JUSTICE POLITICS

CCR has published the reasoning on the conflict between DNA and the Government after issuing GEO 13: DNA has arrogated a power it doesn’t have. Public Ministry’s action, an abusive one

*Outraged magistrates ask for harsh measures after CCR’s reasoning, some of the politicians ask for the DNA Chief’s resignation

 

Judges of the Constitutional Court of Romania (CCR) motivated the decision on the existence of an institutional conflict between the National Anticorruption Directorate (DNA) and the Government by the fact that, by its conduct, the Prosecutor General – The National Anticorruption Directorate has arrogated a power it doesn’t have – the control of the manner of adopting a normative act. The reasoning also states that the Public Ministry’s action on the investigation related to the GEO No.13 ceases to be a legitimate one, becoming abusive and creating a pressure on the Government’s members, affecting the proper functioning of this authority.

After CCR has published the reasoning which established that there was and there is a conflict of interest between the Public Ministry and the Government, caused by DNA’s action for checking the legality and timeliness of issuing the GEO 13, the magistrates’ associations asked a detailed analysis of the situation in the Superior Council of Magistracy (CSM). At the same time, there are also reactions which appeared in the public space from politicians asking DNA Chief Laura Codruta Kovesi to resign or to be dismissed.

 

Legislator delegate alone competent to decide on GEO timeliness

 

Deciding on the timeliness of adopting an emergency ordinance is a prerogative of the delegated legislator alone, which can be vetoed only by parliamentary control, argues the Constitutional Court of Romania (CCR) in the reasoning to its ruling whereby it found that the investigation of the National Anticorruption Directorate (DNA) into the manner the Government’s Emergency Ordinance (GEO) No. 13 has been adopted caused a disruption into the Government’s activity.

“The Court upholds that assessing the timeliness of adopting an emergency ordinance, as regards the decision to legislate, is an exclusive prerogative of the delegate legislator, which may be vetoed only under the conditions expressly provided for by the Constitution, specifically through parliamentary control (…). Therefore, Parliament alone can decide on the fate of the Government’s regulatory act, by adopting a law to approve or reject it. (…) Given the constitutional provisions referenced to, the Court finds that no public authority other than the lawmaking one can control the Government’s regulatory act as regards the timeliness of the legislative act,” reads the reasoning of the Constitutional Court of Romania published on the institution’s website on Friday.

In addition, the Constitutional Court found that all the evidence DNA presented as constitutive elements of offence are just personal considerations or criticisms formulated by the authors of the denunciation as regards the legality and appropriateness of the act adopted by the Government, and that the case should have been closed under these circumstances.

“All the facts highlighted in the complaint were actually related to aspects intrinsic to the legislation adoption procedure, namely aspects related to timeliness and legality which do not fall within the authority of criminal investigation bodies, regardless of the legal classification established by the prosecutor. Since, by itself alone, the adoption of regulatory acts cannot be a constitutive element of offence, the Court finds that the facts incriminated in the complaint that was the starting point for Case No. 46 / P / 2017 (…) do not fall under criminal law, regardless of their legal classification,” the cited document reads.

According to CCR, the prosecutor’s decision to start probing this case has violated the principle of the separation of powers.

CCR also argues that by looking at the circumstances under which GEO 13/2017 was adopted, DNA assumed a competence that could lead to an institutional deadlock.

Under these circumstances, CCR found there is a conflict of constitutional nature between DNA and the Government, the Court is called upon to settle in its capacity as guarantor of the supremacy of the Constitution by showing the conduct public authorities must comply with.

“As regards the Prosecution Office of the High Court of Cassation and Justice and the DNA, the Constitution-compliant conduct arises from those stated above, namely exercising the competencies established by law according to the constitutional provisions regarding the separation of powers in the State and implicitly abstaining from all action which could result in superseding the responsibilities of another public authority. Therefore, the Prosecution Office is not competent to conduct criminal investigation activities into the legality and appropriateness of a regulatory act adopted by the legislator,” CCR argued in its reasoning.

