Unconstitutionality of the new criminal and penitentiary laws

Unconstitutionality of the new criminal and penitentiary laws
Unconstitutionality of the new criminal and penitentiary laws

[Contributo selezionato da Filodiritto tra quelli pubblicati nei Proceedings “Fifth International Conference Multidisciplinary Perspectives in the Quasi-Coercive Treatment of Offenders – SPECTO 2016”]

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[Contribution selected by Filodiritto among those published in the Proceedings “Fifth International Conference Multidisciplinary Perspectives in the Quasi-Coercive Treatment of Offenders – SPECTO 2016”]

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BARBU Silviu Gabriel1, GOGA Alexandru Silviu2

1University of Transilvania Brasov, (ROMANIA)

2Bar Association of Brasov, (ROMANIA)

Silbarg70@gmail.com, alexandrugoga@gmail.com



The new criminal and penitentiary laws after 2 years since their adoption have proven to be troublesome. More and more article are found by the Constitutional Court of Romania not being in accordance with the fundamental law. We aim to make a summary of the inadequacies this institution has found, and the reasons for which the lawmaker was confronted with the impossibility of foreseeing such situations.

Moreover we will try to analyse some possible future occurences of unconstitutionality in the aforementioned laws and will try to give solutions to the problems we present.

In conclusion our goal is to give a summary yet complete analysis of the situation of research on unconstitutionality and criminal and penitentiary provisions in Romania up to date.


1. Introduction

First of all, the Constitutional Court of Romania has truly become a negative legislator in Romania. Since the enactment of the New Criminal Code and New Criminal Procedural Code, many institutions of these new codes have been changed with the intervention of the Constitutional Court. Thus we find it important to analyse but a few of the more important decisions given by the court that sentecened several articles of the aforementioned codes as unconstitutional.

Therefore we will be analysing the posibility of review of criminal cases, as an extraordinary means of attack, the ilegality and unconstitutionality of home arrest without time limitation and the unconstitutionality of phone interceptions done by the Romanian Information Service (SRI in short in Romanian).


2. Constitutionality of criminal cases review

On March the 3rd, 2016, the Plenum of the Constitutional Court debated the exception of unconstitutionality of art. 453 par. (1) f) of the Code of Criminal Procedure on review cases provisions read as follows: “Review of judgments, on the criminal side, may be requested when: [...] f) the decision was based on a legal provision that was declared unconstitutional after the judgment became final, where the consequences of violating the constitutional provision continues to produce and can not be remedied only by reviewing the judgment”.

By majority vote, the Constitutional Court upheld the exceptiopn of unconstitutionality and found that the legislative solution contained in art. 453 par. (1) f) of the Criminal Procedure Code, which does not limit the review to the case because of the objection of unconstitutionality was raised, it is unconstitutional. The Court held that cases decided until the publication of the Constitutional Court decision in the Official Gazette of Romania, Part I, which found unconstitutional a provision of a law or a government ordinance and was not the person which formulated the refferal to the Constitutional Court with a plea of ​​unconstitutionality on the same subject, are praeterita facts, since the cases have been solved finally and irrevocably.

The Court held that since the introduction of the proceedings until the final case, the norm has benefited from the presumption of constitutionality, which was not overturned until after the judgment by which to settle definitively the dispute.

The Court therefore found that the incidence of admission decision pronounced by the constitutional court in such a case would be tantamount to awarding ex tunc effect of the Court’s judicial act, in violation of art. 147 par. (4) of the Basic Law, according to which the Constitutional Court decisions are published in the Official Gazette and its publication, decisions shall be generally binding and effective only for the future.

3. Limitation of compulsory criminal action

On January 20th, 2016, the Constitutional Court, by majority vote, upheld the objection of unconstitutionality of art. 318 of the Criminal Procedure Code and found that it is unconstitutional. The Court held that the impugned provisions contravene the principle of legality, provided by art. 1 para. (5) of the Constitution and Art. 124 par. (1) in conjunction with art. 126 par. (1) according to which justice is administered in the name of law and is carried out by courts established by law (in this regard, see pt. II here).

According to art. 147 par. (1) and (4) of the Constitution, Constitutional Court decisions are binding from the date of publication in the Official Gazette and legal provisions declared unconstitutional are suspended by law for a period of 45 days and will terminate the legal effects if the vice of unconstitutionality by the legislature is not removed within that period.

The new Code of Criminal Procedure regulated in art. 7 paragraph. (2) the opportunity principle as a limitation of compulsory criminal action and as a manifestation of criminal policy option in order to better the uses of human and material resources.

