The Superior Magistracy Council (CSM) has notified the Constitutional Court (CC) yesterday, asking it to solve a constitutional conflict between the judicial authority and the government over the modification of the procedure of appointing the Romanian judge at the European Court of Human Rights (ECHR). The note that the CSM sent to the CC is signed by CSM President Oana Schmidt Haineala. “It was considered that by changing the mechanism of appointing the Romanian judge at the ECHR through an emergency ordinance the government affected the principle of separation of powers and that of checks and balances, given the fact that a fundamental prerogative of the Superior Magistracy Council as guarantor of the independence of the judiciary – as stipulated by Article 133, Paragraph 1 of the Romanian Constitution – was rendered devoid of substance,” a CSM communiqué reads. CSM considers that modifying this mechanism through an emergency ordinance violates the provisions of Article 115, Paragraph 6 of the Constitution, according to which emergency ordinances cannot be adopted when it comes to constitutional laws, cannot affect the regime of fundamental state institutions, the rights, liberties and duties stipulated by the Constitution, electoral rights and cannot introduce measures of forcefully bringing goods into public ownership. Premier Victor Ponta’s reply was not late in coming.
The Head of Government stated yesterday that most European countries propose a judge at the ECHR through government procedure because in this case there is no “monopoly” or the obligation for that person to be a judge by trade. “One can only sue the state at the ECHR, there are no private lawsuits. One has access to the ECHR when one is dissatisfied with the judges’ decisions, so from this point of view there is nothing wrong for our representative at the ECHR to be a judge, but there is also no obligation for him to be a judge,” Ponta said, pointing out that Corneliu Barsan, Romania’s current representative at the ECHR, is a professor of law, not a judge.
The Premier pointed out that in his opinion it is normal for the Constitutional Court to be notified when the government and the CSM disagree and gave assurances that he will respect any decisions taken by the CC. Prior to making that statement, Ponta announced the members of CSM yesterday, during the CSM meeting that was about to discuss the procedure of nominating Romania’s candidates for the office of ECHR judge, that he had a talk with President Traian Basescu on this issue and both noted the fact that the problem has to be solved in time. “I noticed the problem and then I talked with the President, we both noticed the problem,” Ponta said. At the end of the meeting the Premier insisted, in a statement for the press, that this does not entail the existence of “a new agreement” with the Head of State, adding that the President sent a letter to the Ombudsman on this issue too. We remind our readers that the Premier announced on Tuesday that he asked the Ombudsman to notify the CC in order for the latter to clarify who has the prerogative to appoint Romania’s judge at the ECHR, namely a government commission or the CSM.