CURTEA CONSTITUȚIONALĂ – GARANT AL SUPREMAȚIEI CONSTITUȚIEI, PUTERE LEGIUITOARE SAU EXPERT PARLAMENTAR?
THE CONSTITUTIONAL COURT – A GUARANTOR OF THE CONSTITUTION’S SUPREMACY, A LAWMAKING POWER OR A PARLIAMENTARY EXPERT?

Summary/Abstract: The author, a civil procedure professor and former judge of the first Constitutional Court in Romania during 1992-1998, performs a critical examination of the constitutional court’s case law, which has passed judgments on the constitutionality of several texts in the Civil Procedure Code. The study notes that, in principle, the Constitutional Court has decided that it does not have the mission to control the manner in which the lawmaker establishes the rules of competence and procedure, since this mission falls on the lawmaker itself, according to art. 126, paragraph 2 of the Constitution. Nevertheless, every now and then, the Constitutional Court surrendered this principle and declared non-constitutional some procedural provisions that were infringing the Constitution only in its opinion. In order to give these solutions, it established that the lawmaker’s freedom is not absolute, the limits of the regulatory freedom being determined by the obligation to comply with the rules and principles regarding the fundamental rights and freedoms of the other principles established by the fundamental law and the international legal acts to which Romania is a party, in particular free aces to court, right to a fair trial solved within a reasonable time etc. While noting that the idea is correct, the author of the study criticizes the fact that the constitutional court established very easily the non-constitutionality of some provisions in the Civil Procedure Code, without checking thoroughly whether the lawmaker established limits that are unreasonable and disproportionate to the goal intended while exercising access to court.

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