I. At its sitting of 17 May 2023, as part of the a priori constitutional review, the Constitutional Court ruled as follows:
A. Unanimously, regarding points 1 and 2 [with reference to Article V of the Law amending and supplementing Law No 286/2009 on the Criminal Code], and by a majority vote, regarding the other provisions of point 2:
1. It upheld the objection of unconstitutionality raised by the High Court of Cassation and Justice and found the unconstitutionality of the phrase „of a decision delivered by the High Court of Cassation and Justice on points of law or for settling an appeal in the interest of the law” in Article III (1) [with reference to Article 3 (3)] of the Law amending and supplementing Law No 286/2009 on the Criminal Code.
2. It dismissed, as groundless, the objection of unconstitutionality and found that the provisions of Article I (3) [with reference to Article 297 (1)] and (4) [with reference to Article 298 (1)], as well as those of Article V of the Law amending and supplementing Law No 286/2009 on the Criminal Code were constitutional in relation to the pleas lodged.
In essence, the Constitutional Court ruled, with regard to the phrase „of a decision delivered by the High Court of Cassation and Justice on points of law or for settling an appeal in the interest of the law” in Article III (1) [with reference to Article 3 (3)] of the impugned law, that decriminalisation should be done by primary legislation. The legislator must not, under any circumstance, equate a decision of the High Court of Cassation and Justice, delivered on points of law or for settling an appeal in the interest of the law, with a law and, therefore, confer the effects of a decriminalisation law thereto. The Court noted that such a decision did not stem from a public authority responsible for issuing or removing legal norms and did not entail, in itself, any regulatory contribution whatsoever. Thus, the Court found the unconstitutionality of this phrase, as it was contrary to the provisions of Article 1 (4), Article 61 (1) and Article 126 (3) of the Constitution.
Similarly, with regard to the provisions of Article I (3) [with reference to Article 297 (1)] and (4) [with reference to Article 298 (1)], as well as to those of Article V of the impugned law, the Constitutional Court ruled that courts of law may correct, through interpretation – while considering the decisions of the Constitutional Court – any inconsistencies and incongruencies existing in the criminalisation legislation. Thus, even though the legislator did not set a certain pecuniary threshold for the damage or a certain level of intensity for the damages caused to the lawful interests of natural/legal persons in order to qualify a certain conduct as abuse of office or professional negligence, which, in the previous case-law of the Constitutional Court, did not lead to the adjudication of the unconstitutionality of the respective norm during the a posteriori constitutional review, the solutions of the courts of law – in line with the case-law of the Constitutional Court – are likely to maintain and strengthen the presumption of constitutionality of the respective text of law, which must harmoniously combine aspects of objective and subjective typicality of the criminal offence. Furthermore, the Court held that the use of the phrase “another legislative instrument which, on the date of its adoption, had a binding nature” in the above-mentioned incrimination norms did not violate the requirements related to the quality of the law, as the criminal offences of abuse of office or professional negligence refer to the conduct of public servants/officials by reference to primary legislation, having no importance whether or not this was adopted/issued prior to or after the 1991 Constitution, as long as it has become part of the current constitutional system.
B. Unanimously, after joining the three referrals filed by the High Court of Cassation and Justice, the Advocate of the People and 33 MPs belonging to the Alliance for the Union of the Romanians (A.U.R.), the Social Democratic Party (P.S.D.) and the Social Liberal Humanist Party (P.U.S.L.) and 23 unaffiliated Deputies,
1. It upheld the objections of unconstitutionality and found the unconstitutionality of the provisions of Article I (17) [with reference to Article 139^1 (2)] and of Article I (62) [with reference to Article 595 (1)^1 (b)] of the Law amending and supplementing Law No 135/2010 on the Criminal Procedure Code, as well as amending other normative acts.
2. It dismissed, as groundless, the objections of unconstitutionality and found that the Law amending and supplementing Law No 135/2010 on the Criminal Procedure Code, as well as amending other normative acts as a whole, as well as the provisions of Article I (1) [with reference to Article 9 (5)], of Article I (17) [with reference to Article 139 ind.1 (1)], of Article I (19) [with reference to Article 145 ind.1 (3)], of Article I (34) [with reference to Article 281 (4)], of Article I (38) [with reference to Articles 345 (1) ind.1 and (1) ind.2], of Article I (43) [with reference to Articles 374 (11) and (12)], of Article I (44) [with reference to Article 375 (3)], of Article I (45) [with reference to Article 377 (5)], of Article I (48) [with reference to Article 421 (1) point 2 a)] and of Article II (2) of the Law amending and supplementing Law No 135/2010 on the Criminal Procedure Code, as well as amending other normative acts, were constitutional in relation to the criticisms made.
