The Constitutional Court of Romania (CCR) admitted on Monday the notification concerning a conflict between state institutions, notification that Senate Speaker Calin Popescu Tariceanu filed after the National Anticorruption Directorate (DNA) started investigating the drafting of government emergency ordinance no.13 (GEO 13).
CCR President Valer Dorneanu (photo) said that the investigation into the drawing up and adoption of the controversial emergency ordinance, GEO 13, had upset the proper activity of the Government.
“The court believes that the proper activity of the Government as well as the relations that must exist between the three branches of government – the judicial, the executive and the legislative – have all been upset,” Dorneanu said after the Court met to discuss a complaint against the DNA’s probing of the ordinance.
He added that the court ruled by a “significant majority.”
“There is a conflict between authorities when a branch of government assumes competences, powers that belong to a different branch,” Constitutional Court President Valer Dorneanu stated after the debate.
The CCR President considers that such a juridical conflict exists in the case debated by the Court. “Had the prosecutor’s office (the DNA – editor’s note) limited its action to verifying whether some crime was concretely committed in relation to those actions, things would have taken a natural course, without the appearance of a conflict. The DNA started an action that stood out through searches conducted at the Justice Ministry, hearings from the smallest to the highest [levels] concerning the way a legislative act was adopted. It is adopted in certain conditions and it’s a prerogative delegated by the legislative authority. (…) The DNA started to look to what extent the conditions of an OUG were met, whether all reports were received, things that exceed the DNA’s prerogatives,” Dorneanu said.
He pointed out that verifying whether the conditions for adopting an emergency ordinance were met is a Constitutional Court prerogative, not a DNA prerogative, and that the Government’s right to decide the advisability of legislating was infringed. Dorneanu also invoked a Venice Commission document that points out that “criminal probe procedures cannot be used to censure political disagreements.”
“We consider that the proper activity of the Government was perturbed and the relations that must exist between the legislative, executive and judicial branches were upset,” Dorneanu added.
He pointed out that the DNA not only substituted the Constitutional Court through its actions but also “perturbed” the Government’s activity.
“The Government’s right to appreciate the advisability of legislating has been infringed. In its ordinance to start the criminal probe and in other statements, the prosecutor’s office (the DNA – editor’s note) says that the adoption was not necessary, it was not necessary to amend the contents of the Criminal Codes which were declared unconstitutional. (…) This falls under the Government’s prerogatives,” the CCR President stated.
“DNA virtually embarked on checking to what extent the conditions for the passage of an emergency ordinance had been met; to what extent the emergency condition was there; to what extent the situation could have been solved otherwise, and whether the emergency was justified or not. It also checked whether all the reports from the Legislative Council and the Supreme Council of Magistrates (CSM) had been issued or not; all that exceeds the powers of the DNA. Such checks are performed by the Constitutional Court as part of constitutionality checks. On the other hand, all that was done was done as the legislative process was going on. The ordinance had already been submitted to Parliament, which could have passed it or defeated it, and all this was happening at the exact same time. Thus, the court believes that the proper activity of the Government as well as the relations that must exists between the three branches of government – the judicial, the executive and the legislative – have all been upset,” explained Dorneanu.
JusMin to CCR: DNA has exceeded its powers by investigating GEO 13. Serban Nicolae: I wouldn’t be surprised if the Court will be also investigated
Justice Minister Tudorel Toader claimed on Monday in front of the Constitutional Court of Romania (CCR), during the hearings on the existence of a constitutional conflict between the Public Ministry and the Government regarding the investigation related to GEO 13, that DNA has exceeded its powers by checking the legality and the opportunity of an ordinance, asking the CCR to state measures to prevent such situations also in the future.
CCR has heard the parties in the complaint of the Senate’s President Calin Popescu Tariceanu, regarding the existence of a legal and institutional conflict of a constitutional nature between the Public Ministry and the Government, in the investigation related to GEO 13.
The Chairman of the Legal Committee, Serban Nicolae, representing the Senate, namely the author of the complaint, claimed that there are “pressures” on the Government made by the investigation of the National Anticorruption Directorate (DNA).
“I have my opinions, and I expressed myself on acts of professional illiteracy of certain investigation bodies. The serious matter that has to be clarified by CCR is the possibility to use forms of pressures in the legislative process, by a criminal investigation”, stated the Senator.
