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October 27, 2020
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CC: Senate must validate 8 out of the 11 magistrates elected in the CSM

In the case of the three others (judges Lidia Barbulescu and Dan Lupascu, and prosecutor Dan Chiujdea), elections must be resumed and finalised, with respect to the initial mandates.

The Constitutional Court yesterday made public the motivation of its January 25 verdict regarding the non-constitutionality of the Senate’s decision made on December 22, 2010 that validates the elected members of the Superior Council of Magistrates (CSM), Mediafax reports. According to the document posted on the institution’s internet site, CC ruled that the retroactive character of Law 317/2004 on the CSM, re-published by the Official Gazette (MO) of Romania, Part I, No. 827 of September 13, 2005, provides that “CSM members are elected for a 6-year term, without possibility to be re-elected.” In other words, the retroactive character of this law (Law 317/2004 on the CSM) refers to modifying a situation of the past, rather than a legal situation in the future, so only 8 of the 11 judges and prosecutors elected in the new CSM may be validated by the Senate. “Given the constitutional condition that refers to how CSM is organised and operates, until the moment of the elections for the three dignities (judges Lidia Barbulescu and Dan Lupascu, and prosecutor Dan Chiujdea) that resulted in the condition of non-constitutionality, the Senate has the constitutional obligation to validate the other elected members, in full observance of the law,” reads the motivation of the Court verdict.


In the same document, CC rules as non-constitutional the Senate’s decision on the election of civil society representatives in the CSM, because it was issued without previously checking the legal conditions, mainly those referring to interdictions and incompatibilities. The decision targets the rector of the ‘Dimitrie Cantemir’ Christian University, Corina Dumitrescu, and the executive director of Transparency International Romania, Victor Alistar.


Commenting on the decision motivation, Senate Speaker Mircea Geoana said in a press release yesterday that the house’s Standing Bureau will analyse the situation in its first session, most likely next week.


DIVERGING OPINIONS IN THE CC


Some CC judges disagree with the decision adopted by the majority of the CC. Judges Ion Predescu, Acsinte Gaspar and Puskas Valentin Zoltan opposed the CC verdict on the validation of the new 11 members of the CSM. They claim that, through legal modifications, CC has obtained the competence to pronounce itself over all the decisions made by the Parliament, which would turn it into a ‘super-Parliament.’ The opposing judges also consider as inadmissible the note submitted last year by 30 PDL senators, who asked CC to invalidate some elected members of CSM. The debates focused on various issues, which were partly solved, and the solutions reflected in the adopted decision do not represent constitutional dispensations.


On the other hand, CC Judge Iulia Motoc supports the verdict that admits the non-constitutional character of the decision made by the Senate. According to the judge, “the motivation of the aforementioned decision should explain several aspects related to the competence of the Court to control the constitutionality of the decisions made in plenum by the Chamber of Deputies, the Senate, and the joint Houses of the Parliament, as well as the way the CSM is constituted and operates.” Motoc believes it should have been “useful to bring legal examples, as this was the first decision of CC with this competence.”

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