Legal security – components

As mentioned before, in the Romanian legal system, the principal of legal security does
not have formal presence, being a creation of the jurisprudence of the Constitutional Court,
which structured this principal based on three big components : the accessibility and
predictability of the law, the assurance for unitary interpretation of the law and the non-
retroactivity of the law. [ CITATION Pre09 \l 1033 ]

The accessibility and predictability of the law is a consecrated provision trough the Law
no. 24/2000[ CITATION Off10 \l 1033 ], (which regulates the formal and technical way for law
elaboration). This law has been brought to the level of a constitutional law through the
jurisprudence of the Romanian Constitutional Court (RCC). Through the Decision no. 710/2009
the RCC declared unconstitutional a norm because it’s “poor drafting”, similar to this in the
Decision no. 453/2008, the court showed that the establishment of sanctions that are
“insufficiently elaborated, are impossible to apply” go against the constitutional demands.
[ CITATION Pre09 \l 1033 ]The legal norms must be clear and intelligible, in a way that the
recipients fully understand the legal consequences of their acts. If this requirement is not met, the
“nemo censetur ignorare legem” (ignorance of the law is no excuse) principal can no longer be
invoked, which would cause real damage to the legal and social security. In essence this
component of the principal of legal security presumes that the law must be predictable and the
solutions to legal issues must remain stable in time. [ CITATION Tră111 \l 1033 ]

The second component regarding the assurance for unitary interpretation of the law, in
regards to this issue there have been put in place a series of measures in civil law and criminal
law. Thereby, in case of appeal in the interest of the law or referrals for prior rulings to the High
Court of Caseation and Justice (HCCJ), the RCC decided that most cases would be inadmissible,
because some interpretations drifted away from the original norms as a result of the HCCJ
assuming the role of the legislator. These incidents undermined the principal of legal security
and implicitly the rule of law by blurring the lines of the separation of power.
The last component is the most important one yet, the non-retroactivity of the law being
the most discussed one in the jurisprudence of the RCC. Through Decision no. 98/2002 the RCC
showed that “a legal provision sanctioning with absolute nullity legal acts concluded prior to the
entry into force of a law but in compliance with the legal regulations applicable at that date have
retroactive effects and are contrary to the principal of non-retroactivity of the law, implicitly to
the principal of legal security”. It is important to mention that this decision does not apply to
situations where a new law modifies or repeal effects in a situation created in the past but has
legal effects in the future. In the situation of constitutional cases the RCC stated in Decision no.
838/2009[ CITATION RCC09 \l 1033 ] that “according to art. 147, align. 4 of the Romanian
Constitution (“The Decisions of the Constitutional Court are to be published in the Official
Monitor of Romania. From the date they are published, the decisions are general and mandatory
and have power only on future cases”), the “ex nunc” (“from now on”) effect of decisions made
by the Court represents the applicability of the principal, a fundamental guarantee of
constitutional rights, for assuring legal security and the trust of the citizens in the justice system,
a premise for upholding the separation of power and consolidation for the rule of law. “
[ CITATION RCC01 \l 1033 ]

The recent developments in jurisprudence of the Constitutional Court confirm the

tendency to consecrate the principle of legal security by the way of interpretation. It is worth
mentioning in this sense the Decision no. 404/2008, where the Court appreciated that the
principle of legal relations stability is derived from the article 1, line 3 of the Constitution (
Romania is a state of law, democratic and social, in which the dignity of man, the rights and
freedoms of citizens, the free development of human personality, justice and political pluralism
represent supreme values, in the spirit of the democratic traditions of the Romanian people and
the ideals of the Revolution of December 1989, which are guaranteed.).

Bibliography
A.A., Trăilescu. 2011. Predictibilitatea normelor şi stabilitatea raporturilor – componente ale
legalităţii actelor administrative. Curentul Juridic, nr. 1/2011.
Monitor, Official. 2010. Republicată în Monitorul Oficial nr. 260 din 21 aprilie 2010, partea I;.
Predescu I., Safta M. 2009. Principiul securităţii juridice, fundament al statului de drept. Repere
jurisprudenţiale. Buletinul Curţii Constituţionale.
RCC Decision. 2001. 330/2001 (Romanian Constitutional Court, January 28).
RCC Decison. 2009. 838/2009 (Romanian Constitutional Court, July 3).