The Constitutional Court: Safeguarding the Constitution
- Avocat
- Mar 13
- 10 min read
The Constitutional Court is a fundamental institution in any rule-of-law state, responsible for ensuring the supremacy and compliance with the Constitution. It operates as a specialized court, distinct from the ordinary judiciary, and has the authority to review the conformity of normative acts with the state's fundamental law.
The Constitutional Court is not a judicial court because it does not resolve civil, criminal, or administrative disputes between parties, as do the courts within the judicial system. In Romania, the judicial courts include district courts, tribunals, courts of appeal, and the High Court of Cassation and Justice, which have jurisdiction to adjudicate cases and apply the law in various legal matters.
Unlike these courts, the Constitutional Court has the exclusive role of guaranteeing the supremacy of the Constitution. It does not intervene in the interpretation and application of common law but rather examines whether laws and other normative acts comply with the Fundamental Law. For example, if a citizen is dissatisfied with a court decision, they cannot appeal directly to the Constitutional Court but must follow the legal remedies available within the judicial system. However, if during a trial an exception of unconstitutionality is raised regarding a law applicable to the case, the court may refer the matter to the Constitutional Court to assess the compatibility of that law with the Constitution.
This distinction is essential to understanding the limits and responsibilities of each institution. The Constitutional Court is not part of the judiciary but is an autonomous authority, independent of the other branches of government, with powers strictly defined by the Constitution and its organizing law.
In this article, you will learn about:
1. The Role and Importance of the Constitutional Court
The Constitutional Court serves as a guarantor of the Constitution’s integrity, with the primary responsibility of reviewing the constitutionality of normative acts. In this capacity, it prevents legislative overreach, safeguards the fundamental rights of citizens, and ensures adherence to the principle of the separation of powers.
Through its functions, the Constitutional Court plays a pivotal role in maintaining the rule of law by invalidating any legal provisions that conflict with the Constitution. Its decisions are final and universally binding, meaning that all state authorities and institutions are obligated to comply.By fulfilling its duties, the Constitutional Court upholds the balance of power within the state and protects the fundamental rights of individuals.
2. Organization and Composition of the Constitutional Court
General Considerations
The composition and structure of the Constitutional Court differ across states, influenced by constitutional provisions and the legal systems in place. Typically, the Court is composed of an odd number of judges (e.g., nine or eleven), appointed for fixed terms that are not subject to renewal.
Judges of the Constitutional Court are generally appointed by various state institutions, such as Parliament, the President of the country, and the Superior Council of the Judiciary, in order to ensure a balanced representation of political influences.
The tenure of judges is generally set for several years (e.g., nine or twelve years) to preserve their independence from political fluctuations.
Organization and Structure of the Constitutional Court of Romania (CCR)
In Romania, the structure of the Constitutional Court is established by the Constitution, as outlined in Article 142:(2) The Constitutional Court consists of nine judges, appointed for a term of nine years, which cannot be extended or renewed.(3) Three judges are appointed by the Chamber of Deputies, three by the Senate, and three by the President of Romania.(4) The judges of the Constitutional Court elect, by secret vote, the Court's president for a term of three years.
The composition of the CCR is partially renewed every three years, with one-third of the judges being replaced, in accordance with the provisions of its organic law.Judges of the CCR must be legal specialists with extensive legal experience. Only those with at least 18 years of experience in the legal field or in higher legal education are eligible for appointment as judges of the CCR.
Independence and Irrevocability of the Judges of the Constitutional Court (CCR)
The judges of the Constitutional Court are independent in the exercise of their duties and irremovable throughout their mandate. This guarantees that they cannot be influenced by any public authority or external entity, nor can they be dismissed or replaced before the end of their term, except under conditions explicitly defined by law. These principles are fundamental to ensuring the impartiality and stability of the Court, enabling it to effectively safeguard the supremacy of the Constitution.
Independence of the Judges of the Constitutional Court (CCR)
The independence of the judges of the Constitutional Court means that they are not subordinated to any other authority and exercise their duties solely based on the Constitution and their own legal conscience. This independence is ensured through several mechanisms:
Appointment by three distinct authorities – the judges of the Court are appointed in a balanced manner by the President of Romania, the Senate, and the Chamber of Deputies, which reduces the risk of undue influence from a single branch of government.
Prohibition of holding other positions – during their mandate, judges cannot hold any other public or private office, except for teaching activities, in order to avoid conflicts of interest.
