The Constitutional Court of Romania’s (CCR) decision on the juridical conflict of a constitutional nature between the Justice Ministry on one hand and the President of Romania on the other, and between the Government of Romania and the President of Romania in the subsidiary, an issue arising as a result of the Head of State’s decision to reject the dismissal of the DNA Chief Prosecutor, has been postponed for May 30.
CCR about President: Misconduct President is accused of is not a matter of constitutionality, but of legality
The misconduct the President is accused of in the case of his refusal to remove from office the chief-prosecutor of the National Anti-corruption Directorate (DNA) is not a matter of constitutionality, but one of legality, the solving of which rests with the courts, reads the opinion sent by President Klaus Iohannis to the Constitutional Court of Romania (CCR).
“The mentioned aspects (…) that were proclaimed by the author of the notification as a legal conflict of a constitutional nature do not meet the requirements for such a classification, for they do not refer to: the constitutional authorities that can be subject to it, with respect to the Minister of Justice; they do not refer to a conflict of competencies (either positive or negative) between the public constitutional authorities or a conflictual situation that arises directly from the Constitution; there is no institutional blockage; the accused misconduct is not a matter of constitutionality, in itself, but one of legality, which should be referred to the courts,” says the document.
According to the same source, the notification did not show clearly what public institution was allegedly part in the conflict with the Romanian President, what was, in more details, the institutional blockage that was mentioned and the reason behind filing this notification, given that the manner of interpretation and implementation of the legal dispositions represents an act of justice, for which reason the President requested that the notification be rejected as inadmissible.
The President’s written opinion also mentioned, among other things, that there is a consistent jurisprudence with respect to the President’s attribute of removing officials, and in both cases of appointment and removal, the President must carry out an assessment of legality and another one of opportunity.
“The only limitation existing in terms of both the legality and opportunity of measures the President may take in this field is related to the actual legal norms, which establish his competence in making the assessment of legality and opportunity. The Romanian President must apply these norms every time when such a proposal of appointment or removal is submitted to him, with no other limitation being possible,” reads the same document.
Based on these arguments, President Iohannis asked the CCR to rule there was no such conflict of a constitutional nature in this case.
The CCR head, Valer Dorneanu, announced that the debate on the conflict between powers, in the case of the rejection by the President of the dismissal of the DNA chief, Laura Codruta Kovesi, was postponed until May 30.
Toader at CCR: President’s refusal to dismiss DNA Chief, exclusively political; he blocked the procedure halfway through, even though he doesn’t have a veto
Present at the Constitutional Court where the notification regarding the Government vs. President conflict was debated, Justice Minister Tudorel Toader (photo) stated that President Klaus Iohannis’s refusal to dismiss National Anticorruption Directorate (DNA) Chief Prosecutor Laura Codruta Kovesi is exclusively political in nature, resulting in this constitutional conflict between the two institutions. Toader stated that the President blocked the dismissal procedure halfway through, even though, Toader claims, the law does not give the President the option but the obligation to accept the Justice Minister’s proposal to dismiss chief prosecutors and, moreover, Iohannis should have invoked reasons of non-legality for his refusal and, to ensure the symmetry of the juridical act, the refusal should have resulted in a decree. In his turn, Presidential advisor Simina Tanasescu, the representative of the Presidency, invoked the inadmissibility of the Government’s notification regarding the existence of a juridical conflict of a constitutional nature between the President and the Justice Minister. She said there can be no juridical conflict of a constitutional nature between the President, whose prerogatives are clarified in the Constitution, and the Justice Minister, whose prerogatives are stipulated in a law.
“The Justice Minister has authority over prosecutors, an authority conferred by the Constitution, has the instruments, the criteria of assessment of the managerial activity, and other criteria. In contrast, the President of Romania has no authority over prosecutors, nor instruments of assessment. (…) The minister, whoever he may be, plays a major role among the public authorities of constitutional rank. The minister contributes to the proper functioning of the judicial system, to the defence of the rule of law and of citizens’ rights,” the Justice Minister said at the start of his speech before CCR judges.
Toader explained that the Romanian President does not have a veto right when it comes to the dismissal of chief prosecutors, and the law does not give him the option to refuse the Minister’s request.
