The responsibility of subjects implicated in the adoption of unconstitutional norms in Romania

• Author: Alina Livia Nicu
• Position: Associate Professor, PhD., Craiova University, Faculty of Law and Administrative Sciences
• Pages: 293-301

Legal Sciences

293

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The Responsibility of Subjects Implicated in the Adoption of

Unconstitutional Norms in Romania

Alina Livia Nicu

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Abstract: The purpose of the present p aper is to analyze certain aspects regarding the responsibility of actors

involved in the enactment activity, with an emphasis on the case of adopting unconstitutional norms. This

subject was chosen starting from the situations occurring in practice following the creation of legal rights

through judicial norms, subsequently declared as being unconstitutional. The analysis of the existent judicial

frame in this matter leads to the conclusion that the judicial commitment of the actors involved in the

enactment process cannot be involved, with the exception of the personnel of the Legislative Counci l and the

Government. Practically, there is no specific sanction for these situations. Our conclusion is that in such

situations, the Romanian legislation does not protect the citizen against the r esults generated by the defective

practice in the enactment activity. In consequence, we have formulated propositions de lege ferenda.

Keywords: responsibility; judicial liability; enactment; malpractice; unconstitutional judicial norms

1. Introduction

The restoration of the state of law in Romania gave a new dimension to the principle of legality.

According to the provisions of the Romanian Constitution “the respect of the Constitution, its

supremacy and laws it is mandatory”

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which means that the social and judicial mechanisms of t he

democratic state have to allow being a reality and not a simple statement or a sterile judicial

regulation. The fundamental change produced at the level of the mind of each individual, following

the restoration of the state of law in Romania should be the replacement of the concept that the

legislation has to be respected by fear with the concept that the legislation is a means of protection of

the citizen as person and of the environment he lives in- with its natural component and the social

realities in which the lives- and as a consequence, has to respect the legislation if he wishes for a better

life. In order that such a line of thought to become part of our subconscious, it is necessary for all of us

to feel that the authorities, which offer content to the norms composing our legislation, act with

maximum professionalism and maximum responsibility, to feel that in the judicial norms are

consecrated those values that are real fundaments for the collectivity.

We proposed an analysis of the aspects regarding the responsibility of the actors involved in the

enactment process, with an emphasis on the situation of the adoption of unconstitutional norms. We

chose this subject starting from the situations that appeared in practice after the creation of some legal

rights through the judicial norms subsequently declared as being

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Associate Pr ofessor, PhD., Craiova Univers ity, Faculty of Law and Administrative Sciences, Address:

13

A. I. Cuza Str.,

Craiova 200585, Romania, Tel.: +40 251 414398, fax: +40 251 411688, Corresponding author: nicu1940ion@gmail.com.

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Article 1, par. 5, Romanian Constitution, republished in the Official Monitor, no. 767 on October 31

st

, 2003.