“Such a conduct equates to a serious violation of the principle of separation of powers, which is guaranteed by the Art.1 para. (4) of the Constitution, since the Public Ministry not only that exceeds its powers provided by the Constitution and the law, but it also arrogates powers belonging to the legislative power or to the Constitutional Court. The Public Ministry – The Prosecution Office of the High Court of Cassation and Justice – the National Anticorruption Directorate, has arrogated the power to conduct a criminal investigation in a field that exceeds to the legal framework, possibly causing an institutional deadlock in terms of the constitutional provisions that consecrate the separation and the balance of powers. Thus, given that starting prosecution involves activities of a criminal investigation and inquiry on the manner by which the Government has fulfilled its duties as a delegated legislator, the Public Ministry’s action ceases to be legitimate, becoming abusive, since it exceeds the power set by the legal framework in force. Moreover, the Public Ministry’s action causes a pressure on the Government’s members, affecting the proper functioning of this authority in terms of legislating. (…) By its conduct, the Public Ministry – the Prosecution Office of the High Court of Cassation and Justice – the National Anticorruption Directorate has acted ultra vires, arrogating a power it doesn’t have – the control of the manner of adopting a normative act”, shows the reasoning of the Court on the existence of an institutional conflict between DNA and the Government, which was adopted with 8 votes for and one against it.

The Constitutional Court’s ruling of February 27 taken by majority vote is final and generally binding.

 

 Justice Minister: The investigation on the GEO 13 will continue on offenses, but it cannot continue on timeliness and legality

 

The investigation on GEO 13 will continue regarding committing offenses, but it cannot continue on the issues of timeliness and legality, stated the Justice Minister Tudorel Toader on Saturday for Digi 24, referring to the CCR’s reasoning regarding the legal conflict between DNA and the Government. The Minister stated that he presented a report on the recent constitutional and legislative developments in Romania to the Venice Commission.

“The investigation will continue on offenses, on deeds provided by the Criminal Code or by a special law, but it cannot continue on timeliness, conditions, circumstances, legality, constitutionality”, Toader stated.

He added that he is participating in these days to the 110th plenary session of the Venice Commission, where he presented a report on the GEO 13, GEO 14 and on the protests in Romania.

“I participated and I am participating as a full member. Besides, the Chairman of the Venice Commission has invited me to present the recent constitutional and legislative developments in Romania, in the plenum of the Commission. I made this presentation, this report. What could I speak about? About GEO 13 and the rejection law, GEO 14 and the approval law, about the civic behavior, about the protests accompanying these legislative events, about the CCR decision which was published yesterday (on Friday – e.n.) in the Official Journal. Therefore, I presented the content of these normative acts, the legal effects that were caused or are still caused by them, as well as about the social consequences they caused. (…) Why do I believe that the report is useful and it was necessary? For a proper informing of the European Commission, of the Council of Europe and of the Venice Commission, because only by communicating correctly and on time about the content and the developments to which I referred, our assessments can also be objective and in line with the social and legal realities. Let’s not forget that we have the CVM (e.n – Cooperation and Verification Mechanism), that Romania must meet certain standards, certain requirements, and I believe my presence here is useful and beneficial from this perspective” Tudorel Toader also stated.

 

Prosecutor General’s reaction: We will fully respect the decision of the Constitutional Court

 

The reasoning of the Constitutional Court’s Decision is carefully considered by the Public Ministry, and the decision will be fully respected by the prosecutors, announced the Public Ministry in a message posted on its official Facebook account.

“Standpoint on the reasoning of the Constitutional Court’s Decision on the existence of a legal conflict between DNA and the Government: The reasoning of the Constitutional Court’s Decision is carefully considered by the Public Ministry, and the decision will be fully respected by the prosecutors”, shows the Public Ministry in a standpoint posted on Friday on its official Facebook account.

