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December 10, 2022

CCR’s motivation: Kovesi has breached the Parliament’s authority by refusing to appear before the Inquiry Committee on the Presidential Elections

Three judges had dissenting opinions


Constitutional Court (CCR) says in the motivation of the decision by which it obliges the head of the National Anticorruption Directorate (DNA), Laura Codruta Kovesi, to appear before the Parliamentary Inquiry Committee on the 2009 Presidential Elections, that she breached the Parliament’s authority by refusing to come in front of the committee and she didn’t show loyalty to the values and principles stated in the Constitution. However, three of the nine CCR judges, namely Livia Stanciu, Maya Teodoroiu and Stefan Minea, prove the opposite and say that the DNA chief cannot be obliged to appear before a parliamentary inquiry committee.

“The Court finds that, by the refusal of the Chief-Prosecutor of the National Anticorruption Directorate to appear before the Special Inquiry Committee of the Senate and Deputies’ Chamber, in order to check the issues related to the organization of the 2009 elections and to the result of the voting for electing the President, as well as to provide the requested information or to bring the other documents or the evidence held, which are useful to the works of the committee, the Romanian Parliament’s authority, a representative body of the people, has been breached, and its activity is obstructed in terms of performing the control attributions through the parliamentary committees” reads the CCR’s motivation.

The five judges who have this opinion – Valer Dorneanu, Daniel Morar, Attila Varga, Marian Enache and Mona Pivniceru – motivated their decision by the fact that a person who is invited before a parliamentary inquiry committee must show good faith and adopt “an active and positive behavior”, otherwise his or her attitude can be deemed as being against finding the truth and may be subject to the notification of the criminal prosecution bodies.

Laura Codruta Kovesi’s refusal to appear before the Inquiry Committee on the 2009 Presidential Elections caused a blockage in the committee’s works, according to the five judges.

“In the circumstances in which the person who is invited to attend the works of the inquiry committee is a person who represents, due to his or her leading position, a public authority which is not under parliamentary control – the Public Ministry – the Prosecution Office attached to the High Court of Cassation and Justice, by applying the principle of the loyal collaboration between the state institutions/authorities, he or she has the obligation to attend the works of the committee in all the cases and regardless of the subject of the parliamentary inquiry”, according to them.

“By her behavior, not only that the Chief-Prosecutor of the National Anticorruption Directorate breaches a priori any loyal collaboration with the authority exercising the people’s sovereignty – the Parliament of Romania, but she also refuses to participate in clarifying certain issues related to an event of public interest (her presence in the Senator Gabriel Oprea’s house, together with other persons holding public offices – the Director of the Romanian Intelligence Service, the Deputy Director of the Romanian Intelligence Service and senators –, in the evening of December 6, 2009, when the national election of the Romanian President took place) , which if it will be proved as real, would have a major negative social, political and legal impact, thus preserving a state of uncertainty related to the veracity of the investigated events” also show the five judges in the motivation of their decision.

However, three constitutional judges voted against the obligation of the DNA chief to appear before the parliamentary inquiry committee, motivating that this would be against the CCR jurisprudence and explaining that an institution that would ask a person to make statements he or she doesn’t want to make would be outside its legitimate competence regarding that person.

Judge Livia Stanciu shows that it cannot be considered a constitutional conflict between Parliament and DNA, because the activity of the inquiry committee determined only the existence of a legal relation between a public authority (the inquiry committee) and a Romanian citizen (Laura Codruta Kovesi), who was invited to provide explanations as an individual to which a request on a personal (private) matter refers.

To support her argumentation, Livia Stanciu gives the example of a CCR decision since 2009 which provides that “before the inquiry committees, only the law subjects which are in specific constitutional relations with the Parliament are obliged to appear, according to the Title III, Chapter IV of the Constitution, named ‘Parliament’s Relationships with the Government’. Other law subjects can be invited to take part to the debates before the inquiry committees, without any correlative obligations they would have to follow the invitation”.

The judge also says that Laura Codruta Kovesi’s refusal to appear before the parliamentary inquiry committee and the written answers sent to the members of the committee cannot lead to the conclusion that she relied on her capacity as the DNA chief, therefore a constitutional legal conflict between the Parliament and the National Anticorruption Directorate doesn’t exist.

A similar argument was also brought by judge Stefan Minea, who explained that the personal account made by a person (or his or her refusal to answer to the invitation) cannot have the consequence of involving the institution which is led by that person into a constitutional legal conflict between authorities which are not in any relation.

“The circumstance according to which the DNA Chief-Prosecutor was invited before the Parliamentary Committee in this capacity (as well as the fact that the invited person answered to the Committee by a written document  bearing the header of the institution) cannot involve the Public Ministry – the National Anticorruption Directorate into a constitutional legal conflict, since the hearing should have been related to deeds with no connection to the judicial activity of the incriminated institution”, according to Judge Minea’s dissenting opinion.

The third judge who brings arguments against the obligation provided by CCR for Laura Codruta Kovesi to appear before the Parliamentary Inquiry Committee on the 2009 Presidential Elections is Maya Teodoroiu.

“A person cannot be asked to make statements he or she doesn’t want to make, even for the single reason that it could affect his or her rights, interests or image; otherwise the public institution in question would be against the exercise of its legitimate competence regarding its relations with the said person” Maya Teodoroiu appreciates.

She explains that previous CCR decisions have clearly provided that only persons who are working within the Government or within authorities of the public administration are obliged to appear before the parliamentary committees, and this is not Laura Codruta Kovesi’s case.

Another argument brought by Maya Teodoroiu, similar to those of Livia Stanciu and Stefan Minea, is that Kovesi was the Prosecutor General of Romania in 2009, therefore DNA doesn’t have any involvement into a constitutional conflict with the Parliament.

“The current capacity of the Chief-Prosecutor of the National Anticorruption Directorate is not relevant in relation with the matters that are subject to the Parliamentary Inquiry Committee, namely the 2009 Presidential Elections” Teodoroiu explains.

“The above-mentioned principle of the loyal collaboration implies the participation of the public institutions in the state activities in good faith and in a transparent manner, without exercising any pressure or causing any imbalance between the state powers” the CCR judge concludes.



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