Editor’s Note: Today we publish the 2016 Report on Romanian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Simina Elena Tănăsescu, Ph.D., Professor at the University of Bucharest, and Bianca Selejan-Guțan, Ph.D., Professor at the University of Sibiu
In 2016, as well as in the last 15 years, the Romanian Constitutional Court’s case law remained at the core of the constitutional debate, especially as regards the enforcement of fundamental rights, but also the relationship between state powers. With a technocratic Government in place and political parties busy to reposition themselves on the political scene for the local elections in June and parliamentary ones in December, the year 2016 was quite paradoxical. Main controversies did not concern elections or parties, and the Romanian Constitutional Court (hereinafter RCC) continued to constitutionalize large portions of political life mainly by moralizing public officials and authorities.
II. The Constitution and the Court
The Romanian post-communist Constitution was adopted after the fall of the totalitarian regime in December 1989. The Constitution was approved by referendum in December 1991 and has been amended once, in 2003. Its text expresses the commitment of Romania to the principles of the rule of law, separation of powers, democracy, respect for fundamental rights and freedoms, and a market economy. Ever since 1991, the country has struggled to give life to these principles. In 1993, Romania became a member of the Council of Europe, in 1994 the Parliament ratified the European Convention on Human Rights, and since 2007 it has been a member state of the European Union. Romania’s membership in the EU has been finalized under a supervisory process—the Cooperation and Verification Mechanism, which initially targeted aspects pertaining to EU acquis together with problems related to the independence of the judiciary and currently addressed only these last ones, especially the irreversibility of anti-corruption policies. If in the field of independence of justice progress has been fast and notable, the fight against corruption, particularly against high-level corruption, remains a sensitive issue.
The Romanian constitutional system is semi-presidential, largely inspired by the French one, albeit with significant differences. The republican form of government, although introduced by the communist totalitarian power in 1947, has been maintained by the current Constitution and included among the unamendable provisions. The President of the Republic, although directly elected by the people, has more limited powers than their French counterpart. The design of the presidential institution was a result of reminiscent fears from the communist past, when one person came to impersonate the whole power at political and state levels, becoming a dictator. Therefore, although the people gained their right to elect the President, the latter should see their powers balanced by a relatively strong Parliament.
The Romanian Parliament is bicameral, with both Chambers—Chamber of Deputies and Senate—directly elected by the people. The Prime-Minister, who is nominated by the President and appointed by the Parliament in a “vote of confidence,” leads the Government. The Constitution details the relationship between Parliament and Government in a separate chapter, including the power of the Parliament to dismiss the Government by adopting a motion of censure. The Government, at its turn, can engage its responsibility before the Parliament and can adopt delegated legislation (ordinances and emergency ordinances). The constitutional design of the legislative delegation and its actual use and misuse in practice have been some of the most sensitive issues in the last 25 years. This is also one of the most controversial “chapters” in the case law of the RCC.
The 1991 Constitution introduced as a novelty in the Romanian constitutional design the Constitutional Court. The Court is a reflection of the Kelsenian model of constitutional review in Romania, although the country has known, between 1911 and 1947, a judicial review based on the American model. The Constitutional Court is especially important for its role in the constitutionalization of the legal system, with a mostly positive role over the years. The powers of the Court include judicial review (ex ante and ex post, via the referral or “exception” of unconstitutionality) of primary legislation (laws and Government ordinances), review of Parliament’s Standing Orders and other parliamentary resolutions, of international treaties and constitutional amendment draft laws. The Court can also rule on elections, constitutional-legal conflicts between authorities and the constitutionality of political parties.
The Constitutional Court is independent from the judiciary (which has as apex court the High Court of Cassation and Justice) and from the other state powers. It is composed of nine judges, six of which are designated by the Parliament (three by each Chamber) and three by the President of Romania.
The semi-political nature of the Court, given by the political appointment of judges, as well as some of its powers, has been a factor of politicization of its case law. However, the Court is seen as an important guarantee of the rule of law in the Romanian constitutional system.
