TOWARDS A TYPOLOGY OF COHABITATION – THE ROLE OF THE CONSTITUTIONAL COURT OF ROMANIA IN SOLVING THE CONFLICTS BETWEEN PUBLIC AUTHORITIES COORDONATOR… [611496]

UNIVERSITATEA DIN BUCUREȘTI
FACULTATEA DE ȘTIINȚE POLITICE

TOWARDS A TYPOLOGY OF COHABITATION –
THE ROLE OF THE CONSTITUTIONAL COURT OF ROMANIA IN SOLVING THE CONFLICTS
BETWEEN PUBLIC AUTHORITIES

COORDONATOR ȘTIINȚIFIC
Prof. Dr. IOAN STANOM IR

DOCTORAND: [anonimizat]
2016

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CONTENTS

INTRODUCTION ………………………….. ………………………….. ………………………….. …………………….. 12
Theme and Area of Researc h ………………………….. ………………………….. ………………………….. …… 13
The Novelty And Relevance Of The Topic ………………………….. ………………………….. ……………. 15
Theoretical Framework ………………………….. ………………………….. ………………………….. …………… 17
The Research Question ………………………….. ………………………….. ………………………….. …………… 23
Hypothesis and Variables ………………………….. ………………………….. ………………………….. ……….. 23
Qualitative and Quantitative Research ………………………….. ………………………….. ………………….. 24
Towards a Typology ………………………….. ………………………….. ………………………….. ………………. 26
Establishing concepts ………………………….. ………………………….. ………………………….. …………….. 27
Process Tracing And Historical Explanation ………………………….. ………………………….. ………….. 28
Empirical Analysis ………………………….. ………………………….. ………………………….. ………………… 28
Sources ………………………….. ………………………….. ………………………….. ………………………….. …….. 32
Structure ………………………….. ………………………….. ………………………….. ………………………….. …… 33
Preliminary Conclusions ………………………….. ………………………….. ………………………….. …………. 35

CHAPTER I.
TOWARDS A TYPOLOGY OF COHABITATION ………………………….. ………….. 36
1.1. Introduction ………………………….. ………………………….. ………………………….. ……………………. 36
1.2. Divided Government – A Theoretical Framework ………………………….. ……………………….. 37
1.3. An Overview of i ts Causes ………………………….. ………………………….. ………………………….. .. 42
1.4. Cohabitation – A Theoretical Framework ………………………….. ………………………….. ……….. 44
1.5. Theories on Cohabitation and Semi -Presidentialism ………………………….. ……………………… 45
1.6. The Literature Gap ………………………….. ………………………….. ………………………….. …………… 47
1.7. Towards A Typology of Cohabitation ………………………….. ………………………….. …………….. 49

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1.8. The Romanian Case ………………………….. ………………………….. ………………………….. …………. 53
1.9. Divided Government in Romania – Towards Cohabitation? ………………………….. …………. 57
1.10. Consequences ………………………….. ………………………….. ………………………….. ……………….. 60
1.11. Preliminary Conclusions ………………………….. ………………………….. ………………………….. …. 63

CHAPTER II.
CONSTITUTIONAL COURTS IN THE FORMER COMMUNIST AND SOVIET
COUNTRIES.
A COMPARATIVE ANALYSIS OF INSTITUTIONAL DESIGN ………………… 65
2.1. Introduction ………………………….. ………………………….. ………………………….. ……………………. 65
2.2.Theoretical Framew ork ………………………….. ………………………….. ………………………….. ……… 67
2.3. Elements of Institutional Design ………………………….. ………………………….. ……………………. 70
2.3.A. The Judges at Constitutional Courts ………………………….. ………………………….. ………. 72
2.3.B. The Prerogatives of Constitutional Courts ………………………….. ………………………….. … 80
2.4. Towards a Model of Institutional Design? ………………………….. ………………………….. ……. 83
2.5. Preliminary Conclusions ………………………….. ………………………….. ………………………….. …… 86

CHAPTER III .
THE CONSTITUTIONAL COURT OF ROMANIA ………………………….. ………. 88
3.1. Introduction ………………………….. ………………………….. ………………………….. ……………………. 88
3.2. Methodology ………………………….. ………………………….. ………………………….. …………………… 89
3.3. Sources ………………………….. ………………………….. ………………………….. ………………………….. . 91
3.4. Struct ure ………………………….. ………………………….. ………………………….. …………………………. 91
3.5. Genesis ………………………….. ………………………….. ………………………….. ………………………….. . 93
3.6. Historical Overview ………………………….. ………………………….. ………………………….. ……….. 101
3.7. Feature s ………………………….. ………………………….. ………………………….. ………………………… 103
3.8. Judges ………………………….. ………………………….. ………………………….. ………………………….. 105
3.8.A. Age Distribution ………………………….. ………………………….. ………………………….. ……… 110

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3.8.B. Educati onal Profile ………………………….. ………………………….. ………………………….. ….. 111
3.8.C. Professional Background ………………………….. ………………………….. ………………………. 113
3.8.D. Teaching Experience ………………………….. ………………………….. ………………………….. .. 115
3.8.E. Political Affiliation ………………………….. ………………………….. ………………………….. ….. 116
3.9. Powers ………………………….. ………………………….. ………………………….. …………………………. 118
3.10. Acts and Decisions ………………………….. ………………………….. ………………………….. ………. 120
3.11. Procedures ………………………….. ………………………….. ………………………….. ………………….. 121
3.11.A. General Procedures Prior to the Hearing Session ………………………….. ………………. 121
3.11.B. Gener al Procedures during the Hearing Session ………………………….. …………………. 124
3.11.C. General Procedures during the Session of Deliberation ………………………….. ……….. 125
3.11.D. General P rocedures following the Session of Pronouncement ………………………….. 126
3.12. Position Among State Powers ………………………….. ………………………….. ……………………. 127

CHAPTER IV .
THE ROLE OF THE CONSTITUTIONAL COURT OF ROMANIA IN THE
ABSTRACT CONSTITUTIONALITY CONTROL OF LAWS ………………………….. ……………. 131
4.1. Introduction ………………………….. ………………………….. ………………………….. ………………….. 131
4.2. Methodology ………………………….. ………………………….. ………………………….. …………………. 133
4.3. Sources ………………………….. ………………………….. ………………………….. …………………………. 134
4.4. Structure ………………………….. ………………………….. ………………………….. ……………………….. 135
4.5. Theoretical Framework ………………………….. ………………………….. ………………………….. …… 136
4.6. Procedures ………………………….. ………………………….. ………………………….. ……………………. 145
4.7. Overview of the Court’s Decision ………………………….. ………………………….. ………………… 147
4.7.1. Decision No. 70/05.05.1999 ………………………….. ………………………….. ………………….. 147
4.7.2. Decision No. 98/05.04.2001 ………………………….. ………………………….. ………………….. 148
4.7.3. Decision No. 515/ 24.11.2004 ………………………….. ………………………….. ………………… 149

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4.7.4. Decision No. 217/20.04.2005 ………………………….. ………………………….. ………………… 150
4.7.5. Decision No. 417/14.07.2005 ………………………….. ………………………….. ………………… 151
4.7.6. Decision No. 418/18.07.2005 ………………………….. ………………………….. ………………… 152
4.7.7. Decision No. 419/18.07.2005 ………………………….. ………………………….. ………………… 153
4.7.8. Decision No. 2 79/22.03.2006 ………………………….. ………………………….. ………………… 153
4.7.9. Decision No. 498/08.06.2006 ………………………….. ………………………….. ………………… 155
4.7.10. Decision No. 970/31.10.2007 ………………………….. ………………………….. ………………. 156
4.7.11. Decision No. 1056/14.11.2007 ………………………….. ………………………….. …………….. 157
4.7.12. Decision No. 1177/12.12.2007 ………………………….. ………………………….. …………….. 158
4.7.13. Decis ion No. 39/30.01.2008 ………………………….. ………………………….. ………………… 158
4.7.14. Decision No. 1094/15.10.2008 ………………………….. ………………………….. …………….. 159
4.7.15. Decision No. 1218/12.11.2008 ………………………….. ………………………….. …………….. 160
4.7.16. Decision No. 55/14.01.2009 ………………………….. ………………………….. ………………… 160
4.7.17. Decision No. 56/14.01.2009 ………………………….. ………………………….. ………………… 161
4.7.18 . Decision No. 1018/19.07.2010 ………………………….. ………………………….. …………….. 162
4.7.19. Decision No. 1595/14.12.2011 ………………………….. ………………………….. …………….. 162
4.7.20. Decision No. 1596/14.12.2011 ………………………….. ………………………….. …………….. 163
4.7. 21. Decision No. 1597/14.12.2011 ………………………….. ………………………….. ……………. 164
4.7.22. Decision No. 1598/14.12.2011 ………………………….. ………………………….. …………….. 164
4.7.23. Decision No. 681/27.06.2012 ………………………….. ………………………….. ………………. 165
4.7.24. Decision No. 785/26.09.2012 ………………………….. ………………………….. ………………. 165
4.8. A Comparative Analysis ………………………….. ………………………….. ………………………….. …. 166
4.8.A. Status of the Court’s Decisions ………………………….. ………………………….. ……………… 166
4.8.B. Notification Frequency ………………………….. ………………………….. …………………………. 167
4.8.C. Duration of the Court’s Deliberations ………………………….. ………………………….. …….. 168

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4.8.D. Constitutional Provisions Allegedly Breached ………………………….. …………………….. 169
4.8.E. Public Auth orities Involved and Their Positions in the Abstract Constitutionality
Control of Laws ………………………….. ………………………….. ………………………….. ……………….. 171
4.9. Preliminary Conclusions ………………………….. ………………………….. ………………………….. …. 174

CHA PTER V .
THE ROLE OF THE CONSTITUTIONAL COURT OF ROMANIA IN SOLVING
THE LEGAL DISPUTES OF A CONSTITUTIONAL NATURE BETWEEN PUBLIC
AUTHORITIES ………………………….. ………………………….. ………………………….. ……………………… 177
5.1. Introduct ion ………………………….. ………………………….. ………………………….. ………………….. 177
5.2. Methodology ………………………….. ………………………….. ………………………….. …………………. 179
5.3. Sources ………………………….. ………………………….. ………………………….. …………………………. 179
5.4. Structure ………………………….. ………………………….. ………………………….. ……………………….. 180
5.5. Theoretical Framework ………………………….. ………………………….. ………………………….. …… 181
5.6. Procedures ………………………….. ………………………….. ………………………….. ……………………. 183
5.7. Overvie w of the Decisions ………………………….. ………………………….. ………………………….. 184
5.7.1. Decision No. 53/28.01.2005 ………………………….. ………………………….. ………………….. 185
5.7.2. Decision No. 356/5.04.2007 ………………………….. ………………………….. ………………….. 186
5.7.3. Decision No. 98/07.02.2008 ………………………….. ………………………….. ………………….. 188
5.7.4. Decision No. 270/10.03.2008 ………………………….. ………………………….. ………………… 190
5.7.5. Decision No. 1559/18.11.2009 ………………………….. ………………………….. ………………. 192
5.7.6. Decision No. 1560/18.11.2009 ………………………….. ………………………….. ………………. 194
5.7.7. Decision No. 1431/3.11.2010 ………………………….. ………………………….. ……………….. 195
5.7.8. Decision No. 1525/24.11.2010 ………………………….. ………………………….. ………………. 198
5.7.9. 2011 ………………………….. ………………………….. ………………………….. ……………………….. 201
5.7.10. Decision no. 683/27.06.2 012 ………………………….. ………………………….. ……………….. 201

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5.7.11. Decision no. 730/09.07.2012 ………………………….. ………………………….. ……………….. 204
5.8. Comparative Analysis ………………………….. ………………………….. ………………………….. …….. 206
5.8.A. Frequency of Cases ………………………….. ………………………….. ………………………….. …. 207
5.8.B. The Political Affiliations of the Heads of the Public Authorities Involved in the Legal
Disputes of a Constitutional Nature ………………………….. ………………………….. …………………. 208
5.8.C. The Constitutional Prerogatives Which Were Violated in the Conflicts ………………. 212
5.8.D. The Clarifications Made By the Constitutional Court in Its Decisions ………………… 215
5.8.E. The Impact of the Rulings of the Constitutional Court of Romania …………………….. 218
5.9. Preliminary Conclusions ………………………….. ………………………….. ………………………….. …. 219

CHAPTER VI .
THE ROLE OF THE CONSTITUTIONAL COURT OF ROMANIA IN
ESTABLISHING THE POLITICAL ACCOUNTABILITY OF THE PRESIDENT OF
ROMANIA ………………………….. ………………………….. ………………………….. ………………………….. … 222
6.1. Introduction ………………………….. ………………………….. ………………………….. ………………….. 222
6.2. Methodology ………………………….. ………………………….. ………………………….. …………………. 223
6.3. Sources ………………………….. ………………………….. ………………………….. …………………………. 224
6.4. Structure ………………………….. ………………………….. ………………………….. ……………………….. 225
6.5. Theoretical Framework ………………………….. ………………………….. ………………………….. …… 226
6.6. Procedures ………………………….. ………………………….. ………………………….. ……………………. 229
6.7. The Precedent: Ion Iliescu’s Attempted Suspension from Office of President of Romania
(1994) ………………………….. ………………………….. ………………………….. ………………………….. …….. 233
6.8. Case Study #1: President Traian Băsescu – First Term of Office (2007) ……………………. 234
6.8.1. The Suspension Proposal ………………………….. ………………………….. ………………………. 234
6.8.2. Parliam entary Debates ………………………….. ………………………….. ………………………….. 236
6.8.3. Advisory Opinion on the Proposal to Suspend the President of Romania from Office
………………………….. ………………………….. ………………………….. ………………………….. …………… 242

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6.8.4. Ascertaini ng the Circumstances which Justify the Interim in the Exercise of Office of
the President of Romania ………………………….. ………………………….. ………………………….. …… 245
6.8.5. Referendum for the Dismissal of President Traian B ăsescu ………………………….. ……. 246
6.9. Case Study #2: President Traian Băsescu – Second Term of Office (2012) ………………… 249
6.9.1. The Suspension Proposal ………………………….. ………………………….. ………………………. 249
6.9.2. Parliamentary Debates ………………………….. ………………………….. ………………………….. 252
6.9.3. Advisory Opinion of the Constitutional Court of Romania ………………………….. …….. 260
6.9.4. The Ascertainment of the Existence of the Circumstances Justifying the Interim in the
Exercise of the Office of President of Romania ………………………….. ………………………….. … 263
6.9.5. Referen dum for the Dismissal of President Traian Băsescu (2012) ……………………… 264
6.10. Preliminary Conclusions ………………………….. ………………………….. ………………………….. .. 271

CONCLUSIONS ………………………….. ………………………….. ………………………….. …………………….. 275

BIBLIOGRAPHY ………………………….. ………………………….. ………………………….. …………………… 284
Primary Sources ………………………….. ………………………….. ………………………….. …………………… 284
Secondary Sources ………………………….. ………………………….. ………………………….. ……………….. 287
Websites ………………………….. ………………………….. ………………………….. ………………………….. …. 295
Appendix 1. Questionnaire with Constitutional Judge Mihai Ștefan Minea ………………………….. 297

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LIST OF ABBREVIATIONS

RCC – Constitutional Court of Romania
CC – Constitutional Court
NLP – National Liberal Party
DP – Democratic Party
D-LP – Democratic -Liberal Party
SDP – Social -Democratic Party
SLU – Social -Liberal Union
DAHR – Democratic Alliance of Hungarians in Romania
PC – Conservative Party
GRP – Greater Romania Party
ART – Article
C.D. – Chamber of Deputies
S – Senate
MP – Member o f Parliament
PM – Prime -Minister

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LIST OF CHARTS AND FIGURES

1.1.Forms of Divided Government in the Arithmetical Sense [40]
1.2. A Typology of Cohabitation [52]
2.1. Data on the Institutional Design of Constitutional Courts [83-84]
2.2. Patterns of Institutional Design [85]
3.1. Age Distribution among the Judges of the Constitutional Court [111]
3.2. Constitutional Judges’ Education Level [112]
3.3. Higher Education Institutions Attended by the Judges [113]
3.4. Professional Background of the Const itutional Judges [114]
3.5. Teaching Experience among the Constitutional Judges [115]
3.6. Political Background of the Constitutional Judges [117]
4.1. Status of the Court’s Decisions on the Abstract Constitutionality Control of Laws [167]
4.2. Notificatio n Frequency Timeline for the Abstract Constitutionality Control [168]
4.3. Duration of the Court’s Deliberations on the Abstract Constitutionality Control
Notifications [169]
4.4. Constitutional Provisions Allegedly Breached in the Bills Submitted for the Abstract
Constitutionality Control of Laws [171]
4.5. Chart on the Positions of the Other Public Authorities Notified by the Constitutional Court
of Romania [172-173]
5.1. Chronological Chart with the Evolution of the Number of Cases of Legal Disputes of a
Constitutional Nature Brought to the Court [208]

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5.2. The Number of Times Each Public Authority was involved in a Legal Dispute of a
Constitutional Nature [209]
5.3. Number of Conflicts between Public Authorities by their Political Affiliations [211]
5.4. Num ber of Legal Disputes of a Constitutional Nature between Public Authorities [214]
5.5. Disputed Constitutional Prerogatives [215]
6.1. Nominal Composition of the Parliamentary Investigation Commission [241]
6.2. List of the Court’s Rulings on the 2007 Refe rendum for the President’s Dismissal [246]
6.3. List of the Court’s Rulings on the 2012 Referendum for the President’s Dismissal [265]

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INTRODUCTION

First established in 1992, in the aftermath of the collapse of the communist regime , the
Constitutional Court of Romania was one of the most challenging institutions debated by the
Constituent Assembly. Its ambiguity stemmed from its position in the Fundamental Law – it was
not part of the judicial branch, nor was it included in the titl e on public authorities. Many members
of the Assembly feared it would become a fourth power in state, since, in their view, the Court had
the potential to control the Parliament. Others ardently demanded the altogether elimination of the
provisions on the Constitutional Court from the Theses, transferring part of its prerogatives to the
High Court of Cassation and Justice or to the Parliament itself. Eventually, the Constituent
Assembly did vote in favor of the establishment of the Constitutional Court, but only after having
reduced its prerogatives and subordinat ing it, to a certain extent, to the Parliament1.
Nowadays, the controversy surrounding the Constitutional Court of Romania persists. Its
judges are often accused of political bias, and its decisio ns disputed in the mass -media, even though
they are binding. Its status as a sole authority of constitutional jurisdiction is complemented by its
dualistic nature, as both a judicial and a political body. Essentially, the Constitutional Court is a
judicial body because of its organization and its prerogatives, whereas its political nature is
reflected in the manner in which the constitutional judges are appointed in office – hence, the
political bias this ins titution is often subjected to, albeit speculativ ely.
The fact that the Constitutional Court of Romania is often called to solve what are,
essentially, political conflicts between heads of public authorities also positions it at the cross -roads
between politics and law. Even if the Court only takes int o account constitutional provisions and
declines or asserts its competence on the cases with which it is notified based on the constitutional
substantive matter, as opposed to the mere political statements or interests, one side or another in
such disputes is also appropriated by a political entity.

1 For instance, before the 2003 revision of the Constitution of Romania, the Parliament could, by two thirds of its votes,
overrul e a decision of unconstitutionality issued by the Constitutional Court of Romania.

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THEME AND AREA OF RESEARCH
The theme of this thesis is focused on an institutional analysis of the role of the
Constitutional Court of Romania in solving the disputes between public authorities, as they are
established under T itle III of the Fundamental Law. It should be noted, nonetheless, that I only
focus on those institutions susceptible of pol itical affiliation – the President of Romania, the Prime –
Minister, as representative of the Government of Romani a, the President of the Chamber of
Deputies and the President of the Senate, respectively. The reason my analysis accounts for the
heads of the two Parliament Chambers distinctively is that it sometimes happens that they do not
share the same political af filiation, nor the same outlook on the conflicts in which they are involved
or on which they are asked to provide the Court with their viewpoints. In the case of the President
of Romania, even though, according to the Constitution of Romania, he does not h ave any de jure
political affiliations, as he is forbidden to hold any party membership2, for the purposes of this
thesis, he is considered to be one of those public authorities under Title III of the Constitution that
are susceptible of political affiliat ion for the following reasons: a) he maintained his political
connections with the party that supported him during the electoral campaigns; b) he tended to favor
that respective party in his subsequent interactions with all political parties and c) most of his
political support originated from the party that propelled him into office . An illustrative example
in point – and also the most relevant, given that both periods of cohabitation analyzed in this thesis
occurred during his two consecutive terms of of fice – is that of President Traian Băsescu who, de
facto preserved his political affiliation and was involved in the activity of the Democratic Party/
Democratic -Liberal Party.
In order to do so, I took into account several specific powers of the C onstit utional Court of
Romania, namely those granted by article 146 of the Fundamental Law, letters a)3, e)4, g)5, h)6 and

2 According to article 84 paragraph (1) “During his term of office, the President of Romania may not be a member of
any political party, not may he perform any other public or private office”.
3 Article 146, letter a) states that the Constitutional Court of Romania “adjudicates on the constitutionality of laws
before promulgation, upon referral by the President of Romania, the President of either of the Chambers, the
Governm ent, the High Court of Cassation and Justice, the Advocate of the People, at least 50 deputies or at least 25
senators, as well as ex officio , on any initiative purporting a revision of the Constitution”.
4 “It decides on legal disputes of a constitutional nature between public authorities, at the request of the President of
Romania, the President of either of the Chamber, the Prime Minister or the President of the Superior Council of
Magistracy”.
5 “It ascertains any circumstances as may justify the interi m in the exercise of office of President of Romania, and it
reports its findings to Parliament and to Government”.
6 “It gives advisory opinion on the proposal to suspend the President of Romania from office”.

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i)7. The reason I selected these attributions was that I considered them relevant for the typology of
cohabitation I established in the fir st part of this thesis. They all regard disputes between public
authorities susceptible of political affiliation, on which the Constitutional Court of Romania is
called upon, and they all tend to intensify or even manifest themselves during periods of
coha bitation. Moreover, they also tend to engage the President of Romania, the Prime -Minister as
representative of the Government and the Presidents of the Upper and Lower Parliament Chambers
– for instance, even in the abstract constitutionality control of la ws, where the President of Romania
is the author of the referral, the Court requires the Prime -Minister, the President of the Chamber of
Deputies and the President of the Senate, respectively, to submit their viewpoints on the contested
law. The procedures for the head of state’s political accountability, as stipulated under letters g),
h) and i) of article 146 in the Constitution of Romania have been considered to be phases of the
President’s impeachment on political grounds, phases which succeed one anoth er and are in an
interdependent connection. Given the optional nature of the Court’s advisory opinion on the
President’s suspension from office, advisory opinion which the Parliament, in joint sessions, can
decide to take into account or not, the ascertain ing of the circumstances which justify the interim
in the office of President of Romania, in such special cases, is a logical consequence, with a mere
ceremonial character, whereas the Court’s attributions in regard to the observance of the
referendum and the confirmation of its results are also essential for the final stage in the procedures
engaging the President of Romania’s political accountability.
The timeframe taken into account ranges from 1992, when the Constitutional Court of
Romania was establi shed, until the 2012 legislative elections8. The two decades timespan was
necessary so as to highlight the Court’s activity and role during the periods of cohabitation (2007
– 2008 and 2012), by contrast with the rest of the years of unified government. In addition, the late
2012 elections provided a new Parliament, with a different political composition as well as a new
Cabinet – reasons for which, an expanded analysis of that respective Cabinet and Parliament would
have increased the scope of my analysis, without allowing the necessary time for reflection.
Basically, and on a general level, I am interested in analyzing the frequency with which the
Court has been asked to interfere in such disputes , the parties most involved, the parties who tend
to notif y the Court most often and the constitutional provisions that are usually – supposedly –

7 “It sees to the observance of the procedure for the organization and holding of a referendum, and confirms its results”.
8 Which took place on December 9th, 2012.

