Romanian Presidential Commission Is Unconstitutional

In the November 27 meeting, the Constitutional Court ruled on the exception of unconstitutionality of the provisions of article s 12 – 22 of Chapter III "The procedure for investigation and trial" of Law no.115/1999 on minister responsibility, those of article 23 and article 24 of the same law, as well as those of articles I and II of Government Emergency Ordinance 95/2007 amending Law no.115/1999 on minister responsibility.

The court unanimously decided that the provisions of article 16 of Law no.115/1999 on minister responsibility and those of Government Emergency Ordinance no.95/2007 amending Law no.115/1999 on minister responsibility are unconstitutional.

The exception of unconstitutionality of article 23 paragraphs (2) and (3) of Law no.115/1999 was rejected as inadmissible, since the mentioned provisions had been declared unconstitutional through a previous decision by the Constitutional Court (Decision no.665 on July 5, 2007, published in the Official Gazette of Romania, Part I, no. 547 on August 10, 2007).

The arguments motivating the ruling of the court will be included in the decision, which will be published in the Official Gazette of Romania, Part I.

According to the recent amendments in the Law on minister responsibility, performed by the government through Emergency Ordinance, the presidential commission, which issues, to prosecutors’ offices, approvals for the initiation o criminal investigation against a minister, is formed of five judges (before this amendment, the commission included, according to Government Emergency Ordinance 3/2005, representatives of the Ministry of Justice, the Ministry of Interior and the Presidency).

As soon as Law 115 was amended through Government Emergency Ordinance 95/2007, the Association of Magistrates in Romania and the National Union of Judges challenged the legality of the special presidential commission mentioned by the Law on minister responsibility. The organizations initiated legal action in the contentious administrative court, which targets the regulations for the appointment of the five judges in the commission.

According to the magistrates, the commission compiled on a presidential administration level gains administrative nature, which is the attribute of executive power, since it is deprived of the essential attribute of judicial power: the power to decide on the cause in which it is notified.

In fact, the judges become mere political instruments in a battle separated from the purposes and interests of judicial power. If laws can be imposed, and judges have the obligation to observe them, their conscience cannot be deterred or forced to submit to context interests such as those present in the political class, the magistrates add.