In essence, as regards the solution to upheld the objection of unconstitutionality of the provisions of Article I (17) [with reference to Article 139 ind. 1 (2)] of the impugned law, the Court held that the legislator failed to fulfil its constitutional obligation, in the sense of agreeing the provisions declared unconstitutional by Decision No 55 of 4 February 2020 with the provisions of the Constitution, which is contrary to the provisions of Article 147 of the Fundamental Law. In that regard, the Court held that, according to the criticised norms, the body competent to verify the legality of the decision authorising the activities specific to the collection of information that involve the restriction of the exercise of certain fundamental human rights or freedoms, the mandate issued on that occasion, the means of proof and the evidentiary procedure by which they were obtained, is the judge of the preliminary chamber of the court which, according to law, has jurisdiction to hear the case at first instance, that is to say, a law court which is hierarchically inferior to that which authorised those activities. From this perspective, the Court found that the legislator did not regulate an effective review of the elements relating to the legality of the recordings – evidence in the criminal proceedings – resulting from the activities specific to the collection of information that involve the restriction of the exercise of certain fundamental human rights or freedoms, carried out in compliance with the legal provisions, authorised under Law No 51/1991, with consequences in terms of the respect for free access to justice and the right to a fair trial.
At the same time, the Court found that it was necessary for the legislator to regulate, in the Criminal Procedure Code, a form of a posteriori review in the case of the records resulting from the activities specific to the collection of information, which are communicated to the criminal prosecution bodies and which acquire the quality of evidence in the criminal file in which the indictment was not ordered, so that the person concerned by those activities, who did not acquire the status of party in that case, as well as the defendant against whom the waiver or close of the criminal proceedings was ordered, may challenge the legality of those records, as well as the elements relating to the legality of the means of evidence. The Court has also found that it was for the legislator to also regulate the procedure applicable to the preservation and/or destruction of such records.
As regards the solution to upheld the objection of unconstitutionality of the provisions of Article I (62) [with reference to Article 595 (1) ind.1 lit. b)] of the impugned law, the Court found that the legislator cannot in any way assimilate to a law the decision of the High Court of Cassation and Justice rendered in the determination of a point of law or in the settlement of an appeal in the interest of the law and thus attach to it the effects of a decriminalisation law. The Court held that such a decision does not come from a public authority acting in the sphere of generating or eliminating legal norms and does not provide any legislative input of its own. Therefore, the Court found that the provisions of Article I (62) [with reference to Article 595 (1) ind. 1 (b) of the Criminal Procedure Code] of the impugned law were unconstitutional, being contrary to the provisions of Article 1 (4), of Article 61 (1) and of Article 126 (3) of the Constitution.
C. It unanimously upheld the objection of unconstitutionality made by the President of Romania and found that the Law amending and supplementing Law No 45/2009 on the organisation and functioning of the Academy of Agricultural and Forestry Sciences “Gheorghe Ionescu-Şișești” and of the research-development system in the fields of agriculture, forestry and food industry was unconstitutional as a whole.
In essence, the Court held that the criticised legislative solution aimed at transmitting an area of land from the public domain of the State into the public domain of the administrative-territorial unit, without including the agreement of the administrative-territorial unit on the acquisition of the property in its patrimony, which, according to the case-law of the constitutional court, amounts to an infringement of Article 120 (1) of the Constitution on the principle of local autonomy.
At the same time, it was noted that the criticised normative act, in its formal aspect, represents a law, being adopted by the Parliament, but, in its material aspect, it contains an act of giving directions on a specific property in the public domain of the State, which does not detail the specific conditions of the interdomain transfer mechanism and does not establish guarantees in order to achieve the objective pursued – the construction of the Archbishopric Ensemble of the Archdiocese of Suceava and Rădăuţi. However, those conditions must be complied with, having regard to the importance of the area covered and the fact that the surface of land concerned is affected to a public utility – research-development-innovation in the agricultural field -, which is a national priority.
Bearing in mind that, according to the provisions of Article 136 (2) and (4) of the Constitution, public property benefits from a special protection regime designed to ensure its effective protection and guarantee, as well as the efficiency in its exploitation, it has been found that the transmission of the area of land from the public domain of the State into the public domain of the administrative-territorial unit, as regulated by the impugned law, does not find its basis in a precise and predictable regulation, which corresponds to the constitutional standard of protection of public property and which respects the constitutional obligation of the State to ensure the protection of national interests in the economic activity, stimulation of scientific research, exploitation of natural resources in accordance with the national interest, protection of the environment and maintenance of ecological balance, as enshrined in Article 135 (2) c), d) and e) of the Constitution.
It is, therefore, for the legislator to adopt coherent legislative solutions which ensure the effective guarantee and protection of public property of the State, with the aim of establishing appropriate conditions and guarantees in order to avoid its fragility.
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Decisions are final and generally binding.
The arguments retained as grounds for the solutions delivered by the Constitutional Court shall be presented in the decisions, to be published in the Official Gazette of Romania, Part I.
II. The Constitutional Court also postponed to 14 June 2023,
– the objection of unconstitutionality of the Law approving Government Emergency Ordinance No 89/2022 regarding the establishment, management and development of infrastructures and could IT services used by public authorities and institutions, raised by the High Court of Cassation and Justice;
– the objection of unconstitutionality of the Law amending Article 2 (4) of Government Emergency Ordinance No 155/2001 approving the management program for stray dogs.
External Relations, Press and Protocol Department of the Constitutional Court of the Constitutional Court