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breached. Needless to say, though, each chapter of empirical analysis imposes certain specificities
which will be added to the dimensions of my analysis, such as: a) t he viewpoints expressed by the
Prime -Minister, the President of the Chamber of Deputies and the President of the Senate in the
cases of the abstract constitutionality control; b) the clarifications made by the Constitutional Court
in the cases of legal dis putes of a constitutional nature between public authorities or c) the
accusations brought against the President of Romania in the suspension from office proposals; d)
the transcripts of the joint Parliament sessions in which the proposal to suspend the hea d of state
from office was discussed; e) the contestations to the referendums for Traian Băsescu’s suspension
from office of President of Romania and so on and so forth.
Finally, each of the previously mentioned dimensions of empirical analysis are corre lated
to the typology of cohabitation advanced in the first part of this thesis, as they are considered to be
consequences of the dysfunctional cohabitation Romania experienced. Another important
connection was established, as often as possible, between th e judges at the Constitutional Court of
Romania and their decisions. Given that the chapter on the Constitutional Court of Romania
included an empirical analysis of the judges – as well as of the public authorities that appointed
them and any political offi ces or affiliations they had prior to entering into office – correlations
were established between the judges’ decisions (especially when they issued separate opinions)
and the public authorities involved in the cases they were called upon.

THE NOVELTY AND RELEVANCE OF THE TOPIC
The thesis on the role of the Constitutional Court of Romania in solving the disputes
between public authorities advances several elements of novelty. The central element of novelty is
the attempt to establish a descriptive typolo gy of cohabitation to account for the deviant case of
Romania, thus distinguishing between “functional” and “dysfunctional” cohabitation. Starting
from the literature gap on cohabitation, the typology presented in the first chapter of this thesis
outlines the causes (emphasizing the structural factors), the moment of emergence for both the
functional and the dysfunctional forms of cohabitation, as well as their potential consequences. In
each case, especially in that of the dysfunctional cohabitation, the c onsequences identified are those
susceptible of analysis through the Constitutional Court’s jurisprudence.

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As such, after the first part, which focuses on a theoretical novelty – the typology of
cohabitation – the second part of this thesis provides an em pirical analysis of three prerogatives
exercised by the Constitutional Court of Romania regarding the disputes between public
authorities: i) the abstract constitutionality control of laws, before their promulgation, at the request
of the President of Roma nia; ii) the legal disputes of a constitutional nature between public
authorities – only between those susceptible of political affiliation – essentially, horizontal conflicts
of competence; and iii) the procedures engaging the political accountability of the President of
Romania, namely those on his suspension from office. The empirical analysis throughout these
three chapters takes into account every case from 1992 until 2012, briefly presenting its specific
elements and then providing a comparative and q uantitative analysis of these cases.
In addition, there are secondary elements of novelty inserted throughout other chapters,
such as: a) the empirical analysis of the judges at the Constitutional Court – examining the public
authorities that appointed th em in office, the length of their mandates, their educational,
professional background, as well as any political offices or affiliations they may have had prior to
assuming office; b) the institutional analysis of Constitutional Courts throughout Europe – which
provided a general context for the Romanian Court; and c) the databases9 on 1) the judges at the
Constitutional Court of Romania; 2) the Constitutional Courts throughout Europe; 3) the Court’s
jurisprudence in matters of abstract constitutionality co ntrol of laws before their promulgation, at
the request of the President of Romania; 4) the Court’s jurisprudence on the legal disputes of a
constitutional nature between public authorities; 5) the Court’s jurisprudence in the cases in which
the President of Romania is suspended from office (the advisory opinions , the ruling by which the
circumstances ascertaining the existence of the interim in the exercise of the office of President of
Romania and the rulings on the confirmation of the results of the nati onal referendum on the head
of state’s dismissal from office in such cases, as well as their subsequent contestations).
Another important element of novelty, from my research, was the section on the genesis of
the Constitutional Court of Romania, in the th ird chapter. This section is relevant for a better
understanding of the initial institutional design of the Court, as well as for the manner in which it
is regarded by politicians – particularly by MPs. The status of the Constitutional Court is also
reflec ted throughout the debates of the Constituent Assembly and, for this reason, numerous

9 All of these databases will be published, by the end of the year, on the website of the Romanian Association of Young
Scholars.

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statements made at that time have been included in the footnotes of the section, in extenso.
Although there are numerous works on Constitutional Law which offer an accoun t of the historical
background of the Constitutional Court of Romania – at large, only with reference to the
constitutionality review of laws – there are very few that also analyze the transcripts of the
Constituent Assembly debates in 1991.
Also, compleme ntary to the empirical analysis in the second part of the thesis, I included a
questionnaire with a judge at the Romanian Constitutional Court. Initially, the plan was to have
several interviews with the current or former judges at the Court, but they were all reluctant to the
idea, either because of the delicate topic addressed throughout my research , which is not only
judicial, but also political, or because, by nature of their offices, they are not to discuss or pronounce
themselves on such issues, which may have political connotations. However, there was one judge
at the Constitutional Court who agreed to grant me an interview, provided he saw the questions in
it. Judge Mi rcea Ștefan Minea kindly agreed to answer those questions, but in writing, and then
one of his assistants e -mailed me the answers. As such, the initial interview, turned out to be a
questionnaire, although it was not drafted or intended that way. I did not use it as an element of the
empirical analysis, but rather as a complementary research material. Nonetheless, it is a unique and
interesting material, which is included in the appendix of this work.
Last but not least, the topic chosen for this thesis no t only allowed for both theoretical and
empirical novelties, but essentially combined both elements of Political Science and Law. The
theoretical novelty – the typology of cohabitation – provides the grounds for a political analysis
relevant for the recent post-communist political arena in Romania, whereas the qualitative and
quantitative analysis of the jurisprudence created by the Constitutional Court of Romania during
the past two decades correlates the political with the legal dimensions of the present research
endeavor. Thus, the topic of this thesis is relevant for the field of constitutionalism, while at the
same time providing an extensive account of contemporary Romanian history.

THEORETICAL FRAMEWORK
In what regards the theoretical framework empl oyed throughout the present thesis, there
are numerous concepts employed throughout this research, the first one of which being that of a
Constitutional Court, which Louis Favoreau defined as “a jurisdiction created in order to solve (and

18
know) particularl y and exclusively the constitutional conflicts, situated outside the ordinary
jurisdictional design and independent both from it and from the public powers”10. This definition
highlights the fact that the Constitutional Court is not a part of the judicial s ystem, that it possesses
exclusive constitutionality jurisdiction – as the sole competent institution in such matters, and that
it is independent from the public authorities, whose conflicts it must solve, as well as from other
institutions of the judicial branch. The Constitutional Court is not an appendix of the Parliament,
statement reflected both by its status as a negative legislator11 and by its administrative
independence12.
Furthermore, the Constitutional Court is considered to be that “public authori ty which is
meant to ensure the well -functioning of the public powers in the framework of the constitutional
relations of separation, balance, cooperation and mutual control”13. In other words, the
Constitutional Court s are not only the safe guardians of th e Constitution, but they also “stabilize
the democracy itself”14, ensuring that the balance of powers is preserved and that the public
authorities are functioning within the ir constitutional limits. Their role becomes even more
important during the periods of cohabitation, defined by Professor Robert Elgie as those occurring
“in the context of a system in which both the President and the Prime M inister are significant
political actors and is brought about when the President is faced with an opposition majori ty in the
National Assembly and thus is obliged to appoint a prime minister who has the support of that
majority”15. On this note, a prime -minister is usually nominated by the President and then requires
the vote of confidence of a parliamentary majority in many cases of semi -presidential constitutional
frameworks. And, in some cases, there is the possibility that the parliamentary majority may not
be the same as the party/coalition supporting the President and consequently, may not agree with
the President’ s nominated prime -minister and only grant the vote of confidence to their preferred
candidate. Therefore, the French case – albeit exemplary, is not singular.

10 Loui s Favoreau, Les Cours Constitutionneles , P.U.F., Paris, 1986, p. 27.
11 The Constitutional Court cannot issue laws, nor can it amend any laws. It merely ascertains and sanctions those that
are contrary to the Fundamental Law.
12 From 2003, the Constitutiona l Court of Romania has its own, separate budget.
13 Gheorghe Iancu, Proceduri constituționale. Drept procesual constituțional , ed. Monitorul Oficial, București, 2010,
p. 45.
14 Rod Hague, Martin Harrop, (eds.), Comparative Government and Politics. An Introd uction , 3rd edition, Palgrave
Macmillan, Hampshire, 2004, p. 22.
15 Ibidem .

19
As such, it is a phenomenon specific to semi -presidential regimes, as it implies that “there
is a President from one party and a prime minister from an opposing party [and also that] the
President’s party is not represented in the cabinet”16. Needless to say, such a representation would
inevitably lead to intra -branch conflict between the dualist execu tive structure , as numerous
accounts throughout European semi -presidential regimes have proven17.
The theoretical framework in the Romanian cases of legal disputes of a constitutional nature
between public authorities, as a recently established prerogative of the Constitutional Court, rests
– to a large extent – on th e jurisprudence it has produced during its first years. The judicial practice
in our country has established two definitions: a positive and a negative one.
The positive definition maintains t hat a legal dispute of a constitutional nature between
public authorities implies “concrete acts or actions through which an authority or several authorities
grant themselves powers, attributions or competencies which, according to the Constitution, belong
to other public authorities” or “the public authorities’ omission consisting of the decline of
competence or in the refusal to fulfill certain acts which are part of their obligations”18. Such a
conflict “exists between two or more authorities regarding th e content or the extent of their
attributions deriving from the Constitution, which means that these are conflicts of competence,
either positive or negative, which may create institutional blockages”19.
On the other hand, the negative definition of legal d isputes of a constitutional nature
between public authorities states what these conflicts are not – they are not opinions, statements or
judgments made by the representative of a public authority and regarding other public authorities.
Furthermore, such st atements “regarding the manner in which a certain public authority or its
structures act or should act, although critical in content, are not likely to generate institutional
blockages unless they are followed by actions and/or inactions of a nature to for bid the fulfillment
of the constitutional attributions of those public authorities. Such opinions or suggestions remain
within the limits of the freedom of expression of political opinions”20.

16 Robert Elgie, Iain Mcmenamin, “Explaining the Onset of Cohabitation Under Semi -Presidentialism” in Political
Studies , vol. 58, no. 3, 2011, pp. 616 -635, p. 616.
17 For further re ference, see Oleh Protsyk, “Intra -Executive Competition between President and Prime -Minister:
Patterns of Institutional Conflict and Cooperation under Semi -Presidentialism” in Political Studies , vol. 54, no. 2,
2006, pp. 219 -224.
18 Decision No. 53/28.01.20 05, published in the Official Gazette of Romania No. 144/17.02.2005.
19 Decision No. 838/27.05.2009, published in the Official Gazette of Romania No. 461/03.07.2009.
20 Decision No. 435/26.05.2006, published in the Official Gazette of Romania No. 576 of 04.0 7.2006.

20
Then, it what regards the political accountability of the Presid ent of Romania, it is im portant
to distinguish between suspension and impeachment . Among few others throughout Europe, the
Romanian Constitution provided for both measures. However, there is a key difference to be noted
between the two institutions, as the suspension procedure regards the political accountability of the
President, whereas the impeachment procedure employs his legal accountability. Thus, the
President of Romania is both politically and judicially accountable. The political accountability of
the President consists of two phases: i) the actual political accountability of the head of state in
front of the Chamber of Deputies and the Senate, and ii) his accountability to the people, exercised
by means of the referendum organized for removing the suspended President from office21.
Although distinct, these two phases are inter -dependent22. Overall, “the juridical institution of the
suspension from office of the President of Romania must be seen as an atypical way of exercising
parliamentary control – [particularly since the initiative for this measure] pertains to the
Parliament23.
It is important to note that the Fundamental Law provides the President of Romania with
an immunity which resembles that of the Parliament Members24. However, some authors25 argue
that this immunity is only partial, and it obviously disregards the other constitutional provisions on
parliamentary immunity against preventive measures such as search, detention or arrest. As such,
according to article 84, paragraph (2) he “cannot be held accountable for those political opinions
expressed during and regarding his mandate and in connection with his presidential prerogatives”.
However, Professor Cristian Ionescu warns that this does not imply a certain liability exemption
of the head of state, who may still be held politically or judicially accountable by Parliament in
case of serious offenses against the Constitution or high treason.
Fundamental to the suspension procedure is the expression “serious offenses against the
Constitution ”. The term is not defined, however, neither in the Constitution26, nor in other special

21 Cristian Ionescu, Drept Constituțional și Instituții Politice… op. cit. , 2012, p. 320: “The political accountability is
carried out in two phases: the suspension phase and the dismissal phase”.
22 Luminița Dragne, Drept constitutional… op. cit. , p. 40.
23 Cristian Ionescu, Drept Constituțional și Instituții Politice… op. cit., 2012, p. 270.
24 According to article 84, paragraph (2) of the Constitution.
25 Bianca Selejan -Gutan, Drept constituțional și instituții politice, Hamangiu, București, 2008, p. 289: “For the acts
committed during his term of office but which have nothing to do with the attributions specific to the exercise of his
presidential mandate, the immunity is temporarily limited, so that, as soon as his mandate ends, the President may be
subjected to search, detaine d or arrested for those acts”.
26 For further information, see article 96 of the Constitution of Romania.

21
laws. The Constitution does not specifically mention the nature of those acts which might trigger
the procedures for the suspension from office of the head of state and therefore, in Cristian
Ionescu’s view, “the seriousness of the offenses will be evaluated by the initiators of the suspension
procedure and, should it be triggered, by the two Chambers”27. In my opinion, although realistic,
this perspective enables a major ity coalition of political actors to affect the separation of powers
principle, by suspending the President on mere political considerations of their own design. It
should be pointed out that “the serious offenses against the Constitution should not be mis taken
with the President’s decisions to make or to not make use, in a certain manner, of those attributions
specific to the presidential institution which he may choose whether or not to fulfill”28. Particularly
since the Romanian Basic Law has embraced the theory of a reasonable breach (of the
Constitution), in the opinion of Professor Gheorghe Iancu. However, which acts carried out by the
President of Romania in violation of the Constitution are serious enough to constitute reasons for
suspension from offi ce? And how should their degree of seriousness be determined? According to
the same author, the two Chambers of Parliament are the only authorities entitled to determine the
seriousness of the President’s offenses against the Constitution, which ultimately means that any
kinds of offenses in violation of the Constitution could be considered serious and thus trigger the
President’s suspension from office procedures.
Ultimately, in the second stage of the suspension procedures, the suspended President may
only be dismissed by means of a national referendum. The dismissal by means of a referendum is
imposed by the manner in which the President enters into office – by a direct vote from the people.
However, should the results of that referendum turn out to be negative, “in the absence of a specific
constitutional provision, the President dismissed from office in the aftermath of the referendum, if
on his first mandate, is entitled to run again for a new mandate”29 A certain principle of legal
symmetry is employe d in this respect, on grounds of legitimacy, as the citizens may elect/dismiss
their President by means of a direct, secrete vote, universal, equal and freely -expressed vote.
Professor Cristian Ionescu defined the constitutionality control of laws as “the ensemble of
normative dispositions which regulate the activity of verifying the conformity of laws and other

27 Cristian Ionescu, Drept Constituțional și Instituții Politice… op. cit. , 2012, p. 321.
28 Claudia Gilia, Manual de drept constitutional… op. cit. , p. 212.
29 Bianca Selejan -Gutan, Drept constitutional… op. cit., p. 289 -290.

22
normative acts with the dispositions of the fundamental law”30. Another definition of the abstract
constitutionality control of laws is the one adva nced by Claudia Gilia, who argues that
“constitutionality control represents an essential condition for the rule of law state because it
guarantees the actual supremacy of the Constitution, the supreme juridical act on which the entire
juridical order in a state is based on”31. Both of these definitions are based on the theory of the
supremacy of the Constitution, according to which the Fundamental Law is superior and more
important than all other laws and as such, any given law in a rule of law state should be in
accordance with the constitutional provisions32.
More extensively, in 2006, the Constitutional Court explained that:
“the a priori constitutionality control is exercised by the Constitutional Court only
on laws prior to their promulgation, and not on the dispositions of a law in effect.
Regardless of the connections which may be made between the modifying and the
modified text, the Constitutional Court, in accordance with article 146 letter a), cannot
pronounce in the a priori constitutionality contro l but on the modifying text of the law
which is to be submitted to promulgation and cannot extend the unconstitutionality control
to the modified text in a law into force. […] To do otherwise would mean to breach the
constitutional dispositions concerning the different treatment applicable in the case of
constitutionality control, as it refers to laws prior to promulgation or to promulgated laws,
published in the Official Gazette of Romania and entered into force”33.
Furthermore, in the same decision in 200 6, the Court also explained what categories of laws
are eligible for constitutionality control:
“the constitutionality control of a law is triggered, under the conditions of
article 146 letter a) of the Constitution before its promulgation . Since the
constitutional text does not distinguish, by ‘laws’ as object of constitutionality
control, we also understand ‘the laws on the approval or dismissal of an
ordinance’, regardless of its nature, ‘ordinary laws’ or ‘organic laws’. […] In
such a situation, the a priori constitutionality control of a law of dismissal of an
ordinance may concern only its extrinsic constitutionality, in terms of compliance
with the constitutional procedures for debate and adoption”34.

30 Cristian Ionescu, Drept constitutional și instituț ii politice – Curs sinteză , Hamangiu, București, 2012, p. 113.
31 Claudia Gilia, Manual de drept constituțional și instituții politice , Hamangiu, Bucharest, 2010.
32 Cristian Ionescu, Drept constitutional și instituții politice – Curs sinteză , Hamangiu, Bucu rești, 2012, p. 112 – “The
theoretical justification of the supremacy of the Constitution resides in its very political and juridical character. Thus,
the people’s supreme will in what concerns the objectives and the tools of exercising political power are expressed in
the Constitution. The constitutional norms set the main tools of government, they establish the authorities which will
government and the relations between those”.
33 Decision No. 498/08.06.2006, published in the Official Gazette of Romania No . 554/27.06.2006, p. 4.
34 Ibidem .

23

THE RESEARCH QUESTION
In essence, this thesis adv ances an element of theoretical novelty – the typology of
cohabitation – and provides an empirical analysis of the role of the Constitutional Court of Romania
in solving the disputes between public authorities. As such, the idea of the typology of cohabita tion
came from an intensive study of the literature on divided government, when I found that the
Romanian case was simply labeled as an exception, as a deviation, without any further explanations
or justifications. On the contrary, the peculiarity of the f irst period of cohabitation in Romania was
illustrated as a highly surprising phenomenon to the specialists who associated cohabitation with
semi -presidentialism. And yet, the phenomenon occurred in 2012 once again. On this note, I
propose a descriptive ty pology, which differentiates between functional and dysfunctional
cohabitation, laying out the characteristic features of each type, by means of structural factors and
institutional consequences.
Then, I state that the conflicts between public authorities increase and intensify during
periods of dysfunctional cohabitation. Consequently, the activity of the Constitutional Court in
mediating and/or solving these conflicts regarding the interaction of public authorities headed by
opposing political ideologies also increases, albeit its effects are controversial. And for that reason,
at the empirical level of my analysis, the research question from which this thesis originated was
the following: “What is the role of the Constitutional Court of Romania in solving the disputes
between public authorities during periods of cohabitation?”. By “disputes” I refer not only to the
legal disputes of a constitutional nature between public authorities, as they are described under
article 146 letter e) of the Constitution, bu t also to those regarding the political accountability of
the President of Romania and to those on the abstract constitutionality control of laws before
promulgation, at the request of the President of Romania.

HYPOTHESIS AND VARIABLES
In order to test my research question, the main idea from which this thesis originates is the
following: The role of the Constitutional Court in solving the disputes between public authorities
increases during periods of dysfunctional cohabitation. From this perspective, I will attempt to
demonstrate that, as the political affiliations of various public authorities become more and more

24
opposing, the Constitutional Court will be called to rule on various instances of conflicts between
the public authorities more and more fre quently . The sub -hypotheses will be subsequently
presented in each chapter of empirical analysis, taking into account their specificity. On this note,
after establishing the typology of cohabitation in the first section of my thesis, the empirical
analysis will comprise several of the attributions granted to the Constitutional Court which regard
the interaction between public authorities35, such as: 1) the abstract constitutionality control of
laws; 2) the legal disputes of a constitutional natu re between pu blic authorities; 3 ) the proposal of
suspension from office of the President of Romania ; and 4 ) the assertion of the circumstances which
render justifiable the interim in the exerci se of the office of Presidency; 5) the observance of the
procedure for the organization and holding of the national referendum for the President of
Romania’s dismissal from office, as well as the confirmation of its results and the rulings upon any
potential contestations.
Finally, so as to test my suppositions, the independent/ status variable I have employed is
dysfunctional cohabitation and the dependent variables are the following: a) the political
affiliations of the heads of the public authorities involved in the cases under scrutiny, b) the
Constitutional prerogatives which were violated in the claims, c) the ideological fragmentation of
the public authorities, d) the parties who tend to notify the Court most often, e) the clarifications
made by the Court in its decisions and f) the actual impact of its rulings. The manner i n which the
judges of the Constitutional Court are appointed will also be a key factor in my analysis .

QUALITATIVE AND QUANTITATIVE RESEARCH
Due to the small -N analysis (SNA) which Evan Lieberman broadly defined as “a mode of
analysis in which causal int erferences about the primary unit under investigation are derived from
qualitative comparisons of cases and/or process tracing of causal chains with cases across time”36
the methodological focus lies on the instruments of qualitative research. In addition, a further
differentiation between the two sections of this thesis should be underlined at a methodological
level, given their specific scopes and methods.

35 Those provided by article 146, letters a), e), g), h) and i) .
36 Evan S. Lieberman, “Nested Analysis as a Mixed Methodology Strategy for Comparative Research”, in American
Political Science Review , vol. 99, no. 3, August 2005, pp. 435 – 452, p. 436.

25
As such, the first part advances a novelty on a theoretical level by establishing a typology
of coha bitation. Using the process -tracing method, the historical explanation method, the within –
case analysis, the content analysis as well as the tool of explanatory and descriptive typologies by
means of expanding the property space, I attempt to provide an ex planation of a deviant case of
cohabitation – the Romanian example, within a general theory which ultimately leads to the
emergence of a middle -range theory37. Finally, it should be noted that the first section deals with a
single -case study over time, name ly that of the Romanian cohabitation in 2007 -2008 and in 2012,
as a means of focused comparison.
Then, in examining the role of the Constitutional Court of Romania , the empirical analysis
takes into account a complete and thorough overview of its activit y since its establi shment. Only
by so doing can the direct causality between the periods of cohabitation and the increased levels of
activity of this institution be highlighted . On this note, I am interested in the study of those
attributions of the Court with regard to mediating the inter -dependent relations between the public
authorities with political affiliation by using the method of indirect agreement in a variable -related
research design. Taking into account the data and the statistics published by t he Constitutional
Court of Romania , as well as its decisions regarding each of its scrutinized attributions, the main
qualitative method used is that of content analysis , namely that of the thematic content analysis
method which “aims at an assessment of ( the frequency of the) presence of specified themes, issues,
actors, states of affairs, words or ideas in texts [..] to be analyzed”38. An example in point is the
usage of content analysis in order to identify the political affiliations of the heads of the p ublic
authorities involved in the juridical conflicts of a constitutional nature, the Constitutional
prerogatives which were violated in the claims, the ideological fragmentation of the public
authorities, the frequency of each of these elements during per iods of cohabitation, as well as during
periods of unified government in post -communist Romania. Furthermore, in view of revealing the
relation between the dysfunctional cohabitation and the increased activity of the Constitutional
Court of Romania , the me thod of relational content analysis will be used, correlating the variables
from the empirical analysis with the newly advanced typology. Finally, quantitative research

37 A theory bound by situation, time and location, see Paul Pennings, Hans Keman, Jan Kleinnijenhuis, Doing Research
in Political Science. An Introduction to Comparative Methods and Statistics , second edition, Sage Publications,
London, 2006, p. 32.
38 Idem , p. 58.

