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AMICUS CURIAE Regarding File no. 904AI\/2013 of the Constitutional Court , due on January 22, 2014<\/p>\n
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17.01.14<\/p>\n
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Prepared by the\u00a0Association for the Defence of Human Rights in Romania – Helsinki Committee<\/em><\/p>\n \n (APADOR-CH)<\/em><\/p>\n \n <\/p>\n \n Supported by:<\/p>\n \n ActiveWatch \u2013 the Press Monitoring Agency<\/p>\n \n The National Alliance of Student Organizations in Romania \u2013 ANOSR<\/p>\n \n ACCEPT Association<\/p>\n \n \n \n Spiritual Militia Civic Movement<\/p>\n \n The National Association of Citizen Counseling Offices<\/p>\n \n <\/p>\n \n The Association for Technology and the Internet<\/p>\n \n \u201cSave the Danube and Delta\u201d Association<\/p>\n \n The Legal Resource Center<\/p>\n \n The Resource Center for Public Participation<\/p>\n \n The Euro-Regional Center for Public Initiatives<\/p>\n \n \n \n The Center for Independent Journalism<\/p>\n \n The Romanian Center for European Policies<\/p>\n \n <\/p>\n \n PACT Foundation<\/p>\n \n SOROS Foundation Romania<\/p>\n \n The Public Policies Institute<\/p>\n \n Romani CRISS, executive director Marian Mandache<\/p>\n \n Romanian Harm Reduction Network, executive director Valentin Simionov<\/p>\n \n \n \n \n \n The signatory organizations know that, procedurally speaking, they have no quality to intervene (as a party) in this constitutional case.<\/p>\n \n That is exactly why they are filing the present\u00a0amicus curie\u00a0<\/em>brief, a legal institution that differs from that of the intervention and has been integrated into most common law systems, such as the European Court of Human Rights.<\/p>\n \n An\u00a0amicus curiae\u00a0<\/em>is someone who has expertise in a certain filed (in this case, human rights and freedom of association) and can assist the court (hence the name, meaning literally friend of the court) by providing relevant information\/observations for an important cause, with a consultative role.<\/p>\n \n Recently, the Constitutional Court explicitly recognized the quality of amicus curie of a NGO in its judgment no. 447 of October 29, 2013 on the constitutional challenge of Government Emergency Ordinance no. 91\/2013 on insolvency procedures and prevention methods.<\/p>\n \n In that respect, the aforementioned judgment states, on page 5: \u201cAn opinion has been added to the file, from the Association for the Defence of Human Rights in Romania \u2013 the Helsinki Committee, acting as amicus curiae, to support the constitutional challenge of art.\u00a081, par. 3, and of art. 348 of Government Emergency Ordinance no. 91\/2013.\u00a0<\/em>\u201d<\/p>\n \n *<\/p>\n \n In the present case, the President of Romania, prior to signing the Law for the amendment of Government Ordinance no. 26\/2000 on associations and foundations, has notified the Constitutional Court on a constitutional challenge.<\/p>\n \n The signatory organizations\u00a0support the move\u00a0<\/strong>of the President, pointing out that the aforesaid amendments\u00a0seriously impair the exercise of the right to free association\u00a0<\/strong>, guaranteed by Article 40 of the Constitution and by Article 11 of the European Convention of Human Rights. The amendments provide, among others, the\u00a0legal dissolution, for unpredictable reasons\u00a0<\/strong>,\u00a0applied retroactively\u00a0<\/strong>, of several associations and foundations which were created in perfect legality and have functioned for a long time, some of them well known to the public.<\/p>\n \n In that respect, the signatory organizations point out that article II of the Law for the amendment of Government Ordinance no. 26\/2000 on associations and foundations violates\u00a0the principle of irretroactivity of law\u00a0<\/strong>(provided by art. 15, par. 2 of the Constitution),\u00a0the principle of separation of powers\u00a0<\/strong>(art. 1, par. 4 of the Constitution) and\u00a0the principle of\u00a0res judicata\u00a0<\/em><\/strong>for final and irrevocable judgments (art. 126, par. 1 of the Constitution), as well as the right to\u00a0freedom of association\u00a0<\/strong>guaranteed by article 40, par. 1 of the Constitution.<\/p>\n \n Art. II of the legislative proposal provides:<\/p>\n \n \u201c ART.II (1) Associations, foundations or federations which have been legally created before the current law came into effectare under obligation to change their name\u00a0<\/strong>, as long as they fall under the provisions of Article 7, paragraph (3), (3\/1) and paragraph (3\/3)-(3\/5) of Government Ordinance no. 26\/2000 on associations and foundations, approved with amendments by Law no.246\/2005, with subsequent modifications, including those brought by the current law.<\/p>\n \n (2)\u00a0Failing to fulfill the obligation under paragraph\u00a0<\/strong>(1) results in the dissolution and radiation from the Registry of Associations and Foundations, after a 2 year term within which associations, foundations and federations are allowed to use the original name, alongside the new one.<\/em><\/p>\n \n (3) Dissolution must b notified by a decision of the court of justice from the area where the legal persons under par. (1) have their legal headquarters, at the request of any interested part.\u201d<\/p>\n \n That means that the names of associations and foundations created in accordance with the law in effect at the respective time and validated by the court, through irrevocable judgments, must be modified as a retroactive effect of the new law which, without any constitutional grounds, ceases to recognize and even dissolves the legal relations established by virtue of the old law.<\/p>\n \n It must be underlined that article II of the new law reopens irrevocable judgments that established with the authority of\u00a0res judicata\u00a0<\/em>that the creation of the NGOs observed all legal conditions in effect at that time, including provisions related to the name of organizations.<\/p>\n \n The signatory organizations point out that one cannot change the conditions for the creation of a legal person by a law that applies retroactively unless one ignores the principle of irretroactivity of law. Also, passing laws that annul final court judgments is a violation of the separation of powers and of the\u00a0res judicata\u00a0<\/em>principle.<\/p>\n \n On the other hand, in the case of associations and foundations, the name is a very important element of identification, closely related to their reputation and the way they are known and perceived by society. It is a connection similar to that between a person and his\/her name.<\/p>\n \n If a law was passed to oblige persons to change their names under penalty of being eliminated from society, despite the fact that their names were legally chosen and bestowed at the time of birth, it would surely be considered absurd.<\/p>\n \n And if such a regulation seems absurd and extremely dangerous for physical persons, it is absurd and extremely dangerous in the case of legal persons such as associations or foundations, for the same reasons.<\/p>\n \n The arbitrary modification of essential attributes of a person \u2013 such as the name, equally important to legal and to physical persons \u2013 results in the loss of identity and consequently exclusion from the public space and society. Such a practice has nothing to do with a democratic society.<\/p>\n \n Under such circumstances, one may ask how associations and foundations can run their activities when they have no certainty about their own existence, when they can be dissolved for reasons related to their creation (the name), although the courts of law irrevocably established they were created in full accordance with the law (including the name).<\/p>\n \n One may also ask how NGOs will be able to function, attract new members, apply for project funding and develop as institutions when they are permanently threatened with dissolution for an alleged infringement of regulations coming from the future to re-judge the past.<\/p>\n \n This state of serious incertitude related to the legal existence of associations and foundations is of nature to prevent the normal exercise of the right to association, granted by Article 40, par. 1 of the Constitution and by Article 11 of the European Convention for Human Rights.<\/p>\n \n