DECISION No.799 of 17 June 2011

on the bill for the revision of the Constitution of Romania

Published in the Official Gazette no.440 of 23 June 2011

On the grounds of Article 146 subparagraph a) final sentence of the Constitution, the Constitutional

Court adjudicates, ex officio, on the initiatives for the revision of the Constitution. Through Letter no. 1.172 dated 9 June 2011, the President of Romania forwarded to the

Constitutional Court the bill for the revision of the Constitution of Romania, initiated at the proposal of the Government.

The bill for the revision of the Constitution of Romania reads as follows: [...] To the case file, the Superior Council of Magistracy submitted a document stating its opinion on the

proposal for revision concerning the constitutional texts aimed at the judiciary. Likewise, The Romanian Magistrates Association transmitted to the Constitutional Court a viewpoint

on the "non-compliance of bill for the revision of the Constitution with the limits in matter of revision of the Basic Law, established by Article 152 of the Constitution".

Debating this bill on the hearings of 16 June 2011 and, respectively, 17 June 2011, THE COURT, having examined the bill for the revision of the Constitution of Romania, the report drawn up by the

judge-rapporteurs, the provisions of the Constitutions, as well as the provisions of Law no.47/1992 on the organisation and functioning of the Constitutional Court, holds as follows:

The power of the Constitutional Court to settle this case is stipulated by the provisions of Article 146 subparagraph a) final sentence of the Constitution, establishing that the Constitutional court "adjudicates [...], ex officio, on any initiative purporting a revision of the Constitution".

In exercising this power, the Constitutional Court shall adjudicate on the formal and substantive constitutional conditions for revision of the Constitution, provided under Title VII – Articles 150-152 of the Basic Law - "Revision of the Constitution", conditions relating to the initiative of revision and limits in matters of revision. Furthermore, the Court shall adjudicate in relation to the observance of the provisions of international treaties in matter of human rights to which Romania is part, and, in exercising its role as guarantor of the supremacy of the Constitution, it shall consider the proposed changes in terms of principles underlying and defining the Romanian State, provided by Article 1 of the Constitution.

A. Compliance with the conditions for exercising the right of initiative in matter of revision of the Constitution

The Court holds that the right of the President of Romania to initiate revision of the Basic Law is provided by Article 150(1) of the Constitution, stating that "A revision of the Constitution may be initiated by the President of Romania at the proposal of the Government [...]".

In this case, the Government adopted, as a bill, the proposal of revision of the Constitution in the session of 21 April 2010 and then forwarded it to the President of Romania, through Letter no.5/EB/38 of 21 April 2010.

Exercising his constitutional right, provided by Article 150 paragraph (1) of the Basic Law, the President of Romania decided to initiate the procedure of revision of the Constitution and, before referring the Parliament, he forwarded to the Constitutional Court the bill for the revision of the Constitution, accompanied by the following documents: explanatory memorandum, advisory opinion of the Legislative Council sent to the President of Romania through Letter no.256 of 9 June 2011, Letter of the Government of Romania no.5/EB/38 of 21 April 2010 for submission of the proposal for revision of the Constitution to the President of Romania, Letter of the Minister of Justice no.41.947 of 21 April 2010 whereby he sent to the Prime Minister the bill for the revision of the Constitution of Romania, together with explanatory memorandum.

Examining these documents, the Court found that the bill for revision submitted by the President of Romania to the Constitutional Court in order to pronounce a decision, based on Article 146 subparagraph a) first sentence of the Constitution contains a number of modification and additions to the bill for revision

submitted to the President of Romania by the Government. Thus, the Court is going to decide whether the intervention of the President, for the purpose of amending and completing the bill for revision of the Constitution proposed by the Government, constitutes a violation of the constitutional norms in matter of initiation of revision, rules that circumscribe its limits.

The Court held that the provisions of Article 150 of the Constitution, listing the holders of the right to initiate revision of the Constitution (the President of Romania, the Deputies and Senators, respectively the citizens), establish a number of conditions on the exercise of this right. In case of the President of Romania, the said provisions render conditional the concerned right only on the formulation of a proposal in this regard by the Government. Establishing that the revision "may be initiated by the President of Romania," the constitutional text does not distinguish on the powers of the President of Romania as holder of the right of initiative for revision of the Constitution, nor establish any obligation or prohibition in his respect. Therefore, the President of Romania, once he receives the Government's proposal for revision of the Constitution, have complete freedom to decide whether to initiate or not the revision of the Constitution, and, if he decides to initiate it, he can assume as such, in part or he can supplement the Government's proposal. A different interpretation of the constitutional text, for the purpose of awarding a formal role in this procedure to the President of Romania, which is to submit to Parliament a bill on revision of the Constitution as proposed by the Government, would be likely to deprive of content his right of initiative. However, this right was conferred to him by the constituent legislator precisely taking into account the role and position that the President of Romania occupy in the political system of society, which allows him to know its progress and prospects of development and to make use of these findings, including by initiating a process of modification of the Basic Law of the State, when, through the Government's proposal in this regard, an agreement is reached between the two representatives of the executive power on the initiation of such a process.

For the reasons set forth above, the Court found that the right of legislative initiative for revision of the Constitution was made in compliance with Article 150 paragraph (1) of the Constitution of Romania.

Furthermore, also the provisions of Article 19 paragraph (1) of Law no.47/1992 on the organisation and functioning of the Constitutional Court have been complied with, since the bill for revision submitted to the Constitutional Court was accompanied by the advisory opinion of the Legislative Council.

B. Compliance with the conditions concerning the limits on matters of revision of the Constitution

The Court finds that, in terms of limits on matters of revision, Article 152 of the Constitution provides: "(1) None of the provisions in this Constitution concerning the national, independent, unitary and indivisible character of the Romanian State, the Republican form of government, or territorial integrity, independence of judiciary, political pluralism, or official language shall be object of revision.

(2) Likewise, no revision shall be possible if it leads to the suppression of any of the citizens' fundamental rights and freedoms, or their safeguards.

(3) The Constitution may not be revised during a state of siege or a state of emergency, or at wartime."

The cited text provides substantive conditions on the initiative of revision [paragraphs (1) and (2) of Article 152] and formal conditions thereof [paragraph (3) of Article 152].

In terms of the formal conditions, regarding the normality of circumstances for the revision of the Constitution, the text of Article 152 paragraph (3) of the Basic Law, which prohibits revision of the Constitution during a state of siege or war, is corroborated with that of Article 63 paragraph (4), second sentence of the Constitution, according to which it shall be not allowed to revise the Constitution through the period the Chambers' term of office is extended until the new Parliament has lawfully convened.

The Court found that in this case, none of the situations referred to in the mentioned constitutional texts subsist, and that all formal requirements of the initiative of revision had been complied with.

In order to adjudicate on the substantive constitutionality of the initiative for revision, it is necessary to examine the proposed changes in relation to the provisions of Article 152 paragraphs (1) and (2) of the Constitution, in order to determine if they concern the national, independent, unitary and indivisible character of the Romanian State, the republican form of government, territorial integrity, independence of the judiciary, political pluralism and official language, and whether the proposed changes have the effect of suppressing the rights and freedoms of citizens or their guarantees. In this context, the Court analyzed also the manner of observance of the provisions of international treaties on human rights to which Romania is part, as well as of the principles that define and substantiate the Romanian State.

The Court, examining from this angle the bill for revision of the Constitution, first noted that the new proposed regulations aims to attain the following objectives, expressed in the explanatory memorandum accompanying this bill:

- change to a unicameral parliament, proposal justified by the option expressed in this regard by the majority of citizens who participated in the national referendum organised by the President of Romania on 22 November 2009;

- need for adaptations and adjustments of the Constitution to the realities of the contemporary society, the 20 years of application proving not only viability, but also a number of deficiencies in the application of some constitutional provisions to the realities of the social, economic and political Romanian life;

- institutional clarification and regulation of certain solutions likely to determine the cooperation of public authorities and likely to eliminate the blockages that might arise in the relationship between them, taking account, in particular, of the case-law of the Constitutional Court expressed in recent years as a result of settlement of legal disputes of a constitutional nature.

In achieving these goals, the bill for revision of the Constitution includes the following proposals: I. Under Title I – General Principles a single amendment is proposed, i.e. adding a third paragraph

to Article 6, Article that regulates the right to identity of national minorities. The new text, which provides the obligation incumbent on public authorities to consult the

organisation of citizens belonging to national minorities on the decisions concerning preservation, development and expression of their ethnic, cultural, linguistic and religious identity, gives expression to the State’s obligation to acknowledge and guarantee, as concerns this category of persons, the right to preserve, develop and express their identity, as provided by paragraph (1) of the same article, representing one of the means to guarantee the right referred to in the constitutional text.

This amendment does not question any of the limits in matter of revision provided by Article 152 paragraphs (1) and (2) of the Constitution. The Court does however hold that regulation of means in which the State guarantees the right to identity of national minorities is not to be established in the Constitution, but in a law, because there is no justification to transform any of these guarantees into a constitutional principle. Should this regulation be maintained, in order to avoid that the decisions of organisation of citizens belonging to national minorities on preservation, development and expression of their ethnic, cultural, and religious identity contravene the principles of equality and non-discrimination in relation to the other Romanian citizens, it should also be established these organisations’ obligation to consult in written the public authorities on the decisions they are about to adopt.

II. Under Title II – Fundamental rights, freedoms and duties the proposed amendments are determine by the necessary correlation with the proposal for amendment of the structure of Parliament, in the meaning of replacing the references to the two Chambers thereof [i.e. paragraph (2) of Article 37 and Article 60], correlations justified given the transition to a unicameral Parliament.

Likewise, there are proposed amendments of content as concerns Article 23 – Personal liberty, Article 40 – Freedom of association, Article 44 – Right to private property, Article 52 – Right of a person aggrieved by a public authority and Article 58 – Appointment and role [of the Advocate of the People].

1. Article 23 – Personal liberty The proposed amendment refers to paragraph (3) of Article 23 – Personal liberty, in the meaning of

extension of temporary police custody from 24 hours at the most to 48 hours at the most. The Court finds that custody of a person is a major interference in terms of personal liberty, so that

regulation of maximum duration of such measure, by a rule of constitutional status, is a real guarantee of personal liberty.

As for the duration of custody, it is a matter of criminal policy of the State, which should ensure a fair balance between the need to achieve the general interests of society and the defence of the rule of law, consisting in identifying and bringing to the competent judicial authorities the persons on whose respect there are reasonable grounds for suspecting that they have committed an offense or such is considered necessary to prevent them from committing an offence or to escape after having committed it, on the one hand, and the common interest of defending individual rights, on the other hand, without impairing the right to liberty of a person.

The Convention for the Protection of Human Rights and Fundamental Freedoms established in this respect, in Article 5 paragraph (1), the rule that any deprivation of liberty must be " in accordance with a procedure prescribed by law", i.e. to be regulated in domestic law. This principle is found also in Article 9 paragraph (1) of the International Covenant on Civil and Political Rights. In Article 5 paragraph (3) of the

Convention and in Article 9 paragraph (3) of the Covenant is established the rule that everyone arrested or detained shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. This correlates with that of Article 6 § 1 of the same Convention [enshrined also in Article 21 paragraph (3) of the Constitution of Romania], under which in the determination of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time. Furthermore, in a recent case, the European Court of Human Rights has held a measure can be considered prescribed by law, within the meaning of the Convention, if the law is foreseeable and accessible. Thus, in cases such as the Sunday Times v. United Kingdom of Great Britain and Northern Ireland, 1979, Rekvényi v. Hungary, 1999, Rotaru v. Romania, 2000, Damman v. Switzerland, 2005, the European Court of Human Rights stressed that " a norm cannot be regarded as a «law» unless it is formulated with sufficient precision to enable the citizen to regulate his conduct ".

The new wording of the constitutional text, regulating the maximum duration of custody, by means of a clear norm, not subject to interpretation, and the time limit established in that respect being likely to allow a minimum interference as concerns personal liberty, it does comply with the mentioned requirements and it cannot be interpreted as suppressing the guarantees of a fundamental right, in the sense of Article 152 paragraph (2) of the Constitution. The proposed amendment answers the State’s obligation to ensure a fair balance between the interest of defending individual fundamental rights and the interest of defending the rule of law, taking into account the problems encountered in practice in terms of actual duration of the custody period, as concerns the activity of criminal prosecution bodies, with direct consequences on the way in which general interests of society are ensured and the rule of law is protected. The maximum 48 hours custody is justified for the efficiency of the measure and its effectiveness.

