1.  Romania is a unitary republic. According to the Constitution of Romania (Article 1(1)) the state is national and sovereign, unitary and indivisible, and the form of government is republican (Article 1(2)). The republican form of government, the unitary and indivisible nature of the state, as well as the original language, are shielded from revision by the ‘eternity clause’ of Article 152 of the Constitution.

2.  The political system is semi-presidential, with relatively weak powers formally assigned to the President. This is apparent if one compares the powers of the Romanian President with those of its French counterpart, which served as a model.¹ The Constitution, which could be categorized as ‘legal’ and post-authoritarian,² was adopted in 1991 and significantly, if perhaps somewhat haphazardly, revised in 2003. Whereas the ostensible justification for the 2003 revision was the need to prepare for European Union (EU) and NATO accession, many changes were internally driven, such as modifications of the institutional structure.

3.  In 2003, when the Constitution was revised, the presidential term of office and that of the bicameral Parliament were desynchronized. The choice for a longer presidential term of office of five years—the parliamentary term remained four years—created the preconditions for more frequent and intensive conflicts, which twice amounted to full-blown constitutional crises (in 2012, and between 2016–2019) at the apex of the dual Romanian executive. Since 2004, centre-right Presidents have frequently cohabitated with parliamentary majorities dominated by the centre-left, and thus with centre-left Prime Ministers. This is in part a consequence of political practice, and additionally it results from distinct presidential/parliamentary electoral dynamics.

4.  During the public health crisis in Romania there was, on one hand, a cohabitation period between a minority Government, supported by the President, and, on the other, a parliamentary majority that used all the institutional means at its disposal to temper, or even to block, decisions by the executive. In fact, on 5 February 2020, the minority Government was dismissed by a motion of no-confidence. Following the decision of Parliament, the President tried to force the dissolution of the legislature. However, this political and constitutional crisis was rapidly forgotten due to the spread of the Covid-19 virus around the world and the identification of the first confirmed case of Covid-19 in Romania (26 February 2020). In the end, to guarantee a functioning government to manage the public health crisis, the same Government which had previously been dismissed by a vote of no-confidence was once again appointed on 14 March 2020.

5.  For the past 15 years, the Romanian constitutional system has also been strongly marked, if not defined, by the operation of an ‘informal constitutional change’ derived from EU-driven anticorruption conditionalities. The phenomenon of anticorruption politics has both reflected and reinforced pre-existing patterns of social, economic, political, and ideological polarization. The law and politics of pandemic management have been, for the most part, another means for the continuation of pre-existing trends towards polarization, fragmentation, and discourse instrumentalism.³

6.  In keeping with classical conceptions of ‘constitutional dictatorships’,⁴ the pandemic has seen the executive acquire greater authority, primarily the presidency. However, this trend towards increased executive authority has been checked by independent institutions and a fragmented political system brought about by cohabitation and coalition governments resulting from desynchronised terms.

7.  One key feature of the pandemic response has been reliance on the military. Such reliance has been shown by: an active military doctor appointed as the manager of the civilian county hospital in the county of Suceava; a military doctor designated to oversee the impending vaccination campaign and a reserve four-star general and former Army Chief of Staff, Mr Ciucă, appointed as caretaker Prime Minister and considered Prime Minister designate after the elections of December 2020 (for details see Part III below). More recently, Mr Ciucă was designated as Prime Minister in a centre-right/centre-left coalition, in November 2021.

8.  The public health crisis provoked by Covid-19 was managed in Romania by the application of two consequential, yet different, constitutional and legal regimes of an exceptional nature: the state of emergency and the state of alert.⁵ The state of emergency is provided by the Constitution (Article 93) and detailed by Emergency Ordinance 1/1999 (EGO 1/1999) concerning the state of siege and the state of emergency.⁶ The state of alert is regulated by two distinct normative acts. On the one hand, there is the Emergency Ordinance 21/2004 (EGO 21/2004) regarding the National System for the Management of Emergency Situations,⁷ as amended by Emergency Ordinance 68/2020 (EGO 68/2020).⁸ On the other hand, there is the Prevention and Fighting against the Outcomes of the Covid-19 Pandemic Law 55/2020, adopted in an accelerated procedure by Parliament in May 2020 to specifically deal with the Covid-19 pandemic.⁹

9.  Under Article 93 of the Constitution, and under the provisions of the EGO 1/1999, a state of emergency was declared in Romania by Presidential Decree 195/2020 on 16 March 2020 for a maximum period of 30 days.¹⁰ The measure was approved by Parliament Decision 3/2020.¹¹ At the end of the 30 days, the state of emergency was prolonged for another 30 days by Presidential Decree 240/2020,¹² adopted on 14 April 2020. The measure to prolong the state of emergency was approved with minor additions by Parliament Decision 4/2020.¹³

10.  Under EGO 21/2004, amended by EGO 68/2020, the National Committee for Emergency Situations issued Decision 24/2020,¹⁴ declaring a state of alert over the whole country. This state of alert was in force for just three days until the Romanian Government issued Decision 394/2020 on 18 May 2020.¹⁵ This Decision was issued following Law 55/2020 and proclaimed a state of alert for a maximum period of 30 days. Other Government decisions were successively issued to prolong the state of alert, each amounting to 30-day periods, and continuing until present day.

11.  Presidential Decrees 195/2020 and 240/2020 explicitly listed the fundamental rights and liberties whose exercise would be restricted on the grounds of public health: freedom of movement, right to respect private and family life, inviolability of the domicile, right to education, freedom of meeting, right to private property, the right to strike, and economic freedom. Moreover, they provided that the activity of the courts of law would be limited only to cases of extreme urgency. The list of these extreme urgency cases was established by the Executive College of the High Court of Cassation and Justice and by the executive colleges of the appeal courts, according to their judicial competence. The Superior Council of Magistrates was competent to adopt instructions to harmonize the decisions of the executive colleges of the respective courts of law.¹⁶

12.  According to Article 3(2) of EGO 1/1999, during the state of emergency or during the state of siege, the following measures are prohibited: (1) limiting the right to life, with the sole exception of when death is the direct result of an act of war; (2) torture and inhumane or degrading treatment or punishment; (3) punishment without law for criminal offenses; and (4) restriction of free access to justice. A similar exception was not provided explicitly by EOG 21/2020 or, most important, by Law 55/2020, which regulated the measures during the state of alert. Nevertheless, none of the measures regulated by Law 55/2020 to counter the effects of the Covid-19 pandemic breached the limits set up by Article 3(2) of EGO 1/1999 for the state of emergency or the state of siege.

13.  The state of alert (starea de alertă) is a form of ‘surrogate’ state of emergency and mimics/replicates the framework of the latter, other things being equal. Unlike the state of emergency, however, it is not enshrined in the Constitution itself. It was created by emergency ordinance (EGO 21/2004),¹⁷ in response to the terror attacks in Madrid, in the context of a need to address the then-paramount perceived threat of terrorism through graduated responses to crises.

14.  In accordance with Article 20(1)–(2) of the Constitution, the Romanian Government invoked Article 15 of the European Convention on Human Rights¹⁸ and Article 4 of the International Covenant on Civil and Political Rights¹⁹ only during the state of emergency declared by the Romanian President and approved by Parliament—that is, between 15 March and 14 May 2020.²⁰ However, the Romanian Government did not invoke the same derogations during the state of alert declared between 15 and 18 May 2020, nor during the state of alert that was declared on 18 May 2020 and continues to present day, even though the measures taken by the legislative branch and the executive were conducive to the restriction of the exercise of fundamental rights and freedoms.

15.  During public speeches,²¹ various high representatives of national authorities have argued that the measures taken by Romania have been consistent with the recommendations of the World Health Organization (WHO). However, the content of the statutes and executive acts adopted during the sanitary crisis did not transpose the recommendations of the WHO exactly as they were formulated by the WHO. Furthermore, the declaration by the WHO on 11 March 2020, elevating the Covid-19 outbreak to the status of a global pandemic, was used by the President as an official argument to declare the state of emergency, and by the Government to issue different emergency ordinances deemed necessary by the executive to manage the public health crisis (eg, EGO 34/2020²² amending EGO 1/1999).²³

16.  EGO 34/2020 was later declared unconstitutional by Decision of the Constitutional Court No 152/2020.²⁴ This emergency governmental ordinance (EGO) regulated harsh minor offences for breaching the measures taken during the state of emergency as well as restrictions concerning the transparency process for adopting regulations about Covid-19. This EGO raised harsh criticism from representatives of the parliamentary majority and it was submitted by the Ombudsman to the Constitutional Court on 16 April 2020.