III. Main Controversies in the Year 2016
Notwithstanding local and parliamentary elections held in June and in December 2016 respectively, main controversies and societal debates in Romania focused rather on issues pertaining to the identity of the Constitution and the threshold between moral and legal norms. Thus, the issue of same-sex marriage stirred passions among NGOs and constitutional judges alike while the legal regime of criminal repression and incompatibilities of both civil servants and elected dignitaries provided a large share of the case law of the Constitutional Court.
Mixing arguments related to an originalist interpretation of the Constitution, constitutional identity of Romania and religion, the “Coalition for the Family” (an NGO) decided to start a popular initiative meant to revise the Constitution in order to replace the phrase The family is founded on the freely consented marriage of the spouses in Article 48 with The family is founded on the freely consented marriage of a man and a woman. It is not clear to what extent the 2,6 million Romanians who signed the initiative all through the spring and summer of 2016 were aware of the European and international context framing the issue of same-sex marriage, with some countries legalizing it (Belgium, France), others accepting it via judicial review (USA, Taiwan) and others still rejecting such a possibility (Croatia). The fact remains that they largely exceeded the threshold required by Article 150 of the Constitution, according to which a revision can be initiated by at least 500.000 citizens having the right to vote. The procedure for the revision of the Constitution requires that the RCC perform an ex officio control of any such initiative. In its Decision n°580/2016, the Court noted that the initiative only refers to the legal institution of marriage, as regulated by Article 48, and not to the family life, which is protected by Article 26 of the Constitution. Therefore, it argued that the initiative does not suppress the right to marriage, nor does it diminish its guarantees, while leaving intact the respect of the private, intimate and family life, thus not contradicting the “eternity clause” (Article 152) of the Romanian Constitution which entrenches inter alia the fundamental rights and freedoms of citizens and their safeguards. Amid contestation from a large part of the population, which believes that the concept of family is larger than marriage between a man and a woman, this popular initiative for the revision of the Constitution has been used in electoral campaigns both for local and parliamentary elections. Indeed, none of the political parties dared to risk a confrontation with Christian churches present in Romania (orthodox, Catholic and protestant), although some of their members or even leaders did voice concern or invoke tolerance. As a result, a vote in Parliament and, eventually, a referendum to in/validate the revision of the Constitution are expected during the first half of 2017.
But same-sex marriage is an issue for Romanian society also when its legally binding value has to be merely recognized in Romania. Thus, in November 2016 the RCC addressed from the European Court of Justice (ECJ) a preliminary question pertaining to the free circulation of persons, as regulated through Directive 2004/38/EC, in relation with a same-sex third country national spouse. This was the first time that the Romanian constitutional judge entered a direct dialogue with the ECJ but, in fact, it provided the constitutional judge with a possibility to delay its decision in a case that dealt with the recognition in Romania of a homosexual marriage legally contracted abroad. Moreover, the RCC resolved to this procedural artifice only in extremis, after not being able to reach a decision in 12 months of deliberation, the case being put back on roll twice. The preliminary question shows that the RCC is aware of the case law of the ECJ in Maruko, Römer or Parris, where the ECJ declared that “as European Union law stands at present, legislation on the marital status of persons falls within the competence of the Member States”, and in Carpenter and Metock, where the ECJ held that there is a right for citizens of the European Union to be joined or accompanied by family members, even if they are third-country nationals, irrespective of where they are coming from and irrespective of the legality of their previous residence in another Member State. However, the RCC hopes it will not have to bear alone the full responsibility whatever the outcome of the case in front of it might be. Clearly, this is a test case not only for the RCC but also for the Romanian Constitution and society at large, not only due to the way in which it relates to basic values engrained in the fundamental law, such as pluralism and tolerance, but also because of the deep societal division is has induced.