2. Article 40 – Freedom of association The amendment of the text, which is aimed at enshrining the interdiction to join political parties also

for deputies of the Advocate of the People, replacement of the phrase "advocates of the people" with "Advocate of the People" and the phrase "active members of the Armed Forces" with that of "active military personnel" do not question limits in matter of revision of the Constitution.

Extinction of the interdiction provided by the text also for the deputies of the Advocate of the People is justified by their status and activity, subject to the law. The reasons substantiating this interdiction for the persons who act as Advocate of the People are the same as for those who act as deputies thereof, moreover as persons acting in this capacity can also act as substitutes of the Advocate of the People.

As for the reformulation of the other phrases, it adds precision and terminological consistency to the Basic Law. Thus, the current wording of the phrase "advocates of the people" is inadequate, since there can’t be more than one people acting at the same time as Advocate of the People. Regarding the replacement of "active members of the Armed Forces" with that of "active military personnel", such is a terminological correlation of the provisions of Article 40 of the Constitution - Freedom of association with those of Article 118 - Armed Forces, relating to the status of "military personnel".

3. Article 44 – Right to private property The proposed amendment concerns paragraph (8) of Article 44, which currently reads as follows:

"Lawfully acquired wealth may not be confiscated. Lawfulness of acquirement shall be presumed". The proposal is aimed at the elimination of the second sentence of Article 44 paragraph (8), i.e. “Lawfulness of acquirement shall be presumed."

The Court finds that has adjudicated on some initiatives concerning the revision of the same constitutional text, initiatives aimed at essentially the same purpose: the elimination from the Constitution of the presumption of lawfulness of acquirement.

Thus, by Decision no.85 of 3 September 1996, published in the Official Gazette, Part I, no.211 of 6 September 1996, the Court ruled on an initiative to revise the Constitution which proposed replacing the text that regulated this presumption with the following: "The wealth which lawful acquirement cannot be proven shall be confiscated." On that occasion the Court held that the presumption of lawful acquirement of wealth is one of constitutional guarantees of right to property, in accordance with the provisions of paragraph (1) of Article 41 of the Constitution [currently Article 44 paragraph (1)], stating that the right property is guaranteed. This presumption is based also on the general principle that any legal act or deed is legitimate until proven otherwise, requiring, as concerns the wealth of a person, that unlawful acquirement be proven. Bearing in mind that the proposed revision aims to overthrow the burden of proof on the lawfulness of wealth in the sense that one's wealth is presumed to be acquired unlawfully, until

proven otherwise by its holder, as well as that legal certainty of ownership of assets that make up one's wealth is inextricably linked to the presumption of lawful acquisition of property and that removal of this presumption is tantamount to suppressing a constitutional guarantee of the right to property, the Court found unconstitutional this proposal.

Likewise, By Decision no.148 of 16 April 2003, published in the Official Gazette of Romania, Part I, no.317 of 13 May 2003, the Constitutional Court adjudicated on the legislative proposal for amendment of the same text, amendment aimed at circumstantiating the presumption of lawful acquirement of wealth. The proposed text established that the presumption does not apply for "property obtained from criminal conduct". The Court held that this wording can be criticized and that it may lead to confusions, stressing that from the wording of paragraph (71), proposed to be introduced, it results that it meant to reverse the burden of proof on lawful acquirement, being provided the unlawfulness of wealth acquired from criminal conduct. As a result, referring also to its Decision no.85 of 3 September 1996, the Court held that also in this case the removal of this presumption has the significance of the suppression of a constitutional guarantee of the right to property, which is contrary to the provisions of Article 148 paragraph (2) of the Constitution [current Article 152 paragraph (2)]. On the same occasion, the Court, referring to the wording of the examined norm held that "if the text means to permit the confiscation of the goods acquired lawfully, but which was based on a quantity of money resulted from criminal offences, its wording is inappropriate".

This bill proposes the elimination from the Constitution of the presumption of lawful acquirement of wealth. As previously stated, the Court holds that this presumption is a guarantee of individual right to property. In the absence of such presumption, the owner of property would be subject to continuing insecurity because, whenever one would invoke the unlawful acquirement of the property, the burden of proof does not lay with the one who makes the statement, but with the owner of the property. That is precisely why, during the proceedings of the Constituent Assembly, in its session of 9 October 1991, it rejected the amendment aimed to remove the provision on the presumption of lawful acquirement of wealth, upheld only by the votes of 14 MPs, as reflected in the Official Gazette, Part II, No.29A of 11 October 1991.

Applying the provisions of Article 152 paragraph (2) of the Constitution, which states that no revision shall be possible if it leads to the suppression of any of the citizens' fundamental rights and freedoms, or their safeguards, the Court finds that elimination of second thesis of Article 44 paragraph (8) of the Constitution, stating that " Lawfulness of acquirement shall be presumed" is unconstitutional, because it results in suppression of a safeguard of the right to property, infringing thus the limits in matter of revision provided by Article 152 paragraph (2) of the Constitution.

The Court underlies in this context its case-law, i.e. Decision no.85 of 3 September 1996, abovementioned, or Decision no.453 of 16 April 2008, published in the Official Gazette of Romania, Part I, no.374 of 16 May 2008, in the meaning that the regulation of this presumption does not prevent the investigation of unlawful acquirement of wealth, but in this case the burden of proof lies with the person making such allegation. Insofar the interested party proves that some assets, part of the wealth or the entire wealth of a person was acquired unlawfully, those unlawful assets or wealth can be confiscated subject to the law.

The Court also emphasizes that the regulation of this presumption does not prevent the delegated or primary legislator to adopt, pursuant to Article 148 of the Constitution - Integration into the European Union, regulations to enable full compliance with EU legislation in the fight against crime. Moreover, this objective was also considered by the initiator of the proposed revision, especially with regard to Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property, published in the Official Journal of the European Union no. L 68 of 15 March 2005, which requires taking all measures necessary to comply with its provisions, particularly mitigating the onus of proof regarding the source of assets held by a person convicted of an offence related to organised crime.

4. Article 52 – Right of a person aggrieved by a public authority The proposed amendment concerns paragraph (3) of Article 52 - Right of person aggrieved by a

public authority, a text that in the current wording states that "The State is liable under the civil law to afford compensation for damages caused by a miscarriage of justice. The State liability is determined subject to the law and shall not eliminate fault liability of the magistrates who exercised their vested powers in ill-faith or gross negligence." In the proposed wording, the second sentence of paragraph (3) of Article 52 is worded as follows: "The State liability is determined subject to the law and shall not eliminate

fault liability of the magistrates for judicial errors committed." In the bill for revision of the Constitution, this text is correlated with the amendments proposed with respect to Article 73 - Classes of Laws and Article 124 - Administration of Justice. Thus, under paragraph (3) of Article 73 is introduced subparagraph s1 stating that "By organic law it shall be regulated [...] s1) liability of judges and prosecutors," and under Article 124 is introduced paragraph (4), stating that "Liability of judges and prosecutors shall be regulated by organic law."

The Court finds that the proposed amendment eliminating the expressions "ill faith" and, respectively "gross negligence", which circumstantiate magistrates’ liability reconcile the two sentences of the same paragraph of Article 52, relating to State’s liability and, respectively, magistrates’ liability for judicial errors, while in both cases, the conditions of liability are to be established by law. The amendment practically makes a distinction between a principle of constitutional status – State’s liability for damages and magistrates’ liability for judicial errors, and rules of infra-constitutional status- the conditions for such liability. This amendment does not question the limits in matter of revision of the Constitution, because the constitutional principle of independence of justice cannot be interpreted as relieving those who administer it from liability for judicial errors that they commit, given the consequences of these errors for both the litigants and the Romanian State. In addition, magistrates’ liability is to be determined, according to correlative proposed amendments, by means of organic law, i.e. rules considered as extensions of the constitutional provisions in terms of position and power in the hierarchy of legal acts, which is in itself a guarantee of respect for constitutional principles governing the administration of justice.

But this safeguard should be regulated in the text itself that establishes the liability of magistrates. Therefore, Article 52 paragraph (3) second sentence of the Constitution which, in the proposed wording, refers only to State’s liability "subject to the law" should be reworded as follows: "Subject to the organic law, State’s liability does not remove the magistrates’ liability for judicial errors committed."

5. Article 58 – Appointment and role [of the Advocate of the People] The additions to the current text in the meaning of clearly specifying the authority entrusted with the

appointment of the Advocate of the People, respectively by reference to the law on organisation and functioning of the institution, do not question any limits in matter of revision of the Constitution.

III. Title III – Public authorities a) Chapter I - Parliament 1. Article 61 – Role and structure [Parliament] Examining the contents of the bill for revision, as well as the accompanying explanatory

memorandum, it appears that the most significant modification refers to the shift to a unicameral parliament and the establishment of a maximum of 300 MPs, with proper re-correlation of constitutional texts that refer to Parliament, Deputies, Senators and legislative procedure.

The Court first noted that the amendment proposed in this regard is consistent with the national referendum of 22 November 2009, initiated by the President of Romania and confirmed by the Constitutional Court Resolution no. 37 of 26 November 2009, published in the Official Gazette, Part I, no. 923 of 30 December 2009, whereby the Court held that "of the validly casted votes, 72.31% were for the answer "YES" to the question "Do you agree with the change to a unicameral Parliament in Romania?", and 83, 31% of the validly casted votes were for the answer "YES" to the question "Do you agree with reducing the number of MPs to a maximum 300 people?" Therefore, most participants responded affirmatively to both questions."

This modification does not question any of the limits on matters of revision provided by Article 152 of the Constitution, but it represents exclusively a political choice on which the participants to the procedure of revision of the Constitution shall decide.

However, in expressing this option, the tradition of the Romanian State and the advantages offered by a bicameral structure of Parliament in relation to a unicameral structure should not be ignored.

The Court held in this respect that, traditionally, the Romanian Parliament had a bicameral structure. This structure of the legislative forum, enshrined in 1864, through the "Developing Statute of the Paris Convention" of the Romanian Ruler Alexandru Ioan Cuza, continued to exist under the rule of the 1866 1923 and 1938 Constitutions, being interrupted only during the communist regime, when national representation was unicameral - Grand National Assembly. After the revolution of 1989, by Decree-Law no. 92/1990 for the election of the Parliament and the President of Romania, published in the Official Gazette, Part I, no. 35 of 18 March 1990, the act under which elections were held in May 1990, was reintroduced the bicameralism formula. The 1991 Constitution restated, with some modifications, this structure of Parliament, upheld on the occasion of the 2003 revision of the Basic Law. Modification of

relevant text, made on the occasion of the revision, aimed only the change to a system of functional bicameralism.

The advantages of a bicameral structure of the legislative forum are quite obvious. Thus, it is avoided the concentration of power in Parliament, because its Chambers will prevent each other from becoming a support for an authoritarian regime. At the same time, it provides debates and a framework for successive analysis of laws by two different bodies of the legislative forum, which provides greater guarantee of the quality of the legislative act. Adoption of laws in a unicameral parliament is made after several successive “readings” of a text, as, it is, in fact, proposed in this draft law for revision of the Constitution. Being carried out by the same legislative body, readings can become an artificial formality, or can be removed for emergency reasons. Bicameralism determines that the second reading of the law be always carried out by another assembly, which is likely to cause a sharp critical perception. It is thus provided the opportunity for better critical cooperation, common and collective decision-making debate, being emphasized the formation of the will of the parliamentary state. In addition, the bicameralism minimizes the risk of majority rule, promoting dialogue between majorities of both Chambers, as well as between parliamentary groups. Cooperation and legislative supervision are extended in this way, thus demonstrating that the bicameral system is an important form of separation of powers, which does not function only between the legislative, the executive and the judiciary, but also within the legislative power.

Both tradition which, being connected to the being of the Romanian State, defines and represents the same, as well as the mentioned advantages are strong grounds for reflection on the occasion of option for one of two formulas: unicameralism or bicameralism.