The solution of waiving prosecution in cases where there is no public interest in relation to the seriousness of the offense and there is a reduced dangerousness can be seen as an exercise of the constitutional role assigned by art. 131 of the Constitution to the Public Ministry by means of prosecutors, representing the general interests of society.

In order to respect free access to justice, the provisions of art. 340 Code of Criminal Procedure introduces court proceedings with censorship solutions.

In connection with the previous regulation, the Constitutional Court rejected the objections of unconstitutionality, holding that the law has assigned a prosecutor, taking into account its role as defined by art. 131 par. (1) of the Constitution, the power to determine in concrete acts subject to censorship by the court at the request of the person concerned, that the prosecution is not required. In this way, it argues that the prosecutor can not substitute the courts and thus violated art. 126 par. (1) of the Constitution (in this respect).

Since the reasoning in the judgment of the Constitutional Court regarding the provisions of art. 318 of the current Criminal Procedure Code has not been published, we can only assume that we are in the presence of a change of law or that the solution to waive prosecution, as opposed to discontinuing the prosecution for lack of social danger, is an act of jurisdiction, that the Court held incompatible with the constitutional provisions.

Whatever unconstitutional flaws noted by the Constitutional Court, the fact is that legislative intervention must be done urgently, otherwise all criminal cases, regardless of their lack of obvious importance in the absence of impediments to implementation or exercise of criminal action will be to undergo mandatory trial stage, excessively cluttering the courts.

The Court held that the unconstitutionality of the provisions of art. 318 of the Criminal Procedure Code comes in breach of the principle of legality, provided by art. 1 para. (5) of the Constitution and prevederilorart. 124 par. (1) in conjunction with art. 126 par. (1) according to which justice is administered in the name of law and is carried out by courts established by law.

In other words, the Court held that, by giving the prosecutor the ability to give a solution of waiving prosecution, is “administration of justice”, although he is not a court.

To the extent that the prosecutor, noting that the conditions provided for by art. 318 of the Criminal Procedure Code, it would not have but would propose preliminary chamber judge competent to rule on solutions Unwatched or not to indict, according to art. 3 paragraphs. (6) and art. 54 lit. c) of the Code of Criminal Procedure, with proper application of art. 341 of the same Code, incompatibility with detained by the Constitutional Court be removed.

Both of the proposed amendment have the same drawback, namely referral of preliminary chamber judge in all those cases where, before declaring the unconstitutionality of the provisions of art. 318 Criminal Procedure Code, the persons concerned had not filed a complaint. The advantage of these solutions is that the procedure of confirmation or acceptance of the proposal to abandon the prosecution could proceed faster than if the court is seised by indictment and also integrate and to those in which anyway would have made complaints against solutions waiver prosecution.

When amending the provisions of art. 318 Criminal Procedure Code, to replace the prosecutor has the power to propose to the preliminary chamber judge waiving prosecution and inserting a new paragraph, stating that the provisions of art. 341 of the Code shall apply accordingly and all related legal provisions should be amended also.


4. House arrest – constitutional remedy

On 12 June 2015, in the Official Gazette Constitutional Court Decision no. 361/2015 was published, whereby art. 222 of the Criminal Procedure Code was unconstitutional in its entirety. According to art. 31 para. 3 of Law no. 47/1992 and art. 147 par. 1 of the Constitution, “the provisions of laws and ordinances in force declared unconstitutional shall cease their legal effects within 45 days of publication of the decision of the Constitutional Court if, in this Parliament or the Government, as appropriate, do not agree provisions with the Constitution unconstitutional. During this period, the provisions declared unconstitutional are suspended by law”.

Therefore, starting on 12 June 2015, the above-mentioned statutory provision of law is suspended. In the end of the decision considerations, the Court implicitly admits that the situation expiry of the legal provision as one with serious consequences and recommends the Executive or Parliament to remedy the constitutional defect, between the time of delivery (May 7, 2015) and the publication. In fact, the Court, interpreting their decision indicates remedy the unconstitutionality - the introduction by law, until publication of the decision, the maximum duration of preventive measures shown in procedural stages.

Motivations probably more political or just a regrettable indifference have made a simple emergency ordinance with a single article may not be promoted over this period, leading naturally to suspend the rule and to undermine an institution of criminal procedure effective until Now, especially as an alternative to custody in detention, the practical consequences of the most unpleasant.

