THE INVOLVMENT OF THE PEOPLE S ADVOCATE IN THE CONSTITUTIONAL CONTROL AN EFFICIENT MEAN TO PROTECT HUMAN RIGHTS

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1 THE INVOLVMENT OF THE PEOPLE S ADVOCATE IN THE CONSTITUTIONAL CONTROL AN EFFICIENT MEAN TO PROTECT HUMAN RIGHTS Simina Gagu, Counsellor to the People s Advocate People s Advocate Institution The People s Advocate can involve itself, by using special procedures in the constitutional control of laws and ordinances performed in Romania by the Constitutional Court. Hence, it can notify the Constitutional Court with objections of unconstitutionality regarding the laws adopted by the Parliament, before the promulgation thereof by the President of Romania, while it can also bring up directly in front of the Constitutional Court, exceptions of unconstitutionality. The implication of the People s Advocate with respect to the examination of constitutionality is further solidified by formulating per request of the Constitutional Court opinions on exceptions of unconstitutionality of the laws and Government ordinances regarding the rights and freedoms of citizens. All these powers in the area of constitutional justice strengthen the role of the People s Advocate, representing as well an efficient way to protect human rights. The Romanian Constitution adopted in 1991 underlined the transformation of the Romanian society into a state governed by the rule of law, democratic and social, in which human dignity, the citizens rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values and shall be guaranteed. In order to accomplish this desideratum, the Constitution gave a new configuration of the constitutional order, by proving new institutions, as the People s Advocate. Since adopting its law in 1997, the People s Advocate is organised and functions in Romania, for defending individuals rights and freedoms in their relationships with the public administration authorities, by turning account on the experience and tradition of the classical Western-European ombudsman. In order to fulfil its constitutional and legal role, the People s Advocate receives and examines, under the terms of law, all the complaints lodged by any individual with any discrimination on account of citizenship, age, sex, political adherence or religious belief. In order to solve the problems brought before him, the People s Advocate can make inquiries or recommendations, by which he notifies the public administration authorities on the unlawful character of the administrative acts or facts. Also, the People s Advocate can also be involved, by its own procedures, in controlling the constitutionality of laws and ordinances, achieved in Romania by the Constitutional Court. Thus, People s Advocate can notify the Constitutional Court with objections of unconstitutionality of laws adopted by the Parliament, before their promulgation by the President of Romania; it can bring directly in front of to the Constitutional Court exceptions of unconstitutionality of the laws and ordinances in force; formulates upon request of the Constitutional Court, points of view on the exceptions of unconstitutionality of laws and ordinances regarding citizens rights and freedoms. Together with the Constitutional Court, the People s Advocate is one of the organisatorical state structures fulfilling a 499

2 role of guarantee, balance and support of balance between the powers and between public authorities and citizens 1. The involvement of the People s Advocate in the constitutionality control performed in Romania by the Constitutional Court shall be analysed on the ground on the constitutional and legal provisions. Hence: I. According to art. 146 letter a) of the Romanian Constitution, the Constitutional Court adjudicates on the constitutionality of laws, before the promulgation thereof upon the notification by the President of Romania, one of the presidents of the two Chambers, the Government, the High Court of Cassation and Justice, the Advocate of the People, a number of at least 50 deputies or at least 25 senators. We are here in the area of a priori constitutional control, and making the People s Advocate, part of it, as a subject that can notify the Constitutional Court, is grounded on the capacity of this institution to identify by the permanent and direct contact with the civil society, those legal situations which could be contrary to the Constitution. Parliamentary and constitutional jurisdiction rules are applicable. These are provided by the Law no. 47/1992 regarding the organisation and functioning of the Constitutional Court, republished. According to the mentioned law, all the notifications must be done in written form and motivated. In order to exercise this rights, 5 days before the Parliament sent the law for the promulgation to the President of Romanian, that law is also communicated to the People s Advocate (the term is 2 days in case of those laws adopted by an emergency procedure). In applying the constitutional provisions, the Law no. 35/1997 regarding the organisation and functioning of the People s Advocate, republished and the Law no. 47/1992, republished contain provisions concerning the possibility of the People s Advocate to formulate objections of unconstitutionality. The involvement of the People s Advocate in this type of constitutional control of laws resided in notifying the Constitutional Court with two objections of unconstitutionality regarding laws adopted by the Parliament and before promulgation thereof: one of them regarded the Law on the administrative contentious, rejected by the constitutional Court and the other, the Law on the free movement of the Romanian citizens abroad, partially sustained by the Constitutional Court 2. Regarding the last one, a few supplementary explanations can be added. Freedom of movement is