He warned that, given the circumstances, the next to be investigated could be exactly the judges of the Court, who issued the decision explaining the abuse of office. “I wouldn’t be surprised, seeing a recent statement, if the next institution in relation with whose documents criminal investigations are started will be exactly CCR. I have recently found out that a CCR decision lets Romanian people without defense”, he said.
Serban Nicolae explained that prosecutors cannot intervene in the Government’s decisions, regarding the legality and the opportunity of issuing normative acts. He criticized that the DNA investigation speaks about favoring the perpetrator, saying that GEO 13 is only a matter of applying the most favorable law, which cannot mean, in a state of law, favoring the perpetrator.
The Senator also stated that now the legislator are “scared” and they are not allowed to harmonize the laws with the CCR decisions. “I am not a shy guy, but it’s hard to find solutions to implement the CCR decisions, some of them issued even after the Decision no.405 (on the abuse of office – e.n.), because they can be interpreted anytime as more favorable criminal laws, leading us to the rudimentary, superficial conclusion that there is a favoring of the perpetrator”, he stated.
In his turn, JusMin Tudorel Toader, who represented the Government, stated that there is a legal conflict of an institutional nature between institutions. He said this is a matter “of principle”, namely the possibility for the prosecutors to investigate “the legality, the opportunity and the circumstances of issuing a normative act”.
“The Public Ministry has no political role, it has no role in the legislative process, and according to the conclusions I submit, it doesn’t control the procedure of adopting these normative acts from any point of view”, he stated.
The representative of the Public Ministry, Iuliana Nedelcu, has criticized the arguments invoked by Serban Nicolae and Tudorel Toader. Firstly, she challenged Calin Popescu Tariceanu’s right to issue such a complaint, given that the Senate wasn’t an entity that has been “injured” by the alleged conflict.
She accused the complaint of being “ambiguous”, containing previous parts that are contradicted by some of the conclusions, such as the accusations that DNA is violating the law, which the author of the complaint himself admits that are not related to the process of issuing a normative act, so the Public Ministry cannot be accused of interfering with the Government’s activity.
The Public Ministry’s position is that the only institution that is able to control if prosecutors exceeded or not their powers and if there is any ground for their accusations is the court, when the case is submitted to a judge. She asked CCR not to take the place of the courts this way.
“What the judicial body has done is a simple exercise of its legal powers. It didn’t check in any way the implementation of the CCR decisions, it didn’t check in any way the opportunity of issuing the legislative act, it didn’t intend in any way to check such issues. (…) DNA’s position in this case is completely legal, and in principle, it will be subject to the courts’ control” also stated the Public ministry’s representative.
The complaint regarding a possible legal conflict of a constitutional nature between the Government and DNA was submitted approx. three weeks ago by the Senate’s President Calin Popescu Tariceanu, who claimed that the investigation made by the DNA prosecutors of the manner of issuing GEO 13 is a violation of the executive power made by the judiciary.
General Prosecutor’s Office: CCR motivation to be determining for future course of investigation
The General Prosecutor’s Office maintains it took note regarding the decision of the Constitutional Court of Romania (CCR) in respect to the finding of a conflict between the Government and the Public Ministry, through the National Anticorruption Directorate (DNA) and that the CCR motivation will be determining for the future course of the investigation regarding the offenses which represent the object of the case known generically as the “Adoption of the Ordinance No.13.”
“The Prosecutor’s Office attached to the High Court of Cassation and Justice (ICCJ) took note regarding the Decision of the Constitutional Court of Romania (CCR) in respect to the finding of a judicial conflict of a constitutional nature between the Government and the Public Ministry, through the National Anticorruption Directorate (DNA), decision, through which the contentious constitutional court established that “the Prosecutor’s Office attached to the High Court of Cassation and Justice (PICCJ) – DNA action to arrogate the attribution to verify the legality and the opportunity of a normative act, the GEO No.12/2017 respectively, by breaking the constitutional competencies of the Government and Parliament, stipulated by the article 115, the paragraphs 4 and 5 of the Romania’s Constitution, the CCR respectively, which are stipulated by the article 146 of the Constitution,” generated a judicial conflict of a constitutional nature between the respective authorities of the state,” the release of the PICCJ sent to Agerpres on Monday reveals.
The quoted source mentions that the motivation of the CCR will be determining for the future course of the investigation in this case.