I. THE CONSTITUTIONAL COURT’S RELATIONSHIP TO PARLIAMENT AND GOVERNMENT Professor Tudorel TOADER, PhD, Judge of the Constitutional Court Marieta SAFTA, PhD, First Assistant Magistrate 1. The role of Parliament (as the case may be, of the Government) in the procedure for appointing judges to the Constitutional Court. Once appointed, can judges of the Constitutional Court be revoked by that same authority? What could be the grounds/ reasons for such revocation? The status of the constitutional judges, starting with the legislative provisions, the powers of the public authorities related to their appointment, the possibility for the same authorities to dismiss them, as well as the grounds for dismissal, duration of the term of office, as well as the possibility of a new term of office as judges are the factors based on which their independence and even the limitations in the fulfilment of their term are measured. 1.1. Parliament’s role in the procedure for appointing the judges to the Constitutional Court. Varying from case to case, Parliaments play an important role, sometimes even exclusive, in the appointment of constitutional judges. a – Parliament has exclusive power to appoint judges to the Constitutional Court. Consequently, in Germany, all constitutional judges are appointed by the Parliament. Half of the judges of a chamber are elected by the Bundestag, whereas the other half – by the Bundesrat – which means the directly elected representation of the people and by the Land representatives, based on the proportional representation rules. In Switzerland, the federal Parliament elects the judges of the Federal Tribunal, based on proposal by the Judicial Committee. In Poland, the 15 constitutional judges are individually appointed for a 9-year term of office, by the first Chamber of the Parliament. In Hungary, the eleven constitutional judges are elected by the Parliament. In Croatia , all thirteen judges are elected by the Croat Parliament. In Montenegro, the Constitutional Court judges are appointed by the Parliament. b - Parliament appoints part of the judges to the Constitutional Court. In France, the nine members of the Constitutional Council are appointed for a nine—year term, and, more specifically, three of them every other three years. With every renewal, one member is appointed by the president of the National Assembly and a second by the President of the Senate. In Latvia , of the seven judges of the Constitutional Court validated by the Parliament, three are proposed by at least ten members of the Parliament. In Lithuania, of the nine constitutional judges, one third is appointed based on proposal by the president of the Parliament. In the Republic of Moldova , the procedure to appoint judges to the Constitutional Court is a result of the principle of separation of powers in the State, enshrined in Article 6 of the Constitution, but also of the exclusive substantive jurisdiction of the Court to enforce this principle. Thus, two judges are appointed by the Parliament, two by the Government and two by the Superior Council of Magistracy (Article 136 par. (2) of the Constitution). In Portugal, the Parliament shall appoint ten out of the 13 judges. In Romania , the appointment of the constitutional judges is based on the provisions of Article 142 par. (3) of the Constitution, as follows: three judges are appointed by the Chamber of Deputies, three by the Senate and three by the President of Romania. It is worth pointing out that the legislator appoints two thirds of the constitutional judges, whereas the executive, through the President of Romania, appoints one third 1 of their total number. In Spain, of the twelve constitutional judges, four are appointed by the Congress of Deputies and four by the Senate. In Armenia, the National Assembly appoints five of the nine members of the Constitutional Court. In Belarus, of a number of 12 judges, six are elected by one of the Chambers of Parliament, whereas other six are appointed by the President of the Republic. In Turkey, two of the 17 judges of the Constitutional Court are elected by the Large National Assembly. The rest of 15 members of the Constitutional Court are selected by the President of the Republic. c – Parliament appoints constitutional judges based on proposal by the Head of State. In Russia, the judges of the Constitutional Court are appointed by the Federation Council, in a secret ballot, based on proposal by the President of the Russian Federation. In Slovenia, judges at the Constitutional Court are elected by the National Assembly, through a secret ballot, based on the majority vote of the total number of Deputies, and based on proposal by the President of the Republic. In Azerbaijan, the appointment of Constitutional Court judges are made by the Parliament, based on recommendation by the President of the Republic. In Slovenia, the Constitutional Court judges are elected by the National Assembly, based on proposal by the President of the Republic of Slovenia. d – Parliament makes proposals to the Head of the State with respect to the appointment of judges to the Constitutional Court. Thus, in Austria , the constitutional judges are appointed by the Federal President, who, is, however, bound by the recommendations made by the other constitutional bodies. Consequently, of the 12 constitutional judges, three are appointed based on the recommendation by the National Council (the Parliamentary Chamber elected through a direct vote based on a proportional system), whereas other three members are appointed based on a proposal by the Federal Council (the Parliamentary Chamber appointed indirectly and which represents the länder of Austria). In Belgium , the 12 judges of the Constitutional Court are appointed by the King based on a list that is alternatively presented to him by the House of Representatives and the Senate. Usually, the King shall appoint the person who ranks first on the list of that House. Consequently, in reality, the judge is not appointed by the King, but by either the Deputies or the Senators. In practice, when they appoint the judges, the parliamentarian assemblies exercise the principle of proportionality, therefore the composition of the Court shall reflect the composition of the assemblies. Consequently, no candidate will have the opportunity of being recommended, unless they have the support of the political group which holds the respective position. e – Parliament expresses its consent in connection with the proposals of the Head of State concerning the appointment of judges to the Constitutional Court. Thus, in Albania, the members of the Constitutional Court shall be appointed by the President of the Republic, with the consent of the Assembly. In the Czech Republic, the Constitutional Court judges are appointed by the President of the Republic, based on the consent of the Senate. f – Parliament does not participate in the appointment of judges to the Constitutional Court. In Luxembourg , the Parliament is not involved in the procedure of appointment of judges, whereas in Ireland , the Parliament does not have a direct role in the appointment of judges at the Supreme Court. In Cyprus , the Parliament does not take part in the appointment of judges at the Supreme Court which is the authority empowered to carry out constitutionality reviews. The members of the Supreme Court are appointed by the President of the Republic. However, the President asks the Court to express its opinion, which is usually observed. 2 1. 2. The Government’s role in the procedure for appointing the judges to the Constitutional Court. In some States, the Government plays an important role, sometimes an exclusive one in the appointment of constitutional judges. a – Government has exclusive power to appoint judges to the Constitutional Court. Thus, in Ireland, the Government has the exclusive jurisdiction to appoint constitutional judges. The Government, after having selected a candidate for appointment, informs the President of Ireland on their appointment, whereas the President officially appoints the candidate. In Norway , the ordinary courts, in whose hierarchy, the Supreme Court rules as a last instance court, are competent to conduct the constitutionality review in terms of laws adopted by the Norwegian Parliament. The Norwegian Parliament does not take part in the appointment of judges. Judges are appointed by the State Council. b – Government appoints part of the judges to the Constitutional Court. In Spain, of the twelve constitutional judges, two are appointed by the Government. c – Government makes proposals for the appointment of judges to the Constitutional Court. Thus, in Austria , constitutional judges are appointed by the Federal President, who, however, is bound by the recommendations made by the other constitutional bodies. Therefore, of the 12 constitutional judges, six are appointment based on proposal by the Federal Government. In Latvia, of the seven judges of the Constitutional Court, who are validated by the Parliament, two are proposed by the Cabinet of Ministers. 1.3. Following their appointment, may the same authority revoke the judges of the constitutional court? In most States, following their appointment, the constitutional judges cannot be dismissed by the authority that vested them with this high office. By exception, the dismissals may be likely to occur, as follows: In Albania , subsequent to their appointment, Constitutional Court judges may only be dismissed by the Assembly, based on a majority vote of two thirds of the number