Short considerations regarding the application and the effects of art. 147 of the constitution

• Author: S.G. Barbu/A.M. Ciobanu/L.G. Nitoiu
• Position: Transilvania University of Brasov/DLAF counselor, Government of Romania/Lawyer Brasov Bar, PhD student at the University of Bucharest, Law School
• Pages: 161-168

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 10 (59) No. 1 - 2017

SHORT CONSIDERATIONS REGARDING

THE APPLICATION AND THE EFFECTS

OF ART. 147 OF THE CONSTITUTION

S.G. BARBU 1 A.M. CIOBANU 2 L.G. NIŢOIU3

Abstract: The interpretation of Article 147 paragraph 1 of the Constitution

holds some nuances which are revealed within some of the earlier decisio ns

of the Constitutional Court, although in the Decision no. 64/February 9,

2017 they seem to not be taken into consideration in the same manner,

respectively in the sense that under the aforementioned Article 147

paragraph 1, the Government can adjust for the criticism of

unconstitutionality made by the Court only if its provisions demand it, while

laws declared unconstitutional in whole or in part, especially in the a priori

control, can be brought on the same line with the Constitution only by law as

a legal act of the Parliament.

Key words: Constitution, Constitutional Court (CCR), Ombudsman,

principle of symmetry, ordinary rules, special derogatory rules.

1. Introduction

Starting with the Decision of the Constitutional Court of Romania (CCR) no.

64/9.02.2017 regarding the unconstitutionality exception of the provisions of the

Government Emergency Ordinance no. 13/2017 for the modification and completion of

Law no. 286/2009 regarding the Criminal code and of Law no. 135/2010 regarding the

Criminal procedure code, exception raised directly by the Ombudsman, we shall focus on

a single theoretical aspect which can result from the content of art. 147 paragraph 1, first

thesis of the Constitution.

As a general appreciation, we believe that the solution of the Constitutional Court

pronounced in the aforementioned decision is correct, and the arguments of the

Constitutional Court regarding the inadmissibility of the referral formulated by the

Ombudsman, considering that in the meantime the Government Emergency Ordinance

no. 13/2017 was repealed by Government Emergency Ordinance no. 14/2017, are

correct and have a faultless logical fluency.

On the contrary, the dissenting opinion formulated in the cause by the two

constitutional judges has no constitutional, jurisprudential or doctrinal support. The two

authors of the dissenting opinions excessively force certain legal reasoning’s in order to

motivate the right of the Constitutional Court to control inclusively the constitutionality

1 Transilvania University of Brașov, silbarg70@gmail.com.

2 DLAF counselor, Government of Romania.

3 Lawyer Brașov Bar, PhD student at the University of Bucharest, Law School.