Decision no. 458/2012 concerns an objection to the unconstitutionality of Article 13 (1) of the Romanian Citizenship Law no. 21/1991 (the “Romanian Citizenship Law”), an article which requires individuals applying for acquisition/re-acquisition of citizenship to submit their request in person.
The applicant argued that the article infringes (i) Article 16 (1) of the Romanian Constitution guaranteeing the equal treatment of individuals before the law, (ii) Article 21 (1) - (2) of the Romanian Constitution regarding the free access to justice, (iii) Article 24 of the Romanian Constitution – the right of defence, as well as (iV) the right to a fair trial guaranteed under Article 6 ECHR.
The Romanian Constitutional Court rejected the objection. It noted that, as this procedure is purely administrative, it does not fall under the scope of Article 16 (1) and Article 21 (1) - (2) of the Romanian Constitution, nor is Article 6 of ECHR applicable. The Romanian Constitutional Court highlights that the presence of the applicant (in the process of acquiring citizenship) is the first proof of the interest that one shows in obtaining citizenship, as an expression of the connection and belonging of a natural person to the Romanian State.
- Article 13 (1) of the Romanian Citizenship Law no. 21/1991;
- Article 16 (1) of the Romanian Constitution guaranteeing the equal treatment of individuals before the law;
- Article 21 (1) - (2) of the Romanian Constitution regarding the free access to justice;
- Article 24 of the Romanian Constitution – the right of defence;
- Article 6 of the European Convention on Human Rights, which provides for the right to a fair trial.
The applicant raised the objection of unconstitutionality in a court case directed against the National Authority for Citizenship (the “NAC”). The NAC had rejected his application for the acquisition of Romanian citizenship on grounds of Article 13 (1) of the Romanian Citizenship Law because it had been submitted through a lawyer, whereas the article stated that the application for acquisition/re-acquisition of Romanian citizenship “shall be submitted in person or, in duly justified cases, by a representative with a special and authentic power of attorney”.
The applicant argued that Article 13 (1) of the Romanian Citizenship Law prevented individuals from submitting their application for the acquisition/re-acquisition of citizenship. In the applicant’s opinion, the impossibility of being represented by a lawyer in this procedure translated into an infringement of the free access to justice [Article 21 (1), (3) of the Romanian Constitution] and the right to defence [Article 24 (2) of the Romanian Constitution] – which the applicant viewed as absolute rights.
The applicant also argued that the article violates Article 16 (1) of the Romanian Constitution guaranteeing equality before the law. Essentially, the applicant claimed that the criticised article discriminates: (i) on the one hand, between individuals that can submit their application in person or via a representative other than a lawyer and those who contract the services of a lawyer, and (ii) on the other hand, between current Romanian citizens and former Romanian citizens.
In the procedures before the Constitutional Court there is no opposing party.
The Romanian Constitutional Court (the "RCC") found Article 13 (1) of the Romanian Citizenship Law to be constitutional and dismissed the objection as ungrounded.
Firstly, the RCC deemed inapplicable in the context of an administrative procedure the constitutional provisions guaranteeing the free access to justice and the right to defence.
While noting that a person interested in the acquisition/re-acquisition of the Romanian citizenship is free to contract a lawyer, the RCC stressed out that this does not exempt one from submitting the application in accordance with the procedure in place. Additionally, the RCC pointed out that the personal presence of the applicant is a first indicative of one’s effective interest acquiring the citizenship.
Secondly, the RCC found no violation of Article 6 ECHR. The RCC noted the right to fair trial is, in fact, effectively guaranteed under Article 19 (4) of the Romanian Citizenship Law laying out the appeal procedure against a NAC order rejecting the application, as well as by the contentious procedure provided under the Law no. 554/2004.
Thirdly, the RCC found no violation of the Article 16 (1) of the Romanian Constitution (equality before the law) as the provisions do not set up differences on arbitrary grounds but universally apply to anyone that files for the acquisition/re-acquisition of the Romanian citizenship. Moreover, the RCC noted that there is no discrimination between Romanian citizens and former Romanian citizens as, by its nature, the procedure concerned is not applicable to Romanian citizens. Additionally, the RCC rehashed the fact that Article 16 (1) of the Romanian Constitution only guarantees the equality before the law of Romanian citizens.
Article 13 (1) of the Romanian Citizenship Law was found to be in accordance with the Romanian Constitution.
- Judgment of 23 June 1981 in Le Compte, van Leuven and de Meyere v. Belgium, paragraph 51; and
- Judgment of 10 February 1983 in Albert and Le Compte v. Belgium, paragraph 29.