedings
The new legislation in criminal matters is the fruit of an innovative policy, which methodically accelerates criminal proceedings by reinforcing the role of prosecutors through plea bargain. At the same time, the law fully respects the procedural guarantees for victims and other participants to criminal trials. However, in 2015, many provisions of the new Criminal Procedure code were declared unconstitutional, especially with regard to free access to justice and guarantees of a fair trial.
The guilty plea of the defendant would prohibit other parties involved in the trial, excluding the prosecutor, from being present when the judge confirms the plea and from appealing the decision. The Constitutional Court found that such a provision is contrary to the principle of free access to justice. Further, this violated the right to defense and the principle of legality generally (Decision no.235/2015). Another provision, which allowed for complaints against the duration of criminal proceedings to be decided in chamber without calling the parties, was declared unconstitutional on the same grounds (Decision no.423/2015). The admissibility of extraordinary appeals provided by the new Code of Criminal Procedure was declared unconstitutional on the same grounds. Thus, the Court basically held that all participants must receive all guarantees of a fair criminal trial during its whole duration, even at the expense of the proceedings’s duration .
The Constitutional Court also reconfigured the procedure of “preliminary chamber,” which was transformed from a fast procedure into a mini-trial that takes place before the actual trial. This caused further delays and undermined one of the main goals of the reform: to accelerate proceedings. In Decision no.166/2015, the Constitutional Court created the obligation for the preliminary chamber judge to organize an oral and contradictory hearing to comply with guaranteed fair trial protections. In Decision no.631/2015, the constitutional judge created the obligation for the preliminary chamber judge to decide whether the evidence administered in the preliminary phase conformed with the law, which must occur in the presence of the parties and the prosecutor. Also, in Decision no.496/2015 the constitutional judge made it compulsory to call the prosecutor and the suspect into the prosecution re-opening proceedings. Finally, in Decision no.552/2015, the Constitutional Court decided that the preliminary chamber judge could not hears the merits in the same case.
During the trial, if evidence administered during prosecution was not contested by either party, prohibiting the prosecutor from participating in the trial was held to be contrary to the principle of contradictory hearings (Decision no.76/2015). Also, in order to comply with the fair trial guarantees, the prosecutor must present the request for prolonging the pre-trial detention at least 5 days prior to the expiration of the court’s previously approved duration (Decision no.336/2015).
Home arrest, a measure introduced by the new Code of Criminal Procedure, was declared unconstitutional because its maximum duration was not expressed (Decision no.361/2015). Moreover, its actual duration could not be deduced from the total duration of deprivation of liberty (Decision no.740/2015).
The Constitutional Court found that the safety measure of the extended confiscation, which was introduced by the new Criminal Code, could not be applied retroactively to property acquired before its promulgation, even if the offenses were actually committed after this date (Decision no.11/2015).
Finally, the Court found the law on the execution of penalties discriminatory since it allows private visits only for persons convicted to imprisonment, and not for persons in pre-trial detention, (Decision no. 222/2015). As a consequence, prisons must implement special spaces for these visits and police stations must create them for pre-trial detention.
2. Fair Trial and Access to Justice in Civil Procedures
Decision no.895/2015 focused on the fair trial guarantees for executing judgments. The Court ruled that the bailiff—a private officer authorized to enforce judicial decisions—does not have the competence to decide the start of a forced execution. This enforcement procedure, the court reasoned, must be initiated by a court decision. Although bailiffs perform a public service, they only represent the creditor’s relationship with the debtor. Moreover, they have neither imperium (i.e. the power to give a decision that can justify the start of the forced execution) nor the independence and impartiality that is specific to courts. In this respect, the Constitutional Court made reference to European Court of Human Rights case law by requiring a “tribunal” to ensure a fair trial. Therefore, the article of the Code of Civil Procedure empowering bailiffs to start the enforcement procedure was declared contrary to the constitutional protection of free access to justice. Moreover, the Court stressed that the legislature, in adopting this text, did not respect a previous decision of the Constitutional Court (no. 458/2009) in which the Court developed the same arguments.
The Court imposed access to justice and the principle of equality in Decision no.485/2015, by stating that the requisite balance between the two interests at stake—individual access to justice of legal persons and the good administration of justice—was infringed because the challenged law qualified the access to justice with the obligation to hire a legal adviser. The Court believed this irreparably affected the interest of the persons who wishes to use justice as a remedy to their legitimate rights and interests. Requiring a hired or appointed legal counsel, or requiring contracted legal assistance as an admissibility requirement for an appeal, the court reasoned, puts an excessive burden on the concerned legal persons. In addition, this requirement created supplementary costs, which contradicts the right to defense, a fair trial protection. Once again, the Court cited the European Court of Human Rights case law: in Tricard v. France (2001), the ECHR stated that the law that establishing the formalities required for a judicial remedy must not prevent its use. The Romanian Constitutional Court also stressed that, since natural persons can benefit from legal aid, legal persons must also benefit, under certain strict circumstances, only from discounts, installment payments or delays for payment of judicial taxes. Therefore, supplementary expenses caused by hiring legal services in order to appeal would hinder the access to justice of a legal person with a precarious economic situation. This legal requirement can, the Court reasoned, discourage the access to justice; therefore, it was declared unconstitutional.