26
methods will also be employed, by the method of systematic observations, indexing metho d and
statistical analysis of the activity of the Court.
Therefore, by combining qualitative research methods and instruments with those specific
to quantitative analysis, I am also making use of the triangulation method as a research strategy,
which is b asically a “combination of methodologies in the study of the same phenomenon”,
considered helpful “to uncover the deviant or off -quadrant dimension”39 of an issue and to
subsequently lead to the emergence of a new theory and model.

TOWARDS A TYPOLOGY
As the central element of novelty of my thesis, I set out to build and develop a typology of
cohabitation. Starting from a thorough analysis of the existent theoretical framework, I identified
a literature gap in the explanations which correlate cohabitation w ith a certain form of semi –
presidentialism. The Romanian case of cohabitation appears as an exception and is rapidly accepted
as a deviation from their theoretical model, without any further explanation. Using the process –
tracing method as applied to the R omanian case study, I am tracing the causal sequence of events
and political actors – structural and behavioral factors – which consequently contributed to the
portraying of a deviant case of cohabitation.
Firstly, I build a descriptive typology, drawing from the preexisting theory on cohabitation.
Since no actual such typology has ever been established on this particular form of divided
government, I mainly differentiate between a functional and a dysfunctional cohabitation. This
form of typology answers the question of “what constitutes this type?” and describes those
attributes/characteristics that generally define the types analyzed40. In this context, I attempt to
provide an explanation for the deviant case of Romania, by means of a cross -time case stu dy, which
takes into account the period of cohabitation under the Tăriceanu Cabinet (2007 -2008), as well as
the most recent occurrence of the phenomenon, that under the first Ponta Cabinet (2012), prior to
the legislative elections of the same year. Then, on the basis of the descriptive typology, I will

39 Todd Jick, “Mixing Qualitative and Quantitative Methods: Triangulation in Action” in Administrative Science
Quarterly , vol. 24, no. 4, December 1979, pp. 602 -611, p. 609.
40 Colin Elman, “Explanatory Typologies in Qua litative Studies of International Politics” in International
Organization , no. 59, Spring 2005, pp. 293 -326, p. 297.

27
assign cases specific to the functional and to the dysfunctional cohabitation, thus advancing a
classificatory typology as well. However, the expansion method was most useful in this case, as it
allowed me t o “spot important combinations of attributes that were overlooked […] and to draw
attention to cases that need further attention”41.

ESTABLISHING CONCEPTS
One of the main challenges of establishing and developing any kind of typologies is the
issue of re ification42. By addressing a basic characteristic of cohabitation, namely that of its
functionality, my main interest is to distinguish between the underlying forms of this phenomenon.
The essential definition of cohabitation, its association with semi -presidential regimes and even its
classification across European democracies remain unaltered. Rather, I am interested in the
attributes of cohabitation, in the structural factors leading to its emergence and in the impact of its
subsequent consequences. In ad dition, by distinguishing between functional and dysfunctional
types, the underlying theoretical framework is preserved, but only with regard to the functional
form of cohabitation.
In establishing the concepts of my typology, as previously mentioned, I took into account
one of the most relevant attributes of cohabitation – its functionality. Highly controversial and
mostly studied in the American case of the presidential form of divided government, the
consequences of cohabitation are usually associated with a strain on the legislative productivity, as
well as with a difficulty at the level of the interaction between public authorities of different and
most of the times opposing political views.
Finally, drawing from John Gerring’s set of criteria for th e formation of concepts in social
science43, I decided to name the two categories of my typology “functional cohabitation” and
“dysfunctional cohabitation”.

41 Idem , p. 308.
42 Idem , p. 314 – “where the labels given to a typology’s categories displace the underlying theory from which the
typolo gy was derived”.
43 Those criteria are: familiarity, resonance, parsimony, coherence, differentiation, depth, theoretical utility and field
utility. For further references, see Todd Gerring, “What Makes a Concept Good? A Critical Framework for
Understanding Concept Formation in Social Sciences” in Polity , vol. 31, no. 3, Spring 1999, pp. 357 -393, p. 357.

28

PROCESS TRACING AND HISTORICAL EXPLANATION
Also specific to the qualitative research design, the process tracing method “is an
indispensable tool for theory testing and theory development, not only because it generates
numerous observations within a case, but because the observations must be linked in particular
ways to constitute an explanation of th e case”44. Essentially, it points to the causal processes that
lead to the emergence of the dysfunctional type of cohabitation, while at the same time providing
an analytic explanation of its consequences.
In the Romanian case -study analysis across time, the interacting causal variables are
employed in order to establish a coherent typology. Hence, the process -tracing technique
underlines the evolution of variables such as: the governing coalition, the form of semi –
presidentialism, the opposition, the form of interactions between public authorities, etc.
Of a further particular importance to establishing a typology on cohabitation are the path –
dependent processes – “cases that consist of a sequence of events, some of which foreclose certain
paths in the de velopment and steer the outcome in other directions”45. This form of causal process
analysis is especially relevant to the within -case analysis.
Finally, such a method offers the means for explaining the deviant cases with large -N
studies46, by revealing t hose variables that have been omitted from the previous theory and by
doing so, contributing to the emergence of a typology or of a new theoretical framework.

EMPIRICAL ANALYSIS
A second element of novelty in my thesis is that of the empirical analysis of the role of the
Constitutional Court of Romania in solving the disputes between public authorities. On this note, I
set out to examine those specific attributions of the Court with regard to the interaction between
the dualist executive and the legislat ive.

44 Alexander George and Andrew Bennett , Case Studies and Theory Development in Social Sciences , MIT Press,
Cambridge, p. 207.
45 Idem , p. 212.
46 Charles Ragi n, The Comparative Method , University of California Press, Berkeley and Los Angeles, 1987, p. 84.

29
Nevertheless, before that, I believe that an institutional analysis is fundamental to a better
understanding of the manner in which those respective prerogatives are fulfilled. Thus, a brief
overview of the theories on the establishment of Constitut ional Courts, as well as an evaluation of
the role of Constitutional Courts throughout Europe and the former Soviet countries are preliminary
to my endeavor. Basically, such a contextualization would emphasize the similarities and the
differences between t he Constitutional Court of Romania and other such institutions in its
immediate geographical vicinity . In addition, the procedural aspects regarding the notification,
deliberation, ruling and the impact of the Court’s decisions are particularly relevant to
understanding the very nature of its role.
On this note, I seek to identify a model of constitutional courts’ design by examining several
fundamental features of the courts throughout Europe. In order to do so, I proceed with an empirical
analysis of the European constitutional courts in Albania, Armenia, Austria, Bulgaria, Belarus,
Belgium, Bosnia and Herzegovina, the Czech Republic, Croatia, the Swiss Confederation, France,
Georgia, Germany, Italy, Latvia, Lithuania, Macedonia, Moldova, Montenegro, Polan d, Portugal,
Romania, the Russian Federation, Serbia, Slovakia, Slovenia, Spain, Ukraine and Hungary. In each
of these 29 cases, my endeavor takes into account the following variables as elements of design: a)
their establishment; b) the judges (number, te rm of office, appointment and terminat ion of office);
c) the courts’ powers . For the time being, I focused on primary sources regarding the legal basis of
their functioning in each of the cases under scrutiny and, by means of systematic observations,
index ing and thematic content analysis, I have attempted to identify several similarities and
differences in terms of institutional design. On the whole, the purpose of this cross -case study
analysis is to reveal and propose a model of constitutional design for the concentrated, European
model of constitutional courts advanced by Hans Kelsen47, with a particular emphasis on their role
in the interaction between public authorities.
Furthermore, another interesting variable is that of the judges. The fact that th ey are
nominated for a six year term by each of the public authorities susceptible of political affiliation –
the President, the Government and the Parliament is quite likely to be reflected in their decisions
regarding the conflicts between those institut ions. If the political affiliations of the head of the
public authority that nominated them have changed, are they still likely to favor that respective

47 For further references, see Hans Kelsen, Doctrina pură a dreptului , translated by Ioana Constantin, Humanitas,
București, 2000.

30
institution? Or are they more inclined towards favoring whichever authority involved in the dispute
that shares their political sympathies? Or maybe they are completely neutral and un -biased in their
decisions? Either way, the professional background and the career patterns of each of the Court’s
judges are interesting to follow and analyze, while at the sa me time highly relevant for a truly
objective evaluation of the Constitutional Court’s role in solving the disputes between public
authorities.
Most importantly, the empirical analysis of this thesis is centered on the content analysis of
the decisions is sued by this institution with regard to mediating the interaction between public
authorities. Due to the correlation with the theories on cohabitation, it is important to note that little
consideration will be given to the judicial branch, as it does not h ave any political affiliation.
Therefore, as previously mentioned, the focuses of my analysis are the conflicts between the
Parliament, the Government and the President, represented by cases on which the Court has been
notified and asked to interfere.
First of all , I am interested in analyzing the Court’s decisions regarding the abstract
constitutionality control of laws, as established by article 146 letter a) of the Constitution48. Once
again, the High Court of Cassation and Justice, as well as the Advoca te of the People are excluded
from my endeavor, as they do not have any political affiliations. Furthermore, the cases examined
are only those in which the cons titutionality controls are requested by the the President of Romania ,
before promulgating those respective laws. As stipulated by the Fundamental Law, it is one of the
presidential prerogatives to promulgate the laws issued by the Parliament, but before doing so, the
President may also return the law to Parliament for reconsideration or submit it to the Constitutional
Court for a constitutionality control49. On this note , the constitutional text does not specify any of
the reasons for which such a revision would be justified, therefore enabling the President to do so
whenever he appreciates necessary. Because this is one of those particular situations when the
legislative and the executive branches must interact in order to fulfill this particular function, the
Constitutional Court appears as a mediator when the heads of those authorities dispute the va lidity
of a particular normative act. From a mere observation of the statistics published on the website of

48 According to article 146 a) the Constitutional Court of Romania has the power “to adjudicate on the constitutionality
of laws, before the promulgation thereof upon not ification by the President of Romania, one of the Presidents of the
two Chambers, the Government, the High Court of Cassation and Justice, the Advocate of the People, a number of at
least 50 deputies or of at least 25 senators, as well as ex officio , on in itiatives to revise the Constitution”.
49 See paragraphs (2) and (3) of article 77 in the Constitution of Romania.

31
the Co nstitutional Court, it appears that the President has issued only 2 such notifications from
1992 until 2003, whereas starting 2004 and up unti l 2012, Traian Băsescu – the President in office
for two consecutive terms – has requested the abstract constitutionality control 22 times, 8 of which
were registered during the first cohabitation period in 2007 -2008. Furthermore, the Government
has also b een most actively engaged in notifying the Court on the grounds of constitutionality
control during the first period of cohabitation, registering in just 2 years a total number of 5 cases,
just as many as were brought to the Constitutional Court from 1992 until 2003. So as to test my
hypothesis, in this section of empirical analysis I will be examining the number of such decisions,
the solutions given by the Court, the type and the importance of the laws disputed, as well as the
viewpoints expressed by the Prime Minister, on behalf of the Government and by the Presidents of
the two Parliament Chambers .
The second part of the empirical evaluation of the Court’s jurisprudence will comprise the
decisions regarding the legal disputes of a constitutional nature between public authorities –
excluding, nonetheless, those that involve the judicial branch, as it has no political affiliation. Apart
from analyzing the institutional conflicts, the constitutional provisions supposedly breached, the
political affiliations of the heads of the public authorities involved as well as the parties which tend
to notify the Court most often, I am also interested in the actual decisions of the Court, in the impact
of those decisions as well as in the procedural aspects previously m entioned regarding those
decisions. So as to test my main hypothesis, in this secti on I contend that the cases of legal disputes
of a constitutional nature between public authorities tend to become more frequent during periods
of cohabitation; and for that purpose, I will statistically analyze the frequency of such conflicts
from 200550, when they first occurred, until 2012.
The final part of my empirical analysis takes into account the Court’s attributions regarding
the procedure of suspension from office of the President51, that of ascertaining the conditions which
justify the interim in the exercise of the presidential office52 and those on the observance and
confirmation of results of the national referendum for the President’s dismissal from office53 . I
have decided to correlate those three powers , as they serve the same essential purpose.

50 It is important to keep in mind that the Constitutional Court of Romania was granted such a prerogative at the revision
of the Constitution , in 2003.
51 Article 146, letter (h) of the Constitution of Romania.
52 Article 146, letter (g) of the Constitution of Romania.
53 Article 146, letter (i ) of the Constitution of Romania.

32
Furthermore, these prerogatives have been exercised during the same timeframe – in 1994, 2007
and in 2012, with the exception of the interim which did not occur in 1994, as the referendum for
the suspension of President Ion Iliescu did not take place after all. Furthermore, it is the Parliament
that initiates the suspension procedure, so this is another case of interaction between public
authorities in which the Constitut ional Court of Romania is required to interfere. Consequently, I
am interested in the political composition of the Parliament, as well as in that of the Government
in office at that time, although it is obvious that both of the initiatives on the suspensio n and interim
of the Presidential office occurred during periods of cohabitation, involving the same President –
Traian B ăsescu. Finally, so as to relate to my main hypothesis, I argue that the suspension procedure
is one of the most dramatic consequences of dysfunctional cohabitation.

SOURCES
Given the nature of the topic of my research, I will focus on primary sources, such as the
Constitution, various laws establishing and regulating the activity of the public authorities
analyzed, as well as on the decisions the Court has taken in the cases selected. The decisions on
the abstract constitutionality control, on the legal conflicts of a constitutional nature or those
regarding the political accountability of the President of Romania are all published in the Official
Gazette of Romania as well as on the Court’s website , and according to the procedural standards
of this inst itution, contain explanations on each case. The Constitutional Law and the laws
establishing and regulating the functioning and the activity of the Presidency, of the G overnment
or of the Parliament remain essential to my analysis. Finally, statistical dat a are also provided by
the website of the Constitutional Court of Romania , as well as several reports and analyses written
by the judges and the assistant magistrates of the Court.
On the whole, the empirical analysis on the role of the Constitutional Co urt of Romania in
solving the disputes between public authorities should be correlated with the typology on
cohabitation, particularly with the effects of this phenomenon. The emphasis lies on assessing the
actual role of this institution in mediating the interaction between public authorities, under the
assumption that periods of cohabitation determine significant changes in its activity.

33

STRUCTURE
In terms of structure, the present thesis is divided into two main parts: a) the first one,
corresponding t o the first chapter, presents the element of theoretical novelty and is titled “Towards
a Typology of Cohabitation”. Drawing from the theoretical framework on divided government, it
then focuses on the theories on cohabitation and those connecting the vari eties of semi –
presidentialism to cohabitation. After identifying the literature gap in Robert Elgie and Ia in
McM enamin’ s theory, the typology of cohabitation is presented and subsequently analyzed with
respect to the post -communist Romanian case. Finally, the last parts outline the consequ ence
dysfunctional cohabitation, as they are presented in the Romanian example, as well as the manner
in which the Romania’s limited experiences of divided government appear to be inclined towards
cohabitation, in its atyp ical and negative form.
Preceding the second part, which focuses on the empirical analysis of the Constitutional
Court of Romania’s jurisprudence, there are two intermediary chapters of institutional analysis.
The second chapter advances a comparative an alysis of the institutional design of Constitutional
Court in the former communist and Soviet countries, by taking into account elements of
institutional design such as the constitutional judges, the powers of the Court as well as the extent
to which a mod el of institutional design can be established. It is a general chapter aimed at
providing a contextualization of the institution scrutinized throughout this thesis. Then, the third
chapter is exclusively focused on the Constitutional Court of Romania, as a preliminary step in the
subsequent empirical analysis in the second part. The special chapter on the Constitutional Court
of Romania was necessary, from my perspective, so as to correlate the dimensions of institutional
analysis with those of the jurispru dence’s empirical analysis. As such, after a brief account of the
Court’s genesis, historical overview and features, the empirical analysis of the constitutional judges
is one of the central elements in this section. A database was built, taking into accou nt the age
distribution among constitutional judges, their educational profile – both in terms of level of
education, as well as of the institutions the judges attended, their professional background (if any),
their teaching experience (if any) and their p olitical affiliations (if any). Subsequently, when the
Court registered cases on which separate opinions were formulated, this database enabled me to
connect the authors of those separate opinions with the public authorities that had appointed them
into of fice or with the political parties they had been members of, so as to reveal whether or not
the judges’ decisions were politically biased or not. Moreover, this chapter also enlisted the general

34
procedures prior to the hearing session, during the hearing s ession, during the session of
deliberation and following the session of pronouncement.
The fourth chapter of this thesis is actually the first one of empirical analysis of the
Constitutional Court of Romania’s jurisprudence. It is important to note that all three chapters of
empirical analysis follow the same algorithm: i) methodology; b) sources; c) structure; d)
theoretical framework; e) procedures; f) overview of the decisions/ rulings/ advisory opinions; and
g) comparative analysis. The reason I pres erved this algorithm was that each chapter was drawn
from different sources, had a different methodological framework, imposed different conceptual
delimitations in the theoretical framework, as new terms were employed, engaged different specific
procedure s – complementary to the general procedures outlined in the chapter on the Constitutional
Court of Romania, focused on different decisions/rulings/advisory opinions that had to be briefly
presented and ultimately engaged somewhat different dimensions in th e comparative analysis. For
instance, the chapter on the abstract constitutionality control of laws before their promulgation, at
the request of the President of Romania, took into account the following: a) the status of the Court’s
decisions; b) the notif ication frequency; c) the duration of the Court’s deliberations; d) the
constitutional provisions allegedly breached by the challenged laws; and e) the public authorities
involved and their viewpoints on the President’s request of abstract constitutionalit y control of the
respective law.
In the case of the fifth chapter, on the legal disputes of a constitutional nature between
public authorities, the elements of comparative analysis were: a) the frequency of the cases with
which the Court had been notifie d until the 2012 legislative elections; b) the political affiliations
of the heads of the public authorities involved in the legal disputes of a constitutional nature; c) the
constitutional prerogatives which were violated in the conflicts; d) the clarific ations made by the
Constitutional Court in its decisions and e) the impact of rulings of the Constitutional Court of
Romania.
Finally, the sixth chapter examines the role of the Constitutional Court in establishing the
political accountability of the Pres ident of Romania. By contrast with the previous two, this chapter
is built on case studies. After briefly accounting for the precedent of 1994, when an attempt to
suspend Ion Iliescu from office of President of Romania occurred, the two case studies of 200 7 and
2012, respectively, when Traian Băsescu was suspended from office of President of Romania are

35
analyzed according to the following algorithm (in addition to the one previously mentioned): a) the
suspension proposal; b) the parliamentary debates (including the President’s response: written in
2007 and personal in 2012); c) the Court’s advisory opinion on the proposal to suspend the
President of Romania from office; d) the Court’s ruling by which it ascertains the circumstances
which justify the interim in the exercise of the office o f President of Romani a and e) the national
referendum for the dismissal of Traian Băsescu from office of President of Romania, as it had been
observed and confirmed by the Constitutional Court, while also taking into account any potential
contestations and the Court’s rulings on these matters.

PRELIMINARY CONCLUSION S
To conclude, I attempt to demonstrate throughout my research that the Constitutional Court
of Romania is more and more frequently called to rule upon cases of disputes between public
authorities, especially when those holding the head offices are of opposing political affiliations and
when the constitutional prov isions allow interpretation.

36

− CHAPTER I −
TOWARDS A TYPOLOGY OF COHABITATION
5455

“What the Constitution set apart, the parties can only partially put together”56

1.1. INTRODUCTION
The first chapter of this thesis is dedicated to a theoretical exploration of one of the key
concepts of my hypothesis, namely that of divided government. Employed to characterize several
central governments in the history of post -World War II United States of America, this concept has
managed to expand to such an extent that it is now widely used in scrutin izing semi -presidential
regimes throughout Europe, proving that it is not specific to presidential regimes. Therefore, after
establishing the required conceptual delimitations of this concept, I will proceed with a brief
overview of the causes – structural and behavioral – believed to be relevant to the emergence of
the phenomenon in the United States, where it has been most analyzed. However, I will not insist
upon this issue, simply because the main focus of my thesis is to basically analyze the effects
divided government produces and the manner in which these consequences are dealt with by the
Constitutional Court of Romania , and not its causes.
Furthermore, another important differentiation at the terminological level regards the term
“cohabitation” whi ch is slightly different than that of “divided government”, in spite of their
common association. In addition, an exposition of the Polish model is also relevant in view of an
asymmetric comparison with the Romanian period of cohabitation: although the Pol ish
Constitutional Court had been enabled to solve the juridical disputes of a constitutional nature
between public authorities since 1996 and even though the Polish political arena had experienced

54 A preliminary version of this chapter was published in Studia Polit ica. Romanian Political Science Review, vol.
XIII, no. 3, 2013 – see Cristina Manolache, “Post -Communist Romania: A Peculiar Case of Divided Government”,
pp. 427 -440.
55 Presented during the International Symposium “Ideologies, Values and Political Behavior s in Central and Eastern
Europe” organized by the West University, Timișoara (December 6th – 7th 2012).
56 François Mitterrand in 1985.

37
cohabitation governments sooner and more often than Romani a did, no such cases were registered
to date.
An analysis of the Romanian case represents the central section of this first chapter,
standing as the empirical assessment of the degree and the respective manner in which divided
government has occurred in our country. I find that the theoretical models and explanations on the
emergence of divided government in semi -presidential regimes are not applicable to the Romanian
case.
Finally, the last part of this chapter is dedicated to a theoretical explanation of the
consequences divided government/cohabitational government is most likely to produce. I did not
insist on the consequences of divided government in the Romanian case, as they will be thoroughly
analyzed in the following chapters.

1.2. DIVIDED GOVER NMENT – A THEORETICAL FRAMEWORK
The literature on divided government has emerged in the late 1980s and is mainly
represented by the seminal works of scholars such as Morris Fiorina, Gary Cox, Kernell Samuel
and Gary Jacobson in which they analyze the con cept of “divided government” as it is illustrated
by the American example, some focusing on revealing the conditions which lead to the emergence
of this phenomenon, while others are dedicated to measuring its effects and establishing whether
they are posit ive or negative. However, a decade later and after numerous research on the causes
and consequences of divided government, this concept has expanded its significance and is now
considered to be applicable not only to presidential regimes, but to parliament ary and semi –
presidential regimes as well, with all of their respective varieties. In this section of this thesis , I
explore the conceptual delimitations that have been suggested throughout time by the scholars on
this topic.
The studies on divided gover nment first began with James Sundquist’s article in Political
Science Quarterly57, in 1988, and the election of George Bush as President against a Democratic –
dominated Congress, when it became apparent that the phenomenon of divided government was a

57 James L. Sundquist, “Needed: A Political Theory for the New Era of Coalition Government in the United States” in
Political Science Quarterly , vol. 103, no. 4, 1988, pp. 613 -635.

