The President of the Constitutional Court of Romania (CCR) expressed his indignation with the fact that party-switching mayors are still in office. 552 mayors should have lost their tenures as early as one and a half years ago, after the CCR declared unconstitutional the government’s emergency ordinance that gave mayors the possibility of switching parties without losing tenures within a window of 45 days, an ordinance adopted before the 2014 elections.
Lawmakers are yet to consider the judges’ decision. The CCR President stated for Digi24 that the institution he leads lacks the levers with which to constrain the representatives to amend the laws declared unconstitutional.
“It was an absolutely inexplicable thing to say the law does not apply for 45 days. We don’t have means of constraint. As far as I know, failure to respect the decisions of the Constitutional Court is punishable by jail time in only one country, and not a very democratic country, I’m talking about Russia,” the CCR President stated.
Asked whether party-switching mayors should lose their tenures, Augustin Zegrean answered affirmatively.
“Yes, they broke the law, which could not have been suspended. If nobody did anything. Legislatively there is no solution. The person who votes has the power,” the head of the CCR stated.
In Europe, malfeasance in office is punishable by jail time in 12 other countries; enunciation can give rise to interpretations
CCR President Augustin Zegrean stated that in Europe malfeasance in office is punishable by jail time in 12 other countries, however he admitted that the current enunciation of the Romanian law can give rise to interpretations.
He pointed out that malfeasance in office does not represent a small legal stipulation but a very important one, Romania having it defined in two laws – both in the Criminal Code and in Law no.78/2000.
“This is fairly complicated, but we haven’t adopted any decision yet. Things are in the process of being analysed at the Court. We really took these things into consideration and analysis. We also have a document authored by the Venice Commission, at the request of the European Parliament, of the Council of Europe, not of the EU, on this topic – regulating abuse of power, malfeasance in office. Preoccupations in this domain exist in all countries. In Europe, as far as we checked and noticed, there are 12 other countries that punish malfeasance in office by jail time, the rest do not. Meaning they do not punish it by jail time. There are countries in which they are forbidden from holding public office for a certain period of time, but in our case the former option was chosen. In our case, as far as I know, this felony was introduced in the Criminal Code in the communist era and it has remained there ever since,” the head of CCR stated on Sunday on Digi24.
Referring to the notifications the CCR received concerning the unconstitutional character of the stipulations on malfeasance in office, Zegrean said that there are several case files that will be analysed but that the notification discussed in the public space was not filed by former DIICOT Director Alina Bica but by two other persons involved in the case.
He pointed out that as CCR judge he cannot state whether malfeasance in office is excessively defined in the Criminal Code. However, asked whether the enunciation is appropriate or vague, the CCR President admitted that this issue could be discussed.
“It can give rise to debate, it can give rise to interpretations, because the Criminal Code defines the felony as such and establishes a punishment, while Law 78 is basically an aggravation of the punishment stipulated by the Criminal Code and so one could ask whether the definition is the one in the Criminal Code and Article 13, Paragraph 2 is an aggravation to the Criminal Code. If it is the latter then it should be included in the Criminal Code too. Here is the problem – do we have two malfeasance in office felonies defined or does one represent the definition and the other the aggravation,” the CCR President explained.
Referring to the need to censure this felony in today’s Romania, he pointed out that establishing and defining felonies is the exclusive prerogative of the legislator.
“Nobody can force him to censure, or not to censure. (…) It’s not our problem. We only have to say whether the Constitution is respected or not. If we were to take any felony, we cannot analyse and say it does not respect human rights because a punishment for a given felony has been established. It is not the duty of the ordinary judge, nor the duty of CCR judges to say whether a deed should be incriminated or not. (…) Now I don’t think any breaking of the law on the part of a civil servant can be censured as malfeasance in office. Of course, they have to be analysed on a case-by-case basis. In fact, if we are to read in good fate the definitions included in both the Criminal Code and the law, things are fairly clear – of course they don’t like being arraigned and having to answer for their actions in a criminal case. Who would?,” he emphasised.