We have all learned of the Decision of the Constitutional Court on 6 May 2020, issued based on the case filed by the Ombudsman as concerns the unconstitutionality of the Government Emergency Ordinance no. 1/1999 (art. 9, art. 14 point 1 letter c1 ) – f), art. 28) and of the Government Ordinance no. 34/2020.
In order to better understand the legal effects of this decision as concerns the fate of the administrative fines, this is a brief presentation of the existing situation during the state of emergency: what is a contravention; what was the amount of the fine; the procedure to challenge the fines and the deadlines for filing the administrative complaints.
1. According to the legislation specific to the state of emergency, contravention is any breach of the provisions of the GEO no. 1/1999, of the military ordinances or of the orders enacted during the state of emergency declared according to the Decree no. 195/2020 for imposing the state of emergency. As an example, we can mention: failure to comply with the quarantine or isolation at the place of residence, travel for other reasons than those stipulated in the Military Ordinance no. 3 on 24.03.2020 concerning measure to prevent the spread of COVID-19, failure to have and present the documents stipulated in this ordinance, upon the request of the inspectors, etc.
2. The Emergency Ordinance no. 34/2020 amended the G.E.O. no. 1/1999 on the regime of the state of siege and the regime of the state of emergency, and the amount of the administrative fines for individuals increased from 100-5,000 lei to 2,000-20,000 lei.
Another amendment brought to the GEO no. 34/2020 referred to the release from administrative liability by paying the reduced fine. Thus, starting on 3 April 2020, the offenders had to pay half the amount of the fine applied by the inspector and not half of the special minimum amount of the fine within 15 days after the handing or communication of the fine ticket.
According to art. III in the GEO no. 34/2020 for the amendment and completion of the GEO no. 1/1999, in force on 31 March 2020: “By derogation from the provisions of art. 4 point (2) in the Government Ordinance no. 2/2001 on the legal regime of contraventions, approved with amendments and completions by the Law no. 180/2002, as subsequently amended and supplemented, the provisions of art. I point 1 come into force 3 days after the publication of this ordinance in the Official Journal of Romania.” These provisions translated into practice in the following three situations:
a) for the contraventions committed before 30 March 2020 included, the offender could pay half of the special minimum amount of the fine, i.e. 50 lei;
b) for the contraventions committed between 31 March and 2 April 2020, the offender could pay half of the fine applied by the inspector between the limits stipulated in the GEO OUG 1/1999, i.e. 100-5,000 lei;
c) for the contraventions committed after 3 April 2020, the offender could pay half the amount of the fines applied between the new limits, i.e. 2,000 – 20,000 lei.
3. As concerns the procedure to challenge the contravention ticket, the complaint of the potential offender shall be filed at the competent court at the place where the contravention was committed, and according to art. 19 in the GEO 80/2013 concerning the stamp duties the complaint, as well as the appeal against the decision is charged with 20 lei.
The 15-day deadline for the offender to pay the reduced fine is calculated either since the handing or communication of the ticket or since the date of receipt of the ticket by post or display at the place of residence.
With reference to the above-mentioned 15-day deadline, according to art. 41 in the Annex no. 1 to the Decree no. 195/2020 imposing the state of emergency, “the prescriptions and time limits of any kind do not start and, if started, are suspended during the state of emergency established according to this decree, the provisions of art. 2.532 point 9 thesis II in the Law no. 287/2009 concerning the Civil Code or other contrary legal provisions shall not apply”. Thus, within 15 days after the termination of the state of emergency, the offenders should have opted either to pay the fine or to challenge it, given that the administrative sanctions could not be enforced during the state of emergency, and the tickets could not become enforcement titles as the time limits were not running during this period.
On 6 May 2020, the Constitutional Court, seized by the Ombudsman as concerns the unconstitutionality exception of the provisions of art. 28 in the GEO no. 1/1999, acknowledged the exception of unconstitutionality and found that the provisions of art. 28 in the GEO no. 1/1999 are unconstitutional as they do not meet the quality, precision and predictability requirements.
Although the Decision of the Constitutional Court comes into effect on the date of its publication in the Official Journal, the deeds considered contraventions according to the GEO no. 1/1999, to the military ordinance or to the orders issued during the state of emergency cannot be sanctioned as they are no longer considered contraventions. Not being considered contraventions means that the tickets issued by the inspectors are no longer an enforceable title, therefore the fine itself cannot be a fiscal debt.
The Decision of the Constitutional Court leads practically to the following two situations:
a) the offenders who have not paid the administrative fine – can file an administrative complaint within 15 days after the end of the state of emergency (until 2 June 2020);
b) the offenders who have paid the administrative fine – as this cannot be reimbursed, the repealing of the administrative act having no effect on the sanctions already enforced, may file an administrative complaint requesting the cancelation of the ticket, based on the unconstitutionality of the above-mentioned provisions, afterwards being able to claim the reimbursement of the paid fine.
Therefore, the state of emergency imposed at national level was a novelty that brought about a range of legal issues for which there is no unitary approach and no unanimously agreed-upon solution. One thing is certain: no fine applied during the state of emergency can be enforced any longer!