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Bucharest
May 16, 2021
JUSTICE

CCR: The President has no express power that justifies a right of veto in appointing prosecutors

On Tuesday, Constitutional Court motivated the decision to declare as partially unconstitutional some of the provisions of the amendment to the Law no.303 of 2004 on the magistrates’ statute, mentioning that the President has no express power that justifies a right of veto in appointing prosecutors.

Paragraphs (1), (3) and (4) of Article 54 are amended as follows:

“Art.54

– (1) The General Prosecutor of the Prosecution Office attached to the High Court of Cassation and Justice, his first deputy, the Chief-Prosecutor of the National Anticorruption Directorate, his deputies, the chief-prosecutors of the departments of these prosecution offices and the Chief-Prosecutor of DIICOT and his deputies are appointed by the Romanian President at the Justice Minister’s proposal, with the opinion of the CSM Department for Prosecutors, among the prosecutors with a seniority of at least 10 years as a judge or prosecutor, for a period of 3 years, with the possibility of being reappointed only once.

*

(3) The Romanian President may refuse, on a grounded basis, only once, the appointment in the leading position mentioned at para.(1), informing the public about the reasons of the refusal.

(4) Prosecutors can be dismissed from the leading positions mentioned at para.(1) by the Romanian President, at the proposal of the Justice Minister, who can act ex officio, at the request of the general meeting, or, as the case may be, at the request of the General Prosecutor of PICCJ or of the General Prosecutor of DNA Or DIICOT, with the opinion of the CSM Department for Prosecutors, for the reasons provided by Art.51 para.(2), which are applied accordingly.”

Constitutional Court motivated on Tuesday why it established that these new provisions are constitutional, appreciating that the President has the power to reject the appointment only once, but he has no other express constitutional power that can be breached.

“Regarding the constitutional challenges related to Art.I item 87, with reference to Art.53 para.(1), (2), (7), (8), (9) first part, and (10) of the Law, according to which these provisions reduce/restrict the Romanian President’s powers in the procedure of appointing the President, the Vice President and the Presidents of the departments of the High Court of Cassation and Justice, the Court finds that the authors of the constitutional challenge started from the premise that the appointment in these positions is a power of the Romanian President; in this context, it is appreciated that removing the Romanian President from this appointing procedure for the Presidents of the departments of the High Court of Cassation and Justice breaches the provisions of the Art.94 lett.c), Art.125 para.(2) and Art.134 para.(1) of the Constitution” reads the reasoning of the CCR decision.

As for the constitutional challenges of the Art.54 par.(3) of the Law, the Court finds that according to the Art.132 para.(2) of the Constitution, “Prosecutors conduct their activity according to the principle of legality, impartiality and hierarchic control, under the authority of the Justice Minister”.

“Given the two-headed nature of the executive authority, the legislator has opted for a procedure in which the Government and the President have to cooperate. But the central role in this equation belong to the Justice Minister, the prosecutors constituted in prosecution offices operating under his authority. The Romanian President has no express constitutional power that justifies a right of veto in this matter. Therefore, if the organic legislator has chosen such an appointing procedure, maintaining a limited presidential veto at the refusal of a single appointing proposal in a leading position provided by Art.54 para.(1) of the Law, he observed the constitutional role of the Justice Minister in relation with the prosecutors, and the President is not provided with the power to appoint them given the solemnity of the actin and the necessity of the existence of a cooperation and permanent consultation within the two-headed executive. Therefore, we cannot agree with the breach of Article 94 lett.c) of the Constitution. Consequently, Art.I, item 88 [related to Art.54 para.(3)] of the Law does not breach Art.94 lett.c) and Art.132 para.(1) of the Constitution” the reasoning also mentions.

At the end of January, the Constitutional Court of Romania decided that several provisions of the Law no.303/2004 on the magistrates’ statute are unconstitutional, and asked for the redefinition of the judicial error and bad faith, as well as of the serious negligence.

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