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May 16, 2021

President of ICCJ Cristina Tarcea on abrogation: Not harmonizing with CCR doesn’t pose any problems to the courts

President if the High Court of Cassation and Justice (ICCJ), Cristina Tarcea, stated on Sunday in Parliament that abrogating the GEO no.13 is the solution that everybody wants, mentioning that the parliamentary procedure is the most recommended in order to transpose the CCR decision on abuse of office into the legislation.

“Prorogation means adjournment, both in common and legal terms, therefore a prorogation would not make anything else than prolonging the moment of entering into force of the GEO’s provisions. Abrogation means that GEO no.13 will cease to produce effects from all the points of view, from the moment when the abrogation act will enter into force” Cristina Tarcea stated regarding GEO no.13.

She stated that abrogation would cancel the substantive law rules, but the rules of procedure, of immediate application (the denouncement – e.n.) would produce their effect from the date of their publication in the Official Journal until the date of the GEO’s abrogation.

“The discussion is quite technical. GEO no.13 was related to rules of procedure and rules of substantive law. The rules of procedure were related to the amendment of the Criminal Procedure Code, and the rules of substantive law were related to the amendment of the Criminal Code. The rules of procedure shall apply immediately. As for amending the Criminal Code, the GEO provides that they enter into force 10 days after their publication in the Official Journal. For the substantive rules that haven’t produced their effect yet, there is no risk to produce their effect if the abrogation solution will be adopted” Tarcea answered, being asked if abrogation will cancel all the GEO’s effects.

She also explained the status of the denouncement in the GEO.

“The denouncement is a rule of criminal procedure that applies immediately. Therefore, in the February 1 period – the date when the entire GEO will be abrogated, the provisions of the GEO no.13 will produce their effects, and after the abrogation, the old provisions will be applicable again” Tarcea argued.

Asked what happens to the cases grounded only on the six-month denouncement, if they will be reinstated pending, the President of ICCJ stated that nothing prevents any person who made a denouncement “available under one law, to make it available under another law”.

Asked which of the abrogation or prorogation of the GEO would be preferable, Tarcea said that she will give an answer of common sense.

“You ask me about an issue of opportunity, and I wouldn’t like anybody to criticize the judiciary that it interferes in the executive or legislative power. I would like to give an answer of common sense. I believe that everybody wants this, an abrogation”, answered the President of the High Court.

Tarcea also explained that regulating by GEO can be made only in emergency situations, which was not the case of the CCR’s decision related to the abuse of office.

“CCR’s decisions are of different categories, there are decisions by which the unconstitutionality of a normative act or of a legal text is found, and there are interpretative decisions. All I can say is that when the legislation didn’t allow a CCR decision to be applied, the adopted solution was the GEO, even the High Court requested the enactment through GEO. Recently, when following a CCR decision, the legal status of the appeal in cassation has been amended, since we had no procedure and we simply had no instrument to apply that decision, we requested the enactment through GEO, but the legal texts that are now in question are based interpretative decisions of CCR, therefore as long as CCR said that regarding the abuse of office we have to consider the legal provisions, nothing prevents the judge to apply this decision of CCR and to appreciate what was breaching the law and what was not. Since the discussions are very technical, everything must be resolved in parliamentary procedure and observing all the provisions of the Law no. 24/2000 on the legislative technique, which provides a previous procedure of consultation and transparency” Tarcea detailed.

According to her, when the High Court was consulted, its point of view was that this is not the way to legislate.

“Constitution entitles the Government to issue GEOs in special situations, leaving aside the situations of crisis, war, earthquake, flood. A special situation is when there are no mechanisms or levers by which CCR decisions can be applied, which is not the case”, the President of the High Court mentioned.

Tarcea added that there are CCR decisions that have not been transposed into the legislation, but which are taken into account.

“Law no. 47/1992 doesn’t make any difference, therefore it would be legal and optimally for the legislative and executive power to comply with the obligation to legislate within 45 days in all the cases, regardless of the nature of the CCR decisions. (…) The CCR decision is binding for all the institutions and courts, and even if there was no law intervening on the legal text that is criticized in constitutional terms, the courts are obliged to do it. There are CCR decisions since 2009 and 2010, especially in civil matters, there are much older CCR decisions that have not been applied through a legislative amendment, but which haven’t caused any problem to the courts to apply them” Tarcea answered, when asked if there is mandatory to issue a law in order to harmonize the CCR decision with the law.

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