At the hearing of 24 March 2022, the Constitutional Court, in the context of the review of laws subsequent to promulgation, by a majority of votes decided:
1. Upheld the exception of unconstitutionality and found unconstitutional the legislative solution contained in Article 117 (1) a) of the of the Criminal Procedure Code, which excludes from the right to refuse to testify the persons who have established relations similar to those between parents and children, if they live with the suspect or the defendant;
The provisions of Article 117 (1) a) of the Criminal Procedure Code read as follows: “The following persons are entitled to refuse to testify: a) a suspect’s or defendant’s spouse, ancestors and descendants in direct line, as well as their siblings.”
2. Upheld the exception of unconstitutionality and found that the provisions of Article 270 (3) of Law 86/2006 on the Romanian Customs Code;
The provisions of Article 270 (3) of Law 86/2006 read as follows: “The collection, possession, production, transport, takeover, storage, delivery, disposal, sale and sale of goods or merchandise to be placed under a customs procedure, knowing that they originate from smuggling or are intended to commit smuggling, shall be treated as an offence of smuggling.”
In arguing its decision, the Court found that the act committed in accordance with Article 270 (3) of Law 86/2006 is a derived, correlative offence and, with regard to most of the actions/operations constituting the material element of the offence, is a subsequent offence, which borrows from the nature of the act from which the goods/merchandise to be placed under a customs procedure originate – that is to say, from the offence referred to in paragraph (1) of Article 270 of the Customs Code or from the offences referred to in paragraph (2) (a, (b and (c of the same Article. Thus, since paragraph (2) (a of Article 270 of Law No 86/2006 has established a value ceiling, the regulation of a value limit similar to that laid down in that paragraph is necessary for a fair individualisation of the sentence, corresponding to the social danger. Therefore, the Court found that, by disregarding the principle of ultima ratio in criminal matters, the provisions of Article 270 (3) of Law No 86/2006 do not regulate a value threshold below which the act does not constitute a criminal offence, contrary to the constitutional principle of the rule of law, enshrined in Article 1 (3) of the Basic Law.
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The decisions are final and generally binding.
The arguments set out in the grounds for the decisions of the Constitutional Court will be presented in the decisions, which will be published in the Official Gazette of Romania, Part I.
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