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Cronicile

Government becomes more powerful than Parliament. When reality is entitled to contradict Constitutional Court

de Redacţia 9.2.2017

 

Romania’s Constitutional Court ruled Wednesday, 8 February, following the examination of the request received from President Klaus Iohannis, that there is no constitutional conflict between the state institutions on the OUG13 – in this case, between Parliament and Government.

Although the reasoning of the Constitutional Court seems logical – nobody has the right to contradict a decision of the Constitutional Court. But the reality on the ground does not seem to be bothered by the lack of this right and does that.

Judge Cristi Danilet presents three examples on his blog that support the idea that the Court’s decision makes the Government more powerful than the Parliament: the offenses that the judge presents may become decriminalized in terms of accountability, following the “game” of the decriminalizing ordinances between the executive and legislative powers.

Instead of the examples – extreme – presented by Cristi Danilet we can very well use corruption offenses. To which we can add the combination between the principle of the “criminal” field saying that the most favourable legislation applies to offenders between the act and decision in court, and the “management” of time-limits presented by the judge in his article.

A government can basically introduce, by Emergency Ordinance, the most favourable legislation, even for just one day, which will be taken into account by any judge in deciding the sentence.

We present below the full text frighteningly simple and enlightening:

Government becomes more powerful than Parliament

I shall briefly explain the effect of the yesterday’s decision of the Constitutional Court (CCR), which said that there is no conflict between the Government and the Parliament when the first adopts an Emergency Ordinance (EO) decriminalizing some criminal offenses which, according to the Constitution, should fall within the exclusive jurisdiction of the latter.

SCENARIO ONE:

T0: There is a complaint of committing an offense of rape, under the Criminal Code

T1: The Government decides one night to decriminalize rape by emergency ordinance, published in the Official Gazette and sent to the Parliament

T2: Since the offense of rape does not exist anymore, the case is closed

T3: The Parliament decides that decriminalizing rape is a mistake and rejects the ordinance by law; as consequence, the crime of rape reappears in the Criminal Code

T4: The case file of previously committed rape remains permanently closed because reintroducing the offense of rape has only effects in the future.

SCENARIO TWO:

T0: Somebody commits a murder offense, as defined in the Criminal Code

T1: The Government decides to decriminalize murder by an Ordinance published in the Official Gazette and sent to the Parliament for consideration

T2: The Parliament decides that eliminating the murder offense is a blunder and rejects the ordinance by law enacted just a few hours after the ordinance is published; the offense of murder reappears the next day in the Criminal Code

T3: The Police finds the murder and opens a case file. It discovers that the offense has been committed at the time T0. The prosecutor sees art. 5 paragraph 2 of the Criminal Code (in the case of a succession of laws adopted during a case law, the law that is more favourable applies) and closes the file.

SCENARIO THREE:

T0: The Government decides one night to repeal the offense of robbery in the Criminal Code and adopts an ordinance, publishes it in the Official Gazette and sends it to the Parliament

T1: Somebody hits a person and steals his wallet

T2: The Police finds out about this act and starts the criminal prosecution

T3: The Ombudsman challenges the ordinance in the CCR. The Court says it is unconstitutional to repeal the offense of robbery. This decision is published in the Official Gazette and from that moment becomes compulsory for everybody

T4: The Parliament reintroduces the offense of robbery in the Criminal Code

T5: The Police determines that the offense has been committed at T1. The prosecutor sees art. 5 paragraph 2 of the Criminal Code (in the case of a succession of laws adopted during a case law, the law that is more favourable applies) and closes the file.

Basically, the Government will be able to take any decision of decriminalizing any crimes that will affect pending cases with irreversible effect irrespective of whether the emergency ordinance is thereafter rejected by the Parliament or declared unconstitutional by the CCR. The Government becomes this way even stronger than the Parliament in the legislative activity.”

(Cristi Danilet – Judge at the Cluj Law Court, former CSM member)

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