However, the Prosecution Office of the High Court of Cassation and Justice doesn’t specify clearly if the investigation on the GEO 13 will continue or not, given that the magistrates of the Constitutional Court stated, in the reasoning on the conflict between DNA and the Government, that the exposed arguments should have led the judicial body to close the case, without performing acts of criminal prosecution, as a result of the applicability of the Art.16 para. (1), since all the notified deeds were actually referring to issues related to the procedure of adopting a normative act, namely issues of timeliness and legality that are not subject of the control performed by the criminal investigation bodies, regardless of the legal classification set by the prosecutor.

 

Dana Girbovan (UNJR): DNA’s action in the GEO 13 case is serious

 

President of the National Union of Judges (UNJR), Dana Girbovan, stated on Friday in an interview for Mediafax that the situation caused by the anticorruption prosecutors is a serious one, requiring a serious analysis at the system level, to see the causes that allowed such a slippage.

“Separation of powers is the cornerstone of the rule of law, and each power must act within the limits set by the law. But we have to be aware that the judicial authority, by the institutions that form it, may be tempted to exceed its constitutional limits and sometimes, as in this case, it may do it. The situation caused by the DNA’s action is undoubtedly serious, and it requires a serious analysis at the system level, to see the causes that allowed such a slippage. In this analysis, an important role will be undoubtedly played by the reasoning of the Constitutional Court’s decision, and the Superior Council of Magistracy will have to carefully consider it and act accordingly” stated the UNJR President, Dana Girbovan, regarding the DNA’s activity and the position of the Prosecutor General on the GEO 13.

 

 Romanian Magistrates’ Association: Independence should be independence, but no more than this, regardless of which state power we are talking about

 

Romanian Magistrates’ Association appreciates that, after the Constitutional Court has reasoned the decision by which it decided that there is a legal conflict between DNA and the Government, a deep analysis is required at the level of the Superior Council of Magistracy (CSM), to establish conclusions that can be transposed in the Judiciary Laws, so that “independence should be independence, but no more than this, regardless of which state power are we talking about”.

Romanian Magistrates’ Association (AMR) states that, according to the Constitutional Court of Romania (CCR), from the data contained by the criminal case in which legality and timeliness of the GEO 13 were investigated, it appears that, at the time of submitting the complaint to DNA,  no deed under its jurisdiction was contained by the denouncement, “but it was added only in the completion of the denouncement – next day -, being included in the ordinance deciding the start of the prosecution, and that subsequently, in the day when it issued an ordinance for the extension of the prosecution, for other three offenses, none of them being under the DNA’s jurisdiction, the prosecutor also declined the jurisdiction in favor of the Prosecution Office attached to the High Court of Cassation and Justice,  «exactly because he wasn’t entitled to conduct the prosecution» (also for the offenses for which he just ordered the extension of the prosecution)”.

AMR’s representatives claim that, following the reasoning of the CCR decision, a detailed analysis is required at the CSM level.

“Should this legal conflict of a constitutional nature make us have serious questions on the problems inside the system? First of all, we should admit that remaining at the level of questions is not enough, we have to provide answers, as finding answers is not enough if we don’t apply them. And in this order, we firstly need a deep and detailed analysis, at the level of the Superior Council of Magistracy, establishing concrete conclusions that can also be transposed in the Judiciary Laws (which are just in progress), so that independence should be independence, but no more than this, regardless of which state power are we talking about”, AMR mentions.

 

PSD MP Liviu Plesoianu: Any minute that passes without Mrs. Laura Codruta Kovesi being dismissed is increasingly weakening the trust of the Romanian people in the rule of law

 

In a request addressed to the JustMin Tudorel Toader, PSD MP Liviu Plesoianu asked him on Friday “to act with utmost celerity in order to send the dismissal proposal of the DNA Chief-Prosecutor to the President of Romania”, invoking the fact that the action of the anticorruption prosecutors against the Government is “extremely serious”.

“In front of such serious violations of the Fundamental Law, I believe that any hesitation or delay are inappropriate. The rule of law and the essence of democracy have been brutally violated by DNA, as this institution is led by Mrs. Laura Codruta Kovesi”, Plesoianu stated in his request sent to the Justice Minister.

