“CONSTITUTIONAL INCRIMINATION” – HOW THE ROMANIAN CONSTITUTIONAL COURT “CRIMINALIZES”

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 behaviours. 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such rulings were made by means of simple decisions which reinstated criminal provisions by finding that the law which repealed them was unconstitutional.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 analyse 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 can only be achieved by means of criminal law and not, for example, by means of administrative sanctions or civil liability.