As for the criminal repression and the immunity of public officers, continuing the trend noticed in 2015 particularly with regard to members of Parliament, in 2016 the issue enlarged to civil servants, locally elected dignitaries and notaries. Thus, the RCC had to admit that the situation of MPs is different from that of locally elected dignitaries as far as incompatibilities are concerned: while MPs cannot be held administratively responsible for incompatibilities because they enjoy parliamentary immunity (Decision n°132/2016), locally elected people see their mandate terminated upon the notification of their incompatibility (Decisions n°175/2016, n°544/2016). However, when it comes to the criminal repression of misdeeds, the RCC made no difference between locally elected dignitaries (Decision n°66/2016, n°536/2016), civil servants (Decision n°188/2016) and even notaries (Decision n°582/2016): they all see their mandate or labor relationship terminated whenever they are convicted to a criminal sentence, irrespective of whether they actually go to prison or they are under judicial control. In fact, the case law of the RCC is quite nuanced because it has to take into account a variety of particular cases. For instance, when both MPs and locally elected people are convicted and put under judicial control, the complementary sanction of banning them from continuing to exercise the professional activity which made possible the criminal conduct cannot be enforced in the same way for MPs and for those locally elected (Decision n°336/2016). Or, vice-mayors are in a different situation then local councilors with regard to incompatibilities with specific commercial activities (Decision n°13/2016). Overall, in 2016, it seems that the RCC started a vast operation of moralizing public officials and imposing higher standards of behavior in public offices, to the great satisfaction of large portions of the population. Under these circumstances, it is even more difficult to understand how it was possible that the mayor of Baia Mare, an important city in the northwest of Romania, to be elected despite the fact that he was under the suspicion of criminal deeds and in the custody of police during the very day of local elections. In fact, once the results of the elections were announced, he was accompanied to the city hall to take the oath and then taken back again in the custody of the police, only to be suspended from office and later released under house arrest.
IV. Case Law
A. Relations between Public Authorities
2016 was the year of “the technocratic Government” in Romania. Following the fire that caused the death of 64 people in a nightclub called “Colectiv” in November 2015, mass demonstrations forced the resignation of the executive then in power amid revelations of vast corruption in various public sectors. The entire political class reached a consensus that a technocratic Government should be installed for one year to give political parties the necessary respite to organize and position themselves in view of local and parliamentary elections regularly scheduled in 2016. Under these circumstances, the case law of the CCR displayed two main tendencies with regard to the interaction between public authorities; namely, to preserve and even enhance the discretionary powers of Parliament and to dribble issues pertaining to a balanced budget as required by the European “fiscal compact” ratified by Romania in 2013.
Thus, the Constitutional Court rejected any attempts to limit the legislative powers of Parliament, such as establishing the legal regime of policemen through administrative orders of the Minister of Internal Affairs (Decision n°244/2016) or establishing the legal regime of employees of the national system of penitentiaries through administrative orders of the Minister of Justice (Decision n°803/2016). Also, criminalizing conducts is the privilege of the legislative power, so when investigating the crime of abuse in public office, prosecutors can only refer to laws and delegated legislation and not to other kind of normative acts (Decision n°405/2016).
The Constitutional Court declared Parliament the supreme locus of democracy also in relation to attempts made by the technocratic Government to limit its appetite towards expenditure based on the obligations assumed by Romania under the European “Fiscal compact,” particularly during an electoral year. Towards the end of 2016, it became clear that the RCC does not consider the balanced budget rule as bearing constitutional standing or relevance. Therefore, on rare occasions (Decisions n°22/2016, n°593/2016 and n°764/2016), the Court ruled that Parliament is obliged to request information from Government whenever a legislative initiative implies changes in the national budget in accordance with Article 111 of the Romanian Constitution and not because this could have an impact on the balanced budget as assumed by Romania through the ratification of the Fiscal Compact. However, in all other cases (Decisions n°593/2016, n°620/2016, n°765/2016, n°767/2016, n°795/2016), the Court declared that the obligation to make sure that incomes do match expenditures belongs with Government, and the Parliament would see its decisional powers limited were it obliged to observe such restrictions or to respect the requests coming from the Executive. While prima facie this may look as if the RCC is granting higher constitutional protection to the political rather than technocratic authority, it may also be an expression of a certain disregard for the international obligations assumed by Romania, particularly within the European Union.
