Romania
Constitutional Court
Reference period:
1 January 1995 - 30 April 1995

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.
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."
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.
The public prosecutor's participation in civil proceed-ings does not affect the courts' power to decide cases brought before them, judicial independence or the fact that the courts are subject only to the law. The relevant constitutional provision does not consider the public prosecutor to be the advocate of one of the parties to the proceedings. His task is to ensure and supervise respect for the law, particularly in cases affecting citizens' interests. The provisions of Section 45.1 of the Code of Civil Procedure are therefore unconstitutional in that they restrict the public prosecutor's right to participate in all proceedings and at all stages of the proceedings. As a result, the provisions of Article 130.1 of the Constitution shall be directly applicable in these circumstances.

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).