What happens to the fines following the Constitutional Court decision of 06.05.2020

On 06.05.2020, the Constitutional Court declared unconstitutional Emergency Ordinance No 34/2020 in its entirety, which increased the number of fines for violating the provisions of military ordinances. At the same time, in the same press release, the Constitutional Court also ruled unconstitutional Article 28 of GEO 1/1999 on the regime of curfew and the regime of the state of emergency.

What does declaring these provisions unconstitutional imply?

The decision takes effect both for sanctions whose legal situation has not been resolved, i.e., those still in the legal timeframe for appeal, and for situations where fines have already been paid. A period of 15 days starts to run from the moment the fine is notified to you.

Thus, pursuant to Article 41 of Presidential Decree No 195 of 16 March 2020 on the establishment of a state of emergency on the territory of Romania, during the state of emergency, the time limits for the lapse of time are suspended. It is important to note that the sanctions applied under these provisions are not automatically canceled.

Who can apply to the courts to have fines annulled?

Anyone has the right to lodge an administrative offense complaint while it is within the time limit for appeal. Even those who have paid the fine within the 15-day period, during which half of the minimum fine can be paid, are entitled to appeal (the period starts to run after the lifting of the state of emergency) and recover the full amount paid. Enforcement of the penalty, i.e., payment of the fine, does not remove the right to contest it in court.

Why was the unconstitutionality of these provisions challenged?

By declaring unconstitutional the OG 34/2020, amendments were made to the Government Emergency Ordinance no. 1/1999 on the regime of curfew and the regime of the state of emergency. The amendments were aimed at increasing the amount of fines applicable in the event of violations of the provisions of Article 9, as well as additions concerning the confiscation of property following the application of the additional contraventions provided for in the Ordinance.

The reason for declaring Article 28 unconstitutional is based on the lack of predictability, clarity, and transparency of the rule. The Court ruled that the phrase used in Article 28 of GC 1/1999, “failure to comply with the provisions of Article 9 constitutes a contravention” is far too general and does not identify or distinguish the acts that may give rise to liability for a contravention.

The Court stresses the importance of expressly mentioning the criteria and the facts which are the subject of the infringement. This incomplete way of establishing the rules governing the offense leaves room for abuse on the part of the investigating officer, since he is given freedom of assessment which may result in subjectivity and uneven application of the law.
Moreover, the Court also notes that it is impossible to apply additional penalties depending on the seriousness of the offense since the lack of criteria makes it impossible to determine the seriousness of the offense, thus making it impossible to apply the rule.