Motivation of the Constitutional Court: why the fines granted in a state of emergency are unconstitutional – Essential

• If it is the rule provided in paragraph (2) of art. 9 of the Government Emergency Ordinance n. ° 1/1999, the recipients of the rule (heads of public authorities and administrators of economic operators who provide public services) and the prescribed conduct (the obligation to guarantee the continuity of the provision of essential services for the population and for the forces of defense) is established in a clear and rigorous way, so that the constituent elements of the contravention can be unequivocally identified, from the normative content of paragraph (1) of article 9 no These elements are clear. The norm establishes the general obligation in the undifferentiated task of the heads of public authorities, legal entities, as well as natural persons to respect and apply all the measures established in the government’s Emergency Ordinance n. ° 1/1999, in the related normative acts, as well as in military ordinances or in order, specific to the established state.
• The confusing, unclear and unpredictable nature results from corroboration with the reference standard, which complements, respectively, with article 28 paragraph (1) of the emergency ordinance, which establishes that non-compliance with the provisions of article 9 paragraph ( 1) constitutes a contravention.

• The regulatory technique found in the case of the criticized legal provisions does not correspond to the rules established by Article 3, paragraph (1) of Government Ordinance n. ° 2/2001 on the legal regime of the contraventions, according to which “the normative acts that establish the infractions will include the description of the facts that constitute contraventions and the sanction that will be applied to each one of them”.

The acts, facts or omissions that constitute contraventions are not clearly indicated.

• The rules by which offenses are established must clearly and unequivocally indicate their material object in the content of the legal norm or must be easily identifiable, when referring to another normative act with which the incriminating text is connected, in order to establish the existence or non-existence of the contravention.
• The rule must be written with sufficient precision to allow the citizen to control his conduct so that he can foresee, to a reasonable degree, the consequences that could result from the commission of a certain act. In other words, the law must clearly define the applicable offenses and penalties, requiring the recipient of the rule to know from the text of the applicable legal standard what are the acts, facts or omissions that may jeopardize their liability for infringement.

• However, the provisions of article 28, paragraph 1), corroborated with article 9, paragraph 1, of the Government Emergency Ordinance No. 1/1999 do not clearly and unequivocally indicate, in the legal norm, the facts, the facts. or the omissions that constitute contraventions and do not allow their easy identification, when referring to the normative acts to which the incriminating text is related.
• Therefore, article 9, paragraph 1), which talks about “all the measures established in this emergency ordinance, in the related normative acts, as well as in the military ordinances or in order, specific to the established state”, cannot be considered a standard of shipping. In the absence of an exact indication of the legal provisions referred to, the rules of legislative technique contained in article 50, paragraph (1), first sentence of Law 24/2000, are not observed, according to which, “If a norm is complementary to another norm, to avoid repetition in the text of that norm, reference will be made to the article, respectively, to the normative act that contains it.”
• Considering the object of the regulation of the Government Emergency Ordinance n. ° 1/1999, which constitutes the framework law in the field of the state of siege and state of emergency, it would be difficult to regulate in this normative act all the obligations or measures that may be established by the normative acts issued in the context of the state of emergency or siege, the violation of which would attract responsibility for the infraction.
• In addition, it is practically impossible to determine concretely in the primary normative act on the general regime of the state of emergency what will be the measures that can be taken in each case, because the measures taken by the authorities during the state of emergency refer to different areas, so that the regulation of infringements can only be different, both in terms of their content and in terms of their intensity. In this respect, the European Court of Human Rights has ruled systematically, ruling that, due to the principle of general laws, their content cannot be absolutely precise. One of the standard regulatory techniques is to use general categories instead of exhaustive lists.
• Improperly using the legislative technique of the reference rule, a rule that, in turn, refers to other vaguely identified normative acts, the legislator has enacted legal provisions that cannot achieve the purpose for which they were established. Therefore, the Court observes that the norm refers to the Government Emergency Ordinance No. 1/1999, but this normative act, apart from the provisions of paragraph 1 of article 28 subject to constitutional revision, does not contain any other norm that expressly regulate contravention. The related normative acts are not defined anywhere and cannot be easily identified by the recipients of the standard, who, due to the general nature of the standard (heads of public authorities, legal entities and individuals) represent the entire population of the country .

The determination of infractions is arbitrarily left to the free discretion of the determining agent

