THE BUREAU FOR CONSTITUTIONAL LITIGATION, APPEAL IN THE INTEREST OF THE LAW AND THE BUREAU FOR ADMINISTRATIVE AND LEGAL LITIGATION
The Ombudsperson directly coordinates the activity in the field of constitutional review of Government laws and ordinances (simple or emergency ordinances), unification of judicial practice and administrative litigation, which is carried out through the Bureau for constitutional litigation, appeal in the interest of the law and the Bureau for administrative and legal litigation.
A.The bureau for constitutional litigation and appeal in the interest of the law
Within the activity of analyzing the constitutionality of normative acts or judicial practice, aspects belonging to all branches of law are approached: constitutional; administrative; labor and social protection; environment; financial; commercial; civil; criminal; civil proceedings; criminal proceedings; Community law, etc.
A1. Constitutional control
The People’s Advocate has exclusivity regarding the decision to notify or not the Constitutional Court with an exception of unconstitutionality, and it can’t be forced or prevented by any public authority to raise such an exception.
The People’s Advocate can be involved in the control of constitutionality of laws and ordinances, carried out in Romania by the Constitutional Court, in the following ways:
- Referral to the Constitutional Court
- with objections of unconstitutionality regarding the laws adopted by the Parliament, before their promulgation by the President of Romania,
Conditions of referral
- The law was sent to us by the Parliament, 5 days before it was sent for promulgation; and if the law was adopted by emergency procedure, the term is two days.
- The law should not have been promulgated by the President of Romania.
- with the exception of unconstitutionality regarding the laws and ordinances in force
Conditions of referral
– The People’s Advocate can notify the Constitutional Court either at the request of natural or legal persons, or ex officio;
– The People’s Advocate can trigger the control of constitutionality by way of the exception of unconstitutionality regardless of the issues targeted by it;
– The People’s Advocate may raise the exception of unconstitutionality of a normative act which, although published in the Official Gazette of Romania, Part I, is not yet in force due to the fact that its text provides a later date of entry into force, however, at the time of judging the exception of unconstitutionality, the essential constitutional requirement is that the normative act, containing the criticized legislative text, be in force, be part of the active fund of the legislation.
In order to come to your aid in case you want the People’s Advocate to formulate a complaint of unconstitutionality, we make a series of IMPORTANT SPECIFICATIONS!
- Only laws, simple ordinances and emergency ordinances may be subject to constitutional review;
- Government decisions, regulations, ministerial orders and any other such categories of normative acts cannot be subject to constitutional review;
- In order to perform the constitutionality analysis of the mentioned normative acts, the People’s Advocate institution may request additional data both from the author of the notification and from public authorities or specialists from the university and academic environment;
- Constitutional analysis involves examining the contradiction of a normative act with the provisions of the Basic Law, by referring to the jurisprudence of the Constitutional Court, the European Court of Human Rights, the jurisprudence of the High Court of Cassation and Justice, and performing related activities: analysis of legislative developments in the field examined, the legislative process, the opinions of the Legislative Council and other bodies, the substantiation note or the explanatory memorandum;
- In case of raising an exception of unconstitutionality by the People’s Advocate, the Constitutional Court does not exercise a concrete constitutionality control, which could influence the merits of the dispute, because the referral of the People’s Advocate is done distinct from any judicial procedure, and not in a litigation on the role of a court;
- a decision to admit a complaint made by the People’s Advocate is applicable only for future cases;
- the notification formulated by the People’s Advocate does not suspend the cases pending before the courts;
- The criticism of unconstitutionality must represent a request to modify or complete the normative framework;
- in the case of individual petitions, the answer will be communicated to the address indicated in the petition, accompanied by the arguments substantiating the decision of the Ombudsperson to notify or not the Constitutional Court.
- In the case of collective petitions, the answer accompanied by the arguments substantiating the Ombudsperson’s decision to notify or not the Constitutional Court will be posted on the website of the People’s Advocate institution in the Section “Answers to collective petitions”.
