Strasbourg, 5 September 2012 CDL-REF(2012)031 Opinion 685/2012 Engl. only EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) CONSTITUTIONAL ISSUES IN ROMANIA DECISIONS, RULINGS AND OPINIONS OF THE CONSTITUTIONAL COURT (Translations from Romanian provided by the Romanian Authorities) This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int CDL-REF(2012)031 - 2 - Table of Contents ADVISORY OPINION no. 1 of 6 July 2012 of the Constitutional Court, concerning the proposal to suspend from office the President of Romania, Mr. Traian B ăsescu................... 3 RULING no. 1 of 9 July 2012 of the Constitutional Court on ascertaining the existence of the circumstances justifying the ad interim exercise of the office of President of Romania........ 21 DECISION no. 727 of 9 July 2012 on the referral of unconstitutionality of the Law amending Article 27(1) of Law no. 47/1992 on the Organisation and Operation of the Constitutional Court................................................................................................................................... 25 DECISION no. 728 of 9 July 2012 of the Constitutional Court on the rejection of the claim of inconsistency with the Constitution of the Decision of the Senate no. 24 of 3 July 2012 for the dismissal of Mr. Vasile Blaga from the office of President of the Senate ....................... 34 DECISION no. 729 of 9 July 2012 of the Constitutional Court on the rejection of the claim of inconsistency with the Constitution of the Decision of the Chamber of Deputies no. 25 of 3 July 2012, on the dismissal of Mrs. Roberta Alma Anastase from the office of President and member of the Permanent Bureau of the Chamber of Deputies .......................................... 43 DECISION no. 732 of 9 July 2012 of the Constitutional Court on the rejection of the claim of inconsistency with the Constitution of the Decision of the Parliament no. 32 of 3 July 2012 for the dismissal of Mr. Gheorghe Iancu from the office of Ombudsperson................ 52 DECISION No. 731 of 10 July 2012 of the Constitutional Court on the rejection of the claim of inconsistency with the Constitution of the Law amending Article 10 of Law No. 3/2000 concerning the Organization of the Referendum ................................................................. 63 DECISION no. 734 of 24 July 2012 of the Constitutional Court on the rejection of the claim of inconsistency with the Constitution of the provisions of Article 3 of the Decision of the Parliament no. 34 of 6 July 2012 concerning the establishment of the object and of the date of the national referendum for the dismissal of the President of Romania ........................... 71 RULING no. 3 of 2 August 2012 of the Constitutional Court on the claims related to the compliance with the procedure for the organization and carrying out of national referendum of 29 July 2012 for the dismissal of the President of Romania, Mr. Traian Basescu............ 79 PRESS RELEASE [of the Constitutional Court issued on 14 August 2012]......................... 92 RULING no. 6 of 21 August 2012 on the compliance with the procedure for the organization and conduct of the national referendum of 29 July 2012 for the dismissal of the President of Romania, Mr. Traian Basescu, and on the confirmation of its results .............. 93 - 3 - CDL-REF(2012)031 ADVISORY OPINION no. 1 of 6 July 2012 of the Constitutional Court, concerning the proposal to suspend from office the President of Romania, Mr. Traian B ăsescu Published in the Official Journal of Romania no. 456 of 6 July 2012 By means of Letter no. 1/1.023/VZ dated 5 July 2012, the two chambers of the Parliament of Romania requested the Constitutional Court, in accordance with the provisions of Article 95 and Article 146 (h) of the Constitution of Romania, of Articles 42 and 43 of Law no. 47/1992 on the organization and functioning of the Constitutional Court, as well as of Articles 67 and 68 of the Regulation of reunited meetings of the Chamber of Deputies and of the Senate, to issue, no later than 6 July 2012, 12:00 hours, the advisory opinion on the proposal to suspend from office the President of Romania, Mr. Traian B ăsescu. The letter was registered with the Constitutional Court under no. 4.617 dated 5 July 2012, forming the object of File no. 1,200H/2012, together with the following documents: - the proposal to suspend from office the President of Romania, Mr. Traian B ăsescu, initiated by 154 deputies and senators; - the letter sent to the President of Romania by the chairpersons of the two Chambers of the Parliament on 4 July 2012, informing the latter of the submission of the proposal of suspension from office and advising the date of the joint meeting of the two Chambers of 5 July 2012, 10:00 hours, on the agenda of which the request for suspension was included; - the shorthand of the reunited meeting of the Chamber of Deputies and of the Senate, from 5 July 2012. Having analyzed the request for intervention