In a Decision issued in 2023[1] (the detailed reasoning of which was published only in 2024), the Constitutional Court of Romania examined, among others, the possible violation of the right to a healthy environment (that is protected under Article 35 of the Constitution of Romania) from an interesting perspective, which somewhat raised the issue of heritage protection as well.
The constitutional review was carried out regarding draft law No 321 of 2023, which provided for amending and supplementing the legislation on the legal status of the Dacian Fortresses of the Orăștie Mountains. These Fortresses are part of the UNESCO World Heritage List, and the local authorities intended to make some investments to conserve the assets. In its opinion, the Joint Standing Committee of the Chamber of Deputies and the Senate for relations with UNESCO emphasised that the amendments aimed to transfer the Dacian Fortress of Grădiștea de Munte Sarmizegetusa Regia to the public domain of Hunedoara County.[2] The proposed amendments were thus essentially intended to facilitate the conservation work to be carried out. For this purpose, the draft law provided for the removal of a significant area of forest from the national forest fund.
Although the draft law contained only one article, the President of Romania initiated an objection of unconstitutionality (ex ante review) on all three points of this article. Nevertheless, only the first point of the article is of particular relevance for the purpose of our analysis, which provided that, by derogation from the relevant provisions of the Forestry Code, the national forest, on which the site area of the Dacian Fortresses of the Orăștie Mountains (i.e., the exact area on which the Fortresses are located) and the protection area (i.e., an area located next to the site area) are located, shall be permanently removed from the national forest fund, without payment or due compensation. In his objection of unconstitutionality, the President of Romania, regarding this provision, pointed out that according to the explanatory memorandum of Law No 23 of 2020, which was to be amended, only those lands that belong to the site area should be removed from the national forest fund. Thus the projected amendment, on the one hand, rendered the legal norm unforeseeable [thereby violating the principle of legality enshrined in Article 1 (5) of the Constitution] and, on the other hand, by not using a clear wording, proposed to remove a significant area of forest (335 hectares) from the national forest fund, which was contrary to the original intention of the law, namely, “the removal of fallen and diseased trees, which could endanger the condition and integrity of the monument and the safety of tourists.”[3] At the same time, the President of Romania, noted that the right to a healthy environment is opposable to the State, which, inter alia, is responsible for ensuring the necessary legislative framework for the exercise of this right. In this regard, “the owners of forest fund, non-forest vegetation and grassland, as well as any natural or legal person carrying out an activity on such fund, are under an obligation to maintain the forested area of forest fund, forest vegetation outside forest fund, including mountain pines, bushes and existing grassland, and to comply with the forestry regime, in accordance with the provisions of the legislation on forestry and environmental protection.”[4]
As a conclusion of this objection of unconstitutionality, the President claimed that, although the intention of the legislator, i.e. the preservation of the archaeological sites in the area of the Dacian Fortresses, was legitimate, the complete removal of the site area and the protection area, without any compensation, was not an appropriate and necessary measure for achieving that aim. Thus, the legislative measure “created an imbalance between the general public interest, represented by the preservation of the sites of the Dacian Fortresses, and the individual interests of persons concerning the right to health protection and the right to a healthy environment.”[5]
The Constitutional Court, in examining the objection of unconstitutionality, held that the State does indeed have a positive obligation to provide a legislative framework that guarantees all persons the right to a healthy and ecologically balanced environment and the duty of every person to protect it. On this basis, the Constitutional Court underlined that the legislature must regulate in accordance with the protection of the environment even when it is legislating in order to promote economic interest.[6]
Further, the Constitutional Court applied the proportionality test to determine whether the restriction of the right to a healthy environment was proportionate to the aim pursued. On the one hand, the Constitutional Court held that the “permanent removal from the national forest fund of the site areas and protection areas pursued a legitimate aim, namely the conservation of the archaeological sites in the area of the Dacian Fortresses. From this point of view, the contested legal provisions constituted an appropriate measure, being capable, in abstract and objective terms, of fulfilling the legitimate aim pursued.”[7] On the other hand, “the removal from the national forest fund, without any payment or compensation, of the site areas and protection areas in their entirety was not a necessary measure to achieve the aforementioned purpose. Thus, taking into account the significant extent of the area of land concerned and the absence of objective criteria for the phasing or delimitation of the areas essential for the protection of the monuments, the contested legislation cannot be regarded as necessary for the conservation of the archaeological sites in the area of the Dacian Fortresses.”[8] On this basis, the Constitutional Court found that the chosen legislative solution does not satisfy the requirements of the minimum interference test and therefore violates the right to a healthy environment enshrined in Article 35 of the Constitution.[9]
Before a brief analysis of the Decision, it is salient to point out that the Constitutional Court did not only find the violation of the right to a healthy environment but also considered that the contested draft law was contrary to other provisions of the Constitution. At the same time, the most noteworthy point of the Decision comes from the examination of the possible “clash” between the right to a healthy environment and the protection of heritage. In examining these issues, the Constitutional Court, as one can notice, concluded that the permanent removal of site areas and protection areas from the national forest fund is an appropriate measure to protect an asset included in the UNESCO World Heritage List. However, the complete removal of 335 hectares of forested areas is not considered to be necessary to achieve heritage protection. Moreover, according to the conclusions of the Constitutional Court, these measures cannot be considered to constitute minimum interference. By making these findings, the Constitutional Court sought to guarantee both the right to a healthy environment and the protection of heritage, yet it found the contested legislative solutions to be unconstitutional. At the same time, one can deduce from the above reasoning that an appropriately planned removal from the national forest fund of forest land which is not so extensive and is adequately delimited could constitute an opportune measure. Thus, the legislator must in any event pay particular attention to respecting proportionality and ensuring the least possible interference with nature.
[1] Decision No 726 of 2023 of the Constitutional Court of Romania. Published in Official Gazette No 510 of 2024.
[2] Opinion of the Joint Standing Committee of the Chamber of Deputies and the Senate for relations with UNESCO, available in Romanian at: https://www.cdep.ro/comisii/unesco/pdf/2023/av321.pdf (accessed: 28.12.2024).
[3] Decision No 726 of 2023 of the Constitutional Court of Romania. Reasoning 3–5.
[4] Ibid. Reasoning 9.
[5] Ibid. Reasoning 10.
[6] Ibid. Reasoning 41.
[7] Ibid. Reasoning 45.
[8] Ibid. Reasoning 46.
[9] Ibid. Reasoning 47.
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