17.  During the state of emergency, the Romanian Parliament was in ordinary session. When Parliament ended its ordinary session on 30 June 2020, the state of alert was declared under Law 55/2020. Even though there were no constitutional or legal provisions regulating mandatory activity of the Parliament during the state of alert, the political decision of the parliamentary majority was to convene the Senate and the Chamber of Deputies in extraordinary sessions. As a consequence, from 1 July until 31 August 2020, the two Houses of Parliament were in extraordinary sessions, before a new session started on 1 September 2020.

18.  The legislation in force before 11 March 2020, when the WHO declared the Covid-19 outbreak a global pandemic,²⁵ was not fully prepared, nor equipped, to support the complex decisions needed to deal with the Covid-19 pandemic. Consequently, due to decisions of the Constitutional Court of Romania—most of them triggered by complaints of the Ombudsman (see Part III.G below)—new legislation was adopted in Parliament, while old legislation was adapted to deal with the many problems posed by the public health crisis.

19.  Parliament’s decision to adopt Law 55/2020 was urged by Constitutional Court Decision 157/2020 declaring that EGO 21/2004 cannot be used to restrict the exercise of fundamental rights and liberties on the grounds of public health.²⁶ Therefore, Parliament adopted Law 55/2020 in a staggeringly fast two-day period. The precise scope of the Act provided a constitutional legislative tool for the Government to adopt measures needed to temper the outcomes of the Covid-19 pandemic, including restrictions on the exercise of fundamental rights and liberties.

20.  Another Decision of the Constitutional Court (458/2020)²⁷ declared the unconstitutionality of the provisions regulated by Article 25(2) of Health Reform Act No 95/2006 and Article 8(1) of Emergency Ordinance 11/2020, regarding sanitary supplies and regulating forced quarantine and isolation of individuals who were either suspected of being infected with Covid-19 or confirmed to be infected with the virus.²⁸ As a consequence, a new Act was adopted by the legislative branch in just 10 days to provide for a clearer, more precise, and predictable procedure for imposing forced quarantine and isolation of individuals (for more details, see Part IV below).²⁹

21.  During a state of emergency, under Article 23(2A) of EGO 1/1999, the executive rule-making power is exercised by military ordinances issued by the Minister of the Interior or by their deputy. In Romania, there were 12 such military ordinances issued during the state of emergency. These ordinances regulated mandatory measures for implementing the provisions of Presidential Decrees 195/2020 and 240/2020. It is important to note that the military ordinances were mere administrative normative acts which followed the presidential decrees declaring the state of emergency and aimed to implement the measures provided by those presidential decrees. Moreover, the Constitutional Court argued in Decision 152/2020 that the presidential decrees declaring and prolonging the state of emergency are, in fact, executive normative acts issued under EGO 1/1999. However, according to Article 126(6) of the Constitution, they cannot be submitted to a legality review in front of a court of law as they are considered to be executive acts issued in relation to the Parliament.

22.  Even though the legality of the presidential decrees cannot be reviewed by the courts of law, the legality of other executive acts issued for the application of the state of emergency could be decided by a court of law. In fact, there were several complaints formulated against different decisions to quarantine and isolate individuals,³⁰ administrative units,³¹ or close restaurants³² However, those executive regulations cannot be suspended according to Article 5(3) of Judicial Review of Administrative Acts Act 554/2004.³³

23.  During the state of alert declared under EGO 21/2004, the executive rule-making powers were exercised by Decision of the National Committee for Emergency Situations. According to Article 4(5) of EGO 21/2004, by declaring a state of alert in Romania, the Decision of the National Committee for Emergency Situations regulates measures to increase response capabilities, to assure the resilience of communities, and to diminish the impact of the risks. However, as showed above, this state of alert was in force for only three days until Law 55/2020 came into force.

24.  During the state of alert declared under Law 55/2020, the executive rule-making powers were exercised by Decision of the Government. According to Article 4 of Law 55/2020, a state of alert is declared by Decision of the Government, at the proposal of the Minister of Internal Affairs, and cannot be longer than 30 days. The state of alert could be prolonged for consecutive 30-day periods, using the same procedure as stated above. The law does not provide a maximum time limit for the state of alert. These decisions regulate different types of sectorial measures to temper the spread of Covid-19 (eg, measures dealing with economic, health care, transport, execution of punishment, and education issues).

25.  During the state of emergency and the state of alert, a multitude of ministerial orders, as well as decisions of the National Committee for Emergency Situations, and decisions of the local committees for emergency situations, were adopted to implement the provisions of all these normative acts with higher legal force, as mentioned above.

26.  In the case of Romania, the Constitutional Court played a major role in organizing the content of the legislation dedicated to the sanitary crisis. Among others, the most important rules established by the Constitutional Court in its recent case-law were the following.

27.  Under Article 115(6) of the revised Constitution, the Government cannot affect fundamental rights and liberties by delegated legislation, not even in extraordinary circumstances. Only the Parliament, under Article 53 of the Constitution, can regulate restrictions on the exercise of fundamental rights and liberties, based on legitimate grounds, such as public health, national security, public order, etc (Constitutional Court Decision 152/2020). However, the same argument did not apply for EGO 1/1999 (state of emergency and state of siege). Even though it regulates restrictions on fundamental rights and liberties during a state of emergency or a state of siege, EGO 1/1999 was adopted before the revision of the Constitution, when the Fundamental Law did not regulate a clear interdiction to affect (restrict/limit) fundamental rights and liberties by delegated legislation.

28.  The Government decision declaring or prolonging a state of alert under Law 55/2020 cannot be approved by decision of the Parliament, as it would be a breach of the principle of the separation of powers. The Parliament adopted Law 55/2020 allowing the Government to issue a decision for declaring a state of alert. Thus, the Government, respecting the procedures and conditions imposed by the law, will decide, without approval from the Parliament, if, and when, it is necessary to declare or prolong a state of alert (Decision 457/2020).³⁴

29.  This section will grapple with institutional dynamics in the broader context of Romanian constitutional law and politics (for a thorough review of the legislative and constitutional frameworks see Part II above, and for a fine detail review of Covid-19 restrictions, including pertinent case law, see Part IV below). As an introduction, it is necessary to point out that one needs not be a ‘Schmittian’ to recognize that emergency procedures are in the hands of the executive. Courts and legislatures are usually sidestepped or side-lined, and the executive branch gains the upper hand.

30.  Nonetheless, the peculiarity of this particular emergency, the constitutional and legislative framework at hand, and the intricacies of the Romanian political-constitutional system, converged to produce a much more complex power constellation than standard ‘constitutional dictatorship’. It is not necessarily that the relative power of the executive ‘diminished’ as a result of ‘Covid-19 constitutional politics’.³⁵ Rather, the ‘bifurcated’ (ie semi-presidential) Romanian executive did not fuse and aggrandize itself at the expense of the other branches in the patterns and to the extent one could have reasonably expected or predicted it to before the onset of the pandemic. In 2019, the National Liberal Party’s candidate had won the presidential elections in a landslide. The party’s approval ratings soared, while its traditional opponent on the left, the Social Democratic Party—which had suffered a number of defeats at the polls and in judicial-political battles—was in disarray and seemed poised on the brink of total collapse. This configuration was somewhat changed by the pandemic.

31.  The legislative framework used to tackle the pandemic in early spring 2020 was that of the (French-inspired) state of emergency. The state of emergency (starea de urgenţă) was declared in March 2020 and extended in April by two consecutive presidential decrees. According to Article 93 of the Constitution, a state of emergency is declared by the President and must be approved by the Parliament within five days. If the Parliament is not in session, it must be convened within 48 hours. Each subsequent 30-day extension is subject to parliamentary approval. The legal mechanics of the somewhat cryptic constitutional norm were fleshed out in 1999, by an emergency ordinance (EGO 1/1999) adopted in a very different context than the current one, and in response to a different kind of emergency. EGO 1/1999 was also adopted years before a major revision of the Constitution took place in 2003. Some of its provisions are therefore dated and of dubious constitutional validity (for the discussion of ‘military ordinances’ see Part III.H below) but were left untested in either administrative practice or constitutional law until now.

32.  Emergency ordinances are governmental decrees with legislative force and effect, taken by the Government on a plea of necessity and on the basis of the Constitution itself, somewhat analogous to Article 77 of the Italian Constitution decreti-legge. They must be laid before Parliament for legislative ratification (ex post) but can also be approved tacitly, if Parliament does not take any action, and in practice often are.