submitted to the file, after deliberations, the Court dismissed the requests submitted. Having examined the proposal to suspend Mr. Traian B ăsescu from the office of the President of Romania, the standpoint delivered by the President of Romania and the other documents indicated herein above, the Constitutional Court ascertains as follows: 1. The provisions of the Constitution of Romania which, in accordance with the proposal to suspend from office, were infringed by grave acts committed by the President of Romania, Mr. Traian B ăsescu, are as follows: Article 1 (3), (4) and (5) – the Romanian State; Article 8 – Pluralism and political parties; Article 16 – Equality of rights; Article 21 – Free access to justice; Article 23 (3) – Individual freedom; Article 34 – Right to protection of health; Article 47 (2) – Living standard; Article 77 – Promulgation of laws; Article 80 – the President of Romania; Article 82 (2) – Validation of mandate and oath-taking; Article 84 – Incompatibilities and immunities; Article 102 – Role and structure of the Government; Article 134 (2) – Powers of the Superior Council of Magistracy; Article 142 (2) – Structure of the Constitutional Court; Article 147 – Decisions of the Constitutional Court; Article 150 (1) – Initiative to revise the Constitution. 2. Article 95 (1) of the Fundamental Law stipulates that the President of Romania may be suspended from office “ in case of having committed grave acts infringing upon constitutional provisions ”. Given that the constitutional provision fails to define the notion of “ grave acts ”, in order to determine whether the conditions are met to suspend from office the President of Romania, the Constitutional Court, through Advisory Opinion no. 1 dated April 5, 2007 CDL-REF(2012)031 - 4 - on the proposal to suspend from office the President of Romania, Mr. Traian B ăsescu, published in the Official Journal of Romania, Part I, no. 258 of 18 April 2007, stated that “ It is obvious that an act, namely an action or an inaction, infringing upon the constitutional provisions, is grave in relation to the very object of the infringement. However, in regulating the procedure to suspend from office the President of Romania, the Constitution does not stick to this meaning as, in this case, the phrase <<grave acts>> would have no meaning. Analyzing the distinction contained in the provision quoted above and taking into consideration the fact that the Fundamental Law is a normative legal document, the Constitutional Court finds that not any act infringing upon the constitutional provisions may justify the suspension of the President of Romania from office, but only <<grave acts>>, having the complex meaning held by this notion in the science and practice of law. From the legal standpoint, the severity of an act is assessed depending on the value it prejudices, as well as its damaging consequences, occurred or potential, on the means used, on the person of the author of the act and, not last, with the subjective position thereof, on the purpose for which the act was committed. By applying these criteria on the acts infringing upon the constitutional legal order referred to in Article 95 (1) of the Fundamental Law, the Court notes that there may be deemed as grave acts infringing upon the constitutional provisions the acts of decision or circumventing the fulfillment of certain mandatory decision acts, whereby the President of Romania would hamper the functioning of public authorities, would suppress or restrict the rights and freedoms of the citizens, would disturb the constitutional order or would seek to change the constitutional order or other acts of similar nature, which would or could entail similar effects .” 3. The proposal to suspend from office the President of Romania, Mr. Traian Băsescu, is divided into the preamble and 7 chapters representing the reasons underlying the suspension proposal, setting forth several infringements or categories of infringements upon the constitutional provisions. 3.1. In the preamble of the proposal to suspend from office, it is stated that, “ starting with 6 December 2009, democracy and the rule of law witnessed an extensive process of erosion, of replacing the institutions of the state subject to the rule of law provided by the Constitution of Romania, reaching the situation where the political will and action are concentrated, in a discretionary and unconstitutional manner, in the hands of a single individual – the President of the country ”, who “ came to dictate to the executive power, to the legislative and judicial powers, which equals to a grave departure from the fundamental principles of the Constitution of Romania ”. At the same time, it is emphasized that “ under such circumstances, the institutions of the democratic state, as defined in the Constitution of Romania, in accordance with the principle regarding the separation of State powers, were faced with the practical impossibility to continue their function.