Remarks on the signals circulating in the public area regarding the imminent adoption of an Emergency Ordinance of the Government for the retrial of the files where final judgments were given by the panels of 5 judges from the High Court of Cassation and Justice

            “The Romanian Judges’ Forum” Association, “The Movement for the Protection of the Prosecutors’ Status” Association and “The Initiative for Justice” Association draw the public attention on this subject of general interest, underlying the following issues:

            To start with, there is no project to have been put in public debate, pursuant to the Decisional transparency law no. 52/2003, and such penal policy measures, which are unspecific to the legislative act delegated by the Government, should be accompanied by a substantiation report.

            In this regard, there should be restated the following essential principals for a real democracy:

  1. Constitutional principles regarding the issuance of emergency ordinances

            The executive’s possibility of governing by emergency ordinances must be justified by the existence of certain exceptional circumstances, which impose the adoption of certain urgent regulations, art. 61 para. (1) of the Romanian Constitution expressly stipulates that the Parliament is the sole legislative authority of the country.

            Even if, from the constitutional point of view, an exceptional procedure of substitution of the Parliament in enactment of regulatory actions of primary regulation (for organic laws as well) is accepted, this possibility cannot be similar to a discretionary right of the Government and cannot justify the abuse in issuing the emergency ordinances, connected to the existence of certain exceptional circumstances, which impose the adoption of certain emergency regulations, pursuant to art. 115 para. (4) of the Constitution (see Decision no. 15 dated 25 January, 2000, given by the Constitutional Court of Romania).

            Otherwise, we can can talk about an impermissible interference in the legislative competence of the Parliament, with the violation of the principle of separation of powers in state, the emergency ordinances could not be adopted in relation with the constitutional laws, could not affect the regime of the fundamental institutions of the state, the rights, liberties and obligations stipulated in the Constitution (cannot be eliminated, impaired, harmed, infringed etc.), voting rights, and measures of forced transfer of certain properties to public property [see art.115 para. (6) of the Constitution]. Therefore, the field where the Government can replace the Parliament, adopting primary rules, is limited, by the regulation emergency imperative as well.

            By Decision no. 258 dated 14 March 2006, The Constitutional Court of Romania noted that the non-existence or the lack of explanation of the emergency on regulating extraordinary circumstances is obviously a constitutional barrier in the path of adoption by the Government of an emergency ordinance in the before mentioned way. To decide in such a way means to empty the content of art. 115 of the Constitution regarding the legislative delegation and to give the Government the freedom of adopting as a matter of urgency, regulatory acts with legal provisions, anytime and – considering the circumstance that emergency ordinances can also regulate subjects pertaining to organic laws – in any field.” Furthermore, Decision no. 421 dated 9 May, 2007 holds that the regulation urgency is not equivalent to the existence of an extraordinary circumstance, the operative regulation being also achievable by means of the normal law-making procedures.[1]

            Furthermore, an emergency ordinance cannot counteract a law adopted by the Parliament and, a contrario, not even a legislative proposition rejected by the Parliament (see Decision no. 1221 dated 12 November 2008, whereby the Constitutional Court established the adoption by the Government of the Emergency Ordinance no. 136/2008 was not motivated by the need of regulating in a field where the primary legislator has not intervened).

            Therefore, the Government, has to consider, when adopting emergency ordinances, the dispositions of art. 61 para. (1) of the Constitution as well, “the legislative duties delegated in the favor of the Government cannot obstruct the application of a primary regulatory act adopted by the legislative power itself in the exercise of its initial competences. To accept the contrary point of view, in the sense that the Government, by adopting the emergency ordinances is legitimated from the constitutional point of view to oppose the legislative measures adopted by the Parliament, would be equivalent to the transformation of the Government’s exceptional competence of substituting to the Parliament into a general one.

            Therewith, the European Commission for Democracy through Law noted in the Notice adopted on the 93rd Plenary Session (Venice, 14-15 December 2012) the fact that “the frequent use of emergency ordinances is an issue of concern”, and “the almost constant use of emergency ordinances of the Government is not the most adequate method” of adoption certain regulations without delay.

