DECISION N0 139 of
on the constitutionality of the
Law for the approval of the Government Ordinance n0 50 of 12 August,
1994, on the setting up of a tax for passing the frontier with a view to
constitute some resources destined to social protection
The
Also, on
The
The claim of the group of Senators points that by the Decision no.71/1993
the Constitutional Court stated that, as the tax for passing the frontier was
destined to the payment for heating assistance, it was constitutional until the
fulfillment of the term for paying this assistance, after that date the tax
constituting “exclusively a financial impediment which saddles the right to
free movement, that is not enclosed in any of the hypothesis provided by
Article 49 of the Constitution”. Therefore, it is considered that the
Government Ordinance n0 50/1994, approved by the law that is the
object of the claim “has, purely and simply, ignored the position of the
Constitutional Court, re-establishing a permanent tax of which the exercise of
a citizen’s fundamental right is conditioned”, although the above decision
mentioned stated that “such a modality may not have a principle character”.
Also, it is considered that the tax institution is contrary to the provisions
under Article 25 of the Constitution which guarantees the right of free
movement, as well as under Article 49 of the Constitution, as it is not
enclosed in any of the hypothesis limitatively
provided by paragraph (1) under this Article. From another point of view, of
the international regulations on the human rights, it is appreciated that the
institution of the tax for passing the frontier is contrary to Article 13
paragraph 2 of the Universal Declaration of the Human Rights and to Article 2
point 2 of the Protocol n04 of the Convention for the protection of
the human rights and fundamental freedoms. All the same, it is considered that
the institution of the respective tax is contrary to the Final Act of the
Conference of Security and Cooperation in
The claim of the group of deputies essentially points that the above
mentioned law is unconstitutional, as the tax for passing the frontier is a
financial impediment which “limits the right of free movement”, contradicting
the provisions under Article 25 paragraph (1) of the Constitution,
according to which the right of free movement within the national territory and
abroad is guaranteed, as well as the Universal Declaration of the Human Rights,
the international agreements and treaties on these rights, according to which
the signatory states assumed the obligation to facilitate the international movement
of persons. Also, it is considered that the law acts contrary to Article 53
paragraph (2) of the Constitution, too, according to which the lega1 taxation
system has to ensure “the fair distribution of the tax burden”. Along the same
line it is considered that, according to Article 7 of the Ordinance, the tax is
destined to financing certain measures for social protection assistance
existent until the present, with resources ensured from the state budget, and
by no means to some new measures which would justify the contribution of the
population Through new taxes, as it has been the case of the legal provision
that made the object of the Decision of the Constitutional Court n07
1/1993, by which it was stated that such a tax may not have a “principle
character”, but only “for the institution of a protection measures on the
grounds of Article 43 paragraph (1) of the Constitution”.
On the grounds of Article 19 of the Law n0 47/1992, the claims
were communicated to the presidents of the two Chambers of Parliament and to
the Government, which have not communicated their points of view.
As the two claims concern the unconstitutionality of the same law, it has
been proceeded to their connection, the present
decision being delivered.
The
taking into account the two unconstitutionality
claims that were received, the law which is the object of the constitutionality
control, the provisions of the Constitution and of the Law n0 47/1992,
holds the following:
Essentially, the unconstitutionality reasons invoked by the two claims
concern the aspects linked to the international regulations referring to the
human rights and aspects linked to the incidence of Article 49 paragraph (1)
and Article 53 paragraph (2) of the Constitution.
Referring to the international regulations on the human rights, the invoked
reasons are based on the provisions under Article 20 of the Constitution,
according to which the provisions referring to fundamental rights and freedoms
have to be interpreted and applied in accordance with the Universal Declaration
of the Human Rights and with the respective agreements and treaties and the
internal laws, the international regulations are having priority.
The claim of the group of Senators states that the institution of the tax
would be contrary to Article 13 paragraph 2 of the Universal Declaration of
the Human Rights, according to which ,,any person has the right to leave
any country, including his own, and to return to his country”.
This unconstitutionality reason may not be held, as only the prohibition of
free movement would be contrary to the respective provision. But,
as it is stated in the very claim of the group of Senators, and, moreover, also
of the group of Deputies, the institution of the tax represents a financial
impediment for the exercise of the right of free movement, and not an
interdiction.
Also, the claim of the group of Senators states that the institution of the
tax would be contrary to “the letter and spirit” of the documents of Helsinki,
Madrid and Vienna referring to the European security and cooperation, without
specifying to what extent or referring to what provision under these documents
the annoyance is evinced.
