Monday , September 16 2019
Home / romania / Klaus Jonathan and SESIZAT CCR relate to the amendment to the Road Traffic Act: "Parliament adopts a set of regulations to the contrary" – News from sources

Klaus Jonathan and SESIZAT CCR relate to the amendment to the Road Traffic Act: "Parliament adopts a set of regulations to the contrary" – News from sources



Romanian President Klaus Johmann sent the Constitutional Court a petition on non-constitutionality for the Amendment Act. 109 of the Government Emergency Ordinance No. 195/2002 on traffic on public roads.

Read also: Ingrid Mocanu SLAUGHTER in Alexandra Lancrojan: "It spoils her image and parades in the band.

NOTIFICATION OF INDEPENDENCE TO

The Law amending Art. 109 of the Government Emergency Ordinance No. 195/2002 on traffic on public roads

On June 4, 2019, the Romanian Parliament transmitted to the President of Romania, for the purpose of promulgation, the Amendment Act. 109 of the Government Emergency Ordinance No. 195/2002 on traffic on public roads (PL-x 112/2018).

Given the fact that the form of the law passed on the promulgation is after the review procedure, not after the Constitutional Court's decision. No 684/2018 (published in the Official Gazette, Part I, No 50 of 18 January 2019), and given that Parliament has adopted a number of provisions which contradict and exceed the limits of that decision, we consider that the Law amending the Art. 109 of the Government Emergency Ordinance No. 195/2002 on traffic on public roads was adopted in violation of the provisions of Art. 147, para. 2 and 4 of the Constitution for the following reasons.

1. On July 27, 2018, the President of Romania made a petition for unconstitutionality under the Amendment Act. 109 of the Government Emergency Ordinance No. 195/2002 on movement on public roads, requesting the Constitutional Court to declare that the Parliament has adopted this law in violation of the provisions of Art. 1, para. (5), Art. 21 and Art. 22, para. 1 of the Basic Law. As a result of the Constitutional Court's decision no. 684 of November 6, 2018, following the passage of parliamentary legislative procedures, the Parliament adopted a Law amending Art. 109 of the Government Emergency Ordinance No. 195/2002 on the movement on public roads in the form retained by the control of the Constitutional Court with this notification.

By Decision No. 684/2018, the Constitutional Court ruled that "the provisions of the sole article [cu referire la art. 109 alin. (6)-(11), (13) și (14) din Ordonanța de urgență a Guvernului nr. 195/2002] of the Amendment Act of Art. 109 of the Government Emergency Ordinance No. 195/2002 on the movement on public roads are unconstitutional. "Therefore, the decision of the Constitutional Court does not. 684/2018 led to resumption of Parliament's procedure for reviewing the unconstitutional provisions to be reconciled with the decision of the Constitutional Court under Art. 147, para. 2 of the Constitution. According to settled case-law (see Decisions No 1,177 of 12 December 2007, Decisions 872 and 874 of 25 June 2010, Decision No 975 of 7 July 2010 or Decision No 33 of 23 January 2018 and Decision No 61/2018 of 13 February 2018), the Constitutional Court has held that in this procedure Parliament may amend other legal provisions only if they are in relation to the provisions declared unconstitutional in order to ensure the uniformity of regulation and, in so far as necessary, recall the other provisions of the Act as a legislative tech without being able to make other substantive changes to the relevant law. In the present case, however, in the framework of the procedure for the adoption of the law by a decision of the Constitutional Court no. 684/2018, Parliament has abolished some texts and made changes without being subject to an objection of unconstitutionality and, obviously, contrary to the ruling given by the Constitutional Court. Considering the law adopted by Parliament in the form in which it is returned to the promulgation it appears that some texts in the criticized law have been abolished although they have not been the subject of a complaint of unconstitutionality or constitutional control while others have been altered, have not been declared unconstitutional and do not meet any need to comply with other provisions of the law.

