[ad_1]
In recent months, the prime minister has made strong accusations against the RCC’s decisions aimed at taking action to combat the Covid-19 pandemic and the prospect of postponing parliamentary elections. Their positions aroused the astonishment and anger of Valer Dorneanu, president of the ICR, who demanded due respect from the Constitutional Court and threatened to refer the matter to the Venice Commission, the European Commission and other international bodies.
Dorneanu won’t and he knows why: the Venice Commission gave him a little film about the earlier dispute he filed, in relation to the scandal of the mandate of former judge Petre Lăzăroiu, and the European Commission will probably not too easily forget that Mr. Dorneanu he was the one who asked not to be disturbed in the context of the dialogues within the Cooperation and Verification Mechanism.
It seems at least strange that, until his age, Mr. Dorneanu did not find out about an elementary thing: respect is earned, not imposed. Also, it is difficult to win and very easy to lose.
This is what the Venice Commission itself says on this issue: “A Constitutional Court, like any other court, deserves on the one hand institutional respect, but on the other it must respect its own rules.” Nice, right? And again, also from the Venice Commission: “For reasons of constitutional stability and legal certainty, a Constitutional Court must be consistent with its own jurisprudence; it must change its jurisprudence only when it is justified, from the legal point of view, in exceptional cases, or when new facts arise or when the interpretation it gives to the law has justifiably evolved ”.
These considerations of the Venice Commission were made in a very exceptional case: that of the Constitutional Court of the Republic of Moldova, which was forced to resign en bloc after committing some political filth too abruptly. But this does not mean that they cannot be applied in the case of other Constitutional Courts, such as that of Romania, which only took care not to act so abruptly.
Therefore, according to the Venice Commission, the respect that we owe, in principle, to the Constitutional Court is not absolute and unconditional. From the moment the Court violates its own regulations, it changes its jurisprudence totally untimely and unjustifiably and induces a state of legal uncertainty even greater than the situation it has to judge, since from that moment the Court is no longer exempt from criticism. What Prime Minister Ludovic Orban did. Only that…
… Unlike the others, Prime Minister Orban is the only one who, through a set of circumstances that the CCR itself has built, has the opportunity to do something concrete, fast and unbeatable to bring the Constitutional Court to his natural path. derailed in recent years. This is the case of Kovesi v. Romania of the ECHR, in which the Constitutional Court played a leading role.
The decision to convict Romania for the manner in which the DNA chief prosecutor was removed from office was pronounced on May 5, 2020 and became final, by non-appeal to the Grand Chamber, on August 5, 2020. According to the ECHR procedure , from that moment on, the Romanian Government must submit to the Strasbourg Court, more precisely to the Committee of Ministers, the body that supervises the application of the Court’s decisions, a plan of measures to implement the May 5 decision. So far, according to the ECHR website, the Romanian government has yet to present the plan of measures.
But the measures that the Government may transmit may contain exactly what Prime Minister Orban says is imperatively necessary: a substantial reform of the Constitutional Court, so that we no longer see political con artists like Valer Dorneanu or others like him. . Once these measures are transmitted, negotiated and accepted by the Committee of Ministers, they become obligations for Romania, no matter how much one or the other barks through Parliament or various press warnings.
Ludovic Orban therefore has, through this mechanism, the unique opportunity to impose the reform of the Constitutional Court under the aegis and undisputed authority of the European Court of Human Rights.
Frankly, Prime Minister Orban shouldn’t even reinvent hot water. Two magistrates’ associations, the Forum of Judges and the Justice Initiative, have already sent a memorandum in Strasbourg since August 18 with some measures that should be taken in application of the ECHR decision. Some measures are aimed at constitutional changes, others are only legislative, but together they form a good basis for discussion on which to build. Regarding the reform of the Constitutional Court, the proposals of the two associations point to the following – consistent – amendments:
* Establish an express prohibition in such a way that legal disputes of a constitutional nature can no longer become common law proceedings, interfering with the jurisdiction of ordinary courts (as was the case with Kovesi, and in the cases related to panels 3 and 5 of the Superior Court, but also in many other cases).
* Establish the possibility of reviewing a decision of the Constitutional Court if the ECHR determines that that decision violates a fundamental right (as in the case of Kovesi).
* Regulation of the prohibition of appointing CCR to people who were members of a political party 5 years before the appointment.
* Regulate that some of the ICR judges be appointed by the judiciary, not only by the political power, as it is now.
* The number of judges should be increased from 9 to 15, simultaneously with the return to the appellate court system: panels of 7 judges will judge in the first instance and the Plenary will judge the appeal.
* Prohibition of former constitutional judges from holding politically appointed positions in the first 3 years after the end of their mandate.
Sounds interesting right? If at least some of these measures, in this case those that do not require constitutional changes, but only legislative ones, can be implemented in the next year and a half, we have a good chance starting in the summer of 2022, when three terms in CCR are renewed. (Dorneanu, Pivniceru, Morar), so that we can start talking about an institution recovered from the clutches of the party and the state mafia.
Therefore, it remains to be seen to what extent Ludovic Orban is capable of playing this formidable ball raised by the very institution that he verbally criticizes so harshly: the Constitutional Court.
