The Constitutional Court of Romania (CCR) published on Thursday, on its website, the reasoning of the decision that establishes that there is a constitutional conflict between the Justice Ministry and the Presidency and that the Head of State must sign the decree dismissing DNA Chief Prosecutor Laura Codruta Kovesi.
Prior the publication of the reasoning, Constitutional Court judges convened behind closed doors to read the CCR decision that obligates President Klaus Iohannis to dismiss DNA Chief Prosecutor Laura Codruta Kovesi. The reasoning will also be published in the Official Journal, in line with the legal procedure.
Besides the reasoning of the decision adopted by a majority of votes, the document published on the CCR website also contains a concurrent opinion of constitutional judges Marian Enache and Simona-Maya Teodoroiu, as well as separate opinions signed by Livia Stanciu, Daniel Morar and Mircea Minea.
“One of the conditions for the attainment of the fundamental objectives of the Romanian state is the proper functioning of public authorities, with the observance of the principle of checks and balances, without institutional gridlocks. Likewise, Articles 146(e) of the Constitution does not confer upon the Constitutional Court only the prerogative of noting the existence of juridical conflicts of a constitutional nature but also that of solving these conflicts,” the Court’s reasoning reads.
Hence, the CCR decision also announced what measures must be taken so that this institutional conflict between the President and the Justice Minister would cease to exist, indicating to the Head of State the dismissal of the DNA Chief Prosecutor.
“Thus, regardless of the authority that generated the juridical conflict of a constitutional nature, it has the obligation, within the coordinates of the rule of law, to observe and comply with the things noted by the decision of the Constitutional Court. In this case, the Court notes that the fulfilment of the conditions regarding the regularity and the legality of the procedure indubitably results from the address through which the Romanian President refused to comply with the proposal to dismiss Ms Laura Codruta Kovesi from the office of Chief Prosecutor of the DNA. Consequently, the Romanian President is set to issue the decree dismissing from office the Chief Prosecutor of the National Anticorruption Directorate, Ms Laura Codruta Kovesi,” the substantiation reads.
The Constitutional Court decides:
“1. Notes the existence of a juridical conflict of a constitutional nature between the Justice Minister and the President of Romania, generated by the latter’s refusal to comply with the proposed dismissal of the Chief Prosecutor of the National Anticorruption Directorate, Ms Laura Codruta Kovesi.
“2. The President of Romania is set to issue the decree dismissing from office the Chief Prosecutor of the National Anticorruption Directorate, Ms Laura Codruta Kovesi. Final and generally mandatory. The decision will be communicated to the President of Romania, the Prime Minister and the Justice Minister, and will be published in the Official Journal of Romania, Part I,” the document, which has 133 pages, reads.
CCR: President blocked the minister’s competences without having this prerogative
In the reasoning of its decision regarding the institutional conflict between the President and the Justice Minister, the Constitutional Court shows that the Head of State assumed prerogatives that he does not have when he rejected the dismissal of DNA Chief Prosecutor Laura Codruta Kovesi, thus blocking the minister’s authority over the activity of prosecutors.
“Based on the analysis of the Romanian President’s address, through which he refused to comply with the proposed dismissal of National Anticorruption Directorate Chief Prosecutor Laura Codruta Kovesi, the Court establishes that the Romanian President noted the regularity and legality of the dismissal procedure, his only objections having to do with the advisability of the measure. In this context, the Court notes the existence of a juridical conflict of a constitutional nature between the Justice Minister and the President of Romania, generated by the latter’s refusal to comply with the proposed dismissal of the Chief Prosecutor of the National Anticorruption Directorate, Ms Laura Codruta Kovesi,” reads the CCR reasoning.
The Constitutional Court shows that, since President Klaus Iohannis had no objection regarding the regularity of the dismissal procedure, it means the procedure met the legality criteria, however the President assumed prerogatives he does not have.
“The President of Romania should have issued the decree dismissing from office the Chief Prosecutor of the National Anticorruption Directorate. Refusing to issue it, the Court is set to establish whether the President of Romania created a blockage in what concerns the exercise of the Justice Minister’s authority over the activity of prosecutors. In this sense, it can be said that, by assuming a ‘contra legem’ role, the President of Romania impeded the fulfilment of the Justice Minister’s own constitutional prerogative, blocking it without the Constitution giving him such a prerogative. Consequently, the President of Romania’s conduct of not exercising his prerogatives in line with the Constitution resulted in the Justice Minister’s impossibility to exercise the constitutional prerogatives conferred by Article 132, Section 1, of the Constitution.”
The CCR states that an institutional gridlock between the two authorities thus resulted, impeding the completion of the Justice Minister’s proposal to have Laura Codruta Kovesi dismissed.