  1. The danger of failing to observe the constitutional principles in the special case of a possible Emergency Ordinance for the retrial of the files where final decisions were given by the panels of 5 judges from the High Court of Cassation and Justice

            On one hand, the discretionary exertion of the Government right to substitute the Parliament in enactment of regulatory actions of primary regulation is a constitutional possibility which cannot justify an abuse in issuing the emergency ordinances, connected to the existence of certain exceptional circumstances. Thereby, the Romanian Parliament has to be in a circumstance in which it cannot function from the constitutional point of view.

            On the other hand, a rule which establishes a legislative solution that might allow for the exertion of the extraordinary means of appeal, in the form reconfigured by a new law, against the final criminal judgments given prior to the entry into force of the new law, can be contested for the infringement of art.15 para. (2) of the Constitution.

            The Constitutional Court of Romania, by Decision no. 633 dated 12 October 2018, admitted the solution of unconstitutionality objection of the provisions of the Law amending and supplementing Law no. 135/2010 regarding the Criminal Procedure Code, and also amending and supplementing Law no. 304/2004 regarding the judicial organization in a similar case.

            In its constant case-law, the Constitutional Court established that “the procedural laws are predominantly of immediate application. As concerns the court judgment, it has been constantly decided for over a century that it is subject to the substantive and formal conditions established by the law under which it was delivered, the new law having no effect on it, as it is deemed, in relation to the parties who took part in the process, as having the value of a contract concluded upon its delivery. This being the case, the right related to the exercising of the means of appeal remains established by the legislation in force at the time of delivery as well, as the admissibility of an appeal is a quality inherent to the decision and in such circumstances no new means of appeal can result from a subsequent law, as no existing means of appeal against a decision can be cancelled without retroactivity by a subsequent law” [Decision no. 9 dated 7 March 1994, published in the Official Gazette of Romanian , Part I, no. 326 dated 25 November 1994].

            The Principle of non-reactivity of law is a component of the legal security [stipulated by art. 1 para. (5) of the Constitution], regulated expressly and separately by art. 15 para. (2) of the Constitution. According to this principle, a judgment enjoying the authority of res judicata cannot be abolished otherwise than by extraordinary means of appeal, for reasons expressly and imitatively enumerated, at present the appeal for annulment, the appeal in cassation, the review and reopening of criminal proceedings in case of a trial in default.

            A legal regulation acts in time from the moment it becomes effective until it ceases to have effect and enjoys the presumption of constitutionality. Any law applies only for the future, except for the more lenient criminal or contravention law, which has also effects on the criminal legal or contraventional relations born prior to its entry into force. With regard to the scope of the criminal procedure law, the Constitutional Court noted that the principle of its work has been established, which means that it is of immediate application, referring also to the cases pending criminal prosecution or trial. Submitting the judgments delivered prior to the entry into force of this new emergency ordinance to the new means of appeal, contravenes to the constitutional principle of non-retroactivity of laws.

  1. The danger of failing to observe the case-law of the European Court of Human Rights in the special case of an Emergency Ordinance for the retrial of the files in which final judgments were delivered by the panels of 5 judges from the High Court of Cassation and Justice

 

            Legal certainty is a manifestation of the right to security of the individual, with the purpose to protecting him from the negative effects of the law. Uncertainty, instability, ambiguity and unpredictability cannot find their place in a system governed by the rule of law principle. By its very nature, a legal system where the rule means both the abstract regulation and the actual form it can take, is meant to ensure a certain, stable, clear, predictable regulation of the social relations.

            Starting from Brumărescu vs. Romania (ECHR, 28 October 1999) it was enshrined a real right to the observance of the legal certainty principle, as a right guaranteed by the Convention. Despite the absence of an express provision in the treaty’s text, its enshrinement was possible by means of the case-law, starting from the construction of art. 6 of the European Convention of Human Right in the light of its recitals which states the rule of law as element of common patrimony of the parties states. Thereby, it has been held that an essential element of the rule of law is the principle of legal certainty as well. The principle applies exclusively to the cases settled by final court decisions, preventing them to be called into question.

            With regard to the exercising of the extraordinary means of appeal, ECHR established that the principle of legal certainty stipulates, among others, that a solution given by a court as final, cannot be called into question later on. Receiving the appeal in annulment made by a third party against the trial and having no terms for the exercising of such prerogative, the national court annulled, in its entirety, a legal procedure which had already given a final settlement of the conflict, by res judicata. In the Court of Strasbourg’s opinion, such a measure deprived the claimant from a fair trial, as the principle of legal certainty was violated.