2. Examining the other provisions of the bill for revision, the Court finds that the re-correlation, in terms of this proposal, of the constitutional texts, determined the modification of the following articles of the Constitution: Article 37 paragraph (2) – Right to be elected, Article 60 – Report before Parliament, Article 61 paragraph (2) – Role and structure of Parliament; Article 62 – Election of the Chambers, which became Election of Parliament, Article 63 paragraphs (1), (2) and (4) – Length of office, Article 64 – Organisational structure, Article 65 – Sittings of the Chambers, which became Sittings of Parliament, Article 66 - Sessions, Article 67 – Acts of Parliament and Quorum, Article 68 – Public sittings (repealed), Title III, Chapter I, title of second section – The status of Deputies and Senators, which became the Status of MPs, Article 69 paragraph (1) – Representative mandate, Article 70 – Term of office of Deputies and Senators, which became The term of office of MPs, Article 71 paragraphs (1) and (2) – Incompatibilities, Article 72 – Parliamentary immunity, Article 73 paragraph (3) subparagraph c) – Classes of laws, Article 74 paragraphs (1), (3), (4) and (5) – Legislative initiative, Article 75 – Referral to the Chambers - repealed; Article 76 – Passing of bills and resolutions, Article 77 paragraph (2) – Signing in the law, Article 82 paragraph (2) – Validation of mandate and oath-taking, Article 89 paragraph (1) – Dissolution of Parliament, Article 95- Suspension from office, Article 96 paragraphs (1) and (2) - Impeachment, Article 98 – Interim of office, Article 103 paragraphs (2) and (3) - Investiture, Article 105 paragraph (1) - Incompatibilities, Article 107 paragraph (1) – The Prime Minister, Article 111 paragraph (1) – Information to Parliament, Article 112 - Questions, Interpellations, and Simple Motions, Article 113 – Motion of censure, Article 114 – Assuming responsibility by the Government, Article 115 paragraph (5) – Legislative delegation, Article 133 paragraph (2) – Role and structure [Superior Council of Magistracy], Article 140 paragraph (3) – The Court of Audit, Article 142 paragraph (3) - Structure [Constitutional Court], Article 146 subparagraphs a), b), c) and e) – Powers [of the Constitutional Court], Article 148 – Integration into the European Union, Article 150 paragraph (1) – Initiative of revision, Article 151 paragraphs (1) and (2) – Procedure of revision.

Different from the amendments consisting in replacement of references to Deputies and Senators, respectively the references to the two Chambers of the legislative forum, which is a direct and formal consequence of the regulation of the unicameral structure of Parliament, under Chapter I - Parliament, of Title III – Public authorities, there are certain amendment of substance, respectively reformulations of the constitutional norms, and such are examined below.

3. Article 64 – Organisational structure The proposed amendments are essentially aimed at adapting the internal organisation of Parliament

to the unicameral structure and do not question any limits in matter of revision of the Constitution. In order to provide more clarity to paragraph (1) of Article 64, which, referring to the standing orders

of Parliament, uses the phrase "adopted by a majority vote of its members", and in conjunction with Article 76 paragraph (1) of the Constitution, it is recommended its replacement by " adopted through a resolution by a majority vote of its members ".

Likewise, in order to give full expression to the principle of parliamentary autonomy, i.e. to establish the right of parliamentarians to decide by own rules on the meaning of the concept "political spectrum", paragraph (5) of Article 64, which, in the proposed wording, provides that "The Standing Bureau and parliamentary Committees shall be made up so as to reflect the political spectrum of Parliament" should be completed with the phrase "established according to the Regulation on organisation and functioning of Parliament".

4. Article 65 – Sittings of Parliament In the proposed wording, the constitutional text is adapted to the specific structure of the unicameral

Parliament. The reference, therein, to the nature of sittings, determines, accordingly, the proposed repealing the current Article 68 Public sittings.

5. Article 71 - Incompatibilities According to the bill for revision, paragraph (1) of Article 71 of the Constitution regulates a new case

of incompatibility, that between the capacity as member of Parliament and member of the European Parliament, a justified proposal that does not question the limits in matter of revision of the Constitution.

To express the principle of separation and balance of powers and to ensure the full effectiveness of the constitutional text in the meaning of safeguarding the independence of members of Parliament and protecting the legislative against executive’s influence, paragraph (2) of Article 72 should be modified to eliminate the exception currently allowed, i.e. the possibility to act at the same time as member of Parliament and as Member of the Government. Keeping this provision would result in the ineffectiveness of constitutional provisions contained in Article 109 paragraph (1), reading as follows "The Government is politically answerable for its entire activity only before Parliament".

6. Article 72 – Parliamentary immunity Initially, the Constituent Assembly regulated parliamentary immunity as follows: "(1) Deputies and Senators may not be taken into temporary custody, arrested, searched or

prosecuted for criminal or civil offences, without consent from the Chamber whose members they are, after being duly heard. Jurisdiction shall rest in the Supreme Court of Justice.

(2) In case of a crime committed in flagrante delicto, a Deputy or a Senator may be taken into temporary custody and searched. The Ministry of Justice shall forthwith inform the President of the Chamber on such custody and search. Where the Chamber concerned finds no reasons for detainment, it shall order that the measure be cancelled out at once."

In the current wording, Article 72 of the Constitution, which regulates parliamentary immunity, reads as follows: "(1) No Deputy or Senator shall be held legally responsible for any vote cast or political opinion expressed in the exercise of his office.

(2) Deputies and Senators may be object to criminal prosecution or sent to trial for actions which are not related with votes or political opinions expressed in the exercise of their office, but they shall not be searched, detained or arrested without consent from the Chamber whose members they are, after being duly heard. Prosecution and indictment may only be carried out by the Prosecution Office attached to the High Court of Cassation and Justice. Jurisdiction shall rest in the High Court of Cassation and Justice.

(3) In case of a crime committed in flagrante delicto, a Deputy or a Senator may be taken into temporary custody and searched. The Ministry of Justice shall forthwith inform the President of the Chamber on such custody and search. Where the Chamber concerned finds no reasons for detainment, it shall order that the measure be cancelled out at once."

In the bill for revision of the Constitution, paragraph (1) of Article 72 is kept, the only difference consisting in replacement of the terms "Deputies" and "Senators" with "MPs", paragraph (3) of the same article is eliminated, and paragraph 2 reads as follows: "Prosecution and indictment of MPs, for actions which are not related with votes or political opinions expressed in the exercise of their office may only be carried out by the Prosecution Office attached to the High Court of Cassation and Justice. Jurisdiction shall rest in the High Court of Cassation and Justice."

Comparative analysis of the texts mentioned that the proposed amendment seeks to eliminate parliamentary inviolability, as a form of immunity.

Examining this proposal, in relation with Article 152 of the Constitution, the Court finds, firstly, that the current regulation of parliamentary immunity, under its two forms, i.e. lack of legal liability for votes cast or political opinions expressed in the exercise of the office [paragraph (1) of Article 72] and the inviolability of the MP [paragraphs (2) and (3) of Article 72], continues the tradition of the Romanian State whose foundations were laid ever since 1864. The Developing Statute of the Paris Convention provided in this respect, under Article VII, that the members of the Moderating Assembly, as well as the members

of the Elective Assembly, enjoy "inviolability", and that they could not be arrested or prosecuted during the parliamentary session, except of a crime committed in flagrante delicto, and only after the Assembly authorised the prosecution. The concept of parliamentary immunity was reiterated and strengthened by the subsequent constitutions, except those adopted during the communist dictatorship.

The 1991 Constitution of Romania enshrined again the concept of parliamentary immunity, virtually abolished during 1948-1989, which become a regulation of principle in accordance with the Constitutions of the European States, particularly influenced by the French model, which regulates distinctly the lack of legal liability and the inviolability. Thus the concept of parliamentary immunity is regulated both in terms of immunity for opinions, being generally accepted that no parliamentarian can be prosecuted, civilly or criminally, for statements made and votes cast in the exercise of his office, as well as in terms of material immunity, called also relative immunity, unprofessional or inviolability, being admitted, as a rule, that an MP cannot be arrested, searched or prosecuted in criminal matters, without consent from the Chamber whose member he is [for example, the constitutions of Belgium (Article 58 and Article 59), Finland (Article 30), France (Article 26), Greece (Articles 60-62), Italy (Article 68), Poland (Article 105), Portugal (Article 157), Spain (Article 71)]. Furthermore, in some cases, even if the MP was caught in the act, he cannot be arrested unless the offense is punishable with a prison sentence of at least five years [the constitutions of Croatia (Article 75), Macedonia (Article 64), Slovenia (Article 83)].

The constitutional regulation of parliamentary immunity is justified by the need to protect the parliamentary term of office, as safeguard for constitutional prerogatives accomplishment and also as a condition of operation of the rule of law. In his activity, the parliamentarian must enjoy real freedom of thought, expression and action in order to fulfill his office effectively. The concept of parliamentary immunity, under its two forms, protects the MP from any pressure or abuse that would be committed against his person, and thus being assured his independence, freedom and safety in the exercise of rights and obligations incumbent upon him under the Constitution and the laws.

Therefore, elimination of any of these forms of parliamentary immunity would directly result in suppression of a safeguard in terms of mandate of the Chambers, as well as of each MP, with serious consequences in terms of accomplishment by the Parliament of its constitutional role. As concerns the persons occupying the public office of MP, elimination of any of these forms of parliamentary immunity would result in the suppression of safeguards of certain fundamental rights and freedoms, respectively personal liberty and freedom of expression.

For these reasons, and seeing that the bill for revision of the Constitution eliminates the inviolability of the MP, i.e. that procedural immunity that protects the MP against abusive or vexatious prosecutions, the concept of parliamentary immunity being thus devoid of content, the Court finds that the proposed amendment is unconstitutional under this aspect because it has the effect of suppressing a safeguard of a fundamental right of persons occupying a public office, infringing thus the limits in matter of revision provided by Article 152 paragraph (2) of the Constitution.

7. Article 73 – Classes of laws Paragraph (3) of Article 73 establishes the domains that, given their importance, are regulated by

organic law. The bill for revision proposes the addition of a new domain to be regulated by organic law, i.e. that if liability of judges and prosecutors, paragraph (3) of Article 73 being supplemented for this purpose with subparagraph s1). The Court finds that the proposed regulation establishes a safeguard of the constitutional principles governing the administration of justice, which was emphasized also during the examination of constitutionality of the proposed amendment to Article 52 paragraph (3) of the Constitution. Given the nature of the domain concerned, however, it recommended that it be introduced in the structure of paragraph (3) of Article 73, immediately after the subparagraph l), which refers to "organisation and functioning of the Superior Council of Magistracy, the courts of law, the Public Ministry, and the Court of Audit", thereby constituting subparagraph l1).

8. Article 76 – Passing of bills and resolutions Adaptation of the procedure of passing bills and resolutions to the specificity of a unicameral

Parliament has determined the proposed amendment, therefore, the manner of regulation of this procedure. The Court finds in this regard that, under Article 76 paragraph (1) first sentence, a text that refers to the debate and vote in plenary of legislative proposals and draft laws in two successive readings, it is proposed, on the second reading, that such be made "at least 30 days away". The use in this context of the word "away" is improper, and it is recommended the replacement with the phrase "after at least 30 days".

b) Chapter II – The President of Romania

Of the constitutional provisions of Title III, Chapter II of the Constitution results that the head of the state has important powers in the process of appointment of the Government and of other public authorities, in the legislative process, in the area of foreign policy, in the area of national defence, in safeguarding the independence of justice.

Furthermore, pursuant to Article 80 paragraph (1) of the Constitution, the President is the guarantor for the independence of the nation, the unity and territorial integrity of the country, and pursuant paragraph (2) of the same article, he has the role to watch the observance of the Constitution and the proper functioning of the public authorities and acts as a mediator between State Powers as well as between the State and society.

In consideration of these powers and constitutional duties, the Court is going to examine the proposed amendments in relation to the presidential institution:

1. Concerning the supplementation of Article 85 with a new paragraph (21), stating that "The Prime Minister's proposal for dismissal and appointment of members of Government may be made only after consultation with the President ", the Court holds that:

Article 85 of the Constitution sets forth three cases in which the President of Romania appoints the Government [paragraph (1)] or only some members of the Government [paragraphs (2) and (3)]. In the case under paragraph (1) appointment is based on the Parliament’s vote of confidence in accordance with Article 103 of the Basic Law and in the case of paragraph (3) based on the Parliament's approval granted on the Prime Minister's proposal. The legal document under which such appointments are made by the President of Romania is the parliamentary decision adopted under the terms of Article 85 paragraph (1), of Article 103 paragraph (3) of the Constitution and of relevant provisions of the Regulation of the Joint Sittings of the Chambers of Parliament.

The regulation enshrined under Article 85 paragraph (2) of the same article provides that "the President dismisses and appoints, at the proposal of the Prime Minister, some Members of the Government". The literal interpretation of text requires the conclusion that in this case the President does not execute a decision of Parliament, but is in a position to decide himself the appointment of certain ministers, at the Prime Minister's proposal. The decision-making in this phase is by definition an act of will, it is obvious that the President is free to receive the Prime Minister's proposal or to ask him to make another proposal.