33.  The state of alert (starea de alertă) (see Part II above) is instituted by a Government decision, which can thereupon be extended by periods of a 30-day maximum at a time. The logic behind the creation of this new framework/legal institution was that a state of alert would anticipate and precede the declaration of a state of emergency. In the current crisis, the state of alert has functioned as a lighter form of state of emergency that followed rather than preceded the presumably enhanced crisis management.

34.  The way in which the separation of powers and checks and balances were readjusted in the new context was subject to significant realignments pursuant to constitutional adjudication.

35.  As a result of Constitutional Court decisions (directly pertinent, Decision 157/2020) holding that fundamental rights restrictions cannot be decided by, or on the basis of, EGOs—meaning, such restrictions must be based on a parliamentary statute, not introduced by statutory instruments—the state of alert was regulated by Law 55/2020. This law was debated and adopted with lightning speed, within two days, to catch up with the consequences of the Constitutional Court decision. According to the Constitution, legislation enters into force, at the earliest, after three calendar days from publication. As a result, a three-day state of alert was declared on the basis of EGO 21/2004 until a regular 30-day state of alert could be declared on the basis of the newly adopted law. The three-day bridge was closed formally but due to the ambiguity ensuing from constitutional case-law concerning whether, and which, restrictions could be enforced on the basis of that ordinance, the period between 14–17 May 2020 functioned, insofar as the citizenry was concerned, as a sort of Covid-19 restrictions saturnalia.

36.  According to the ‘Covid-19 Law’ 55/2020, the initial Government decision instituting the state of alert had to be approved by the Parliament within five days, in symmetry with the state of emergency. The Parliament could, according to the law, approve, reject, or modify the decision, which is, formally speaking, an administrative act. The Constitutional Court, in a unanimous decision (Decision 457/2020), held the respective provisions unconstitutional, with a Chadha-like reasoning.³⁶ According to the ruling, the attempt to replicate the procedure of the state of emergency in the new context (1) ignored the distinct nature of the two institutions (constitutional in the case of the state of emergency, legislative in the case of the state of alert) and, in so doing, (2) blurred the difference between law-making and law-application, with (3) negative implications on the judicial review of administrative actions, ie, would have made these Government decisions unreviewable by the ordinary courts.

37.  In contrast, in the case of the earlier state of emergency (March through May 2020), the presidential decree extending the state of emergency was approved with certain modifications by Parliament. Yet, the president maintained the original version of the decree. When the emergency ordinance regulating the state of siege and the state of emergency (EGO 1/1999) and an amending ordinance (EGO 34/2020) came before the Constitutional Court as a result of the Ombudsman’s exception, the Court decided that the presidential decree instituting or extending the state of emergency is not subject to judicial review by ordinary courts of law. The Court reached this conclusion interpreting extensively Article 126(6) of the Constitution, which exempts ‘military command acts’ and ‘acts regarding relations [of the public authorities] with the Parliament’ as applicable to Article 93 of the presidential decrees. The Constitutional Court inferred from this taxonomical exercise that these presidential decrees would, however, be subject to a ‘two-step review’: (1) a review of the legality and merits of the presidential decree, exercised by the Parliament; and (2) a review of constitutionality performed by the Constitutional Court itself, via the constitutional review of the parliamentary decision approving or rejecting the presidential decree (Decision 152/2020, [92]–[94]). The notion that the Parliament exercises the power of legality review is new in Romanian constitutional adjudication and somewhat at odds with the strict separationist logic implicit in the subsequent decision concerning the constitutionality of the state of alert’s parliamentary approval procedure.

38.  As aforementioned, these solutions should be read against the backdrop of another, highly innovative, turn in constitutional adjudication, that is the doctrine according to which emergency ordinances cannot ‘affect’ (ie restrict) fundamental rights and liberties but only bolster them (Constitutional Court Decisions 152/2020 and 157/2020). To be sure, the phrase, as such, is in the Constitution which provides for a number of restrictions on delegation by emergency or constitutional ordinances. Take for example Article 115(6) of the Constitution (concerning legislative delegation): EGOs cannot be adopted in the field of constitutional laws, cannot affect the regime of fundamental state institutions, rights, liberties, and duties entrenched in the fundamental law, electoral rights, and cannot affect takings (‘establish steps for transferring assets to public property forcibly’). The Article 115(6) limitation on ‘affecting’ rights had, however, been understood to mean that an Article 53 of the Constitution proportionality review would be carried out and that requirements of clarity, predictability, and precision derived from the legality principle would also constrain the potential for abuse; not that emergency ordinances cannot intersect with, or touch in any way upon, some constitutional right enumerated in Title II of the Constitution. The new construction goes against the grain of decades of practice consistently green-lit by the Court up until 2020. It is also, in the long run, practically unsustainable, when considering, on the one hand, the dozens, sometimes hundreds, of emergency ordinances adopted every year (210 in 2020, for instance) and, on the other, a slow and procedurally overwrought legislative process.³⁷

39.  The Parliament had already shifted its activity to online sittings at the beginning of the pandemic. Standing orders were modified accordingly by parliamentary decisions so that, ‘in extraordinary situations, determined by the competent authorities, such as an epidemic, pandemic … and all other situations that make physical presence impossible’, the Standing Bureau of each house could decide to hold meetings, including plenary sessions, electronically, according to procedures approved by the Bureau (Decision 7/2020 of the Chamber, Senate Decision 16/2020). The Constitutional Court rejected by majority decision an unconstitutionality challenge to Senate Decision 16/2020 (Decision 156/2020).

40.  The two presidential decrees instituting and extending the state of emergency (Article 42(1) Presidential Decree 195/2020, and Article 63 Presidential Decree 240/2020, respectively) provided for restrictions on the activity of courts. On the basis of the decrees, the Ministry of Justice issued detailed practical guidelines.³⁸ Even criminal cases were suspended, although a relatively long list of exceptions was provided in this field. Thus, many criminal cases continued to be processed, aided by the limited use of videoconference hearings.

41.  According to the decrees, criminal cases on the dockets were also to be suspended pending the state of emergency, except for (1) cases in which the urgency was justified by the purpose of establishing the state of emergency at national level, as well as other urgent cases considered as such by the judge or by the court; (2) cases of flagrante delicto; (3) cases in which preventive measures have been ordered, and those concerning appeals against enforcement; (4) cases related to appeals against precautionary measures and those concerning international judicial cooperation in criminal matters; (5) cases involving measures to protect victims and witnesses; (6) cases concerning the provisional application of medical safety measures; and (7) cases concerning crimes against national security, and those relating to acts of terrorism or money laundering.

42.  ‘Particularly urgent’ non-criminal cases were to be processed. According to the decree, as complemented by the Superior Council of Magistracy (Consiliul Superior al Magistraturii, CSM),³⁹ the decision as to prioritizing, particularly in non-criminal-law matters, was left to the management boards (colegii de conducere) of the High Court of Cassation and Justice and of the 15 Courts of Appeals, respectively. These collegial boards are, according to Judicial Organisation Law 304/2004 (Article 49), composed of the court president and six members elected by the judicial assembly for three-year terms. In May 2020, at the onset of the state of alert, the CSM adopted a uniform decision establishing general safety measures. The judicial session was extended by one month, thus cutting down the summer court recess to the month of August alone (usually, the period of ‘judicial holidays’ takes two full months, covering both July and August).⁴⁰

43.  Management boards adopted additional safety measures. For instance, the management board of the Court of Appeals of Târgu Mureş adopted a decision (22/C on 14 May 2020) providing for special measures to be implemented during the state of alert. ⁴¹ These measures included:

time spent at archive and registry limited to five minutes for the submission of documents and 15 minutes for the study of files; in special situations, the standing time may be extended, with the consent of the clerk-archivist; after the completion of the activity that required their presence at the location of these departments, the persons will leave the court as soon as possible …; the judges will schedule precise timelines for the trial of each case or distinct time intervals for the trial of a group of 3–5 cases, depending on the number and particularities of the cases pending at the respective trial term; when establishing the hours/time intervals for judging the cases, the time necessary for ventilating and sanitizing the courtroom during the trial will be taken into account, assessed by the judges according to the specific circumstances of the respective hearing; the summoning of the parties/participants will be made for the time or time intervals established by the court panels for judging the cases so that the parties/participants in the trial are aware of them and respect them; on the hearing lists there will be mention of the time or time intervals established for the trial of the cases and, as the case may be, the names of the persons summoned as witnesses, experts, interpreters in the respective case, in order to have access to the court …; each person entering the courtroom shall be provided, by the gendarmes guarding the courthouse, a Covid-19 symptoms ‘self-checker’ questionnaire, which everyone seeking access must fill in; no more than five persons at a time should be present as a rule in the courtroom; no more than ten even in those exceptional situations when the interests of justice and the particularities of the case dictate that exceptions to the five-person rule should be made; no more than five persons should stand simultaneously in the hallway adjacent to each courtroom etc (Decision No 22/C of 14 May 2020).

