CCR: There is a conflict between Parliament and High Court over the setting up of 5-judge panels

The Constitutional Court of Romania (CCR) has decided that there is a juridical conflict of a constitutional nature between Parliament and the High Court of Cassation and Justice over the setting up of five-judge panels. The decision was adopted with a majority of votes. On Wednesday, the Constitutional Court admitted the notification that Premier Viorica Dancila had lodged regarding a juridical conflict of a constitutional nature between Parliament and the High Court of Cassation and Justice (ICCJ) over the setting up of panels of five judges. CCR President Valer Dorneanu explained at the end of the meeting that, starting in 2014, the Supreme Court issued several decisions appointing via draws only four members of five-judge panels. Dorneanu added that the High Court must immediately take the necessary measures to set up the five-judge panels, in the sense of appointing via draws all the members of these panels. Premier Viorica Dancila notified the Constitutional Court on October 2 about a conflict of a constitutional nature between Parliament and the High Court of Cassation and Justice. “On 2 October 2018, the Prime Minister lodged with the Constitutional Court ‘a request to solve a juridical conflict of a constitutional nature between the Parliament of Romania on one hand and the High Court of Cassation and Justice on the other, caused by the latter’s refusal, as public authority, to enforce a law adopted by Parliament and by its implicit substitution of the law-making authority.’ The notification is the object of dossier no.1417E/2018,” the CCR informed. Justice Minister Tudorel Toader had stated, prior to that, that the decision adopted by the High Court’s Leadership College on the setting up of the five-judge panels can be attacked in administrative court or the Constitutional Court can be notified. “If the College’s decision represents an administrative act, then it can be attacked in administrative court by those interested. If the College’s decision has the significance of an addition to the law, some modifications to the law in the sense of postponing the coming into force of some provisions, so if we look at it from this perspective then we could talk about the possibility or problem that the High Court may have entered the power of the lawmaker, substituted the lawmaker who adopted a law – good or bad – and it came up with a law and said that this paragraph is to be applied next year, then someone could say, those who can notify the Constitutional Court – a category that does not include the Justice Minister –, that there is a juridical conflict of constitutional nature between the High Court which, via the Leadership College, has postponed the coming into force of a paragraph, of an article of law, and that the High Court cannot adopt acts, measures, of the nature of those falling within the lawmaker’s prerogatives,” Toader explained. In his turn, House Speaker Liviu Dragnea stated, referring to the panel of ICCJ judges handling his dossier concerning the fictitious hiring of personnel at the Teleorman County’s General Directorate for Social Services and Child Protection (DGASPC), that it is non-legal and he will consult his lawyers to see what overtures can be made. “I will analyse with my lawyers what overtures we can do, it’s non-legal (the panel of judges – editor’s note) because the law that amended [Law no.] 304 says an entirely different thing and we believe it is non-legal. I’ll talk to my lawyers and see what overtures we can make,” Dragnea was saying. In early September, the Leadership College of the High Court of Cassation and Justice (ICCJ) decided not to enforce the new provisions of Law no.304/2004 in what concerns the setting up of the five-judge panels. Supreme Court President Cristina Tarcea stated on September 25 that the law amending Law no.304/2004 does not have transitory provisions that would impose the selection of five-judge panels via draws in 2018, the law set to come into force in January 2019.   Toni Grebla: ICCJ should have enforced the amendments to the judiciary organisation law and the five-judge panels should have been set up via draws based on legislation from 2014   Government Secretary General Toni Grebla, former Constitutional Court judge, claims that the ICCJ should have enforced the amendments to the judiciary organisation law and five-judge panels should have been set up via draws based on legislation from 2014, claiming that he found out in informal discussions with the Justice Minister that the latter supports the Government’s point of view on the existence of a juridical conflict of a constitutional nature between Parliament and the ICCJ. “The branches of government must cooperate loyally, so that there are no conflicts – either positive or negative – of a constitutional nature. Another aspect is the observance of the principle of legality that governs the judicial process in Romania,” Toni Grebla said. Toni Grebla presented before CCR judges the Government’s point of view, during the debate on the existence of a potential conflict of a constitutional nature between Parliament and the Supreme Court over the setting up – via draws – of the Supreme Court’s five-judge panels. In this context, asked whether the High Court of Cassation and Justice should have enforced the amendments and all members of the five-judge panels should have been selected via draws, Grebla said: “As the law stipulates ever since February 2014.” At the same time, asked whether Justice Minister Tudorel Toader agrees with the Government’s point of view on this issue, Toni Grebla said that Toader shares that point of view. “Based on my informal talks with the minister, he supports the same point of view, having sound arguments in this sense,” the Government’s Secretary General said.

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