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The Foundation For The Defense Citizens Of Citizens Against State Abuses (FACIAS) has addressed a formal request to Mrs. Renate Weber, the Ombudsman, to the Constitutional Court to refer to the Constitutional Court the unconstitutionality of Emergency Ordinance No. 84/2024 on amending and supplementing certain normative acts in order to increase road safety.

The issue concerns the ordinance that stipulates that drivers who decline to undergo police drug testing shall automatically be deprived of their licence, even if they wish to submit themselves to analysis at the INML. It is already well documented that the machines currently in use by the Romanian police have a high rate of false positive results. Indeed, between 2021 and 2023, 15-20% of the total number of biological samples taken from drivers who tested positive in tests carried out with Drugtest machines were invalidated after the biological samples were taken. This information has been provided by the territorial police road structures.

FACIAS's request is supported by more than 180,000 signatures of citizens demanding the annulment of this ordinance. FACIAS calls on the Romanian state to respect the constitutional framework for the exercise of the prerogatives of public power by Parliament and the Government.

Grounds of unconstitutionality raised by FACIAS

FACIAS believes that the government's justification for this emergency decree is childish, untrue and violates several articles of the Constitution, including the right to defence and private property, and restricts the exercise of rights and freedoms. Specifically, the reasons why the GEO is unconstitutional are as follows:

  1. Extrinsic unconstitutionality: The ordinance was adopted in violation of Article 115(4) of the Constitution, which does not justify the urgency that allows the government to legislate in place of Parliament. The imminent and concrete danger has not been demonstrated in the recitals of the ordinance.
  • The government justifies the urgency with the "growing phenomenon of psychoactive substances and alcohol consumption among drivers of bicycles, electric scooters and animal-drawn vehicles" and the "legislative vacuum" regarding their punishment. However, these problems are not new emergencies, but have been developing for several years. Similarly, the threat to road safety and the impairment of the right to life and physical integrity are not new, but known risks that could have been addressed by a bill debated in Parliament.
  • A clear example of the lack of urgency is the provision on the possibility of removing parked cars to carry out works in the public interest. This provision can in no way be subject to an urgency justifying an emergency ordinance.
  1. Violation of constitutional rightsIt can be seen that there is a contravention of multiple articles of the Constitution. These include the right to defence, the right to private property, the right to petition and the restriction of the exercise of certain rights or freedoms. It can be demonstrated that GEO 84/2024 contravenes several articles of the Constitution. These include articles pertaining to the right to defence, the right to private property, the right to petition, and the restriction of the exercise of certain rights or freedoms.
  • The stipulation that citizens be immediately suspended from driving on public roads for requesting evidence with a higher degree of certainty (biological samples analysed by forensic medicine) than that proposed by the police (drug tests) effectively and unequivocally infringes upon the right to defence guaranteed by Article 24 of the Constitution.
  • The removal of legally parked cars without effective and enforceable notification contravenes the right to private property enshrined in Article 44 of the Constitution. This constitutes an abuse of state power over citizens.

FACIAS requests that the Ombudsman utilise its authority to refer the unconstitutionality of Government Emergency Ordinance No. 84/2024 to the Constitutional Court, with a view to prioritising the protection of citizens' rights and freedoms.

Furthermore, FACIAS will continue to monitor the situation and take all necessary measures to protect the interests of citizens.

Adresa-AVP-OUG-84.2024

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