44.  Two rounds of elections, local and parliamentary, were held during the pandemic on 27 September 2020 (deferred from June 2020)⁴² and 6 December 2020 (held on schedule), respectively. Special measures were not put in place, other than the ordinary mask-wearing rules that generally apply, and all voting sections were provided with alcohol-based disinfectant dispensers. Prior to the parliamentary elections, testing slowed down⁴³ and the view was (even in the press favourable to President Iohannis and the National Liberal Party (PNL)) that this was a stratagem aimed at artificially decreasing the reported number of new infections and consequently inducing a sense of safety and good management.⁴⁴

45.  The general elections saw the lowest turnout ever recorded in post-communist parliamentary elections at 31.84%,⁴⁵ and produced a fragmented Parliament, levying a heavy toll particularly on the PNL. The Alliance for the Union of Romanians, a fringe far-right party (its Romanian acronym ‘AUR’ meaning gold) entered Parliament with slightly over 9% of the national vote in both houses (10% after the redistribution of seats), thus becoming the fourth-largest faction in Parliament. Among the ideological features of this new party, their hostility towards Covid-19 restrictions stands out. Such hostility has manifested in refusals to wear masks, including by its MPs in the newly convened Parliament, and conspiratorial scepticism concerning the benefits of the upcoming vaccination campaign and the pandemic itself. This development was fully unanticipated at the level of elite political discourse, as the party had not been covered almost at all by the mainstream media and is likely to present difficulties for the newly elected parliament.

46.  Expertise, politics, and militarisation (see Part III.H below) have overlapped and intersected in ‘dynamic patterns’ during this time. In particular, the line between the spheres of expertise and politics is often hard to draw formalistically and, conversely, can be easily crossed.

47.  The paradigmatic expert of the pandemic is Dr Raed Arafat, who has created from scratch an effective emergency service, SMURD, and is the head (with the status of secretary of state, a political appointee) of a department in the Ministry of Internal Affairs, the Department for Emergency Situations (DSU). Dr Alexandru Rafila, a professor of microbiology and former member representing Romania on the WHO Executive Board, and Dr Streinu Cercel, Director of the National Institute for Infectious Diseases (‘Prof Dr Matei Balş’ in Bucharest), were both co-opted and ran in the 2020 elections on the Social Democratic party ticket. The two were elected to the Chamber of Deputies and the Senate, respectively.

48.  According to the presidential decrees instituting and extending the state of emergency (Article 54 of Presidential Decree 195/2020, and Article 91 of Presidential Decree 240/2020, respectively), the provision of false and misleading information (‘fake news’) concerning the spread of the disease and the prevention and protection measures in place would be sanctioned by blocking the content at the source. This measure would be implemented by the National Authority for Management and Regulation in Communications (ANCOM) who would issue a reasoned order directing internet service providers to block the site. Failure to do so constituted a misdemeanour, punishable by a stiff fine of up to 70,000 Romanian Lei.

49.  At the request of the Ministry of Internal Affairs, ANCOM issued orders that led to the blocking of 15 (rather obscure) websites.⁴⁶ These decisions were rescinded at the end of the state of emergency and their effects were, according to mainstream media reporting, of dubious effectiveness—the sites were reopened under different names and the numbers of visitors accessing their content increased.⁴⁷

50.  Starting in April 2020, the Romanian Ombudsman (Avocatul Poporului, literally ‘Advocate of the People’) seized the Constitutional Court with a number of challenges (technically, unconstitutionality exceptions) regarding the Government’s alleged violations of fundamental human rights and freedoms via EGOs—these are formally statutory instruments with legislative force and effect, adopted on a plea of necessity, on the basis of the Constitution itself; the term ‘delegation’ is somewhat of a misnomer in the case of emergency ordinances—and through the ‘military ordinances’ (mentioned in Part II.C above, and Part III.H below). The Ombudsman also raised an exception concerning Law 55/2020.⁴⁸

51.  What the Ombudsman in essence criticized was that the measures imposed during the state of emergency in Romania, through EGO 34/2020, were unlawful and disproportionate, seen, for instance, through the significant increase in the value of the fines. Romanians caught in violation of the early measures were forced to pay huge fines (compared to their purchasing power): against an average salary of approximately 700 Euro, the minimum fine was increased to 400 Euro, and the maximum over 4,000 Euro. The fines were also argued to be disproportionate, ie, not graduated in correlation with the severity of the particular offending act. Moreover, against the background of rather vague provisions included in the military ordinances issued during the state of emergency, whose interpretation was left to the discretion of the police, the Ombudsman pointed out that some social categories were targeted in fact discriminatorily, unjustifiably, and disproportionately. For example, these included elderly people without any kind of support or less informed/uneducated people in rural areas of the country.

52.  The Constitutional Court admitted many of the Ombudsman’s notifications. Most nullifications of Covid-19 restrictions did in fact originate in the Ombudsman’s unconstitutionality challenges. The decisions generated institutional infighting and brash political reactions. Mr Ludovic Orban (National Liberal Party), the then-Prime Minister, repeatedly criticized the People’s Advocate (Ombudsman) and the Romanian Constitutional Court.⁴⁹ The Prime Minister was himself subsequently subject to harsh criticism. In a joint statement released by associations of magistrates, the attacks against the Constitutional Court were condemned as irresponsible and undermining the rule of law and democracy in Romania.

53.  The involvement of the army or recourse to military symbolism was an important and idiosyncratic element in the overarching political discourse, narratives, and representations during this period. In Romania, where the administration and political class have for years been accused of incompetence, corruption, and lack of professionalism in the management of public affairs, the so-called ‘militarization of the pandemic management’ was seen by many as a way for the political class to hide its own ineptitude.⁵⁰

54.  In other words, scholars and public commentators have noted that the militarization of crisis management is based on two simple explanations: (1) to give citizens the illusion that the pandemic will be kept under control by the seemingly orderly, rigorous intervention of the military and (2) that public institutions and public administration in general, including hospitals, can be managed efficiently by the army, and that the pandemic may thus be kept under control. However, these narratives have been called partly illusory or fictitious. The Romanian army is an extension of the Romanian administration and political class, and of Romanian society as a whole, with all its avatars, criticized by commentators as including: deficiencies, nepotism, and promotions based on connections and family relations (ie, favouritism and cronyism rather than professionalism and competence). The almost unquestionable confidence of the population is considered by critics to be due to the reality or the current social role and make-up of the army, but rather to mythically loaded historical representations of the army’s role.⁵¹ Scandals, including the arrest of an army intelligence officer on suspicion of embezzlement,⁵² and others related to the Covid-19 crisis,⁵³ have already put a dent in this image. A scandal occurred when the incumbent Health Minister leaked information on Facebook about parallel, closed-circuit centres of the Army, Interior Ministry, national intelligence, and judicial systems, where family members, including those who did not meet the general national priority criteria, could have been vaccinated.

55.  The first sign of this phenomenon of militarization was the appointment of active military (officer) doctors as head managers in certain hospitals,⁵⁴ especially at the beginning of the pandemic (March–April 2020) in areas of Romania where Covid-19 infections were registered at an infra-community level spread, or where regional hospitals had serious lapses in their functioning due to weak, incompetent civilian administrations. Currently, a military doctor with the General Military Hospital of Bucharest, Lt Col. Valeriu Gheorghiţă, has been appointed as the coordinator of the vaccination campaign.

56.  Another sign was the management of the pandemic crisis at its onset, during the months of March–May 2020, such as the implementation of measures by the Government, the Minister of Interior, through ‘military ordinances’. Despite the body for which they are named, military ordinances are not in fact adopted and implemented by the military but instead by a representative of a civilian ministry, namely the Ministry of Internal Affairs. This body and most of its subordinate structures—with the exception of the Gendarmerie Corps (Jandarmeria Română), which remains the only military structure subordinated to the Ministry of Internal Affairs—have been demilitarized since 2003 as a result of a condition for Romania’s entry into the European Union on 1 January 2007. In connection with these military ordinances, it is important to mention that they are a creation of the 1999 legislation (EGO 1/1999), adopted prior to the revision of the Romanian Constitution. Following its revision, there is no reference in the Constitution that provides for this type of normative act (military ordinance). Consequently, there are serious doubts that these ordinances are constitutional. However, considering that they were not challenged before the Constitutional Court of Romania, no clarification can be provided.

