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September 24, 2021
JUSTICE

CCR will discuss on March 20 the notification filed by PNL and USR on the immunity of the constitutional judges

On March 20, Constitutional Court of Romania (CCR) will discuss the notification filed by PNL and USR on the amendments brought to the Law no.47/1992 on the organization and functioning of CCR, stated CCR officials on Friday, for Agerpres.

On Friday, PNL and USR notified the Constitutional Court of Romania (CCR) on the amendments to the Law no.47/1992 on the organization and functioning of CCR.

“The reasons related to the unconstitutionality of the adopted amendments mainly concern the establishment of a regime of super-immunity for the members of the Constitutional Court, which is outside the current constitutional framework” reads the notification.

The signatories of the notification claim that this law has been adopted by breaching several constitutional provisions, namely art.124 para.(1) and (2) of the fundamental law, which provide that Justice is made in the name of the law and it is unique, unbiased and equal for everybody.

“By amending the paragraphs (1), (2) and (3) of art.66 of the Law no.47/1992, Parliament has breached the constitutional principle of performing justice, establishing an extended immunity for the judges of the Constitutional Court, concerning all the criminal deeds committed by them, both before exercising their mandate and during exercising their mandate, regardless of the fact that the deeds are related or not to the exercise of their mandate and regardless of the form of guilt. This immunity which is regulated by the ordinary legislator for the judges of the Constitutional Court, is more extended than any of the immunities and protective measures established by the constitutional legislator for parliamentarians, for the Romanian President and for the members of the Government” the notification explains.

According to the signatories, theoretically speaking, although art.66 para.(1), (2) and (3) of the Law no.47/1992 allows criminal prosecution and the indictment, respectively the detainment, arrest or search of a CCR judge, the legal circumstances in which these procedural acts can be performed are difficult to be achieved, and they depend on the exclusive will of a political authority, respectively the Justice Ministry, on the one hand, and on the other hand by the will of the administrative-judicial authority, namely the plenum of the Constitutional Court, which leads to the firm conclusion that justice is impossible to be performed in relation to all the criminal deeds committed by a judge of the Constitutional Court.

PNL and USR appreciate that performing Justice actually doesn’t depend on the judge any more, but on the exclusive will of the Justice Minister to take into account the complaint of the General Prosecutor of the Prosecution Office attached to the High Court of Cassation and Justice, on the one hand, and on the other hand by the will of the Court’s plenum to approve the procedural measure with a qualified majority of two thirds, which is even harder to be achieved since the current form of the law provides that the judge who is subject to the Minister’s request can participate in voting.

“The establishment by the ordinary legislator of such extended procedural guarantees, derogatory from the common law in this matter, which were not considered by the constitutional legislator, can make useless the constitutional principle of performing justice provided by art.124 para.(1) and (2),regarding the criminal deeds committed by the judges of the Constitutional Court. Also, the ordinary legislator does not distinguish between the criminal deeds committed by the CCR judges related to the exercise of their mandate, and the criminal deeds committed by the judges of the Constitutional Court with no relation to the exercise of this mandate, which indicates a misunderstanding of the legal reason for which a procedural immunity is established, namely to protect the authority mandate exercised by a specific person from possible naggings and abuses, therefore the purpose is not to excessively hinder or even remove criminal liability for deeds that are not related to the exercise of the authority mandate” reads the notification.

The signatories also claim that the law violates the constitutional attributions of the Public Ministry mentioned by art.131 para.(1) and (3) of the Constitution, which provide that in the judicial activity, the Public Ministry represents the general interests of the society and defends the rule of law, as well as the citizens’ rights and freedoms, and that the prosecution offices are attached to the courts, conducting and supervising the criminal investigations activity performed by the judicial police, according to the law.

“The Justice Minister actually gains an absolutely discretionary attribution which entitles him or her to appreciate the content of the complaint submitted by the General Prosecutor, having the right to decide if he or she will take into account this complaint or not, depending of his or her exclusively subjective appreciation, without being obliged to observe objective and transparent criteria” the notification also explains.

According to the PNL and USR parliamentarians, the law violates the independence of the constitutional judges, the principle of the separation of powers, the equality of the citizens and of the public authorities before the law, and the recommendations of the European Commission for Democracy through Law.

 

 

 

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