csongor kuti: muddling through democratic transition. the ... · pdf filedraft. please do not...

DRAFT. PLEASE DO NOT QUOTE!

Csongor Kuti: Muddling through democratic transition. The Romanian Constitutional Court.

Romania’s first democratic constitution has entered into force towards the end of 1991, while theConstitutional Court began its activity the next year, issuing its first decision on 30 th of June 1992. Itis envisaged as a political institution that is not a part of the judicial system, although only legalprofessionals might be appointed as judges. The Court is made up of nine judges, six of themappointed by Parliament (each of the two chambers appointing three members, with a simplemajority vote), while the remaining three designated by the President. The first quarter of centuryof the Courts’ activity might be divided in two major parts; the watershed being the 2003 revision ofthe Constitution, which brought significant changes also to the Court’s institutional arrangements.Another distinction might be made from the perspective of the docket of the Court: in the periodbetween 2007 and 2012 the Court issued more than 1.000 decisions per year.1 This period covers one of the most tumultuous phases of post-communist Romanian politics, duringwhich the President of the Republic faced two attempts of impeachment, in the years 2007 and2012. The Court’s huge workload has also procedural explanations: it has no preliminary screeningmechanisms, thus each complaint is decided upon by the full Court. Further, as individualcomplaints can reach the Court solely by way of exceptions raised before regular courts, regardingthe constitutionality of the legal norms applicable in a given case, the Court might be facingrecurring complaints regarding the same issue. Consequently, in the analyzed period (1992-2015),roughly 80% of the judgments covered by this research were refusals or rejections. Adopting a strong positivist stance, the Court is reluctant to become a “positive legislator”, hence itgenerally refrains from offering consistent remedies, leaving it up to the Parliament to decide uponhow to correct faulty legislation. Further, in more than 10% of the cases in which the Court foundfor the plaintiff, it sought to identify such an interpretation of the given text that could be in linewith constitutional requirements and therefore managed to refrain from declaring itunconstitutional.This article focuses on the two periods of time in which the average strength of the Court’sdecisions produced the lowest degree of variation: 2001-2004 and 2009-2012; analyzing the trendsin the strength of the decisions in order to determine whether, and how the ifluence of variousfactors are reflected by the Court’s activity. The enquiry concludes that the Constitutional Court has never been a strong check upon Parliament.In the past decade, during which tensions between Government and/or Parliament and thePresidency have escalated, the Court had several occasions to become an arbitrator, a role that itwas not particularly enthusiastic to interpret.

1. Historical background

The first full-fledged Romanian constitution dates back to 1866, even if, for roughly a decade, thecountry remained under Ottoman suzerainty. The fundamental law was not an embodiment ofRomanian constitutional culture, but rather a transplant: a massive ideological and institutionalimport of Western constitutionalism. Whatever the reasons may have been, the Belgian constitutionof 1831 was the main source of inspiration for the Romanian drafters. Albeit, as theoristsemphasize, the constitutions' ethnocentric (xenophobic, anti-Semitic, Christian orthodoxy-centered)approach to nation and citizenship was at odds with liberal constitutional values and principles.2

Unfortunately, Romanian constitutionalism did not have a particularly long history, since it1 Out of the 16338 rulings of the analyzed period, more than half, concretely 8755, have been issued in the years 2007-2012. In the rest of the period, the number of the decisions surpassed 900 only twice (2006 and 2015).

1


practically ended in 1938, with the installation of an authoritarian monarchy, only to besubsequently replaced by the communist regime as of 1948, which lasted until the tumultuouswinter of 1989.

By the end of the 19th century, the Romanian state evolved towards a limited monarchy3 ruled by amoderately authoritarian monarch.4 Unsurprisingly, the constitution, as well the political system andthe entire idea of modernization by transplant came under serious criticism.5 The subsequent, 1923 and 1938, constitutions did not essentially improve the quality of Romanianconstitutionalism. Although the 1923 constitution encapsulated most of the latest developments ofmodern constitutionalism, the gap between “constitutional” and “real” Romania was perpetuated.The 1938 constitution terminated de jure the parliamentary system by proclaiming a constitutionalmonarchy, instating a single-party authoritarian system .

It might seem harsh, but it can be safely stated that genuine democracy has never existed in pre-communist Romania, not even in the “golden years” of inter-war Great Romania: all there wasmerely a succession of more or less authoritarian regimes. Thus, after the fall of communism, whena new democracy had to be drafted, there was nothing to return to, no healthy democratic orconstitutional tradition to build upon.

In this context, the absence of any control of constitutionality was a natural consequence. Indeed,after the adoption of the first constitution (of 1866), for almost 60 years, no meaningful attempts toreview the constitutionality of a legislative act has been recorded.The 1923 Constitution legitimized judicial review, but in the same time restricted it to the exclusivecompetence of the united chambers of the Supreme Court, regular courts retaining only the power toexamine the formal constitutionality of laws. It has also been specified that the effects of aconstitutionality review decision extend only to the specific case in question.Complaints of unconstitutionality were to be decided only when the parties have exhausted allpossible remedies. However, under this system of judicial review, only a single decisoin ofunconstitutionality has been passed.6

2. Post-communist constitutionalism

Amongst the Central and Eastern European regime changes, the Romanian case proved to be themost violent, claiming several hundreds of lives and culminating with the execution of PresidentNicolae Ceausescu and his wife, Elena Ceausescu, Deputy prime minister, after a death sentencepronounced by an ad-hoc martial-law tribunal in a summary, single-hearing scam ‘trial’.

2Gutan, Manuel: Historic Overview of the Romanian Constitutionalism, 2012,<http//papers.ssrn.com/sol3/papers.cfm?abstract_id=2089403>, visited 15 september 20143Gutan, Manuel, supra n. 34It is intriguing, how the figure of the benevolent dictator haunted Romanian public life, starting with Prince Cuza, who unified the Romanian principalities, through King Carol, who laid the foundations of modern Romania and won the war of independence, marshal Antonescu, who governed the country during WWII., and right up to Ceausescu, the communist dictator.5 The most influential critique of imported modernism was worded by Titu Maiorescu's short article “Against the current direction in Romanian culture”, published in 1868 and which introduced the famous concept of “forms without content”, so as to designate the incongruity between the modernity of the imported western institutions, values or ideas and the economic, social, cultural and intellectual development of the Romanian society (Schifirnet, Constatin: Formelefara fond, un brand romanesc, Comunicare.ro, Bucuresti, 2007, pp. 51-80).6Karoly Benke, supra n. 7

2


This violent toppling of the communist dictator suggested a profound rupture with the past. Albeitin reality, a significant continuity could have been observed: second-, and third-rank members of thecommunist nomenklatura stepped up to seize power and dominate Romanian politics for years tocome. The post-communist National Salvation Front, which gained a more than 2/3 majority in theconstituent assembly, dominated the constitution-drafting process. Hence, there were shallowdebates on the constitution’s text, the voting procedure (simple majority on articles, 2/3 on the finaltext) allowed the victors’ to impose their vision without any meaningful opposition. The ensuingreferendum, which took place on December 8., 1991, as a final step in the constitution-makingprocess, was merely a legitimating exercise.7

This does not mean that the 1991 Romanian Constitution was an utterly bad construction. Just liketheir 19th century ancestors, post-communist drafters attempted to import and engendercontemporary democratic institutions – of course tailored to their particular interests that resulted ina few shortcomings, partly corrected by the 2003 revision. Arguably, it was less the text of the Constitution per se, and more the circumstances of its adoptionthat exerted a negative effect on the development of Romanian constitutionalism. Due to the hugemajority obtained by the dominating party – staffed with members of ex-communist nomenklatura,whose primary interest was to cement their supremacy for years to come – which allowed it to draftthe Constitution as it pleased, without any meaningful debates, a significant moment was wasted.The shortness of the passage from a single-party dictatorship to a democratically elected constituentassembly (in less than six months, with elections taking place in May 1990), meant that no seriouspolitical forces could assemble, no relevant civil movements could crystallize. Consequently, therewas no serious political or social debate upon the constitutional principles, ideas and institutions,whereas such a debate would have been essential for the development of a modern constitutional(and democratic) culture.

