THE IMPORTANCE OF DISSENTING AND CONCURRING OPINIONS FOR THE ROMANIAN CONSTITUTIONAL JUSTICE

Abstract

Constitutional justice is administered based on the provisions of Articles 142 to 147 of the Romanian Constitution , revised in 20034, as well as of Law No. 47/1992 on the organisation and functioning of the Constitutional Court. According to Article 145 of the Constitution, Constitutional Court judges are independent in exercising their office and irremovable throughout its duration. According to the provisions of Article 1, Paragraph 3 of Law No. 47/1992, the Constitutional Court is independent of any other public authority and subject only to the Constitution and to this law, and according to Article 61, Paragraph 2 of the same law, Constitutional Court judges cannot be held liable for any personal opinions and votes cast in rendering the decisions. Constitutional Court judges are bound to keep the secret of the deliberations and of the votes [Article 64, Paragraph 1, Subparagraph B of  Law No. 47/1992], and judges who have given a negative vote may formulate a separate opinion. With regard to the reasoning of the decision, it is also possible to write a concurring opinion. The separate (dissenting) and, as the case may be, concurring opinion shall be published in the Official Gazette of Romania, Part I, together with the decision (Article 59, Paragraph 3) of Law No. 47/1992].

We should note that the legal requirement concerning the secrecy of the vote is excepted in the case of dissenting opinions, which are published in the Official Gazette together with the decision.

The importance of dissenting and concurring opinions. The Constitutional Court’s decisions have the same legal effect, whether rendered unanimously or by majority vote. Although they do not have legal effects, once made public, the reasons held by judges – the authors of dissenting or concurring opinions – are examined by academic circles and often discussed by civil society. They may be taken into account within the work of regulation, and they may constitute the premises for reconsidering constitutional jurisprudence.