provided as a fundamental right, by the provisions of art. 25 of the Romanian Constitution, according to which, the right of free movement within the national territory and abroad is guaranteed. The law shall lay down the conditions for the exercise of this right. Every citizen is guaranteed the right to establish his domicile or residence anywhere in the country, to emigrate and to return his country. Hence, the constitutional disposals regulate two aspects, namely: the freedom of movement within Romanian territory, and the freedom of movement of Romanian citizens outside of Romanian borders. These two aspects put into value the rules established by the international juridical documents in this field, to which Romania became a party, namely: every persons residing legally on the territory of a state has the right to the free movement and to chose freely his/her residence; every person is free to leave any country, included his/her own country; no one can be deprived arbitrary from the right to enter his/her own country. 1 Ioan Muraru, Elena Simina Tănăsescu, Constitutional Law and political institutions, vol. II, Publishing House All Beck, Bucharest, 2003, p The objection of unconstitutionality regarding the Law of the administrative contentious has been rejected by the Constitutional Court according to the Decision no. 507/2004, while that concerning certain provisions of the Law on the free movement of the Romanian citizens abroad, was partially sustained by the Constitutional Court, according to the Decision no. 217/

3 Taking into consideration the fact that the People s Advocate has the right to notify the Constitutional Court on the unconstitutionality of laws before the promulgation thereof by the President of Romania, the Romanian Parliament communicated to the People s Advocate the Law on the free movement of the Romanian citizens abroad, adopted but not promulgated at that time. By examining the provisions of the above mentioned law, the People s Advocate appreciated that the law contained disposals contrary to Romanian Constitution and notified the Constitutional Court with the objection of unconstitutionality of art. 2 (2), art. 17 (1) lit. b), art. 17 (4) and art. 28 (1) within the Law on the free movement of the Romanian citizens abroad, adopted and not promulgated at that time. Hence, contrary to art. 16 (1) of the Constitution, the above mentioned legal provisions conditioned the under 18 years old persons right to travel abroad by the obligation to be accompanied, the previous consent of their parents or legal companions, without making any distinction between the rights of married woman which was minor and other minors. The criticised provisions set up a discrimination between the minor married woman that enjoys full acting capacity and other persons enjoying full acting capacity. The criticised disposals were also contrary to art. 25 (1) of the Constitution that regulates the freedom of movement, because they provided an unjustified restriction of the right to the free movement in case of the minor married woman that was supposed to be accompanied or to have the previous consent of their parents or legal representatives, even she enjoys the full acting capacity. These legal provisions were also contrary to art. 2 point 2 of the Protocol no. 4 additional to the Convention for the protection of human rights and fundamental freedoms, according to which Any individual is allow to leave any country, including his/her own, with reference to the persons that enjoy full acting capacity. The criticised legal disposal infringed as well the provision of art. 26 (2) of the Romanian Constitution, according to which Any individual has the right to freely dispose of himself unless by this he infringes on the rights and freedoms of others, on public order or morals. Thus, the conditioning of a person with full acting capacity, as the minor married woman is, to be accompanied or to have the consent of her parents and legal representatives restricted the right to freely dispose of herself. The restriction on the exercise of this right was not justified by any ground or situations provided by art. 53(1) of the Constitution. The same legal disposal violated the art. 48 (1) of the Constitution regarding the equality between husband and wife. The grounds stated by law did not objectively and rationally justify an unequal status between husband and wife which leaded to the conclusion that this unequal status was accounted only on a sex criterion. By the Decision No. 217/2005, the Constitutional Court sustained the objection of unconstitutionality raised by the People s Advocate and decided that the provisions of art. 28 (1) and art. 36 of the Law on the free movement of Romanian citizens abroad were unconstitutional in terms of those stipulations on the married woman under legal age. II. According to art. 146 letter d) of the Constitution, the Constitutional Court adjudicates on the exceptions of unconstitutionality of laws and ordinances, brought up before courts of law or commercial arbitration; the exception may also be brought up directly by the People s Advocate. We are here in the area of a posteriori constitutional control of laws, where the People s Advocate brings up directly in front of the Constitutional Court an exception of unconstitutionality, without following the previous juridical procedures that take place in front of the courts of law. In the light of the constitutional and legal provisions regarding the role of the People s Advocate, the exception can be brought in front of the Constitutional Court when the laws or Government ordinances violate the individuals rights and freedoms, becoming as their guarantor. Therefore, the People s Advocate can not bring up directly such an exception on behalf of public authorities, political parties, employers associations or other legal persons. As an extra argument, the People s Advocate can not substitute to 501

