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September 22, 2019
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Bucharest Court of Appeal: Unlawful extension of the Chief of General Staff term, signed by Iohannis, causes a serious predictable perturbation on the functioning of the Army

On Thursday, Bucharest Court of Appeal published the reasoning in the trial of the Defense Minister against President Klaus Iohannis. A judge from the Bucharest Court of Appeal claims there is serious doubt on the legality of the decree signed by President Klaus Iohannis by which the term of the Chief of General Staff of Defense (SMAp), General Nicolae Ciuca, was extended. The magistrate appreciates that the unlawful extension of the term of General Nicolae Ciuca “causes a serious predictable perturbation on the functioning of the Army”.

Thus, the judges of the Court of Appeal published the reasons for which Judge Vasile Bicu admitted, on January 31, a request submitted by the Ministry of National Defense (MApN) and suspended the decree extending the head of Army’s term, signed by President Klaus Iohannis.

“The Court appreciates there is a serious doubt on the legality of the Decree no.1331/2018, since the requirements provided by Art.39 par.(5) of the Law no.346/2006 have not been observed”, Judge Vasile Bicu says.

Art.39 par.(5) of the Law no.346/2006 states: “The Chief of General Staff of Defense is the military with the highest leading rank in the Army, appointed by the Romanian President at the proposal of the Minister National Defense, with the Prime Minister’s positive opinion, for a term of 4 years, with the possibility of being extended up to one year. His deputy or one of the heads of the force categories of the Army can be appointed as the head of the General Staff of Defense”.

Vasile Bicu claims that the decree signed by Iohannis wasn’t based on the proposal of the Minister of National Defense, Gabriel Les, or PM Viorica Dancila’s positive opinion.

According to the magistrate’s opinion, the principle of symmetry of legal documents should apply in this case, according to which the validity requirements stated by the law are applicable not only at the time of issuing (concluding) the legal document, but also at the time of extending its legal consequences.

The magistrate considers that the unlawful extension of General Nicolae Ciuca’s term causes a serious predictable perturbation of the functioning of the Army”.

“The Court considers that breaching the law by extending the term of the head of General Staff of Defense causes a serious predictable perturbation of the functioning of the Army, in the circumstances in which, on the one hand, the head of the General Staff of Defense is the military with the highest leading rank in the Army, and on the other hand, the mandate of the head of the General Staff of Defense is unlawfully held by a person who will unlawfully exert the legal duties recognized for this position, being provided, among others, with information classified as ‘state secret’ or ‘work secret’. Defendant’s statement according to which the Army remains without leadership is ungrounded, given that (…) exerts the leadership until the appointment of another head of General Staff of Defense. For these reasons, based on Art.14 of the Law no.554/2004, the Court is to partly admit the suspension request and to order the suspension of the execution of the Decree no.1331/2018 until the first Court will deliver its solution”, reads the Court’s decision.

On December 28, 2018, President Klaus Iohannis announced he signed the decree extending General Nicolae Ciuca’s term as the head of SMAp. At that time Iohannis also mentioned that the proposal of the Defense Minister Gabriel Les on appointing General Dumitru Scarlat as the head of the General Staff of Defense wasn’t approved.

Later, the Defense Minister submitted a preliminary complaint to the Presidential Administration, requesting the revocation of the decree of December 28, 2018.

On January 9, the Defense Minister Gabriel Les claimed that the decree extending Nicolae Ciuca’s term “was unlawful”, adding that “the Court will decide” which is the situation according to the law.

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