“The Justice Minister’s authority over the activity of prosecutors imposes similar constitutional effects in regard to the act issued in connection with the prosecutor’s career, an aspect nevertheless refused by the President of Romania, who chose not to allow the Justice Minister’s proposal to follow its natural constitutional course, blocking it and thus creating an obvious situation of institutional blockage between the two authorities,” the reasoning reads.
CCR noticed the existence of a juridical conflict of a constitutional nature between the Justice Minister and the Romanian President on May 30
The CCR decided on 30 May that Romania’s President is to issue the decree to remove chief prosecutor of the National Anticorruption Directorate (DNA) Laura Codruta Kovesi from office, following the finding of a legal constitutional conflict determined by the head of state’s refusal to follow up with the Justice Minister’s request to remove the DNA head form office.
The plenary sitting of the CCR debated the request to solve the judicial constitutional conflict between the Justice Minister and Romania’s President, firstly, as well as that between the Government and Romania’s President, secondly, determined by the head of state’s refusal to follow up with the request to remove chief prosecutor of the DNA Laura Codruta Kovesi from office.
The Court decided that the Gov’t Prime Minister holds the right to notify the CCR for the settlement of a legal constitutional conflict.
In respect to the Justice Minister’s quality as part within the legal constitutional conflict, it was established that the latter is expressly nominated through the article 133, the paragraph (1) of the Constitution, which stipulates the following “Public prosecutors shall carry out their activity in accordance with the principle of legality, impartiality and hierarchical control, under the authority of the Minister of Justice.”
“The Court decided that, in case of the dismissal of the prosecutor from leadership positions, stipulated by the article 54, the paragraph (1) of the Law No.303/2004, the Justice Minister acts within some strict limits imposed by law, in the form of cases that objectively justify the dismissal of the prosecutor from a management position. The President of Romania, under the provisions of the article 94 letter c) of the Constitution, doesn’t have a discretionary power within the dismissal procedure, but a power to verify its regularity. It results that the prerogative of the President of Romania to revoke the prosecutor from a leading position is exclusively limited to a control regarding the regularity and legality of the procedure,” the CCR says.
In the CCR view, the President doesn’t have the constitutional authority to bring forth opportunity arguments in relation to the dismissal proposal initiated by the Justice Minister under the law.
“Or, in this respective case, Romania’s President refused to issue the dismissal decree of the chief prosecutor of the National Anticorruption Directorate (DNA) on opportunity grounds, and not on legal grounds, which created a blockage in respect to the Justice Minister’s exerting his authority over the prosecutors’ activity. Therefore, the conduct of Romania’s President, that of not exercising his authority according to the Constitution, determined the Justice Minister’s impossibility to exercise his constitutional authority granted by the article 132, the paragraph (1) of the Constitution, which determined a legal constitutional conflict,” the release mentions.
The CCR also shows that, taking into account the its jurispundence, it also established the constitutional conduct that must be followed in this case, namely the issuance by President Klaus Iohannis of the decree to remove chief prosecutor of the DNA from office.
In the official communiqué issued on May 30 announcing its decision on the existence of a juridical conflict of a constitutional nature between the Justice Minister and the Romanian President, generated by the Head of State’s refusal to comply with the proposed dismissal of the DNA Chief Prosecutor, the Constitutional Court pointed out that the Head of State is set to issue the decree dismissing from office the Chief Prosecutor of the National Anticorruption Directorate.
“The President of Romania is set to issue the decree dismissing from office the Chief Prosecutor of the National Anticorruption Directorate, Ms Laura Codruta Kovesi. The decision is final and generally mandatory and will be communicated, in line with Article 36 of Law no.42/1992, to the President of Romania, the Head of the Romanian Government, and the Justice Minister, and will be published in the Official Journal of Romania, Part I,” the Constitutional Court’s communique reads.
“The CCR decision capitalises on the constitutional principle according to which prosecutors carry out their activity under the authority of the Justice Minister. The Romanian President has no legal capacity to assess the professional or managerial competences of high-ranking prosecutors, unlike the Justice Minister, who has such competences, established both at a constitutional and infra-constitutional level,” Justice Minister Tudorel Toader wrote in a Facebook posting on the day of the CCR’s announcement.
On the other hand, President Klaus Iohannis was cautious in statements following the CCR decision, stating on Tuesday that he will wait for the CCR’s substantiation regarding the dismissal of the DNA Chief Prosecutor, adding nevertheless that prosecutors should not be “politically controlled” and that they are under the authority of the Justice Minister not subordinated to him.