38
recurre nt theme in American politics and even “a legitimate form of party control”58. Contextually
put, divided government clearly referred to the situation in which the executive represented by the
American President was not supported by a majority in the Congres s, or as Michael Laver and
Kenneth Shepsle wrote in 1991 “the meaning of divided government is straightforward in the
U.S.”59 especially given its consistent experience with it.
According to Bingham Powell, a possible definition would basically imply that “different
political parties control different branches of government”60. Similarly, Peterson and Greene
asserted that divided government meant “power -sharing by two separately elected branches of
government, each often controlled by a different party”61. The emphasis in these two definition
rests on the divided party control, which often a times results in difficulties in implementing any
governing program and in ambiguity over the accountability for failed policies.
Another political scientist, James Pfiff ner contains that divided government refers to that
situation in which “one political party does not control both houses of Congress along with the
Presidency”62. He further completed his definition by emphasizing its specificity to the US -system
and by add ing that it represents “the control of the presidency by one party, accompanied by the
control of one or both houses of Congress by another party”63.
On the other hand, unified government is simply and unequivocally defined by Paul Quirk
to be “the situati on in which the President and majorities of the House and Senate belong to the
same party”64, which he considered to be an ideal formula in order to avoid the gridlock effects of
divided government. Four years later, Matthew Shugart and John Carey articulat ed the differences
between unified government, divided government and no -majority government, stating that
“divided government refers only to those situations in which a legislative majority is held by a

58 Mark Jones, Electoral Laws and the Survival of Presidential Democracies , University of Notre Dame Press, Notre
Dame, 1995, p. 84.
59 Michael Laver and Kenneth Shepsle, “Divided Government: Ameri ca is not ‘Exceptional’ “, in Governance, 4/3,
1991, pp. 250 –69, p. 252.
60 Powell Bingham, “Divided Government as a Pattern of Governance”, in Governance, 4/3, 1991, pp. 231 –5, p. 231.
61 Paul Peterson, Jay Greene, “Why Executive – Legislative Conflict in t he United States is Dwindling” in British
Journal of Political Science , no. 24, 1993, pp. 33 -55, p. 33.
62 James Pfiffner, “The President and the Post -Reform Congress” in Roger Davidson (ed.), The Post -Reform Congress ,
St. Martin’s Press, New York, 1994, p. 167.
63 Idem , p. 226.
64 Paul Quirk, “Domestic Policy: Divided Government and Cooperative Presidential Leadership” in Colin Campbell
and Bert Rockman (eds.), The Bush Presidency: First Appraisals , Chatham House, New Jersey, 1991, pp. 69 -91, p.
70.

39
party or pre -election coalition which is different f rom the President” 65, whereas “no -majority
points to a situation in which no party holds a majority in one or both houses of the Congress”66.
This precise differentiation introduced the idea that this concept was not exclusive to the
presidential system of the United States of America and, quite contrarily, that it was applicable to
parliamentary and semi -presidential regimes as well.
On this note, as Laver and Shepsle underlined, these differences “must derive from divided
parties, not divided government”67, thus emphasizing that the arithmetical context from which
divided government emerges is actually predetermined by the political context. Hence, it is not
only the constitutional architecture that provides for a certain type of separation of powers that
eventually favors the emergence of divided government, but it is mainly the fact that those
institutions established by the Constitution are not controlled by the same political party or, by
extension, by the same governing coalition which forms the majori ty in the legislature.
In perhaps one of the most useful materials I found on this topic, Robert Elgie explains in
his Divided Government in a Comparative Perspective that “despite these constitutional
differences, the arithmetical definition of divided government does have its logical equivalent in
non presidential regimes. In the case of parliamentary regimes, it corresponds to minority
governments. In the case of semi -presidential regimes, it corresponds to periods of ‘cohabitation’
or split -executive government, as well”68. Better simply put:

65 Matthe w Soberg Shugart and John Carey, “The Electoral Cycle and Institutional Sources of Divided Presidential
Government” in American Political Science Review, 89/2, 1995, pp. 327 –43, p. 327.
66 Robert Elgie, Divided Government in Comparative Perspective , Oxford University Press, New York, 2001.
67 Michael Laver and Kenneth Shepsle, “Divided Government: America is not ‘Exceptional’ “, in Governance, 4/3,
1991, pp. 250 –69, p. 266.
68 Robert Elgie, Divided Government in Comparative Perspective , Oxford University Press , New York, 2001, p. 5.

40
TYPE OF REGIME FORM OF DIVIDED GOVERNMENT
PRESIDENTIAL 1. A party/parties opposed to the President
has/have a majority in at least one working
house.
2. There is no majority in at least one
working house.
PARLIAMENTARY The Government (single party or coalition)
fails to command a majority in at least one
working house.
SEMI -PRESIDENTIAL 1. The Government (single party or
coalition) fails to command a majority in at
least one working house.
2. A party/pa rties opposed to the President
has/have a majority in the key house,
leading to the appointment of a Prime –
Minister who is also opposed to the
President.

1.1 Forms of Divided Government in the Arithmetical Sense
Source: Divided Government in Comparative Pers pective , Oxford University Press, New York, 2001, p. 12

Last but not least, a quite interesting understanding of divided government pertains to the
behavioral school of thought and it implies, regardless of any political or arithmetical pre –
conditions that “there is conflict between the executive and legislative branches of government,
whatever the support for the executive in the legislature”69. Indeed, conflictual situations are quite
likely to occur during periods of divided government in any given p olitical regime, yet they are
generally believed to be the consequences of this particular situation in which the executive does
not enjoy majority support in the legislative.

69 Idem , p. 7.

41
Still, conflictual relations may be established even within the same governing coalition or
even within the same political formation. An example in point is precisely that of the President of
Romania Ion Iliescu who, during his first mandate, experienced conflictual relations with his
designated Prime -Minister – Petre Roman (1990 -1991), even though they were members of the
same political party – the National Salvation Front and enjoyed the support of a comfortable
majority in both houses of the Parliament. Another example is that of the President of Romania
Emil Constantinescu and his Prime -Minister from within the same governing coalition, Radu
Vasile (1998 -1999), both part of the same Democratic Convention and supported by a safe coalition
in Parliament. The behavioral definition of divided government is definitely applicable to thei r
cases.
Although the literature on the behavioral form of divided government is rather limited to
this point, I believe that the Romanian political context demands an analysis that would not limit
itself to the arithmetical exploration of the situations of divided government – the best examples
are those of the cohabitation period of President Traian Băsescu and Prime -Minister Călin Popescu
Tăriceanu (2007 -2008) and the more recent case during the second mandate of President Traian
Băsescu and Prime -Minis ter Victor Ponta (May 2012 – present) – but one which would also take
into account the cases in which coalitions formed in order to win the presidential elections or the
legislative elections result in confrontational relations between the heads of the pub lic authorities.
In fact, in a study published in 1997, Guys Peters argued that the European concept of
coalition governments is, in fact, “a form of divided government […] because it entails a need for
representatives of the executive to bargain, cajo le and propose side payments for legislators”70. If
the leaders of the political parties which form the coalition no longer agree on the direction of their
governance, they may break the coalition and, even if they remain in their offices as heads of the
public authorities, they produce gridlocks or even institutional blockages. One of the first such
examples is that of President Traian Băsescu and Prime -Minister Călin Popescu Tăriceanu, who
broke the “Justice and Truth” coalition in 2007, after a period of tense relations and subsequently
remained in office, but with many cases of juridical conflicts of a constitutional nature brought to
the Constitutional Court of Romania , with a total of six censorship motions which were eventually

70 Guys Peters, “The Separation of Powers in Parliamentary Systems” in Kurt von Mettenheim (ed.), Presidential
Institutions and Democratic Politics: Comparing Regional and National Contexts , The Johns Hopkins University
Press, Baltimore, 1997, pp. 69 -70.

42
dismissed in Parliament and even with an impeachment attempt (2007) that failed. However, the
degree of conflict during both the period of unified government under the Truth and Justice
coalition (2004 -2007) and the period of divided government under cohabitation/split -executive
(2007 -2008) was very high, denoting little if any difference between the behavioral and the
arithmetical definition of divided government in our country.
Finally, the same theoretical explanations hold true with regard to umbrella political
formations, su ch as the National Salvation Front, which eventually fragmented itself into several
political parties and the Romanian Democratic Convention, which was already fragmented from
within between the diverse political parties that formed it. In these situations , the potential for
conflict and divided government within the same political coalition has proven to be, in the
Romanian case, quite significant, and may only be attributed to the behavioral understanding of
divided government.

1.3. AN OVERVIEW OF ITS CAUSES
Even though I do not plan to particularly insist upon this part of the theory, as it is not
integrated in my subsequent analysis, a brief overview of the main causes which are likely to
determine divided government is still in order for a better und erstanding of the phenomenon.
The literature investigating the causes leading to the emergence of divided government is
vast, as starting with Morris Fiorina’s analysis71, many other authors became preoccupied with
testing his hypothesis, particularly on the case of the United States of America, which may render
many of these studies inapplicable to semi -presidential regimes and multi -party systems. In
essence, however, the scholars on this topic believe that there are two sets of contributing factors:
structural and behavioral/purposeful.
Among the structural causes of divided government, the one most prominently debated is
that of the electoral system itself. It is claimed that “electoral laws are the principal source of
divided government”72. On this not e, there are numerous aspects to be taken into account – for

71 For further references, see Fiorina Morris, Divided Government, Simon and Schuster Publishing, Massachusetts,
1996.
72 Mark Jones, Electoral Laws and the Survival of Presidential Democracies , University of Notre Dame Pr ess, Notre
Dame, 1995, p. 155.

43
instance, if the presidential and parliamentary elections are synchronized, the possibility that the
importance placed on the former’s candidates would be passed on to their political supporting
parties/coalitions/alliances in the legislative elections is very high, particularly in the Central and
Eastern European countries. In fact, this is considered to be one of the reasons for which the 2003
constitutional revision stipulated a longer presiden tial term so as to ensure that the two elections
are no longer held simultaneously. In addition, if the electoral system provides for higher
thresholds, it is also quite likely that coalitions/alliances will be formed so as to gain a favorable
majority in the legislative elections. Often a times, as it has been proven in the Romanian political
context, these improvised formations tend to associate parties with little if anything in common
from an ideological point of view and they lack a coherent perspectiv e on what they are supposed
to be doing after they win the elections.
On this note, different electoral cycles are also considered to be a structural main cause of
divided government in the opinion of John Brady73. In Poland, for example, these elections h ave
never been held concurrently, fact which is considered to be the main cause for the recurrence of
divided government74. Similarly, it has been generally argued that when the parliamentary
elections, for instance, occur mid -term of the presidential elect ions, the voters might sanction the
party/coalition in power and vote for the opposing political faction. However, such reasoning is
more likely to be applied to the American two -party system, as it suggests an obvious inter -change
of power between two mai n parties; it is more difficult to apply in a coherent manner in a multi –
party system, where alliances and coalitions are easily reshuffled.
Incumbency is another possible cause for the turnout of divided government, as candidates
who are already in offi ce are more likely to be re -elected than the new candidates. This argument
has been mainly employed by Jacobson in his “The Electoral Origins of Divided Government”75
and is mostly applicable to the case of the United States, where the Democrats have typica lly
controlled the House of Representatives in Congress. In the Romanian case, at any rate,
incumbency has proven to be quite a relevant factor in what regards the presidential elections since,

73 David W Brady, “The Causes and Consequences of Divided Government: Toward a New Theory of American
Politics?” in The American Political Science Review , vol. 87, no. 1, 1993, pp. 183 -194, p. 189.
74 Robert Elgie, Divided Gove rnment in Comparative Perspective , Oxford University Press, New York, 2001, p. 132.
75 Gary Jacobson, The Electoral Origins of Divided Government: Competition in US House Elections , 1946 –1988 ,
Westview Press, Boulder, Colorado, 1990.

44
with the exception of President Emil Constantinescu, the other two have each been re -elected and
served two terms.
Among the purposeful explanations, mainly theorized by Fiorina and Jacobson, it is argued
that the voters choose to have divided government and vote correspondingly, conscious of the
effect of their v ote (split -ticket voting theory). In addition, Gary Jacobson also stated that voters
view the roles of the executive and the legislative as essentially different and therefore are more
inclined to intentionally support different parties for the two branche s, as they believe would be
more suitable for the specific attributions of each of these institutions76. James Sundquist, on the
other hand, dismisses the purposeful theories, arguing that divided government is more rather a
“historical and procedural accid ent”77 than the result of a deliberate choice.
At last, the balancing theory, also thoroughly analyzed by Morris Fiorina after applying it
to the American case78, maintains that the electorate will cast their vote for one political party in
the executive a nd for another, ideologically opposite to it, for the legislative elections in order to
balance the policies and the programmes and bring them closer to their ideal. However, the main
flaw to such a theory is the general assumption that the electorate is s omewhat politically educated
and aware of the role each of these institutions have and also, aware of the ideological differences
they probe.

1.4. COHABITATION – A THEORETICAL FRAMEWORK
A particular form of divided government is that of cohabitation, a term coined and generated
by the French experience of the President Francois Mitterrand in 1986 -1988, of the socialist party,
who cohabitated with prime minister Jacques Chirac, of the right wing. In fact, it has been argued
that cohabitation is “a country -specific manifestation of a more general political phenomenon”79.
In his “Divided Government in Comparative Perspective” Robert Elgie maintains that
cohabitation “occurs in the context of a system in which both the President and the prime minister
are sig nificant political actors and is brought about when the President is faced with an opposition

76 Idem , p. 173.
77 James L. Sundquist, “Needed: A Political Theory for the New Era of Coalition Government in the United States” in
Political Science Quarterly , vol. 103, no. 4, 1988, pp. 613 -635, p. 627.
78 Morris Fiorina, “An Era of Divided Government” in Political Science Quart erly, vol. 107, no. 3, 1992, pp. 387 -410.
79 Robert Elgie, Divided Government in Comparative Perspective , Oxford University Press, New York, 2001, p. 106.

45
majority in the National Assembly and thus is obliged to appoint a prime minister who has the
support of that majority”80. On this note, a prime -minister is usuall y nominated by the President
and then requires the vote of confidence of a parliamentary majority in many cases of semi –
presidential constitutional frameworks. And, in some cases, there is the possibility that the
parliamentary majority may not be the same as the party/coalition supporting the President and
consequently, may not agree with the President’s nominated prime -minister and only grant the vote
of confidence to their preferred candidate. Therefore, the French case – albeit exemplary, is not
singula r.
As such, it is a phenomenon specific to semi -presidential regimes, as it implies that “there
is a President from one party and a prime minister from an opposing party [and also that] the
President’s party is not represented in the cabinet”81. Needless to say, such a representation would
inevitably lead to intra -branch conflict between the dualist executive structure, as numerous
accounts throughout European semi -presidential regimes have proven82.

1.5. THEORIES ON COHABITATION AND SEMI-PRESIDENTIALISM
When analyzing the concept of cohabitation, it appears that a proper definition of semi –
presidentialism is required, particularly in light of a coherent and thorough analysis of the
consequences this phenomenon is likely to produce. On this note, the three c riteria advanced by
Maurice Duverger’s definition are crucial: a) the President of the republic is elected by universal
suffrage; b) the President’s powers are quite considerable; c) the prime minister and his/her cabinet
of ministers possess executive and governmental powers and require the vote of confidence of the
legislature in order to remain in office83. Nevertheless, from the perspective of political science, it
has been argued that the second criteria is the most difficult to measure and the most sub jective
and therefore, prone to inaccuracies and interpretations.

80 Ibidem .
81 Robert Elgie, Iain Mcmenamin, “Explaining the Onset of Cohabitation Under Semi -Presidenti alism” in Political
Studies , vol. 58, no. 3, 2011, pp. 616 -635, p. 616.
82 For further reference, see Oleh Protsyk, “Intra -Executive Competition between President and Prime -Minister:
Patterns of Institutional Conflict and Cooperation under Semi -Presidentia lism” in Political Studies , vol. 54, no. 2,
2006, pp. 219 -224.
83 Maurice Duverger, “A New Political System Model: Semi -Presidential Government”, European Journal of Political
Research, 8, 1980, pp. 165 –187, p. 172.

46
From this perspective, Matthew Shugart and John Carey84 further developed on Duverger’s
definition and distinguished between president -parliamentary systems – in which a) the President
is elected by a popular vote for a fixed term in office; b) the President appoints and dismisses the
prime minister and other cabinet ministers; c) the prime minister and the cabinet ministers are
subjected to both parliamentary and presidential vote of confid ence; d) the President typically has
some legislative powers and the power to dissolve the parliament – and premier -presidential
systems in which a) the President is elected by a popular vote for a fixed term in office; b) the
President has considerable co nstitutional authority; c) the prime minister and his/her cabinet are
subjected to the vote of confidence of the parliament.
Unlike Duverger’s definition, the latter explanation of semi -presidentialism is easier to
apply after a study of the constitutiona l framework that establishes the structure and the respective
functions of each public authority. In the Romanian case, Shugart and Carey’s classification applies
in the form of premier -presidentialism and not in that of president -parliamentarism, as the P resident
cannot dismiss the government, for much as he would be tempted to, because the prime minister
and his cabinet are not subjected to the President’s vote of confidence. In the second chapter of my
thesis I will also embark on an analysis of the cons titutional and political powers of the heads of
the public authorities, which is highly relevant for my overall analysis.
An interesting study that correlates cohabitation with semi -presidentialism across European
electoral democracies is that of Robert E lgie and Iain McMenamin. Starting from the assumption
that “cohabitation is more likely to occur in countries with a premier -presidential form of semi –
presidentialism”85, the authors identify several factors which may lead to the emergence of
cohabitation, such as: 1) the absence of a majority for the President’s party in the legislature; 2)
after an electoral cycle, but usually not when the elections for President and legislature are
synchronized; and 3) in the aftermath of a legislative election.

84 For further references, see Matthew Sob erg Shugart and John Carey, “The Electoral Cycle and Institutional Sources
of Divided Presidential Government” in American Political Science Review, 89/2, 1995, pp. 327 –43.
85 Robert Elgie, Iain Mcmenamin, “Explaining the Onset of Cohabitation Under Semi -Presidentialism” in Political
Studies , vol. 58, no. 3, 2011, pp. 616 -635, p. 616.

47

1.6. THE LITERATURE GAP
Taking into account their causal model, the Romanian case appears as an exception. First
of all, because cohabitation first occurred under President Traian Băsescu and Prime -Minister Călin
Popescu Tăriceanu in 2007, so it was not a result of the elections which had taken place in 2004.
Moreover, the presidential and parliamentary elections were synchronized, contrary to their
hypothesis and findings. And finally, it was not the result of a legislative election that generated
cohabitation du ring the last year of Tăriceanu’s mandate, but more rather the political context and
the conflictual relations that had been constantly deteriorating between the two heads of public
authorities. The most recent example of cohabitation also emerges as a dev iation from their model,
because once again, it is not the result of elections, even if this time they were not synchronized.
Quite interestingly, the second period of cohabitation under post -communist Romania is taking
place under the same President, alth ough it involves a prime minister from a different party.
On the other hand, it is also interesting to note that both the National Liberal Party and the
Social Democratic Party were first part of the governing coalition with the President’s party – the
Democrat -Liberal Party – and initially had several ministerial portfolios prior to the cohabitation
period. Then, in 2007 -2008, Prime Minister Călin Popescu Tăriceanu reshuffled his Cabinet so that
it no longer contained any members of the Democrat -Liberal P arty, and in 2012, Prime Minister
Victor Ponta formed his Cabinet so as to exclude members of the Democrat -Liberals. As a result,
in a premier -presidential regime, President Traian Băsescu is forced to nominate a Prime Minister
from a different party, who nevertheless enjoys the support of a parliamentary majority and who
appoints a Cabinet that further excludes the Democrat -Liberal party from the Government.
Another circumstance expressly identified by Elgie and McMenamin is that in which
“cohabitation [ …] occurs if the incumbent government was voted down by the legislature and a
new government was formed that excluded the President’s party”86. Yet, the authors also maintain
that this type of cohabitation is unlikely to be produced, as in semi -presidential systems it is still
the President who designates the chosen Prime -Minister – constitutional prerogative which
consequently enables him/her to nominate a prime -minister to his liking, preferably from within
his own support party – and, should this possibil ity fail due to the legislature’s refusal to invest the
designated Government with their vote of confidence since it does not represent the parliamentary

86 Idem , p. 624.

48
majority, the President still has the option of dissolving the Parliament (according to article 89,
paragraph (1) of the Fundamental Law)87 instead of accepting a prime -minister of another political
affiliation.
On this basis, the authors conclude that “the President would still be able to avoid
cohabitation”88. Once again, the Romanian case stands as an ex ception, because the President of
Romania Traian Băsescu did not manage to avoid cohabitation, even though it occurred outside the
electoral cycle. Since he does not have the constitutional attributes to dismiss the prime -minister,
he was forced to cohabit ate with Prime -Minister Călin Popescu Tăriceanu in 2007 -2008 after the
Cabinet reshuffle that excluded ministers from the Democrat -Liberal Party, so he could not really
do anything about it. However, in 2009, when the first Cabinet of Emil Boc was voted do wn by the
Parliament following a censorship motion, he did try to avoid cohabitation. Against the wishes of
a majoritarian opposition, he refused to designate Klaus Johannis as Prime -Minister and instead
nominated Lucian Croitoru (an independent) – who fai led to receive the Parliament’s vote of
confidence – and then Liviu Negoiță (member of the Democratic Liberal Party) who was not going
to attain the vote of confidence, either. However, President Traian Băsescu did not dissolve the
Parliament but, after the 2009 presidential elections, managed to impose his preferred Prime –
Minister, Emil Boc, for a second time. His strategy changed in May 2012, after the Mihai Răzvan
Ungureanu Government was voted down through a censorship motion by the two Chambers, when
Traian Băsescu did have the option of de signating a new Prime -Minister from within his support
party again. But he did not and, instead, appointed the leader of the opposition, Victor Ponta.
Moreover, the issue of legitimacy could easily be invoked in such circumstances. Specific
to any semi -presidential regime, the President is elected directly by the people, thereby his
legitimacy originates from the people, as is that of the Parliament, in which both the Chamber of
Deputies and the Senate are elected by the people. On the other hand, the Gove rnment does not
have the same source of legitimacy. According to article 103, paragraph (1) of the Fundamental
Law “the President of Romania shall designate a candidate to the office of prime minister, as a
result of his consultations with the party which has obtained absolute majority in the Parliament or

87 “After consultations with presidents of both Chambers and the leaders of the Parliamentary groups, the President of
Romania may dissolve the Parliament, if no vote of confidence has been obtained to form a Government within 60
days after the first request was made, and only after rejection of at least two requests for investiture”.
88 Robert Elgie, Iain Mcmenamin, “Explaining the Onset of Cohabitation Under S emi-Presidentialism” in Political
Studies , vol. 58, no. 3, 2011, pp. 616 -635, p. 624.

49
– unless such majority exists – with the parties represented in Parliament”. Even if it could be
argued that, by receiving the vote of confidence from the Parliament, as the most representative
authority, the Government is therefore legitimated by the people, albeit indirectly, it would still
remain that it does not have the same legitimacy as the other two organs.
Thus, the potential for conflictual relations within the dual structure of the executive is high.
And it has been exploited to its fullest in the Romanian case, by any means provided by the
Constitution and the mass -media. Of course, the conflictual outcome of cohabitation is not specific
to the Romanian political framework and various forms o f divided government have generally lead
to conflictual relations between the heads of public authorities which often a times produced
gridlock in the United States, Finland, Poland, etc. Nevertheless, unlike the Polish model of
cohabitation, the frequency with which the Romanian heads of public authorities have found it
necessary to involve the authority of the Constitutional Court of Romania under the pretence of
institutional blockages is alarming.

1.7. TOWARDS A TYPOLOGY OF COHABITATION
As the central element of novelty in my thesis, I am advancing a typology of cohabitation
so as to account for the deviant case of Romania which currently stands as a gap in the literature
on this topic.
There are 3 forms of typologies in social sciences: descriptive, classificatory and
explanatory. In my endeavor, I have opted for a descriptive typology, as it basically answers the
question of “what constitutes this type?” and describes those attributes/characteristics that
generally define the types analyzed89. Then, t he classificatory typology ascribes cases to each of
the types illustrated and presented by the descriptive typology, whereas the explanatory form
associates a hypothesis, a prediction to each type under scrutiny. For the purpose of this thesis , the
explan atory typology will not be employed. Moreover, a classificatory typology would require an
in-depth case -study analysis so as to test its applicability at a general level. For those reasons, I will
limit to a descriptive typology and only assert a few illus trative cases to each form of cohabitation

89 Colin Elman, “Explanatory Typologies in Qualitative Studies of International Politics” in International
Organization , no. 59, Spring 2005, pp. 293 -326, p. 297.