The Court analyzed the decisions of the Superior Council of Magistracy (SCM) and the judicial remedies against them in Decision no.774/2015. The issue at stake was whether all decisions of the Superior Council of Magistracy could be challenged before a court of law, or only those issued as a disciplinary jurisdiction for magistrates. More precisely, the Court decided whether the SCM decision suspending a magistrate from office could be challenged before a court. According to the Constitution, SCM decisions are final, with exception to those referring to the disciplinary responsibility of judges and prosecutors, which may be appealed at the High Court of Cassation and Justice. Since SCM decisions referring to disciplinary issues can relate not only to the merits, but also to any other matters which precede them, the Court agreed that the constitutional text on the judicial review of such decisions comprises all kind of SCM decisions, including those pertaining to the suspension of magistrates (a provisional measure taken as regards judges and prosecutors subjected to disciplinary proceedings). Therefore, any contrary legal provision would be unconstitutional for denying free access to justice to the persons subjected to such proceedings.
Part III: Privacy and Cyber-Security
In the general context of global insecurity, the Parliament adopted a law on the criteria and proceedings to guarantee the security of the critical Romanian infrastructure in the cybernetic field. However, the law was challenged at the Constitutional Court before being promulgated and becoming inapplicable. The law established a National Centre for Cyber-Security, subordinated to an intelligence service, which collected all information on the status of security of cybernetic infrastructures without any distinction of nature or owner (public or private). The owners or administrators of such infrastructures had the obligation to provide to the Centre all data in their possession that concerned any security incident that could appear in relationship with the said infrastructure. In Decision no.17/2015, the Court invalidated the law entirely, mainly because it infringed the right to privacy. The Constitutional Court found that neither the concerned institutions, nor the provided actions, were submitted to a form of judicial review, despite that some activities could have a direct impact on the private life of individuals without actually safeguarding cyber-security in Romania. The Court considered the access of the administrative authorities to data stored by the private providers of IT services, without any judicial control, arbitrary, and thus contrary to the rule of law and the fundamental right to privacy.
Part IV: Social Rights
The insolvency of a company and its effects on its employees was the subject of Decision 64/2015, where the Court found that, in case of insolvency, the mere transfer of employees to another company as an alternative to the collective termination of contract without informing or consulting them is contrary to the social protection of work, a constitutionally protected right.
Another provision of the Labor Code, which allowed employers to suspend the contract of an employee suspected of illicit behavior, was declared unconstitutional. Since the law does not require an employer to make an objective and reasoned decision, the employer may act arbitrarily towards employees. In this case, the Court reconsidered its case law, in which it stated that such a provision would protect employers against the abuses of the employees, and argued that the right to work is a complex one that includes the freedom to choose one’s profession and workplace, as well as the minimum guarantees of stability in one’s chosen position (Decision 279/2015).
In the same vein, when examining the stability of work protection, especially for public officers, the Constitutional Court concluded that one of the important guarantees of the legal status of public officers has been overlooked in the process of successive reorganization of public institutions by legislative delegation, i.e. the possibility to offer a vacant position corresponding to one’s level of professional training, in the case of a dismissal that is not imputable to the officer in question. (Decision 351/2015).
Suggested Citation: Simina Elena Tănăsescu and Bianca Selejan-Guțan, Developments in Romanian Constitutional Law: The Year 2015 in Review, Int’l J. Const. L. Blog, July 27, 2016, at: http://www.iconnectblog.com/2016/07/developments-in-romanian-constitutional-law-the-year-2015-in-review
 There were 847 cases in 2014: https://www.ccr.ro/uploads/Statistica/2016/Sin_16_mai.pdf.
 There were 56 invalidations in 2015 but only 29 in 2014: https://www.ccr.ro/uploads/Statistica/2016/Sin_16_mai.pdf.
 Selected decisions of the Romanian Constitutional Court are available on the Codices, the website of the Venice Commission, at http://www.codices.coe.int/NXT/gateway.dll?f=templates&fn=default.htm
 See Bianca Selejan-Gutan, Special Report on Romania’s Presidential Election, Int’l J. Const. L. Blog, Dec. 3, 2014, available at: http://www.iconnectblog.com/2014/12/special-report-on-romanias-presidential-election
 Namely, statutes pertaining to the electoral system or campaign finance.
 Mayors are now elected from the first round of ballots and Presidents of County Councils are no longer directly elected by citizens, but rather indirectly elected by County Councilors.
 Romania reinstated proportional representation with blocked lists.
 Revision of final court decisions (Decision no.506/2015); Annulment of final court decisions (Decision no.542/2015); Cassation appeal (Decision no.591/2015).
 During preliminary chamber, a judge validates procedural acts accomplished by prosecutors during the preliminary phase of the trial (prosecution) and evidence that will be used during the trial.