Thus, the legislative interference in the single article relating to the amendment of para. (3) of Art. 109 of the Emergency Ordinance №. 195/2002, in the form prior to the review of constitutionality, provides: "The establishment of infringements in respect of facts which infringe the provisions on speed limits shall be carried out only by means of metrologically approved and metrologically checked technical means recorded in the record of the finding of the violation. "By Decision No. 684/2018, the Constitutional Court exercises constitutional control over the provisions of Article 109, Paragraph (3) of OUG No. 195/2002, as amended by the law, deducted from the control of constitutional m, in conjunction with the provisions of Art. 1, para. (5) of the Constitution on the principle of legality and concluded that: "The provisions of Art. 109, para. (3) of the Government Emergency Ordinance No. No 195/2002, in the form amended by the criticized law, according to which findings of infringing facts which violate the provisions on speed limits are made only with metrologically approved and metrologically verified technical means and this is noted in the record of the finding of an infringement – does not violate the standards of clarity and predictability of the law which are constitutional requirements so as not to violate the provisions of Art. 1, para. (5) of the Constitution on the principle of legality. Even if the provisions of Art. 108 para. (1) lights up. (a) point 4 (b). (b) point 2, lit. c) point 3 and illuminated. d) item 3 of the Government Emergency Ordinance №. 195/2002 states that for all violations committed in violation of lawful speed limitations, the exceeding of the maximum permitted speed is "established by law with metrologically approved and metrologically verified technical means" this does not mean that the criticized law is not clear and predictable. "

However, in the review procedure, Parliament amended the text of paragraph. (3) of Art. 109 of the Emergency Ordinance №. 195/2002, as follows: (3) The detection of violations in respect of facts which violate the provisions on speed limits shall be carried out only with certified technical means or technical means approved and metrologically checked, entered in the record The comparison of the two forms of art 109 (3) before and after the decision of the Constitutional Court noted that Parliament had supplemented this text of the law, although it was constitutional by the constitutional court as a result of constitutional control.the Constitutional Court was created by Decision No. 684/2018 that they are constitutional with regard to the criticisms formulated so that the change of these provisions is made by exceeding the bounds of the Constitutional Court's decision. in the present case, as a result of exceeding the limits of the Parliament's review, the provisions of Article 147, paragraph (2) of the Constitution.

In this situation, Parliament can not change these provisions as they have been declared constitutional. In this regard, it is also the case law of the Constitutional Court which, by Decision No. 515/2004, in connection with the provisions of Art. 147, para. 2 of the Constitution that they "refer to the revision of a law or legal provisions whose unconstitutionality is established by a Constitutional Court ruling on a priori constitutional review …" and that "This text restricts the resumption of the review process only with regard to the provisions for which the Constitutional Court finds unconstitutionality. "Similarly, under Decision No 33/2018, in the context of the review procedure, Parliament may amend other legal provisions regulations other than those found to be unconstitutional only if they are irreconcilable with provisions declared unconstitutional in order to ensure the uniformity of the Regulation and to the extent necessary will recall the other provisions of the Act as a legislative technique without being able to make other substantial changes to the relevant law.

Consequently, according to Art. 147, para. (2) of the Constitution, Parliament is in the process of aligning the law with the Constitutional Court's decision on the limits it has set, namely amending, supplementing or abolishing / repealing the rules declared unconstitutional by the Constitutional Court. or partially. The adoption of the law by a Constitutional Court ruling can not ignore the role and powers of Parliament which can accept any of these decisions with regard to texts declared unconstitutional without going beyond those expressly indicated by the Constitutional Court. We therefore believe that Parliament's amendments to paragraph (3) of Art. 109 of the Emergency Ordinance №. 195/2002, constitutes a legislative interference, which determines that the legislative forum has overcome the restrictions established by Decision No. 684/2018, which is contrary to Art. 147, para. 2 of the Constitution.

In addition, we believe that the law was adopted in the ignorance of those set out in Decision No. 684/2018 and the settled case-law of the Constitutional Court, thereby rendering the Constitutional Court's will irrelevant. Thus, the law was adopted by removing the obligation of the Constitutional Court's decision, including the legislator. Mandatory references and provisions of the Constitutional Court's decisions are imposed by the same legal force on all subjects of law. Therefore, considering these arguments as well as those previously set out, we believe that the criticized law was adopted in violation of Art. 147, para. 4 of the Constitution.