57.  Following Prime Minister Ludovic Orban’s resignation after the parliamentary elections held on 6 December 2020, in which the Liberal National Party lost the parliamentary elections, information released by the media detailed that the Minister of National Defense, Mr Nicolae Ciucă, a reserve four-star army general and former Chairman of the Chiefs of Staff, would have been preferred to secure the position of Prime Minister (PM) in the Government to be formed after the parliamentary elections. He was the favourite of the Romanian President, who carries out the nomination of the PM. General Ciucă, the Minister of National Defence, was indeed appointed interim Prime Minister until the formation of the new Government.⁵⁵ Such a proposal, according to critics, could have had only one goal behind it—political image-building. The army, with its steady approval rate of over 70%, would take over the management of the pandemic. In the opinion and hope of those supporting the nomination, the army's positive image would be ‘passed on’, imparted to those holding political power.⁵⁶ However, as a result of the vehement and negative reactions of civil society and the media to the possibility, the idea was initially abandoned (Nicolae Ciucă eventually became Prime-Minister, in November 2021).

58.  Romania is a unitary state, which entails that concrete and specific public health measures are adopted by the executive authority at the central level, either by the Government, or by authorities subordinated to the ministries directly involved in combating the Covid-19 pandemic, such as the Ministry of Internal Affairs or the Ministry of Public Health.

59.  Romania reacted to the pandemic crisis in an institutional manner, in the sense that, on the one hand, restrictions were imposed by law and by administrative acts issued by the Parliament, Government, and President of Romania, and, on the other hand, the implementation of the measures was done in collaboration with central and local institutions. Depending on the severity of this crisis, the institutional response in Romania has known several stages, namely two:

1. (1)  The first stage, imposed by the President of Romania starting on 16 March 2020, lasted 60 days. In accordance with the Romanian Constitution, the so-called state of emergency was established by decrees issued by the President. This stage was characterized by the severity of the measures instituted, these measures being valid on the entire territory of Romania.

2. (2)  The second stage, which practically started on the date of the first stage’s expiration, was institutional, according to the Romanian legislation, as will be shown below, and was set up by the Romanian Government through Government decisions that established the so-called state of alert. These Government decisions were instituted for a period of up to 30 days and continue as such to date of writing, and the measures that have been taken at national or local level depend on the risk factors, taken into account by the responsible institutions, an aspect that will be detailed further. In the case of the state of alert, the central Government institutions collaborate with local institutions, through the sharing of competence, an issue that will be also addressed below.

60.  A list of legislative and administrative acts adopted by the national legislative and executive authorities on national level is published on the official website of the Ministry of Internal Affairs and, also, on a website developed by volunteers with the support of the Romanian Government.

61.  Although there is no equivalent term for lockdown or curfew in Romanian, a list of areas where situations and conditions in which the fundamental rights and freedoms of citizens are restricted during the state of alert, by decree of the Department for Emergency Situations within the Ministry of Internal Affairs, is published on the website.⁵⁷

62.  Although at least one month had passed from the time the pandemic broke out in several EU Member States (Spain, Italy, France) until the moment of declaring the state of emergency in Romania on 15 March 2020, the manner in which the state authorities, central and local, acted created a strong impression that the authorities were unprepared. This was felt not only as regards proper legislative mechanisms suitable to institute the necessary measures to manage the pandemic and its medical, economic, social, and educational ramifications, but also from the viewpoint of poor public communication of these measures: ‘[t]he pandemic presented us with the picture of 30 years of failure in organizing and administrating the Romanian state. We have had to manage this pandemic with weak laws, sketchily designed, so in the most critical health moments we had to adjust the legislation on the fly. I call for a loyal collaboration between the fundamental state institutions. This is not the time for political disputes or inflated egos’.⁵⁸

63.  Two decrees were adopted by the President of Romania regarding the state of emergency. The first, Presidential Decree 195/2020,⁵⁹ establishing the state of emergency, entered into force on 16 March 2020, with a 30-day validity period.

64.  Presidential Decree 195/2020 stipulates which measures may be put in place to combat the pandemic (Annex 2)—measures which are intended to be taken throughout the country or just at the local level. These measures can be implemented gradually following an evaluation carried out by a governmental inter-ministerial committee, namely the National Committee for Emergency Situations. The measures are then imposed by order of the Department for Emergency Situations, subordinated to the Ministry of Internal Affairs. The Decree provided that the following rights could be restricted during the state of emergency, according to the gradual establishment of measures to combat the pandemic: free movement; the right to privacy and family; inviolability of the home; the right to education; freedom of assembly; the right to private property; the right to strike; and economic freedoms.

65.  Additionally, Decree 195/2020 provided for ‘first urgency measures with urgent applicability’ in the fields of public order, economics, health, labour and social protection, justice, foreign affairs, education, etc.

66.  The state of emergency was extended for another 30 days by the second decree, Decree 240/2020, which broadly contained the same provisions as the previous decree and was issued by the President of Romania,⁶⁰ coming into effect from 15 April 2020 having been approved by the Romanian Parliament.⁶¹ This decree contained approximately the same provisions as the previous decree. In addition, it noted that, at the time of its adoption, there was an intra-community spread in ten counties and the capital city of Bucharest. Of the ten counties, two administrative districts (sectoare) underwent total quarantine as ordered by the central executive authorities.

67.  Although the explosion of infection rates during the second wave of Covid-19 was much larger than the wave in the spring of 2020, the responsible public authorities, including the President of Romania, declared that a state of emergency would not be imposed and that a total lockdown did not need to be instituted.⁶² The statements of the politicians in power were made in the context of the approaching parliamentary elections for which opinion polls credited them with the first chance to win the elections with a good percentage.⁶³ The opposition, in contrast, criticized the refusal to postpone the parliamentary elections and the establishment of a total lockdown.⁶⁴

68.  The state of emergency was accompanied by provisions issued by legislative and administrative acts, in turn issued by the central executive authorities of the Government. This included acts that provided for criminal or administrative misdemeanour (contravention, contravenţie) sanctions. Thus, two emergency ordinances were adopted. According to the Romanian Constitution, EGOs have the rank of law in extraordinary situations that require their adoption by the Government (Article 115 of the Constitution). As a result, measures were imposed in the economic and budgetary field,⁶⁵ and also by amendments to the framework regulation of the state of emergency, especially by the imposition of stiff misdemeanour sanctions.⁶⁶ Other acts adopted by the executive authorities include 12 military ordinances issued by the Minister of Internal Affairs (for further details see Part IV.B below).

69.  A state of alert, unlike that of an emergency, does not have a constitutional status. Instead, its regime is provided by the legislator. In this sense, Parliament adopted Law 55/2020 that aims to regulate the gradual implementation of rules and measures required to prevent and combat the effects of the Covid-19 pandemic at a national or local level respectively.⁶⁷

70.  According to Law 55/2020, the gradual implementation of these measures is to be entrusted to the Government. The Government then orders said implementation by government decision (Hotărâre de Guvern, HG) for a period of up to 30 days, at the proposal of the Minister of Internal Affairs. This follows a cumulative analysis of risk factors, such as:

1. (a)  the magnitude of the emergency situation—the generalized manifestation of the type of risk at local, county, or national level;

2. (b)  the intensity of the emergency situation—the speed of evolution, recorded or forecasted, of the destructive phenomena and the degree of disturbance to the state of normality;

3. (c)  insufficiency and/or inadequacy of response capabilities;

4. (d)  population density in the area affected by the type of risk;

5. (e)  the existence and level of development of infrastructure adequate to manage the type of risk.

71.  Restrictive measures that may be imposed by the Government once the state of alert is established are listed by Law 55/2020. They include measures in the field of health, labour and social protection, transportation and infrastructure, education and research, sports, culture and worship, insolvency, and enforcement of criminal penalties. Additionally, Law 55/2020 provides for contravention sanctions in case of non-compliance.

72.  The state of alert was established by the Government by HG 394/2020 of 18 May 2020.⁶⁸ It began on 18 May 2020 and lasted for a period of 30 days, encompassing the entire country. Subsequently, the state of alert was extended every 30 days. The last extension to date was decreed by HG 967/2020 of 12 November 2020.⁶⁹

73.  In the acts issued by the Government on 16 July and 14 August 2020, restrictive measures were fewer and more lax.⁷⁰ However, they became stricter as a wave of infections descended upon the country in November of 2020.⁷¹

74.  Due to the increasing number of pandemic infections, more severe restrictions were decided through HG 935/2020 of 5 November 2020. Under these restrictions, the following measures were imposed:

1. (a)  face coverings were made compulsory in all indoor and outdoor public areas, regardless of the infection rate in the region;

2. (b)  all schools were switched to online classes exclusively, although afterschool centres and nurseries could stay open;

3. (c)  public and private institutions were required to redesign their operations so all employees who were able to work from home could do so;

4. (d)  companies with more than fifty employees were required to organize work schedules, by either arranging for telework or working from home or, where this was not possible, by scheduling their workflow so that employees would leave work in a staggered manner and thereby avoid overcrowding public transport (Article 11 of HG 935/2020);

5. (e)  all shops were to be closed by 9pm, except for home delivery units, pharmacies, and petrol stations;

6. (f)  a curfew was put in place, and special documents were required for any night travel.

