Thursday , September 23 2021

Separate opinion in the Constitutional Court: Stanciu, Minea and Morar wanted to "populate" the Criminal Justice Investigation Section – News sources

Changing the appointment process of the Magistrate's Investigation Division dismisses the Public Prosecutor's Office, which affects the constitutional role of the institution, shows three judges of the CCR in a separate opinion on the rejection of the Opposition Notice without consistency regarding the establishment of the section.

The separate opinion on the NLP and USR notification rejected by the Constitutional Court on March 13 is signed by Judges Daniel Morar, Mircea Minea and Livia Stanciu.

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"For the arguments set out, we believe that, under the pretext of operating the Section for the Investigation of Criminal Offenses, within the period established by law, in accordance with the will of the main legislator and the elimination of the possibility of institutional blockade, the delegated legislator adopted an act Normative with negative consequences for the accomplishment of the constitutional role of the Public Ministry, which could affect the regime of this fundamental institution of the State. In addition, in less than three months from the entry into force of the amendments to Law 304/2004 (the Law n . 207/2018) In force on July 23, 2018 and Order of the Government n.90 / 2018 of October 10, 2018), the delegated lawmaker cancels the will of the primary legislator by removing the representatives of the Public Prosecutor from the procedure of decision on the appointment of prosecutors of the criminal investigation Section of justice, with violation of Segundo Agerpres, the separation of the races of the two maxi Strata, validated by the Constitutional Court by Decision No. 252 of April 19, 2018, "shows the separate opinion on the motivation of RCC.

Therefore, Order 90/2018 of emergency of the Government on some measures for the operation of the Section for the Investigation of Criminal Offenses is unconstitutional, the dispositions of the normative act on the creation of the commission of competition and the competent organ that names the managerial positions in Section violates the Basic Law.

"All these consequences demonstrate the unconstitutionality of the provisions of article II, paragraph (2), final sentence and paragraph (9) of the Order of emergency of the government nº 90/2018, the selection committee of the candidates, as well as the competent body to appoint the executive and executive positions of the Criminal Investigations Section as essential elements of the derogatory procedure established by the delegated lawmaker, state that their unconstitutionality affects the Order of the Government. 90/2018 as a whole, "according to the source cited.

In a concurrent opinion signed only by Judge Livia Stanciu, he discovers that, although the Court rejected the transmission of preliminary questions from the opposition to the EU Court of Justice, the RAC decided in the same decision on questions that are not within its jurisdiction.

"As a consequence, the Court of Justice, when identifying the existence of this case, should be limited to its rigorous analysis, especially when it comes to the extension of the jurisdiction of the Constitutional Court. In this regard, the inadmissibility is in – An authentic self-limiting instrument, intended to keep the Constitutional Court within the limits of its constitutional role and not to engage in foreign disputes over its implementation The development of constitutional control and the nuances of the decisions that the Constitutional Court pronounces do not have can not be that the Court Constitutional is replaced by another public authority in terms of specific attributions, "affirms the opinion signed by CFR Judge Livia Stanciu.

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The magistrate also states that there were considerations outside the jurisdiction of the court and that they did not intend to treat as inadmissible the request for preliminary questions to the Court of Justice of the EU.

"In the present case, other than the considerations that explain the lack of connection with the object of the case in which the reference for a preliminary ruling to the XJUE was formulated, that is, other than those that support the claim of inadmissibility, the considerations set out in point 71 The decision also took other considerations that go beyond its competence and that, in our opinion, they do not find a place in a solution to reject inadmissibility the request for preliminary questions to the XJUE, "according to the separate opinion of Livia Stanciu.

On March 13, the Constitutional Court rejected the notification of the NLP and USR law by approving the Emergency Order n. 90/2018 on certain measures for the operation of the Section for the investigation of criminal offenses.

The two sides of the opposition notified the CCR of the law that approved the Emergency Order n. 90/2018 on certain measures for the operation of the Section for the investigation of criminal offenses. In this regard, the Formations asked the institution to refer the case to the Court of Justice of the EU. They also asked the Constitutional Court that it suspended the resolution of its unconstitutionality before the CJEU made a preliminary ruling on the issues raised.

The Senate approved, on December 10, the Emergency Ordinance n. 90/2018 on certain measures for the operation of the Section for the investigation of criminal offenses.

On November 14, the House of Representatives adopted, in the form of a Government, the bill that approves the Emergency Order 90/2018 on some measures for the operation of the Criminal Investigation Section.

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