- If, following the analysis of constitutionality, the People’s Advocate considers that the criticized legal provisions contravene the provisions of the Fundamental Law, it shall send to the Constitutional Court the notification of unconstitutionality.
- The notification of unconstitutionality will be published on the website www.avp.ro in the section Constitutional Litigation.
What substantive conditions must meet a request for constitutional review of a law before its promulgation or of a law or ordinance in force?
Petitions requesting referral to the Constitutional Court must contain, in addition to the applicant’s identification data, the following three elements:
- The legal text challenged from the point of view of constitutionality;
- The provision of the Constitution allegedly violated;
- Motivating the relationship of contrariety existing between the two texts (arguing the unconstitutionality of the criticized text). Reasons for unconstitutionality may concern issues of a formal nature, related to the procedure of adoption / issuance of the criticized normative act (extrinsic reasons) or aspects concerning the content of the normative act (intrinsic reasons)
- The formulation, at the request of the Constitutional Court, of points of view regarding the exceptions of unconstitutionality of the laws and ordinances that refer to the rights and freedoms of the citizens.
A2. Unification of judicial practice
- The People’s Advocate can raise an appeal in the interest of the law to the High Court of Cassation and Justice, on legal issues that have been resolved differently by the courts.
Conditions of referral
- The notifications addressed to the People’s Advocate must include:
- presentation of the legal issue;
- the legal provisions whose different interpretation and application have determined the non-unitary judicial practice;
- at least two final judgments from which results the different interpretation of the same legal issue by courts located in the constituencies of several courts of appeal, the purpose of this exceptional procedure being the unification of practice throughout the country.
- The appeal in the interest of the law is not an actual appeal, therefore the requests concerning dissatisfaction related to the solutions pronounced by the courts in the complainants’ own cases will be rejected;
- The factual elements of the particular cases cannot be the object of the appeal in the interest of the law;
- In order to identify non-unitary judicial practice throughout the country, we make requests to all 15 Courts of Appeal in the country;
- After receiving the judgments from the notified courts, all the submitted documents are analyzed in order to identify the relevant judgments for raising an appeal in the interest of the law, with the aim to unify the non-unitary judicial practice;
- If the analysis of the relevant jurisprudence shows the existence of a non-unitary judicial practice at the level of the whole country, the People’s Advocate notifies the High Court of Cassation and Justice in order to pronounce a decision to ensure the unitary interpretation and application of the law.
- The answer will be communicated to the address indicated in the notification, accompanied by the arguments substantiating the decision of the People’s Advocate to notify or not the High Court of Cassation and Justice with an appeal in the interest of the law.
- If the non-unitary judicial practice is found exclusively at the level of a single court of appeal, the People’s Advocate may request the President of the court of appeal in question to take legal measures in order to unify the judicial practice.
B.The bureau for administrative and legal litigation
The administrative litigation activity is carried out in interdependence with the work of the People’s Advocate carried out through its departments specialized in different fields of activity.
- The notification of the administrative litigation court can be ordered following the prior control performed by the specialized departments of People’s Advocate and only if it is considered that the illegality of an administrative act or the refusal of an administrative authority to perform its legal duties can be removed only through the justice system.
Notifying the administrative litigation court involves the following steps:
- Verification of the file submitted by the specialized departments of the institution in order to identify the alleged illegal administrative act or the unjustified refusal of the administrative authority;
- If necessary, additional documents are requested in order to support the administrative litigation action;
- The petitioner acquires the quality of plaintiff, reason for which the prior consent of the petitioner is requested before the People’s Advocate files the summons;
- Verification of the violation of a subjective right or of a legitimate interest of the petitioner, in order to support the administrative litigation action;
- If the conditions provided by law for filing a writ of summons are found to be met, the summons shall be drafted and communicated to the competent court.
The Government Decisions cannot be the object of the administrative litigation control exercised by the People’s Advocate institution.
 The standard form available on the institution’s website can be used when drafting the petition.