“Any minute that passes without Mrs. Laura Codruta Kovesi being dismissed, is a minute that seriously brings image damages event the National Anticorruption Directorate and that is increasingly weakening the trust of the Romanian people in the Rule of Law. Given that all the polls are undoubtedly indicating a crash of the Romanians’ trust in the judiciary, I believe that you, as the Justice Minister, are the first in charge to perform all the approaches required in order to change this obvious trend. And the need for you to propose the dismissal of Mrs. Laura Codruta Kovesi comes not only from the recently published reasoning of the CCR Decision no.68 of February 27, 2017, but also in relation with the number of big scandals referring to the National Anticorruption Directorate”, is also stated in the request sent by the PSD MP to the Justice Minister.

 

Traian Basescu: Kovesi and Lazar must resign; The obligation to respect the Constitution belongs to each citizen

 

President of the People’s Movement Party (PMP), Traian Basescu, stated on Friday that the DNA Chief Laura Codruta Kovesi and the Prosecutor General Augustin Lazar must resign, after the CCR decision, saying that otherwise, “a dangerous precedent” will be created, mentioning that the two persons could be administratively revoked by Klaus Iohannis.

“The Constitution provides that obligation to respect the Constitution belongs to each citizen, including the Romanian citizen Laura Codruta Kovesi. (…) The abuse of office, so beloved by her, is mentioned in the Court’s decision, which says as follows: the Public Ministry doesn’t have the jurisdiction to conduct criminal investigation activities on the legality and timeliness of a normative act adopted by the lawmaker, which in our case was the Government as the delegated lawmaker. I don’t know why, until this moment, Mrs. Kovesi didn’t decently go to the President to say: Mister President, I made a mistake, here is my resignation” stated the PMP President Traian Basescu for RTV.

Traian Basescu claimed that the Attorney General Augustin Lazar is in the same situation.

The dismissal proceeding of Codruta Kovesi and Augustin Lazar could be initiated by the Justice Minister and by the Romanian President, if the two persons refuse to resign.

“There isn’t a legislative proceeding, but an administrative one. The Justice Minister, taking note by the CCR decision, should ask the dismissal to the President. Which are the circumstances? The circumstances are that the law provides that the DNA Chief-Prosecutor’s mandate is of 3 years, but no one says that it is of 3 years when you violate the Constitution. If you violate the Constitution, the mandate is automatically interrupted. And, if the Justice Minister will not make this step, being restrained by the mercy and gentleness of the gentle Dragnea, ‘cause that’s how I’ll call him from now on: gentle Dragnea, the initiative must belong to the President. There is somebody to write the decree and the dismissal for violating the Constitution”, Traian Basescu claimed.

Traian Basescu claimed that the most important officials of the Romanian state, which are in tandem, Kovesi and Lazar, have violated the Constitution and they must leave.

“It’s not about any resentment, we are talking about a fundamental principle: violating the Constitution by one of the most important officials of the Romanian sate, and they are in tandem, Kovesi and Lazar. Both of them must leave” stated the PMP President.

Basescu stated that “a dangerous precedent” will be created if Lazar and Kovesi will not resign.

“It’s not a matter of who should convince them or not, it’s about creating a dangerous precedent, to have a decision of the Constitutional Court according to which a high official has violated the Constitution, and to maintain him or her. (…) The problem is not Kovesi, the problem is the precedent. We have a problem (…) related to the precedent. It was undoubtedly found that a high official of the state has violated the Constitution, it has violated the separation of powers, this is a serious matter. It cannot remain without sanctions” the PMP leader stated.

Laura Codruta Kovesi should know how much harm she does if she “clings like the cat to a tree”, Traian Basescu also said.

“And if Iohannis doesn’t understand, Kovesi should know how much harm she does if she clings like the cat to a tree, because to create this precedent of violating Constitution at the top of the Romanian state is an extremely serious matter”, Traian Basescu claimed.

 

 

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