The 2003 revision managed to correct some of the Constitutions’ ambiguities (notably after theadoption of the “acquis communautaire”, under the pressure of the imminent EU accession, whichnicely parallels 19th Century efforts to correspond to Western standards), such as a clear reference toseparation of powers, the consolidation of the Constitutional Court as final arbiter, expressprovisions on equality, access to culture and on fair trial8. Judicial review powers were carved out by Romanian courts in the first half of the 20 th Century, andlater formalized by the 1923 Constitution, while the institution of constitutional review (i.e. controlof constitutionality performed by a specialized court, created for this very purpose) was unknown inRomanian constitutional tradition.According to a former president of the Constitutional Court, there was hardly a consensus in theconstituent assembly about the necessity of a constitutional court.9 Many perceived it as anundemocratic political authority, while the judicial system feared that the new court is an attempt tolimit their powers. Especially that in 1990, before the adoption of the new Constitution, theSupreme Court attempted to perform judicial review in several occasions.10

Perhaps a consequence of this distrust, the Constitutional Court was not credited as final arbiter: itcould not decide conflicts between public institutions, and Parliament could override its a priori

7Lungu, Ioana, supra n. 128Blokker, Paul, supra n. 139Mungiu-Pippidi, Alina: Interview with President of the Romanian Constitutional Court, Ion Muraru, East Europea Constitutional Review, winter 1997, pp. 78-8310Tanasescu, Simina: Constitutional Review of Judicial Activism? International Journal of Law and Jurisprudence Law Review vol III, issue2, July-December 2013, pp. 19-36, <http://www.internationallawreview.eu/article/constitutional-review-or-judicial-activism> visited 15 september 2014

3


review rulings with a 2/3 majority. (It must be noted, however, that Parliament has never managedto make use of this power.)

Unfortunately, for more than a decade, the Court maintained ‘a marginal, almost irrelevant’ stance,and the language and logic of constitutionalism was absent from public debates.11 While authorsheavily criticized the Court for its ‘silence and ignorance’12, it has to be admitted in fairness, that theCourt managed to pass a small number of significant decisions. For instance in 1992 it imposedseparation of powers as constitutional standard, even if until the 2003 revision this fundamentalprinciple was missing from the Constitution’s text, or, in 1994, it found unconstitutional theexecutive’s practice of adopting delegated legislation (ordinances) to circumvent decisions ofunconstitutionality. In the late 1990s the Court’s case law focused mainly on individual rights, and iteven managed to identify new fundamental rights, previously not enshrined in the Constitution,such as the right to positive discrimination, inferred from the principle of equality.13

Taking it all together however, up until the mid-2000s, the Court has rather been passive, muddlingdiscretely in the background of the democratization process. Unlike some of its counterparts fromthe region – such as the Hungarian or Polish bodies – it was largely absent from the transitionprocess.A contrary view – in a stunning display of instrumentalism – explains the Court’s passivity by theConstitution’s alleged role as motor of transition and precondition for the creation of democraticinstitutions. Accordingly, the Court’s role was simply to enforce the Constitution, without any needfor ‘creativity’ or activism.14 However, beyond the elements of institutional design – identifiableespecially in the 1991 Constitution – that support this theory (the power of the Parliament tooverride a priori review rulings or the exclusion of institutional conflicts from its competence),there are also indications that the Court’s passive attitude was consciously assumed, perhaps themost obvious of them being the often restated concern (in the text of its own decisions) for notbecoming a “positive legislator”.

3. Institutional arrangements

As it has already been mentioned, the specific settings of the Court are contained by theConstitution and the Law for the organizing and functioning of the Constitutional Court. Both ofthese norms have been ammended during the years, altering to some degree the initial institutionalarranegements of the Court.Provisions pertaining to the appointment of judges and their term of office remained unchanged.The Court is composed of nine judges, six of them appointed by the Parliament (each chamberappointing three judges) and the rest by the President of the Republic. Judges’ enjoy a nine-year nonrenewable mandate and the first court has been appointed in such a way so as to ensure the renewalof one third of the composition of the Court every three years. The President of the Court is electedby the judges and holds office for three years. Judges must hold a law degree, must enjoy a ‘highdegree of professional competence’ and must have at least 18 years professional experience, either

11 Iancu, Bogdan: Constitutionalism in Perpetual Transition: The Case of Romania, in: Iancu. Bogdan (ed): The Law/Politics Distinction in Contemporary Public Law Adjudication, Eleven International Publishing, 2009, pp. 187-21112Weber, Renate: The Romanian Constitutional Court: In Search of its Own Identity, in: Sadurski, Wojciech (ed): Constitutional Justic, East and West. Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective, Kluwer International, 2002, pp. 283-30813Tanasescu, Simina, supra n. 2014Tanasescu, Simina, supra n. 20

4


as practicians or as academics. Interestingly, several members of the first court have also beenmembers of the constitution drafting committee and it has been a constant practice to appointmembers of Parliament as justices, while for members of the judiciary (judges or prosecutors) isless common to become constitutional justices.

Initially, the Court’s review powers comprised the a priori review of bills, the review ofParliaments’ rules and regulations, the a posteriori review of laws and governmental ordinances,and the ex officio review of Constitutional revision bills. Apart from these (and less relevant from the perspective of the present research), the Court had thepower to supervise the election procedure of the President of Romania and to confirm the results ofthe elections, to ascertain the existence of the circumstances justifying the interim in the exercise ofthe position of President of Romania, to issue an advisory opinion on the suspension from office ofthe President of Romania, to supervise the organisation of referendums, to verify citizens’legislative initiatives and to decide on motions which contest the constitutionality of politicalparties.A priori review motions could have been lodged by the President of Romania, the presidents of thetwo chambers of the parliament, members of parliament (at least 50 deputies or 25 senators), theGovernment and by the President of the Supreme Court. For the review of Parliaments’ rules andregulations, the presidents of the two chambers of the parliament, members of the parliament (insame numbers as above) or a parlimentary group might file a complaint. A posteriori review of lawsor governmental ordinances was possible only by way of exception raised before ordinary courts ofjustice during regular litigation proceedings by the parties or by the court, (the referring court could,but did not necessarely had, to suspended litigation until the exception was decided upon by theConstitutional Court).While in the first two cases (a priori review and review of Parliaments’ rules and regulations)decisions had to be taken by the full court, with no possiblity of appeal, in the case of a posteriorireview motions, decisions were taken by a panel of three judges appointed by the President of theCourt with the possibility of appeal to a panel of five judges, chaired by the President of the Court. If procedures have not been halted before the referring court, admission decisions constituted causefor retrial (upon the request of the party which raised the exception in civil litigation and ex officioin penal litigation, if the conviction has been passed on the basis of a provision declared asunconstitutional).Decisions of the Court were mandatory and had effects only for the future (from the moment oftheir publication in the Official Gazette).

The first important alteration of the intial institutional arrangement took place in 1997, through theammending of the Law for the organizing and functioning of the Constitutional Court15. The mostimportant modifications regarded a posteriori review proceedings: the sistem of panels has beendismissed and from then on, all decision were taken by the full court. The possibility of appeal hasalso been abandoned and proceedings before regular courts are since then mandatorily halted untilthe Constitutional Court decides upon the exception of unconstitutionality.

The 2003 constitutional revision brought further significant changes to the Court's functioning andjurisdiction.16 It extended the sphere of persons considered to have standing to bring a complaintdirectly before the Court, so as to include the President of the Superior Council of Magistracy17, thePrime Minister, the President of Romania and the presidents of the two chambers of the Parliament,

15 Law no.138/1997 on ammending and supplementing of Law no.47/1992 on the organizing and functioning of the Constitutional Court, Offical Gazette no.187/199716Constitution Review Act 2003 and Law no. 232 of 2004, amending and supplementing Law no. 47 of 1992 on the organization and functioning of the Constitutional Court.