By Decision no.98 of 7 February 2008 on the request for settlement of the legal dispute of a constitutional nature between the President of Romania and the Government of Romania, formulated by the Prime Minister Călin Popescu-Tăriceanu, published in the Official Gazette of Romania, Part I, no.140 of 22 February 2008, the Constitutional Court found that "the solution provided under Article 85 paragraph (2) of the Constitution represents an application of the conception of the constituent legislator standing at the basis of the principle of balance of powers enshrined by Article 1 paragraph (4) of the Basic Law, principle equally applied in the modality of attribution and exercise of competences of all public authorities, inclusive of those who belong to the same power, of the three provided by the constitutional text. On the basis of this principle, in order to avoid institutional blockages and assure their proper operation, public authorities must collaborate." Likewise, the Constitutional Court found that "the relations between the President of Romania and the Prime Minister cannot be purely formal. That is why the President of Romania has the right to check upon the compliance with the requirements under Article 85 paragraph (2) of the Constitution, when the Prime Minister exercises, for the first time, his right to make a proposal. The limitation to a sole rejection of the proposal is justified by the fact that, further, the answerability for a different nomination rests exclusively with the Prime Minister".

Consequently, the Constitutional Court, considering that one of the conditions to achieve the fundamental objectives of the Romanian State, defined in the cited text, is the proper functioning of public authorities, in compliance with the principles of separation and balance of powers, without institutional bottlenecks, ascertained that, while applying Article 85 paragraph (2) of the Constitution, "the President of Romania, not having right of veto, may ask the Prime Minister only once, upon statement of grounds, to nominate a different person for the office of minister. The reasons for such request made by the President of Romania cannot be censored by the Prime Minister who, according to the procedure under Article 85 paragraph (2) of the Constitution, can only nominate a minister for appointment by the President, but he does not have decisional competence. As in case of all the other prerogatives provided by the Constitution, the President is politically answerable before the electorate for the reasons for which he declined the proposal of the Prime Minister, such as the Prime Minister and the Government are politically answerable before the Parliament."

Taking into account the reasons held by the Constitutional Court for adopting the aforementioned decision, the supplementation of the constitutional text in the sense of consultation of the President by the Prime Minister before making the proposal of dismissal or appointment of members of Government is tantamount to enshrining in the constitutional norm the solution rendered by the Constitutional Court.

2. Concerning the amendment of Article 87 paragraph (1): "(1) The President of Romania may take part in meetings of the Government where it discusses matters of national interest with regard to foreign policy, national security as well as in other instances, at the request of the Prime Minister."

The proposed revision aims to replace the phrases "national defence" and "public order" by "national security". For a more accurate transposition of the duties of the President to justify his presence at meetings of the Government, respectively those ensuring his role as guarantor of national independence, unity and territorial integrity (Article 80 paragraph 1), as well as his capacity as commander of the armed forces and head of the Supreme Council of National Defence (Article 92 paragraph 1), the Court recommends keeping the phrases in the current wording of the Constitution and adding the phrase "national security".

3. Concerning the supplementation of Article 90 with three new paragraphs, (2), (3) and (4): "(2) Issues that are subject to referendum and the date of the referendum shall be established by the

President of Romania, by means of a decree. (3) Parliament's viewpoint on the initiation of a referendum by the President of Romania is

expressed through a resolution adopted by Parliament with a majority vote of the members present, no later than 30 calendar days from the request of the President.

(4) If Parliament’s resolution is not adopted within the period specified in paragraph (3), the consultation of Parliament is deemed to be fulfilled, and the President of Romania may issue a decree on the organisation of the referendum."

In accordance with the provisions of Article 11 of Law no.3/2000 on the organisation and holding of a referendum, published in the Official Gazette, Part I, no.84 of 24 February 2000: "(1) The President of Romania, after consultation with Parliament, may ask the people to express their will through a referendum on matters of national interest.

(2) Issues that are subject to referendum and the date of the referendum shall be established by the President, by means of a decree.

(3) Parliament's viewpoint on a referendum initiated by the President shall be expressed through a resolution adopted in the joint sitting of both Chambers by a majority vote of the Deputies and Senators present, no later than 20 calendar days from the request of the President.

(4) If Parliament fails to transmit its viewpoint within the time limit specified in paragraph (3), the President of Romania shall issue the decree on the organization of the referendum, following the expiry of the specified time limit, and the constitutional procedure of consultation of Parliament shall be deemed fulfilled."

Therefore, the proposed amendment constitutionalises the norm comprised by the organic law, regulating at constitutional rank the procedure of initiation by the President of the referendum on issues of national interest. On this addition, the Court has doubts on the appropriateness thereof.

Apart from the proposed amendment, the Court considers necessary the supplementation of the provisions of Article 90 paragraph (1) for the purpose of exemption from the referendum called by the President the issues of national interest which, approved by the expressed will of the people, would require a constitutional revision. Elimination of this possibility would avoid double consultation of the people for the same issue: organisation of a first referendum whereby the people would express their opinion on an issue of national interest whose resolution requires a revision of the Basic Law, initiation of the procedure of revision for the purpose of those stated following the popular consultation and, finally, organisation of a referendum to approve the law for revision.

4. Concerning the supplementation of Article 92 with two new paragraphs, (31) and (5): "(31) Declaration of a state of war, as well as suspension or termination of armed hostilities shall be

made by Parliament, by majority vote of its members. (5) The President of Romania shall propose the appointment of directors of intelligence services

and Parliament exercises oversight over the activities of these services." The two paragraphs are not a novelty, they resume the constitutional solutions contained in the

current Article 65, proposed for repeal, which enshrines the sittings of the Chambers, and provides under paragraph (2): " Chambers can also meet in a joint session, based on the regulations passed by a majority vote of all Deputies and Senators, in order to:

d) declare a state of war; e) suspend or terminate armed hostilities; [...] h) appoint the directors of intelligence services, on the proposal of the President of Romania, and to

exercise oversight of the activity of these services." Concerning the provisions of Article 92 paragraph (31), for reasons of accuracy, in the meaning of

specifying the act by which the Parliament exercises its duties established in the Constitution, the Court proposes the supplementation of the text as follows "Declaration of a state of war, as well as suspension or termination of armed hostilities shall be made by Parliament, by resolution passed with the majority vote of its members ".

5. Concerning the supplementation of Article 94 subparagraph a): "a) to award and withdraw decorations and titles of honour;" The constitutional text in the new wording enshrines the President’s right to withdraw decorations

and titles of honour previously awarded to certain persons. On this issue, the Constitutional Court adjudicated by Decision no.88 of 20 January 2009, published in the Official Gazette of Romania, Part I, no.131 of 3 March 2009, and held the following:

"As concerns the allegation that the President of Romania is not entitled to withdraw decorations Article 94 of the Basic Law, under the title «Other powers», provides under subparagraph a) that the

President of Romania «awards decorations and titles of honour». The power to award decorations and titles of honour is exercised by the President of Romania given his capacity as representative of the Romanian State, pursuant Article 80 paragraph (1) of the Constitution. This power of constitutional nature was developed and enshrined in the regulations comprised by Law no.29/2000 on the national system of decorations of Romania and in the Government Emergency Ordinance no.11/1998 on the reinstatement of the National Order of the Star of Romania. Even if the Constitution did not specifically provided, aside the power of the President of Romania to award decorations, also that of withdrawal, the Constitutional Court finds that the first involves also the second, and that withdrawal of decorations results from the constitutional power to award. Thus, denying the possibility of the President of Romania to withdraw decorations is to restrict one of the power incumbent on him as representative of the Romanian State."

Consequently, the text proposed by the law for revision does nothing but to specifically enshrine what the Constitutional Court stated in its decision of interpretation of the provisions of Article 94 of the Constitution.

6. Concerning the amendment and supplementation of Article 95: "(1) In case the President of Romania has committed a serious offence in violation of the

Constitution, he may be suspended from office by the Parliament, by a majority vote of its Members, and after obtaining the mandatory advisory opinion of the Constitutional Court on the seriousness of the facts and violation of the Constitution.

(11) Continuation of suspension procedure is conditional upon the favourable opinion of the Constitutional Court. The President can give explanations before Parliament with regard to imputations brought against him.

(12) In case of a negative opinion from the Constitutional Court, the suspension procedure shall cease.

(2) The proposal of suspension from office may be initiated by at least one third of the MPs and shall be, without further delay, brought to the President’s attention."

Corroboratively, the provisions of Article 146 subparagraph h), shall be modified accordingly, in the meaning that the Constitutional Court "gives mandatory advisory opinion on the proposal to suspend the President of Romania from office".

According to the current regulation - Article 95 paragraph (1) first sentence of the Constitution, "in case the President of Romania has committed a serious offence in violation of the Constitution, he may be suspended from office by the Chamber of Deputies and the Senate, in a joint session, by a majority vote of Deputies and Senators, and after seeking opinion from the Constitutional Court". Likewise, pursuant to Article 146 subparagraph h), the Constitutional Court gives advisory opinion on the proposal to suspend the President of Romania from office.

From the compared analysis of the two texts it results that the modification concerns the nature of the advisory opinion requested to the Constitutional Court within the procedure for suspension of the President.

Thus, the current regulation enshrines the advisory nature of the act issued by the Court, the Parliament being the only authority competent to decide, based on data and information submitted to it

during debates, on the existence and seriousness of the facts for which was proposed the suspension from office of the President of Romania, in accordance with Article 95 of the Constitution.

The proposal contained in the draft law for revision of the Constitution enshrines a mandatory nature to the advisory opinion of the Court and provides the legal effects of such an act. Thus, continuation of the procedure of suspension is conditional on a favourable opinion of the Constitutional Court, where in case of a negative opinion, the procedure for suspension ceases. Analyzing the proposed modifications regulated in two separate paragraphs (11) and (12), the Court found that the provisions are redundant, enshrining in both paragraphs the same effect: continuation of the suspension procedure only in case of a favourable opinion, respectively its cessation in case of a negative opinion. The specific enshrining of the two types of opinions may be based on the fact that only negative opinion has an immediate effect, as it is likely to hinder continuation of the procedure of suspension of the President before Parliament. If the Constitutional Court's opinion is favourable, it is inconceivable the manner in which this act may force in any way the Parliament in taking a decision by majority vote of its members. Moreover, in such a situation, the Constitutional Court’s opinion would lead directly to the organisation of a referendum, Parliament's role being limited only to the initiation of the procedure for suspension.

Given these considerations, the Court proposed the elimination of the word "mandatory" from the constitutional provisions, the specific regulation of the extinctive effect of the negative opinion of the Constitutional Court regarding the procedure for suspension of the President being considered sufficient.

In other words, the modification made assigns determinant effects to the Constitutional Court’s opinion, increasing the role of this institution in the proceedings to suspend the President. In exercising the competence conferred by the Constitution, respectively the examination concerning some serious facts committed by the President infringing upon the constitutional provisions and delivery of a solution concerning these issues, the Constitutional Court assumes the role of guarantor for the supremacy of the Constitution. By virtue of that status, the Court is the sole authority to decide on violations of constitutional legal order referred to in Article 95 paragraph (1) of the Basic Law, such as acts of decision or failing to fulfil mandatory acts of decision, by which the President of Romania would hamper the functioning of public authorities, would suppress or restrict the rights and freedoms of citizens, would disturb the constitutional order or would aim to change constitutional order or other acts of similar nature which would or could have similar effects.

7. Concerning the amendment of Article 97 paragraph (2): "(2) Within 60 days after the office of President of Romania falls vacant, the Government shall

organize elections for a new President." The proposed amendment refers to the time limit in which the Government must organise elections

for the office of President in case of vacancy, a time limit that is reduced from 3 months to 60 days. The new text is meant to ensure the stability of the political system and of the democratic institutions, as well as existence of functional state authorities within the shortest time.

8. Concerning the amendment of Article 98 paragraph (2): "(2) Powers provided for under Articles 85 paragraph (1), Articles 88-90 and Article 103 of the

Constitution may not be exercised throughout the interim of the Presidential office." The proposed supplementation creates a restriction on the powers of the interim President as

concerns the designation of the candidate to the office of Prime Minister and implicitly formation of the Government. This restriction creates the premises for an institutional blockage if the Prime Minister finds himself in one of the situations provided by Article 106 of the Constitution, situations in which the Government is dismissed, or in case of dismissal of Government, if a motion of censure was voted under the terms of Article 113 of the Constitution, and for this reason the Court does not recommend the adoption of the proposed amendment.

c) Chapter III – The Government 1. Concerning the supplementation of Article 103 paragraph (2): "(2) The candidate to the office of Prime Minister shall, within 10 days from designation, seek the

Parliament's vote of confidence on the programme and complete list of the Government. The Parliament will decide by vote on the formation of the new Government within 10 days of being requested the vote of confidence. Otherwise, after the 10 days, the candidate proposed, together with the program and list of proposals for members of Government, shall be considered rejected by Parliament and the President of Romania shall designate another candidate to the office of Prime Minister."

