DECISION N0 1 of the
Plenum of the
on the free access to justice of persons in order to defend their rights, freedoms and legitimate interests
The solutions of the Court are different according to the specific character of each case:
- By the Decision n0 34/1993 ( published in the “Monitorul Oficial” of Romania, Part 1, n0 144 of 1 July, 1993) ascertaining that the exception provided under Article 4 of the Law on administrative contentious n029/1990, referring to the provisions under Article 3 of the same law, concerning the petitions on establishing and diminishing taxation, taxes and fines provided by the laws which stipulate taxations and taxes, eliminates the legal courts jurisdiction and, therefore, infringes on the free access to justice, it has been decided that it is abrogated according to Article 150 paragraph (1) of the Constitution and thus the right to appeal before the administrative contentious office of the Supreme Court of Justice has been consecrated;
- by the Decision n0 35/1993 (published in the 1tMonitorul Oficial” of Romania, Part I, n0218 of 6 September, 1993) it has been decided that the provisions under Article 35 of the Law n0 32/1968 on establishing and sanctioning contraventions are unconstitutional and, consequently, abrogated, because they hinder the juridical persons from exercising the way of appeal against the contravention minutes before the legal courts, thus infringing the free access to justice;
- by the Decision n04 1/1993 (published’ in the “Monitorul Oficial” of Romania, Part I, n0 218 of 6 September, 1993) a constitutional claim on Article 11 of the Law on the Land Fund n0 18/1991 was rejected as obviously lacking grounds, holding, among others, that the appealed provision expressly provides tile possibility of the person unsatisfied with the judgment of the districtual commission to address before justice (the court), representing a materialization of the principle provided under Article 21 of the Constitution;
- by the Decision n0 60/1993 (published in the “Monitorul Oficial” of Romania, Part I, n0 12 of 19 January, 1994) the exception of unconstitutionality of Article 64 final paragraph of the Decree n0 360/1976 on the approval of the Disciplinary Statutes of the personnel in transport units was admitted and it was ascertained that it is abrogated on the. grounds of Article 150 paragraph (1) of the Constitution, following that against the judgment of the court the interested party should be able to exercise all the ways of appeal provided by law. In order to pronounce this settlement it was held that the appealed legal provision ensures for the employees who cooperate to the safety of traffic only partial access to justice (complaint before the court), while for the other employees from transport there is not such a restriction and, therefore, the text consecrates. a discrimination which contravenes to the provisions under Article 16 paragraph (1) of the Constitution.
Referring to this latter decision, the Supreme Court of Justice, by the address n0 56 of 29 November, 1993 brought institution of proceedings before the Constitutional Court, requesting the examination whether it is not contrary to the Decision n0 3/1992 of the Constitutional Court, by which, in the matter of the electoral contentious, it was established that the provisions comprised within Article 85 paragraph (2) of the Law n0 68/1 992 on the election to the~ Chamber of Deputies and to the Senate, which excludes, in this~ matter, other ways of appeal than the recourse, is constitutional.
As such, in order to eliminate any possibility of equivocal interpretation
of the decisions of the
The Plenum of the
examining the delivered decisions, especially Decision n03/1992, published in the “Monitorul Oficial” of Romania, Part 1, n0 162 of 15 July, 1992 and Decision n0 60/1993, published in tile “Monitorut Oficial” of Romania, Part I, n012/1994, as well as the institution of proceedings made by the Supreme Court of Justice, holds the following:
According to Article 21 of the Constitution: “(1) every person is entitled to bring cases before the courts for the defense of his legitimate rights, liberties and interests.
(2) The exercise of this right may not be restricted by any law
In the interpretation of this constitutional principle, the I Plenum of the
1. if the institution of an administrative-jurisdictional procedure constitutes an infringement of the free access to justice or if
j the limitation of this access could be its effect;
2. if the free access to justice is compatible with the institution of special procedures, for special situations or, on the contrary, it implies the existence of only one procedure, indifferently of such situations, including the exercise of the ways of appeal;
3. under what conditions the existence of certain procedural particularities, especially as to the exercise of the ways of appeal, is in compliance with the principle of the citizens’ equality before law and public authorities, provided under Article 16 paragraph (1) of the Constitution.
Referring to the first problem, on the constitutional legitimacy of the administrative-jurisdictional proceedings, the Plenum of the Constitutional Court considers it is up to the legislator’s exclusive ‘competence to institute such proceedings destined, generally, to ensure the faster solution for certain categories of litigations, the legal courts’ decongestion of the cases that can be settled by this way, the avoidance of tria1 expenses. Thus, the administrative-jurisdictional procedure , institutes a protection measure which, therefore, cannot have as an aim, in no way, the limitation of access to justice. But, in compliance with the provisions under Article 125 of the Constitution, justice shall be administered by the Supreme Court of Justice and other legal courts established by law. Thus, the existence of certain jurisdiction administrative bodies cannot lead to the elimination of the intervention of the legal courts, under the conditions provided by law. This consequence results from the exigencies of the principle of separation of powers within the state which, as to the relation between the public administration and judicial authority, excludes the possibility that a body of public administration, even with jurisdictional character, should substitute to the judicial authority. Therefore, the judgment of the administrative jurisdiction body is subject to the judicial check of the administrative-contentious court or of another competent court, according to the law, and the exercise of this right consecrated by the provisions of the Constitution cannot be restricted for the parties.
