The Standardized and Uncontroversial “Administrative” Approach to Judging Contravention Complaints, Invalidated by Decision No. 404/2022 of the Constitutional Court of Romania

The Standardized and Uncontroversial “Administrative” Approach to Judging Contravention Complaints, Invalidated by Decision No. 404/2022 of the Constitutional Court of Romania Lecturer Anca-Jeanina NIȚĂ1 Motto: "No changes should be made to a law without good reason. In framing laws, care must be taken that they do not disturb the nature of things." Montesquieu Abstract The aim of this study - occasioned by the Romanian Constitutional (RCC) Decision. No. 404 of September 21, 2022, we bring back into discussion the obligation of the legislative forum not to ignore the principle of the security of legal relations in the component related to the clarity, accessibility, and predictability of the law. The legislative proposal for the amendment and completion of Government Ordinance (GO) no. 2/2001 on the legal regime of contraventions (PLx 598/2021) - based on the standardization of the contravention procedure and the introduction of the written procedure, in the council chamber, with the removal of the subpoena of the parties, in the case of specific complaints, in order to make justice more efficient. The opinions of the Legislative Council and the Superior Council of the Magistracy are observed and analyzed - through the lens of its considerations and effects, RCC Decision no. 404/2022 by which the notification of unconstitutionality formulated by the People's Advocate was admitted. It is argued that the fundamental mission of justice as an act of judicial justice and as a public service cannot be subordinated to a purely administrative approach, which abandons the requirements of the rule of law and mutilates the right to a fair trial. Considering the many changes and additions to GO no. 2/2002, respectively attempts to change invalidated by the administrative litigation court, we conclude with the observation that legislation for the sake of legislation is a practice that must be abandoned, the need to adopt a Contraventional Code being brought back into discussion. Keywords: Constitutional Court of Romania, administrative law, contravention complaints, legislative process. JEL Classification: K23, K41 1. Why this theme? Brief introductory remarks This article was inspired by a recent decision of the Romanian Constitutional Court (CCR) Decision no. 404 of 21 September 2022 2, by which the Law amending and supplementing Government Ordinance no. 2/2001 on the legal regime of contraventions (PL-x no.589/2021), which regulated a special, derogatory procedure for the hearing of appeals against penalties of a warning or a fine of a reduced amount, was declared unconstitutional. The Government Ordinance (O.G) no.2/2001 on the legal regime of contraventions 3 normative act that regulates the common framework of contraventions, contains both substantive rules - concerning the institution of the contravention, sanctions, etc. - and procedural rules concerning the drawing up of the acts, the appeal procedures and the execution of contravention sanctions. Approved with amendments and additions by Law no. 180/20024, O.G. no.2/2001 has undergone over time numerous legislative interventions, either in response to the changing social Anca-Jeanina Niță - Faculty of Law and Administrative Sciences, "Ovidius" University of Constanta, Romania, ancajeanina.nita@ gmail.com. 2 Unpublished, available on the website https://www.ccr.ro/wp-content/uploads/2022/11/Decizie_404_2022.pdf, consulted on 11.11. 2022. 3 Published in Official Gazette no. 410 of July 25, 2001. 4 Published in Official Gazette no. 268 of April 22, 2002 1 Perspectives of Law and Public Administration Volume 11, Issue 4, December 2022 632 realities 5, but also to bring some of its provisions - declared unconstitutional, with the CCR decisions 6. There has also been a proposal to amend and supplement O.G. no. 2/2021 (e. g. PL x no. 521/20217) transposed into law, which was challenged before the Constitutional Court before promulgation and did not pass the constitutionality test8. The legislative proposal to amend and complete the O.G. no.2/2001 on the legal regime of contraventions (PL x no.589/2021) was initiated - as it appears from the explanatory memorandum out of the desire to "support judges who resolve contravention complaints against the official reports concluded by the investigating officers" and "to improve the legal framework of the legal regime of contraventions". The French doctrine emphasises that legislative policy (or substantive lawmaking) is concerned with devising the aims and means of legislative action by discerning what is desirable from what is possible9. Material lawmaking, legislative technique and formal lawmaking are notions which - without being confused - interfere with each other and constitute prerequisites for the quality of the law. Or, in other words, the articulation of social reality with legislative technique and legislative procedure is the cornerstone of the quality of the law, on which the dispensation of justice largely depends. In the same terms, G. Mârzescu10, in his speech - delivered in the Chamber of Deputies, at the presentation of the draft law on the establishment of the Legislative Council, stated that "Legislating, i.e. the work of drafting laws, of formulating and drafting legislative solutions requires, in truth, a legislative policy, a legal technique, a legislative technology and, in all cases, knowledge of extrajudicial practice and jurisprudence, of comparative law, of the scientific progress made by doctrine, of the history of law and institutions, of the psychology of the people, of the political organisation and the economic and social structure of the country."11 As we have already stated 12, justice - as a public service - cannot be made more efficient by "forcing" procedures, ignoring the principle of legality, free access to justice, the right of defence and the right to a fair trial. 2. Some observations drawn from monitoring the legislative process The legislative proposal - initiated by a group of 9 PNL deputies, was registered at the Permanent Bureau of the Chamber of Deputies, under no. 423/6.09.2021, although - according to the 5 For example, changes brought by: Government Emergency Ordinance no. 108/2003 for the abolition of the contravention prison, published in the Official Gazette no. 747 of October 26, 2003; Law no. 76/2012 for the implementation of Law no. 134/2010 regarding the Code of Civil Procedure, published in the Official Gazette no. 365 of May 3, 2012; Government Ordinance no. 5/2015 for the modification of some terms provided for by Government Ordinance no. 2/2001, published in the Official Gazette no. 78 of January 22, 2014, Law no. 203/2018 on measures to streamline the payment of contravention fines, published in the Official Gazette no. 647 of July 25, 2018. 6 Decision no. 228/2007 regarding the exception of unconstitutionality of the provisions of art. 12 para. (1) from Government Ordinance No. 2/2001, published in the Official (...truncated)