Turning to the reasons which led the Constitutional Court to conclude that art. CPP 222 is inconsistent with the Basic Law, the Court observes, referring to the jurisprudence of the ECHR application of art. 5 of the Convention, that house arrest is considered a deprivation of liberty. The Court notes that the “interference generated by house arrest concerns fundamental rights, namely the right to personal liberty, freedom of movement, the intimate, family and private life, the right to education and labor and social protection of labor is governed by law, namely art. 218-222 of the Code of Criminal Procedure, aims legitimately conducting a criminal investigation being applicable during a judicial prosecution, the preliminary chamber procedure and judgment at first instance, it requires the appropriate legitimate aim in the abstract, it is discriminatory and is necessary in a democratic society to protect the values ​​of the rule of law.”

Compared to the constitutional provisions to which he referred, the Court found that the rules of criminal procedure art. 222 titled marginal “Duration of house arrest” does not cover any periods for which can be ordered and no maximum duration of such measures in the procedure for preliminary chamber and judgment in first instance, are unconstitutional, since the judiciary may order house arrest for unlimited periods of time in these stages, consequently being unlimited in time. The Court also found that such a restriction is unconstitutional because it infringes the principle of proportionality, in substance affecting the fundamental rights concerned.

In fact, art. 222 was declared unconstitutional in full only because the law failed to provide the maximum duration of preventive measure during the preliminary proceedings and the trial chamber. By similarity with the measure of preventive arrest, it is easy to deduce that the maximum permissible period as prescribed by art. 239 of the new Criminal procedure code (half of the maximum punishment provided for the offense of which the defendant is accused, but not more than 5 years). But such interpretation by analogy is foreign to criminal proceedings.

Regarding the preliminary procedure room, art. 220 remained in force. However, it can be seen that the rule, as art. 219, provides far during the ordering, reporting established itself as a reference to art. 222. The latter is repealed, no deadline for making provision made available without effect, so this is obviously unworkable.

Preliminary room during times of trial, an application for replacement of house arrest, made pursuant to art. 242 of the new Criminal procedure code seems permissible procedurally. Assuming that a person is in the trial stage, remand (detention) being maintained by closing for 60 days (under art. 208 of the new Criminal procedure code), for example from June 10, 2015 to August 8, 2015, an application for replacement allowed on June 20, 2015 would require domiciliary arrest only the same amount, then it can no longer be maintained. Replacing it would be possible, because far easier would overlap the remaining term of the measure tougher, not ready for a distinct period. Being less restrictive, it could be argued that it violates the rights provided by the Constitution and ECHR. Similarly, an argument could be that discussing replacement, not making the two concepts are different. Some arguments to the contrary can also be received, meaning the application is rejected or replaced directly with judicial remand. The arguments both ways are valid and if the request for replacement during prosecution (see above).It is obvious that measures being under house arrest after publication of Decision no. Law 361/2015 does not cease at that time, being taken / extended / statutory maintained at baseline. Criminal procedural provisions applicable during the stay in place and do not apply the principle of lex mitior. Moreover, the Constitutional Court decisions apply only to the future. A request for replacement of detention at home with judicial review may be allowed or denied, depending on specific circumstances and criteria to take preventive measures. At the end of their terms, they will cease as a request for extension of their maintenance or not admissible.

In conclusion, the declaration of unconstitutionality of art. 222 of the new Criminal procedure code causes unrest at least for a time, the new institution of house arrest useful in most situations, especially seen as an alternative to remand. Lack of legislative intervention in more than a month of delivery of the Constitutional Court is unfortunate and is part of multiple errors and omissions note of the new procedural code in general, and the matter of preventive measures in particular.


5. Constitutionality of interceptions done by other agencies

No decision was published. Law 51/2016 regarding the unconstitutionality of Article contained in the Criminal Procedure Code on the ability of specialized services of the state to carry out technical surveillance (wiretaps, stakeout, access systems, etc.) and concerning enforcement measures warrants of Survey arranged in criminal proceedings.

We have to remember that CCR does not establish the legality of interceptions in specific cases, but determined that the text under which interceptions were carried out so far raises questions of constitutionality and henceforth be corrected;

We think we can identify the following solutions on existing criminal cases reported at the time of publication of the decision:

  • When a case is definitively resolved, it can not be reopened on the sole ground that the interceptions were made by intelligence and not by the judicial bodies. I appreciate that if it would create a law to provide in particular that possibility, it would be unconstitutional as to respect the independence of justice and legal certainty is already established in principle that no law can overturn retroactively a court order;
  • When the file is established after the appearance of the decision, it is more than obvious that technical supervision will be done by the new body appointed by GEO 6/2016;
  • When a case is over prosecution from the occurrence decision, we distinguish:

- Whether the interceptions were already made, they still are in the case, the decision for CCR effect for the future, and ordinary judges have no basis in law to exclude evidence gathered legally. Moreover, pt. 52 of the CCR decision mentions his application on files “before the courts”, not prosecuting authorities;

- If interceptions are ongoing, they must be stopped so that everything was done remains valid as a new interceptor will be authorized only under the new regulations.