The provisions of Article 103 paragraph (2) must be considered in conjunction with those of Article 89 paragraph (1) which were also amended as concerns the time limit that was shortened from 60 days to

45 days: "After consultation with the President of Parliament and with the leaders of parliamentary groups, the President of Romania may dissolve Parliament where no vote of confidence to form the Government has been obtained within 45 days after the first request, and only after rejection of at least two requests for investiture."

The proposed amendment is consistent with the provisions of Article 1 paragraph (4) of the Constitution, which enshrines the separation of powers and the obligation of public authorities to fulfil honestly and in good faith their constitutional powers. Moreover, the Constitutional Court repeatedly stressed the importance, for proper functioning of the rule of law, of cooperation between state powers, which should be expressed in accordance with the norms of constitutional loyalty, while loyal conduct is an extension of the separation and balance of powers (e.g. Decision no.1.431 of 3 November 2010, published in the Official Gazette, Part I, no.758 of 12 November 2010, or Decision No. 1 of 4 January 2011, published in Official Gazette Romania, Part I, no.135 of 23 February 2011).

2. Concerning the amendment of Article 105 paragraph (1), the Court finds that the reasons based on which was made the recommendation in terms of elimination of the exception currently established by Article 71 paragraph (2) final sentence of the Constitution, a text that allows a person to concomitantly hold the position of member of Parliament and that of Member of Government, apply mutatis mutandis also on the proposal of amendment of Article 105.

3. Concerning the amendment of Article 107 paragraph (4): "(4) Should one of the other Members of Government find himself in any of the situations stipulated

under Article 106 or where he is unable to exercise his powers, the President of Romania, at the proposal of the Prime Minister, shall designate another Member of the Government as interim Minister, until designation of a new Minister. The interim during the Minister's impossibility to exercise powers shall cease if the Minister resumes his activity in the Government. The interim cannot be longer than 45 days."

The proposed amendment takes the current solution provided by Article 107 paragraph (4), expressly providing for the procedure of designation of an interim Minister similar to that of designation of an interim Prime Minister. However, in the proposed drafting, the norm is likely to be interpreted in the meaning that also the Prime Minister may be designated as interim Minister when one of the other Government members are in a situation referred to in Article 106 or is unable to exercise his powers. Such an interpretation conflicts with the provisions of Article 107 paragraph (1) of the Constitution, stating that "The Prime Minister heads the Government and coordinates the activity of its Members, while observing the powers incumbent on them".

The Court recommends a more precise explanation of the concept "another member of the Government” designated by the President of Romania, at the proposal of the Prime Minister. The Court considers that this concept must not include the Prime Minister, whose role is to provide leadership and coordination of Government and not to perform the duties of a minister, even as interim, for a determined period of 45 days.

4. Concerning the amendment of Article 109: "(3) Regulation of criminal liability of members of Government, for acts committed in the exercise of

their office, shall be established by organic law. The prosecution and indictment of members of the Government shall only be carried out by the Prosecution Office attached to the High Court of Cassation and Justice. Jurisdiction for trial belongs to the High Court of Cassation and Justice."

The current regulation provides "(2) Solely the Chamber of Deputies, the Senate, and the President of Romania have the right to demand criminal prosecution be taken against Members of the Government for acts committed in the exercise of their office. Where criminal proceedings have been requested, the President of Romania may decree suspension from office. Indictment of a Member of the Government will result in his suspension from office. Jurisdiction for trial belongs to the High Court of Cassation and Justice.

(3) Cases of responsibility and applicable penalties for a Member of the Government shall be established under a Law on Ministerial responsibility."

Concerning criminal liability of members of Government, the Constitutional Court, by Decision no.1.133 of 27 November 2007, published in the Official Gazette of Romania, Part I, no.851 of 15 December 2007, held that the provisions of Article 109 paragraph (2) of the Constitution " unconditionally establishes the right of the Chamber of Deputies, of the Senate and of the President of Romania to demand criminal prosecution be taken against Members of the Government for acts committed in the exercise of their office.

Therefore, both Chambers of Parliament, as well as the President of Romania are free to establish, without exterior regulations, applying directly the Constitution, the modality in which they exercise this right.

The authorities under Article 109 paragraph (2) cannot be asked, without infringing thus the principle of separation of powers provided by Article 1 paragraph (4) of the Constitution, to carry out their own investigations or to set up extrajudicial structures which would verify the offences referred to them by the Public Ministry, by other organs of the State or by citizens. Such investigations are in fact related to the criminal prosecution or come before the criminal prosecution and they have nothing to do with the constitutional legal status, to the role and to the powers of the said public authorities.

Demanding criminal prosecution be taken against certain member of Government or refusing to take into account a reference in this respect, the Chamber of Deputies, the Senate and the President of Romania assume political responsibility for the validity of their decision."

On the other hand, enshrining in the Constitution of the right of the Chamber of Deputies, the Senate and the President of Romania to seek prosecution of members of the Government for acts committed in the exercise of their office is tantamount, as concerns the members of Government, to a constitutional safeguard of procedural nature, designed to protect the public interest, namely the achievement of the act of government by the exercise of the office. In other words, the provisions of Article 109 paragraph (2) of the Constitution set forth a measure of protection of the mandate exercised by the members of Government, thus having the objective character of a constitutional safeguard of personal liberty of the person occupying a high position and his right of defence. However, by repealing those provisions, the constitutional safeguard is suppressed, a situation that is likely to violate the provisions of Article 152 paragraph (1) of the Constitution.

d) Chapter IV - Relations between Parliament and Government relating to the amendment of Article 114:

"(1) The Government can assume its responsibility before the Parliament, only once in a session, with respect to a programme, statement of general policy, or bill."

(11) Limitation of assumption of responsibility set forth under paragraph (1) shall not apply for the State budget bill and the State social security budget bill.

(4) If the President of Romania demands reconsideration of the law passed according to paragraph (3), debate and vote shall be carried out by Parliament, in one reading, on the articles referred, followed by the final vote on the entire law."

In terms of Government’s assumption of responsibility, the 1991 Romanian Constitution was inspired by the 1958 French Constitution, which provided under Article 49 paragraph 3 that the Prime Minister can assume Government’s responsibility before the National Assembly for adoption of a text; the text was deemed adopted unless a resolution of no-confidence was voted. The constitutional provision allowed the Government to assume responsibility before the National Assembly very many times; in this respect, it is striking that in the ninth term (a term covering a period of 4 years), this procedure was used 39 times.

The French constituent legislator amended the procedure of assumption of responsibility of Government provided by Article 49 of the 1958 French Constitution by the Constitutional Law no.2008-724 of 23 July 2008 on modernisation of the institutions of the 5th Republic, limiting the use of the procedure of assumption of responsibility to a certain number per session. The current text of Article 49 paragraph 3 of the Constitution provides: "The Prime Minister may, after deliberation by the Council of Ministers, make the passing of a Finance Bill or Social Security Financing Bill an issue of a vote of confidence before the National Assembly. In that event, the Bill is considered passed unless a resolution of no-confidence, tabled within the subsequent twenty-four hours, is carried as provided for in the foregoing paragraph. In addition, the Prime Minister may use the said procedure for one other Government or Private Members' Bill per session."

Thus, following the constitutional revision of 23 July 2008, effective as of 1 March 2009, the French constituent legislator stipulated in terminis that Government may assume responsibility on the State budget bill and on the State social security budget bill. However, the Government can only assume once in a session responsibility on other bills.

As concerns the Constitution of Romania, the Court holds as follows: The provisions of Article 114 are the correspondent of Article 49 paragraph 3 of the French

Constitution in the wording preceding the constitutional revision of 2008. Interpreting the provisions of the constitutional text, the Court, in its case-law, established certain

conditions under which the Government may assume responsibility before Parliament. Thus, the

Government has the constitutional right to assume responsibility under the following conditions, respectively:

- the existence of an emergency in the adoption of measures contained in the law on which the Government has assumed responsibility;

- the need for the regulation in question to be adopted with utmost celerity; - the importance of the area covered; - the immediate application of the law in the case. Therefore, the Government is not limited in using the procedure of assumption of responsibility to a

certain number of times per session, the premises for using this procedure concerning the existence of an emergency in the adoption of the legislative measure, irrespective of the quantitative criterion. However, repeated assumption of responsibility by the Government and accentuated limitation of the Parliament’s main power, i.e. to legislate, are sufficient reasons for a stricter regulation of this institution. The quantitative limitation of the Government’s possibility to use this procedure within one parliamentary session eliminates the premises of abusive exercise by the Government of its constitutional right to assume responsibility before Parliament, and, as concerns the legislative authority, the latter can fully exercise its power, as established by Article 61 paragraph (1) of the Constitution.

Apart from the proposed amendment, the Court recommends the supplementation of the provisions of Article 114 paragraph (1) of the Constitution, in the sense of limiting the object on which the Government may assume responsibility to a program, a statement of general policy or a bill that would consistently regulate social relations concerning one area. The lack of such conditioning on the scope of regulation of the bill would lead to the circumvention of the constitutional provisions proposed to be amended, namely the possibility to assume responsibility only once in a session, because they entitle the Government to assume responsibility by means of a bill that formally meets the constitutional requirements, but which, by a complex structure and a heterogeneous content, would encompass rules of very different social areas.

The argument on which is based the proposal of the Constitutional Court is its case-law itself, for example in case of Law no.247/2005 on property and justice reform, as well as some accompanying measures, a bill on which the Government assumed responsibility and on which the Constitutional Court carried out an a priori constitutional review by Decision no.375 of 6 July 2005, published in the Official Gazette of Romania, Part I, no.591 of 8 July 2005. On that occasion, the challenges made were based on the provisions of Article 114 paragraph (1) of the Constitution, which although regulate the possibility of assumption of responsibility by the Government on a bill, "in this case, the Government has assumed responsibility over a package of bills as, otherwise, it has constantly announced the intention and the aimed purpose, but in reality, each of the 17 titles of the law represent a bill in itself, which exceeds the constitutional text.

The law adopted in this manner brings essential amendments and supplementations for 9 organic laws concerning the private property regime, for 3 organic laws concerning the judicial organisation, the magistrates’ status and the Superior Council of Magistracy, for two codes (criminal and fiscal), as well as for two new laws concerning the life annuity and the special procedure of trying certain lawsuits.

The drawing up and structuring of the law into 17 titles do not imply the infringement of the imperative provision of Article 114 paragraph (1) of the Constitution, as this text must be interpreted in relation with Article 61 concerning Parliament’s legislative monopole, as well as in relation with Article 102 paragraph (1) on the role of the Government."

However, analysing such challenges, the Court stated that "None of the provisions of the Basic Law forbids that by means of a law be settled more fields of social relationships. Thus, the Government may choose that by means of a bill, submitted to the Parliament for approval, by the normal law-making procedure, or by assumption of responsibility before the Parliament, to propose the settlement of more than one field through amendments, supplementations or repealing of several normative acts in force".

Therefore, for the proposed amendment to produce the effect expected by the initiator, it is necessary the completion of the provisions of Article 114 paragraph (1) of the Constitution, as mentioned by the Court.

On the other hand, the Court notes that the proposed amendment on quantitative limitation in the use of the procedure of assumption of responsibility by the Government to one time per session does not refer to "State budget bill or State social security budget bill [Article 114 paragraph (11) of the Constitution]; this phrase is slightly confusing because it is likely to be interpreted either in that any bill concerning this area can be subject to the procedure of assumption of responsibility by the Government,

or in that only State budget bill or State social security budget bill. Therefore, the constitutional provision should be redrafted in order to clearer specify the object of bills on which the Government may assume responsibility.

e) Chapter V – Public administration Section 1 – Specialised central public administration Concerning the supplementation of Article 119 with two new paragraphs, (2) and (3): "(2) Subject to the law, the Supreme Council for National Defence submits to the Parliament for

approval, the national security strategy. (3) The Supreme Council for National Defence submits to the Parliament the reports of activity, in

view of examination thereof." National security is achieved in the democratic order by fully exercising the citizens’ rights and

freedoms, taking conscious responsibility, improving the capacity of decision and action of the State, as well as Romania's status as an active member of the international community. As a national tool aimed to give strength and value of these requirements, the national security strategy is a synthesis integrator key, which is reflected by a set of plans, measures and arrangements to prevent and counter effectively the risks and threats that endanger the national values and interests, as well as the values that give identity and unity to the European construction. Given the importance of such a document-program it must be adopted the Supreme Council for National Defence and approval by Parliament.