5


in the case of constitutional conflicts between public institutions; the Ombudsman; and a number ofat least 50 deputies or 25 senators in cases of constitutionality of treaties and internationalagreements signed by Romania. Further, the Court' jurisdiction included laws on the revision of theConstitution (in ex ante review), juridical conflicts of constitutional nature between different publicinstitutions (parliament, executive, presidency), treaties and other international agreements.Exceptions of unconstitutionality could from now on be invoked also before commercial arbitrationtribunals. Finally, the Court's decisions became generally biding in both ex ante and ex post reviewprocedures (eliminating Parliament's power to veto its decisions). Significantly, in a posteriori review proceedings, the constitutional revision introduced a 45 daysterm from the date of the publication of he Court’s decision, within which Parliament (or thegovernment, in case of ordinances) might ‘correct’ the provisions ruled unconstitutional so as tobring them into line with constitutioanl requirements. For this period of 45 days, the provisions atstake are suspended, and if the above mentioned actors fail to act, they will be annulled.

These modifications of the institutinal settings enhanced the Court’s review powers, which createdthe possibilty to phrase more debates or conflicts in a constitutional context, made it more accesibleand generally strenghtened its potential to become an arbitrator, or at least a more significant playerin the complicated relationship between the various public powers.Albeit, probably as a part of the political bargain that allowed for the above modifications,Parliament retained a trump to compensate for the loss of its power to override the Court'sdecisions. Namely, the Constitution's article dedicated to the Court's jurisdiction was appended withthe phrase “other duties stipulated by the organic law of the Court” - allowing hence a certaindegree of legislative control over the Court's jurisdiction, the Parliament being able to alter (at leastto add to) the Court’s sphere of competence. The legislative played out this trump for the first timein 2010, when the organic law of the Court was revised.18

Arguably, these changes to the Court's functioning and jurisdiction rapidly placed it at the hearth ofembittered political conflicts and constitutional crisis especially due to its new competence insolving conflicts of constitutional nature between public institutions, and the enlareged sphere ofpersons enabled to lodge a complaint. In the same time, its visibility increased significantly, andpublic debates were often carried out within 'constitutional parameters'.19

4. Methodology and particularities

17 A representative body of the judicial authority, the guarantor of the indepence of justice, oversees the careers of magistrates, prepares and keeps professional records of the magistrates, coordinates the activity of the National Instituteof Magistracy and of the National School of Clerks of the Court, exercieses various powers with regard to the organisation and functioning of the courts of law and the public prosecutors’ offices etc. It has 19 members: 9 judges and 5 public prosecutors elected by the magistrates, 2 representatives of the civil society elected by the Senate, the Ministry of Justice, the President of the Hight Court of Cassation and Justice, the General Public Prosecutor. The President of Romania can attend meetings of the plenum of the Superior Council of Magistracy, in these situations he/she is chairing these meetings, without a right to vote.18Law no. 177 of 2010 for the revision of Law no. 47 of 1992, of the Code of Civil Procedure and of the Code of Criminal Procedure.19Blokker, Paul, supra n. 13; Iancu, Bogdan, supra n. 21

6


This paper is based on the research carried out for the JUDICON project20, using its data collectionand evaluation methodology. However, there are a few specific features – due to the characteristicsof Romanian constitutional adjudication – which demand explanation.

It must to be noted, that the Romanian Constitutional Court has the power to adjudicate (also) ex-ante on the constitutionality of laws. This is not an unknown practice in Europe, for instance theFrench, Portuguese, or in certain circumstance the Hungarian and Polish constitutions also createthe possibility to review the constitutionality of laws before their entry into force. In Hungary, the Parliament, after the adoption of the bill and before sending it to the President ofthe Republic for signing it into law, might referr it to the Constitutional Court for an a priori reviewof its constitutonality. Further, the President of the Republic, might him/herself refer the bill to theConstitutional Court for review before signing it into law. The Constitutional Cour has also thepower to review the constiutionality of international agreements before their ratification, at therequest of either the President of the Republic, or of the government (depending on whichinstitution is competent to ratify the agreement). Finally, constitutional amendments can bereviewed before their entry into force (strictly under the aspect of respecting their adoptionprocedure) upon the request of the President of the Republic.21

In the case of Poland, the President of the Republc is the sole actor who may refer a bill or aninternational agreement before signing or ratifying it to the Constitutional Tribunal for anadjudication upon its conformity to the Constitution.22

The a priori review powers of the Romanian Constitutional Court and the circle of persons who maylodge a motion with the Court are both larger than in the case of the other post-communist countriespresented above. First, in the case of bills, referral can be made, alike in Hungary and Poland, bythe President of the Republic. But, unlike in Hungary, instead of the Parliament as such (ie. thedecision of referral can be taken only by a majority vote), it can be either of the presidents of thetwo chambers, or a group of MP’s (at least 50 deputies or 25 senators, ie. members of theopposition) who may address the Court. Further, the government, the Ombudsman and the Presidentof the Hight Court of Cassation and Justice are all entitled to lodge an a priori review request withthe Court. As what concerns international treaties and agreements, the Court might review theirconstitutionality before being ratified by the Parliament, upon the request of either of the presidentsof the two chambers, or of a group of MP’s (at least 50 deputies or 25 senators). Finally, as whatconcerns constitutional amendments, the Court has ex officio, mandatory review powers, and itreviews each amending proposal twice: first before the legislative procedure is initiated within theParliament (under the aspect of respecting constitutional provisions for amending the constitution),and second, after their adoption.23

As constitutional scholars observed: the ex-ante approach might bring stability to the legal system,strengthening the law and protecting it from future challenges. However, when ex-post review isalso made possible within the same system, the stability-feature diminishes, and the ex-ante reviewbecomes more or less a political tool for obstructing the legislative procedure.24 Interestingly, evenif the Court came recently under severe criticism, being depicted as intensely politicized and unableto transcend political disputes25, the problematic coexistence of ex-post and ex-ante review was notreally questioned. However, a commission for the analysis of the political and constitutional regime,set up by the Presidency, came up with an exciting proposal, recommending as a possible solution20 http://JUDICON.tk.mta.hu/en21 § 23., Law no . CLI/2011 on the Constitutional Court22 Art. 122 and 133, The Constitution of the Republic of Poland, 2 April 199723 Art. 15-23, Law no.47/1992 on the organizing and functioning of the Constitutional Court, Offical Gazette no.187/199724 Sadurski 201125 Perju 2010, Gilia 2012

7


for the rationalization of constitutional justice. The commission envisaged a system of dualcompetence, in which the Constitutional Court should retain the power to adjudicate ex-ante, whileregular courts should exercise ex-post review powers over the constitutionality of laws.26

Beyond these, one more specific feature of Romanian constitutionalism needs some explanations. Inthis system, Parliament is named as the sole legislative authority of the state, albeit the Constitutioncreates significant exceptions from this rule. First, the government has the option to engage its responsibility for a program, a politicaldeclaration, or a bill. In this case, if the government is not dismissed via a vote of no confidencewithin three days’ time, the bill must be considered passed (amendments can be made only ifaccepted by the government), and the political declaration or program as mandatory.27

Second, thorough the institution of legislative delegation, Parliament can mandate the governmentto enact ordinances within a specified domain and period of time. Parliament has the option toimpose through the delegation act a subsequent approval procedure for these ordinances. Third, the government also has the possibility to enact emergency ordinances, in extraordinary andurgent situations, without any parliamentary mandate, but without affecting the domains reserved toconstitutional laws, the fundamental institutions of the state, constitutional rights, liberties andduties, electoral rights and the regime of expropriations. All emergency ordinances must undergothe subsequent parliamentary approval procedure.28 Alas, governmental lawmaking via emergencyordinances became a common practice, amounting, in the first decade of the new millennium, to 1/3of the number of laws enacted by Parliament.29 Taking into consideration the fact that the mostimportant pieces of legislation of the past years, amongst which the Penal Code, the Civil Code, theCodes of Penal and Civil Procedure etc., were forced through the legislature by engaging itsresponsibility (see above), one might speak about a significant erosion of Parliament’s powers.30

The JUDICON project research covers decisions issued in both ex ante and ex post reviewprocedures, however it focuses solely on the review of the acts of the Parliament, excludingdecisions passed on the constitutionality of governmental ordinances. Government-made normativeacts appear in the dataset only in those cases in which either the Court reviewed a law approving,rejecting, amending or supplementing a governmental ordinance, or provisions of ordinances areaddressed inseparably, together with various articles of law, in the very same judgment. Further, as individual complaints can reach the Court solely by way of exceptions raised beforeregular courts, regarding the constitutionality of the legal norms applicable in a given case, theCourt might be facing recurring complaints regarding the same issue. Moreover, as the Court has nopreliminary screening mechanism, all complaints are currently decided upon by the full court. Thisin practice leads to a large number of rejection decisions, creating a distorted image of the relativepower of the constitutional court.Therefore, recurring complaints have not been taken into consideration, unless the Court haschanged its jurisprudence and issued a different solution.Similarly, judgments on the constitutionality of treaties or other international agreements, as well asdecisions on disputes of constitutional nature31 between public authorities (others than Parliament)have also been disregarded.

