The paper analyses the relatively recent case law of the Romanian Constitutional Court on the question of imposing obligations on the legislature to criminalize certain behaviors. In a first phase, such rulings were made by means of simple decisions which reinstated criminal provisions by finding that the law which repealed them was unconstitutional. However, in the past few years, the Court went further and took a more proactive approach. So-called manipulative decisions have started to play a role in criminal law matters. For example, the Court has ruled that the legislature's omission to criminalize driving a tractor on a public road by an unlicensed person breaches the Constitution. The authors analyze the consequences of such decisions, as well as the need for specific criteria to determine what regulatory omissions can have "constitutional relevance". The paper focuses on finding means to determine when and how proper protection of constitutional rights and principles cand only be achieved by means of criminal law and not, for example, by means of administrative sanctions or civil liability.
Key words: Romanian Constitutional Court, manipulative decisions, criminalization, challenges as to the unconstitutionally of laws
Trandafir, A. R., Ioan, G.C.: “Constitutional incrimination” – How the Romanian Constitutional Court “criminalizes”. Právny obzor, 107, 2024, special issue, pp. 33-51.
https://doi.org/10.31577/pravnyobzor.specialissue.2024.03
Introduction - what are manipulative decisions?
The Romanian Constitution, adopted in 1991, revised in 2003, establishes the Constitutional Court as the role of "guarantor for the supremacy of the Constitution"
1)
.
To properly fulfil this role, the Constitution established the Court as an institution that is not part of any branch of Government. As such (amongst other functions
2)
), the Court's most used, and probably most consequential, power is to ensure that legislation passed by the Parliament does not violate constitutional regulations.
The vast majority of the Constitutional Court's rulings are based on the power prescribed by art. 146 let. (d) of the Constitution, according to which the Court decides on challenges to the unconstitutionality of laws and ordinances, brought up before courts of law or commercial arbitration
3)
.
However, the decisions by means of which the Court rules on challenges to the unconstitutionality of laws and ordinances have gained, based on the Court's own case law, several forms. In the beginning, the Court exercised its powers with restraint, by only establishing that the challenged laws and ordinances violated the Constitution in their whole or in part. However, as the legal issues the Court faced kept evolving, its case law also evolved, creating two new categories of decisions: the so-called interpretative decisions and manipulative decisions.
According to Decision no. 358 of the 26th of may 2022
4)
, one of the most disputed in the past years (since it directly affected the statute of limitations of almost all crimes): "
In the specialized literature, decisions rendered by the Constitutional Court were divided into two categories, namely simple decisions and intermediate decisions, the latter category including interpretative and manipulative decisions. The simple decisions, also called "extreme decisions", were qualified as those decisions finding, as the case may be, the constitutionality or unconstitutionality of the legal provision under criticism. As regards the category of intermediate decisions, it was specified that this consisted of interpretative decisions (those decisions in the operative part of which the phrases "in so far as", "if and under the conditions that" are found) and manipulative decisions (those decisions which are more than interpretative decisions, as they aim to transform the meaning of the law so as not to leave a "legal vacuum" with "harmful consequences")
".However, in the next paragraph of the same decision, the Court did not reference manipulative decisions when addressing the type of decisions it passes, only mentioning simple decisions and interpretative decisions: "
In this context, the Court notes that both case law and specialized literature have held that the determination of the effects of decisions of the Constitutional Court is inextricably linked to the determination of the nature/typology of the respective decision. In other words, it has been considered that establishing that a decision is simple/extreme or interpretative/with reserve of interpretation also reveals the answer to the question whether it is necessary/obligatory for the legislature to intervene to bring those provisions found to be unconstitutional in line with the Constitution, in the sense of what the Constitutional Court has found. Thus, it has been held that, as a rule, the establishment of the nature of a simple/extreme decision determines the need/obligation of the legislature to intervene in the legislative process, whereas the attribution of the nature of an interpretative decision/with reservation of interpretation does not give rise to such an obligation, but rather determines an obligation for the judicial bodies (and other bodies called upon to apply the law) to interpret the Court's decision and to determine its effects in order to apply it to the concrete case.
".It is thus important to note that, although the Court referenced specialized literature which mentioned manipulative decisions,
5)
in the next paragraph it partly invalidated the cited opinion. In this sense, the first paragraph regards manipulative decisions as "
intermediate
" type of decisions, different from simple/extreme decisions. However, the second paragraph uses a different criterion for defining a decision as simple or interpretative, namely the need or obligation of the legislature to intervene in the legislative process once the decision of the Constitutional Court was issued. Given that manipulative decisions aim to transform the meaning of the law so as not to leave a "
legal vacuum
" with "
harmful consequences
", for them to be effective, in criminal at law at least, the legislature must intervene, by adopting new laws to align the legislation with the Court's ruling. Based on this criterion, it seems that so-called manipulative decisions are more similar to (if not a subcategory of) simple or extreme decisions, where the Court doesn't find what the legislation prescribes as being unconstitutional. Rather, it finds that what it
doesn't
prescribe, or, in other terms, what the legislation
lacks
, makes it unconstitutional. Seen this way, it becomes clear that manipulative decisions create an obligation for the legislature to enact modifications to address the legal vacuum that, according to the Court, deems said piece of legislation as unconstitutional.Regardless of these classifications, what is clear is that the Court does, on occasions, find that certain legislation is unconstitutional based on what the law lacks. Thus, the Court granted upon itself the power to impose an obligation on the legislature to enact laws on aspects the legislative branch of Government did no see fit to address. Generally, when the Court does so, it usually phrases its findings in the sense that a certain "legislative solution" is unconstitutional.
As far as criminal