Therefore, the law for revision of the Constitution entrusts the Supreme Council of Nation Defence, given its powers of organisation and unitary coordination of activities pertaining to national defence and security, under all aspects: internal security, energy security, food security, transport and infrastructure security, public health security, financial security, cyber security, etc., with a new constitutional obligation, namely to develop national security strategy that it submitted for approval to Parliament.

Paragraph (3) does not present any element of novelty, but it resumes the constitutional solution contained in the current Article 65, proposed for repeal, which enshrines the sittings of the Chambers, and provides under paragraph (2): " Chambers can also meet in a joint session, based on the regulations passed by a majority vote of all Deputies and Senators, in order to:

g) examine reports by the Supreme Council of National Defence" f) Chapter V: Judicial authority Section 1 Courts of law 1. Concerning the amendment and supplementation of Article 124: "(3) Judges are independent and subject only to the Constitution, laws and decisions of the

Constitutional Court. (4) Liability of judges and prosecutors is regulated by organic law." The proposal for supplementation of paragraph (3) intends to replace the synthetic and

comprehensive formulation that the Constitution currently contains with an illustrative formulation comprising, in addition to law, the Constitution and Constitutional Court’s decisions. The modification is an application of Article 1 paragraph (5) of the Constitution, under which "observance of the Constitution, of its supremacy, and the laws shall be obligatory in Romania", in conjunction with Article 142 paragraph (1), under which "the Constitutional Court is the guarantor for the supremacy of the Constitution". In exercising this constitutional role, Constitutional Court adjudicates on the constitutionality of laws before their promulgation, as well as on the exceptions of unconstitutionality of laws and ordinances, brought before the courts of law or of commercial arbitration or directly raised by the Advocate of the People. Pursuant to Article 147 paragraph (4), "Decisions of the Constitutional Court shall be published in the Official Gazette of Romania. As from their publication, decisions shall be generally binding and take effect only for the future". Moreover, the Constitutional Court held, by Decision no. 847 of 8 July 2008, published in the Official Gazette, Part I, no. 605 of 14 August 2008, that “a decision which makes a finding of unconstitutionality is part of the normative legal order, and by its effect that unconstitutional provision shall cease application for the future." Likewise, the Court also found that, in line with its case-law, for example Decision No. 1/ 1995 of the Constitutional Court Plenum regarding the binding character of its decisions pronounced within the constitutionality review, the res judicata which accompanies judicial acts, therefore the Constitutional Court decisions as well, is attached not only to the operative part of the decision, but also to its underlying reasoning. Thus, the Court noted that both the reasoning and the operative part of its decisions are generally binding and shall have equally binding force as against all legal subjects. Consequently, the Parliament, the Government, the courts, as well as the public authorities and institutions, in applying the impugned law, will have to comply with those established by the Constitutional

Court in the operative part and the reasoning of the decision. (For example, by Decision no. 1.415 of 4 November 2009, published in the Official Gazette of Romania, Part I, no. 796 of 23 November 2009, or by Decision no. 414 of 14 April 2010, published in the Official Gazette of Romania, Part I, no. 291 of 4 May 2010.)

Considering these reasons, the Court held that the proposed supplementation of the provisions of Article 124 paragraph (3) is redundant, the judges’ obligation to obey the Constitution and to respect the Constitutional Court’s decisions are already enshrined in the constitutional norms.

Moreover, the constitutional phrase currently in force, "The judges are independent and they subject only to the law" is the constitutional guarantee of "non-obedience" of the judge to other power, to other persons or interests, inside or outside the judiciary, and of his/her "obedience" just to the law, so that any subordination or control structure on the latter is excluded and does not affect his/her independence. The notion of "law" is used in its broadest sense, which includes the Constitution, as Basic Law, but also all other normative acts, legally equivalent to laws or of lower force, which constitute the normative assembly on which the act of justice should be based upon.

Concerning the proposed supplementation of Article 124 with a new paragraph (4), the Court finds it superfluous, because regulation of liability of judges and prosecutors, by means of an organic law, was already enshrined by the proposed introduction of a new subparagraph s1) under Article 73 paragraph (3).

2. Concerning the supplementation of Article 126 paragraph (6): "(6) Judicial review of public authorities' administrative action shall be guaranteed via courts for

administrative disputes, cases concerning relationships with Parliament or acts of military command, and those relating to fiscal and budgetary policies of the Government, under the terms of the administrative disputes law, being exempted. The courts hearing administrative disputes shall have jurisdiction to resolve applications filed by persons aggrieved by ordinances or, as the case may be, provisions in ordinances declared unconstitutional."

Following the 2003 revision of the Constitution, a new paragraph (6) was introduced under Article 126, establishing that courts for administrative disputes carry out judicial review of public authorities’ administrative action, a review that is guaranteed – acts of military command and those concerning relationship with Parliament - which, by their nature, are not subject to any form of judicial review.

From constitutional perspective, Article 126 paragraph (6) is the only regulation in terms of administrative action exempted from judicial review, and the norm is of strict interpretation, given that it constitutes derogation from the principle of free access to justice.

The proposed amendment of paragraph (6) is aimed at establishing a new exemption from judicial review, i.e. administrative acts relating to fiscal and budgetary policies of the Government.

Concerning the fiscal and budgetary policy of the Government, we mention that, according to the provisions of Article 137 paragraph (1) of the Constitution, "The formation, administration, use and monitoring of financial resources belonging to the State, territorial-administrative entities, or public institutions shall be determined by law". Furthermore, pursuant Article 139 paragraph (1), "Taxes, duties, or any other revenue of the State budget and the State social security budget shall only be imposed under the law".

As concerns the concept of "law", by Decision no.120 of 16 March 2004, published in the Official Gazette of Romania, Part I, no.296 of 5 April 2004, the Court held that it "has several meanings depending on the distinction operating between formal or organic criterion and the substantive one.

According to the first criterion, the law is characterized as an act of the legislative authority, identifying it by the body called upon to enact and procedure to be followed for this purpose. This conclusion emerges from the corroboration of the provisions of Article 61 paragraph (1) second sentence of the Constitution, republished, under which "The Parliament is [...] the sole legislative authority of the country" with the provisions of Articles 76, 77 and 78, stating that the law adopted by Parliament is subject to promulgation by the President of Romania and takes effect on the third day after the date of publication in the Official Gazette of Romania or at a later instant as is specified therein. The substantive criterion concerns the content of the regulation, being defined in consideration of the object of the norm, respectively the nature of social relations governed.

In terms of Government ordinances, the Court holds that developing such normative acts, the administrative body exercises a power by delegation which, by nature, falls within the legislative competence of Parliament. Therefore, the ordinance is not a law in the formal sense, but an administrative act having force of law by the effects it produces, respecting under this aspect the substantive criterion.

Consequently, as a normative legal act, in general, is defined both in form and in content, the law, lato sensu, thus covering also assimilated acts, is the result of combining the formal criterion with the substantive criterion".

Given the aforementioned arguments, the administrative act relating to fiscal and budgetary policies of Government can be exclusively an ordinance of Government. A contrary interpretation is likely to violate the provisions of Article 137 paragraph (1) and Article 139 paragraph (1) of the Constitution.

On the other hand, the fact that the concept of "administrative act" is not clearly defined in the constitutional norm, corroborated with the phrase "under the terms of administrative disputes law", is likely to be interpreted in the meaning that that law can establish the acts subject to judicial review, respectively the administrative acts exempted from this review. But such interpretation, allowing the ordinary legislator to add to the Constitution, by means of an infra-constitutional law, new cases of administrative acts exempted from judicial review, comes against the constitutional principle enshrined by Article 1 paragraph (5) on the supremacy of the Constitution, as well as the principle provided by Article 21 on free access to justice and, implicitly, Article 152 paragraph (2) that establishes the interdiction of revision of constitutional provisions leads to the suppression of any of the citizens' fundamental rights and freedoms.

Moreover, since the norm proposed in the law for revision establishes only the area of regulation – fiscal and budgetary policies of Government, to power to regulate the scope of administrative acts subject to judicial review lies exclusively with the legislator, primary or delegated. However, in the latter’s case – the Government, the capacities may overlap: that of legislator establishing the administrative acts exempted from judicial review and that of issuer of the respective acts, which contravenes the principle of separation of powers, enshrined by Article 1 paragraph (4) of the Constitution.

Furthermore, the infra-constitutional norm that would regulate the scope of administrative acts exempted from judicial review does not comply with constitutional and conventional requirement in terms of foreseeability, because modification of this scope is at the discretion of the ordinary legislator, which might generate discrimination amongst citizens.

Section 3 – The Superior Council of Magistracy 3. Concerning the amendment of Article 133 paragraphs (2), (3), (4), (5) and (6): " (2) The Superior Council of Magistracy consists of 19 members, of whom: a) 10 are elected in magistrates' general meetings, and validated by Parliament; they shall belong to

two sections, one for judges, another one for public prosecutors; the former comprises 5 judges, and the latter, 5 public prosecutors;

b) 6 representatives of civil society, who enjoy high professional and moral reputation: 3 appointed by Parliament and 3 by the President of Romania;

(3) The President of the Superior Council of Magistracy shall be elected for a term of office of one year, which can be renewed only once, from among the magistrates listed under paragraph (2) subparagraph a) and b). His/her term of office cannot be extended.

(4) The length of office for membership of the Superior Council of Magistracy shall be 6 years and cannot be extended or renewed.

(5) Decision ruled by the Superior Council of Magistracy cannot be taken through secret ballot and they shall state the reasons therein."

The essential modification concerns paragraph (2) on the structure of the Superior Council of Magistracy, in the sense that, although it keeps the total number of 19 members, the number of members representing civil society increases (from 2 to 6) and the number of members who have the status of judges and prosecutors decreases proportionally (from 14 to 10). The increase in the number of members representing civil society is corroborated by with the proposal of nomination of the 6, as follows: 3 by Parliament and 3 by the President of Romania.

The Court noted that also in other European countries, the structure of the representative body of the judicial authority, with powers to appoint, transfer, promote and sanction magistrates, is different and may include a variable number of members who are not magistrates.

Thus, in Portugal, according to Article 218 of the Constitution, the Supreme Judicial Council consists of: two members appointed by the President of the country, seven members elected by the Parliament and seven judges elected by the Magistrates’ General Meeting, on the basis of principle of proportional representation.

In Spain, the General Council of the Judicial Power is headed by President of the Supreme Court and is composed of 20 members appointed by the King of Spain, of which: 12 members are judges or other magistrates, 4 members are nominated by the Congress of Deputies and 4 members are proposed

by the Senate. The 8 members appointed by Parliament must be lawyers or other jurists with high professional competence and have over 15 years of professional experience.

In Italy, according to Article 104 of the Constitution, two thirds of the members of the Superior Council of Magistracy are elected from among magistrates, and a third of them are elected by Parliament, in joint session, from among the law professors and lawyers with over 15 years of professional experience.

Analyzing the proposed amendment, the Court held that, pursuant to Article 133 paragraph (1) of the Constitution and to Law no. 317/2004 on the Superior Council of Magistracy, republished in the Official Gazette, Part I, no. 827 of 13 September 2005, the Superior Council of Magistracy is an independent body, with permanent activity, with duties related to the careers of judges and prosecutors. At the same time, this Council is the guarantor of judicial independence and its members are accountable to judges and prosecutors for the activity exercised during their term of office.

The Court noted that the original constituent legislator decided to include in the membership of the Superior Council of Magistracy also members who are not magistrates, but who represent civil society, who are specialists in law and who enjoy high professional and moral reputation.

The Court found that the fulfilment of the constitutional role of the Superior Council of Magistracy, that of guarantor of judicial independence, as well as of the main tasks concerning career and disciplinary liability of magistrates, implies that judges and prosecutors must be represented in a number corresponding to the constitutional requirement, enshrined in Article 133 paragraph (1).