26 Report of the Presidential Commission for the analysis of the political and constitutional regime – To consolidate the rule of law, 2008, available at: http://www.presidency.ro/static/ordine/CPARPCR/Raport_CPARPCR.pdf27 Constitution of Romania, art. 11428 Constitution of Romania, art. 11529 http://www.cogitus.ro/administratie/prea-multe-ordonante-numarul-initiativelor-legislative-ale-guvernelor-din-ultimii-10-ani30 Kuti, Csongor: In Courts We Trust?31 Procedure resembling the “organstreitverfahren” before the Constitutional Court of Germany.

8

http://www.presidency.ro/static/ordine/CPARPCR/Raport_CPARPCR.pdf


As to what concerns the consequences of the Court’s decisions, the Constitution explicitlyestablishes a deadline until when provisions which were found unconstitutional may be revisedaccordingly.32 If no action is taken, the provision in question shall cease their legal effects.Technically, the Court has no powers to abrogate unconstitutional legislation, nevertheless,decisions of unconstitutionality can produce similar effects.33

Finally, according to the fundamental law34, decisions of the Constitutional Court are generallybinding from their publication and take effect only for the future. Consequently, unconstitutionalprovisions become inapplicable from the day the decision has been published, thus rulings of theCourt may have only an ex nunc effect.

5. Trends in the strength of majority rulings

On the basis of the variation in the average strength of rulings per year, the entire period underscrutiny (from 1992 to 2015) might be divided into 3 periods. From 1992 to 1998, when the averagestrength of decisions remained over 1.0 and varied from 1.0 to 3.98; from 1999 to 2006, with anaverage strength falling under 1.0 and varying from 0.13 to 0.82; from 2007 to 2015, when theaverage strength was again above 1.0 and varied from 1.44 to 3.16.

0,00

0,50

1,00

1,50

2,00

2,50

3,00

3,50

4,00

4,50

2

1,54

3,98

2,21 2,17

1 1,090,81

0,590,31 0,17

0,340,13

0,78 0,82

1,811,48

1,82 1,9

1,441,7

1,48

2,43

3,16

Avg. strength (by years)

32 Parliament, or in case of governmental ordinances, the executive, have 45 days after the publishing of the decision toremedy problems of unconstitutionality. During this period, the application of the normative act in question is suspended. Art.147 sect.(1), Constitution of Romania (2003 revision).33 Decision no.1039/2012, published in the Official Gazette, no.61/2013. 34 Art. 147 sect. (4) Constitution of Romania

9


From the entire period the first five and the last two years stand out as representing the highestaverage strenght of rulings, with peculiarly high values for 1994 and 2015. For the first five years, the explanation for the high values and the high variation in strenght mightbe identified in several factors. First, in the early years, the workload of the Court has beeninsignificant in comparison with the rest of the analyzed period. The number of complaints receivedper year (with the sole exception of the year 199735) remained under or around 300 until the turn ofthe millenium. The number of rulings coded is accordingly low too, varying from 8 in 1992 to 38 in1998. Comparatively, the lowest number of rulings coded in the rest of the period has dropped onlyonce under 70 (61 rulings in 2013). Second, especially in the first four years, the relativepercentage of a priori review motions – which, as it will be shown later on, have an incomparablybetter success rate than a posteriori review motions - was high (more than 10% of all motions, a ratethat has not been achieved since36). In these conditions, even a relatively small number of admissiondecisions could lead to a peculiarly high average strength. (For instance, in 1994 there were 14admission decisions, leading to an average strength of 3.98, while in 2005, 22 admission decisionsresulted in an average strength of merely 0.78.) For the last two years, the factors that explained the relatively high average strenght of the first fiveyears are not present anymore: the workload of the Court was high (more than 5,000 complaintsreceived in these two years), the number of rulings coded is also significantly higher (192 for thetwo years) while the rate of a priori review motions is less than 1%.

Therefore, in order to be able to identify the factors that might be linked with evolution trends in theaverage strength of rulings, a comparision has to be made between periods which present differentdegrees of average strenght under relatively similar variables. Consequently, this writing focuseson the periods, between 2001 to 2004 and from 2009 to 2012, which present a relatively smalldegree in variation over a longer period of time (0.34 to 0.13, respectively 1.82 to 1.44) butsignificant difference in average strength. Both periods have been selected so as to fall between twoparliamentary elections (taking place in 26. November 2000 / 28. November 2004 and 30.November 2008 / 9. December 2012).

5.1 The first factor that may be linked to the trends in the average strength of constitutionalcourt decisions is general political stability. To determine “political stability”, the following aspectswere taken into consideration: the stability of the governing coalition (i.e. whether it managed tostay together for the whole term of the parliamentary mandate, or it had suffered changes), thestability of the government (i.e. whether the prime minister managed to fulfill his whole term ofoffice, or not) and the stability of the president (i.e. whether the President managed to fulfill histerm of office; did he have to face impeachments or not), and finally, the number of seats held bythe largest of the governing parties. The prime-minister and the president are relevant players in thisequation, as Romania is a semi-presidential republic, where the president is elected directly, andpossesses important executive competences. Presidential elections usually are held together withparliamentary elections, thus the candidates for presidency and for prime-minister are the most

35 A reason for this could be the already mentioned first alteration of the Court’s institutional settings, since when in case of a posterior review, proceedings before regular courts are halted until the exception of unconstitutionality is decided upont by the Court. In 1997, the number of a posteriori review motions almost doubled (570 v. 292 in 1996), and although this figure dropped in the next year, it kept on growing steadily for a good decade. For details see: Romanian Constitutional Court statistics on the dynamics of complaints, available at: https://www.ccr.ro/uploads/Statistica/2017/graficsesizariro_iul.pdf 36 Romanian Constitutional Court statistics on the dynamics of complaints, supra note 36

10

https://www.ccr.ro/uploads/Statistica/2017/graficsesizariro_iul.pdf


important public figures (locomotives) of their parties.37 The candidate for either position is usuallyalso the president of his/her party.

In the light of the above explained, considering the 2009-2012 period, when the smallest degree invariation paired with a relatively high average strength of the decisions, one may find a low degreeof political stability. The period comprises two general parliamentary elections, in 2008 and 2012,which also led to a change in the governing parties. However, beyond these, the governing coalitionthat came to power in 2008 suffered major alterations almost in each year of its mandate, the prime-minister resigned in early 2012, and the new government was dismissed after merely 3 months ofoffice, through a vote of no confidence. In the meantime, the President managed to survive a secondimpeachment procedur 2012 ( the first taking place in 2007, during his first mandate).38 The maingoverning parties held in the given period 34,4% - 38,8% of the total number of seats.Comparatively, in the 2001-2004 period, which featured an almost equally low degree in variationpaired with the lowest average strength of the decisions, one may find a high degree of politicalstability. Arguably the highest, in the entire period of the functioning of the Constitutional Court.The governing coalition suffered only minor alterations during its mandate. The prime-minister andthe president fulfilled their mandates, and the main governing party enjoyed a comfortable, 44,9%majority in the Parliament.