4 an individual who disposes the regular ways to ask for the constitutional control. By giving a contrary interpretation, the meaning of the constitutional provisions would be unreasonably changed. As for the applicable procedure, it is to be noticed that the unconstitutionality exception is not raised before a court of law, but directly in front of the Constitutional Court. Reference proceedings must be done in writing and give a statement of the grounds, and once the Constitutional Court has been notified, it will request the opinions provided by its organic law (of the Presidents of the both Chambers of Parliament and Government). The People s Advocate shall be summoned for the proceedings. During , the People s Advocate exercised this power by bringing directly in front of the Constitutional Court unconstitutionality exceptions regarding certain provisions of laws and Government ordinances in force: Law no. 47/1992 on the organisation and functioning of the Constitutional Court; Law no. 163/2005 regarding the approval of the Emergency Government Ordinance nr. 138/2004 for amending and changing Law no. 571/2003of the Fiscal Code; Emergency Government Ordinance no. 43/2006 regarding the organisation and functioning of the Court of Audit; Law nr. 3/2000 on the organisation and holding of the referendum; Law no. 115/1996 for declaring and control of fortune of high officials, magistrates, some persons in leading and control positions, and public officers, modified and completed; Law no. 356/2006 for amending and completing the Criminal Procedure Code and other laws; Law no. 448/2006 regarding the promotion and protection of disabled persons. As examples, we mention a few aspects regarding the unconstitutionality exceptions raised directly by the People s Advocate. In two cases, People s Advocate brought up in front of the Constitutional Court exceptions of unconstitutionality regarding provisions enshrined in the Law no. 3/2000 on the organisation and holding of the referendum. In one case, People s Advocate appreciated that art. 12 (1) of the Law no. 3/2000 was contrary to the Constitution because it added to the Constitution and restricted a constitutional power of the President of Romania, representing as well, an obvious case where the Parliament acted outside of its constitutional jurisdiction. The prerogatives conferred to the President of Romania are included in the Constitution and the President exerts certain prerogatives without the assistance of other state authorities, while others imply such participation. By analyzing, the prerogative provided for under art. 90 of the Constitution, according to which The President of Romania can ask the people to express by referendum its will on the matters of National Interest, comes out that this prerogative consists two elements: consultation and decision. Parliament consultation is a pre-condition to the decision, which must be obligatorily accomplished, that is to say that the president can not proceed to the referendum without such consultation; it acts as a binding endorsement, namely, it must be accomplished but the President of Romania has the freedom of making a decision. Thereby: a) only the President of Romania can decide whether to ask or not the people expressing its will by referendum, which are the matters of National Interest and which certain actual matter shall be subjected to referendum; b) no Public Authority can decide the list of matters of National Interest, according to art. 90 of the Constitution, this being exclusively the prerogative of the President of Romania. Constitutional Court sustained this exception of unconstitutionality 3. 3 By Decision no. 567/2006, published in the Official Gazette of Romania, Part I, no. 613 of 14 July 2006, the Constitutional Court decided that the provisions of art. 12(1) of the Law no. 3/2000 on the organization and holding of the referendum, were unconstitutional. 4 By Decision no. 392/2007, published in the Official Gazette of Romania, Part I, no. 325 of 15 May 2007, the Constitutional Court decided that the provisions of art. 11(3) of the Law no. 3/2000 on the organization and holding of the referendum, were unconstitutional. 502

5 In a second case the People s Advocate noticed that the Law no. 3/2000 regarding the organisation and holding of the referendum contained a technical error which violated the Constitution. According to the Law no. 3/2000, the opinion of the Parliament on the referendum initiated by the President of Romania, regarding problems of national interest should have been expressed by a Resolution passed in the joint meeting of the both Chambers, by the majority vote of the deputies and senators. The legal requirement for the majority vote of the deputies and senators was in conflict with the constitutional provisions of art. 76 par. (2), according to which the Parliament resolutions shall be passed by the majority vote of the members present in each Chamber. The Constitutional Court sustained the exception of unconstitutionality 4. In the justification of the unconstitutionality exception, the People s Advocate stated that the provisions of the Law no. 115/1996 on the statement and control of the properties owned by officials, magistrates, by some persons with high positions, by public officers, amended, and supplemented did not comply with the constitutional provisions, because they infringed terminologically the uniformity of the regulation included in the other thirty-four riders. In such a context, the People s Advocate considered that the criticized Law, worked by different measures, which can alter the justice balance, that is to say that the judicial courts can not apply the above terminology because