  • When the case was sent to court and passed the preliminary chamber, decision from the occurrence CCR room has been established definitively that the evidence was lawfully obtained, this is already established with force of res judicata and discussion on the legality of interceptions can not be resumed;
  • When the cause is still under preliminary chamber, the judge is obliged to consider the legality of evidence and may question here is what happens interceptions made by the intelligence services. The answer is simple: interceptions legally made on their operation are perfectly legal if they complied with the provisions applicable at the date of interception. Thus text of the law that allowed the services to make these intercepts authorized by a magistrate enjoys the presumption of constitutionality, as CCR itself says and only in this way ensures the legal certainty.

I think there is room for two reasons: (1) The CCR decision only applies to future and, anyway, pt. 52 refers to cases pending “before the courts”; or Pre-Trial Chamber is a distinct phase of the trial, because being still “pending”; (2) would be deeply unfair that interceptions made in cases under prosecution phase or the Preliminary chamber at the release date of the decision to be valid, while eavesdropping on file reached the court to be excluded on grounds of timing. Moreover, going over all these arguments and placing the problem legality of the procedure by which we obtained evidence, as it is a relative nullity (as this issue does not fall within the cases of art. 281 new criminal procedure code), we do not imagine how anyone could prove any harm given that the interception was authorized by a magistrate by an intelligence officer and not a police officer, especially after the interception has been given in writing and confirmed by the prosecutor. Also as another argument, show that if such evidence should be excluded on grounds of invalidity of acts that led to obtain them, would create an inequity with respect to defendants already condemned because they admit the facts proven and interceptions.

In conclusion, technical surveillance measures conducted by competent authorities under a constitutional law stand. Changing the competence of these bodies have effect only for the future.


6. Conclusions

The Constitutional Court is a central but not the only instrument of democracy and constitutionalism. There cannot be a constitutional court without a constitution. Therefore, the role of the constitutional court should be viewed in a wider perspective embracing the general issues of democracy, constitution, and constitutionalism.

There is reason to believe that, relying on our earlier experience of statehood and having lived according to our constitution and practising democracy for the past 26 years, while being in close co-operation with democratic states in Europe and elsewhere in the world, we have learned something. We have passed the beginner course in constitutional democracy and now the changes in the new codes is necessary to be made as shown.

The constitution is the law of power. Power today means politics, both internal and external. Therefore, constitutional law together with its implementation and supervision (i.e., judicial review) is essentially and inevitably the most political law and legal activity of all. Law is a living organism and thus we must change the law everytime we find it unconstitutional. Time has proven that the RCC precedents alongside with those of the ECHR are very important.

Understanding of the main constitutional parameters in Europe has thus developed and become harmonised, while the text of our constitution has largely remained the same. This makes us ask whether we have not reached a new state that requires a new constitutional text. Or will we continue by simply interpreting the text in a new way? It is clear that even the most Europe-oriented drafters of the Constitution could not even have dreamt of such close integration with Europe as we have already achieved.

We are asking which is better: to stretch or even ignore the text of laws, or to draft a new and adequate one? My short answer is that we are not in the same situation but in a new one, one that requires a law or constitutional text adapted to this new situation.



  • Constitution of Romania.
  • Law no. 47/1992 on the functioning of the Constitutional Court of Romania.
  • New Criminal Code, New Criminal procedural code of Romania.
  • Muraru, E.S. Tănăsescu, ș.a., 2008, Constituția României.Comentariu pe articole, ed.C.H.Beck, București.
  • G.Barbu, 2010, Dimensiunea constituțională a libertătii persoanei, ed. Hamangiu, București.
  • G. Barbu et. al, 2012, Repere actuale din Jurisprudenta Curtii Constitutionale, București.
  • Schwartz. The Struggle for Constitutional Justice in Post-Communist Europe. 2000.
  • Constitutional Court Decision no. 361/2015, Constitutional Court Decision no. 23/2016.
  • Constitutional Court Decision no. 688/2012, Constitutional Court Decision no. 329/204, Constitutional Court Decision no. 403/2010.
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