This is even more puzzling since it stands in contrast with another interesting feature of the RCC case law during 2016. The tendency started already before, but in 2016 there was a statistically high frequency of references made to guidelines and other reports or documents issued by the European Commission for Democracy through Law (better known as the Venice Commission as it meets in Venice), an advisory body of the Council of Europe on constitutional matters. Twenty-four decisions issued in 2016 mention various advisory documents of the Venice Commission; in the overwhelming majority of cases the argument being used is to reject the claim presented in front of the RCC. It is interesting to note that in 16 cases the Code of Good Practice in Electoral Matters has been used in order to reject all contestations regarding the law on local elections or local referendum (Decision n°361/2016) while the same has been true only once for parliamentary elections (Decision n°737/2016).
B. Fundamental Rights and Freedoms
Similar to 2015, in 2016, the Romanian Constitutional Court (RCC) had a rich case law regarding fundamental rights and freedoms. However, unlike in 2015, in 2016 the Court did not focus so much on the new Criminal Code (CC) and Code of Criminal Procedure (CCP). Some landmark decisions were adopted in this respect, especially as regards access to justice, but the overall number of decisions regarding the codes was significantly lower than in 2015. In all decisions presented below, the Constitutional Court made extensive use of the case law of the European Court of Human Rights.
1. Access to Justice, Principle of Equality
One of the recurring issues in the rights-based constitutional review practiced by the Romanian Constitutional Court is access to justice. The 2016 case law made no exception and a few decisions stand out on this issue. In Decision n°. 24/2016, the Court held that the exclusion from judicial review of the decision by which the preliminary chamber judge or any court order precautionary measures in a criminal case entail a violation of access to justice because the persons affected by the measures do not benefit from guarantees to defend their property rights. Therefore, the principle of access to justice is infringed.
The Court also considered the respect of the access to justice in administrative matters. Thus, Decision n° 34/2016 brought about the issue of administrative jurisdictions, which, according to the Constitution, are optional. The Court held in this case that a legal provision that made compulsory a procedural remedy in matters related to the material responsibility of military persons, a remedy that was decided by a special administrative jurisdiction, transformed the optional character of such jurisdictions into a binding one, which is contrary to Article 21 of the Constitution on access to justice.
The Constitutional Court ruled on access to justice using the principle of equality in Decision n° 540/2016. The impugned legal provision Article 434 (1).1 of the Code of Criminal Procedure excluded the judicial decisions given in appeal by the High Court of Cassation and Justice (Supreme Court of the land) from being challenged by an extraordinary way of appeal—the cassation appeal (recurs in casatie). This exception was considered by the Constitutional Court a discrimination based on the criterion of the court that rules on the appeal. Thus, both the accused and the other parties to the criminal trial (the prosecution and the parties to the civil action) are discriminated against by this special exception, the constitutional dispositions on access to justice and equality being infringed.
2. Right to Liberty and Security
In the matter of the right to liberty and security, the Constitutional Court was called to assess the constitutionality of some dispositions of the CCP on the preventive measure of subjecting the accused to legal constraints during a criminal trial (control judiciar). However, this time the Court did not declare the direct unconstitutionality of the challenged text, but ruled by an “interpretative” decision, Decision n° 614/2016. Thus, the Court stated that Article 2151 CCP is constitutional only if applied in line with the Code’s provisions that ensure the right to defense and to the complaint against the measure at the moment of extending the measure and not only at that moment.