it thwarts with the terminology sanctioned by Constitution and by the Criminal and Civil Procedures Codes. The Constitutional Court dismissed the exception 5. III. The idea of the involvement of the People s Advocate Institution in the constitutional control had been expressed since 2002, when the Law on the organisation and functioning of the People s Advocate had been amended with the following text: In the case of notifying the Constitutional Court with the exception of unconstitutionality of laws and ordinances which refer to citizens` rights and freedoms, the Constitutional Court shall request the opinion of People s Advocate. A similar provision has been introduced in the Law no. 47/1992, according to which upon receiving the Interlocutory Order issued by a court of law, the President of the Constitutional Court shall communicate it also to People s Advocate, indicating the date up to when it may forward his opinion on the exception of unconstitutionality raised in a pending trial. Law no.47/1992, republished also provides the possibility of the People s Advocate to provide, following the request of the Constitutional Court, opinions on the objections of unconstitutionality raised by one of Presidents of the Both Chambers of Parliament or by the Government. These legislative changes brought at the People s Advocate disposal a supplementary mean in order to efficiently act in order to protect individuals rights. Regarding the formulation of opinions on the exceptions of unconstitutionality requested by the Constitutional Court, the activity of the People s Advocate met yearly progresses. Thus, The People s Advocate drafted 1375 opinions on the exceptions of unconstitutionality in 2006, compared to 1005 in 2005, 621 in 2004, 386 in 2003 and 180 in The causes where the People s Advocate opinion was requested referred mainly to alleged violations of: free access to justice, including the right to a fair trial, equality of rights, the right of property, the right to physical and psychic integrity, the right to defence, the principle of nonretroactivity of laws and the principle of more favourable criminal or administrative law and rules on the restraint of fundamental rights and freedoms. Examining the exceptions of unconstitutionality in respect of which the Constitutional Court requested the People s Advocate opinion, it has been found out, that the Interlocutory Order issued by a 5 By Decision no. 599/2006, published in the Official Gazette of Romania, Part I, no. 839 of 11 October 2006, the Constitutional Court decided that the provisions of art. 14 (1) letters b and c, art. 18, art. 28 (1), art. 32, 33 and 35 of the Law no. 115/1996 were constitutional. 503

6 court of law for the notification of the Constitutional Court did not comprise the court's opinion with regard to the exception invoked by the author. Moreover, the provision of art. 29 paragraph (4) of Law no 47/1992, republished, concerning the obligation of the court of law to express opinions the exception of unconstitutionality were subject to a unconstitutional exception raised by the People s Advocate that concluded that the legal provisions were in contradiction with the principle of uniqueness, equality and impartiality of justice, infringing the right of defence and the right to a fair trial. The Constitutional Court through Decision no. 353/2005 rejected this exception. In other cases, the court of law itself mentioned in the Interlocutory Order for the notification of the Constitutional Court that, by alleging the exception of unconstitutionality, its author has aimed nothing but delaying the trial resolving. In conclusion, all these powers in the area of constitutional justice strengthen the role of the People s Advocate and represent an efficient mean for achieving the human rights protection function, added to the other specific intervention methods already used by the People s Advocate. Bibliography Mihai Constantinescu, Antonie Iorgovan, Ioan Muraru, Elena Simina Tănăsescu, Romanian Constitution, revised, comments and explanations, Publishing House All Beck, Mihai Constantinescu, Ioan Muraru, Antonie Iorgovan, The revising of the Romanian Constitution, explanations and comments, Publishing House Rosetti, Ion Deleanu, Constitutional institutions and procedures, Publishing House C.H. Beck, Bucharest, Bianca Selejan-Guţan, Exception of unconstitutionality, Publishing House All Beck, Ioan Muraru, Mihai Constantinescu, Constitutional Court of Romania, Publishing House Albatros, Bucharest, Ioan Muraru, The People s Advocate, ombudsman type institution, Publishing House All Beck, 2004 Ioan Muraru, Elena Simina Tănăsescu, Constitutional law and political institutions, vol.i, II,Publishing House All Beck, Romanian Constitution of 1991, revised by the Constitutional Law no. 29/2003, approved by referendum on October 2003, republished in the Official Gazette of Romania, part I, no. 767 of 31 October Law no. 35/1997 regarding the organization and functioning of the People s Advocate, republished in the Official Gazette of Romania, part I, no. 844 of 15 September Law no. 47/1992 regarding the organization and functioning of the Constitutional Court, republished in the Official Gazette of Romania, part I, no. 643 of 16 July The People s Advocate Annual Report of Activity for 2003, Publishing House Regia Autonomă Monitorul Oficial Bucharest, The People s Advocate Annual Report of Activity for 2004, published on the People s Advocate website, 6. The People s Advocate Annual Report of Activity for 2005, published on the People s Advocate website, 7. The People s Advocate Annual Report of Activity for 2006, published on the People s Advocate website, 8. Informative Bulletin of the People s Advocate Institution no. 2/2007, Bucharest. Website addresses: People s Advocate Constitutional Court