Nicușor Dan sent the Child Rights Law to the CCR. The President claims the violation of the “ne bis in idem” principle

President Nicușor Dan sent, on Thursday, to the Constitutional Court (CCR) a notification of unconstitutionality on the Law for the amendment and completion of Law no. 272/2004 on the protection and promotion of children's rights, evoking a possible double sanction and the lack of family involvement in psychological counseling or placement of the minor.

The law whose regulatory object is interventions on Law no. 272/2004 refers to: amending art. 84 para. (4) and (5), whereby the child's participation in psychological counseling becomes mandatory by law, without being conditioned by parental consent; the introduction of a new legislative solution to art. 84 para. (6), by which non-compliance by the parents or the legal representative with the obligations provided for in paragraph is criminalized as a crime. (3) or para. (4) and non-compliance with par. (4) with the crime of non-compliance with court decisions; full amendment of art. 86, by expanding the criteria for placement in a specialized residential type service and establishing the obligation of social assistance and child protection departments to establish at least one residential type service for children who have committed criminal acts and are not criminally liable.

Through its normative content, the head of state considers that the Law amending and supplementing Law no. 272/2004 on the protection and promotion of children's rights was adopted in violation of the provisions of art. 1 paragraph (5), art. 23 para. (1) and para. (12), art. 26 para. (1), art. 48, art. 49 para. (1), art. 53 and art. 147 para. (4) of the Romanian Constitution, notes Agerpres.

In the notification it is stated that the agent detecting the contravention does not have the competence to assess whether the act constitutes a crime – this belongs to the criminal investigation bodies. In the absence of a clear and predictable rule, the criminal investigation body and the investigating agent can act in parallel against the same person for the same deed, no legal mechanism in the criticized law preventing this overlap.

The president also evokes European law.

The European Court of Human Rights has ruled, in its constant jurisprudence, that the “ne bis in idem” principle operates whenever a person is sanctioned twice for the same act, regardless of the formal classification (criminal or contravention) of the sanctions applied.

This normative duality structurally creates the premise of the violation of the “ne bis in idem” principle, since the competent authorities – the agent detecting the contravention, on the one hand, and the criminal investigation bodies, on the other – could act in parallel or successively based on the two competing norms, no legal provision of the criticized law establishing which norm prevails. The legislator was obliged either to expressly abrogate the contravening rule or to introduce a clear non-competition clause, which he did not do, the notification states.

The head of state shows that art. 84 para. (3) from Law no. 272/2004, left unchanged, establishes the obligation to participate in special psychological counseling programs exclusively for the child's parents. The rule makes no reference to the legal representative other than the parent.

Or, by art. I point 2 of the criticized law, a new paragraph is introduced to art. 84, para. (6), which, in sentence I, criminalizes failure to comply with para. (3) by “parents or the legal representative”, extending the scope of the active subject to a category of persons towards whom the basic norm does not establish any corresponding obligation.

Art. 84 para. (4), in the new wording, adds the head of state, stipulates the child's obligation to participate in special psychological counseling programs organized by the General Directorate of Social Assistance and Child Protection or by other specialized public or private institutions, unless the court orders otherwise, and para. (5) provides that this measure can be ordered by the court. The norm covers, by definition, the child who has committed an act provided for by the criminal law and is not criminally liable – hypothesis regulated by Chapter V of Law no. 272/2004.

However, a minor who is not criminally liable cannot be the active subject of any crime. Minority is a cause of imputability under art. 27 of the Criminal Code, according to which: “The deed provided for by the criminal law committed by a minor who, at the time of its commission, did not meet the legal conditions to be criminally liable is not imputable”.

At the same time, it is specified in the notification, according to art. 2 para. (2) from Law no. 272/2004, in the form in force: “The best interest of the child is limited to the child's right to a normal physical and moral development, to socio-affective balance and to family life”.

This provision has a first-rate normative value in the economy of the law: the legislator chose to define the child's best interest as including, explicitly and necessarily, the child's right to family life. Family life is not, in the sense of Law no. 272/2004, an external element or adjacent to the child's best interest – it is a constitutive part of it. The direct normative consequence is that any measure that excludes the family from the child's life or from the decision-making process that concerns him affects, by definition, the best interest of the child, in the absence of exceptional circumstances that are thoroughly justified.

Removal of parental consent from art. 84 para. (4) by the criticized law, it therefore creates an irreconcilable internal contradiction within the same law: the new special norm empties the principle norms from art. 2 para. (2), (3), (4) and (5), without abrogating them and without justifying this derogation by an express provision, are mentioned in the notification.

Removal of parental consent from art. 84 para. (4) and imposing the child's participation in psychological counseling by law, Nicușor Dan points out, turns a protective measure into a coercive obligation imposed without the involvement of the family. This directly contradicts the declared purpose of the chapter in which the norm is inserted: if the purpose is the protection of the child, it is done through the family or together with the family. In this case, the exclusion of parental consent from the decision-making mechanism cannot be qualified as a protective measure, but as a unilateral and coercive state intervention in family life.

The current norm of art. 86 para. (1) from Law no. 272/2004, in the form in force prior to the criticized law, conditions the disposition of placement on the fact that the act committed by the child who is not criminally liable “presents a high degree of social danger”.

This requirement of a high degree of social danger constitutes, in Romanian law, a clear qualitative threshold: the acts of particular gravity are targeted, such as murder, robbery, rape or other serious crimes, for which the social impact and the risk of recidivism justify a more sustained state intervention regarding the child.

The criticized law adds to this qualitative threshold the phrase “or he has committed an act of violence”, thus dramatically expanding the scope of residential placement. Thus, the notification shows, the notion of violence is not limited to physical violence of high intensity. Violence can also be verbal or psychological violence, an alternative way of committing recognized in several crimes. Therefore, the scope of the new rule will also include children who have committed acts of extremely low social danger, such as threatening, hitting or other violence, disturbing public order and peace.

However, the referral shows, residential placement – which involves separating the child from the family and placing him in a specialized service – cannot be a proportionate reaction to a minor who has verbally threatened or bullied another person.

“The difference in treatment compared to the previous regime (which imposed a high degree of social danger) is flagrant and lacking in rational justification, violating the principle of proportionality enshrined in Article 53 of the Constitution and the principle of the best interest of the child enshrined in Article 49 paragraph (1) of the Constitution and Article 3 of the UN Convention on the Rights of the Child,” points out the president.

Concretely, states Nicușor Dan, the extension of the measure of residential placement to any act with violence, regardless of its concrete seriousness and without distinguishing by the nature and intensity of the violence, goes far beyond the legitimate purpose of the law and cannot be considered a necessary and proportionate measure, especially since it concerns children who are not criminally liable and for whom the legislator is constitutionally obliged to regulate protection measures, not sanctions.

Children with their parents. Illustrative image. PHOTO: © Spotmatik | Dreamstime.com