3. Clarity and Predictability of the Law
One of the favorite themes of the Constitutional Court’s case law in 2016 was the assessment of clarity and predictability of legal provisions, especially in the field of criminal law. For example, in Decision n° 23/2016, the Court declared that the lack of clarity of a text from the Code of Criminal Procedure has the effect of infringing the constitutional principle of access to justice. Thus, the expression “absence of a legitimate interest” [emphasis added] that, according to Article 318 CCP, would justify the withdrawal of criminal pursuit in case of certain offenses, was ambiguous, as it was not expressly defined in the Code. Consequently, the text does not fulfill the requirements of clarity and predictability, imposed by the general principle of legality (Article 1 §3 of the Constitution) and by the case law of the European Court of Human Rights. This lack of clarity would entail that the prosecutor substitutes the courts because the decision to end the criminal pursuit is not judicially reviewable. Therefore, the Constitutional Court held that the legal provision that allows the withdrawal of criminal pursuit by the prosecution, without any review by a court, would equate with the exercise, by the prosecutor, of the jurisdiction that actually belongs to courts, infringing the constitutional text according to which “justice is achieved through the High Court of Cassation and Justice and through the other courts established by law” (Article 126).
The most famous decision in this category is by far Decision n° 405/2016. The decision concerned the Criminal Code, i.e. the criminal offense of “abuse of office”. The Court assessed the legal texts that incriminate this corruption offense through the lens of the standards of the European Court of Human Rights that are incorporated into Romanian law and also from the perspective of the constitutional provisions on the rule of law: equality and the right to a fair trial. Thus, the Court found that the Criminal Code text lacked clarity and predictability, as it provided that “abuse of office” to “defectively fulfill” by a public servant of his/her official duties. The expression “defectively fulfill” was considered too vague and the Court indicated that it should read “fulfills by infringing the law” for clarity. Moreover, the Court explained in detail the intended meaning of the term “law”, which was not defined in the challenged legal text: in order to engage the criminal responsibility, “law” must be understood in the narrow sense of “act of Parliament or delegated legislation (ordinances adopted by the Government)”. Therefore, in the Court’s view, an act infringing any other normative act than a piece of primary legislation should not be considered a criminal offense. While acknowledging that “the Parliament is free to decide the criminal law policy of the state” and that the Court itself “does not have the competence to engage in the field of law-making and of the criminal policy of the state”, the Constitutional Court held that this policy must be made according to the constitutional principles and values, among which is the predictability of the law. In the obiter dictum of the same decision, the Court made other clarifications regarding the notion of “criminal act” from the point of view of the offense of abuse of office. Despite all these arguments, the Court did not specifically declare the impugned legal text unconstitutional. It adopted an “interpretative decision” instead by saying that the referral of unconstitutionality is admitted (a verdict that usually applies for rulings of unconstitutionality), but the text is constitutional “as long as is interpreted” as imposed by the Court in the obiter dictum.
This report shows that in 2016, in the absence of political turmoil, the constitutional debate in Romania shifted to an identitarian discourse on the constitutional definition of the notion of “family”. At the same time, the lack of political battles between the parliamentary majority and the technocratic Government led to the absence of requests to solve constitutional conflicts and to the focus of the Court on the constitutionality of legislation and fundamental rights. The Court reiterated some of its previous jurisprudential developments of principle, especially as regards the quality of the laws: respect of the principle of bicameralism, clarity and predictability, and continued to make extensive references to European Human Rights law and soft law (ECtHR case law, documents of the Venice Commission).
 For a detailed insight, see Bianca Selejan-Guțan, The Constitution of Romania. A Contextual Analysis, Oxford, Hart Publishing, 2016.
 E.S.Tănăsescu, “The President of Romania or the slippery slope of a political regime”, European Constitutional Law Review n°1/2008, p. 64-97.
 Bianca Selejan-Guțan, op.cit., pp.172-181.
 See decisions n°246, n°286, n°287, n°288, n°289, n°290, n°292, n°354, n°355, n°356, n°357, n°358, n°359, n°360, and n°534 all of 2016.