The free access to justice supposes the access to the procedural means by which justice is carried out. That is why, on the second problem, referring to the compatibility of certain special procedures fo the exercise of the procedural rights of the parties with the principle of the free access to justice, the Constitutional Court considers it his within the legislators exclusive competence to institute the rules of carrying out the trial before the courts. Also, it is a solution which results categorically from the provisions under Article 125 paragraph (3) of the Constitution, according to which “Competence and procedure of courts shall be regulated by law” and under Article 128 in compliance with which “Against decisions of the courts, the parties and the Public Ministry can exercise ways of appeal, in accordance with the law”. The judge ‘affirms the right” for the settlement of a litigation, but only within the forms and the procedural conditions instituted by law. Consequently, the’ legislator may institute, with a view to taking into account some special situations, special rules of procedure, as well as the modalities for the exercise of the procedural rights, the principle of free access to justice supposes the non-restricted possibility of the interested parties to use these procedures in the form and the modalities instituted by law. That is why the rule under Article 21 paragraph (2) of the Constitution, according to which no law may restrict free access to justice, signifies that the legislator may not exclude any category or social group from the exercise of the procedural rights it has instituted.
Referring to the third problem, on the insurance of citizens’ equality in the exercise of their procedural rights, including the ways of appeal, the Constitutional Court considers that in instituting the’ rules of access of the appellants to justice to these rights, the legislator is compelled to observe the principle of the citizens’ equality before law and public authority, provided by Article 16 paragraph (1) of the Constitution. That is why it is not contrary to this principle to institute certain special rules, including the ways of appeal, as long as they ensure the citizens’ juridical equality in their own employment. The principle of equality before the law supposes the institution of an equal treatment for situations which, according to the aim in view, are not different. That is why it does not exclude but; on the contrary, it supposes different solutions for different situations. Consequently, a different treatment cannot be only the expression of an exclusive appreciation of the legislator, but it must be justified rationally, with the observance of the principle of citizens’ equality before law and public authorities. On the grounds of these considerations, by the Decision n0 60/1993, the Constitutional Court appreciated that the institution of the partial access, only in the first instance, of the employees from the Traffic Safety Department is unconstitutional, ,while for the other employees from the Transport Department, in their labor litigations, the access to all the procedural means provided by Law is ensured. Yet, this does not mean that, in all cases, the free access to justice supposes the insurance of access to all judicial structures - legal courts, tribunals, courts of appeal, the Supreme Court of Justice - and to all the ways of appeal provided by law, because the competence and trial procedure are established by the legislator and the legislator, ensuring the possibility of coming before ~courts in equality conditions, can establish different rules.
Within this context, one can clearly notice why there is no contradiction between the decisions of the Court n0 3/1992 and n060/1993. The access to justice has not even been discussed in the first decision, because by the institution of proceedings it has been stated that Article 85 paragraph (2) of the Law n0 68/l992, which provides that “Against the final judgments, pronounced by the courts according to this law, there is no way of appeal”, is contrary to the provisions under Article 128 of the Constitution. Accordingly, it has been appreciated that the term “under the conditions of law” in Article 128 does not mean a possibility of restricting the right to exercise the ways of appeal, but refers to the regulation of the procedural conditions for the employment thereof. In motivating the decision - which has held that the appealed provision is constitutional
- it has been pointed out that both in our trial system and in other countries, the law can exclude the employment of some ways of appeal, either in order to reduce the expenses due to the trial because of the slight character of the object in litigation, either for reasons of rapidity or of protection of some social interest; or because the nature of the case imposes a prompt and final solution. The elimination of the extraordinary ways of appeal, in matters of election, has been imposed by the necessity of ensuring the efficiency in settling all the problems in connection with the display of elections, as well as by the interest of the stability of the results thereof, because the application in matters of the common law norms would practically mean to hinder the display of elections or to place the results of the elections within the si$n of incertitude for a long time. Thus the solution and the motivation of this decision have in view exclusively the, electoral procedure, so that they may not be contrary to a solution from another field, inwhich the invoked problem has been different.
Having regard to the above reasons,
Having regard also to the provisions under Article 16 paragraph (1),.Article 21, Article 125 and Article 128 of the Constitution, as well as to the ‘provisions under’ Article 26 paragraph (2) of the Rule on Organization and Operation of the Constitutional Court,
The- Plenum of the Constitutional Court, with the votes of judges Vasile Gionea, .Viorel Mihai Ciobanu, Antonie Iorgovan, Ion Filipescu and Florin Bucur Vasilescu,
1. The institution of an administrative-jurisdictional procedure not contrary to the principle provided under Article 21 of the Constitution on the free access to justice, as long as the decision of the adm body of jurisdiction can be appealed before a court.
2. Access to judicial structures and to the procedural including the ways of appeal, is done with the observance of competence and trial procedure rules established by law.
3. Free access to justice is achieved only with the respect of the citizens’ equality before law and public authorities, so that any elimination that would have the significance of infringing upon the equality of juridical treatment is unconstitutional.
Delivered by the Plenum of the
The debate was attended by Vasile Gionea, chairman, Viorel Mihai Ciobanu, Mihai Constantinescu, Antonie Iorgovan, Ioan Muraru, Ion Filipescu,
The decision shall be communicated to the Supreme Court of Justice and shall
be published in the “Monitorul Oflcial”