Yet, it is to be noticed that these international documents do not have the
significance of any treaties or agreements concerning the human rights and only
the Universal Declaration of Human Rights has been incorporated, by Article 20
paragraph (1) of the Constitution, in the domestic law, as any legal provision
has to be interpreted and applied in accordance with its provisions. Therefore, neither this criticism may not constitute an
unconstitutionality reason.
By the claim of the group of Deputies it is stated that any measure -
including the financial ones - of rendering difficult the “international human
contacts” would be contrary to the provisions under the international
regulations, and therefore, unconstitutional. But according to point 3 of the
Protocol n0 4 of the Convention on protecting the human rights and
the fundamental rights, the right of free movement may be restricted by law for
the limited reasons mentioned by this provision. That is why, a restrictive
measure, in the situation it is framed in those provisions, may not be
considered as being contrary to the international regulations referring to the
human rights, so that the invoked reason, which has no destination from this
point of view, may not be held as justifying the unconstitutionality of the
tax.
Finally, by the claim of the group of Senators it is considered that the
institution of the tax as contrary to the exact provisions under point 3 of the
Protocol n0 4 of the mentioned convention, above ratified by our
country, according to which the right of free movement in other country may be
restricted by law, if this measure is necessary, in a democratic society, for
national security, public safety, maintenance of public order, prevention of
penal facts, protection of health or morals, or for protecting the rights and
liberties of others.
In the claim the reasons for which the institution of the tax is contrary to
these provisions are not mentioned. But it is to mention that to the provisions
under point 3 of the Protocol n0 4 of the convention above mentioned
the provisions under Article 49 paragraph (1) of the Constitution correspond,
which under certain aspects, have a more restrictive character. Taking into
account the provisions under Article 20 paragraph (1) of the Constitution,
according to which its provisions referring to the fundamental rights and
liberties shall be interpreted and applied in accordance with the provisions of
international agreements and treaties concerning the human rights, it results
that the regulations under point 3 of the Protocol n0 4 constitute a
criterion for the interpretation and the applying of the constitutional
provisions under Article 49, so that the provisions under this Article are
essential for determining the constitutionality of a legal provision, the
content of which Article have to be interpreted in accordance with the
international norm.
Consequently, it results that the reasons invoked as referring to the
incidence of the international regulation for determining the constitutionality
of the Law for the approval of the Government Ordinance n0 50/1994
may not be held as justifying the unconstitutional character of this law.
Referring to the incidence of Article 49 of the Constitution, as it has been
stated by the Decision of the Constitutional Court no.47/1993 referring to the
constitutionality of the tax for the passing of the frontier with a view to
feed the funds necessary for the tenements heating assistance during 1
November, 1993 - 30 April, 1994 and by the Decision of the Constitutional Court
n0 75/1994 referring to the constitutionality of the Government power
to establish a tax for passing the frontier in order to constitute some
resources destined to the social protection, the tax for passing the frontier
constitutes, a financial impediment, which restricts the exercise of the right
of free movement provided under Article 25 paragraph (1) of the
Constitution.
That is why the constitutional legitimacy may exclusively result from the
provisions under Article 49 of the Constitution.
Taking into account that the Government ability law it was provided that the
tax destination is the constitution of some resources necessary to the social
protection and that, according to Article 7 of the Ordinance, as it was
modified by the approval law, the sums cashed out of the tax for passing the
frontier are destined to the payment of social assistance and of rights similar
other, it results that among the reasons which may justify the restriction of
certain rights, according to Article 49 paragraph (1) of the Constitution, the
only one which may be taken into account is the legal one for the protection of
the citizens rights and liberties.
On this grounds, the Constitutional Court stated, by the Decision n0 71
/1993, that the establishing of the tax in order to feed the funds
destined to the payment of the assistance for tenements heating during
November, 1, 1993 - April, 30, 1994 is constitutional, taking into account the
“exceptional situation resulting from the lack budget funds necessary for the
institution of a measure for protection, on the grounds of Article 43 paragraph
(1) of the Constitution”.
It has also been stated by this decision that “such a modality may not have
a principle character”, as it “would constitute exclusively, a financial
impediment which limits the right of free movement, that is not enclosed in any
of the hypothesis provided under Article 49 of the Constitution”.
From the provisions under Article I of the Ordinance it results that the tax
for passing the frontier has been instituted “with a view to constitute some
supplementary resources in order to grant certain rights for social
protection”. Thus, according the new regulations, the tax has the value of a
principle, no longer having an exceptional character linked to the applying of
a certain measure for social protection.
