FLAGRANTA NELEGALITATE, ÎN RAPORT CU LEGEA FUNDAMENTALÃ, A REFUZULUI ÎNALTEI CURŢI DE CASAŢIE ŞI JUSTIŢIE DE A APLICA O DISPOZIŢIE ÎNSCRISÃ ÎNTR-O LEGE ÎN VIGOARE, SUB CUVÂNT CÃ ACEASTA „ÎNFRÂNGE DREPTUL LA UN PROCES ECHITABIL” – DECI ESTE NECONSTITUŢIONALÃ –, DEŞI CURTEA CONSTITUŢIONALÃ CONSTATASE CONSTITUŢIONALITATEA ACELEI PREVEDERI LEGALE

In the above study, the author criticizes severely a judgment of the Romanian High Court of Cassation and Justice (the Administrative and Tax Litigations Section), passed on 26 October 2009, explicitly and unequivocally stating that the mentioned court was entitled not to enforce a provision contained in a law in force (namely, art. III of Law no. 262/2009), explaining that the given provision was unconstitutional since it “infringes the right to a fair trial”, although the Constitutional Court of Romania, quite the opposite, had stated the contrary, finding the constitutionality of that legal provision. The author’s criticism focuses on the idea that, according to the Constitution of Romania, only the Constitutional Court is legally competent to give a ruling on the constitutionality/non-constitutionality of a law or a Government ordinance in force (or of any provision included therein), and that the courts (including the High Court of Cassation and Justice) have no such legal jurisdiction in the matter.