"The role of the Attorney in the Romanian Constitutional Courts"

Author: Attorney-at-Law Mihai Cuc.

The attorney can assist or represent the parties in front of the Constitutional Court in the case of an exception. The "unconstitutional" exception being one of public order, it refers to both the parties involved and can be raised at any time by the parties during the trial.

Raising the unconstitutionality issues of legal norms in before the Constitutional Court is a technical issue which mostly eludes the persons implicated in the trial. Those who realize these differences between the law and the Constitution are law specialists. This is because the exceptions are about legal subtleties, sometimes unnoticed by the parties and even misunderstood because of the lack of legal knowledge. The attorney alone can perceive and sustain these differences which can appear between the regular law and the fundamental law; the party taking part in the trial usually has no way of grasping these issues. More, the presence of the parties at the Constitutional Court for the exception trial is not compulsory. The Court is not about the confrontation of trial parties. Only the Justice Court is the one which will provides the final solution of interest to the parties involved, and not the Constitutional Court.

Most of the times in the process of finding an appropriate legal solution for the exception, there are cases where international documents and treaties are invoked and even decisions of Constitutional Courts from other countries, about which the parties in the trial do not have no knowledge of. Only a legal specialist has the opportunity to gain this kind of information, thus successfully  representing the parties.          

The Constitutional Court has often motivated its decisions taking into account international regulations of which Romania has agreed to and to which are part of internal law (art. 11). The international regulations play a major role in the internal legislation of the states which have agreed to them.

The necessity to have an attorney can be mostly felt in the upper phases of the trial where legislation issues are the ones which dominate the trial in comparison to the role of the parties.

In the future, it is preferred that the existence of an attorney should be compulsory in front of the Court as only a professional can sustain a coherent dialogue, based on theoretical arguments in regards to the exception raised before the Constitutional Judge.