50
– France as an exemplary case of functional cohabitation and Romania as representative for the
dysfunctional type.
Basically, this typology is constructed around one main criterion: the effects of
cohabitation. F rom this perspective, in the case of the American presidential form of divided
government, many authors have already examined the effects of this phenomenon and concluded
their analyses with contrasting results – some argue that divided government should b e associated
with gridlock and stalemate, and that it is most likely to have a negative impact on the political
arena and on the interaction between public authorities, others state that, in fact, divided
government does not affect the working of the polit ical system in any manner. Conversely, the
consequences of cohabitation have not been so extensively researched, as the French case remains
exemplary to most scholars. However, the French case is quite functional given its circumstances,
by comparison to t he recent Romanian events.
As such, in establishing my typology I considered the functionality of each form of
cohabitation in the two case -studies. The Romanian first period of cohabitation in 2007 -2008 was
merely labeled as the exception to a general th eoretical framework that associated premier –
presidentialism with an increased likelihood of cohabitation, due to the fact that it did not emerge
in the immediate aftermath of legislative/Presidential elections, while its dramatic effects were not
even take n into account. Finally, so as to avoid reification – a common problem with establishing
concepts in social sciences – I selected to use the terms “functional cohabitation” and
“dysfunctional cohabitation”.
Furthermore, my theoretical endeavor was support ed by the indexing method, through
which I noted the absence/presence of several fundamental characteristics of cohabitation,
regarding its emergence and its effects. Drawing heavily on the little literature that exists on this
topic, I considered the foll owing elements: the unsynchronized legislative/presidential elections;
incumbency; parliamentary and governing coalitions; an active/aggressive opposition in
Parliament; the moment of emergence; legislative gridlocks; the suspension procedures from the
office of President. From this perspective, many of the effects can be empirically examined by
means of an institutional analysis of the Constitutional Court of Romania , whereas the structural
factors leading to the emergence of this phenomenon, as well as it s actual moment of apparition
are crucial to my distinction. Moreover, the role of the opposition in fuelling this dysfunctional

51
cohabitation is instrumental, an example in point being the role played by the Social Democrats in
initiating the suspension pr ocedure s against President Traian Băsescu both in 2007 and in 2012.
In addition, the process -tracing method which is usually employed for explaining the
deviant cases within large -N studies90, helped revealing those variables that have been omitted
from the previ ous theory and in building and developing a new theory, based on a typology. Prior
to the legislative elections in 2012, the process -tracing of path -dependent processes reveals the
factors and the elements which lead to the emergence of a dysfunctional coh abitation, if combined.
In fact, these interacting causal variables all contribute to shaping such a peculiar case of divided
government and it is most interesting to note that all of these causal variables are actually confirmed
during the second period o f cohabitation (2012, under the I Ponta Cabinet). Also presented in the
typology chart below, these causal variables are: the dismantlement of a wining
parliamentary/governing coalition, an active and aggressive opposition, an increasing number of
juridica l conflicts of a constitutional nature, a priori constitutionality controls of laws, at the request
of the President, prior to promulgation and, finally, the onset of the suspension procedures from
the presidential office.
On a final note, the expansion m ethod was equally relevant in constructing this typology,
essentially built and developed on the literature gap identified in Robert Elgie, Iain Mcmenamin,
“Explaining the Onset of Cohabitation Under Semi -Presidentialism” in Political Studies , vol. 58,
no. 3, 2011, pp. 616 -635. This method enabled me to “spot important combinations of attributes
that were overlooked […] and to draw attention to cases that need further attention”91 by expanding
the indicators and the theory already available. To best illustra te my proposed typology of
cohabitation, I have also drawn out the following chart:

90 Alexan der George and Andrew Bennett, Case Studies and Theory Development in Social Sciences , MIT Press,
Cambridge, 2005, p. 215.
91 Colin ELMAN, “Explanatory Typologies in Qualitative Studies of International Politics” in International
Organization , no. 59, Sprin g 2005, pp. 293 -326, p. 308.

52
FORM OF
COHABITATION STRUCTURAL FACTORS MOMENT OF
EMERGENCE EFFECTS

FUNCTIONAL
COHABITATION

 unsynchronized legislative or
presidential elections
 incumbency
in the immediate
aftermath of validation of
election results
 tensed relations between the
heads of public authorities
 rare legislative gridlocks

DYSFUNCTIONAL
COHABITATION

 the dismantlement of
governing coalitions a few
years after winning the
elections
 an active and aggressive
opposition in Parliament
a few years after the
coalition has successfully
won the elections
 increased number of juridical
conflicts of a constitutional
nature between public
authorities
 intensified a priori
constitutionality controls at the
request of the President
 onset of suspension from office
of the President procedures

1.2. A Typology of Cohabitation
Source: Own Compilation of Data

53
1.8. THE ROMANIAN CASE
Cristian Preda claimed that “in Romania, post -communism does not articulate itself on
cleavages and not even on lasting political tensions”92. It is a statement that portrays our
political system as instable and lacking in consistency and coherence. Political alliances are
made without any ideological consensus, coaliti ons are useful only in so far as they turn out to
be successful in the elections, a minority party is willing to become a member of any governing
coalition as long as it’s majoritarian in the Parliament and represented in the Government, while
the oppositi on seems unable to mobilize its members effectively so as to succeed in its
endeavors. Overall, political conflict becomes insignificant and easily forgotten. Against such
a background, it may come as no surprise that many of the theories previously presen ted on
divided government and on the successful models of cohabitation do not apply correspondingly.
Instead, Romania is recognized as the exception which, supposedly, confirms the theory on
cohabitation.
The Romanian democratic experience does not allow for such an extensive evaluation
of the presidential and legislative elections as would, for instance, be provided by the French
case. Instead, its experience is comparable with that of Poland and the contrast is highly visible:
two countries with a simila r communist background entail completely different versions of
government, in which unified government is the norm in Romania and cohabitation as a form
of divided government is specific to the Polish political arena. On this, while in Romania
cohabitation is a quite recent phenomenon experienced only once up to the 2008 legislative
elections (2007 – 2008) Poland had a recurrent history of divided government (1991 – 1993;
1993 – 1995; 1997 – 2000; 2000 – 1; 2007 – 2009)93.
One of the first and most obvious contributing factors to this perpetual unified
governance we have experienced may be that the presidential and parliamentary elections have
been held simultaneously in Romania until 2004, which meant that the first ballot of the
presidential elections was held the same day as the elections for both the Chamber of Deputies
and the Senate. Quoting Robert Elgie and Iain McMenamin’s study on the onset of cohabitation
under semi -presidentialism, in which they found that “cohabitation will not occur when

92 Cristian Preda, Sorina Soare, Regimul, partidele și sistemul politic din România , Nemira, București, 2008, p.
159.
93 A comparative chart of examples of cohabitation across Europe in 1989 – 2008 can be found in Robert Elgie,
Iain Mcmenamin, “Explaining the Onset of Cohabitation Under Se mi-Presidentialism” in Political Studies , vol.
58, no. 3, 2011, pp. 616 -635, p. 622.

54 presiden tial and legislative elections are synchronized”94 this appears as a possible explanation.
Although, it should be noted that following the 2003 revision of the Romanian Fundamental
Law when the President’s mandate was increased from 4 years to 5 years preci sely so as to
avoid this synchronization, the 2008/2009 legislative and presidential elections produced the
same outcome as those that preceded them: unified government.
Then again, electoral synchronization is not the only plausible explanation. Another
factor resides in the results of the elections themselves, as with the exception of the first post –
communist electoral cycle when the National Salvation Front managed to attain a clear and
comfortable majority in the 1990 and 1992 legislative elections, al l of the other majorities were
based on coalitions: the Red Quadrilateral (FDSN/PDSR; PUNR; GRP ; PSM) in 1992 -1996,
the Democratic Convention (PNȚCD; NLP ; NLP -CD; PAR; PER; FER) with the Social
Democrat Union ( SDPR and DP) and DAHR in 1996 – 2000; the Soci al Democratic Party95
and PUR (until 2003) during Adrian Năstase’s Cabinet in 2000 -2004; the “Truth and Justice”
Alliance ( NLP and DP) with DAHR and PUR/ CP from 2004 to 2007 and finally the Democratic
Liberal Party and the Social Democratic Party from 2008 until December 2009, followed by
another governing coalition formed by the Democratic Liberal Party, DAHR and UNPR. I have
deliberately excluded the second Cabinet of Călin Popescu Tăriceanu in 2007 -2008, supported
by the National Liberal Party and DAHR , as it is a period of cohabitation.
Until the Cabinet reshuffle of 2007, the president’s party was represented in the
Government and at the same time was always part of the majority coalition in the Parliament,
as the following chart96 illustrates. Conseque ntly and given Quirk’s definition which I have
previously cited, it is clear that from 1990 until 2007 Romania has only experienced unified
government, even if not in the pure form of one -party -unified -government, as would be specific
to the American two -party system. In fact, of all the six elections organized in the post –
communist aftermath, only the 1990 and 1992 elections were won by a party and not by a
coalition or an electoral alliance97.
Still, aside from the immediate objective of winning the elect ions, “the ideological
orientation of a governing coalition in parliament is the most immediate factor that shapes the

94 Ibidem .
95 Prior to 2001 known as PDSR and SDPR.
96 Source until the 2008 elections: Cristian Preda, Sorina Soare, Regimul, partidele și sistemul politic din România ,
Nemira, București, 2008, p. 123.
97 Idem , p. 85.

55 intra-executive coexistence”98. For that reason, in spite of enjoying the blessings of unified
government, the coalitions/ the alliances w ere most of the times formed by completely different
political parties, with their own agenda and view on the governing program and process. As
such, most of the intra -executive relations were tense, especially those between the President
Ion Iliescu and P rime-Minister Petre Roman (1990 – 1991) and those between President Emil
Constantinescu and Prime -Minister Radu Vasile, even though on both accounts the heads of
the executive shared the same political affiliation. Yet, a fine distinction is in order: in t he
former, Iliescu and Roman were actually leaders of two opposing factions within the National
Salvation Front, and in the latter case, the Romanian Democratic Convention was merely an
umbrella political device that comprised different political parties, with the sole objective of
winning the elections even if they were, to a certain extent, different in ideology and program.
Another example in point is that of the incumbent President Traian Băsescu and former
Prime -Minister Călin Popescu Tăriceanu. Winners of the 2004 simultaneously held legislative
and presidential elections and both members of the “Truth and Justice” Allian ce that was
comprised of the National Liberal Party and the Democrat Party, they almost immediately
disagreed on various issues and confronted each other on numerous occasions at the
Constitutional Court of Romania and especially in the mass -media. In fact , the perpetual
conflict engaged them both to such an extent that in 2007, Prime -minister Călin Popescu
Tăriceanu decided to reshuffle his Cabinet so that it no longer contained any members of the
Democrat Party/ Democrat -Liberal Party, entered into a differ ent majority coalition that would
support him in the Parliament, also by excluding the Democrat Party from it and consequently
inaugurate the first period of divided government in the Romanian post -communist experience,
from 2007 -2008, when new legislative elections were held.
Moreover, during the second mandate of President Traian Băsescu, the first Cabinet of
Emil Boc was formed of a coalition that brought together the Democrat -Liberal Party and the
Social Democratic Party. However, this coalition was only short -lived, as in 2009, following
the office removal of Dan Nica – Minister of Administration and Interior and member of the
Social Democratic Party – all of the Social Democratic ministers (Ilie Sârbu, Ecaterina
Andronescu, Cristian Diaconescu, Victor Ponta, Ionuț Bazac, N icolae Nemirschi, Marian Sârbu
and Constantin Niță) resigned in solidarity with their colleague and as a form of protest to the

98 Oleh Protsyk, “Intra -Executive Competition Between President and Prime -Minister: Patterns of Institutional
Conflict and Cooperation Under Semi -Presidentialism” in Political Studies , vol. 54, no. 2, 2006, pp. 219-224, p.
223.

56 Democratic Liberals’ measure. The Cabinet reshuffle did not receive the vote of confidence of
the Parliament. Then, in spite of the majority’s plea for Klaus Johannis, mayor of Sibiu, as the
new Prime -Minister, the acting President Traian Băsescu still designated a Prime -Minister of
his own choice: Lucian Croitoru, a supposedly independent candidate who, nevertheless,
included Demo cratic Liberal ministers in his Cabinet proposal and Liviu Negoiță, a member of
the Democratic Liberal Party, who was also the mayor of District 3 in Bucharest and who
designated even more Democratic Liberal ministers in his Cabinet formula. Eventually, af ter
the 2009 presidential elections and with a newly -forged parliamentary majority, this time,
President Traian Băsescu designated the same Prime -Minister that was removed from office
due to the first censorship motion admitted in the post -communist histor y and who, given these
circumstances, finally received the legislature’s vote of confidence.
Therefore, in light of these experiences, I would agree with Oleh Protsyk’s statement
that “the fact that the President and the prime -minister belong to the same majority coalition
does not serve as a sufficient condition for avoiding intra -executive confrontation”99. In fact, if
the coalition or the alliance is comprised of ideologically opposing parties, frictions are certain
to arise, even within the same Governm ent, as the 2008 -2009 Boc Cabinet example has proven.
On the same note, if a political party is highly fragmented, intra -executive confrontation is still
likely to occur, even if the acting President and Prime -Ministers are members of the same party,
as the Ion Iliescu – Petre Roman (1990 – 1991) instance illustrated.
Finally, the form of unified government experienced in the Romanian case remains
subjected to debate. It seems to still be prone to conflictual relations which are typically specific
to forms of divided government. Perhaps that is because it is nothing more than an artificial
construct, devised for the sole immediate purpose of winning the elections and lacking a
coherent plan about the aftermath of the electoral cycle. Or maybe simply because the
Romanian political landscape is not quite articulated from an ideological point of view to such
an extent, that it lacks consistency even in its political tensions, as Cristian Preda suggested.
Either way, although unified from an arithmetical point o f view, a strong case could be made
here for the existence of divided government from a behavioural perspective.

99 Idem , p. 224.

57
1.9. DIVIDED GOVERNMENT IN ROMANIA – TOWARDS COHABITATION ?
If for the most part of its post -communist history Romania experienced a form of unified
government based on political coalitions and alliances which resulted in conflictual relations
between the executive and the legislative and even among the dualist executive itself, it should
come as no surprise that the periods of divided governme nt are marked by strong confrontations
which have culminated with two failed impeachment attempts.
The main form of divided government in Romania is that of cohabitation, and it has
been experienced only twice, for a brief period of time: in 2007 – 2008 u nder Prime -Minister
Călin Popescu Tăriceanu of the National Liberal Party and again, starting May 2012, under
Prime Minister Victor Ponta of the Social Democratic Party. It is important to note that, on both
occasions, the President in office has been Trai an Băsescu of the Democratic Liberal Party, and
that none of these cohabitations are the result of any type of elections. In this section, I will
focus on presenting and assessing the cases of cohabitation in the post -communist experience.
On the first oc casion, the 2004 presidential and legislative elections were won by the
“Truth and Justice” Alliance formed by the National Liberal Party and the Democrat Party.
Throughout the whole of the electoral campaign of DP’s candidate for the presidential election s
it was stated that his chosen prime -minister would be the head of the National Liberals at that
time, Theodor Stolojan, who had previously served as Prime -Minister during Ion Iliescu’s first
presidential mandate (1991 – 1992). After winning the elections and after a dramatic
announcement of his withdrawal from the designated office as head of Government, Theodor
Stolojan was replaced with Călin Popescu Tăriceanu, who proposed a Cabinet formed by
Ministers from his supporting coalition – members of DP, NLP , CP and DAHR . Because he
enjoyed the support of a majority in the legislature as well, he soon received the vote of
confidence of the Parliament and officially became Prime -Minister.
Numerous quarrels almost immediately ensued and a confrontational relat ion was
quickly established at the intra -executive level between two members of the same governing
coalition. Apart from the aggressive negative declarations in which both of them engaged in the
mass -media, the political consequences were more serious than those posed during the periods
of unified government. A first example in point on which I will further develop in my thesis is
that the emergence of the juridical conflicts of a constitutional nature can be easily and rightfully
associated with the 2004 – 2008 intra -executive confrontational relation.

58 Unlike the Polish Constitutional Court, which had been given the attribution to solve
the juridical conflicts of a constitutional nature between its public authorities since 1996 but
had never made used of i t, in spite of its extensive experience with divided government, the
Constitutional Court of Romania was endowed with this prerogative only after the 2003
Constitutional revision. The coexistence of President Ion Iliescu and Prime -Minister Adrian
Năstase w as generally quite peaceful, so no such cases were registered at the Court during the
final year of their mandate. However, during the Băsescu – Tăriceanu governance, six such
cases100 were registered to the Court, four of which only during the short time -span of
cohabitation (2007 -2008).
Prior to the official period of cohabitation, the Constitutional Court was first notified by
the Presidents of the Chamber of Deputies and the Senate claiming that the Romanian acting
President Traian Băsescu had displayed a behaviour that was against the Constitution when he
made some slanderous accusations in an interview in “Adevărul” about certain political parties
such as the Social Democratic Party and the Romanian Humanist Party which he portrayed as
“limited in thei r understanding of the future of Romania” and respectively “an immoral
solution” and also calling about the need for anticipated parliamentary elections101. In another
instance, the Court was notified in 2006 by the President of the Superior Council of Magis tracy,
as representative of the judicial authority, regarding other slanderous accusations, this time
perpetrated by both the President Traian Băsescu and the Prime -Minister Călin Popescu
Tăriceanu, as well as the Ministers of Justice and Health, accusing them of “interfering with
the independence of the judicial branch, instigating to the non -compliance with certain judicial
decisions and of seriously affecting the trust that the Romanian people has in the judicial
system”102. Both of this cases, although a dmitted to the Court’s consideration from a procedural
perspective, were dismissed because the Constitutional Court of Romania concluded in its
Decision No. 435/26.05.2006, published in the Official Gazette No. 576/04.07.2006 that “mere
statements of any publicly elected persons that represent various public authorities do not
constitute juridical conflicts of a constitutional nature as long as they do not affect the statute
and the attributions of those respective authorities” and that the “opinions, jud gments of value
or the statements of a possessor of a mandate regarding other public authorities do not constitute
by themselves juridical conflicts between public authorities”. However, the Court also

100 Decision No. 53/28.01.2005, Decision No. 435/26.05.2006, Decision No. 356/5.04.2007, Decision No.
97/7.02.2008, Decision No. 270/10.03.2008, Decision No. 1222/12.11.2008.
101 Decision No. 53/28.01.2005, published in the Official Gazette of Romania of Romania No. 144/17.02.2005.
102 Decision No. 435/26.05.2006, published in the Official Gazette of Romania of Romania No. 576 of 04.07.2006,
p. 4.

59 underlined in the same decision that “by the statement s that they make, those officials in public
authority have the obligation to avoid a potential conflict between powers” and furthermore
concluded on a different tone that even though “the freedom of expression is essential to a
constitutional democracy, it should be carried out in a respectful manner, even when it expresses
a critical attitude”.
The other four conflicts that were registered to the Court during Tăriceanu’s period of
cohabitation with President Traian Băsescu occurred in one year, beginning with the moment
in which Tăriceanu’s Cabinet was reshuffled so that it no longer contained an y ministers of the
President’s party – the Democratic Party. So, in April 2007, the Prime -Minister notified the
Court on the President’s refusal to designate a new Minister of Foreign Affairs, namely Adrian
Cioroianu. For the first time, the Constitutional Court of Romania admitted the existence of a
juridical conflict of a constitutional nature in this case, generated by the President’s refusal to
approve the Prime -Minister’s nominated choice and underlined that in this matter of intra –
executive conflict r egarding the attributions of the two executive leaders, the President does not
have a veto right over the nominations made by the Prime -Minister.
In 2008, the number of conflicts brought to the Court tripled and it is also interesting to
note that it was not always one of the authorities involved in those cases who notified the Court,
but other public authorities which were not de facto involved. An example was formulated by
the President and it denounced the existence of such a conflict between the Romani an
Government and the Superior Council of State Defense , alleging that the Government has
removed the Superior Council of State Defense from the decisional process regarding the
unitary organization and coordination of the activities which concern the stat e’s defense and
the national security and has furthermore refused to rectify this mistake when it was asked to
do so, which qualifies the situation as a juridical conflict of a constitutional nature between the
Government and the Superior Council of State Defense103.
Moreover, perhaps the most complex decision the Constitutional Court had to take was
the Decision No. 270/10.03.2008 which was published in the Official Gazette No.
290/15.04.2008. Although the Court was notified on three distinct occasions, it considered that
the conflicts were quite similar – they are concerned with the same issue, indeed – and that two
of them would be quite easily compiled altogether. Thus, the first notification was formulated
by the President of the Chamber of Deputies and by the President of the Senate and it signaled

103 Decision No. 97/7.02.2008, published in the Official Gazette of Romania of Rom ania No. 169/05.03.2008, p.
3.

60 the existence of a conflict between the President of Romania , the Ministry of Justice on the one
hand, and the Romanian Parliament on the other, whereas the second conflict on which the
Court ruled in this dec ision was notified by the President of the Superior Council of Magistracy
regarding the conflict between the Public Ministry and the Romanian Parliament – the Chamber
of Deputies. Basically, the main issue in this case concerned the fact that the President Traian
Băsescu sent the requests to proceed with the prosecution of 4 Cabinet members at that time
which were also Parliament members, namely Adrian Năstase, Codruț Sereș, Miron Mitrea and
Paul Păcuraru to the Public Ministry. In short, the Parliament con sidered that the President, the
Ministry of Justice and the Public Ministry had taken on themselves certain prerogatives which
pertained to the another public authority – the Parliament or the Chamber to which those
Parliament members belonged104 – and there fore violating the principle of separation of powers.
On the second conflict presented in this decision I will not develop much, because it is identical
in content to the previous one, the only difference being that the authority notifying the
Constitution al Court was the President of the Senate.
Also important to note is that, in this period of cohabitation – in fact, immediately after
it was officially installed with the reshuffled Cabinet of Prime -Minister Călin Popescu
Tăriceanu receiving the vote of c onfidence from the Parliament, the impeachment of President
Traian Băsescu began, following an initiative of the Social Democrats. On this occasion, in
spite of the negative vote of the Constitutional Court of Romania , the Parliament votes in favor
of the impeachment with 322 votes “for” and 108 votes against, and 10 abstentions. However,
following a public referendum which gathered only 44.45% voters, the impeachment procedure
was over and Traian Băsescu was reinstated as President. It is quite interesting to observe how,
on the second occasion of cohabitation, the pattern established by the first period of divided
government was consolidated. In this view, it was the Social Democratic Party that started the
impeachment procedures on both occasions, soon af ter the cohabitation period began.

1.10. CONSEQUENCES
Many of the scholars on divided government have argued that its consequences are
negative and that it is very likely to produce gridlock and stalemate. Obviously, the ideological
differences and the c ontrasting programmes and agendas are probably going to determine
conflictual relations which will make it difficult for any of them to advance their own vision. It

104 According to article 109, paragraph (2) of the Constitution of Romania.

61 will be difficult for a Democratic Congress to advance their own policy against a Republica n
President who may veto their legislation, for instance.
On the same note, in semi -presidential regimes, where the President does not have the
right to veto any legislation, he/she is entitled, nevertheless, to either return the law to the
Parliament for reconsideration and/or submit it to the Constitutional Court to confirm its
validity105. Hence, even in semi -presidential regimes, the possibility of gridlock and stalemate
still exists as a consequence of divided government. In the Romanian case, for insta nce, the
Constitutional Court has been called by the President to rule on the a priori constitutionality of
laws only twice from 1991 until 2004. Then, during President Traian Băsescu’s two consecutive
mandates, this measure has been employed 22 times until now, 8 times of which only during
the cohabitation period of 2007 -2008106.
Moreover, Cox and Kernell argue that “partisan differences magnify the institutional
separation of powers”107. The same political adherence usually determines a certain degree of
institutional coordination during times of unified government, as the President is prone to
designate a Prime -Minister from within his political faction who, in turn, will form a Cabinet
with ministers from his party/coalition/alliance which will, finally, receive the vote of
confidence from the supporting parliamentary political formation wh ich is, most of the times,
the same. The constitutional design for separation of powers is fundamental not only for
ensuring that each public authority has its own set of attributions and functions only in so far
as those attributions specifically provide for, but it also calls for the need for cooperation.
However, during times of divided government, when the political affiliations of the heads of
the public authorities differs, they are less likely to cooperate and therefore, it could be argued
that the i nstitutional separation of powers becomes exaggerated.
On a contrasting note, a thorough study of the American legislative process comes to a
different conclusion. In his “Divided we Govern”108 Mayhew contends that divided government
does not, in fact, have any relevant consequence on the legislative process or policy and that it
does not produce gridlock, contrary to popular belief. His study is, however, restrained to the

105 Art 77 of the Fundamental Law, paragraphs (2) and (3).
106 Source: the Activity Report of the Constitutional Court of Romania, available at
http:// www.ccr.ro/statistics/pdf/ro/activ07_12.pdf.
107 Gary Cox and Samuel Kernell (eds.), The Politics of Divided Government, Westview Press, Boulder Colorado,
1991, p. 152.
108 David Mayhew, Divided we Govern: Party Control, Lawmaking, and Investigations , 1946 –1990, Yale
University Press, New Haven, 1991, p. 180.

