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"Constitutional incrimination" - How the Romanian Constitutional Court "criminalizes"
The paper analyses the relatively recent case law of the Romanian Constitutional Court on the question of imposing obligations on the legislature to criminalize certain behaviors. In a first phase, such rulings were made by means of simple decisions which reinstated criminal provisions by finding that the law which repealed them was unconstitutional. However, in the past few years, the Court went further and took a more proactive approach. So-called manipulative decisions have started to play a role in criminal law matters. For example, the Court has ruled that the legislature's omission to criminalize driving a tractor on a public road by an unlicensed person breaches the Constitution. The authors analyze the consequences of such decisions, as well as the need for specific criteria to determine what regulatory omissions can have "constitutional relevance". The paper focuses on finding means to determine when and how proper protection of constitutional rights and principles cand only be achieved by means of criminal law and not, for example, by means of administrative sanctions or civil liability.
Key words: Romanian Constitutional Court, manipulative decisions, criminalization, challenges as to the unconstitutionally of laws
Trandafir, A. R., Ioan, G.C.: “Constitutional incrimination” – How the Romanian Constitutional Court “criminalizes”. Právny obzor, 107, 2024, special issue, pp. 33-51.
https://doi.org/10.31577/pravnyobzor.specialissue.2024.03
Introduction - what are manipulative decisions?
The Romanian Constitution, adopted in 1991, revised in 2003, establishes the Constitutional Court as the role of "guarantor for the supremacy of the Constitution"
1)
.To properly fulfil this role, the Constitution established the Court as an institution that is not part of any branch of Government. As such (amongst other functions
2)
), the Court's most used, and probably most consequential, power is to ensure that legislation passed by the Parliament does not violate constitutional regulations.The vast majority of the Constitutional Court's rulings are based on the power prescribed by art. 146 let. (d) of the Constitution, according to which the Court decides on challenges to the unconstitutionality of laws and ordinances, brought up before courts of law or commercial arbitration
3)
.However, the decisions by means of which the Court rules on challenges to the unconstitutionality of laws and ordinances have gained, based on the Court's own case law, several forms. In the beginning, the Court exercised its powers with restraint, by only establishing that the challenged laws and ordinances violated the Constitution in their whole or in part. However, as the legal issues the Court faced kept evolving, its case law also evolved, creating two new categories of decisions: the so-called interpretative decisions and manipulative decisions.
According to Decision no. 358 of the 26th of may 2022
4)
, one of the most disputed in the past years (since it directly affected the statute of limitations of almost all crimes): "
In the specialized literature, decisions rendered by the Constitutional Court were divided into two categories, namely simple decisions and intermediate decisions, the latter category including interpretative and manipulative decisions. The simple decisions, also called "extreme decisions", were qualified as those decisions finding, as the case may be, the constitutionality or unconstitutionality of the legal provision under criticism. As regards the category of intermediate decisions, it was specified that this consisted of interpretative decisions (those decisions in the operative part of which the phrases "in so far as", "if and under the conditions that" are found) and manipulative decisions (those decisions which are more than interpretative decisions, as they aim to transform the meaning of the law so as not to leave a "legal vacuum" with "harmful consequences")
".However, in the next paragraph of the same decision, the Court did not reference manipulative decisions when addressing the type of decisions it passes, only mentioning simple decisions and interpretative decisions: "
In this context, the Court notes that both case law and specialized literature have held that the determination of the effects of decisions of the Constitutional Court is inextricably linked to the determination of the nature/typology of the respective decision. In other words, it has been considered that establishing that a decision is simple/extreme or interpretative/with reserve of interpretation also reveals the answer to the question whether it is necessary/obligatory for the legislature to intervene to bring those provisions found to be unconstitutional in line with the Constitution, in the sense of what the Constitutional Court has found. Thus, it has been held that, as a rule, the establishment of the nature of a simple/extreme decision determines the need/obligation of the legislature to intervene in the legislative process, whereas the attribution of the nature of an interpretative decision/with reservation of interpretation does not give rise to such an obligation, but rather determines an obligation for the judicial bodies (and other bodies called upon to apply the law) to interpret the Court's decision and to determine its effects in order to apply it to the concrete case.
".It is thus important to note that, although the Court referenced specialized literature which mentioned manipulative decisions,
5)
in the next paragraph it partly invalidated the cited opinion. In this sense, the first paragraph regards manipulative decisions as "
intermediate
" type of decisions, different from simple/extreme decisions. However, the second paragraph uses a different criterion for defining a decision as simple or interpretative, namely the need or obligation of the legislature to intervene in the legislative process once the decision of the Constitutional Court was issued. Given that manipulative decisions aim to transform the meaning of the law so as not to leave a "
legal vacuum
" with "
harmful consequences
", for them to be effective, in criminal at law at least, the legislature must intervene, by adopting new laws to align the legislation with the Court's ruling. Based on this criterion, it seems that so-called manipulative decisions are more similar to (if not a subcategory of) simple or extreme decisions, where the Court doesn't find what the legislation prescribes as being unconstitutional. Rather, it finds that what it
doesn't
prescribe, or, in other terms, what the legislation
lacks
, makes it unconstitutional. Seen this way, it becomes clear that manipulative decisions create an obligation for the legislature to enact modifications to address the legal vacuum that, according to the Court, deems said piece of legislation as unconstitutional.Regardless of these classifications, what is clear is that the Court does, on occasions, find that certain legislation is unconstitutional based on what the law lacks. Thus, the Court granted upon itself the power to impose an obligation on the legislature to enact laws on aspects the legislative branch of Government did no see fit to address. Generally, when the Court does so, it usually phrases its findings in the sense that a certain "legislative solution" is unconstitutional.