“The Justice Minister proposes, the Supreme Magistracy Council (CSM) issues a non-binding endorsement, then the President of Romania is next; he does not have the right to veto. If we interpret the legal texts, in a grammatical interpretation, we see that they say that the dismissal of the prosecutor is done by the President at the Minister’s proposal. An obligation – not an option – is stipulated on the part of the President, the law does not mention an option,” Toader said.
He added that the President can refuse the proposal, but only on grounds of non-legality, but President Klaus Iohannis invoked “political advisability,” his refusal, the minister claimed, being thus exclusively political.
“Based on the logical interpretation of the same legal provisions, it follows that in a procedure that involves several authorities, only one has a decisional role, the others being meant to offer regularity to the procedure, without being able to block it. If the President’s prerogative to block the initiative were to be recognised in this procedure, it would leave the prerogatives of the other authorities devoid of content. (…) Consequently, the central, decisional role belongs to the Justice Minister. (…) By analogy, had the President of Romania exercised his refusal on grounds of non-legality, he could have asked the Minister to re-examine. But the procedure of non-legality is not raised, because the President did not invoke it, he invoked the advisability, the political decision,” the Minister said.
Toader complained that Iohannis blocked the dismissal procedure, generating a constitutional conflict between the Government and the President, thus infringing upon his constitutional role and upon the principle of loyal cooperation.
“Through his conduct, the President saw fit to remove – a priori – any loyal collaboration, to block the completion of the dismissal procedure. To ensure the symmetry of the juridical act, the President should have admitted a dismissal from office decree. The symmetry demands that the refusal should have been finalised through a decree too. Otherwise, the President has blocked the dismissal procedure halfway through, he did not say ‘no’ via decree, he said it’s not politically advisable,” Toader explained.
Presidency: Notification does not concern a conflict, because there is no conflict
Presidential advisor Simina Tanasescu, the Presidency’s representative at the CCR meeting dealing with the request to have DNA Chief Prosecutor Laura Codruta Kovesi dismissed, invoked the inadmissibility of the Government’s notification regarding the existence of a juridical conflict of a constitutional nature between the President and the Justice Minister. She said there can be no juridical conflict of a constitutional nature between the President, whose prerogatives are clarified in the Constitution, and the Justice Minister whose prerogatives are stipulated in a law.
“The simple naming of a public authority in the Constitution does not make it an authority whose prerogatives are explained in the constitutional text. From this standpoint, there can be no juridical conflict of a constitutional nature between the President of Romania, whose prerogatives are clarified in the Constitution, and the Justice Minister whose prerogatives are stipulated in a law,” Simina Tanasescu stated.
She explained that when we are talking about constitutional public authorities in the sense of the jurisprudence developed by the Constitutional Court “we are talking about those authorities whose prerogatives are clarified in the constitutional text,” so as to be able to talk about a juridical conflict of a constitutional nature.
“The Justice Minister is a high-level official of the Romanian state. He is the leader of a ministry, a component part of the Government, which is a collective body. The authority of constitutional rank whose prerogatives are clarified in the Constitution is the Government, not the Justice Ministry or the Justice Minister. The minister is undoubtedly a public authority, but not a public authority of constitutional rank,” the presidential advisor explained.
“There can be no juridical conflict of a constitutional nature on the subsidiary side of the notification either, because in this case there is no juridical rapport between the President of Romania and the Government of Romania, nothing has happened between the Head of State and the Government in regard to the issue discussed,” Tanasescu added.
“The notification does not concern a conflict, because there is no conflict,” she concluded.
Tanasescu invoked Article 54, Section 1, of the judicial system law, which shows what the prerogatives of each of the three authorities involved in this procedure are.
“The Minister drew-up a proposal, the Supreme Magistracy Council endorsed it, the President gave an answer. Each of the three authorities acted within the limits of the prerogatives established by Article 54, Section 1,” she added.
In the opinion of the representative of the Presidency, “the President responded via an administrative act; even though it is not a decree, it is an administrative act censurable in administrative court.”
“When censuring this act in administrative court, the preceding act can be censured too, the one that triggered the proposal, otherwise the proposal, in itself, is not an administrative act either and cannot be censured in court but can only be challenged along with the final act,” she claimed.
According to Simina Tanasescu, “to the extent that there are doubts concerning legality or advisability – because administrative courts can check the conditions in which the advisability was exercised, not the advisability in its content –, such aspects are the prerogatives of a different authority, not of the constitutional jurisdiction.”