In its Administrative Law practice, the Costaș, Negru & Asociații team faced a dispute regarding the annulment of an administrative act with a “secret motivation”.
More precisely, the applicant was expelled from the “Vasile Lascăr” Police Officer School in Câmpina, with the justification that he no longer met the condition provided for in art. 6 lit. g) from Annex no. 2 to the Order of the Minister of Internal Affairs no. 140 of 2.09.2016, respectively to behave in accordance with the principles governing the police profession.
At first instance, the Arad Court rejected the annulment action, justifying the fact that from the classified documents of the file, to which only the judge of the case had access, and not the parties, it follows that the decision to deregister would be justified. In agreement with the issuer of the deregistration order, the court held that the basis for issuing it was personnel file no. S/98941/28.02.2018 and acknowledgment no. S/98925/20.02.2018 of the Human Resources Service within the Arad County Police Inspectorate, both preparatory documents being classified documents within the meaning of Law no. 182/2002.
During the appeal trial, the Timișoara Court of Appeal first requested the Arad County Police Inspectorate to declassify the two preparatory documents, in order to respect the right to defense. The requests were answered in the negative.
Later, by the conclusion of 19.02.2019, the Timișoara Court of Appeal qualified the exception of non-conventionality of art. 2 para. (2), art. 6 para. (1), art. 7 para. (1) and art. 31 of Law no. 182/2002 as substantive defense. It also admitted the appellant’s request and notified the Constitutional Court with the exception of the unconstitutionality of the same provisions.
More than four years later, by Decision no. 561 of 31.10.2023, published in M. Of. no. 381 of 24.04.2024, the Constitutional Court rejected the objection of unconstitutionality. Although the solution is not a surprise, being in line with its previous jurisprudence, it must be remembered that there is a major error of argumentation in Decision no. 561/2023. Thus, the Constitutional Court assessed that lawyers have the opportunity to obtain access to classified information, under the terms of Law no. 182/2002 and H.G. no. 585/2002 for the approval of the National Standards for the protection of classified information in Romania (in short, by obtaining the ORNISS certificate). In reality, however, this access is strictly theoretical, the number of lawyers who have access to classified information, under bizarre conditions, being extremely small. Although he was requested to verify in concreto, through addresses to the National Register of State Secret Information and the National Union of Bar Associations from Romania, the Constitutional Court refused this. All we have to do is note, with regret, that through the Constitutional Court’s contest, we have at least one right that, although formally recognized, is purely illusory.
To her credit, after resuming the case, the Timișoara Court of Appeal resolved the issue by Decision no. 503/29.05.2024, giving precedence to constitutional and conventional rights.
Thus, in disagreement with the first instance court, the Court of Appeal assessed that the factual reasoning of provision no. 74059/2018 is not found in the contested administrative act, being declaratively mentioned only the plaintiff’s non-compliance with the provisions of art. 10 lit. c) from Law no. 360/2022 and art. 6 para. (1) lit. g) from Annex no. 2 to the Order of the Minister of Internal Affairs no. 140/2016, citing personnel file no. S/98941 drawn up by the Human Resources Service of IPJ Arad, file that was not communicated to the respondent-complainant.
However, the justification of the administrative act cannot be fulfilled by documents submitted during the trial, the addressee of the measure having the right to assess the legality and validity of the measure contained in the justification of the act. It was also said, beautifully, that the court must know the reasons why the issuer of the act, in exercising his discretionary power, chose the solution criticized by the injured party, and this reasoning must be intrinsic to the administrative act. The censure of the act carried out by the court concerns the fulfillment of the legal conditions on the date of its issuance by the administrative authority.
In addition, the Timișoara Court of Appeal shows, the discretionary power of an authority cannot be seen, in a state of law, as an absolute and unlimited power.
Under these conditions, finding that the administrative act with a secret motivation is in fact an unmotivated administrative act, the Timișoara Court of Appeal admitted the appeal, overturned the decision of the first instance, re-judged and ordered the cancellation of the provision issued by the “Vasile” Police Officer School Lascar” from Câmpina.
In the opinion of the Costaș, Negru & Asociații team, this solution is a salutary one, in full agreement with constitutional and conventional requirements. Given that lawyers do not have access to classified information, we cannot speak of an effective exercise of the right to defence.
The client was represented, before the Timișoara Court of Appeal, by av. Dr. Cosmin Flavius Costaș and av. Diana Jehaliuc, both from the Arad Bar Association.
Costaș, Negru & Asociații is a civil society of lawyers with offices in Cluj-Napoca, Bucharest and Arad, which offers assistance, legal representation and consultancy in several areas of practice through a team composed of 20 lawyers and consultants. Details regarding legal services and team composition can be found on the website https://www.costas-negru.ro. All rights for the materials published on the company’s website and through social networks belong to Costaș, Negru & Asociații, their reproduction being permitted only for informational purposes and with correct and complete citation of the source.