As far as criminal procedure goes, the Court has done so on several occasions, for instance:
-
Decision no. 24 of January 20, 2016
6)
, which established that the legislative solution contained in Art. 250 para. (6) of the Code of Criminal Procedure which does not also allow challenging the taking of the precautionary measure by the pre-trial chamber judge or by the court is unconstitutional;-
Decision no. 244 of April 6, 2017
7)
, which held that the legislative solution contained in the provisions of Art. 145 of the Code of Criminal Procedure, which does not allow challenging the legality of the technical surveillance measure by the person subject to it, who is not a formally accused, is unconstitutional;-
Decision no 321 of 9 may 2017
8)
, which established that the provisions of Arts. 21 and 24 of law no 304/2004 on Judicial organization compared to those of Art. 29 para. (5) second sentence of law no. 47/1992 on the organization and Functioning of the Constitutional Court are constitutional insofar as they do not exclude the possibility of lodging an appeal against the court decision rejecting the application to the Constitutional Court handed down by a last instance tribunal;-
Decision no 354 of may 22, 2018
9)
, which established that the legislative solution contained in Art. 2523 para. (3), final sentence of the Code of Criminal Procedure, which does not allow, during the trial, to challenge the court's decision to seize movable property, is unconstitutional;-
Decision no. 421 of June 23, 2020
10)
, which established that the legislative solution contained in the provisions of Art. 1461 of the Code of Criminal Procedure, which does not allow challenging the legality of the measure relating to the obtaining of data on a person's financial transactions by the person targeted by the measure, who is not a defendant, is unconstitutional.The effects of decisions passed in the field of criminal procedure have not been particularly controversial, since the judiciary tended to simply fulfill, by practical means, the "legislative vacuum" the Court deemed as unconstitutional. As such, for example, national courts simply recognized the admissibility of challenges that the law did not prescribe, but the Constitutional Court established must be taken into consideration, in order not to violate constitutional rights.
However, from the perspective of substantial criminal law, these types of decisions raise some issues regarding the way the judiciary has to apply the Court's reasoning.
These issues stem from the fact that, generally, interpretative decisions, which are quite common in the field of criminal law, tend to limit the applicability of the law, thus narrowing the sphere of concrete behaviors which can be labelled as a crime. Consequently, they don't generally raise issues concerning the principle of legality of criminal liability (
nullum crimen sine lege, nulla poena sine lege
). Manipulative decisions, on the other hand, have the opposite effect, since they tend to extend this sphere, and mandate that the legislature criminalizes certain acts. in this sense, while interpretative decisions start from the language used by the legislature and limit the meanings of one or more terms or concepts, manipulative decisions are not based on the content of the law itself but tend to supplement what the legislature already prescribed.It is important to note, in this context, that both art. 23 par. (12) of the Constitution
11)
and art. 20 of the Constitution taken in conjunction with art. 7 of the ECHR
12)
enshrine the
nullum crimen sine lege, nulla poena sine lege
principle as a fundamental, constitutionally ranked human right, on which all criminal law as a field of study and practice is based. Furthermore, art. 73 of the Constitution establishes that criminal offences, penalties, and the execution thereof shall be regulated by organic law (and emergency ordinances, according to art. 115 par. (4), (6) of the Constitution).As such, the Court's interventions must be seen through the frame of the principles mentioned above. However, in its previous case-law, the Court has created a framework in which its decisions are granted direct applicability in criminal matters. in this sense, in Decision no. 651 of the 20th of December 2018
13)
, the Court found that "
the legislative solution contained in Art. 4 of the Criminal Code
(application of the law which decriminalizes),
which does not assimilate the effects of a decision of the Constitutional Court finding the unconstitutionality of a criminal provision with those of a criminal law decriminalizing it, is unconstitutional
". In order to assimilate its decisions to organic laws in the sense of art. 73 of the Constitution, the Court held that "
As regards the concept of law, the Court, by Decision no. 146 of March 25, 2004, published in the Official Gazette of Romania, Part I, no. 416 of May 10, 2004, held that it has several meanings depending on the distinction between the formal or organic criterion and the material one. According to the first criterion, the law is characterized as an act of the legislative authority, identified by the body called upon to adopt it and by the procedure to be followed for that purpose. This conclusion follows from a conjunction of the provisions of Art. 61 para. (1), second sentence, of the Constitution, according to which "Parliament is [...] the sole legislative authority of the country", with the provisions of Arts. 76, 77 and 78, according to which the law adopted by Parliament is subject to promulgation by the President of Romania and enters into force three days after its publication in the Official Gazette of Romania, Part I, unless its content provides for another later date. The second criterion, the substantive one, considers the content of the regulation, i.e. The nature of the social relations regulated
[...]
Furthermore, the Court holds that only a law adopted by Parliament under Art. 73 para. (3) (h) of the Constitution, according to which "An organic law shall regulate: [...] h)
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