75.  On 14 June 2021, the European Parliament and the Council of the European Union adopted the Regulation on the EU Digital Covid-19 Certificate.⁷² The EU Digital Covid-19 Certificate Regulation entered into force on 1 July 2021. Romanian citizens, as EU citizens, are now able to have their Digital Covid-19 Certificates issued and verified across the EU. According to this Regulation the EU Digital Covid-19 Certificate is recognized for crossing European Union Member States borders as a document proving vaccination, recovery from Covid-19, or a negative result from a RT-PCR test. The Digital Covid-19 Certificate is not a mandatory document and has exclusive applicability between the Member Countries of the European Union.⁷³

76.  Romanian national authorities are in charge of issuing the Certificate. The Certificate provides a standardised recognition of the holder’s status related to Covid-19 vaccination, recovery from Covid-19, or a negative test result.

77.  The EU Digital Covid-19 Certificate can be issued, upon request, to Romanian citizens from third countries (countries that are not members of the European Union), as well as their family members, under certain conditions—to provide reliable proof of vaccination and that the person has been vaccinated with a vaccine recognized/accepted by Romania, as published on the Romanian Ministry of Health’s website.⁷⁴

78.  Foreign citizens of a third country (non-EU) who do not have the ability to obtain an EU Digital Covid-19 Certificate, prove their vaccination by the document issued by the health unit that administered the vaccine, presented in the language of the country where the vaccine was administered and in English.

79.  Despite this, Romania adopted its own national classification of risk areas, hence travel restrictions for Romania are not based on the common ‘EU Traffic Lights’ map:

1. (a)  ‘Green’ areas—countries where the cumulative incidence rate of new Covid-19 cases in the last 14 days is less than or equal to 1.5 per 1000 inhabitants;

2. (b)  ‘Yellow’ areas—countries where the cumulative incidence rate of new Covid-19 cases in the last 14 days is between 1.5 and 3 per 1000 inhabitants;

3. (c)  ‘Red’ areas—countries where the cumulative incidence rate of new Covid-19 cases in the last 14 days is greater than or equal to 3 per 1000 inhabitants.

80.  The National Committee for Emergency Situations in Romania updated daily the list of countries/territories according to the cumulative incidence rate of Covid-19 according to the Romanian classification.

81.  Government Decision No 1090/2021,⁷⁵ due to the growing number of Covid-19 infections, deaths, and hospitalizations, introduced the following movement restrictions:

1. (a)  in all localities where the cumulative incidence of infections in the last 14 days is greater than 6 per 1,000 inhabitants and less than or equal to 7.5 per 1,000 inhabitants, the movement of persons outside the dwelling/household is prohibited on Fridays, Saturdays, and Sundays between 8pm–5am;

2. (b)  in all localities where the cumulative incidence in the last 14 days exceeds 7.5 per 1,000 inhabitants, the movement of persons outside the dwelling/ household is prohibited between 8pm–5am.

82.  The measure does not apply to drivers performing national and international transport of goods and passengers. Persons vaccinated against the SARS-CoV-2 virus (valid 10 days after completion of vaccination scheme), and persons who have recovered from Covid-19 (between 15 and 180 days after confirmation of infection) are exempt from this measure, providing proof of vaccination or infection. Persons who are not exempt and must leave their place of residence during this time must complete a self-declaration (in Romanian).

83.  According to the same Government Decision 1090/2021, under the same conditions of the accelerated growth of Covid-19 infections, activities in closed or open spaces are restricted or prohibited.⁷⁶ Thus, the organization and conduct of rallies, demonstrations, processions, concerts, or other types of gatherings in open spaces, as well as cultural, scientific, artistic, sports, or entertainment gatherings and activities in closed spaces are prohibited.

84.  However, some exceptions were provided, such as:

1. (a)  In closed or open spaces, sports competitions can take place with the participation of spectators up to 30%, 50%, or 75% capacity depending on the incidence of Covid-19 infections per 1000 inhabitants in the last 14 days in that locality. In all of these cases, participation is only allowed for persons who are vaccinated against the SARS-CoV-2 virus and for whom 10 days have elapsed since the completion of the vaccination schedule, persons who test negative for infection with SARS-CoV-2 virus from an RT-PCR test not older than 72 hours or the certified negative result of a rapid antigen test for SARS-CoV-2 virus infection not older than 48 hours, or persons in the period between the 15th and 180th day after confirmation of SARS-CoV-2 virus infection.

2. (b)  The activities of museum institutions, libraries, bookstores, cinemas, film and audio-visual production studios, performance and/or concert institutions, folk arts and crafts schools, as well as outdoor cultural events may take place under the same conditions as those mentioned in the case of sports competitions.

3. (c)  Under the same conditions, the activity of religious groups is allowed, including collective services and prayers, is carried out inside and/or outside places of worship, in compliance with the rules of health protection.

4. (d)  It is acceptable to carry out recreational and sports activities outdoors, but with a limited number of people (50, 30, or 10 depending on the cumulative incidence of infections in the last 14 days per 1000 inhabitants in that locality).

5. (e)  It is possible to organize private events (weddings, baptisms, festive meals, etc) with a limited number of participants, depending on the infection rate per 1000 inhabitants, but with the observance of health protection rules. In this case, only people who are vaccinated against the SARS-CoV-2 virus and for whom 10 days have passed since the completion of the vaccination schedule, people who show the negative result for SARS-CoV-2 virus infection from an RT-PCR test not older than 72 hours or the certified negative result of a rapid antigen test for SARS-CoV-2 virus infection not older than 48 hours, respectively, or persons in the period between the 15th and 180th day after confirmation of SARS-CoV-2 virus infection may participate. Inside the halls where such events are organized, if the infection rate is less than or equal to 3 per 1,000 inhabitants in that locality and ensuring a minimum area of 2 square metres for each person, the number of people is not limited.

85.  According to Government Decision 1090/2021,⁷⁷ access to public institutions—and economic operators with public capital—is limited to persons who can prove full vaccination (valid 10 days after completion of the vaccination schedule), persons presenting the negative result for SARS-CoV-2 virus infection from a RT-PCR test no older than 72 hours or the negative result of a rapid antigen test no older than 48 hours, and persons who have recovered from Covid-19 between 15 and 180 days after confirmation of infection.

86.  These measures also apply to the premises of private economic operators in which at least 50 people work simultaneously. The employees of the public institutions are exempted from the aforementioned measures.

87.  According to the Order of the Ministry of Education and the Ministry of Health,⁷⁸ at the occurrence of a confirmed case of Covid-19 in a preschool education group or pre-university education class, in-person courses must be suspended for 14 days.

88.  If the percentage of the aforementioned groups or classes with a confirmed Covid-19 infection exceeds 50% of the total groups or classes in the educational unit, in-person activity is suspended for a period of 14 days for the entire educational unit. The measure is ordered by the local authorities at the proposal of the management of the educational unit.

89.  In case of suspension of courses, the educational process continues online.

90.  Since the beginning of the Covid-19 pandemic crisis, the Romanian Government has published a set of recommendations on social conduct to prevent the spread of Covid-19: avoiding crowded areas; maintaining a distance of 1.5 metres between individuals; avoiding touching surfaces; using alternative methods of transport; limiting the use of banknotes and coins; and observing hygiene rules.⁷⁹

91.  Law No 55/2020 established the rule of social distancing inside shops and malls (Article 10(4)), as well as in the case of places of detention, arrest, and custody (Articles 53(5), 57(2), 60(1), 61(1)).

92.  Through the Joint Order of the Ministry of Education (No 5.338) and the Ministry of Health (No 1.082) of 1 October 2021, it was provided that in spaces in which educational activities are carried out, a social distance between schoolchildren of at least 1 metre must be ensured (Article 4(1)).

93.  On 22 May 2020, the Joint Order of the Ministry of Health (No 874/2020) and the Ministry of Internal Affairs (No 81/2020)⁸⁰ of 22 May 2020 provided, with the establishment of the state of alert by successive Government decisions (see above), the obligation of wearing a mask or face-covering during the state of alert, in closed public spaces, commercial spaces, and at work, under the conditions and in compliance with the sanitary measures of the national health authorities.

