– Short notes on the constitutional rights implications –
As an European country facing the pandemic caused by the SARs-CoV-2 virus, Romania has had to adapt the legislative framework to the current social needs at a fast pace.
Among the legal enactments that regulated coercive measures for non-compliance with the restrictive movement conditions imposed by the Romanian Public Authorities during the state of emergency (declared between March 16, 2020 until May 14, 2020) was also the Government Emergency Ordinance no. 34/2020 („GEO no. 34/2020”) on amending the Government Emergency Ordinance no. 1/1999 regarding the state of siege and state of emergency („GEO no. 1/1999”).
In accordance with GEO no. 34/2020, „non-compliance with Article 9 of the GEO no. 1/1999 shall be considered petty offence”, thus classifying as petty offences any violation of the general obligation of the citizens to observe and apply all the measures under GEO no. 1/1999, any related regulatory acts, as well as any military ordinances or orders specific to the declared state of emergency, without expressly distinguishing between acts, actions or omissions that may entail contraventional liability.
As such, as of the beginning of April 2020, under GEO no. 34/2020, the fines for not observing the measures taken during the state of emergency ranged between RON 2,000 and 20,000 (pprox.. EUR 416 – 4,166) for natural persons and between RON 10,000 and 70,000 (pprox.. EUR 2,100 – 14,500) for legal entities.
Not long after the entry into force of GEO no. 34/2020, the Ombuds Office (in Romanian Avocatul Poporului) challenged the constitutionality of the provisions mentioned above on the grounds of violating the constitutional principle of legality and proportionality of the sanction. Following the deliberations, at the beginning of May, the Constitutional Cour7 of Romania upheld the unconstitutionality exception raised by the Ombudsman, ruling that the GEO no. 34/2020 is unconstitutional.
In its conclusions, the Court found that the provisions of GEO no. 1/1999 „characterized by a faulty legislative technique, did not meet the requirements of clarity, accuracy and predictability and were, thus, incompatible with the fundamental principle of compliance with the Constitution, its supremacy and with the laws, [..], as well as with the principle of proportional restriction of the exercise of fundamental rights and freedoms, provided for by the Constitution.” However, the constitutional judges stated that, the already given fines may be annulled only after being challenged in court.
The Court’s decision caused much dissatisfaction among people who already were on a downward slope in terms of confidence in the efforts of the Romanian legislative body and public authorities of keeping the virus under control.
Author: Diana Dragodan, Corporate Lawyer
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