CCR: CSM not impeded by Government to carry out constitutional attribution

The Government didn’t impede the Superior Council of Magistrates (CSM) to perform a constitutional attribution by adopting the Government Emergency Ordinance (GEO) No.13/2017 regarding amendments to criminal legislation, the motivation of the decision through which the Constitutional Court of Romania (CCR) established that there wasn’t any judicial conflict of a constitutional nature between the executive authority and the judicial authority reveals.

“The Court established that the adoption of the GEO No.13/2017 for the amendments and additions of the Law No.286/2009 regarding the Criminal Code and the Law No.135/2010 regarding the Criminal Procedure Code didn’t generate any judicial conflict of a constitutional nature between the executive authority, namely the Government of Romania on one hand and, on the other hand, the judicial authority, namely the CSM, because the Government didn’t impede the judicial authority, represented by the CSM, to carry out a constitutional attribution, but acted intra vires, exercising its own competency conferred by the provisions of the article 115 of the Fundamental Law,” the motivation, published on Thursday on the CCR website reveals.

The Constitutional Court took note that the Government doesn’t have the constitutional or legal obligation to request the opinion of the CSM in other aspects except the activity of the judicial authority, and the CSM is not legally authorized to issue such opinion

“In the current matter (…) the Court noticed the fact that the authors of the notification, through the critics they formulated, don’t take into account the legal and constitutional provisions regarding the competency of the CSM, nor the jurisprudence of the CCR regarding the pre-approvals that this public authority is empowered to issue. (…) The courts, the Public Ministry and the CSM, which are components of the courts (…) have the constitutional mission to bring forth justice (…), to represent society’s general interest and to defend the rule of law in the judicial activity (…), and to perform the role of guarantor of justice’s independence, respectively (…), and certainly not a role in the activity of elaborating normative acts, by participating in the legislating procedure,” the motivation mentions.

The CCR assessed that the CSM, as a component of the judicial authority having a role of guaranteeing the independence of justice, cannot be transformed into a consultative body of Parliament or the Government, as legislative authorities, because the “constitutional values such as the rule of law or the principle of the separation and balance of powers within the framework of constitutional democracy” could be affected.

In respect to the notification regarding a conflict of a constitutional nature between the Government and Parliament, the CCR established that the Government’s decision to adopt the GEO No.13/2017 cannot be considered an act of arrogation of powers, prerogatives or competencies that belong to Parliament.


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