Immunity guarantees – judges enjoy immunity similar to that of members of Parliament, meaning they cannot be held legally accountable for their opinions and votes expressed while carrying out their duties.
Prohibition of external interference – no other state authority can influence the judges' decisions or intervene in the Court's activities.
Irrevocability of the Judges of the Constitutional Court (CCR)
Irrevocability means that a constitutional judge cannot be dismissed or replaced before the end of their mandate, except under conditions explicitly stipulated by law. This ensures the stability and continuity of the Court in fulfilling its responsibilities.
A judge’s mandate at the Constitutional Court is nine years, with no possibility of renewal. During this period, judges cannot be dismissed, transferred, or removed from office, except in the following cases:
The mandate ends after the nine-year term expires.
They voluntarily resign from office.
They pass away.
Reasons of incompatibility arise (e.g., accepting another public office prohibited by law).
They are dismissed for serious disciplinary violations – this occurs only under exceptional circumstances and must be decided according to legal procedures.
These guarantees allow the Constitutional Court to act independently and impartially, free from political pressure or external influence, thereby reinforcing the rule of law and the protection of citizens' fundamental rights.
3. The Competencies of the Constitutional Court (CCR)
The Constitutional Court plays a crucial role in maintaining constitutional order, with various competencies that can be grouped into several categories.
Control of the Constitutionality of Normative Acts
The Court rules on the compliance of various normative acts with the provisions of the Constitution, either before or after their adoption.
Constitutionality of Laws before Promulgation – The CCR reviews whether adopted laws comply with the Constitution, upon request from the President of Romania, the President of the Senate, the President of the Chamber of Deputies, the Government, the High Court of Cassation and Justice, the Ombudsman, or a group of at least 50 deputies or 25 senators.
Constitutionality of International Treaties and Agreements – The CCR examines whether these comply with the Constitution, upon request from the President of the Senate, the President of the Chamber of Deputies, or a group of at least 50 deputies or 25 senators.
Constitutionality of Parliamentary Regulations – The CCR rules on the regulations of the Senate and the Chamber of Deputies, upon request from the President of either Chamber, a parliamentary group, or a group of at least 50 deputies or 25 senators.
Constitutionality of Laws and Ordinances through Exceptions of Unconstitutionality – The CCR decides on exceptions of unconstitutionality raised before judicial courts or commercial arbitration tribunals. Such exceptions may also be raised directly by the Ombudsman.
Resolution of Constitutional Legal Conflicts
The Constitutional Court clarifies the boundaries of public authorities' competences to prevent institutional blockages.
Resolution of Legal Conflicts between Public Authorities
The CCR rules on constitutional disputes between state authorities, at the request of the President of Romania, the President of the Senate, the President of the Chamber of Deputies, the Prime Minister, or the President of the Superior Council of the Judiciary.• Relevant Example: Decision No. 611/2017, which clarified institutional competences in such a conflict.
Control of Electoral Processes and Referendums
The Court plays an essential role in validating Romania's democratic processes.
Verification of the Presidential Election Procedure – The CCR supervises the legality of presidential elections and confirms their results.
Determining the Conditions for the Interim Presidency – In exceptional situations, the Court establishes whether the President is unable to fulfill their mandate and communicates its conclusions to Parliament and the Government.
Advisory Opinion on Presidential Suspension – The CCR provides a consultative opinion on the legal grounds for a potential presidential suspension.
Supervision of Referendums – The CCR ensures compliance with the procedures for organizing and conducting referendums and confirms their results.
Verification of the Constitutionality of Legislative Initiatives and Political Parties
The Court ensures that legislative proposals and political parties comply with constitutional norms.
Verification of Citizen Legislative Initiatives – The CCR examines whether these initiatives meet the conditions stipulated by the Constitution.
Control of Political Party Constitutionality – The CCR rules on challenges concerning the constitutionality of political parties, preventing the operation of formations that could undermine democratic order.
Other Duties Stipulated by Law
In addition to the competencies listed, the Court may carry out other tasks established by its organic law, playing a fundamental role in safeguarding the rule of law.
4. Referral to the Constitutional Court
The Constitutional Court may be referred to by various entities, as prescribed by the legislation of each state. The following entities are authorized to initiate proceedings before the Constitutional Court:
The President of the Republic;
The Government;
The Parliament or a specified minimum number of parliamentarians;
The Ombudsman;
Judicial courts, through exceptions of unconstitutionality raised during legal proceedings;
Citizens, under certain conditions defined by law.