5.2 A second factor that might be considered – also in relationship with the first one - is theposition of the judges’ nominating party within the Parliament. The Romanian Constitutional Courtis made up of 9 members, appointed in equal numbers by the Chamber of Deputies, the Senate andthe President of the Republic (3 judges each) for a 9 years term. At the outset, the first 9 judges havebeen appointed for 3, 6 and 9 years terms, so as to allow – theoretically - a renewal of 1/3 of theCourt at every 3 years. In practice, however, judges not always fulfill their entire mandate out ofvarious reasons: health, age, and other personal or political reasons.39 There was even a case, when ajudge has been first appointed for a fraction of mandate, and subsequently for an entire 9 yearsmandate. Further, even if the President, during his/her mandate, is constitutionally independentfrom political parties, he/she is inevitably (and informally) tied to one of the political movements. Regarding the appointment of judges, during the first 15 years of the Court, an unwrittenconvention has formed, according to which in case of vacancy, the political family or party thatnominated the judge whose mandate has expired, will get to nominate the new judge too. Thisconvention has been more or less observed until the period under scrutiny, and allowed, for instanceto the discrete party of the Hungarian minority (RMDSZ), which holds roughly 6% of the seats, toalmost continuously have a judge appointed to the Court (except for a 3 three-years period between1995-1998). However, this also meant that the Court has been dominated by the political left.40

Beginning with the last decade, the sharpening of political power struggles disrupted the abovecustom, and majorities tried to impose their candidates to the Court. When talking about Romanianpolitical left and right, it must be noted that the left is traditionally monolithic, being represented bya single large social-democratic party, while the center-right is fragmented in a varying number of

37 As an exception from this rule, between 2004-2014 the Romanian president had an office period of 5 years, so as to allow the separation of presidential from general parliamentary elections. 38 The impeachment procedure consists of a vote in the united chambers of the Parliament and an ensuing referendum, which must either confirm or infirm the decision of the Parliament. In both cases the President managed to obtain popular support against the Parliament’s decision.39 One judge was forced to resign after corruption charges were brought against him; but there was also a case when ajudge resigned in order to accept a mandate at the European Court of Human Rights. 40 The initial Court has been appointed just months before the first general elections organized according to the new Constitution, and the leftist coalition held at that point 66,4% of the seats in the Parliament.

11


smaller parties. Occasional break-away groups from the social democrats always attempt to positionthemselves center-right, never to the left.

In the 2009-2012 period, there have been 16 judges involved in the analyzed rulings. 7 of them havebeen nominated by the left, 7 by the right, 1 by RMDSZ, which - due to its ethnical determination –can be considered centrist, and 1 by a short-lived big left-right coalition. Of course, beingnominated by a party does not necessarily mean that the nominated judge is affiliated to the givenparty, and this is especially true in the case of judges appointed by the President of Romania (exceptfor the cases in which a member of the parliament is nominated or appointed)41. This relativeequilibrium, combined with the frequent change of majorities in the Parliament, the relativelyfragile general political stability, can be considered as contributing towards the high averagestrength and low degree of variation of court decisions.Comparatively, in the 2001-2004 period, there were also 16 judges involved in the analyzed rulings,however in this case 9 of them were nominated by the left, 3 by the right, 1 by the centrist RMDSZ,while in the case of the rest of 3 judges, unfortunately no relevant record can be found about theirnominating parties. (Five judges have been active in both periods, 5 of them being nominated by theleft, 1 by the right.) This strong leftist influence, combined with a high degree of general politicalstability under a social-democrat government, can be considered as a factor contributing towards alow average strength and low degree of variation of court decisions.

Scholars criticized the Court’s deferential, passive attitude, especially during the first two decadesof its existence, arguing that even if decisions concerning delicate and socially important issueswere taken by a minimal (5 to 4) majority, that majority was always made up of justices appointedby the governing parties.42 This argument, however, is not necessarily supported by the findings ofthe present analysis. As Constitutional Court judges’ voting pattern is not publicly available, thebest indicators are the dissenting opinions. In the dataset used for this inquiry, there are only 13decisions which produced four dissents. These might be considered as the most debated decisions ofthe Court43, since all of the minority judges considered it necessary to formally express theirdisagreement with the majority decision in the form of a dissenting opinion. Still, in one single caseout of 13, might the four dissenting judges be linked with the same nominating party (coalition),and even in this case, they all have been nominated by parties which formed the governingcoalition.44 Further, there is also a single decision where all four dissenting judges were nominatedby opposition parties.45 Extending the analysis to those cases where at least three dissents have been formulated, which alsocan be regarded as betraying a strong disagreement between the judges, especially that in 5 of theanalyzed cases the Court was made up of only eight judges, thus the decision were taken by thenarrowest possible majority (5-3).46 In the entire analyzed period, the dataset contains 27 decision

41 In the 2001-2004 period there were 5 judges with clear indication of their political position: Gaspar, Ninosu, Predescu and Vonica have all been previously MP’s of the Social Democrat Party (PSD, previously PDSR and FDSN), while Kozsokar has been MP of RMDSZ. Further three judges (Vasilescu, Popa, Stângu) have been counselors of the President of Romania (Iliescu, PSD), which is a strong indication of their ideological orientation. In the 2009-2012 period there were 5 judges with clear political affiliation: Gaspar, Predescu and Dorneanu were previously MP’s of the PSD, Puskás has been an MP of RMDSZ, while Zegrean (president of the Court from 2010) was a former MP of the Democratic Party (PD). One more judge has held the position of ministry of justice under the governments Ponta I. - II. (PSD), which might be also considered a strong hint of ideological preference.42 Gilia, Claudia: Curtea Constitutionala sub imperiul reformei, Sfera Politicii no. 6(172)/2012, quoted in Kuti: A Court Adrift…43 at least amongst the decisions included in this dataset44 Decision no.1431/03.11.201045 Decision no.1237/06.10.201046 Decisions no. 1414/04.11.2009; 1415/04.11.2009; 53/25.01.2011; 511/12.12.2013; 662/11.11.2014

12


with 3 dissenting judges. There was a single case, in which all three dissenting judges have beennominated by the governing party47, and eight cases, in which all three dissenting judges have beennominated by the opposition parties.48 Cumulatively: out of 40 decisions with at least 3 dissents,there are only 8 cases, in which all dissenting judges have been nominated by opposition parties.Therefore, on the basis of the present analysis it can be stated that in the most debated decisions(taken with a minimal majority) the Court was, as a rule, not split according to the judges affiliation(at least not according to their nominating parties), and the majority was not, as a rule, formed byjudges appointed by the governing parties.

5.3 The third factor that appears relevant from the perspective of the strength of majorityrulings is the number of dissenting opinions. In the entire period covered by the dataset that formsthe basis of this analysis, there were 35 judges involved in the rulings passed by the Court. Out ofthem, there were 6 judges, who did not formulate a single dissenting opinion from the analyzedrulings. All six performed their activity in the first decade, five of them being members of the initialcomposition of the Court. Besides them, there were 7 other judges, in the case of who the averagestrength of their dissenting opinions was lower than the average strength of the majority opinions.49

In the case of the remaining 22 judges, the average strength of their dissenting opinions exceededthe average strength of the majority opinions, usually with quite an appreciable margin.

19921993

19941995

19961997

19981999

20002001

20022003

20042005

20062007

20082009

20102011

20122013

20142015

0

50

100

150

200

250

No. of rulings Rulings with at least one dissenting opinion

Generally, the number of dissenting opinions from the decisions of the Court is relatively modest. Inthe first five years of the Court there were only 2 dissents registered in the dataset used for thepresent research. This number increased moderately over the years, peaking at 33 in 2014, however,as the number of rejections has also increased, the relative percentage of dissenting opinions wasless spectacular, peaking at 23% in 2013. For instance, 15 dissenting opinions in 2002 counted for

47 Decision no. 71/05.03.200248 Decisions no. 279/22.03.2006; 657/09.10.2006; 321/29.03.2007; 2/04.01.2011; 334/26.06.2013; 449/06.11.2013; 471/14.11.2013; 417/03.07.201449 It must be stressed, that on the basis of the dataset used, the voting pattern of single judges cannot be determined, except for those situations, in which the judges formulated dissenting or concurring opinions.

13


5.8% of the total number of rulings, while the same amount of dissents in 2009 made up 10.4% ofthe total number of rulings.Therefore, it can be argued that in the periods in which the average strength of decisions wererelatively higher, dissenting opinions represented a larger percentage of the total rulings; while inthe periods in which the average strength of decisions decreased, the percentage of dissentsdecreased accordingly. This does not to say that the number of dissenting opinions determine thedirections and strength of majority rulings. But it can be taken as a telltale of the fact that in periodswhen the Court is (at least seemingly) more balanced (see the subchapter above on the nominatingparty of the judges), and there is a lower degree of general political stability, rulings are moredisputed, producing larger number of dissents. In the 2009-2012 period, the percentage of dissenting opinions varied from 10.4% to 19.7%; whilein the period of lowest average strength and lowest variation (2001-2004) the percentage of dissentsvaried from 0.9% to 5.8%.