            The issue regarding the application of extraordinary means of appeal in terms of fairness of the proceedings as a whole, and not the right of access to court, was approached again in the following judgment, in which the Court applied the principle of legal certainty, that is the Sovtransavto Holding vs. Ukraine case (ECHR, 25 July 2002). According to the national legal provisions applicable, the extraordinary means of appeal of the protest might have been made by third parties against the initial procedure, that is by the president of the Supreme Court of Arbitration or by the general prosecutor, it targeted certain res judicata court judgments and could have determined a perpetual calling into question of the case. What was sanctioned in this judgment was the possibility given by the national legal system of repeatedly annulling procedural cycles ended by court judgments and which became res judicata, by promoting extraordinary means of appeal.

            By Ryabykh vs. Russia judgment, it was established as a principle that the legal certainty means observing res judicata, and ensuring the finality of court judgments. Essentially, this principle establishes that no party in the trial, especially an official of the state, third party of a procedure, should be able to obtain the re-opening of a final settled case, only to start a new examination of the case. It was deemed that the high courts’ power of re-examining a case should be exerted for the purpose of correcting legal errors at inferior level and it should not be used for a new re-examination of the priory settled legal relations. Thereby, the means of appeal against a res judicata judgment should not be treated as an “appeal” in disguise, the simple possibility of existence of two different opinions on the substance of a dispute, being no relevant reason for re-opening a procedure.

            Except for the cases generated by the application of the appeal in annulment, in the cases against Romania, the Court analyzed the principle of legal certainty in relation with the abolition of the final judgments as well.

            Thereby, in the case Androne vs. Romania (ECHR, 22 December 2004), the Court sanctioned three issues relevant for the infringement of the principal that makes the object of our analysis: the non-observance of the legal internal regulations concerning the period for preparation of the revision; the fact that such extraordinary means of appeal was made by a state authority, a third party in the relation with the initial procedure, that is the general prosecutor; abolition in this way of a final judgment, favorable to the claimants.

            Mitrea vs. Romania (ECHR, 29 July 2008) case calls into question the prejudicing of the principle of legal certainty due to the actual way the extraordinary means of appeal was exerted in the appeal for annulment. The same court, that is Maramureș District Court, was of the opinion that the claimant’s request to make his former employer re-issue the workbook was substantiated, and later on, in the appeal for annulment made by the defendant, it was of the opinion that, pursuant to art. 318 Civil Procedure Code, the first irrevocable judgment was the result of a serious material error, the court failing to observe an essential aspect which resulted from the adducted evidence, that is the fact that it wasn’t in the possession of the workbook anymore.

            The Court is concerned therefore with safeguarding the effects of a judgment whereby a conflict was settled, with authority of res judicata, and on which the party who won can legitimately count. The concept of “final judgment” is an autonomous one, and which is essential is the authority the respective judgment enjoys at national level. A final and enforceable judgment is not necessarily “final” from the point of view of the Court. The appeal in cassation was expressly qualified by the Court as an ordinary means of appeal (ECHR, Leonard I. Eisenfeld and Arline Duker vs. Italy, 2 September 2008).

            What is sanctioned pursuant to art. 6 para. 1 of the Convention, from the point of view of the Court, is, mainly, the actual purpose for which a judicial procedure is re-opened. Thereby, the initiation of a new procedure to re-examine the merits of the case based on the same de facto and de jure issues or for grounds which might have been submitted to the Court’s attention in the first ordinary procedure as well, does not comply with the Convention’s requirements.

            For instance, in Stanca Popescu vs. Romania (ECHR, 7 July 2009) case, the Court established the infringement of art. 6 para. 1 of the Convention considering that the national court re-opened the initial procedure, finalized with a solution that was favorable to the claimant, by admitting a request for review, based on the provisions of art. 322 point 4 of the Civil Procedure Code, although the reasons put forward by the defendants-applicants by this extraordinary means of appeal, could have been put forward in the ordinary means of appeal. The Court of Strasbourg sanctioned in this case the use of the revision procedure so that this extraordinary means of appeal changed into an “appeal” in disguise. The Court has also held that only the errors of fact which become visible only at the end of the judicial procedure can justify a derogation from the principle of legal certainty on the grounds that they could not have been corrected by means of ordinary means of appeal.

