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“Emergency constitutional support”: President Iohannis sends laws on judiciary to Venice Commission and asks Constitutional Court to wait for the answer

de Razvan Diaconu , 7.5.2018

President Klaus Iohannis announced on Wednesday that he is referring to the Constitutional Court of Romania the Parliament’s amendments to the three laws on the judiciary. He will also refer to the Venice Commission and publicly asked the Constitutional Court to wait for the Venice Commission’s answer and recommendations.

All these actions are intended to discontinue the promulgation procedure for the three laws, pending the Venice Commission response.

Its recommendations are not mandatory, but they will basically have to be respected, otherwise, there is a risk of reactions from Brussels. For example, the mechanism for assessing the rule of law could be triggered, as was the case with Poland.

With the present format of the package of amendments to these laws, it does not correspond to a democratic state, in the way the Constitution says in Article 1.

I, therefore, decided to send the whole package back to the Constitutional Court and, in parallel, to bring the matter to the Venice Commission.

That is why I appeal to the Constitutional Court not to hurry but work with the European body that has been contributing for almost 30 years to the development of a common constitutional patrimony in Europe and which supports states wishing to align legal and institutional structures to international standards and good practices in the fields of democracy, rule of law and protection of human rights, including by providing urgent constitutional support.

trust that judges of the Constitutional Court respect their status as guarantors of the supremacy of the Basic Law and defenders of democracy by law, so they will have all the openness towards an approach that aims to ensure the observance in Romania of the principles and values of the European democracy.

Once the Court has expressed its views on these matters, I shall make a new analysis of the laws and decide then whether a revision is necessary“, said Klaus Iohannis

President’s statements:

Let us remember how we got here. In the autumn of 2016, there was an electoral campaign for Parliament and PSD played the people with a milk and honey program and won the elections, but something totally different followed. The assault on the judiciary from the PSD started.

Then at the beginning of 2017, they came with that infamous OUG 13. That ordinance we managed to stop it together. Hundreds of thousands of Romanians in good faith protested in the street.

The assault has moved to the Parliament, and the outcome of the parliamentary move to amend the laws on the judiciary has now reached the point of the promulgation of these laws.

The original procedure, the rush without any justification and the authoritarian way in running the parliamentary debates resulted in a great deal of mistrust.

The reform of the judiciary, as called for by PSD, is still being challenged by the professional associations of magistrates and creates great concerns from our foreign partners.

In an authentic democracy, the separation of powers in the state means a constructive collaboration, respect among institutions, balance and mutual control between them. Laws on the judiciary have an important role. They have been adopted within a week. It took four months and three decisions of the Constitutional Court to correct them. Everybody would have won if they were debated in the right way.

I find that the three laws are not fully adequate either to the domestic constitutional framework or to the European standards in the field.

Provisions in the Law on the regulations of judges have been declared unconstitutional on two occasions. Some provisions are still contrary to the Constitution.

The law on the judicial organization has already come to promulgation but it still raises some issues. The new rules on the admission to the magistracy pose a risk of blocking the judiciary system. New structures have been created that could intimidate the magistrates.

Nor is the law on CSM having a happier wording. It establishes a segregation of the guarantor of the independence of the judiciary by a massive transfer from the CSM plenum to the sections, probably based on the “Divide et impera” principle.

The Venice Commission has already been notified on March 26 by the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE), following the request from PNL and the Judges’ Forum.

Initially, the head of state said he would not refer to the Venice Commission, but he has not explained his decision.

The three laws amended by PSD – ALDE:

  • Law 303/2004 on the regulations of judges
  • Law 304/2004 on the judicial organization
  • Law 317/2004 on the organization and functioning of CSM

After the second constitutional review, two of the three laws on the judiciary have been declared constitutional, and the provisions of Law 303/2004 on the regulations of judges declared unconstitutional will be discussed in the special parliamentary committee led by Florin Iordache, after the Constitutional Court publishes the reasons for this decision.

The two laws that have been declared constitutional are in the promulgation process and there is no possibility of suspending this procedure. According to the Constitution, the head of state is obliged to promulgate a law within 10 days since receiving the Constitutional Court decision, if there was a referral, and the judges of the Court considered it constitutional.

 

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