The total number of dissenting opinions in the 2009-2012 period is 101, out of 322 rulings. Therewere 6 rulings issued with a minimal (5 to 4, or 5 to 3) majority from which all minority judgesformulated dissenting opinions, but in merely 1 of these rulings, the minority judges have all beennominated by the same party or coalition.Comparatively, in the 2001-2004 period, there were only 37 dissenting opinions out of 708 rulings,but the difference is even greater with regard to the other indicators: there were 0 rulings taken witha minimal majority and all minority judges dissenting.

Concentrating on the arguably most disputed decisions of the Court – those from which at least 3judges formulated dissenting opinions – one may find 14 such rulings in the 2009-2012 period, withan average strength of the majority rulings of 3.5, which is more than triple of the average strengthof all of the Court’s rulings for the entire period (1.1), significantly higher than the average strengthof all of the 2009-2012 period too (1.44 – 1.82) and than the average of strength of the majorityrulings with at least three dissents for the entire period (2.60). On the other hand, the average strength of the dissenting opinions for the same set of 14 rulings is2.17, while the average strength of the dissenting opinions (decisions with at least three dissents) forthe entire period is 3.32.Comparatively, in the 2001-2004 period there were only 4 decisions that featured at least 3dissenting opinions, the average strength of the majority rulings being 1.87, while the averagestrength of dissenting opinions was 5.12. From the above numbers it might be inferred, that in periods of when the Court is (seemingly) morebalanced ant the general political stability is lower, it is more likely to meet minimal majorityrulings with all minority judges dissenting. Further, in the case of intensenly disputed rulings (withat least three dissenting judges) the average strenght of the the majority rulings are the highest,while the average strength of dissents from such rulings peak, to the contrary, in periods when theCourt is (seemingly) less balanced and the general political stability is higher.

5.3.1 Dissenting opinions, beyond the display of blistering logic, legal andphilosophical knowledge, or sheer intellectual flamboyance that they may or may not produce, arealways an indicator of the legal, ideological or political disputes, which welter in the background ofconstitutional court decision. Sometimes, especially in the common law systems, dissents mayequal, or even outshine in notoriety the majority opinion they opposed. Passages of Justice Holmesin Abrams vs. United States, Justice Harlan in Plessy vs. Fergusson, Justice Brandeis in Olmsteadvs. United States, or more recently, several dissents of Justice Scalia have become quite famous. Romanian constitutional judges have yet produced such outstanding opinions, albeit their dissentsappear highly significant for the present research, since – as it was already mentioned above –

14


voting records are not made public. The published texts indicate, at best, whether the decision hasbeen taken unanimously, or by a majority vote. Thus, the best telltale of individual judges’ positionare the concurring or dissenting (“separate”, in the Court’s language) opinions. During the entire period comprised by the dataset, 299 dissenting opinions have been recorded, withand average strength that varies from 0.0 to 7.5. From the first few years of the Court there are veryfew dissents, but their number increased steadily, with the bulk of the dissents being formulated inthe last decade of the Courts’ activity.

Amongst the individual judges there is also a high variation with regard to dissenting opinions. Inthe 1992-2015 period 35 judges have been appointed to the Court, and their individual recordreaches from none to a couple of dozen of dissents. Still, 12 judges distinguish themselves from therest, producing, together, an impressive 206 out of a total of 299 dissents. Interestingly, the averagestrength of these dissents is only 3.39, which is hinting towards the fact that the judges who dissentmore rarely, tend to formulate a stronger opposition towards the majority opinion.

Moreover, in this select club of twelve, there are 5 judges, who formulated at least 50% of theirdissents in a coalition with at least two other judges, thus arguably were involved more often thannot into the groups of judges who constituted the strongest opposition towards the majority opinion.Surprisingly, the average strength of the dissenting opinions of these 5 judges is lower than theaverage strength of the dissenting opinions formulated by all twelve judges (3.07 vs. 3.19).Conclusively, the numbers suggest that the strongest dissenting opinions are most likely to beproduced by judges who dissent more rarely and/or when they do so, they rather formulate theirviews alone. A similar conclusion might be reached taking into consideration the judges with the highest averagestrength of dissents. There are also twelve judges, whose dissents produced an average strength ofat least 4.0 (from 4.07 to 7.5). Amongst them, there are only 3, who also appear on the list of judges

15


with the highest frequency of dissenting opinions, albeit all of them formulated most of theirdissents alone, or together with maximum one more judge (13 out of 22, 21 out of 29, and 10 out of16).

5.4 The fourth factor, that is worth taking into consideration, is the character of theconstitutional review, namely whether it is an a priori, or a posteriori review.A superficial look at the ruling types frequency table (chapter 6, below) and to the average strengthby year graphic (beginning of chapter 5, above), might suggest a convenient answer for the puzzleof this paper: there is a relationship of direct proportionality between the number of rejections andthe average strength of decisions, ie. more rejections mean lower average strength of the decisions. But on a closer look, the situation is more nouanced. If the rulings are clustered according towhether they were issued in an a priori or in a posteriori review, the results become more intriguing.

The a priori review procedure enables the Court to adjudicate on the constitutionality of bills beforetheir promulgation. The a priori motion, as it has already been mentioned above, might be lodgedby the President of the Republic, either of the presidents of the two chambers of the Parliament, thePresident of the High Court of Cassation and Justice, the Ombudsman, and at least 50 deputies or25 senators, but the bulk of the motions comes from the MP’s. In fact, in the 1992-2015 period, 208out of 281 a priori review motions have been lodged by them.50 This data is of peculiar importance, since MP’s usually translates into members of the opposition.

The total number of a priori review rulings in the analyzed dataset is low: only 252 out of 2046, buttheir success rate is stunning: 106 of the rulings have been in the favor of the complainant,especially if it is noted that a priori review rulings make up only 12.3% of the total rulings. This isalmost 3 times higher than the success rate of the a posteriori review motions (on the basis of thedataset used for the analysis). It must be noted, as it was already mentioned above, that until the2003 revision of the Constitution, Parliament had the possibility to override Constitutional Court’s apriori review decisions with qualified majority vote. Although it never made use of this super-power, nevertheless it might have been perceived as a chilling factor.Narrowing the analysis to the two periods in question, it can be found that there is no dramaticdifference between the strength of the a priori review admission rulings: 5.6 in the 2001-2003period and 6.5 in the 2009-2012 period. However, there is a significant difference in the success rateof the motions: only 5 out of 24 (20.8%) rulings between 2001-2003 have been admissions, whilethis ratio is 35 out of 52 (67.3%) in the 2009-2012 period. Even more outstanding than the successrate is the difference between the number of admission rulings: 7 times more admission rulings inthe 2009-2012 period. Comparing the a posteriori review rulings of the same periods, the difference is also considerable,but less dramatic: 2.9% success rate in the 2001-2004 period versus 19.2% in the 2009-2012 period,but this translates better into concrete rulings, where the difference is just above 2 times: 20 versus52 admission rulings.Taking into consideration the fact that for practical reasons, the JUDICON project, as it has alreadybeen stressed above, covers only a fraction of the docket of the Court, these numbers must be testedagainst the full caselaw (so as to preclude distortions by a faulty case selection). According to theCourt’s own statistics (nb. operates with decisions, not rulings), the success rate of a priori reviewclaims in the 2001-2004 period has been 22.9%, while int the 2009-2012 period it has been 52.3%,which translates into 5 versus 32 admission decisions. Even more interesting is the difference in the

50 Constitutional Court of Romania, Statistics on the activity of the Constitutional Court from its establishment until 31.07.2017, available at: https://www.ccr.ro/uploads/Statistica/2017/ActivitateRo_iul.pdf

16

https://www.ccr.ro/uploads/Statistica/2017/ActivitateRo_iul.pdf


a posteriori review claims, where the success rate has been 2.8% in the 2001-2013 period and 2.4%in the 2009-2012 period, which translates into 44 versus 65 admission decisions.51

Finally, this finding must be tested also against the relevant data from the two outstanding years(from the average strength of rulings perspective): 1994 and 1995. If the presumption anounced atthe outset of this chapter is correct, than in these years the clustering of rulings according to theircharacter should produce an outcome similar to the 2009-2012 period. Indeed, in 1994 the successrate of a priori review rulings according to the JUDICON database has been 46.1%, while in 2015 itwas 80%, translating into 6 versus 4 admission rulings, however the success rate of a posteriorireviews was 83.3% versus 50% translating into 10, respectively 43 admission rulings and producingan average strength of rulings by years of 3.98 in 1994 and 3.16 in 2015 (see the graphic table at thebeginning of this chapter).