            The means of appeal, drawn up by a state official, against the claimant’s express request does not make this procedure compatible with the principle of legal certainty given the fact that the legislation in force allows a successive, unlimited re-opening of the same case (ECHR, Sovtransavto Holding, previously mentioned).

            In terms of rigor in applying the principle of legal certainty, the criminal cases should be separated from the civil ones. In criminal matters, the analysis should consider the provisions of art. 4 para. 2 of the Protocol no. 7, additional to the Convention as well, which allows the state to re-open criminal proceedings if new evidence becomes available or if essential errors, which might influence the result of the proceeding are detected.

            Deviation from the principle of legal certainty is allowed if certain serious procedural infringements are identified, in case of a power abuse, wrong application of the material right or other special reasons related to the administration of justice.

            The parties’ newly discovered circumstances, once the judgment has become final, without attributing them negligence in identifying such circumstances at the time of the first trial, might justify an extraordinary means of appeal. Analyzing this “fundamental flaw”, the Court places a special accent on the explanatory statement of the national courts regarding the parties’ impossibility of providing a relevant evidence at the time of the first procedural cycle (Pravednaya vs. Russia, 18 November 2004). Thereby, in the event it can be noticed that the parties could have, under normal diligence, put forward the newly discovered elements in the ordinary means of appeal, this reason ceases to be deemed a “fundamental flaw”, the abolition of the first judgment which became res judicata violating art. 6 para. 1 of the Convention.

            As an example, we mention that the state or a public authority’s lack of defense was not held as a “fundamental flaw” in the first trial, as it resulted only from its default in the first trial, given the fact that it was correctly summoned (Androne vs. Romania) or from the wrongful application of the material law by the first court (Kot vs. Russia, 18 January 2007). The wrongful application of the territorial or material competence standards cannot justify the abolition of the judgment thus pronounced, by means of an extraordinary appeal, considering that such reason could have been put forward by the interested party in the ordinary means of appeal (Murtazin vs. Russia, 27 March 2008, Sutyazhnik vs. Russia, 23 July 2009) as well.

            The wrongful refusal of the Court to suspend the legal procedure until the finalization of another one, on which the ruling on the substance of the dispute depends, cannot be put forward by means of an appeal in annulment, promoted by the general prosecutor on the defendant’s request. Thereby, in Urbanovici vs. Romania case (23 September 2008), ECHR has held that, assuming even that the judges of the first procedural cycle were wrong when they refused to suspend the procedure, such an omission cannot be held against the claimant, who informed the courts about the existence of the two parallel procedures. In this regard, the Court underlined that the state should organize a judiciary so that to identify the related procedures and, where necessary, to connect them or to forbid the implementation of new procedures on the same matter, in order to avoid the re-examination of certain cases, irrevocably settled, by means of a disguised appeal, within parallel procedures.

            According to ECHR case-law, a review is an exceptional measure, the exam of this means of appeal requiring maximum strictness (Gustafsson vs. Sweden, 30 July 1998).

            The two elements analyzed by the Court, in the case of a request for the revision of a personal judgment, were:

            – if the facts put forward may have a decisive influence on the solution given in the case and

            – if they could not have been reasonably known by the party who puts them forward, at the time of the first procedure before the Court.

  1. Constitutional limits established by the Constitutional Court according to Decision no. 685 dated 7 November 2018 on the request for settlement of the legal constitutional dispute between Romanian Parliament on one hand, and the High Court of Cassation and Justice on the other hand, and by other decisions on this matter as well.

            The Constitutional Court of Romania, by Decision no. 2 dated 17 January 2017, on the exception of unconstitutionality of art. 453 para.(3) and (4) first sentence and of art. 457 para. (2) of the Criminal Procedure Code, established the following:

            „17. The Court, examining the unconstitutionality exception, finds out that the activity carried out in the ordinary cycle of the criminal proceedings – if it was legal and well grounded – should end with the final judgment, having the authority of res judicata, where the expressed facts mean the truth, and the criminal and civil law were correctly applied. The practice though made evident cases of final judgments which settled criminal cases with serious de facto and de jure errors. The legislator considered such a case, reason for which it established the extraordinary means of appeal as procedural criminal means of abolishing judgments with authority of res judicata, which do not correspond to the law and truth. Considering that the implementation of such procedural means affects the authority of res judicata, therefore the constancy of the final judgments, which is meant to give trust to the justice activity, the cases and terms for the exertion of the extraordinary means of appeal should be strictly regulated by the legislator, to restore the rule of law. Equally, the legislator’s option in the regulation of the extraordinary means of appeal should be made within the constitutional limits.”

