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January 16, 2021

CCR on inquiry committees: Representatives of public institutions must attend hearings, but can be censured only by their institutions, not by Parliament

The Constitutional Court shows, in the reasoning of its decision to reject the Opposition’s challenge concerning parliamentary committees of inquiry, that any person can be subpoenaed or invited to committee hearings if he/she represents a public institution, but the person’s refusal to show up cannot be censured by Parliament but only by the “holder of the disciplinary action,” namely the institution or person on which the said person depends from a hierarchical standpoint. CCR also emphasises that parliamentary inquiries cannot be interrupted by the start of a criminal investigation, since the two can take place simultaneously.

The reasoning pertains to the Court’s June 21 decision to reject PNL-USR’s challenge concerning the modifications brought to Parliament’s Joint Regulations, modifications that instituted the compulsoriness for any person to show up before parliamentary committees of inquiry, at the risk of facing a criminal complaint in case of refusal to do so. According to the same modifications, parliamentary inquiries can take place in parallel with judicial probes.

The Court points out that the Regulations differentiate between three categories of persons that can be invited. Those who have to show up before the inquiry committees due to the fact that the activity of the institutions/authorities they are part of is overseen by Parliament. On the other hand, those who represent, in virtue of their leadership position, authorities/public institutions that are not under parliamentary oversight, but who, in view of the principle of loyal collaboration between state institutions/authorities, have the obligation to take part in the committees’ proceedings in all cases and regardless of the object of the parliamentary inquiry. The third category is that of persons who may have nothing to do with state institutions, in which case it is up to them to choose whether to participate or not.

Thus, the Court’s decision shows that, for example, prosecutors cannot be invited to hearings, however the heads of prosecutor’s offices can be, even though the Public Ministry is not under parliamentary oversight.

Nevertheless, CCR judges explain that Parliament cannot censure them in case of refusal to take part in the proceedings.

“It’s natural for the person subpoenaed to show up and answer the committee’s questions; noting and establishing disciplinary infringements is the exclusive prerogative of the holder of the disciplinary action in case the person subpoenaed does not fulfil these obligations, the committee of inquiry having no such competence,” the reasoning reads.

The Court also accepts the measures included in Parliament’s Regulations, according to which refusal to offer information may result in the lodging of a criminal complaint, explaining that, in its interpretation, this sanction is not the result of failure to participate but of information concerning the possibility of an offence.

“The refusal, on the part of the persons invited before the committee of inquiry, to offer the information requested or to put at the committee’s disposal documents or pieces of evidence that are useful for the committee’s activity does not represent an offence, criminal prosecution bodies not being notified for this refusal; instead, following the corroboration of existing data, the committee can notify criminal prosecution bodies about the committal of an offence,” the judges explain.

The CCR also states that parliamentary inquiries can take place in parallel with judicial investigations, thus deeming that the amendments brought to the Regulations are constitutional.

“It’s obvious that the activity of a committee of inquiry has nothing to do with a judicial investigation. Finding the optimal solutions for the proper functioning of state institutions, discovering/analysing/assessing/determining the causes of important events in the life of the state, presenting them to the public, the transparency of information obtained, debating them, remedying functional/systemic deficiencies noted, these are just as many elements that characterise and, at the same time, differentiate a parliamentary inquiry from a criminal investigation. Hence, there is no reason for the parliamentary inquiry to cease when a judicial investigation starts,” the decision reads.

The Court emphasises that parliamentary oversight exercised via the committees, be they standing committees or special ad-hoc committees of inquiry, “cannot be considered just a decorative function that Parliament exercises.”

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