What follows from the above explained is that a clustering of the rulings according to the characterof the constitutional review (ie. a priori or a posteriori), can offer a valid explanation to the trends inthe strength of constitutional court rulings. At least in the case of the Romanian Constitutional Court, a priori review rulings are of paramountimportance, as in most of the cases are generated by motions filed by members of the opposition.Consequently, a low degree of success rate (for instance, in 2004, 5 out of 5 such rulings have beenrejections) will result in a lower average strength of decisions and this effect is more prominent thanin the case of a posteriori review decisions (see above the comparison of the years 1994 and 2015).

Analysts noted this distortion between a priori and a posteriori reviews’ success rate, and proposedthe elimination of the a priori review powers of the Court, arguing that a priori motions are in theessence the expression of political conflicts; and are used by the opposition as an alternate means ofpolitical dispute, after being defeated in the parliamentary voting procedures.52 This view findssome degree of support in the present analysis, as data show that the relative rate of a priori reviewmotions has been the highest when the general political stability has been low (52 of the total of 252rulings, that is 20.6%, being issued in the 2009-2012 period), while their success rate has been alsosignificantly higher in comparison with periods of high general political stability (67.3% versus20.8%). The fact that a priori review motions might be an expression of political conflicts is alsosupported by the fact that claims coming from the office of the President of Romania have beenextremely low in the periods of general political stability (2 motions filed in the 2001-2004 period),while they became regular in the politically less stable periods (13 motions filed in the 2009-2012period).53

5.5 The Presidents of the Court are elected by the judges with a secrete majority vote for a3 years renewable term: theoretically, the President’s term is connected with the periodical renewalof one third of the Court. In practice, once elected, presidents kept their office until the end of theirmandate. In the period covered by this research, the Court had six presidents: Gionea, Muraru,Mihai, Popa, Vida and Zegrean. Out of them only Mihai did not fulfill his term: he resigned afteronly 4 years from the Court.Presidents have strong formal competences, and are presumed to put their mark on the functioningof their institution. From this perspective, their backrground is not neglectable. Interestigly, andpresumably not by chance, 3 out of the 6 presidents of the Court have been members of the draftingcommittee that elaborated the Constitution (Gionea, Muraru and Vida). As to what concerns their

51 Constitutional Court of Romania, Statistics on the acts of the Constitutioanal Court from its establishment until 31.07.2017, https://www.ccr.ro/uploads/Statistica/2017/SinRo_iul.pdf 52 Perju, Vlad: A sosit timpul pentru reformarea Curții Constituționale?, idem53 Constitutional Court of Romania, Statistics on the activity of the Constitutional Court from its establishment until 31.07.2017, available at: https://www.ccr.ro/uploads/Statistica/2017/ActivitateRo_iul.pdf

17

https://www.ccr.ro/uploads/Statistica/2017/ActivitateRo_iul.pdf

https://www.ccr.ro/uploads/Statistica/2017/SinRo_iul.pdf


political affiliation, 3 of them had no formal affiliation (Muraru, Mihai and Vida), 2 of them wereMP’s (Gionea for the forme Christian Democrat Peasant Party – PNTCD, and Zegerean for theDemocratic Party – PD), while Popa has been counselor for the President of Romania (Iliescu,Social Democrat Party – PSD), which can also be considered as an indication of politicalpreference.

Comparing the average strength of the presidents’ rulings, significant differences can be found,however, their rulings did not significantly differ from those of the Courts they have lead. Still, afew ponints of divergence can be detected: President Gionea in 1993 produced and average strengthof rulings with 0.5 lower than the Court’s average, while in 1995, before the end of his mandate,was involved in rulings that were 0.6 stronger than the average of his Court. Further, PresidentMuraru, in his first year of presidency (still 1995), managed to produce an average strength by 0.5lower than the Court. Finally, President Zegrean, in 2013 was found on a trend that went completelyopposite to his Court, resulting in an average strength that was higher by 0.49. But these divergences were too few and far between to be considered as decisive.

More interesting is a comparison between the dissenting opinions of the presidents. Here PresidentGionea and President Zegrean stand out, with 0 respective 19 dissenting opinions. The rest of thepresidents were closer to the average (4 dissents): Muraru and Vida wrote 5, Popa 6 and Mihai 7. Infairness it must be noted that Gionea had a mandate of 3 years and Mihai resigned after only 4.Nevertheless it is surpsising that with the exception of Gionea, the presidents produced an above theaverage rate of dissents, with Mihai and Zegrean being the remarcable performers. This amount of dissent might be the telltales on one hand of the presdients’ efforts to impose theirhallmark on the Court, while on the other hand of their failure to do so (materializing in anoutstanding number of minority opinions).

0,00

0,50

1,00

1,50

2,00

2,50

3,00

3,50

4,00

4,50

President AVG STRCC AVG STR

6. Trends in the strength of admission rulings

18


When faced with a constitutional complaint, constitutional courts typically come up with twosolutions: they either refuse/reject the complaint, or admit it. Refusal usually means that the courtwill not hear the case for various reasons, while rejection occurs when the court, after a hearing(discussion on the merits), finds no breach of the constitution. The Romanian Court has yet todevelop a clear-cut, unambiguous and unitary wording for its decisions.54 For instance, the Courtdoes not distinguish at the level or language between refusal and rejection decisions, it uses thesame word - “rejects” (“respinge”, in Romanian) – for both situations. Rejection decisions’ keyphrases might contain further hints (“rejects as inadmissible” or “rejects as unfounded”), but this israther a rule of thumb, than a matter of consequent phrasing.Admission decisions have been divided, according to the JUDICON project’s methodology, into thefollowing categories: constitutional requirement or interpretation in harmony with the constitution;procedural unconstitutionality or formal invalidity; legislative omission; substantiveunconstitutionality; and constitutional interpretation in abstracto.

19901991

19921993

19941995

19961997

19981999

20002001

20022003

20042005

20062007

20082009

20102011

20122013

20142015

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

CIIA - EX Rejection OM PROC Const. Req. Subst CIIA - RES

81.8% of the Romanian Court’s decisions from the dataset used for this research qualify as refusalsor rejections. The bulk of the admission decisions are represented by substantive unconstitutionalityrulings (14.1%), while constitutional requirement and procedural unconstitutionality rulingsrepresent a marginal quantity. However, it must be noted that the Court seemingly is more likely to issue constitutionalrequirement rulings in periods of lower general political stability: such rulings were regularlypresent in the Court’s case law in the 1993-1998 period, disappeared from 1999 to 2006 (one singleruling in 2001), and are, again, a constant presence since 2007.Abstract interpretation or omission rulings are irrelevant, as the dataset contains only 1 ruling fromeach of these two categories.

54 This is reflected also in the editing of decisions: certain decisions may contain numbered paragraphs, a priori and a posteriori review decisions have different style of editing etc.

19


The omission ruling referred to electoral law’s provisions which, according to the Court, omitted toregulate the participation of independent candidates to intermediate elections, resulting in theexclusion of this type of competitors, which amounted to a breach of the fundamental right of beingelected.The abstract interpretation ruling was part of a large decision on the ex officio review of aconstitutional revision bill. One ruling of this decision formulated a set of observations to variousprovisions of the bill – rather from a technical (legislation drafting) than of a constitutionalperspective – and recommended to the legislature to take into consideration these observations.

