Relevant provisions
Settlement of the exception of unconstitutionality, also called the a posteriori constitutional review is regulated by Article 146 d) of the Constitution and by Articles 29-33 of Law no.47/1992.
Within this type of review, the Court adjudicates both on exceptions of unconstitutionality of laws and ordinances or any provision thereof, in force, raised before courts of law or courts of commercial arbitration, and on exceptions of unconstitutionality raised directly by the Advocate of the People.
Authors of the referral
The exception of unconstitutionality may be raised:
– by the parties within the trial;
– ex officio, by the court of law or by the court of commercial arbitration;
– by the prosecutor, before the court of law, where he attends;
– directly by the Advocate of the People.
Subject matter of the exception
The subject matter of the exception of unconstitutionality must comply with the following mandatory conditions established in the organic law of the Constitutional Court [Article 29 (1) of Law no.47/1992)]:
– a law or an ordinance or a provision of a law or of an ordinance. Therefore, only legislative acts may constitute the subject matter of the constitutional review, and not also the administrative acts. The latter may be subject to legality review carried out by courts;
– the impugned law, ordinance or provision thereof must be in force. By Decision no.766/2011, the Constitutional Court found that the expression “in force” is constitutional insofar as interpreted in the meaning that there shall constitute subject to constitutional review also those laws, ordinances or provisions thereof that produce legal effects also after they came out of force;
– the impugned law, ordinance or provision thereof must be relevant in the settlement of the case in any phase of the trial and irrespective of the subject matter thereof. Obviously this requirement does not apply when the Advocate of the People raised the exception of unconstitutionality;
– the impugned law, ordinance or provision thereof mustn’t have already been declared unconstitutional by a previous decision of the Constitutional Court.
When the exception does not meet the above requirements, the court must reject, by means of a reasoned interlocutory judgement, the request for referral of the Constitutional Court. The interlocutory judgment is subject only to an appeal lodged to the superior court, within forty-eight hours from the pronouncement. The appeal shall be heard within three days.
The author of the exception of unconstitutionality cannot request, during debates in public hearing or by means of the written statements submitted to the case file, extension of the scope of the exception, because, pursuant to Article 29 (1) of Law no.47/1992, the Constitutional Court adjudicates only on the legal provisions mentioned in the interlocutory order of referral by which the Court is asked to decide on the exception of unconstitutionality, otherwise the referral is not legal.
Likewise, according to the Constitutional Court’s case-law, the author of the exception cannot invoke other grounds before the Constitutional Court, which have no connection with the grounds alleged in the referral and are not a development thereof, as this would mean raising an exception directly before the Court, eluding to the provisions of Article 29 of Law no.47/1992, which is inadmissible.
Referral to the Constitutional Court
Referral to the Constitutional Court is made by the court, through interlocutory order, or directly by the Advocate of the People, through a letter accompanied by the statement of reasons.
Referral to the Constitutional Court by the court before which was raised the exception of unconstitutionality shall be made by means of a separate interlocutory order, in original or in certified copy, which must include the views of the parties and the court’s opinion on the exception, and must be accompanied by the evidence submitted by the parties. The operative part of the interlocutory order should refer to the court decision on the referral to the Constitutional Court. [Article 29 (4) of Law no.47/1992, Article 1 of the Constitutional Court Ruling no. 3 of 9 February 2010, Article 1 of the Constitutional Court Ruling no. 26 of 16 December 2010].
If the exception was raised ex officio, the interlocutory order shall be motivated, including the parties’ arguments, as well as the necessary evidence.
Alongside with the interlocutory order, the referring court must also send to the Constitutional Court the full name of the litigant parties and other details comprising necessary data for the accomplishment of the summons proceedings in respect thereof.
The documents communicated in copy by the court before which the exception was raised must be certified by the latter by mentioning “according to the original” on each page. (Article 2 of the Constitutional Court Ruling no.3 of 9 February 2010).
Referral to the Court on exceptions of unconstitutionality raised directly by the Advocate of the People in terms of constitutionality of a law, ordinance or provision thereof, shall be made by letter accompanied by the statement of reasons relating to the exception of unconstitutionality, specifying the impugned provisions and the invoked constitutional grounds.
Procedure
On receiving the interlocutory order of reference, the President of the Constitutional Court shall designate the Judge-Rapporteur.
