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November 30, 2022

President of the Constitutional Court of Romania: Fundamental rights cannot be affected by an emergency ordinance, law is needed

The President of the Constitutional Court of Romania (CCR), Valer Dorneanu, told Thursday evening private television broadcaster Antena3, that the fundamental human rights cannot be affected by an emergency ordinance, and that the measures on the restriction of fundamental rights and freedoms to be valid, a law should have been drafted.

“The framework-law of the emergency ordinance – this article should have been followed by an organic law, regulating all the measures that the authorities must take – Parliament, Government. It did not happen. An emergency ordinance was issued, 1/99, which took place around the arrival of the miners, was, as some say, bungled, on the same day the ordinance was put together, the approvals were obtained, it was published in the Official Gazette. (…) Normally , in order to accomplish what the legislature did not do in ’99, to pass a bill as a whole, this emergency ordinance has been issued, which has this limitation, this prohibition provided for in Article 115 para. 6, you cannot affect fundamental rights, and then these effects had to be given by law,” said Dorneanu.

He specified that, by the decision of the CCR, it was Emergency Ordinance 34 that was declared unconstitutional, and not state of emergency.

He added that Article 93 of the Constitution gives the president the right to declare a state of emergency, which he did, but “This article, allow me to say it, not the Court, is slightly flawed. It says ‘declare a state of emergency.’ Is it a mere statement, or can the President take some measures?! It does not follow from Article 93, quite the opposite, it follows that the declaration of a state of emergency must be approved by Parliament, which must be convened and it follows that Parliament is the one to take some measures,” Dorneanu said.

The Constitutional Court of Romania decided on Wednesday that the provisions of art. 28 of OUG 1/1999, which established the fines for non-compliance with the restrictions during the state of emergency, are lacking in clarity, precision and predictability, and the establishment of the deeds whose commission constitutes contraventions is left, arbitrarily, to the free assessment of the police officers.

Also on Wednesday, CCR decided that OUG 34/2020 for the amendment and completion of OUG 1/1999 regarding the state of siege and the state of emergency is unconstitutional, as a whole, specifying that the restriction of some fundamental rights and freedoms cannot be carried out by emergency ordinances, but by an organic law adopted in Parliament.

In the opinion of the CCR, OUG 34/2020 for the amendment and completion of OUG 1/1999 was adopted in violation of art.115 par. (6) of the Constitution, since through its normative content it aimed at restricting the exercise of certain fundamental rights and freedoms (the right to property, the right to work and social protection, the right to information, economic freedom).


Iohannis: CCR’s view is surprising


Dorneanu’s statements  came out after President Klaus Iohannis on Thursday labeled the CCR view as “surprising” and maintained that, without the sanctions imposed during the state of emergency, there would have been more deaths.

“I saw yesterday the amount of satisfaction with which some politicians received the CCR [Constitutional Court of Romania] ruling on the fines enforced during this state of emergency period. It is yet another sign of carelessness, recklessness and misunderstanding of the mission they have, as well as a proof that for these politicians the political interest is above people. It is not entirely surprising that these sanctions are disputable today, although it is obvious for all of us that they have been useful to prevent the spread of the virus. Nonetheless surprising is the view of some authorities, who, through their mission or legal nature, have the constitutional obligation of not losing sight, when making decisions, of the general interest of the society. I am saying this will all responsibility, without these sanctions, the dead that we are mourning today would have been much more,” the head of state said at the Cotroceni Presidential Palace.

According to Iohannis, in the current crisis “those responsible and brave separate out from those irresponsible, opportunists and populists who only make false promises.”

He underscored that Romania, confronted with an unprecedented threat same as all the other states of the world, had to take drastic measures to protect the people and prevent the spread of the novel coronavirus.

Iohannis has stressed that the danger of the epidemic has not passed “with the ruling of the Constitutional Court,” and the rules and sanctions imposed by the authorities didn’t have and do not have any other purpose than that of protecting health and life.


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