94.  The conditions under which wearing a mask is required and the spaces where it is mandatory to wear one have changed mainly due to the progressive increase over time in the number of Covid-19 infections.

95.  In the spring of 2021, with the increase in the number of Covid-19 infections, by Order No 699/67/2021 of 14 May 2021,⁸¹ amending Order No 874/2020, it was provided that starting on 15 May 2021 the obligation to wear a protective mask is established in closed public spaces, means of public transport, at work, commercial spaces, as well as in open public spaces, such as, without being limited to, markets, fairs, flea markets, commercial spaces, public transport stations, as well as in other areas with potential for congestion established by decision of the county/municipality committee for emergency situations. An exception has been made, namely that it is not mandatory to wear a protective mask for persons in closed workplaces, provided that a maximum of ten persons are present for whom 10 days have elapsed since the completion of the complete vaccination schedule and ensuring a distance of 1 metre between them, and access to the public or other workers is not allowed in those areas. This exception does not apply to common closed spaces.

96.  Subsequently, due to the worrying increase in the number of Covid-19 infections in the autumn of 2021, by Joint Order No 2.024/147/2021 of 5 October 2021,⁸² amending Order No 874/2020, it was provided that the wearing of a protective mask becomes mandatory in all open public spaces in localities where the cumulative incidence in the last 14 days is greater than 6 per 1,000 inhabitants. Persons carrying out activities, including sports, individually or together with the persons with whom they live are exempted from the obligation to wear a protective mask in open public spaces. Other exceptions can be established, at the proposal of public health directorates in the counties and the municipality of Bucharest, by decisions of the county and Bucharest municipality committees for emergency situations.

97.  Partial lockdown entails, in addition to the measures that may be imposed by the authorities, temporary quarantine measures. This takes shape over either an administrative territory or identified individuals, and relates to situations of epidemiological and biological risk. They are imposed exclusively for the protection of public health, but must abide by the rules regarding fundamental rights, freedoms of citizens, and public order, provided by Law 136/2020,⁸³ adopted by Parliament and entered into force on 21 July 2020.

98.  This legislative act, meant to bring clarity to the enforcement of the necessary measures to combat Covid-19 after prior clarifications made by the Constitutional Court through the decisions given and specified above, is important from at least two points of view, which are worth mentioning in this context.

99.  The first is related to some key concepts’ definitions, relating to the enforcement of partial lockdown measures by central and local administrative authorities. Article 3(a)–(c) of Law 136/2020 explains the notion of quarantine, as follows:

1. (a)  Quarantine of persons (Article 3(a)): physical separation of persons suspected of being infected from other persons, either at home or in another location declared by the quarantined person. The decision to enter quarantine shall be taken by reasoned, individual decisions of the respective public health directorate, which must contain information on the dates and issuer of the document, the names and identification data of the quarantined persons, the duration of this measure, and the option of appeal provided by law.

2. (b)  Zonal quarantine (Article 3(b)): a measure of physical separation of persons and activities, including restricting traffic within a pandemic area from neighbouring areas, so as to prevent the spread of the infection or contamination outside that area.

3. (c)  Isolation (Article 3(c)): a measure consisting of the physical separation of infected persons, even if they do not present conclusive signs and symptoms, at home or in another location declared by the person concerned, or in a health facility, in order to monitor their health status. The measure shall be taken with the consent of the persons, or by the reasoned individual decisions of the respective public health directorate, and after testing with an RT-PCR test or after signs and symptoms of Covid-19 virus infection, as defined by the Romanian National Centre for Surveillance and Control of Communicable Diseases (Article 4 of Order 1309/2020 of 21 July 2020).⁸⁴

100.  The criteria that are considered (listed above) for the different forms of quarantine presented by the legislator are further detailed in Order 1309/2020 issued by the Minister of Health.⁸⁵

101.  Quarantine of persons shall be imposed: (1) on persons who have come into direct contact with persons or at least one person confirmed as infected by Covid-19 by a positive result with the RT-PCR test; and (2) on persons arriving from countries and/or areas of high epidemiological risk, established as such by the National Public Health Institute (Institutul Naţional de Sănătate Publică (INSP) under the law.

102.  A zonal quarantine may be imposed when several criteria are met, such as: 14 days with a rise in infections in the epidemic of over 3 cases per 1000 inhabitants; insufficient sanitary staff; hospital bed occupancy in Covid-19 sections of over 90%; and non-compliance by the population with isolation at home.

103.  Isolation of persons diagnosed with Covid-19 by testing with the RT-PCR method or with signs and symptoms suggestive of Covid-19 infection shall be carried out as follows: (1) in health facilities designated by the Ministry of Health providing medical care to patients with Covid-19 or in buffer zones of other hospitals in the public or private health network, until confirmation of Covid-19 virus infection by RT-PCR test; (2) in an alternative location attached to a sanitary unit; and (3) at home or at a declared location, for asymptomatic patients, after clinical and paraclinical evaluation for a period of 14 days from the date of diagnosis.

104.  According to official data,⁸⁶ following the analysis of the criteria established by Order 1309/2020, over 80 localities were quarantined under the direction of the Head of Department for Emergency Situations (DSU) between the months of July and November 2020. The quarantine periods lasted for 14 days and, depending on whether the conditions were met, zonal quarantines were lifted after the 14-day period passed, or was extended.

105.  According to official information, 60 districts were quarantined on 24 November 2020. The districts in question can be found in the list publicly communicated by the central administrative authorities.⁸⁷

106.  Two of the first zonal quarantine measures taken by the central health authorities under Law 136/2020 were challenged.⁸⁸ The Bucharest Court of Appeal annulled said measures in both cases. They remained final, subsequent to the High Court of Cassation and Justice (ÎCCJ) dismissing the appeals.

107.  Subsequently, despite the instances of zonal quarantine experiencing exponential multiplication, measures were either not challenged, or such challenges were rejected by the courts. Two explanations are plausible:

1. (a)  citizens have agreed that quarantine measures are necessary for the public health; and

2. (b)  such restrictions on freedom of movement and other rights must be accepted in the joint interest of the community and every individual.

108.  The two measures were not well prepared before being published; citizens were disconcerted and did not receive an explanation on what would follow. Citizens were informed practically overnight that they could no longer leave the quarantined districts, even if these districts were residential ones on the outskirts of larger cities and the citizens living there commuted from home to work. The reasoning of the court decisions is relevant. Here is a short excerpt from the reasoning of the High Court of Cassation regarding the annulment of the local quarantine measure instated in the locality of Gornet:⁸⁹

1. (a)  ‘The court accepts that a situation of major risk to public health, such as a pandemic caused by a new virus, in respect of which there are no prophylactic possibilities or treatment protocols whose effectiveness have been demonstrated, necessitates the ability of the state to take measures to prevent and limit infection, which may involve some restrictions on the fundamental rights and freedoms of citizens, within the limits prescribed by the Constitution and the law … .’

2. (b)  ‘However, in order to benefit from a wide margin of options in the imposing of public health protection measures, such as zonal quarantine, the responsible state authorities must fulfil a duty of care, and ensure that the necessary data for choosing a certain measure (from those that the law makes available to them) has been correctly collected, analyzed and made use of. Concerning this situation, the standard by which the fulfilment of the duty of care is assessed must be a high one, precisely as a result of the significant restrictions that certain pre-emptive measures, such as the case of zonal quarantine, may bring to the freedom of movement and other fundamental rights of the citizens. It is the only way through which the proportionality of such public health measures to the situation can be ensured, and their absolute necessity be assessed, both conditions having to be met cumulatively so that the measures may be considered necessary in a democratic society and, consequently, be considered acceptable from the point of view of the rule of law and the observance of the constitutional order.’

109.  The High Court concludes that the central administrative authority failed to prove the existence of two cumulative conditions: (1) duty of care in assessing the need for adopting a measure, and (2) proportionality of the measures.

110.  On 17 November 2020, Dr Valeriu Gheorghiţă, an officer (Lt. Col.) in the Romanian Army, was nominated as the coordinator of the nationwide Covid-19 vaccination campaign.⁹⁰ Valeriu Gheorghiţă is an infectious disease primary care physician at the Central Military Hospital, Bucharest.