            Furthermore, by Decision no. 126 dated 3 March 2016, The Constitutional Court of Romania – the actual Ministry of Justice, Mr.Tudorel Toader, univ. prof, PhD. being part of it, established the following in relation with the exception of unconstitutionality of the provisions of art. 88 para. (2) letter d), art. 452 para. (1), art. 453 para. (1) letter f) and of art. 459 para. (2) of the Criminal Procedure Code:

„33. The Court finds out that, when regulating the examined revision case – art. 453 para. (1) letter f) of the Criminal Procedure Code, although the actual legislator’s intention was to continue to give efficiency to the constitutionality control, the possibility of benefiting from the effects of the Court’s decision of admittance is required to be circumscribed to the range of persons who triggered this control, prior to the moment of publication of the decision, pursuant to the legal terms. In this regard is also the Decision no. 866 dated 10 December 2015, paragraph 30, published in the Romanian Official Gazette, Part I, no. 69 dated 1 February 2016, pursuant to which, “the exception of unconstitutionality within the legal process, falls with the procedure exceptions whereby it is aimed to prevent a judgment which would be based on an unconstitutional legal decision. Establishing the unconstitutionality of a law text subsequent to the invocation of an unconstitutionality exception should serve to its authors and cannot be just a mere abstract law instrument, as it would loose its real character.” Under the given terms, considering the importance of the authority of res judicata principle, the Court establishes that, in order to guarantee both the stability of the legal relations, and a well administration of the justice, it is necessary what the court has established in constitutional litigation, by case-law, on the terms in which a revision can be made, based on a a decision of admittance of the unconstitutionality exception, to be transposed in the examined criminal procedural standards in the present case.

Therefore, the Court notes that a decision finding a legal provision as unconstitutional has to be useful, in preparing the means of appeal of the revision, only to that category of litigants who invoked the unconstitutionality exception in cases finally settled until the publication in the Official Gazette of the decision whereby the unconstitutionality was established, and also to the authors of the same exception, invoked prior to the publication of the Court’s decision, in other cases, finally settled, this thing establishing itself out of the need for legal order and stability.

  1. As the principle of authority of res judicata is of a fundamental importance, both in the national legal order and also in the community legal order, and in the European Court of Human Rights as well, the Court notes that the prejudice brought to it through the national legislation has to be limited, being necessary this principal to be derogated only if substantial and imperious reasons demand it (Decision of 7 July 2009, given in Stanca Popescu against Romania case, para. 99 and Decision of 24 July 2003, given in Ryabykh against Russia case, para. 52). In this case, the Court finds that the substantial and imperious reason justifying the derogation from the authority of res judicata is the decision of admittance of the unconstitutionality exception, given by the constitutional contentious court. But without regulating the condition that the unconstitutionality exception should have been put forward in the case where the decision whose revision is asked was pronounced, gives ex tunc effects to the jurisdictional act of the Court, with the infringement of the provisions of art. 147 para. (4) of the Constitution, it leads to an impermissible violation of the force of res judicata, a prejudice to the principle of legal certainty – fundamental element of the law supremacy, which stipulates, among others, that a solution given by courts as final to any dispute shall never be re-judged (Decision dated 28 October 1999, given in Brumărescu against Romania case, para. 61).
  2. Considering all previously mentioned, the Court finds that the legal solution included in art. 453 para. (1) letter f) of the Criminal Procedure Code, which does not circumstantiate the revision in the case where the unconstitutionality exception was put forward, is unconstitutional”.

            As these rulings of the Constitutional Court are concerned, it can be noticed that the limits for regulating certain extraordinary means of appeal with ex tunc effects (for the past) are to be found in the Romanian Constitution itself, which cannot be breached by infra-constitutional legal provisions.

