Abstract
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In March 2020, the President of Romania established a state of emergency to prevent the spread of COVID-19 and to manage the consequences of its spreading, for a period of 30 days, which would be extended by another 30 days. Two months later, by means of a Decision, the Government of Romania declared a state of alert throughout the country, for a period of 30 days, establishing, at the same time, the measures to be applied to prevent and combat the effects of the pandemic of COVID-19. This state of alert and the applicable measures have, in turn, been extended by successive Government decisions, by 30 days each, until now.
This study aims to investigate whether in the current pandemic context we can still talk about a real separation of powers in a state governed by the rule of law, especially with regard to the obligation of a fair cooperation between the executive and the judiciary.
The research methodology consists of a content analysis of the Romanian Government’s regulatory strategy regarding the measures applicable to the population to prevent and combat the effects of the COVID-19 pandemic, respectively of the Government decisions issued as normative administrative acts that limit the exercise of certain rights and freedoms, as well as the decisions of the administrative courts on them which annulled some of the Government decisions on the extension of the state of alert and the measures applicable thereof. The analysis of that case-law shows that, taking advantage of the fact that, from a temporal point of view, it is virtually impossible that, within the 30 days of the application of such an act, the decision of the court should be final, in other words to be enforceable, the Government continued to extend the alert status by decisions issued once every 30 days, without taking into account the reasoning of the court decisions. Or, the principle of legality of administrative acts implies both that the administrative authorities do not infringe the law and that all their decisions are based on the law, requiring, in equal measure, that the observance of these requirements by the authorities be effectively ensured. At the same time, compliance with and enforcement of judgments is essential to the rule of law. Thus, we found that, in Romania, decisions of the courts are ignored by the Government, which uses the fact that they are not final as an excuse not to take into considerations the reasons of the courts for their annulment. Once the time comes for the extension of the state of alert, the Government simply issues a new decision, having an almost identical content as the previous one.
The originality of this study lies in the fact that it answers the question of whether the Government’s apparent “unlawful” act is justified by the greater good, which is to protect the population in the current pandemic context, a question that ponders the public and the practitioners alike. The novelty lies in the analysis of the recent case-law of Romanian courts on the state alert, where decisions on the annulment of several Government decisions where ruled in the last months of the year 2021. The only possible conclusion is that, knowing that the judge is the one who “says” the law, there must be a real and effective mutual control between the state powers in order to avoid abuses by one or another of the state powers, in terms of exercising their specific powers in accordance with the law, which supposes the principle of separation and balance of power in the state, an effective mechanism specific to the rule of law and democracy.
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