Statistical data
• 3 decisions on the constitutionality of legislation prior to its
enactment
• 1 decision on the constitutionality of the rules of procedure of
the two houses of Parliament
• 36 decisions on objections alleging unconstitutionality
• 1 judgment on the supplementary regulatory act on the organisation
and functioning of the Constitu-tional Court of Romania.
Important decisions
Identification: ROM-95-1-001
a) Romania / b) Constitutional Court / c) / d) 04.01.1995 / e) 1 /
f) / g) Monitorul Oficial no. 66/11.04.1995/h).
Keywords of the systematic thesaurus:
Institutions - Courts - Organisation - Prosecutors / State counsel.
Fundamental rights - Civil and political rights -Procedural
safeguards - Fair trial - Scope.
Keywords of the alphabetical index: Civil procedure, guarantees.
Headnotes:
In that it limits State Counsel's right to take part in proceedings
solely to cases relating to "the defence of the rights and lawful interests
of minors and persons deprived of legal capacity and other cases provided
for by law", Section 45.1 of the Code of Civil Procedure is at variance
with the Constitution. This being the case, Article 130.1 of the Constitution,
whereby "in the judicial field State Counsel represents the general interests
of society and defends the rule of law and citizens' rights and freedoms"
is directly applicable in such matters.
The requirements of the Constitution are no less binding than directly
applicable provisions of a law or contract, even where constitutional law
makes reference to ordinary law. The legislator cannot exceed the constitutional
limits set in this way without adverse-ly affecting the very scope of the
provisions of the Basic Law.
Summary:
The Constitutional Court was asked to rule on the constitutionality
of Section 45 of the Code of Civil Procedure, which states:
'The public prosecutor may bring any action, other than those that are strictly personal, and participate at any stage in any proceedings, should this be necessary to protect the rights and legal interests of minors and persons subject to a guardianship order and in other cases provided for in law.The aforementioned article was found to conflict with the Constitution, since it limits the public prosecutor's participation in proceedings, whereas Article 130.1 of the Constitution provides that, in judicial proceedings, the public prosecutor shall protect the legal system and citizens' rights and freedoms.
In cases where the public prosecutor has brought the action, the holder of the disputed right shall participate in the proceedings and, where ap-propriate, have recourse to Articles 246 following and 271 following of the present code.
The public prosecutor may, in circumstances provided for in law, use available remedies and apply for decisions to be implemented."
Cross-references:
In decision no. 26 of 21 March 1995 {Monitorul Official no. 66/11.04.1995)
the Court dismissed an applicant's appeal.
Languages: Romanian, French (translation by the Court).
Identification: ROM-95-1-002
a) Romania / b) Constitutional Court / ñ) / d) 14.02.1995 / e) 19 /
f) / g) Monitorul Oficial no. 39/23.02.1995 / h).
Keywords of the systematic thesaurus:
Sources of constitutional law - Hierarchy - Hierar-chy as between national
sources - The Constitution and other sources of domestic law. Fundamental
rights - Civil and political rights -Equality - Scope of application -
Public burdens. Fundamental rights - Civil and political rights -Equality
- Affirmative action.
Keywords of the alphabetical index:
Legislation, interpretive / Parliament, members, al-lowances / Tax,
income.
Headnotes:
The introduction of income-tax exemptions based on an office held violates
the principle that all citizens are equal before the law and constitutes
an unfair alloca-tion of the tax burden in breach of Article 23.2 of the
Constitution. Allocation of the tax burden must be balanced and fair and
must not result in different taxes for different groups or categories of
citizens. Hence, tax exemptions allowed on part of the income of Members
of Parliament, on account of the duties involved in their office, result
in tax relief that cannot be justified by their status as members of the
lower or upper chambers of Parliament.
The Romanian Constitution neither expressly provides for, nor rejects,
the principle of interpretive legislation;
the Constitution simply precludes the notion of legisiation that interprets
the Constitution. It is universally recognised that interpretive legislation
shall not modify or supplement the legislation that it interprets but simply
clarify points rendered obscure by inadequate drafting and that it must
comply with the Constitution. In this context, whether a statute so deemed
by parliament really is interpretive legislation, rather than amending
existing legislation under the guise of interpretation, is irrelevant.
Summary:
Article 71 of the Constitution provides that deputies and senators
shall be paid a statutorily defined month-ly allowance. In so doing, the
constituent assembly wished to emphasise, through the very choice of the
term to describe parliamentarians' remuneration, that theirs was a public
law or authority-based relationship rather than a legal employment relationship
governed by the principles of the Labour Code. However, the fact that the
constituent assembly avoided using the term "salary" to describe parliamentarians'
remunera-tion does not eliminate all resemblance between their allowance
and other statutory financial entitlements on the one hand and a salary
on the other. As a result, while there are no special rules governing par-liamentarians'
liability to pay income tax, the ordinary rules will apply. In any case,
the special legislation providing for parliamentarians to receive monthly
allowances and other entitlements cannot be used to justify exceptions
to constitutional principles.
In this context, it should be noted that, bearing in mind the scale
used to calculate parliamentarians' monthly allowances and all the entitlements
provided for in Section 21 of Act no. 53/1991, the fact that session allowances
are non-taxable appears to be socially unjust, particularly since all the
other types of al-lowance paid to public sector workers are taxable.
Languages: Romanian, French (translation by the
Court).