62 American context, specific to presidential regimes in which the President holds the v eto power
and is difficult to apply to other cases.
Finally, Cox and Kernell109 argue that decision -makers can choose their strategy during
periods of divided government so as to meet their goals. They identify three such options: a) to
go it alone – meaning that each political player decides to pursue his/her own agenda, “without
cooperating with others, and makes extensive usage of the legal and constitutional arguments”
they find in support of their game; b) to go public – leaders make “public commitments to
particular positions in order to raise the cost of reneging and thereby strengthen one’s
bargaining position” while at the same time rendering public opinion as arbiter between them;
and finally c) to bargain with the beltway – implying “delay and brink manship, careful attention
to revision points, and the selling out of junior partners”110. Each of these strategies has, of
course, its disadvant ages: the first one is destined to provoke institutional conflicts and even
blockages, the second one is also qui te likely to generate conflictual relations and alter the
public perception about the authority of the executive and/or legislative and finally, the third
strategy has the potential of determining the authority being bargained with the beltway to take
matters into its own hands and even attempt to exceed its constitutional prerogatives.
In this view, the Romanian case provides examples for all of these strategies during just
two years of cohabitation: both the President Traian Băsescu and the Prime -Minister Călin
Popescu Tăriceanu decided to “go it alone” which ultimately culminated in a series of cases of
juridical conflicts of a constitutional nature brought before the Constitutional Court of Romania ;
both of them became engaged in slanderous accusations against each other (and even against
other political parties and authorities) across the mass -media – which also resulted in cases
brought to the Constitutional Court an d, last but not least, they both bargained with the beltway,
exemplary being the President’s refusal to designate a new Minister of Foreign Affairs in 2007,
which also resulted in a juridical conflict of a constitutional nature, acknowledged as such by
the Court in its Decision No. 356/5.04.2007 which was published in the Official Gazette No.
322/14.05.2007.

109 Gary Cox and Samuel Kernell (eds.), op. cit. , p. 243.
110 Ibidem .

63
1.11. PRELIMINARY CONCLUSIONS
In the end, it appears that the Romanian experience of divided government should be
interpreted from both the arithmeti cal and the behavioral perspective. Otherwise, it would be
difficult to understand how, even during periods of unified government, conflictual relations
still arise and sometimes, in a highly aggressive manner – as was the case of former President
Emil Con stantinescu and Prime -Minister Radu Vasile.
In addition, I would also have to agree with Guys Peters’s statement that the concept of
coalition governments is the European version of divided government, given our post –
communist history. Coalitions/ politic al alliances are lacking in coherence of their agenda and
their leaders consequently engage in confrontational relations shortly after winning the election.
In fact, it could also be argued that coalitions which put together political parties of significan tly
different ideologies are likely to eventually produce cohabitation, as was the case of the “Truth
and Justice” Alliance.
On the other hand, I believe that an active and aggressive opposition is also instrumental
in elevating the conflictual relations, regardless of the form of government (unified or divided).
In our case, the Social Democratic Party immediately took advantage of the political context
created by Tăriceanu’s Cabinet reshuffle in 2007 and orchestrated the first impeachment
proceeding. Also, throughout the entire period they have been in the opposition, the Social
Democrats have been aggressively tr ying to bring down the Government by initiating numerous
censorship motions and they have been “going to the public” in attempt to win the public
opinion on their side.
Finally, it is important to emphasize that the Parliamentary majority is not relevant i n
the cases of juridical conflicts of a constitutional nature. That is because there is not a
prerequisite number of deputies/senators who need to adhere to a notification of the
Constitutional Court. Instead, it is only the President of the Chamber of Dep uties and the
President of the Senate respectively who are entitled to do so, as representatives of the
Chambers they lead. In addition, these two heads of public authorities do not necessarily need
to take similar stances in such cases. As I have previous ly mentioned, such conflicts tend to
appear more frequently between opposing political affiliations in power, whereas different
branches of power with similar political affiliations tend to ally in political conflicts – an
example in point being the recent stance taken by the Chamber of Deputies, which is headed
by the Democratic Liberal Roberta Anastase and which never sides with the Senate in these

64 constitutional conflicts, but with the President or with the Government with which it shares the
same politi cal affiliation. As such, it is rather unpractical to rule with erga omnes decisions
those conflicts which are mostly political and therefore, essentially contextual – inter partes.

65
− CHAPTER II −
CONSTITUTIONAL COURTS IN THE FORMER COMMUNIST
111112
AND
SOVIET COUNTRIES .
A COMPARATIVE ANALYSIS OF INSTITUTIONAL DESIGN
113114

2.1. INTRODUCTION
In contrast with the American model of judicial review, where the Supreme Court stands
at the t op of the judicial pyramid of power, many of the Constitutional Courts throughout most
of Europe and Central Asia appear to have carried on the legacy of Hans Kelsen, according to
which the Constitutional Court remains apart from all branches of power, inc luding the judicial.
In the immediate aftermath of the collapse of the communist regime, revolutionary leaders and
decision -makers were keen on establishing the institutions necessary for upholding the newly –
instated democracy. As such, most of the Constit utional Courts in the region came to be
established around the same time, with minor differences. It may be argued that one of the main
reasons for this pattern is related to the timeframe in which these politico -judicial institutions
came to be establishe d, or to their very geographical proximity, just as well as one could also
invoke certain structural factors, such as the political system.
The aim of the present study is to examine whether or not the Constitutional Courts in
the former communist and So viet states display a similar pattern of institutional design. In order
to do so, the focus of this chapter is represented by a comparative empirical analysis of the
Constitutional Courts in Central and Eastern Europe, on the one hand – the Czech Republic,
Poland, Slovakia, Hungary, Romania, Bulgaria, Slovenia, Croatia, Serbia, Bosnia -Herzegovina,

111 The idea of this chapter originated from a presentation delivered at the CEEPUS Summer School of 2013 .
112 The initial version of this research chapter focused on the European Constitutional Courts and was published
in Ioan Stanomir, Cristina Manolache, Anamaria Elena Gheorghe (eds.), Challenges of Transition. The Post –
Communist Experience(s) , vol. I, Editura Institutul European, Iași, 2014, pp. 141 – 150. S ee Cristina Manolache,
“A European Model of Constitutional Courts’ Design”.
113 The following year, I extended the geographical scope of my research, so as to include the Courts in the forme r
Soviet Space, and published a preliminary version of this chapter in Romanian Review of Young Researchers, vol.
I, no. I, April 2015, pp. 7 – 25. See Cristina Manolache, “Constitutional Courts in the Former Communist
Countries. A Comparative Analysis of Institutional Design”.
114 The initial version, which analyzed only the Central and Eastern European Constitutional Courts, was presented
during the first International Interdisciplinary Doctoral Conference “Challenges of Transition: The Post –
Communist Exper ience(s)”, organized by the Doctoral School of Political Science, University of Bucharest (24th –
25th of May 2013), under the title A European Model of Constitutional Courts’ Design .

66 Montenegro, Macedonia, Albania, and those in the former Soviet space, on the other – the
Russian Federation, Lithuania, Latvia, Moldova, Ukraine, Belarus, Georgia , Armenia,
Azerbaijan, Kazakhstan, Tajikistan and Uzbekistan. In each of these 25 cases, our endeavor
takes into account the following elements of institutional design: a) the judges – as analyzed in
terms of number, duration of mandate, appointment proced ures and special revocation
procedures and b) the competences – namely those of constitutionality control, binding
interpretation of the Fundamental Law; solving the conflicts of competence between public
authorities; involvement in the suspension/impeachm ent procedures of the President and
consultative powers in electoral and referendum matters.
Given the extended spatial framework of our research project, I took into account the
obvious possibility of a certain geographical pattern of institutional desi gn among the courts.
On a similar note, I was also confident that since the historical background could represent a
pattern all in itself, a model of institutional design was likely to emerge between countries which
shared a common democratic transition ex perience, and in which these institutions were
established around the same time. However, in spite of an obvious preference for the Kelsian
model of Constitutional Courts, are these institutions heavily marked by any other similar
features?
Essentially, we re interested in finding whether or not the Kelsian Constitutional Courts
in this region are also advancing a model of institutional design, by taking into account two of
the most important dimensions of such a design – the provisions regarding the constit utional
court’s justices and competences. Thus, the main research question from which this study
originated was the following: do Constitutional Courts in the former communist and Soviet
space display a similar pattern of institutional design?
As a gener al hypothesis, I maintain that the structural factors which may determine the
emergence of a certain model of institutional design at the level of Constitutional Courts are
mainly the geographical proximity and the common recent historical background.
First of all, I maintain that the institutional design of constitutional courts pertaining to
countries in the same vicinity will be similar, precisely because the geographical proximity will
also serve as an example of successful models of design. If it is good enough for a neighboring
country, then it will be good enough – albeit slightly adaptable – to any given country in the
area, especially when having no previous experience with such institutions whatsoever.

67 A second hypothesis is that according to w hich the more ethnically and territorially
fragmented a country is, the more likely the patterns of recruiting constitutional justices will
reflect these issues – most of the times by means of special provisions requiring a specific
number of judges to pos sess certain special features – e.g. they must be of a certain ethnie, they
must be representative of a certain territory, so on and so forth. In addition, this second
hypothesis may be considered complementary to the first one, particularly when having in mind
the example of the Former Yugoslav states.
Finally, a third hypothesis maintains that the constitutional courts of the former
communist and soviet states do display many similarities in terms of institutional design
precisely because they share a co mmon historical heritage. From this perspective, they were
also roughly established around the same time, lacking the experience of independent judicial
review and being heavily marked by the communist legacy. It may be easy to presume that the
countries w hich were mostly influenced by the communist rule will be less inclined to grant
their constitutional courts too many prerogatives or their judges a greater degree of
independence, just as well as it is reasonable to argue that the countries which benefite d from a
growing economy and an articulated civil society even during communism will later on
emphasize the influence of their constitutional courts.
On the other hand, it should be also noted that it is not the purpose of our research to
determine the ca uses which lead to the emergence of a pattern of design, but rather to analyze
certain features of institutional design and to examine to what extent their frequency enables
the emergence of a pattern.
Finally, our research is drawn from primary sources s uch as the texts of the Fundamental
Laws in each of the countries scrutinized, the laws on the establishment and/or functioning of
the courts as well as their regulatory statutes. Each of these documents were available online,
most of the times on the very website pages of the Constitutional Courts themselves.

2.2.THEORETICAL FRAMEWORK
One of the first reasons for which constitutional courts came to be, to Hans Kelsen’s
mind, was that of judicial review. In fact, the European concentrated model of judici al review
is precisely what highlighted the necessity of creating a new institution which would deal

68 exclusively with this matter115. Throughout time, however, there have been numerous attempts
to identify and establish a form of judicial review that would f ully achieve its purposes, standing
apart, neutral and yet firmly consolidated from any political influences and/or interests.
Harutunyan and Mavcic116 have suggested, in 1999, that the concept of judicial review
and its subsequent implementation are the re sult of a process which may be divided into four
main periods: 1) the first phase began prior to the First World War and regards the emergence
of widespread interest and theories on judicial review; 2) the second phase is dominated by
Hans Kelsen’s theory of Constitutional Courts as “specific bodies entrusted with the powers of
a negative legislator”117 and took place during the inter -war period; 3) then, with the statal
reorganization that occurred in the aftermath of the Second World War and the decolonizat ion,
new models of judicial review were implemented, mainly following either the American or the
European models and finally, the last phase, 4) came with the collapse of communism, when
the former Soviet countries had to decide for and to establish their own form of judicial review.
From this perspective, all of the 25 cases under scrutiny in our study would tend to follow a
similar pattern of institutional design since they all established their constitutional courts within
a similar timeframe, during the fourth and final wave of judicial review. I could also assume
that the temporal proximity determined the resemblance of their institutional choices.
Another theory of institutional design suggested by Planchart Manrique118 and
Ginsburg119 maintains that “in stitutional choices made by countries in the vicinity with a similar
experience have exerted a great influence on subsequent Constitutions”120. Basically, countries
sharing a certain spatial framing will tend to replicate to a certain extent some elements of
institutional design specific to that respective area when establishing their own constitutional
courts. Moreover, the cultural factors could also be correlated to this explanation, since
countries in the same vicinity will also have a similar historical and cultural background that

115 As opposed to the American model of judicial review, also called the di spersed model, in which the power of
judicial review is granted to all ordinary courts.
116 Gagik Harutunyan, Arne Mavcic, The Constitutional Review and Its Development in the Modern World (A
Comparative Constitutional Analysis) , Yerevan, Ljubljana, 1999.
117 The term “negative legislator” is often assigned to Constitutional Courts, so as to differentiate their activity
from that of the Parliament. By so doing, the Parliament remains the sole institution entitled to formulate and pass
normative acts. For furth er references, see Hans Kelsen, Doctrina pură a dreptului , translated by Ioana Constantin,
Humanitas, București, 2000.
118 Manrique Planchart, “The Making of the Venezuelan Constitution” in R.A. Goldwin And A. Kufman (eds.),
Constitution Makers on Constitution Making: The Experience of Eig ht Nations , American Enterprise Institute for
Public Policy Research, Washington D.C., 1988.
119 Tom Ginsburg, “Economic Analysis of the Design of Constitutional Courts” in Global Jurist Frontiers , No. 2,
issue 1, 2001, pp. 68 -93.
120 Romeu Francisco Ramos, “The Establishment of Constitutional Courts: A Study of 128 Democratic
Constitutions” in Review of Law and Economics , vol. 2, article 6, pp. 103 -135, p. 109.

69 would ease the import of elements of institutional design. Consequently, it could be argued that
geographical proximity may also influence the constitutional designers and therefore generate
similar institutional choices.
A fur ther argument could be made that constitutional courts were established in the
immediate aftermath of the collapse of communism in an attempt to separate from the past
totalitarian institutions. According to Andras Sajo “constitutional actors reflect the f ears
originating in and related to the previous political regime”121 and therefore, constitutional courts
are viewed as “watch -dogs of democracy”, their role being that of ensuring a return to the
previous regime whenever the representative of a public autho rity exceeds his/her
prerogatives122 is rendered impossible. Hence, when the new Constitutions were established
after the late 1980s – early 1990s’ events, relatively clearly dividing the public authorities and
seeking to determine the exact relationships be tween them, the constitutional courts in the
former Soviet space were perceived as guardians of the newly democratic regime, as supreme
and independent authorities, just as judicial independence was openly proclaimed in the
Fundamental Law, although not al ways entirely respected by the political actors. Perhaps one
of the most striking such instances occurred in 1993, when President Boris Yeltsin decided to
suspend the Russian Constitutional Court after it ruled against him in a conflict with the
Parliament . Another pertinent example is that of the Polish Constitutional Tribunal, established
in 1986 and whose decisions, even after the collapse of communism, could still be over -ruled
by the Sejm with a mere qualified majority123. Therefore, I agree with Martin Shapiro’s
argument that :
“Constitutional C ourts are not expected to be “neutral” but instead to be
active instruments for the promotion of the newly established democratic
regimes and guardians against any backsliding into earlier antidemocratic
political ways”124.

121 Andras Sajo, Limiting Government: An Introduction to Constitutionalism , Budapest, 1999, p. 32.
122 The President of Belarus, Alexander Lukashenko is one of the best examples in point, as he modified the
Constitution of Belarus on two occasions in order to grant himself more prerogatives so as to remain in power for
a longer period. The first time, in 1 996, he used a rather controversial referendum to extend his mandate by two
years, until 2001 – quite interestingly, he managed to do so with the support of the people, although other public
authorities opposed his initiative. Secondly, in 2004, he amended the Fundamental Law once more in his favor,
eliminating the provision regarding term limits which restricted him from running again on Presidential elections,
as he had already served the two mandates allowed by the law.
123 Matthias Hartwig, “The Instituti onalization of the Rule of Law: The Establishment of Constitutional Courts in
the Eastern European Countries”, in American University International Law Review , vol. 7, issue 3, 1992, pp. 449 –
470, p. 455.
124 Martin Shapiro, Courts – A Comparative and Politic al Analysis , University of Chicago Press, Chicago, 1981,
p. 155.

70 The final theory I selected refers to inter -institutional choices125 and proposes that the
institutional design of constitutional courts is “the result of the bargaining among self -interested
political actors”126. Basically, since a constitutional co urt is not only autonomous from the other
branches of power, particularly from those with political affiliation, but it may even need to
limit political power when exercising some of its attributions127, it is crucial that it preserves a
certain autonomy fro m all of the other public authorities. In practice, however, this autonomy
is severely diminished by the legislative and/or executive’s interference in appointing the
court’s justices, for example, or in drafting the court’s competences:
“…assuming that p olitical actors are motivated by institutional self –
interest, we would expect policy makers to be predisposed against limiting
themselves, particularly in the form of oversight by other actors”.128
This was not necessarily the case with the post -communist co untries, as in many of
them, the new self -proclaimed democratic leaders were rather keen on replicating the
institutional pre -requisites of a strong democracy. In our opinion, this may be a plausible
explanation for the wide array of competences granted to the courts in the immediate aftermath
of the collapse of communism, although they were not always exercised129.
Given that in all of our selected case studies, the constitutional courts have been
established either during the communist regime, immediately a fter its collapse, or during
periods of transition, it would be interesting to test this theory with regard to the competences
granted to the courts and observe to what extent have these constitutional courts been granted
the same amount of competences whi ch could potentially limit the activity of other public
authorities.

2.3. ELEMENTS OF INSTITUTIONAL DESIGN
As previously mentioned, the purpose of this study is to empirically examine the
constitutional provisions and regulatory acts regarding 25 consti tutional courts in the post –
communist and former Soviet countries, namely the Czech Republic, Poland, Slovakia,
Hungary, Romania, Bulgaria, Slovenia, Croatia, Serbia, Bosnia -Herzegovina, Montenegro,

125 Shannon Ishiyama Smithey and John Ishiyama, “Judicious Choices: Designing Courts in Post -Communist
Politics”, in Communist and Post -Communist Studies , vol. 33, 2000, pp. 163 -182, p. 171.
126 Ibidem.
127 The first and most important exemplary attribution in this situation being the ex ante constitutionality control.
128 Shannon Ishiyama Smithey and John Ishiyama, Judicious Choices: ….op. cit. , p. 171.
129 Exemplary in this respect is the Polish Const itutional Tribunal which has not, until 2012, exercised its
prerogative to solve the juridical conflicts of a constitutional nature between public authorities.

71 Macedonia, Albania, the Russian Federation, Lithuania, La tvia, Moldova, Ukraine, Belarus,
Georgia, Armenia, Azerbaijan, Kazakhstan, Tajikistan and Uzbekistan. We chose the courts of
these particular countries for three main reasons: a) they can all be easily grouped
geographically – and subsequently divided betw een those in the Central and Eastern Europe
region which are currently EU member states (Poland, Hungary, Slovakia, the Czech Republic,
Romania, Bulgaria), the Western Balkans post -communist countries (Albania, Bosnia and
Herzegovina, the former Yugoslav R epublic of Macedonia, Montenegro, Croatia, Serbia and
Slovenia) and the Former Soviet Space states, which can also be divided into i) the Baltic states:
Latvia and Lithuania; ii) the East European states: Belarus, Moldova, the Russian Federation
and Ukrain e; iii) the Caucasus region: Armenia, Azerbaijan and Georgia; and iv) Central Asia:
Kazakhstan, Tajikistan, Uzbekistan; b) they all established their constitutional courts within a
relatively close timeframe in the early 90s; and c) almost all of them had no tradition of
independent judicial review130 and as such, they lacked a previous national model of
institutional design of such courts.
In order to identify a potential pattern of institutional design, I took into account two
main elements: the judges a nd the competences of the courts. With respect to the judges, I was
interested in examining 1) their number, 2) the length of their mandate, 3) the manner in which
they are appointed (including any special appointment requirements) and 4) the special
dismi ssal procedures (if they existed). I used the thematic content analysis method for this
section of our study, as I also needed the precise information on the recruitment patterns of the
judges. With regard to the court’s competences, I used the indexing me thod, as I only needed a
quantitative perspective on this dimension of our analysis, and grouped them into the following
categories: 1) constitutionality control of the laws (abstract or concrete); 2) binding
interpretation of the constitution; 3) solving the conflicts of competence between authorities
(vertical – between authorities of the same rank and horizontal – between central and local
authorities); 4) involvement in the suspension/ impeachment procedures of the President; and
finally 5) consultative powers in referendum/ electoral matters.
Overall, I combined both the qualitative and the quantitative research methods in our
study, alas focusing on the quantitative, in an attempt to identify three patterns of institutional
design: a) liberal; b) mode rate; and c) conservative. It should also be noted that most of our

130 With the notable exceptions of Yugoslavia (1963) and the Czechoslovakian Socialist Republic ( 1968), although
the constitutional provisions were never actually implemented. And, of course, the Polish Constitutional Tribunal
(1986), discussions of which proceeded as early as 1982, becoming legally established in 1985. For further
references, see Mat thias Hartwig, The Institutionalization of the Rule of Law …op. cit .

72 research heavily relies on primary sources – starting from the Fundamental Laws of each state
under scrutiny, to the laws on the organization and the functioning of each respective
constit utional court – all of which are available in English on the internet, if not on the webpages
of each constitutional court itself. The shortcomings of our research methods are first of all
determined by the large amount of cases I set out to explore, parti cularly since I could not
identify any data bases on this topic to at least compare our findings to. I had to construct our
own data base – which I hope to develop in the near future, although it was very time -consuming
to begin with. Last but not least, a lthough it has enabled us to further develop on the topic of
the judges, the thematic content analysis method was difficult to systematize so as to somehow
correlate to the indexing method used in the second section of this chapter .

2.3.A. THE JUDGES AT CONSTITUTIONAL COURTS
The first dimension of our analysis involves the judges, as a key element of institutional
design, precisely because of the role they play in strengthening the court’s position among state
powers. The manner in which the justices of these courts come into office, the length of their
mandate, their numerical proportion as well as the existence of special dismissal procedures are
all relevant and influential factors in providing the court’s legitimacy. If the early post –
communist circu mstances “in post -totalitarian countries, due to the deep politicization of those
structures and their constant subordination to the executives during the undemocratic regimes,
[were marked by the fact that] judicial systems remained weakly professionalize d and resilient
to change”131, clear constitutional procedures regarding the constitutional justices should
strengthen the judicialization of their profession. Conversely, since constitutional courts are
supposed to be counter -majoritarian132, the lack of qual ified and independent personnel is quite
likely to weaken their position and subject them to political influence.
However, before proceeding, it must be mentioned that our initial analysis comprised
27 case studies, of which Estonia and Kyrgyzstan were th e only ones which have deviated from
the Kelsian model of constitutional review. Instead of establishing a constitutional court,
Estonia has a Constitutional Review Chamber within its Supreme Court, with 9 judges that are
appointed for a life -long mandate until the retirement age of 68. These justices of the

131 Cristina Dallara, Judicial Reforms in Transition: Legacy of the Past and Judicial Institutionalization in Post –
Communist Countries , p. 2 and also available at
http://amsacta.unibo.it/2810/1/Judicial_Reforms_in_Transition..pdf , accessed on April, 17th 2014.
132 For further references, see Robert A. Dahl, “The Concept of Power”, in Behavioral Science , vol. 2 , issue 3,
1957, pp. 201 -215.