As it has been stated by the Decision of the Constitutional Court no.75/1994,
as the tax for passing the frontier affects a fundamental right - the right
of free movement - “it may not be instituted but only if it is imposed in order
to protect certain rights of the citizens”. Taking into account the purpose of
the Government ability to pass Ordinances, such rights may not be but the ones
which belong to the social protection. This fact supposes that the legislator
should establish for the benefit of which specific rights tile tax has been
instituted. The determination of these rights, yet, may not be generic, as it
is provided under Article 1 of the Ordinance - “social protection rights” - or
under Article 7 as it has been modified by the legislator
- the payment of the social assistance and other similar rights” -but,
concretely, because according to paragraph (2) under Article 49 of the
Constitution “the restriction has to be proportional to the situation it has
determined” and this proportionality may be established but for the consideration
of a certain right for the achievement of which, as paragraph (1) of the same
Article provides, the restriction “is imposed”. In other words, the restriction
of a constitutional right - in the present cases, of the right of free movement
provided under Article 5 of the Constitution - in order to defend
certain rights of the citizens, is possible, according to Article 49 of the
Constitution, only for the consideration of a certain right, as a measure that
has to be imposed, for, without this restriction, the respective right would be
gravely affected and, according to the proportionality principle, only to the
limits necessary in order that this right should not be compromised, at least
to some extent. Fundamentally, in this situation, a right is affected by law in
order to safeguard another right, the importance of which is considered as
primordial by the legislator. But, in the absence of stating the right for the
benefit of which the restriction occurs out of the mere reference to the rights
of social protection (Article I of the Ordinance) or to the rights of social
assistance (Article 7 of the Ordinance) it does not result either that this
restriction “is imposed”- as provided for by paragraph (1) under Article 49 of
the Constitution - or that it is proportional to the situation it has
determined - as provided by paragraph (2) under the same Article, On the
contrary, Out of Article I of the Ordinance it results that the tax has a
principle character, final, and is destined to constitute supplementary
resources in order to feed certain funds of the budget for state social insurances.
By means of these funds, therefore mediated, the tax is destined to pay certain
rights, generally defined, without the possibility to deduce to what extent
they would compromised without this restriction.
It is true that, according to Article 53 paragraph (1) of the
Constitution, the citizens have the obligation to contribute, by taxation and
taxes, for the public expenses, and the payment of the social insurances rights
constitutes a public expense. Yet, according to paragraph (2) of the same
Article, the legal taxation system has to ensure the fair distribution of
fiscal burdens, which supposes to take into account some incomes, values or labor
conscription, and not only the mere exercise of a constitutional right, as the
right of free movement is. Principally, a tax has a justification in a labor
conscription of a public authority. Otherwise, if it exclusively affects the
realization of a fundamental right, it represents a financial
impediments, of a nature to restrict unconstitutionally the exercise of
that right.
Out of the displayed facts it results that the Law on the
approval of the Government Ordinance 50/1994 is
unconstitutional because:
- it institutes a restriction of the right of free
movement provided by the Article 25 of the Constitution, with permanent and
principle character;
- it represents a financial impediment for the exercise of the right of free
movement which is not justified, according to Article 49 of the Constitution,
as a measure which is imposed for the protection of another right, without this
restriction, would be gravely compromised;
- it constitutes a measure adopted with the eludation
of the proportionality principle provided by paragraph (2) under Article 49 of
the Constitution, as it may not be held that the social protection insurance,
at least to some extent, would no longer be realizable without the institution
of this tax, as long as they are supported by the budget of state social insurances
approved by law;
- it constitutes a measure contrary to the principle of the fair
distribution of the fiscal burden provided under Article 53 paragraph (2) of
the Constitution, as it represent a tax instituted on the simple exercise of a
constitutional right, without being justified in any way the labor conscription
of a public authority.
Taking into account the exposed reasons, also noticing the provisions under
Article 20, Article 25 paragraph (1), Article 49, Article 53 paragraph (2),
Article 144 sub-paragraph a) and Article 145 paragraph (1) of the Constitution,
as well as under Article 20 of the Law 47/1992,
THE
In the name of the law
DECIDES:
It declares that the Law on the approval of the Government Ordinance 50 of
The decision shall he notified to the President of Romania. as well as to
the president of the Chamber of Deputies and to the president of the Senate, in
order to institute tile proceeding provided under Article 145 paragraph (1) of
the Constitution; and shall be published in the ,,Monitorul
Oficial'' of Romania, Part 1.
The debate took place on