            Besides, although the Constitutional Court was called upon to decide certain remedies after the admittance of the request for settlement of the legal constitutional dispute between the Romanian Parliament, on one hand, and the High Court of Cassation and Justice, on the other hand, and also by other decisions in this case, it can be noticed that by Decision no. 685 dated 7 November 2018, suggesting the conduct to be followed by the public authorities involved in the dispute, the remedies aimed only at two categories of cases, those already on the dockets of the Panels of 5 judges and the future ones: „[…] considering that its decisions take effect only for the future, pursuant to art. 147 para.(4) of the Constitution, the Court notes that the present decision shall apply from the date of its publication, both to the pending cases and to the cases in progress, and to the finalized ones, in so far as the litigants are still within the period of exercising the corresponding extraordinary means of appeal, and also to the future cases”.

            The same arguments were also noted in the recitals of the Decision no. 508 dated 7 October 2014, being established that, “pursuant to the provisions of art. 147 para. (4) of the Constitution, corroborated with those of art. 11 para. (3) of Law no. 47/1992 regarding the organisation and operation of the Constitutional Court, the judgments of the constitutional contentious court have power only for the future, and the right to formulate a revision request, pursuant to art. 453 para. (1) letter f) of the Criminal Procedure Code, belongs only to the parties of the case in which the present unconstitutionality exception was put forward.” Such recitals have also been taken into account into the Decision no. 585 dated 21 October 2014 and Decision no. 740 dated 16 December 2004.

            Or, if the same Constitutional Court has constantly noted that the unconstitutionality decision cannot be a basis for revision of the case, within the limits of the Romanian Constitution, except for that category of litigants who invoked the unconstitutionality exception in cases finally settled until the publication into the Official Gazette of the decision whereby the unconstitutionality was established, and for the authors of the same exception, put forward prior to the publication of the Court’s decision, in other cases, finally settled, such thing was imposed due to the need for order and legal stability, it is presumed that the same reasoning should also be applied for decisions concerning legal constitutional disputes, whose legal effects are regulated by the same constitutional provisions.

            We underline that, by the same Decision no. 2 dated 17 January 2017, previously mentioned, the Constitutional Court established the following:

            „25. Furthermore, as regards the prosecutor’s role within the criminal proceedings, the Court notices that, pursuant to the provisions of art. 131 of the Constitution, the Public Ministry, in its legal activity, represents the society’s general interests and protects the rule of law and the citizens’ rights and liberties as well, exercising its powers by prosecutors attached to prosecutor’s offices. Thereby, pursuant to the provisions of art. 62 para. (2) of Law no. 304/2004 regarding the judicial organization (as republished in the Romanian Official Gazette, Part I, no. 827 dated 13 September 2005), the prosecutors carry out their activity according to the principles of legality, impartiality and hierarchic control, and based on the provisions of art. 67 of the same law, the prosecutor takes part in court hearings, pursuant tot he legal terms, and has an active role in finding the truth. In this regard, the provisions of art. 55 para. (3) letter f) of the Criminal Procedure Code stipulate the prosecutor’s duty of drawing up and exercising, within the criminal proceedings, the complaints and means of appeal stipulated by law against court decisions. Therefore, starting from the purpose of implementing the extraordinary means of appeal of the revision – that of ensuring the possibility of correcting final criminal judgments which are based on judicial errors, by reference to the revision cases expressly and imitatively stipulated by law – and to the prosecutor’s role, who, as the constitutional contentious court has noted in its case-law, acts as a protector of the society’s general interests, but also of the parties to the proceedings, in the lawfulness intent (Decision no. 983 dated 8 July 2010, published in the Romanian Official Gazette, Part I, no. 551 dated 5 August 2010 and Decision no. 641 dated 11 November 2014, published in the Romanian Official Gazette, Part I, no. 887 dated 5 December 2014, para.51), the Court is of the opinion that the exigences of art. 131 of the Constitution require the legislator to provide the possibility of revision – including at the prosecutor’s initiative, in his capacity as owner of such extraordinary means of appeal – of the acquittal decisions whose groundlessness can be proved based on new facts or circumstances, pursuant to art. 453 para.(1) letter a) of the Criminal Procedure Code.