“I’m waiting for the Court’s reasoning, which we will read until we understand it or until we understand something from it, after which I will state what must be done or, more accurately, what I will do. However, at this moment, I can tell you two or three things that obviously have to do with this topic. This Court decision apparently talks only about a very concrete issue of dismissal or non-dismissal of the DNA Chief Prosecutor. In reality, however, there are far more topics that appear, that are brought up and that are worth discussing. Namely, the statute of prosecutors. I for one am convinced, and will act accordingly, that prosecutors must obviously be independent. Prosecutors must in no case be politically controlled. Prosecutors cannot be subordinated to a politician, albeit a minister. Consequently, whatever we may do, Romania, as a state, must ensure the independence of prosecutors in order to guarantee an independent judiciary,” Iohannis said.
CCR notified the Venice Commission in connection with the virulent attacks launched against it following the decision that concerns Kovesi
On Tuesday, Constitutional Court judges took an unprecedented decision, notifying the Venice Commission, the General Secretariat of the Council of Europe and the President of the Conference of European Constitutional Courts about the attacks targeting the CCR following the decision that concerns Kovesi.
“The plenum of the Constitutional Court of Romania, convened on 5 May 2018, voted unanimously, in the presence of all its members, to notify the Secretary General of the Council of Europe, the European Commission for Democracy through Law (Venice Commission) and the President of the Conference of European Constitutional Courts in connection with the virulent attacks launched against the Constitutional Court, through which certain representatives of some public authorities and parliamentary parties have discredited and delegitimized the authority of this fundamental institution of the state – the guarantor of the supremacy of the Constitution – questioning the binding nature of its decisions,” the CCR communique remitted to MEDIAFAX reads.
At the same time, the aforementioned source points out that the recent actions endanger democracy and the rule of law.
“Even urges addressed to the population and the Head of State not to observe and not to implement the Constitutional Court Decision No. 538 of May 30, regarding the request for the settlement of the legal conflict of a constitutional nature between the Minister of Justice on one hand and the President of Romania on the other, and between the Romanian Government and the President of Romania in subsidiary, request formulated by the Head of Government. The Constitutional Court plenum considers that these actions are liable to endanger democracy, the rule of law and the functioning of constitutional justice,” the communique reads.
President to be censured via voters’ ballots or impeachment in case CCR decision is disregarded, Tudorel Toader states
Prior to the publication of the reasoning on the CCR’s website, Justice Minister Tudorel Toader stated again, on Thursday, at a press conference in Timisoara, that he does not believe that President Klaus Iohannis will disregard the Constitutional Court of Romania’s (CCR) decision on the dismissal of the DNA Chief Prosecutor. Nevertheless, he mentioned the sanctions that the non-observance of the CCR decision would entail, talking about the voters’ ballots but also about impeachment, referring to the latter without naming it.
“The Constitution says that… and the CCR jurisprudence says that we must all fulfil our obligations which stem from the fundamental law, based on the principle of cooperation and loyalty to constitutional values. I said it before and I express my firm conviction: I don’t believe the president of the republic, regardless who that is today, who that will be tomorrow or 7 years from now, I don’t believe he will give Romanians an example of non-observance of the fundamental law, because in that case why should the person that jaywalks be held accountable while someone else does not observe the Constitution?” Tudorel Toader stated.
In answering a question, he explained that, in case the CCR decision is disregarded, the legislation does not stipulate fine or prison time, but it does stipulate the obligation to observe the Constitution.
“Consequently, we don’t have fine or prison term, but we have the obligation to observe the Constitution and the sanctions – which aren’t the classical ones because in the country there is only one holder of this dignity –, are those that can stem precisely from the fundamental law. I don’t believe people will look favourably upon a potential conduct – which I said I doubt – of non-observance of a CCR decision, of non-observance of the Constitution. I don’t believe that,” the minister said.
The Justice Minister said that the voters’ ballots are “the supreme sanction.”
“After all, the supreme sanction, because even this power that we delegate, we divide the rule of law into three powers, this power stems from the people, the ones who give you power in the electoral process, and voters can censure you at that moment. You fined me for jaywalking, and we elect you for not observing the fundamental law?” Toader said.
Tudorel Toader also referred to impeachment.
“Besides this, there is yet another sanction, far more severe, but I don’t even want to pronounce the institution that you know and that was last used 6 years ago,” the minister said, referring to the impeachment procedures against Traian Basescu in 2012.
Reactions to Constitutional Court’s reasoning on chief prosecutor Kovesi’s removal from office
National Liberal Party ( PNL) leader Ludovic Orban on Thursday asserted that by the Constitutional Court of Romania (CCR)’s reasoning regarding the removal from office of the National Anticorruption Directorate (DNA) head, Laura Codruta Kovesi, the justice independence’s constitutional principle is violated.