That is, by virtue of the powers of the Superior Council of Magistracy, the composition of this body should reflect the specificity of this activity, the quality of magistrates of its members - as requires the title itself of this supreme representative body, who know directly the implications of the work of this professional category, being characteristic for the decisions ruled by the Council.

On the other hand, the appointment of the 6 representatives of the civil society by Parliament, the legislative authority, respectively by the President of Romania, representative of the executive authority, constitute an interference of the other constitutional powers in the activity of the judiciary, calling into question the role of the Superior Council of Magistracy as guarantor of judicial independence. Thus, increasing the number of members of civil society representatives, therefore of people outside the judiciary, and change of the proportion of representation in the Council, have negative consequences on the activity of the judicial system. Moreover, we would reach a situation where these members acquire an important role in the disciplinary liability of judges and prosecutors, which is an interference of the political in the justice, circumstance that is likely to annihilate the constitutional guarantee concerning the independence of justice.

However, the proposed text modifies also paragraph (3) of Article 133, providing that the President of the Superior Council of Magistracy may be elected both from among the members - judges or prosecutors, and from among members - representatives of civil society. For the foregoing reasons, the Court holds that also this change is likely to affect the constitutional guarantee that enshrines the independence of justice.

Another amendment to paragraph (3) of Article 133 consists of the possibility that the term of office of the President of Superior Council of Magistracy be renewed once, but not extended. The Court notes that the change is justified by the fact that the term of the President of the Council is very short, of only a year, and therefore a provision on its renewal, the same time restricting such to just one, was necessary.

Under paragraph (4) of Article 133, the initiator proposes an interdiction on extension and renewal of members’ term of office. The Court noted that the term of office of members of the Superior Council of Magistracy is of 6 years and that the interdiction on its extension or renewal is provided in Article 51 paragraph (1) of Law no. 317/2004 on the Superior Council of Magistracy. Therefore, the proposed amendment only constitutionalises the norm contained in the organic law.

Concerning paragraph (5), such was subject to amendment, in the sense that the Council’s decision cannot be taken by secret ballot and shall be justified. This change represents a guarantee of the fundamental rights of access to justice and of defence, as the Superior Council of Magistracy has powers regarding the appointment and dismissal of judges and prosecutors, appointment of trainee judges and prosecutors, promotion of judges and prosecutors, dismissal of trainee judges and prosecutors. Through the open vote and the obligation to motivate the decision, this norm ensures transparency of the activity of the Council, constituting a guarantee of observance of the mentioned constitutional rights against abuses and arbitrariness. Moreover, by virtue of its status as guarantor of judicial independence, the Superior Council of Magistracy must obey the constitutional requirements regarding its decisional acts,

which can glide under suspicion if they do not contain the arguments on which the adopted decision is based.

Apart from the examination of the proposed revision of Article 133 of the Constitution, the Court brings again to discussion its findings in the Decision no.148 of 16 April 2003 on the constitutionality of the legislative proposal for revision of the Constitution of Romania, published in the Official Gazette of Romania, Part I, no.317 of 12 May 2003. Thus, with respect to the provisions of paragraph 7 under Article 133 which establish that "Decisions ruled by the Superior Council of Magistracy shall be final and irrevocable, except for those stipulated under Article 134 paragraph (2)", the Court stated that "this provision is in antinomy with the provisions of Article 21 paragraph (1) of the Constitution, stating that «Everyone shall have access to the courts in order to defend his rights, freedoms and legitimate interests». Moreover, in a state governed by the rule of law failure to ensure free access to courts is unacceptable. Therefore, the interdiction on the appeal to courts, on this type of decisions, is contrary to the principle established by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, under which everyone is entitled to a fair trial, such trial being excluded in lack of a court effectively guaranteeing the independence of the judge.

The Superior Council of Magistracy operates as a court of law, in sections and in plenary, in matters of disciplinary jurisdiction of judges and prosecutors, while the Minister of Justice and the General Prosecutor have no vote in like instances, subject to the procedure established in its organic law. This constitutional provision cannot ban free access to justice of a person tried by this extrajudicial «court», without violating the provisions of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms".

The Court therefore considers it appropriate to reconsider the final and irrevocable nature of the decisions ruled by the Superior Council of Magistracy as enshrined in Article 133 paragraph (7) of the Constitution.

IV. Title IV – Economy and public finances 1. Concerning the amendment and supplementation of Article 138: "(2) The Government prepares the drafts for the State budget and for the State social security

budget, and such are submitted to the EU institutions, after prior information of Parliament on their contents.

(21) The Government singly submits to Parliament for approval the drafts for the State budget and for the State social security budget."

The proposed amendment of the constitutional text contained in paragraph (2) of Article 138 concerns the obligation of the Government to send to the European Union institutions the drafts for the State budget and for the State social security budget, after informing the Parliament. The constitutionalisation of such obligation, limited to the submission of these drafts to the EU institutions, carries certain critics. Thus, the extent to which Romania is a member of the European Union and as such it exercised together with other Member States' the powers established under the EU treaties, the consecration of this obligation at the constitutional level appears to be redundant and excessive.

Paragraph (21) is not an element of novelty, it simply resumes the constitutional solution contained in the current Article 138 paragraph (2), concerning the singly submission to Parliament for approval of the two drafts for the State budget and for the State social security budget.

2. Concerning the introduction of Article 1381, with the marginal denomination "Financial Policy":

(1) The State must avoid excessive public deficits. The budget deficit cannot exceed 3% of gross domestic product and public debt cannot exceed 60% of the gross domestic product.

(2) Foreign loans can be contracted only for investments. (3) In cases of natural disasters or exceptional situations of significant negative impact on public

finances, the maximum values provided under paragraph (1) can be exceeded, with the consent of the majority members of Parliament, only if the excess can be compensated within maximum 3 years.

(4) Notwithstanding the provisions of paragraph (2), for preventing the consequences of a natural calamity or a very serious disaster, with the consent of the majority members of Parliament, also other foreign loans can be contracted."

According to the Stability and Growth Pact (SGP) - Agreement between the Member States of the European Union aimed to coordinate national fiscal policies in the Economic Monetary Union in order to ensure a climate of stability and budgetary prudence, the excessive deficit procedure is the main instrument of coercion of Member States to meet the convergence criteria set by the Maastricht Treaty

on avoidance of excessive public deficits. If a State has a budget deficit exceeding 3% of GDP or public debt greater than 60%, the Commission may recommend the Council to take a series of measures against the State that violates the terms of the Pact.

As of 1 December 2009, the date of entry into force of the Lisbon Treaty, the provisions of Article 104 of the Maastricht Treaty were reproduced in Article 126 of the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union no. C83 of 30 March 2010. According to these provisions, "(2) The Commission shall monitor the development of the budgetary situation and of the stock of government debt in the Member States with a view to identifying gross errors. In particular it shall examine compliance with budgetary discipline on the basis of the following two criteria:

(a) whether the ratio of the planned or actual government deficit to gross domestic product exceeds a reference value, unless:

- either the ratio has declined substantially and continuously and reached a level that comes close to the reference value,

- or, alternatively, the excess over the reference value is only exceptional and temporary and the ratio remains close to the reference value;

(b) whether the ratio of government debt to gross domestic product exceeds a reference value, unless the ratio is sufficiently diminishing and approaching the reference value at a satisfactory pace.

The reference values are specified in the Protocol on the excessive deficit procedure annexed to the Treaties".

In this respect, Article 1 of Protocol no. 12 on the excessive deficit procedure establishes that "The reference values referred to in Article 126(2) of the Treaty on the Functioning of the European Union are:

- 3 % for the ratio of the planned or actual government deficit to gross domestic product at market prices;

- 60 % for the ratio of government debt to gross domestic product at market prices." Likewise, pursuant to the Declaration on Article 126 of the Treaty, "raising growth potential and

securing sound budgetary positions are the two pillars of the economic and fiscal policy of the Union and the Member States. The Stability and Growth Pact is an important tool to achieve these goals. [... ] The Conference [... ] confirms that a rule-based system is the best guarantee for commitments to be enforced and for all Member States to be treated equally. [... ] The Union aims at achieving balanced economic growth and price stability. Economic and budgetary policies thus need to set the right priorities towards economic reforms, innovation, competitiveness and strengthening of private investment and consumption in phases of weak economic growth".

The Law for revision enshrines, at the level of legal norm of constitutional level, the principle of budgetary balance: regulation of a maximum budgetary deficit of 3% of the gross domestic product and public debt not exceeding 60% of the gross domestic product. The proposal is based on the need to convert into a constitutional criterion the economic exigency concerning budgetary discipline and budgetary rigor and does not violate the limits on matters of revision of the Constitution prescribed by Article 152 paragraph (1).

V. Title V – The Constitutional Court 1. Concerning the amendment of Article 142 paragraph (3) "(3) Six judges are appointed by Parliament and three by the President of Romania." The amendment reflects the change in structure of Parliament from bicameral system to unicameral

system, so that appointment of judges of the Constitutional Court is to be adapted to the new regulation. 2. Concerning the amendment of subparagraphs a), b), c), e) and h) of Article 146 The amendments concern the change in the structure of Parliament and the subjects that may refer

the Constitutional Court, i.e. the president of Parliament and 40 MPs. Concerning the amendment of subparagraph h), it was previously examined in the analysis of

modifications in the law for revision of the constitutional provisions concerning the suspension of the President.

In addition to the analysis of the proposal for revision concerning the provisions of Article 146 of the Constitution, the Court considers appropriate the supplementation of the provisions under subparagraph a) as follows "a) it adjudicates on the constitutionality of laws before promulgation, upon referral by the President of Romania, the President of Parliament, the Government, the High Court of Cassation and Justice, the Advocate of the People, at least 40 MPs, as well as ex officio, on any initiative purporting a revision of the Constitution and the laws for revision of the Constitution, before their approval by

means of a referendum;" and of subparagraph c) as follows "c) it adjudicates on the constitutionality of the Standing Orders and of the resolutions of normative type of Parliament upon referral by the President of Parliament, a parliamentary group or at least 40 MPs;".

The proposal seeks the constitutionalisation of the norms contained in Law no. 47/1992 on the organisation and functioning of the Constitutional Court, regulating at Constitution level, the powers of the Court regulated within Article 27 paragraph (1) of its organic law. Concerning the supplementation of subparagraph a), the Court deems it necessary that the law for revision passed by Parliament, before being subjected to a referendum under Article 151 paragraph (3) of the Basic Law, be examined by the Constitutional Court to determine, on the one hand, if the Court decision on the bill or proposed revision of the Constitution has been complied with and, on the other hand, if the amendments to the bill or proposed revision in parliamentary debate and approval procedure comply with the constitutional principles and provisions in matter of revision.

Likewise, regarding the provisions of Article 146 subparagraph e), the Court considers necessary the reassessment of this power so as to circumscribe the notion of "legal dispute of a constitutional nature" only to the disputes between public authorities which " require specific acts or actions whereby one or more authorities have assumed powers, duties or competencies which, according to the Constitution, belong to other public authorities, or the omission of certain public authorities, consisting in declining their competence or refusal to perform acts falling under their obligations". Such a conception is consistent with those established by Decision no.53 of 28 January 2005, published in the Official Gazette, Part I, no.144 of February 17, 2005, or by Decision no.97 of 7 February 2008, published in Official Gazette, Part I, no.169 of 5 March2008, stating that "the constitutional legal conflict arises between two or more authorities and may concern the content or scope of their duties deriving from the Constitution, which means that such are disputes of competence, positive or negative, which may create an institutional blockage ".

According to the text currently in force, the Constitutional Court is competent to settle on the merits any legal disputes of a constitutional nature arisen between public authorities, and not only positive or negative disputes of competence of constitutional nature between public authorities, as normal. In order to avoid Court’s involvement in the settlement of certain conflict deriving from political disputes or disputes of other nature than legal, the Court finds that it is appropriate the modification of the constitutional text so that the power of the Court be only related to the settlement of conflicts of authority, respectively positive or negative conflicts of competence.

The Court recommends the repeal of subparagraph l), which states that "it also fulfils other prerogatives as provided by the Court's organic law". The proposal is justified by the fact that under this provision, the Court, besides the powers "of constitutional rank" established under Article 146 subparagraphs a) - k), may acquire other prerogatives established by ordinary legislator in its law of organization and operation, prerogatives of legal "rank".

That is, under the constitutional text proposed for repeal - Article 146 subparagraph l), the powers of the Constitutional Court can be replicated whenever interests of political forces require modification or supplementation of the law on the organisation of the Court. The Court considers that, by removing the constitutional provision, it is guaranteed the constitutional court’ independence and it is preserved the will of the primary constitutional power on the attributes of the Court restrictively provided only in the contents of the Constitution.