The act of referral of the Court shall be communicated to:
– the presidents of the two Chambers of Parliament,
– the Government
– and the Advocate of the People,
indicating the date by which they can submit their viewpoint. Government’s viewpoint shall bear the signature of the Prime Minister.
If the Constitutional Court is referred directly by the Advocate of the People, communication of the reference act for the purpose of obtaining viewpoints shall concern:
– the presidents of the two Chambers of Parliament,
– and the Government.
The Judge designated as rapporteur shall be bound to take the necessary measures for evidence to be given by the date of judgment.
Likewise, the Judge-Rapporteur shall verify whether requirements for referral have been met with and, if necessary, request additional pieces to complete the reference act, also setting a deadline for the referring court to respond.
If the Judge-Rapporteur or, at a later point, the Plenum so deems necessary, the referring court shall be requested to send the files of the original case in which the exception of unconstitutionality was raised, as well any other act, in certified copy, related to the case in which the exception of unconstitutionality was raised. [Article 47 (3) of the Regulations and Article 3 of the Constitutional Court Ruling no.3 of 9 February 2010].
The Judge-Rapporteur may solicit expert advice from individual persons or institutions, with prior approval by the President of the Constitutional Court.
The assistant-magistrate shall prepare the draft report.
The Judge-Rapporteur, having examined the draft report, the viewpoints and other information made available, or conclusions from Romanian and foreign case-law and/or literature, as well as other elements that appear to be necessary for the debate, shall prepare a written report on the case.
The time limit for filing in the report shall be, as a rule, no longer than 90 days from the date of registration of the reference act.
Judgment shall take place at the date established, on the basis of the deeds of the case, with due summoning of the parties and of the Public Ministry.
Preparation of draft summons and issuance of proceedings for calling appearance before the Constitutional Court shall be instantly carried out once the date of hearing has been fixed, in urgent cases, or on the next working day at the latest, in the other cases.
Notification of the parties can be made by summoning, as well as by other operative procedures, such as telephone, cable, fax, electronic mail or any other means of communication that ensures, as applicable, conveyance of wording contained in the act being communicated or in the notification of hearing date, as well as confirmation of receipt of the act concerned, respectively of the notification, where the parties have indicated necessary details for this purpose. If notification was made by telephone, the clerk shall prepare a report showing the means of such notification and subject matter.
The summons shall specifically mention that appearance before the Constitutional Court is not compulsory.
In the case of persons who have domicile or residence abroad, summons shall be in Romanian.
At least 10 days before the hearing session, the Assistant-Magistrate must verify the legality of accomplished summoning or communication procedure which is attached into the case file, and establish other necessary steps, as appropriate.
If procedural irregularities are found, the Assistant-Magistrate shall inform the President of the Constitutional Court.
The prosecutor’s attendance to the proceedings is mandatory.
The parties may be represented by lawyers having the right to plead before the High Court of Cassation and Justice, i.e. qualified lawyer with uninterrupted seniority in the profession for at least 5 years after passing the qualification exam.
Deliberation shall be in secret, and only the Judges who have also taken part in the debate proceedings and the Assistant-Magistrate assigned to the case are allowed to attend.
Only if the exception is admitted, the Court shall also pronounce upon the constitutionality of other provisions of the normative act being challenged, of which those mentioned in the case referral act cannot obviously and necessarily be dissociated.
Type of act issued
Within this power, the Court renders, pursuant to the provisions of Article 11 (1) A. d) of Law no.47/1992, a decision. The decision shall be taken by the majority vote of the Court’s judges.
Communication of the decision
The decisions of rejection of the exception of unconstitutionality shall be communicated to:
– the referring court or
– the Advocate of the People, as the case may be.
The decisions ascertaining the unconstitutionality of a law, an ordinance or a provision thereof shall be communicated to:
– the two Chambers of Parliament;
– the Government;
– the referring court; if on the day of communication of the decision of the Constitutional Court, the case is pending before another judicial body, the latter shall be forwarded the decision by the referring court;
– the involved public authorities.
Effects of the decision
Pursuant to Article 147 (1) c) of the Constitution, The provisions of the laws and ordinances in force, which are found to be unconstitutional, shall cease their legal effects within 45 days of the publication of the decision of the Constitutional Court if, in the meantime, the Parliament or the Government, as the case may be, cannot bring into line the unconstitutional provisions with the provisions of the Constitution. For this limited length of time the provisions found to be unconstitutional shall be suspended de jure.
All decisions rendered based on this area of jurisdiction, grouped per years, may be accessed here