73 Constitutional Review Chamber are appointed by the Riigikogu – the Estonian Parliament – at
the proposal of the Chief of Justice of the Supreme Court and the President of the Republic. It
is interesting to observe that two of the justice offices are annually renewed, and that in naming
new judges, they usually strive to achieve a proportionate representation of the Administrative
Law, Criminal and Civil Chambers within the Constitutional Review Chamber133. Similarly,
the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic has 11 judges,
appointed for 7 -year-mandates which are renewable. It is also interesting to keep in mind that
a Constitutional Court did exist in Kyrgyzstan as well, but it was abolished by the new
Fundamental Law of 2010, when its powers were transferred to the Constitutional Chamber.
Last but not least, the role of a constitutional justice is highly important, as Rosenfeld
best put it:
“The Constitutional judge, therefore, must be a different kind of judge
– one who, to use Kelsen’s expression, functions as a “negative legislator”.
The constitutional judge as a negative legislator may invalidate laws only to
the extent that they contravene formal constitutional requirements [..] and
therefore, may remain largely apolitical. In contrast, since World War II,
constitutional judges have invalidated laws on substantive as well as formal
grounds, thus coming increasingly to resemble positive legislators”134.

2.3.A.1. The N umber of Justices
In what regards the numerical proportion of the constitutional justices, most of the post –
communist countries seem to have preferred the 9 -justices -formula: Albania, Bosnia and
Herzegovina, Georgia, Lithuania, Macedonia, Romania and Slovenia, Arme nia, Azerbaijan.
The second best option appears to be that of the 15 -justices -formula, as implemented by the
Czech Republic, Poland, Serbia and Hungary. It appears that the Central European states which
are usually more economically, socially and political ly developed than the others I examined
display a tendency for a larger number of constitutional justices.
In addition, the geographic and demographic size of the state may also determine a
certain preference for a larger number of judges. For instance, t he Russian Federation has the
highest number of constitutional judges in the area under scrutiny – 19, closely followed by the
Ukrainian Constitutional Court, which has 18 judges.

133 For more information, visit the website of the Estonian Constitutional Review Chamber, at
http://www.riigikohus.ee/?id=186 , accessed on April, 16th 2014, at 10:29.
134 M. Rosenf eld, “Constitutional Adjudication in Europe and the United States – Paradoxes and Contrasts”, in
International Journal of Constitutional Law , vol. 2, no. 633, 2004, pp. 663 -668, p pț. 635 -636.

74 At the opposite side of the spectrum, the Constitutional Court of Moldova has the
smallest number of judges – six, being closely followed by those of Latvia, Montenegro,
Kazakhstan, Tajikistan and Uzbekistan with 7 constitutional judges, each. On this occasion, the
geographic proximity factor is obviously influential in the case of the Central Asian courts,
although a small number of constitutional justices may also have a negative impact in terms of
judicial independence, which could be only beneficial for a hybrid regime. It would be difficult
for such a court to reach quorum a nd at the same time, it would be easier for the executive and
legislative political actors to influence the court’s decisions if they only have to persuade a
couple of its members.
Finally, a large number of judges in whose appointment only one public aut hority is
mostly involved is typically quite likely to generate institutional blockages. An example in point
is that of the Czech Constitutional Court – Vaclav Havel became President in 2003 and blocked
the institution’s functioning by refusing to appoint new judges, because of a recent conflict with
the court. This institutional blockage lasted until 2005, time during which the court could not
have any quorum to decide on the constitutionality of laws135.

2.3.A.2. Term of Office
When it comes to the length of their mandate, it should be noted that in most cases, the
mandates of the constitutional justices are non -renewable. Notable exceptions are the
Constitutional Court of the Republic of Belarus, where the judges may be reappointed after a
mandate of 11 y ears, and the Constitutional Courts of Moldova and Serbia, where the judges
are specifically entitled to two mandates.
Generally speaking, the duration of the term of office in the case of a constitutional
judge appears to be of approximately 9 years. C roatia has opted for an 8 -year-mandate, the
Czech Republic, Georgia, Latvia and Tajikistan for a 10 -year-mandate, whereas the
constitutional courts of Bulgaria, Poland, Romania, Albania, Macedonia, Montenegro, Serbia,
Slovenia, Lithuania and Ukraine have e ach decided to grand their constitutional judges a 9 –
year-mandate. From this perspective, a pattern seems to emerge as almost half of the countries
in our study have opted for the 9 -year-mandate.

135 For further details, see Z Kuhn and J. Kysela, ”Nomination of Constitutional Justices in Post -Communist
Countries: Trial, Error, Conflict in the Czech Republic”, in European Constitutional Law Review , vol. 2, no. 183,
2006, pp. 196 -205.

75 The briefest term of office for a constitutional justice is of 5 years at the Constitutional
Court of Bosnia and Herzegovina and at that of the Republic of Uzbekistan, closely followed
by the 6 -year-mandate at the Moldovan and Kazak136 Constitutional Courts. Once again, it
appears that the constitutional courts in M oldova and in the countries of the former Soviet space
hold the lowest records.
On a contrasting note, the longest term of office for a judge at a constitutional court is
in Slovakia and Hungary, where the duration of a mandate is of 12 years. An exception is that
of the Russian Federation, where the constitutional judges hold a life -long mandate, until the
age limit of 70 years, with the exception of the President of the Court.
The length of the mandate of a constitutional justice is particularly relevant in terms of
judicial independence. If the judge’s mandate is shorter or close to that of the representatives
of the public authorities involved in their appointment procedure, then it may be assumed that
the judges will typically rule in favor of those au thorities, as they are interested in being
reappointed. If they cannot be reappointed, as seems to be the case in almost all of the countries
under scrutiny, they will lack the incentive to comply with political interference on this ground.
However, a term of office that both exceeds the duration of and remains unsynchronized with
the renewal of that of the political representatives is most desirable. Such a mandate would
basically imply that the judges at the constitutional court will not change as the pol itical
affiliations of the public authorities change, in the aftermath of each electoral cycle, thus
granting them a higher degree of independence in their decision -making process.

2.3.A.3. Appointment Procedures
The manner in which the constitutional jud ges come into office bears a particular
relevance to their subsequent interaction with the representatives of the other public authorities
and to the degree of legitimacy subsequently born by the court. As such, I distinguished between
a) constitutional co urts where the judges are elected , b) courts where they are appointed and
c) courts which opted for a mixed formula , involving both appointment and election -specific
procedures.
As expected, in very few countries in the region under scrutiny are the justi ces elected.
In all of the five cases I identified, the judges are elected by the Parliament – at the constitutional

136 A notable exception is that of the former Presidents of the Republic who, following the model established by
the French Conseil Constitutionnel, automatically become life -long members of the Constitutional Court.

76 courts of Croatia, Poland, Slovenia, Montenegro and Macedonia. Hence, with the exception of
the Polish Constitutional Tribunal, it appears that only the countries of the Former Yugoslav
Republic implemented this model.
Consequently, the model that emerges is that of the appointed judges. In most cases, the
judges are partly appointed by the legislative, executive and judicial branches. Furt hermore, I
distinguished between constitutional courts with:
1) appointment procedures involving one public authority – the Constitutional Court of
Hungary;
2) appointment procedures involving two public authorities – specific to the
constitutional court s of Albania, the Czech Republic, Russia, Slovakia, Armenia and
Azerbaijan;
3) appointment procedures requiring the collaboration of three distinct public authorities
– implemented by the constitutional courts in Bulgaria, Bosnia and Herzegovina, Latvia,
Lithuania, Moldova, Romania, Serbia, Ukraine and Kazakhstan.
Essentially, the mixed formula implies 2 variations: i) a part of them are elected by one
public authority and other part(s) are appointed by other public authority(ies); ii) all of them are
elected/ appointed by one public authority, after having been nominated by another. It is also
interesting to note that there are cases where a mixed formula is applied, implying both
appointment and elective procedures, such as the constitutional courts of Belarus, Georgia,
Tajikistan and Uzbekistan. Yet again, the countries in the Central Asian region follow the same
pattern, and their constitutional judges are elected with a majority of votes by one Parliament
chamber, from the President’s nominations.
Also of a particular relevance are the cases in which the judicial branch is involved in
the selection process of the judges, either by directly appointing and electing them, or even as
simply nominating the judges to be elected or appointed by other public authorities. It is
disappointing to observe that in very few countries is the judicial branch actually involved –
Ukraine, Serbia, Moldova, Lithuania, Latvia, Georgia and Bulgaria. I maintain that the
influence of the judicial branch in the selection proc ess of the constitutional justices is crucial,
particularly in view of a clearer and more proportionate representation of the separation of
powers principle.
Therefore, most of the constitutional courts of the post -communist and former Soviet
countries ap pear to have decided for the appointment formula in which three public authorities

77 are involved. It should be underlined that, as in the case of the Constitutional Court of Romania
where a third of the judges are appointed by the President, by the Chamber of the Deputies and
the Senate respectively, I considered the two chambers of the Parliament to count as two
different public authorities. The main reason for our decision was that oftentimes the two
parliamentary chambers display a different distribution of the political ideologies and they are
even headed by representatives with opposing political affiliations. As such, given that the
lower and the upper chamber may sometimes have opposing political interests, they should be
counted separately.
Finally, “it is likely that judges who are selected as the result of a process which involves
several political actors possess far more potential independence that judges who are all selected
by the same actor”137. For one reason, the judges will not all feel account able to the same
representative for appointing them and secondly, they will not risk any repercussions in case of
counter -majoritarian decisions, as was the case of the Czech Constitutional Court in 2003 –
2005.
A certain peculiarity with regard to the a uthorities involved in the appointment
procedures of these judges may be encountered at the Constitutional Court of Bosnia and
Herzegovina, where out of the 9 justices serving the court, three are to be appointed by the
President of the European Court of H uman Rights after consulting with the Presidency. I found
this provision interesting because an external public authority is involved in their selection
process, so as to further interfere within the separation of powers reflected in the judges’
distributi on at the court. In addition, a fundamental condition to their appointment is that they
must not be citizens of Bosnia and Herzegovina nor of any other neighboring state, thereby
introducing a complementary citizenship criterion to the selection process of the constitutional
justices.
Another country in the region which is clearly employing the ethnic criterion in its
selection process is the Macedonia, where out of the 9 judges of the Court, 3 are to be elected
by the Assembly, by a majority vote of the total number of Representatives, within which three
of the judges must be elected by a majority of the votes of the total number of Representatives
claiming to belong to the communities not in the majority of population in Macedonia138.

137 Shannon Ishiyama Smithey and John Ishiyam a, Judicious Choices …op. cit ., p. 168.
138 According to article 109, paragraph (2) of the Macedonian Fundamental Law.

78 In Serbia, a differ ent, yet unique criterion probably drawing from their territorial
fragmentation background and experience, requires the National Assembly to appoint five
justices of the Constitutional Court from among ten candidates proposed by the President of the
Republ ic, the President of the Republic to appoint five justices of the Constitutional Court from
among ten candidates proposed by the National Assembly, and the general session of the
Supreme Court of Cassation to appoint five justices from among ten candidates proposed at a
general session by the High Judicial Court and the State Prosecutor Council. On each of the
proposed lists of candidates, one of the appointed candidates must come from the territory of
autonomous provinces139. In a similar manner, one of the seven serving judges at the
Constitutional Court of the Republic of Uzbekistan must be a judge from the Republic of
Karakalpakstan. And likewise, one of the members of the constitutional justices at the
Constitutional Court of the Republic of Tajikistan mu st be a representative of the Gomo –
Badakhshan Autonomous Oblast.
Overall, the constitutional courts of the countries belonging to the former Yugoslav
Republic seemingly generate a pattern of special appointment criteria (ethnic, territorial,
regarding ci tizenship or the involvement of an exterior public authority) for their judges. Given
the historical and cultural background of Bosnia and Herzegovina, Serbia and Macedonia –
countries marked by ethnic conflicts, such special provisions are hardly surprisi ng. On the
contrary, they are rather useful in providing the constitutional courts in the area with a much
needed legitimacy.
Last but not least, gender distribution is another criterion used in the selection process
of the judges. In the Kyrgyz Republic , the justices of the Constitutional Chamber of the
Supreme Court are elected by the Jogorku Kenes140 and by the President at the proposal of the
Council of the Judiciary on the basis of an explicit gender representation, as no more that 70%
of the judges ma y be of the same sex141. It seems odd that one of the countries of the former
Soviet space, marked by a hybrid regime rather than a feasible transition towards democracy
would put such a strong emphasis on the gender equality of chances. Especially when none of
the other constitutional courts, not even those in Central Europe, have introduced such a
provision in the appointment procedures of their judges.

139 According to article 172, paragraph (4) of the Serbian Constitution.
140 The Supreme Council.
141 According to article 15 of the Constitution al Law.

79
2.3.A.4. Special Dismissal Provisions
The special dismissal provisions are relevant in our analysis in order to identify the
degree of independence granted to the courts by the constitutional designers. If the institutional
design of constitutional courts is but a mere bargain between public authorities who are very
little inclined to partly transfer their own prerogatives to a higher authority, then the existence
of such special dismissal provisions would confirm that:
“Judicial independence declines to the extent that other policy makers have
recourse to court -curbing techniques. Policy makers may employ a variety of
means for keeping judges in check. Judges may be censured or impeached.
Their decisions may be overridden through statutory or constitutional
change”142.
Nevertheless, from our findings, almost none of the 25 case studies have included such
dispo sitions in their Constitutions, nor in the Statues or Laws regulating the functioning of
constitutional courts. There is only one exception, in Albania, where a constitutional judge may
be dismissed by the Assembly, with a two thirds majority143. This examp le is by far more
threatening than the common provisions on removing the constitutional justices in case of
criminal convictions or of running for elections, particularly when taking into account the
ambiguity of the law. Unlike in most of the other countr ies, there are no expresis verbis
stipulations regarding the behavior of the dismissed judges at the Albanian Constitutional
Court, thereby leaving room for arbitrary interpretations and speculations.
On the whole, if “judicial independence is promoted by measures that protect judges
from political pressure”144, the mere existence of special dismissal procedures is quite
dangerous. The judges at the constitutional courts will be less likely to rule against the powers
enabled to revoke them. Their decisions w ill be threatened by their own imminent dismissal,
particularly if the public authority that may dismiss them is also involved in their appointment
procedures.

142 Shannon Ishiyama Smithey and John Ishiyama, Judicious Choices…op. cit ., p. 166.
143 According to article 128 of the Albanian Constitution “The judge of the Constitutional Court may be dismissed
by the Assembly through two thirds of its total number of members if he/she violates the Constitution, commits a
crime, becomes mentally or physically incapable, commits other acts that incriminate the position and personality
of the judge. The decision of the Assembly is reviewed by the Constitutional Court, which, upon verification of
the above -mentioned reasons, declares the dismissal of the members of the Constitutional Court”.
144 Shannon Ishiyama Smithey and John Ishiyama, Judicious Choices…op. cit., p. 165.

80
2.3.B. THE PREROGATIVES OF CONSTITUTIONAL COURTS
In his Governing with Judges – Constitutional Politics in Europe , Alec Stone Sweet
identified “four functions of the constitutional court, namely: a) operating as a counterweight
to majority rule; b) pacifying politics; c) legitimizing public politics; d) protecting human
rights”145. All of these funct ions are actively exercised through the constitutional court’s
competences, in so far as the conditions for judicial independence and rule of law are fulfilled.
For the purpose of our analysis, I will focus in this section of the chapter on a basic
assess ment of the competences rendered to the constitutional courts under scrutiny. I am simply
interested in those attributes which require the interaction with those public authorities that
possess one sort or another of political affiliation, namely the legis lative and the executive
branches. Therefore, I excluded from our evaluation those competences of the courts which
involve only the citizens’ initiative, as well as those marked by the interaction with other courts
of the judicial branch. The competences I selected are the following: 1) constitutionality control
of the laws (abstract or concrete); 2) binding interpretation of the constitution; 3) solving the
conflicts of competence between authorities (vertical and horizontal); 4) involvement in the
suspens ion/ impeachment procedures of the President; and finally 5) consultative powers in
referendum/ electoral matters.
Then, by using the indexing method, I simply marked the presence or the absence of
these prerogatives. It should be noted that I am not evalu ating the actual practices regarding
these competences, since this is a rather extensive analysis that will be the topic of another
chapter . I was only interested in their legal stipulation, for the purpose of establishing a pattern
of institutional design .
To begin with, since “constitutional courts often are established during the initial
transition to democracy as part of the wave of anti -authoritarian reforms”146 it came as no
surprise that most of the courts in the region possess many competences, so as to ensure that a
return to the communist regime would be, at least theoretically, impossible.
The prerogative regarding the constitutionality control is one of the oldest and most
fundamental competences of a constitutional court. Essentially, it was also one of the first
reasons for which constitutional courts came to be established. The problem with this attribution

145 Alec Stone Sweet, Governing with Judges – Cons titutional Politics in Europe , Oxford University Press, Oxford,
2000, p. 137.
146 Carla Thorson, “Why Politicians Want Constitutional Courts: The Russian Case”, in Communist and Post –
Communist Studies , vol. 37, 2004, pp. 187 -211, p. 189.

81 of the court is that it is seldom seen as interfering with the role of the Parliament, as sole
legislator. Moreover, the issue of legitimacy is increasingly disputed on this matter. Since the
Parliament is the first and foremost representative body of the citizens, the constitutional court’s
authority to rule against the laws issued by the parliament may be challenged.
There are two forms of co nstitutionality control of the laws. The first one refers to the
abstract, ex ante control, rendered before the law actually enters into force and produces
juridical effects. Basically, “such abstract review provides the courts with real power to affect
policy by providing them with the ability to set policy agendas and as a method of defusing
constitutional disputes”147. Most of the countries possess this prerogative, with the exception of
the constitutional courts in Latvia, Moldova, Ukraine and Uzbekistan.
The second type of constitutional control is the concrete or ex post control, in which any
laws that have already been promulgated and produced legal effects may be checked for
conformity with the Fundamental Law. It is also important to underline that th e concrete
constitutionality control may also be exercised by means of the citizens’ initiative, and thus be
used as an effective tool to protect the rights and freedoms of the citizens. The only
constitutional courts where this attribution is absent are t hose of Bulgaria, Ukraine, Bosnia and
Herzegovina, Azerbaijan, Kazakhstan, Tajikistan and Uzbekistan.
On the whole, the constitutionality control prerogative “provides the courts with an
ability to shift political resources from the majority to the parli amentary opposition”148.
Essentially, this means that if a law is contested by the opposition and brought to the
constitutional court, it may decide it is unconstitutional and therefore alter the policy -making
process.
Then, to our surprise, very few consti tutional courts of the post -communist and former
Soviet countries possess the prerogative of providing a binding interpretation of the
Constitution – Bulgaria, Poland, Slovakia, Albania, Moldova, Russia, Azerbaijan and
Uzbekistan. Although it may be argued that the binding interpretation of the Fundamental Law
is inherent to constitutional courts and may be found in most of its competences anyway – in
the constitutionality control, in solving the conflicts of competence between public authorities,
for insta nce – an explicit formulation of this attribution would have been more useful.

147 Shannon Ishiyama S mithey and John Ishiyama, Judicious Choices…op. cit., p. 167.
148 Wojciech Sadurski, “Solange, Chapter 3: Constitutional Courts in Central Europe – Democracy – European
Union”, in European Law Journal , vol. 14, no. 1, January 2008, pp. 1 – 35, p. 31.

82 The third attribution I examined “consolidates the court’s position as the main guardian
of the separation of powers, and as a regulator of the actions taken by the executive”149 and
refers to the ability to solve the juridical conflicts of a constitutional nature between public
authorities. Since this type of conflicts are usually generated by problems of competence (when
the representative of one authority either refuses to fulf ill an act which would be of its his/her
competence, or when they tend to assume competencies which belong to other public
authorities), I am henceforth referring to them as conflicts of competence.
As previously mentioned, the vertical conflicts of compet ence are those conflicts of
competence between two public authorities of the same rank, as would be for instance, the
conflicts between the dualist executive branch, the President and the Prime -Minister. The
constitutional courts that do not possess this c ompetence are those in: the Czech Republic,
Bosnia and Herzegovina, Latvia, Lithuania, Belarus, Moldova, Armenia, Kazakhstan, and
Uzbekistan. Secondly, the horizontal conflicts of competence are generally specific to federate
states, yet the term may be ex tended to cover the conflicts between central and local authorities
(for instance, such as those between the Government and the Prefect). This attribution is absent
in even more countries, namely in: Poland, Romania, Slovakia, Croatia, Latvia, Lithuania,
Belarus, Moldova, Armenia, Azerbaijan, Georgia, Kazakhstan and Uzbekistan.
The constitutional courts are very little involved in the suspension/impeachment
procedures of the president, their sole role being that of issuing a consultative notice on the
matter, simply assessing and validating the circumstances for these procedures. Once again,
this competence is granted to most of the constitutional courts under scrutiny, with the notable
exceptions of Poland, Bosnia and Herzegovina, Serbia, Latvia, Belarus, Ukraine, and
Uzbekistan.
Finally, the constitutional courts in which the consultative powers in electoral and
referendum maters are absent are to be found in Poland, Bosnia and Herzegovina, Macedonia,
Latvia, Belarus, Russia, Ukraine and Uzbekistan.

149 Wojci ech Sadurski, Solange, Chapter 3…op. cit ., pp. 31 -32.

83
2.4. TOWARDS A MODEL OF INSTITUTIONAL DESIGN ?
Taking everything into account, I will identify and subsequently develop on the patterns
of institutional design that emerge in light of the empirical analysis previously conducted over
the 25 case -studies.
To begin with, I have established a value for each of the dimensions examined, starting
from the general model which a mere numerical representation of the date would reveal (Chart
1). The constitutional courts of the post -communist and former Soviet countries per average
typically have 9 judges, appointed by three public authorities for a 9 -year-term, without any
explicit dismissal procedures, and exercise most of the competences which require interaction
with other public authorities, as I observed.
As suc h, with respect to the constitutional justices, the courts which had the average
number of judges were marked with (0), those that had more than 9 justices received a (+1),
whereas those that had less than 9 judges were noted with a ( -1). With regard to th e length of
their mandates, a 9 -year term was noted with (0), while a mandate exceeding this length was
ranked with (+1) and those below this duration were marked with ( -1). In addition, the
appointment procedures which involved 3 public authorities were r anked with (0), those
involving 2 authorities or just 1 authority with ( -1) and ( -2), respectively, while the countries in
which the constitutional judges were appointed either by means of a mixed formula or by
elective procedures score (+1). Finally, as m ost of the constitutional courts did not have any
special dismissal provisions, they all received the standard value (0), whereas the cases of
Albania and Belarus scored ( -2).