Apart from those mentioned above, the Court proposes the introduction of a new power of the Constitutional Court, respectively that to adjudicate, ex officio, on the constitutionality of decisions of the High Court of Cassation and Justice concerning settlement of appeals in the interest of the law. The proposal submitted is based on the fact that, on the one hand, interpretation to legal issues subject to settlement is binding on the courts, and on the other hand, according to Article 124 paragraph (3) of the Constitution, judges are independent and subject only to the law.

In the Constitutional Court Decision no.838 of 27 May 2009, published in the Official Gazette, Part I, no.461 of 3 July 2009, it was held "in exercising the power provided under Article 126 paragraph (3) of the Constitution, the High Court of Cassation and Justice is required to ensure interpretation and unitary application of the law by all courts, in compliance with the principle of separation of powers, enshrined in Article 1 paragraph (4) of the Constitution. The High Court of Cassation and Justice has no constitutional competence to establish, amend or repeal legal rules laid with force of law or to perform the constitutional review thereof ".

The Constitutional Court considers that the solutions delivered in appeals in the interest of the law, binding on courts, adopted to ensure interpretation and uniform application of law must meet the constitutional requirements, which requires the constitutional review thereof.

VI. Title VI – Euro-Atlantic Integration 1. Concerning the amendment of Article 148 "(1) Romania is a Member State of the European Union and it shall exercise jointly with other

Member States the powers established under the European Union treaties. (11) Ratification of the acts for revision of the constituent treaties of the European Union shall be

made by law passed by Parliament with a majority of two thirds of its members. (2) Following Romania’s accession to the European Union, the provisions of the constituent

treaties or of treaties of revision, as well as the other binding European Union regulations shall take precedence over contrary provisions of the national laws.

(21) Ratification of the Treaty on accession of a State to the European Union shall be made by law passed by Parliament with a majority of two thirds of its members."

The proposed revision formally enshrines the membership of the European Union, updating the constitutional provisions adopted in the pre-accession period. The new text resumes the constitutional solution on ratification, this time in terms of acts for revision of the constituent treaties of the European Union and treaties concerning the accession of certain States to the EU, by laws adopted by Parliament with a majority of two thirds of its members. Furthermore, the law for revision resumes the solution that establishes priority for the application of constitutional treaties and other binding legal acts in relation to the provisions of the national laws. The Court notes that, following accession to the EU, Member States must respect a fundamental principle of the Community legal order, namely the direct effect of rules adopted by the EU institutions.

Moreover, the new article does no longer contain the Government’s obligation to forward to Parliament the binding acts drafts before submission for approval to the EU institutions.

The Court notes that, in areas requiring application of the principle of subsidiarity, the provisions of Article 4 of Protocol No.2 on the application of the principles of subsidiarity and proportionality, published in the Official Journal of the European Union no.C83 of 30 March 2010, specifically provide the obligation of EU institutions to forward draft legislative acts to national parliaments, thus, "The Commission shall forward its draft legislative acts and its amended drafts to national Parliaments at the same time as to the Union legislator.

The European Parliament shall forward its draft legislative acts and its amended drafts to national Parliaments.

The Council shall forward draft legislative acts originating from a group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank and amended drafts to national Parliaments".

2. Concerning the amendment of Article 149 with the title "Accession to the North Atlantic Treaty"

"Romania is a party to the North Atlantic Treaty. Obligations arising from this capacity of Romania will be fulfilled by Parliament, President of Romania and Government."

The proposed revision formally enshrines the status as party to the North Atlantic Treaty, specifically mentioning the authorities entrusted to fulfil the duties arising from this capacity.

VII. Title VIII – Final and transitional provisions 1. The Court recommends the repeal of Article 154 paragraph (2) of the Constitution, which states

that the Legislative Council shall, within 12 months after its organisation Law came into force, examine compatibility of all legislation with this Constitution, and shall accordingly forward proposals to Parliament or Government, as may be applicable, because the constitutional provisions have exhausted their legal effects, and at present are obsolete.

2. Concerning the amendment of Article 155 "(1) This law for revision of the Constitution enters into force after its approval by means of a

referendum. (2) The institution provided under the Constitution, in operation at the time of entry into force of the

law for revision, shall continue to operate until the new ones are set up. (3) Until the new Parliament elected according to this law for revision is lawfully convened, bills and

legislative proposals pending legislation shall be debated and adopted pursuant to the constitutional provisions applicable before the entry into force of the law for revision.

(4) Once the new Parliament elected according to the law for revision is lawfully convened, bills and legislative proposals adopted or dismissed by the first Chamber referred, pursuant to the constitutional provisions applicable before the entry into force of the law for revision, shall be debated and adopted by Parliament, in one reading, per articles, followed by the final vote on the entire law."

The law for revisions provides transitional provisions to ensure continuity of the legislative process and of Parliament’s activity.

Inclusion of certain provisions on the entry into force of the law for revision after its approval by means of a referendum pursuant to Article 155 paragraph (1), as well as inclusion of certain provisions concerning submission of the law for revision to a referendum, pursuant to Article II "Revision adopted by this law shall be subject to approval by means of a referendum held according to the provisions of Article 151 paragraph (3) of the Constitution of Romania" of the bill, are imprecise. Thus, the Court considers that the provisions of Article II of the law for revision should be reformulated as follows: "The law for revision of the Constitution of Romania comes into force on the day of publication in the Official Gazette of Romania, Part I, of the Constitutional Court Ruling for confirmation of the results of the national referendum on the law for revision."

For the reasons set forth herein, on the grounds of Article 146 subparagraph a) final sentence, Article 150 paragraph (1) and Article 152 of the Constitution, as well as Articles 19-21 of Law no.47/1992 on the organisation and functioning of the Constitutional Court,

THE CONSTITUTIONAL COURT In the name of the law DECIDES: 1. By majority vote, finds that the bill for the revision of the Constitution was initiated in compliance

with the provisions of Article 150 paragraph (1) of the Constitution. 2. By majority vote, finds that elimination of the second sentence of Article 44 paragraph (8) of the

Constitution, stating that "Lawfulness of acquirement shall be presumed" is unconstitutional because it results in suppression of a guarantee of the right to property, infringing thus the limits in matter of revision provided by Article 152 paragraph (2) of the Constitution.

3. By majority vote, finds that the amendment of paragraph (2) and elimination of paragraph (3) under Article 72 of the Constitution are unconstitutional, because they result in suppression of a fundamental right of a person occupying a high office, infringing thus the limits in matter of revision provided by Article 152 paragraph (2) of the Constitution.

4. By majority vote, finds that the repeal of paragraph (2) and amendment of paragraph (3) under Article 109 of the Constitution are unconstitutional, because they result in suppression of a fundamental right of a person occupying a high office, infringing thus the limits in matter of revision provided by Article 152 paragraph (2) of the Constitution.

5. By majority vote, finds that the amendment of paragraph (6) under Article 126 of the Constitution, in the sense of introducing the phrase "well as those relating to fiscal and budgetary policies of the Government, under the terms of the administrative contentious law " is unconstitutional, because it results in suppression of the free access to justice, infringing thus the limits in matter of revision provided by Article 152 paragraph (2) of the Constitution.

6. By majority vote, finds that the amendment of paragraph (2) subparagraphs a) and b) and paragraph (3) of Article 133 are unconstitutional, because they result in infringement of the independence of justice, contrary to the provisions of Article 152 paragraph (1) of the Constitution.

../../../../../Documents and Settings/user/My Documents/Documents and SettingsuserSintact 2.0cacheLegislatietemp%227. Submits to the attention of the President of Romania the observations made in the reasoning part of this decision concerning the following provisions of the bill for the revision of the Constitution: Article 6 paragraph (3), Article 52 paragraph (3), Article 64 paragraph (1) and paragraph (5), Article 71 paragraph (2), Article 73 paragraph (3) subparagraph and Article 76 paragraph (1), Article 87 paragraph (1), Article 90, Article 92 paragraph (31), Article 95, Article 98 paragraph (2), Article 105 paragraph (1), Article 107 paragraph (4), Article 114 paragraph (1), Article 124 paragraphs (3) and (4), Article 133 paragraph (5), Article 146 subparagraphs a), c), e) and l), Article 154 paragraph (2), Article 155 paragraph (1) and Article II.

8. By unanimous vote, finds that the other provisions of the bill for the revision of the Constitution do not contravene the constitutional provisions.

Final and generally binding.

This decision shall be communicated to the President of Romania and shall be published in the Official Gazette of Romania, Part I.

The proceedings took place in the sessions of the Constitutional Court Plenum of 16 and 17 June 2011, attended by: Augustin Zegrean, President, Aspazia Cojocaru, Acsinte Gaspar, Petre Lăzăroiu, Iulia Antoanella Motoc, Mircea Ştefan Minea, Ion Predescu, Puskás Valentin Zoltán and Tudorel Toader, Judges.

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DISSENTING OPINION

In disagreement with the opinion expressed by the Constitutional Court in the decision above, we

consider that the proposal of amendment aimed at the elimination of the second sentence of paragraph (8) under Article 44 of the Constitution stating that "lawfulness of acquirement shall be presumed" is not a violation of the right to property or of the guarantees thereof.

We mention that none of the European States have enshrined the presumption of lawfulness of acquirement of wealth, see, for example, Constitutions of France, Germany, Italy, Portugal, Spain and Cyprus.

We consider that this presumption must be eliminated, as it does not affect the legal certainty of the right to property, as this right is further guaranteed and protected by the Basic Law, as long as there is an interdiction on the confiscation of the unlawfully acquired wealth.

Furthermore, the principle of legal certainty is not about protecting assets or people according to a traditional conception on certainty; it is about protecting fundamental rights through legislative stability.

It is known that the principle of legal certainty has its origin in German law, which established the protection of citizens against the side effects of the law, especially the legislative inconsistencies that may arise from its repeated changes; in this respect, the Constitutional Council of France has shown that legal certainty is based on accessibility and comprehensible nature of law (Francois Luchaire - Cahiers du Conseil constitutionnel no. 11). The Court of Justice of the European Union adopted the same meaning of the concept of legal certainty in the case Bosch, resolved by Judgement of 6 April 1962. Furthermore, the European Court of Human Rights ruled in the same vein by the Judgement of 26 April 1979 and 22 September 1994, delivered in the Case Sunday Times v. the United Kingdom and Hentrich v. France.

Therefore, the meaning of the principle of legal certainty as established in the Constitutional Court Decision no.85 of 3 September 1996, as well as in this decision does not correspond the European interpretation thereof.

The presumption of lawful acquirement of wealth comes against the international treaties ratified by Romania, respectively the Convention of 8 November 1990 of the Council of Europe on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and the United Nations Convention of 12 December 2000 against Transnational Organized Crime. Thus, in accordance with Article 12 of the United Nations Convention, States Parties may consider the possibility of requiring that an offender demonstrate the lawful origin of alleged proceeds of crime or other property liable to confiscation, to the extent that such a requirement is consistent with the principles of their domestic law and with the nature of the judicial and other proceedings.

The measures contained in those conventions have been taken to combat cross-border organized crime, to prevent and combat the following crimes: money laundering, human trafficking, children sexual exploitation and child pornography, drug trafficking and terrorism, and for identification, tracing, freezing, seizure and confiscation of instrumentalities and proceeds of crime.

The proposed revision was aimed at preventing and combating crime by removing the presumption of lawful acquisition of wealth resulting from committing the offenses listed and complies with the Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property, a decision with binding effects.

Under that Framework Decision, Member States are also obliged not to make or uphold reservations in respect of the provisions of the Council of Europe Convention concerning confiscation.

It is also pointed out that the existing instruments in this area have not to a sufficient extent achieved effective cross-border cooperation with regard to confiscation.

The aim of this Framework Decision is to ensure that all Member States have effective rules governing the confiscation of proceeds from crime, inter alia, in relation to the onus of proof regarding the source of assets held by a person convicted of an offence related to organised crime.

The proposed revision of Article 44 paragraph (8) the second sentence of the Constitution not only is without prejudice to property right, but was made to comply with the aforementioned international treaties and Community law within the meaning of Article 148 paragraph (4) of Basic Law.

In conclusion, we consider that the rejection by the Constitutional Court of the proposed amendment to eliminate the second sentence of paragraph (8) of Article 44 of the Constitution may result in liability for breach by the Romanian State of the obligations it has assumed under treaties it is part to.

Professor Iulia Antoanella Motoc, PhD