5. Effects of the Constitutional Court's Decisions
The decisions issued by the Constitutional Court carry binding legal authority and must be adhered to by all state authorities, whether legislative, executive, or judicial. This obligation stems directly from the Constitution, which designates the Court as the guarantor of constitutional supremacy.
Binding Effect for All State Authorities
Any ruling rendered by the Court must be enforced by public institutions and judicial bodies. No state authority is permitted to disregard or refuse to implement a decision issued by the Court.
Termination of the Applicability of Unconstitutional Acts
When the Court determines that a law or normative act contravenes the Constitution, it loses its legal validity. If the ruling concerns a provision within a law or ordinance, the relevant authorities are required to amend or repeal the provision to bring it into compliance with the Constitution.
Parliament and Government’s Legislative Duty
Should the Court declare an entire law unconstitutional, Parliament is obliged to adopt a new regulation in conformity with the Constitution. If only specific provisions or articles are found unconstitutional, the competent authorities must amend the affected sections. In general, Parliament is given a 45-day period to address the issue, during which the unconstitutional provision remains suspended. If not rectified within this period, the provision will cease to have any legal effect.
Impact on Judicial Proceedings
The Court's rulings also influence ongoing judicial cases. If a court raises an exception of unconstitutionality, and the Court upholds it, the unconstitutional act can no longer be applied in subsequent cases. Furthermore, in ongoing trials, parties may invoke the Court's decision to seek the annulment or modification of rulings based on provisions declared unconstitutional.
Consequences in Public Administration
Administrative authorities are prohibited from issuing decisions or acts that contravene the rulings of the Constitutional Court. For instance, if an emergency ordinance is deemed unconstitutional, the Government must cease its application and initiate the necessary amendments to align it with constitutional requirements.
Impact on Future Legislation
The decisions of the Constitutional Court directly influence the drafting of future normative acts. Parliament and the Government must consider the Court's jurisprudence to prevent the adoption of laws that may be challenged and subsequently invalidated. Thus, the Court's decisions not only rectify legislative errors but also safeguard against the enactment of unconstitutional regulations in the future.
Sanctions for Non-Compliance with the Court’s Decisions
Failure to implement a Constitutional Court decision by a public authority may result in institutional gridlock or lead to constitutional legal disputes. In certain instances, such defiance could result in disciplinary sanctions or legal liability for those who disregard the Court's rulings.
The binding nature of the Constitutional Court's decisions ensures the respect for constitutional principles and protects the rule of law. Whether addressing the annulment of unconstitutional laws, influencing judicial decisions, or rectifying administrative regulations, the Court’s decisions play a pivotal role in maintaining the legal and institutional balance of the state.
6. Frequently Asked Questions about the Constitutional Court
Can an ordinary citizen refer a case to the Constitutional Court?
Generally, citizens cannot directly refer cases to the Constitutional Court. However, they can raise exceptions of unconstitutionality within court proceedings, and the court may refer the case to the Constitutional Court.
What happens if a law is declared unconstitutional?
The law or provision in question can no longer be applied. Authorities are required to amend or repeal it in order to bring it into compliance with the Constitution.
Who can refer a law to the Constitutional Court for a constitutionality check?
The Court can be referred to by the President of Romania, the President of the Senate or the Chamber of Deputies, the Government, the Ombudsman, the High Court of Cassation and Justice, or a group of at least 50 Deputies or 25 Senators.
Can the Constitutional Court’s decisions be contested?
No, the decisions of the Court are final and binding on all state authorities. They cannot be contested or ignored, and authorities are obligated to respect and enforce them.
What role does the Constitutional Court play in the election of the President of Romania?
The Court ensures the procedure for the election of the President is followed and officially confirms the results of the presidential elections.
Can the Constitutional Court suspend the President from office?
No, the Court cannot suspend the President, but it issues a consultative opinion regarding the suspension proposal. The final decision rests with Parliament.
What happens if Parliament does not comply with a decision of the Constitutional Court?
Failure to comply with the Court's decisions may lead to legal and institutional conflicts, and the authorities involved may be held accountable. In the case of a law being declared unconstitutional, it loses its effect after the 45-day period if it is not amended.
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