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“Constitutional incrimination” – How
the Romanian Constitutional Court “criminalizes”
Assoc. Prof. Andra-Roxana
Trandafir, PhD., Vice Dean of the Faculty of Law Employment, University of
Bucharest
George-Cristian Ioan, Faculty of Law, University of Bucharest
Právny obzor, 107, 2024,
special issue, pp. 33–51.
Published online: 20.1.2025
https://doi.org/10.31577/pravnyobzor.specialissue.2024.03
Abstract. The paper
analyses the relatively recent case law of the Romanian Constitutional Court on
the question of imposing obligations on the legislature to criminalize certain
behaviors. In a first phase, such rulings were made by means of simple decisions
which reinstated criminal provisions by finding that the law which repealed them
was unconstitutional. However, in the past few years, the Court went further and
took a more proactive approach. So-called manipulative decisions have started to
play a role in criminal law matters. For example, the Court has ruled that the
legislature’s omission to criminalize driving a tractor on a public road by an
unlicensed person breaches the Constitution. The authors analyze the
consequences of such decisions, as well as the need for specific criteria to
determine what regulatory omissions can have “constitutional relevance”. The
paper focuses on finding means to determine when and how proper protection of
constitutional rights and principles cand only be achieved by means of criminal
law and not, for example, by means of administrative sanctions or civil
liability.
Keywords: Romanian
Constitutional Court, manipulative decisions, criminalization, challenges as to
the unconstitutionally of laws
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ISSN 2729-9228
(online)
ISSN 0032-6984
(print)
THEORETICAL REVIEW FOR ISSUES OF STATE AND LAW.
Právny obzor is peer-reviewed journal and is indexed in SCOPUS and HeinOnline database (INDEX TO FOREIGN LEGAL PERIODICALS).
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OPEN ACCESS