Turning to the procedural unconstitutionality rulings, one may find that these type of rulings havebeen scarce in the first-, but increased in the last decade of the Court. In the 2009-2012 period, therewere 9, while in the 2001-2004 period 2 such rulings out of 26 in total. As what concernsconstitutional requirement decisions, their evolution has been parabolic: in the first 6 years of theCourt there was a relatively constant number of such rulings, in the next 8 years they were almostentirely missing, while in the last 8 years they were increasingly present in the Court’s case law. Inthe 2009-2012 period a number of 14, while in the 2001-2004 period merely 1 such ruling can befound out of 56 in total.Interestingly, the average strength of both types of rulings is significantly lower than the averagestrength of substantive unconstitutionality decisions from the same periods. In the 2009-2012 periodprocedural unconstitutionality rulings score an average of 2.57, constitutional requirement rulingsscore an average of 2.0, while comparatively, in the 2001-2004 period, the average strength is 2.0for both cathegory of rulings.It must be noted, that in the case of constitutional requirement rulings, the Court has the tendencynot to declare the challenged provisions as unconstitutional, but rather to offer an interpretation thatmakes them compatible with the Constitution.

From the above data it can be seen that the Court’s rulings are less differentiated. To some extent inline with the instrumentalist view cited above55, the Court seems comfortable in the classicaldichotomy of constitutional and unconstitutional decisions, perfectly fitting in the image of the‘enforcer of the constitution.’ Hence, the bulk of its rulings are either rejection or substantiveunconstitutionality. However, the JUDICON project offers a tool for categorizing rulings into week/average/strongtypes, according to their completeness, timing and prescription, which allows a further layer ofanalysis.Evaluating the substantive unconstitutionality rulings of the two periods (2001-2004 and 2009-2012) on the basis of this categorization, it reveals a furter factor for the difference in the averagestrength per year.

55 Tanasescu, Simina, supra20


Accordingly, in the 2001-2004 period, substantive unconstitutionality rulings have rather beenaverage or week. In fact, in the years 2002 and 2004 strong substantive unconstitutionality rulingswere completely missing.To the contrary, in the 2009-2012 period, substantive unconstitutionality rulings tended to beaverage or strong, rather than week. Mirroring the previous period, in the years 2009 and 2011 therewere no week substantive unconstitutionality rulings. Consequently, it can be argued that a further reason for the variation in the average strength ofrulings is, besides the factors enumerated in the previous chapter, the quality of substantiveunconstitutionality rulings.Substantive unconstitutionality rulings passed in the 2009-2012 period exceeded both in numbers(78 vs. 21) and in average strength (9.63 vs. 6.9) those from the 2001-2004 period. A small fractionare represented by substantive unconstitutionality rulings with reference to rule of law principles(21 in the entire period, out of 2046). These rulings are grounded on a breach of the generalprinciples of the rule of law, suc h as non-retroactivity, clarity, predictability etc. Arguments restingon the principles of the rule of law may provide room for courts to explore beyond the written texts,to examine principles that provide the foundations of the constitutional construction. The RomanianCourt, adopting a strong positivist-instrumentalist attitude, has successfully withstand suchtemptations.Therefore, unconstitutionality rulings with referenc to the rule of law are, almost withoutexceptions, invoking those principles that have gained constitutional status. 14 out of 21 rulings arebased on the non-retroactivity clause comprised by art.15 of the Constitution, and unsurprisingly,the bulk of dissenting opinions arguing for a formal unconstitutionality, follow the same pattern (12out of 16).

21


Two rulings stand out as an exception from the above. In Decision no. 1258/200956, quashing Lawno.298/2008 on the recording of data generated or processed by providers of electroniccommunications for the public or by public communication networks, the Court invoked thenecessity of clarity, accessibility and predictability of legal norms, without linking theserequirements to a specific constitutional provision. Instead, it referred repeatedly to variousdecisions of the European Court of Human Rights, albeit it cautiously stated that it has no intention“to become a positive legislator” when it asked for a more precise wording of the legal texts.In one of the rulings of Decision no.1609/201057, on certain provisions of Law no.544/2004 onadministrative litigation, the Court pointed to a “lack of legal rigor” in the norm’s text, which mayconfuse the subjects of the law. The dimness, the lack of clarity of the text are prone to affect theright to fair trial and access to justice. Instead of constitutional articles, the Court made reference toits’ own, and also to the European Court of Human Rights’ jurisprudence.

7. Conclusions

The Constitutional Court has never been a strong check upon Parliament. In the past decade, duringwhich tensions between Government and/or Parliament and the Presidency have escalated, theCourt had several occasions to become an arbitrator, a role that it was not particularly enthusiasticto interpret.

The Court is deferential, as the rate of refusal/rejection rulings is high: 81.8% on the entire period.Moreover, the success rate of a posteriori review claims is significantly lower than the success rateof a priori review claims: 14.9% vs. 42%. It must be noted, that these percentages are calculated onthe basis of a selective dataset. If all decisions of the Court are taken into consideration, the successrate of a posteriori review claims would represent merely around 3%.58 A further indicator of theCourt’s deferential attitude towards the legislator is the relatively low rate of dissenting opinions:only 7.5% of the rulings generated at least one dissent in the entire period under analysis.

Perhaps an even more telling fact is that the relative rate of a priori review motions has been thehighest when the general political stability has been low (52 of the total of 252 rulings, that is20.6%, being issued in the 2009-2012 period), while their success rate has been also significantlyhigher in comparison with periods of high general political stability (67.3% versus 20.8%). Furtherweight is added to these data by the fact that most of the a priori review motions are filed by MP’s(ie. oppostion).

A further argument to the deferential character of the Court is represented by the variation in thesubstantive unconstitutionality rulings (in less diferentiated case law, these are the second largestgroup of rulings after rejections): in periods of general political stability these rulings tend to berather average or week than strong, while less stable periods (2009-2012) result in strong andaverage, rather than week substantive unconstitutionality rulings.

The Court is reluctant to play the role of arbitrator or to assume an activist stance. This conclusionis supported by the low occurrence of remedies in the rulings: only 5.2% of the rulings offered some

56 Decision no.1258/08.10.2009, published in the Official Gazette, no. 798/23.11.2009 57 Decision no.1609/09.12.2010, published in the Official Gazette, no. 70/27.01.201158 Perju, 2010, idem

22


kind of remedy. The Court is very careful not to become a “positive legislator”, it avoids groundingits rulings on reasons outside of the constitutional text (in very rare occasions it made reference toprinciples not expressly listed in the fundamental law). Moreover, even the institutional design ofthe Court and its sphere of competence is conceived in such a manner so as to preserve as much aspossible of legislators’ lawmaking supremacy: norms are not abrogated by the effect of anunconstitutionality decision, instead the legislator has a limited period of time to correct the faultyprovisions (or abrogate the norm). This cautiousness is also reflected by the fact that inconstitutional requirement rulings, the Court constantly seeks to offer such an interpretation for thecontested norm that is in line with constitutional provisions, instead of declaring it unconstitutional.It can also be considered a specific feature that constitutional requirement rulings are more frequentin periods of lower general political stability (1 ruling in the 2001-2004 period, 14 rulings in the2009-2012 period).

Further, a priori review decisions generate the highest frequency of dissenting opinions: 14.2% ofall rulings have produced at least one dissenting opinion, while in the case of a posteriori reviewsthis rate is only 6.5%. This means that motions submitted by political actors generate far greaterdebates and controversies than motions claiming a breach of individual rights. In the 2009-2012period 22.9% of a priori review rulings generated at least one dissent, while in the 2001-2004 periodthis type of rulings did not register a single dissent. Procedural unconstitutionality and constitutionalrequirement rulings also generate a high rate of dissents (10.97% compared to 7.5% for all rulings)on the entire period, however these dissents produced a considerably lower degree of averagestrength than substantive unconstitutionality decisions (2.57 and 2.0 vs.7.29) in the 2009-2012period. Finally, in the case of the rulings with at least 3 dissenting opinions, the average strength of themajority opinions is 2.60 for the entire period and 2.66 for the 2009-2012 period, while the averagestrength of dissents is 3.32 for the entire period and 3.64 for the 2009-2012 period. However, in the2001-2004 period, the average strength of majority opinions is 1.25 and the average strength ofdissents is 5.66. Here, the larger degree of variation suggests that in periods of higher generalpolitical stability, combined with a less balanced composition of the Court, rulings tend to be theleast strong in the arguably most disputed cases (at least three minority judges dissenting), whileproportionally, the dissenting coalitions of judges tend to produce the strongest opinions, ie. theCourt is more polarized in these periods.

23

csongor kuti: muddling through democratic transition. the ... · pdf filedraft. please do not...

Documents