• The specific military ordinances and orders of the established state are administrative acts of a normative nature, issued by the authorities provided for in article 23 of government emergency ordinance n. ° 1/1999, which, based on article 24 letter e) of the same normative act, can regulate “the rules and special measures in the area where the state of siege or emergency has been established, as well as the sanctions applicable in case of non-compliance “, including the acts, acts or omissions that constitute contraventions and applicable sanctions.
• When examining the specific military ordinances of the established state of emergency, the Court observes that all of them establish specific obligations and prohibitions, by expressly identifying the rules whose violation entails legal responsibility. Thus, for example, Article 9 paragraph (2) of Military Ordinance n. ° 1/2020 on some first aid measures in relation to crowds of people and the cross-border movement of goods establishes that “Failure to comply with the first aid measures provided for in Article 1-8 attracts disciplinary, civil, contradictory or criminal, in accordance with the provisions of article 27 of the government Emergency Ordinance no.1 / 1999, with subsequent amendments and terminations. ”
• The provisions of article 27 of the government Emergency Ordinance n. ° 1/1999 establish that “Violation of the provisions of this emergency ordinance or of the provisions of military ordinances or orders issued during the state of siege and the state of emergency attracts disciplinary, civil and contractual liability. or criminal, as the case may be. “In this case, although the normative administrative act identifies the legally sanctioned deed by reference to the measures established in certain provisions of the military ordinance, it does not clearly and unequivocally establish the type of legal liability. refer to the provisions of article 27 of the Government Emergency Ordinance No. 1/1999, which lists all types of legal responsibility, the military ordinance does not distinguish which of the incriminated behaviors may attract responsibility for minor crimes. This form of regulation is recurrent, it is found in all the military ordinances issued up to the date of the constitutional control.
• Contravention law, like criminal law, has a subsidiary character, intervening only when other legal means are not sufficient for the protection of certain social values. Under these conditions, regulatory acts with the force of law and administrative acts with a regulatory nature through which violations are established and sanctioned must comply with all the quality conditions of the standard: accessibility, clarity, precision and predictability. However, the Court considers that the provisions of article 28, paragraph (1), with the phrase “non-compliance with the provisions of article 9 constitute an infraction”, classifies as violation the violation of the general obligation to respect and apply all measures established in the government emergency ordinance no. .1 / 1999, in the related normative acts, as well as in the military ordinances or in order, specific to the established state, without expressly distinguishing the acts, facts or omissions that may attract responsibility for the contravention.
• Implicitly, the establishment of the facts whose commission constitutes an infraction is left, arbitrarily, to the free discretion of the determining agent, without the legislator having established the necessary criteria and conditions for the operation of determination and sanction of the infractions. At the same time, in the absence of a clear representation of the elements that constitute the contravention, the judge himself does not have the necessary points of reference in the application and interpretation of the law, on the occasion of solving the complaint in the registry of finding and sanction the contravention.
• Furthermore, the criticized legal provisions also do not comply with the principle of proportionality (…). Proportionality is determined (…) by reference to the nature and seriousness of the act. This proportional request must cover both the main sanction and the additional sanctions, and this obligation belongs both to the body that is determined and to the court that filed a complaint for a misdemeanor.
• This principle has a double value, since it imposes obligations on the legislator (legal individualization of the crime, establishment of limits and legal criteria for the individualization of the sanction: the degree of social danger of the act, the circumstances in which the act was committed, how and the means to commit it, the purpose pursued, the consequence produced, the personal circumstances of the offender), as well as the tasks of the agencies to determine the offenses and apply the corresponding sanctions and the courts (administrative / judicial identification of the offense and application of the specific sanction) in compliance with the legal criteria for individualization).
• In other words, the competent bodies to apply and verify the application of sanctions for minor offenses have the obligation to do so in a proportionate manner, within the limits established by the normative act. However, in order for the investigative body and the court to carry out this task, it is necessary that the rule on which the offenses are based is clear, precise and predictable, so that the legislator has fulfilled his obligation to transpose the principle of proportionality through regulation The offense is legally individualized.

Not only are the facts giving rise to liability not specifically provided for, but the main sanction itself is established regardless of the nature or severity of the act.

• The provisions of article 28 of the government emergency ordinance n. ° 1/1999 not only specifically foresee the facts that attract the responsibility for contravention, but they establish indiscriminately for all these facts, regardless of their nature or seriousness, the same sanction for main contravention.
• Regarding complementary sanctions, although the law establishes that they are applied according to the nature and severity of the deed, as long as the deed is not circumscribed, it is obvious that its nature or severity cannot be determined to establish the complementary sanction. applicable.
• In conclusion, the Court considers that, since the provisions of the law subject to constitutional review impose a general obligation to comply with an indefinite number of rules, with identifiable difficulty, and to establish sanctions, without infringing specific facts, it violates the principles of legality and proportionality. .
• Therefore, the Court considers that the provisions of Article 28 of the Government Emergency Ordinance No. 1/1999, characterized by poor legislative technique, do not meet the requirements of clarity, precision and predictability and, therefore, are incompatible. with the fundamental principle of compliance with the Constitution, its supremacy and laws, provided for in article 1, paragraph 5) of the Constitution, as well as with the principle of proportional restriction of fundamental rights and freedoms, provided for in article 53, paragraph 2) of the Constitution.
• For the same reasons, the Court observes that the inaccuracy of the text of the law subject to constitutional review consequently affects the constitutional guarantees that characterize the right to a fair trial, enshrined in Article 21 paragraph (3) of the Constitution, including its component on the right to defense, a fundamental right provided for in article 24 of the Constitution. In this sense, it invokes the jurisprudence of the European Court of Human Rights, which has essentially held that the breach of fundamental guarantees, which protect the alleged perpetrators of unlawful acts from possible abuses by the authorities designated to prosecute and punish them, it is an aspect to be examined under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (see, for example, the Judgment of October 4, 2007 in Anghel v. Romania, para. 68).