On May 30, the Constitutional Court of Romania ruled on an alleged conflict between the Minister of Justice and the President of the Republic. CCR issued a press release that glimpses into the legal argument, but the motivation is not yet public. CCR decisions cannot be appealed, and are obligatory once published in the Official Journal. The case refers to the Minister’s proposal to revoke the Chief Anti-Corruption Prosecutor; apparently, CCR ruled that the President must revoke her.
Political outcry, street demonstrations and heated debates ensued, with several legitimate questions preoccupying the analysts and decision-makers alike: In many jurisdictions, the Minister of Justice may revoke the General Prosecutor or the chief prosecutors of specialized structures, so what makes Romania different? In contrast, what other jurisdiction can fathom that an appointed official (Minister) gain leverage over the top elected official (President)? Usually, CCR doesn’t order other institutions around, so how is this situation different? What are the legal and political implications of this ruling? What are the options of the political actors involved?
It seems that Romania falls back to the late 2000s, when CCR played the most salient role in political decision-making. Such a turn of events is an indication that Romania’s strictly political institutions (Parliament, President, Cabinet of Ministers) do not function properly, thus making politicians resort to pulling and tearing at the political arbiter which is CCR. Several explanations may be advanced, from a faulty design of the system, to an inability in political leadership, to the pathologies of “deep” or “parallel” state. Yet, one may argue that political/electoral interests make use of all available tools, especially in the wake of 4 rounds of elections: for European Parliament (May 2019), for President of the Republic (November 2019), for local government (June 2020) and for national Parliament (December 2020).
The following 3 sections explain some of the intricacies of the Romanian Constitution and how it applies to this particular case, but you may want to jump directly to the section on potential consequences, which includes some options for political actors. The most important constitutional question relates to the statute of prosecutors, whether they should be judicial magistrates or executive agents. Comparing the Romanian situation to other jurisdictions is almost impossible, because of the very unique mix of provisions in the Constitution, since the amendments of 2003. The appointment and revocation procedures for chief prosecutors have changed in 2004—aligned with the constitutional changes and EU requirements, in 2005-06—consequence of a new political vision, resulted from the 2004 elections, and are now in the process of changing again, since 2017—consequence of a different political perspective, resulted from the 2016 elections.
Regardless of how the electoral scene will look in the coming months, Romania is stuck with a CCR decision that may reinstate the political control of the Minister of Justice over the prosecutors, and may chip away from the prosecutors’ status as magistrates. That’s not going to change, regardless of who wins any of the upcoming elections, because CCR has more inertia and momentum (9-year mandates for each of the 9 members). The risks of CCR turning into an “oligarchy” are very present, regardless of who wins the elections, at least until politicians decide to amend the Constitution, in order to prevent similar wrongs from happening in the future. The key lies now only with CCR, specifically in how the members choose to mellow down the motivation of their decision, from the belligerent tone of the press release.