  1. Therefore, the provisions of art. 453 para. (3) of the Criminal Procedure Code regarding the revision case stipulated in para. (1) letter a) and the legislative solution included in the provisions of art. 453 para. (4) first sentence of the same code, which excludes the possibility of revision of the acquittal decision for the case stipulated in para (1) letter a), violates the constitutional provisions of art. 21, concerning the free access to justice and of art. 131 concerning the Public Minister’s role, as they deprive the civil part from the possibility of protecting his legitimate rights and interests, and also the prosecutor from the means necessary to exercise his role within the criminal proceedings. The Court notes that, if new facts or circumstances are revealed, which were unknown when the case was settled and which prove the groundlessness of the acquittal decision, both the civil part and the prosecutor have to be given the possibility of requesting and obtaining the restoration of the judicial truth by withdrawing the judgment given in the case”.

            Therefore, in so far as we skip the arguments presented in the previous sections, regarding the observance of the legal certainty principle, of the res judicata authority in criminal matters (also enjoyed by the civil parts – crime victims, who were not part in the legal constitutional dispute, as would have happened in case of an unconstitutionality exception in their case to prepare their defense), of the future effects of the Constitutional Court decisions, it can be noticed that the principle of equality stipulated in art.16 of the Constitution requires the regulation of the right to the same means of appeal for the Public Minister, who acts as protector of the society’s general interest and also of the civil parts, who act in their own interest.

            With regard to the persons interested in the abolition of the judgments given by panels of 5 judges, it can be noticed that their case can be compared, in an overall analysis, to that of the persons whom the court rejected a request for summons based on an non-unified case-law, and later on an appeal was pronounced whose mandatory solution would have been favorable if they had previously taken a final settlement in their case.

            The Court of Strasbourg noted in such cases (for example, Albu and others against Romania case, request no. 34796/09 and other 63, the decision dated 10 May 2012), that the simple existence of a different case-law approach, by national courts, on some similar cases, does not means automatically a violation of the right to a fair trial. The unification of the national case-law requires a certain period of time, so that a reasonable length of time during which several case-law solutions on similar cases coexist, is compatible with the right to a fair trial. The existence and operation at internal level of an efficient unification mechanism in a reasonable time of judicial practice is essential.

            Or, the Constitutional Court’s Decision no. 685 dated 7 November 2018 has future effects which require a mandatory application of the law according to the interpretation given by such Court in the light of the Romanian Constitution, so it can be assimilated from this perspective, of the effects and implications on the past cases, to a mandatory decision of the High Court of Cassation and Justice (in an appeal in the interest of the law or in the procedure for solving certain prior matters).

  1. Conclusions

Following the signals circulating in the public area regarding the imminent adoption of an Emergency Ordinance by the Government for the retrial of the files in which final judgments were delivered by panels of 5 judges from the High Court of Cassation and Justice in the time period aimed by the Constitutional Court’s Decision no. 685 dated 7 November 2018, The Romanian Judges’ Forum Association, “The Movement for the Protection of the Prosecutors’ Statute” Association and “The Initiative for Justice” Association require the Government to carefully analyze the arguments presented in the present legal opinion and to refrain from adopting any project that might endanger the fundamental social values in a rule of law.

judge Dragoș Călin, co-president, The Romanian Judges’ Forum Association

judge Anca Codreanu, co-president, the Romanian Judges’ Forum Association

prosecutor Antonia Diaconu, co-president, the Movement for the Protection of Prosecutors’ Statute

prosecutor Adrian Cosmin Iordache, co-president, the Movement for the Protection of Prosecutors’ Statute

prosecutor Bogdan Pîrlog, co-president, The Initiative for Justice Association

prosecutor Bogdan Pîrlog, co-president, the Initiative for Justice

[1] See, for developments, K. Benke, Recent Developments in the case-law of the Constitutional Court of Romania as regards the limits holding the government in the adoption of the emergency ordinances, study available online on the web page www.ccr.ro/ccrold/publications/buletin/8/benke.doc [latest accession 21.01.2019]; see also M. Safta, Constitutional limits of regulation by emergency ordinances of the Government, study available online on the web page www.clr.ro/eBuletin/4_2014/Buletin_4_2014.pdf [latest accession 21.01.2019]. For developments, K. Benke, quoted work http://www.ccr.ro/ccrold/publications/buletin/8/benke.doc .

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