2. The same criticisms are also applicable to the way they have agreed with Decision No. 684/2018 the provisions of the sole article relating to the amendment of para. (4) of Art. 109 of the Emergency Ordinance №. 195/2002, by the law in the form prior to the control of constitutionality. It provides: "(4) Speed ​​measuring devices shall be installed exclusively on motor vehicles which display the marks and markings of the traffic police and are visibly located. Mobile guns destined for speed measurement are used at a maximum distance of 10 meters from vehicles showing road signs and signs. It is forbidden to use speed measuring devices in motor vehicles which do not show the inscriptions and distinguishing marks, police officers who do not wear uniforms, inscriptions and distinguishing marks, according to par. (1). "

By Decision No. 684/2018, the Constitutional Court found that "the wording of the provisions of Article 109 (4) of the Government Emergency Ordinance No 195/2002, as amended by the Penal Code, is clear, since the visible position refers to vehicles to which speedometer devices are mounted without the visibility of the vehicles concerned being reported in any way at a distance of 500-1000 m from radar (in case of location of radar equipment in the locality) and 2,000-4,000 m (in the case of their location outside the populated area ), these distances are expressly provided for by the criticized law on the publication of warning boards for the presence of radar devices mounted on stationary vehicles or on road assistance supports as well as on piston radar devices, as such, the provisions of Article 109 (4) of Government Emergency Ordinance No 195/2002, in the order amended by the law, deducted from the constitutional control, does not violate the requirements regarding the quality of the law and does not contradict the provisions of Art. 1, para. (5) of the Constitution. "

However, in the review procedure, Parliament amended the text of paragraph. (4) of Art. 109 of the Emergency Ordinance №. 195/2002, with the following aim: "(4) The detection of violations in respect of facts which violate the provisions on speed limits shall be carried out only with certified technical means or technical means approved and metrologically checked, entered in the protocol (4) The speed measuring devices are exclusively mounted on motor vehicles showing the markings and the inscriptions of the traffic police.The mobile guns destined for speed measurement are used up to a maximum distance of 10 meters from the carriage and means showing signs and signs The use of speed measuring devices in motor vehicles which do not display the inscriptions and insignia, police officers who do not wear uniforms, inscriptions and distinctive signs according to paragraph 1 ) and which are not located in visible places. "

Therefore, although the provisions for amendment with reference to para. (4) of Art. 109 from GEO no. 195/2002 have been declared constitutional by a Constitutional Court, Parliament has made some amendments to this text of the Act without being in line with the need to comply with the other provisions of the Act. We believe that this legislative intervention has been achieved by overcoming the restrictions established by Decision No. 684/2018 and contrary to the provisions of Art. 147, para. 2 of the Constitution.

3. We also draw attention to the fact that the provisions of the single article on the amendment of para. 5 and 12 of Art. 190 of the Emergency Ordinance No. 195/2002, as provided for in the first phase of the law, prior to the review of constitutionality [(5) Autovehiculele pe care sunt instalate dispozitivele radar pot fi utilizate staționar sau în mișcare. (12) Pentru amenzile contravenționale în cuantum de până la 20 puncte-amendă, contravenientul poate achita pe loc agentului constatator jumătate din minimul amenzii prevăzute de lege],

According to Decision No. 75/2019, in accordance with paragraph 48, the Constitutional Court stated: "As a result of this decision, Parliament is obliged to reconsider the provisions of the law in the context of the Constitutional Court's decision requiring the resumption of the parliamentary debate in the context of the request for review, "We note that the provisions of paragraphs 5 and 12 of Article 190 of the Emergency Ordinance No. 195/2002 are not even the subject of unconstitutionality of the President of Romania and, of course, of the constitutional control, and thus the abolition of these provisions has been made in excess of the bounds of the Constitutional Court's decision, and in the present case, as a result of Parliament's overstepping of the review, the provisions of Article 147, paragraph (2) of the Constitution.

In conclusion, in the present case, with regard to the law that was returned to promulgation, the Constitutional Court resolved the objection of unconstitutionality by a decision finding the unconstitutionality of some of the provisions of the law in relation to the criticisms formulated, which requires the resumption of the legislative procedure under discussion, under conditions and limits defined by a decision of the Constitutional Court, according to Art. 147, para. 2 of the Constitution. Thus, we believe that the law subject to constitutional control with this request was adopted in violation of the statutes established by a Constitutional Court ruling. 684/2018. Therefore, we stress that it is essential that the Constitutional Court proceeds to the final settlement of this situation and declare the unconstitutionality of this law as a whole, without the possibility for the Parliament to reconsider it.

In view of the above arguments, please accept the notice of unconstitutionality and find that the provisions of the Amendment Act of Art. 109 of the Government Emergency Ordinance No. 195/2002 on public roads are unconstitutional in general, "writes Klaus Johanis.


Source link