The Constitutional Court of Romania rejected on Thursday as unfounded the complaint of President Nicușor Dan regarding the Law on certain measures to combat antisemitism and xenophobia, as well as the prohibition of organizations, symbols and acts of a fascist, legionary, racist or xenophobic nature.

The decision to reject the complaint was taken unanimously.

This is the first notification sent by Nicusor Dan to the CCR since taking office as President of Romania.

In essence, the Constitutional Court says that the law criticized by Nicusor Dan is clear, precise and predictable, and in a democratic European society 'it cannot be accepted that the values and principles of some ideologies, which have founded political and institutional mechanisms for the physical extermination of entire population groups, eliminating human dignity itself, be protected by invoking the right to freedom of expression'.

In a press release sent on Thursday, the Constitutional Court says that it has found that, in relation to the criticisms formulated by President Nicușor Dan, the provisions of art.I point 2 [with reference to art.1 of GEO 31/2002], of art.I point 3 [with reference to art.2 letter b) ind.1 of GEO no.31/2002], of art.I point 5 [with reference to art. 3 paragraph (1) of GEO 31/2002], of art.I point 6 [with reference to art. 4 paragraph (2 ind.1) of GEO 31/2002], of art.I point 7 [with reference to art. 4 paragraph (2 ind.2) of GEO 31/2002], of art.I point 8 [with reference to art. 4 para.(3) of GEO 31/2002], of art.I point 9 [with reference to art.5 of GEO 31/2002], of art.I point 14 [with reference to art.12 of GEO 31/2002], of art.I point 15 [with reference to art.13 of GEO 31/2002] and of art.II point 1 [with reference to art.2 letter d) of Law no.157/2018] of the Law for amending and supplementing Emergency Ordinance no.31/2002 on the prohibition of organizations, symbols and acts of a fascist, legionary, racist or xenophobic nature and of promoting the cult of persons guilty of committing crimes of genocide against humanity and war crimes, as well as for amending the Law no. 157/2018 on some measures to prevent and combat antisemitism.

In essence, in relation to the criticisms formulated by Nicușor Dan, the Court found that 'the law subject to constitutional review is clear, precise and predictable in relation to the content of the regulation, which it related to the legitimate object and purpose of the law, which is to protect, by criminal means, the most important social values of a democratic society, based on the need to ensure the dignity of the human being and full respect for fundamental rights and freedoms'.

'In order to pronounce this solution, the Court held that Nazi, fascist and legionary ideology are historical and political concepts that cannot be relativized by legal definitions of positive law, as they reflect historical social realities that have substantiated real criminal political regimes that have physically eliminated groups of people, practicing systemic violence, political assassinations and anti-Semitism. By their purpose, these totalitarian political regimes have violated the principles of the rule of law, human rights and democracy. Both the normative consecration of specific crimes and the purpose of the criticized law are justified and legitimate because they aim to protect, through the specific means of criminal law and with proportional guarantees resulting from the right to a fair trial that underpins the conduct of any criminal trial, the essential values and principles of democracy against acts that pose a major danger to the foundations of democratic political systems,' says the CCR.

The CCR specifies that this decision takes note of and falls within the framework of European democratic principles and values, being in line with the legal arguments used by the European Court of Human Rights in a rich case law.

The Court recalls that, on July 10, also unanimously, it rejected as unfounded another objection of unconstitutionality for similar criticisms, formulated by parliamentarians of S.O.S. Romania, AUR and POT.

'Regarding this objection, the Court motivated its rejection in a decision currently being drafted and published, on the basis of a proportionality test between the proposed legislative measures and the legitimate objective pursued by the legislator, finding that the said measures do not affect freedom of expression, conscience or access to education and culture. In a democratic European society, it cannot be accepted that the values and principles of ideologies that have underpinned political and institutional mechanisms for the physical extermination of entire population groups, eliminating human dignity itself, be protected by invoking the right to freedom of expression, in accordance with the constitutional limits provided for in art. 30 para. (7)', explains the CCR.

In the notification sent to the Court, Nicusor Dan says that the Romanian state must act firmly to prevent and combat incitement to hatred, xenophobia, and discrimination of any kind, but if it does not do so in a balanced manner, with strict compliance with constitutional provisions, the effect will be the opposite.

'Romanian society is strongly polarized, trust in state authorities is low, and any action by the state that relates in an unbalanced way to this polarization increases social tension and distrust in authorities,' he specified.

The president also points out the lack of clarity of the notion of legionnaire and fascist.

'The absence of an express legal definition of the notion of legionnaire leaves room for arbitrariness in the activity of the judicial bodies (prosecutors' offices and courts) called upon to prosecute and try the two offenses provided for in art. I, points 5 and 6 of the law, which may generate non-unitary practice and legal instability at the level of society. The danger is all the more serious as the mentioned offenses are sanctioned with relatively severe penalties (imprisonment from 3 to 10 years, respectively from one to 5 years, and the prohibition of certain rights), which makes the lack of clarity of the law determine important risks to the freedom of the individual and the other procedural guarantees associated with the right to a fair trial. Similarly, the term fascist does not benefit from a legal definition, even if it is constantly used in the content of the GEO 31/2002, which raises 'the same problem of non-compliance of legal texts with the standards imposed by art. 1 para. (5) of the Constitution,' states Nicusor Dan.

The President also says that, by comparison, the legislation of other European Union member states more precisely identifies the scope of prohibited organizations, acts, materials and symbols.

Nicusor Dan also refers to the lack of clarity of the notion of fascist, legionary, racist or xenophobic materials, from the perspective of content.

'It is easy to see that the cited definition is circular, because it only clarifies the meaning of the notion of materials, but their qualification as fascist, legionary, racist or xenophobic is achieved by referring to fascist, legionary, racist or xenophobic ideas, conceptions or doctrines, which does not clarify at all the significance of the attributes listed by the legislator. In other words, the very central element of the materials incriminated by art. I, point 6 of the Law is missing, which leaves room for arbitrariness in the interpretation and application of this notion by the competent judicial bodies (prosecution offices and courts)', he further states.

The head of state also brings constitutional criticisms from the perspective of the right to information (art. 31 of the Constitution), access to culture (art. 33 of the Constitution) and freedom of expression (art. 30 of the Constitution).AGERPRES (RO - writing by: Eusebi Manolache, editing by: Mihai Simionescu; EN - writing by: Catalin Cristian Trandafir)