The Ombudsman’s notification on the „state of alert”, judged on 13 May by Constitutional Court

The People’s Advocate notified, on May 6, the Constitutional Court on the exception of the unconstitutionality regarding the Government emergency ordinance no. 21/2004 on the National Emergency Management System, approved by Law no. 15/2005, with subsequent amendments and completions.

The People’s Advocate considers that the delegation of legislative powers to administrative authorities, aimed at restricting the exercise of fundamental rights or freedoms, violates the principle of separation of powers and constitutional provisions according to which Parliament is the sole legislative authority of the country.

In essence, the People’s Advocate considers that the Government Emergency Ordinance no. 21/2004, with subsequent amendments and completions, does not comply with the principle of predictability of the law by the defective definition of „alert”, which, having no constitutional consecration, involves a detailed circumstance, at the unconstitutional level, of cases in which it can be declared.

„In reality, the law only stipulates that any measures can be taken by administrative bodies, including restricting the exercise of certain rights, although art. 53 of the Constitution clearly provides that this can only be done by law. In the absence of a term for which the state of alert can be ordered, moreover, the regulation of the possibility of its extension by administrative act, it is reached in the hypothesis that the temporary restriction of the exercise of fundamental rights and freedoms acquires the character of a permanent restriction of law, which is contrary to art. 53 para. (2) of the Constitution”, shows the People’s Advocate in a press release.

According to the constitutional provisions, the Parliament and, by legislative delegation, the Government have the competence to establish, modify and repeal legal norms of general application. Public administration authorities do not have such a competence, their mission being to ensure the enforcement of laws.