‘In the past months we have been witnesses to the fathering of a toxic majority within the CCR by a law-scolded political clan that has one single target: by using the CCR, to crush the justice independence and put an end to any activity of the prosecutors regarding the high-level anti-corruption fight. Following the CCR reasoning, I’ve voiced a point of view, and yet in exchange, after analysing the publicly presented today’s reasoning. I’m triggering an alarm signal that things are a lot more serious in the motivation than in the decision itself. Practically, through the CCR argument, the constitutional principle of justice’s independence is violated, the prosecutors’ independence is violated, the prosecutors are turned into agents of the executive power and into menials of the Justice Minister that is politically nominated and can politically control, with the party interests’ in mind, the Public Service Office, the prosecutors’ offices and the prosecutors,’ Orban told a news conference at PNL’s seat.
Orban sustained that by all the points in the CCR reasoning, Romania switches ‘to the Soviet period, as well as to the time before its integration into the European Union.’
According to him, the CCR annuls the constitutional role of the Superior Council of Magistrates (CSM) and puts it outside the gear of the judiciary’s organization, ‘basically, leaving the decisions linked to the prosecutors’ activity at the minister’s will.’
The PNL president also reminded that Romania is still under the Cooperation and Verification Mechanism, whose reports clearly show the request for the prosecutors’ and judiciary’s independence, in their entirety.
Justice Cristi Danilet comments the CCR reasoning saying that an article of the Constitution ‘is unearthed’, according to which ‘the prosecutors do their job under the authority of the Justice Minister’, an article that has been there ever since 1991 based on which ‘the prosecutors would be subordinated to the minister as we speak.’
“The Minister is the only one that can nominate and the President can reject once, respectively propose the revocation and the President cannot deny it, from now on, but on legality reasons; there is talk of a ‘discretionary’ right of the minister. I could swear that there is no such thing in the Constitution; I knew that it is only the court that checks the legality; the decision says the President is doing the verification, and even the CCR! It is a decision for the prosecutors; but they say the President is losing any capability to decide upon the appointment/repeal nominations on other positions; truly, I don’t know what powers the President of the Republic has from now on. As regards the Kovesi case, there is no deadline to issue the repeal decree; but, they say the President can talk to the minister so the latter withdraw the proposal. I counted the votes: I found 4 to 5, and not 6 to 3,” justice Danilet said in his post on his Facebook page.
Former Prime minister Dacian Ciolos on Thursday night said that the CCR reasoning on the removal from office of the DNA head endangers the furthering of the anticorruption fight and Romania’s EU membership, considering that ahead of its accession, the justice independence was an issues that was insisted on, and now the CSM turns into ‘a background character’ at the CCR’s interpretation.
Ciolos stressed that through the same interpretation of the CCR, the Justice Minister’s role is strengthened, the latter thus subordinating the prosecutors, going beyond the exercising of an administrative authority.
The former PM deems that President Klaus Iohannis’s role is ‘to defend the Constitution’, in the light of the CCR’s reasoning.
The CCR justice Daniel Morar believes that President Klaus Iohannis and the Justice Minister have exercised their competencies as provided for by the Constitution and the law, without a conflict between the authorities, according to a separate opinion in the case of the CCR’s reasoning regarding the refusal of the head of state to follow through the proposal to remove from office the DNA head.
‘Each public authority has acted within their attributions and accomplished their attributions in accordance with the Constitution, so that the strife invoked by the Prime Minister regarding the refusal of the President of Romania to follow through the request to remove from office of the DNA head, Mrs Laura Codruta Kovesi, cannot be equated to a judicial conflict of constitutional nature between the Justice Minister, on the one hand, and the President of Romania, on the other hand,’ says Daniel Morar in his separate opinion.
According to Morar, the President carried out an assessment of the reasons for the removal from office invoked by the Minister of Justice from the perspective of their legality and firmness, and not from the opportunity of the removal measure.
The CCR justice Livia Stanciu says in the separate opinion through which she found that there is no conflict between powers in the case of rejecting the DNA’s head’s removal, Laura Codruta Kovesi that from the analysis of the answer sent by President Klaus Iohannis there results that the latter has carried out an assessment of legality and solidity of the reasons brought about by the Justice Minister.
‘We therefore find that both the President of Romania and the Minister of Justice have done their jobs as provided for by the Constitution and the law, without arrogating competencies which, according to the Constitution, belong to other public authorities, or rejecting the fulfillment of certain acts that were part of their constitutional attributions. Each public authority has carried through their attributions in compliance with the provisions of the Constitution, so that in this respect, the conflict conjured up by the Prime Minister regarding the refusal by the President of Romania to remove the DNA’s head from office cannot be equated with a constitutional judicial conflict between the Minister of Justice, on the one hand, and the President of Romania, on the other hand,’ said the CCR justice Livia Stanciu.