111.  On 4 December 2020, Mr Gheorghita announced three stages to put in practice the vaccination programme.⁹¹ According to the official vaccination strategy against Covid-19 developed by the National Committee for the Coordination of Activities on Vaccination against Covid-19—an inter-ministerial body directly subordinated to the General Secretariat of the Government and coordinated by the Prime Minister⁹²—vaccination in Romania would be carried out with the aid of a single online platform and would be comprised of three main stages:⁹³

1. (a)  the first stage is intended for all healthcare workers, both public and private, and for all social workers in the field of healthcare;

2. (b)  the second stage is for people at risk of developing severe forms of Covid-19, namely: people over the age of 65; those with chronic illnesses, regardless of age and according to the vaccine’s specifications; those classed as disabled, immobilized, immunosuppressed, and their carers; the homeless; and essential workers in the critical infrastructure of the state;

3. (c)  the third and last stage of vaccination is for the general public.

112.  According to the aforementioned strategy, essential workers are: (1) key staff for the functioning of State institutions (Parliament, the Presidency, Government, ministries, and institutions subordinated to them); (2) personnel in the field of defence, public order, national security, and judicial authority; (3) vital economic sector staff, including processing, distribution, and marketing of basic foods (bakery, dairy, meat, fruit, and vegetables), water plants and the purification, transport, and distribution of water, power plants and production, transmission, and distribution of electric current, gas production and transmission and distribution units, units of production, transmission, and distribution of liquid and solid fuels, units for the production, transmission, and distribution of medicinal products and sanitary materials, transport of persons and goods, including railway nodes, civil and military airports, and essential ports, communications (special telecommunications service, national radio, and television); (4) staff in educational establishments and nurseries; (5) postal and courier staff; (6) staff of religious groups; (7) media staff engaged in activities at high risk of exposure to Covid-19 infection (eg reporters in medical facilities); and (8) health and waste personnel.

113.  There is presently no statutory basis for contact tracing guidance. But the Ministry of Health and the national and local authorities have made recommendations in case of a person coming into direct contact with another person that has tested positive for Covid-19. This includes recommendations published on the official Romanian National Institute for Public Health on 4 January 2021 that include the following situations: a person living in the same household as a patient with Covid-19; a person who has had direct physical contact with someone infected by Covid-19 (eg a handshake without subsequent hand hygiene); a person who has had unprotected and direct contact with the infectious secretions of someone infected by Covid-19 (eg during coughing, touching handkerchiefs without gloves, etc); a person who has had face-to-face contact with someone infected by Covid-19 at a distance of less than 1.5 metres and for a duration of at least 15 minutes without wearing a protective mask; a person who has been in the same room (eg classroom, meeting room, hospital waiting room, etc) with someone infected by Covid-19 for at least 15 minutes and at a distance of less than 2 metres, without wearing a mask.⁹⁴

114.  According to this document, home isolation, which is required as soon as the direct contact status has been found, is recommended. It is recommended that the isolation be done safely (alone). If this is not possible, it is recommended that the person is isolated in a separate room from the rest of the family and uses a protective mask and rigorous disinfection when they use common areas. The local health authorities are immediately notified through the official public email addresses, in order to compare it with the information received during the epidemiological investigation from the person that tested positive. The contacts are established according to the methodology through the epidemiological investigation carried out on the person confirmed as infected. In case the newly infected person experiences a severe decline in health during the 14-day period (counting from the direct contact with someone infected by Covid-19), the emergency number 112 must be called.

115.  Persons who have received both doses of vaccine and for whom 10 days have passed from the administration of the second dose, are not required to enter quarantine anymore if they have come into direct contact with a person infected by Covid-19.

116.  According to Article 7 of Emergency Ordinance No 43/2020, rules are provided for the allocation from EU funds related to the ‘Human Capital’ operational program, of salary and transport expenses, health care equipment, as well as other categories of expenses for social and community assistance staff involved in supporting the elderly in home isolation or who face travel restrictions, persons with disabilities, and families caring for persons with disabilities, during the epidemic of Covid-19, and other identified vulnerable groups.⁹⁵

117.  However, there are no official statistics on who has accessed these funds and whether they actually benefited from this assistance.

118.  During the period of the state of emergency (March–May 2020), the authorities introduced tougher penalties for offences committed during that time,⁹⁶ as many citizens failed to understand the seriousness of the situation and to comply with the restrictions introduced by the Government.⁹⁷ The relevant legislation, as amended by the Government, and offences committed under the state of emergency are now punished more quickly and with harsher penalties.

119.  In a statement made to the press, the Minister of Internal Affairs, Marcel Vela, stated that between the months of March and April 2020, 308,859 civil penalties were imposed with fines incurred amounting to 600 million Lei (120 million Euro). In a study published by representatives of an NGO (EXPERT FORUM),⁹⁸ attention was drawn to the inconsistency of the data and explanations provided by the Romanian Police for their sanctioning policies. The study noticed great disparities among counties of the total value of sanctions applied.

120.  Subsequently, the Constitutional Court declared the EGO 34/2020 unconstitutional. Over 300,000 civil penalties for minor offenses, imposed by the authorities, would be annulled by the courts. Unfortunately, there is no official data showing whether the courts have indeed rendered void many of the penalties.

121.  Following this, after the initial legislative and administrative shortcomings were ‘fixed’ and the Parliament adopted the new law, the penalties for minor offenses continued to be imposed by the authorities in the new legislative conditions, as established by the Constitutional Court. According to a bulletin issued by the Ministry of Internal Affairs, centralized reports showed that between 6 and 14 November 2020, 66,821 administrative sanctions for minor offenses were imposed, amounting to 10,419,512 Lei (approximately 2,150,000 Euro), and 50 criminal cases, in which 54 persons were under criminal investigation, were in progress.⁹⁹

122.  The imposition of individual restrictive measures on persons, namely isolation, has also given rise to appeals to the courts by persons against whom medical authorities have ordered isolation.

123.  Regarding these individual decisions, the media raised concerns that the adoption of Law 55/2020 would result in tens of thousands of appeals to the Court. However, such fears did not materialize.

124.  There is no official centralization of data regarding the number of registered cases listing appeals lodged in objection to isolation measures. However, until 30 November 2020, 38 cases registered in courts were identified via a website which uploads all court decisions, anonymizing personal data with the help of a search engine.¹⁰⁰ Out of the 38, only eight cases were admitted, and consisted of actions made by persons against whom quarantine restrictions were imposed.

125.  However, it is probable that there are many more cases pending before the courts. What matters here is the courts’ reasoning used in order to admit or dismiss appeals made by people who have been put under quarantine.

126.  In dismissing the appeals of quarantined persons and upholding the quarantine decisions, the courts took into account the criteria for establishing quarantine, which were met by the isolation measures ordered by the medical authorities:¹⁰¹

1. (a)  the measure is ordered for a limited period of time, in a non-discriminatory manner, and in proportion to the factual situation that determines it;

2. (b)  the measure aims to prevent the spread of an infectious disease, dangerous to human safety and public health;

3. (c)  the measure should be instituted in order to protect the public interest and not to cause an imbalance between the need to protect public health and the imperative to respect the person's freedom.

127.  With regards to the decisions admitting the appeals, the reasoning was different and related to issues about the way in which the medical authorities ordered quarantine by individual confinement.

128.  Although the quarantine measures aim to prevent the spread of the Covid-19 virus to other people, the level of risk surrounding different circumstances of infection varies. In one appeal, the Court made the distinction between a person who has a higher risk of being infected with the virus by people who have spent time in a country where the cumulative incidence rate of new cases in the last 14 days per 100,000 inhabitants exceeds that recorded in Romania, and the lesser risk of contracting the virus in the case of each and every person that has a positive test for Covid-19 and is within the 90-day interval from the date of hearing. In the situation where a person falls into the latter category, the appeal was admitted, and the court has allowed the person’s appeal.¹⁰²

129.  Another court allowed the appeal because the quarantine decision ordered by the medical authority considered a list of States with a high risk of infection by Covid-19 (a so-called ‘yellow zone’) published three weeks before the entry into Romania of the person who challenged the measure of isolation.¹⁰³ The Court stated in its reasoning that, the day after entering Romania, that particular state (Belarus) was no longer in the yellow zone with high epidemiological risk.

130.  Information concerning compliance with public health measures was not available at the time this report was written.

Bogdan Iancu, Associate Professor, Dr. iur., LL.M. (Comparative Constitutional Law), University of Bucharest, Faculty of Political Science (Part I and co-authored Part III with H. Dumbravă)

Bogdan Dima, Dr. iur, Associate Professor in Administrative Law, University of Bucharest, Faculty of Law (Part II)

Horatius Dumbravă, Judge, Court of Appeals of Târgu Mureş, former member and former President of the Superior Council of Magistracy (Part IV, and co-authored Part III with B. Iancu)