Hyper-Protective Legislation For Ministers And Former Ministers

06 July 2007 15:13 – IJC

The Clean Justice Initiative, the Pro-Democracy Association, the Center for Independent Journalism and the Press Monitoring Agency have noted with concern the Constitutional Court’s decision to uphold the exception of unconstitutionality raised in the Zambaccian case. The signatory organizations consider that this decision can generate a hyper-protective legislative framework for ministers and former ministers, especially given that they are or have been parliamentarians.

We believe that there are sufficient safeguards during criminal proceedings whereby prosecutors or judges can eliminate unfounded, harassing or trivial complaints against ministers and that there is no basis for them to enjoy greater protection before the law than ordinary people.

In this context, the signatory organizations emphasize that:

1. The decision of the Constitutional Court produces effects only for the future (art. 147 paragraph 4 of the Romanian Constitution “Decisions of the Constitutional Court are published in the Official Gazette of Romania. From the date of publication, decisions are generally binding and have force only for the future.” ):

For the files in which the criminal investigation was started – whether they are in the criminal investigation phase at the prosecutor’s office, or if an indictment has been drawn up and the file is pending in court – the prior authorization remains without object. In order to give full applicability to the constitutional principle of the future effect of the decisions of the Constitutional Court, it cannot be requested to authorize the initiation of criminal proceedings if it has already been initiated.
For cases in which the criminal investigation has not yet started, even in the case of former ministers for acts committed in connection with the mandate, the procedures of law 115/1999 on ministerial responsibility must be followed;
2. The decision of the Court should clarify the procedures to be followed for former ministers. If the Court’s decision does not clearly show the procedural steps, we request the Romanian Parliament (convened in extraordinary session) or the Romanian Government (during the parliamentary vacation) to complete Law 115/1999 with the procedures to be followed for authorizing the criminal prosecution of former ministers.

3. We express our reservation regarding art. 16 para. 7 of law 115/1999 which seems to establish a double protection for the parliamentary ministers – the authorization can be requested both from the President of Romania, and from the chamber to which the parliamentarian belongs.

If the ministers enjoy immunity regarding the beginning of the criminal investigation – art. 109 para. 2 of the Romanian Constitution “ Only the Chamber of Deputies, the Senate and the President of Romania have the right to request the criminal investigation of the members of the Government for the deeds committed in the exercise of their function. If criminal prosecution has been requested, the President of Romania may order their suspension from office. The prosecution of a member of the Government entails his suspension from office. Jurisdiction belongs to the High Court of Cassation and Justice. ” -, the parliamentarians do not benefit from protection regarding the beginning of the criminal investigation, but only regarding the arrest, detention and search – art. 72 para. 2 of the Romanian Constitution”Deputies and senators may be prosecuted and prosecuted for acts unrelated to votes or political opinions expressed in the exercise of their mandate, but may not be searched, detained or arrested without the consent of their Chamber, after hearing them. The prosecution and referral to criminal proceedings can be done only by the Prosecutor’s Office attached to the High Court of Cassation and Justice. Jurisdiction belongs to the High Court of Cassation and Justice. ” .
In these conditions, we consider that the double quality of minister and parliamentarian does not justify a double protection.
In other words:

In cases such as Nastase, Mihailescu, etc. the trial must continue because the effects of the decision of the Constitutional Court occur only for the future;
In cases of former and current ministers against whom prosecutors would like to start criminal proceedings, prior authorization will need to be sought.
It is unfortunate that this decision nullifies the effects of the conditionality assumed on the European Union in 2004, at the time of concluding the negotiations on Justice and Home Affairs, to eliminate the special protection of former ministers before the law. This obligation was assumed even by the government led by Prime Minister Nastase, which now takes advantage of this special status in order not to be judged on the merits.

We also point out with concern that, in the current conditions, it will be almost impossible for a former or current minister who is also a parliamentarian to be tried for facts related to the mandate, requiring the prior authorization of the Chamber of Parliament to which he belongs. We recall in this regard the refusal of the Chamber of Deputies to authorize the search in the Zambaccian case.

Members of the Clean Justice Initiative: Society for Justice – SoJust, Romanian Academic Society – SAR, Timisoara Society, Advocacy Academy, Freedom House Romania, Social Dialogue Group, Civic Alliance

ProDemocracy Association

Center for Independent Journalism

Press Monitoring Agency

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