Constitutional
Court of/
Country Judges
Competences General
Score
Number Term Appointment Dismissal
Poland +1 0 +1 0 -4 -2
The Czech
Republic +1 +1 -1 0 -2 -1
Slovakia +1 +1 -1 0 -1 0
Hungary +1 +1 -2 0 0 0
Romania 0 0 0 0 -2 -2
Bulgaria +1 0 0 0 -1 0

84 Albania 0 0 -1 -2 0 -3
Bosnia and
Herzegovina 0 -1 0 0 -4 -5
Macedo nia 0 0 +1 0 -2 -1
Montenegro -1 0 +1 0 -1 -1
Serbia +1 0 0 0 -2 -1
Croatia +1 -1 +1 0 -2 -1
Slovenia 0 0 +1 0 -1 0
Latvia -1 +1 0 0 -6 -6
Lithuania 0 0 0 0 -3 -3
Belarus +1 +1 +1 -2 -5 -4
Moldova -1 -1 0 0 -3 -5
The Russian
Federation +1 +1 -1 0 -1 0
Ukraine +1 0 0 0 -4 -3
Armenia 0 +1 -1 0 -3 -3
Azerbaijan 0 +1 -1 0 -2 -2
Georgia 0 +1 +1 0 -2 0
Kazakhstan -1 -1 0 0 -3 -5
Tajikistan -1 +1 +1 0 -2 -1
Uzbekistan -1 -1 +1 0 -6 -7

2.1. Data on the Institutional Design of Constitutional Cour ts
Source: Own Compilation of D ata

Secondly, the competences chart was simplified, as the lack of each prerogative I
selected in this endeavor was penalized with ( -1) points, progressively. The few courts which
possessed all of the attributions studied we re granted the value of (0).
Furthermore, by taking into account the final values of each case study, distributed on
the two main dimensions of institutional design examined – the judges and the competences, I
identified three patterns displayed by the co nstitutional courts: a) a liberal pattern; b) a moderate
pattern; c) a conservative pattern (see Graph 2)

85
2.2. Patterns of Institutional Design
Source: Own Compilation of D ata

The liberal pattern is essentially situated between the final score values of (0) to (-1)
and embodies the constitutional courts which have the highest number of constitutional judges,
with the most extensive terms of office, with mixed/elective/appointment procedures involving
more than two public authorities and which typically p ossess all or almost all of the five broad
competences I analyzed. The most liberal such constitutional court is that of Hungary, closely
followed by those in Slovakia, Slovenia, Bulgaria, Georgia and the Russian Federation.
The second pattern of institut ional design was the moderate one. The constitutional
courts pertaining to this category were marked by lacking competences and appointment

86 procedures of the justices in which two authorities were involved and are situated between the
final score values of (-2) to ( -4). The Albanian Constitutional Court seems to be the most
representative for this category, closely followed by its Armenian and Lithuanian counterparts.
Other constitutional courts which display the moderate pattern of institutional design are those
of Poland, Romania, Belarus, Ukraine and Azerbaijan.
Last but not least, the last group of constitutional courts belongs to the conservative
model and is situated at the lowest final score values of ( -5) to ( -7). According to this pattern
of instit utional design, these courts possess the fewest attributions and their judges are either
appointed by one or two public authorities or have the shortest mandate duration. Exemplary
for this group are the constitutional courts of Kazakhstan, Moldova, Latvia and Bosnia and
Herzegovina. The Constitutional Court of Uzbekistan has the lowest score of the 25 case studies
and has received negative scores in almost all of the dimensions selected as elements of
institutional design, albeit most problematic appears t o be its lack of competences.

2.5. PRELIMINARY CONCLUSIONS
On the whole, following the lines of these patterns, it becomes apparent that the theories
regarding the geographical and temporal proximity also hold true. Most of the constitutional
courts in C entral and Eastern European and the Western Balkans countries are representative
for the liberal pattern of institutional design (the Czech Republic, Slovakia, Hungary,
Macedonia, Montenegro, Serbia, Croatia, and Slovenia). Similarly, the constitutional co urts in
the Baltic and East European countries and those former Soviet states in the region of the
Caucasus are illustrative for the regional cluster of the moderate pattern of institutional design
– namely the courts in Lithuania, Belarus, Ukraine, Romani a, Armenia and Azerbaijan). The
obvious exception is to be found in the third group, where the constitutional courts which
display the features specific to the conservative pattern of institutional design are rather
geographically dispersed in Bosnia and H erzegovina, Latvia, Moldova, Kazakhstan and
Uzbekistan. Overall, it appears that in terms of institutional design, the constitutional courts of
the post -communist and former Soviet countries are marked by similarities that may be easily
grouped geographica lly.
Finally, far from harboring the pretenses of having covered all aspects of institutional
design in terms of constitutional courts, I consider this article a first step towards a more focused
research on these institutions. A most useful study I sugge st is one on the competences of the

87 courts, as they are actually exercised, particularly with regard to those involving public
authorities – are there any patterns emerging at this level among the constitutional courts
throughout Europe? Do these instituti ons bear any significant resemblance in their activity? Are
there any major discrepancies between the variety of competences legally provided for and
those actually exercised? Also interesting to develop would be a comparative analysis of the
procedural pr otocols employed when ruling. How long do they take to rule in different cases?
What are the specific procedures? How do they fall in line with this pattern I suggested? Again,
what happens in practice with their decisions – are they considered legitimate and usually
respected or not? With these couple of ideas in mind, I hope that this chapter will be a ground
starting point for more in -depth analyses of the institutional design patterns in constitutional
courts.

88
− CHAPTER III−
THE CONSTITUTIONAL COURT OF ROMANIA

3.1. INTRODUCTION
Envisioned as politico -judicial institutions150 in the XX century, Constitutional Courts,
as illustrated in the previous chapter, possess a wide range of prerogatives, sometimes situated
at the very blurred lines between law and politics. Apart from the a priori or the a posteriori
constitutionality control of laws, their importance is complemented by several other powers
such as solving conflicts of competence between public authorities, confirming the resul ts of a
referendum, providing a binding interpretation of the Fundamental Law, and so on and so forth.
Their political character is further amplified by the manner in which constitutional justices enter
into office – as I have seen, they are generally appo inted by the executive and the legislative
powers. And these are only some of the arguments which trigger skepticism towards this unique
institution of constitutional jurisdiction.
The Constitutional Court of Romania appears as no exception. Heavily criti cized in the
mass -media and even by representatives of public authorities151, its very existence was
contested in the Constituent Assembly in 1991, by both supporters of the diffused American
model of constitutionality control and by those who advocated an a lmighty Parliament. In fact,
as established by the 1991 Fundamental Law, the Constitutional Court of Romania was
subjected to parliamentary control on one of its most essential prerogatives – namely that of the
abstract constitutionality control. According to article 145 paragraph (1) “if a law is passed
again in the same formulation by a majority of at least two thirds of the members of each
Chamber, the objection of unconstitutionality shall be removed, and the promulgation thereof
shall be binding”152. In practice, nevertheless, former President of the Court, Ioan Vida,

150Tudor Drăganu, Drept constituțional și instituții politice: Tratat elementar , vol I, Lumina Lex, Bucharest, 1998:
“they often times have a political character well shaped by the mnner of recruiting and organization […] but appear
as jurisdictional bodies due to their attributions” (see p. 309).
151 Both by those in power as well as by those in opposition, exemplary being the 2012 heavily disputed referendum
on Traian Băsescu’s dismissal from the office of President of Romania.
152Constitution of Romania, 1991 , also available online, in English, at
http://www.cdep.ro/pls/dic/site.page?den=act1_2&par1=5#t5c0s0sba145 [accessed on 23.03.2012].

89 mentioned that “the Parliament has never managed to declare constitutional a law after the
Constitutional Court decided it contravened the Fundamental Law”153.
Additionally, the fact that m any constitutional judges are famous for their political
connections and have held oftentimes important political offices – such as parliament members,
secretary generals, mayors or even Ministers of Justice – contributes very little to the Court’s
overall credibility, particularly when remembering they are appointed by public, essentially
political, authorities. Their decisions may be – and have been – contested on allegations of
political loyalty, especially those with high political stakes, as occurred i n 2012 in the case of
the advisory opinion on the suspension from office of President Traian Băsescu and the
subsequent national referendum for his dismissal. But to what extent are they actually supported
in the 20 years of jurisprudence up to that point? On this note, why was the negative advisory
opinion discarded by Parliament – or even issued as negative, for that matter, since the majority
of the judges are appointed by the legislative, not by the President?
This chapter aims at providing a compreh ensive framework on the most relevant
dimensions of the Constitutional Court of Romania – from its genesis and historical
background, to the powers it holds and how they ultimately position it in relation with the
legislative, executive and judicial powers . Its relevance lies in the importance of understanding
the manner in which the Court operates, especially from a procedural perspective, as well as
gaining an insight on the educational, professional and political background of the
constitutional judges – all of which are key factors for determining the role of the court in
solving the disputes between public authorities.

3.2. METHODOLOGY
To begin with, there are several research questions on which this chapter is drafted: i)
was the voting behavior in the case of the judges affected by their political allegiances?; ii) have
all constitutional judges been connected to any political factions?; iii) which were the main
concerns regarding the nature of the Constitutional Court when it was first established in 1991
and to what extent are they still available nowadays?; iii) what are the general procedural
guidelines before, during and after a hearing at the Constitutional Court?; iv) how is the Court
positioned among the legislative, executive and the judicia l, in the light of the prerogatives it

153 Ioan Vida, Curtea Constituțio nală a României: Justiția politicului sau politica justiției? , Monitorul Oficial
R.A., București, 2010, p. 28.

90 exercises?. In order to answer these questions, a mere theoretical approach would not have been
sufficient. My main presumption on this chapter is that most of the constitutional judges have
had a certain political pa st, which is important to identify so as to examine whether or not this
past affected their decision -making. Also, I believe that most of the concerns voiced at the
genesis of this institution, in 1991, are still echoed nowadays, affecting its credibility.
From a methodological perspective, this chapter uses both qualitative and quantitative
methods. Given the multitude of primary sources analyzed, the method of thematic content
analysis has been most frequently used, as certain aspects regarding the judges , prerogatives
and functioning of the Court were selectively highlighted.
Secondly, the indexing method was once more employed so as to note the presence or
the absence of certain elements in the career portfolio of each judge. I considered that this
method of systematic analysis would provide a more insightful perspective on what type of
experience the justices gathered in their minimum 18 -years of professional or academic activity
and whether or not they had had any political experience.
Another obje ctive in my research was to start several databases on the Constitutional
Court of Romania and its activity. Statistics are already available on its official website, but
they are typically purely numerical (e.g. number of cases/ number of admitted cases). The
databases I built are more detailed, as I will explain in the second part of this thesis, at each
chapter of empirical analysis. For this chapter, however, I designed a database on the
constitutional judges, including 35 of them – since the Court was founded and until early 2016.
The database accounts for the educational background, professional experience, teaching
experience and political affiliation in the case of each constitutional judge and represents, from
my research, a novelty in the field.
Also from a methodological perspective, with regard to the constitutional judges, it
should be mentioned that I did consider interviewing some of them. I elaborated a semi –
structured interview which focused on the three dimensions analyzed empirically – the
constitutionality control of laws; the legal conflicts of a constitutional nature and the suspension
procedures of the head of state – consisting of 8 such questions. The judges I contacted for this
interview154 were particularly those who had academic exp erience and who, in my opinion,
were more likely to accept my request, since they would have a better grasp on the nature and

154 The judges I contacted for interview were Tudorel Toader, Petre Lăzăroiu, Mona Pivniceru, Mircea Ștefan
Minea.

91 implications of a doctoral thesis. However, only one of those contacted via e -mail replied, Judge
Mircea Ștefan Minea was the only one who kindly agreed to answer my questions. Among the
former constitutional judges, the only one I contacted was professor Ioan Muraru, for more
logistical reasons, as his was the only e -mail address publicly available on the internet.
Nevertheless, giv en their highly subjective nature, I only intended to use the interviews as
complementary explanations, not as sources of analysis and as such, from my perspective, they
were not crucial to the purposes of this thesis.

3.3. SOURCES
Basically, this chapte r uses primary sources such as the provisions on the Constitutional
Court in the Fundamental Law, Law no. 47/1992 on the Organization and Operation of the
Constitutional Court, Law no. 124/2000 on the Structure of the Constitutional Court Personnel
and the Regulations on the Organization and Functioning of the Court, which are all publicly
available on the Court’s website. Other primary sources used throughout this chapter are the
transcripts of the Constituent Assembly debates on the Constitutional Theses and on the
Constitutional Project in 1991. The information used to build the database on the Court’s judges
was taken both from their website presentations (where available) as well as from the only book
which included their brief biographies155.
The secon dary sources employed are quite numerous and vary from the works of
established constitutional professors, such as my supervisor in Law School, prof. Cristian
Ionescu’s treaties, books and articles on constitutional law, to those authored by former
constit utional judges, such as Ioan Vida’s book on the Constitutional Court of Romania .

3.4. STRUCTURE
The first part of this chapter is an analysis on the genesis of the Constitutional Court.
Illustrating the manner in which this institution was envisaged in 1 991 is relevant to the way in
which it continues to be perceived – as a hybrid power, threatening to the legislative and the
executive alike. My argument is that a presentation on the Court’s genesis provides a more
comprehensive account on its role, funct ioning and organization, while at the same time

155 As far as my research allowed me, the respective book was Controlul constituționalității legilor în România –
aspecte istorice și instituționale , written by Mircea Criste and published at Lumina Lex, București, 2002.

92 explaining how the general, European Constitutional Courts model of institutional design came
to be implemented in Romania’s case – and to what extent.
Secondly, a brief overview of its historical backgroun d was also necessary to understand
its development. However, throughout the short constitutional history of our country, such an
institution had never existed. Instead, one of its pivotal prerogatives had been exercised by
various bodies – and perhaps the closest resemblance in history is born by the constitutionality
review performed by the Court of Cassation and Justice in 1923. Thus, it should be emphasized
that the historical analysis is limited only to this dimension of constitutionality review.
The C onstitutional Court’s main features are exposed in the next section. Mainly, these
are the following: its independence from all other public authorities, its role as a guarantor of
the supremacy of the Constitution and its exclusivity on constitutional jur isdiction. These
features are what distinguish it from other public authorities and are particularly relevant to the
theme this thesis approaches, since they illustrate the role of the Constitutional Court in relation
to other public authorities.
A special part and another element of novelty is represented by the fragment on the
Romanian constitutional judges. Although most of the literature on constitutional law and
public institutions typically include a presentation on the judges of the Constitutional Co urt,
they usually do so from a theoretical perspective. One of my objectives in this chapter – and
throughout this entire thesis, in fact – was to combine elements of theory with those of empirical
analysis. For this reason, the empirical analysis in this respect starts from a database of my
design that accounts for all of the 35 judges the Court has had since 1992 until 2015.
Moreover, this chapter continues with an overall review of the Court’s prerogatives and
their respective classification, taking int o account the specificities of each institution of
proceedings, as well as the effects of each pronouncement (decisions, rulings and advisory
opinions).
Then, a brief account of the general procedures involved before, during and after a
hearing at the Cons titutional Court provides a more comprehensive perspective on the Court’s
general activity. In each of the three cases selected for empirical analysis, however, the detailed
specific procedures are explained within each chapter.
Last but not least, this chapter is summed up by a review of the Court’s position among
state powers, emphasizing both its weaknesses and its strengths as a politico -judicial institution.

93
3.5. GENESIS
Characterized by Antonie Iorgovan as “one of the cardinal institutions”156, in Ro mania,
the Constitutional Court was first established in the aftermath of the collapse of the communist
regime. After much controversy and heated debates157, the Constituent Assembly adopted the
constitutional provisions of what they feared would be a “fourt h power in state”158, in spite of
Mihai Ruva’s plea to “repudiate the institution of the Constitutional Council [because] it is an
assault on constitutional democratic principles”159.
I believe that an overview of the Court’s genesis is relevant for a clearer understanding
of the perception Romanian politicians had of this institution which had not existed in the
previous constitutional history of this state. For this purpose, I studied the transcripts of the
Constituent Assembly’s meetings, as they were repro duced in Ioncică Dumitru’s Geneza
Constituției României: 1991: Lucrările Adunării Constituante – namely the transcripts of the
debate from May 14th 1991, published in the Official Gazette of Romania, Part II, No.
18/16.05.1991 (which also included a presen tation of the Report of the Drafting Commission),
transcripts of the debates from May 15th 1991, published in the Official Gazette of Romania,
Part II, No. 19/17.05.1991 and the transcripts of the debate from November 13th 1991, published
in the Official G azette of Romania, Part II, no. 37/15.11.1991. Complementary to these primary
sources, I also used Antonie Iorgovan’s Odiseea elaborării Constituției, which provided useful
insights and additional explanations of the political context at that time, particularly given that
the author was also the President of the Constitutional Commission and had played an
instrumental rol e in the drafting of the 1991 Fundamental Law.
Before proceeding, however, an explanation of the working process of the Constituent
Assembly is in order. Within the 1990 Constituent Assembly, a Constitutional Commission was
formed, as a special body task ed with drafting the Theses. Formed by deputies, senators and
experts, the Commission first drafted and then presented the Theses, after which the Constituent
Assembly debated upon each title, chapter and article. The senators and the deputies proposed

156 Antonie Iorgovan, Odiseea elaborării Constituției , editura Uniunii Vatra Românească, Târgu Mureș, 1998, p.
881.
157 Echim Andrei best summed it up: “it appears that the formula in which this institution is presented to us is not
agreeable” (see Dumitru Ioncică, Geneza Constituției României: 1991: lucrările Adunării Constit uante , Monitorul
Oficial R.A., București, 1998, p. 894).
158 Gheorghe Frunda states that “Far from being a link of control between the legal and legislative powers, the
Constitutional Council we are proposed appears as a fourth power or, if I want to be more exact, as a superpower,
both by structure – 9 members, 3 appointed each by the Chamber of Deputies, the Senate and the President of
Romania – as well as by attributions, mandatory and final decisions […]” in Dumitru Ioncică, p. 856.
159 Dumitru Ioncică, Geneza…op. cit. , p. 860.

94 various amendments to the Theses presented (or even the elimination of some articles and, in
the case of the Constitutional Court, the elimination of the entire title160) and then had two
procedural options: a) to submit their amendments to vote in the Constitu ent Assembly – case
in which, if their proposal was voted by the majority of members, the Constitutional
Commission would have to include it; or b) to submit their proposal to the Commission, for
consideration – case in which the Commission could either ac cept or dismiss it161. After this
phase, the Constitutional Commission would have to elaborate a Constitutional Project, which
would then be debated again, but with fewer amendments or mostly stylistic ones.
It is also important to note that the initial n ame of this institution, as stipulated in the
Theses, was “Constitutional Council”. After several members of the Constituent Assembly
pointed out that other countries which opted for this institution preferred the term
“Constitutional Court”162 or “Constitut ional Tribunal”163, Mircea Ionescu Quintus proposed an
amendment which would modify the name of this institution to “Constitutional Court”164.
During the debates on May 15th 1991 Ioan Deleanu emphasized, nevertheless, that regardless
of the name suggested, the institution remains the same165 and Vasile Gionea claimed that “the
name has little importance”166. For this reason, throughout this section, the terms Constitutional
Council and Constitutional Court will both be used, as they were employed by the speakers in
the Constituent Assembly in 1991 at different times and interchangeably.
The Constitutional Court of Romania appears as an exception from the moment of its
very genesis. Not only was it one of the most highly debated institutions – 22 MPs were adamant
about expressing their views regarding its organization and competences – but even after being
voted during the debates on the Theses, its existence was still challenged in the Constitutional

160 Proposals to eliminate the entire Title on the Constitutional Court were made by Senator Mihai Ruva and
Deputies Vasile Rădulescu, Mihai Carp and Aron Todoroni. This amendment failed to reach majority, receiving
only 90 votes in fav or.
161 More often dismissed such amendments.
162 Hosszu Zoltan.
163 In fact, Ion Deleanu himself mentioned that the Constitutional Commission had taken into account this
possibility, when he first presented the Commission’s report in the opening of the debate s in the Constituent
Assembly on May 14th 1991.
164 Mircea Ionescu Quintus “I propose the Title IV modifies, from ‘Constitutional Council’ to ‘Constitutional
Court’”. (see Dumitru Ioncică, Geneza… op. cit. , p. 872) His amendment was adopted by the Constituent Assembly
with 300 votes in favor. However, befo re voting on the Quintus amendment, they had to vote on the proposals to
suppress and to eliminate the entire chapter – and, therefore, the title.
165 Ioan Deleanu “It has been said here that in some European countries there is another institution, such as the
Constitutional Court or the Constitutional Tribunal, more fit to perform the constitutionality control. We allow
ourselves to say there’s been a slight error. It is the same institution, under different names. The name of the
institution does not matte r”. (see Dumitru Ioncică, Geneza… op. cit. , p. 873).
166 Dumitru Ioncică, Geneza… op. cit. , p. 858.

95 Project167. As Antonie Iorgovan stated, “the allergies to the idea of a special and specialized
body for the constitutionality control of laws, either from the benches of the majority or from
the benches of the opposition, have been typically made known by the same Parliament
members in the phase of the discussion on the Project as well”168. Why was that?
According to Antonie Iorgovan’s account, “there were two sides involved in the debates,
and one of them wanted a return to the 1923 solution of constitutionality review – supported by
Gheorghe Frunda, Mihai Ruva, Mihai Car p, Vasile Rădulescu, Aron Todorni and even Petre
Ninosu”169, who eventually became a judge at the Constitutional Court in 2001. The main
concerns regarded its very politico -judicial nature, as Gheorghe Frunda pictured it, explaining
that “one of the most eff ective tools of the judicial power to control the activity of the legislative
is the constitutionality control of laws”170. The constitutionality control of laws had previously
existed in the constitutional history of Romania, but it had not been performed b y a specialized
body, as the European model supported by Iorgovan’s Commission presented it. Indeed,
throughout the entire debates on the Constitutional Court, its novelty turned out to be also one
of the main arguments against its existence171172173 or the timi ng was considered
inappropriate174. Others proposed that, instead of being presented in the Fundamental Law as a
separate Title, the Constitutional Council should be included in the Title dedicated to Judicial

167 As Antonie Iorgovan explained in his Odiseea elaborării Constituției… op. cit. , p. 655, “In fact, there was a
permanent offensive of the colleagues with a l egal education against the articles in this title. After the institution
had been accepted, somehow, at each chapter, they would resume the amendments discussed and dismissed in the
phase of the Theses, reiterating, first of all, the amendment that had the objective to eliminate the article
altogether”.
168 Antonie Iorgovan, Odiseea elaborării Constituției… op. cit. , p. 619.
169 Idem , pp. 306 -307.
170 Dumitru Ioncică, Geneza… op. cit. , p. 855.
171 Vasile Gionea: “I believe this is a prejudice. We had never had this institution and we appear to be slaves of a
tradition: if we hadn’t had it before, we shouldn’t have it now” (see Dumitru Ioncică, Geneza… op. cit. , p. 858).
172 Mihai Ruva: “Apart from France, there is nowhere in the world such a Constitutional Council, such regulated.
The verification of the constitutionality of laws is m ade, everywhere, either by courts of law or by Constitutional
Tribunals, which are bodies of jurisdiction placed within the juridical power” (see Dumitru Ioncică, Geneza… op.
cit., p. 860).
173 In his only intervention on this theme, Antonie Iorgovan critici zed this attitude: “ Exempli gratia: I will draw
your attention to some dangers, because they actually are dangers. Who is going to pronounce on the causes which
justify the Parliament’s suspension of the President from his office? The Constitutional Court. That is our thinking.
There is the idea that, instead of the Constitutional Court, the Supreme Court of Justice be invested on a segment
of its attributions, because that’s the way it is in America, that’s the way it is in I don’t know what country and, o f
course, the historic argument: it was like that here in 1923! Many things were in 1923 and no longer find their
place today” (see Dumitru Ioncică, Geneza… op. cit. , p. 881).
174 Senator Hosszu Zoltan: “Indeed, this Constitutional Council is a very importan t institution in a rule of law state,
because without a system of constitutionality control of laws we cannot imagine a state to function according to
democratic principles. I have listened carefully to Professor Deleanu’s statement. It has convinced me to a great
extent, but I believe in our current system, in this period of transition in which our democratic institutions are not
yet fitted together, creating a council specialized in the constitutionality control of laws is not the most appropriate
solutio n” (see Dumitru Ioncică, Geneza… op. cit. , p. 857).

96 Authorities, whereas others such as Vasile Rădul escu insisted “on the necessity of the
Legislative Council as a technical body, purely technical, of the Parliament, of the two
Chambers, to verify the manner in which bills were made and, afterwards, after they had been
adopted or during the adoption proc edures, by the highly qualified experts which this
Legislative Council must include”175.
Another argument frequently employed against the Constitutional Court was its position
among state powers, many MPs claiming it is a fourth power176, a superpower177, the o nly power
in state178 or “outside the triangle of the three powers”179 simply because it had a separate title
in the Fundamental Law instead of being included in the chapter on judicial authorities180 or
because the Constitutional Theses failed to explicitly sti pulate what institution was responsible
for controlling it181182.
Thirdly, concerns voiced during the debates of May 1991 painted a grim view of
Parliament’s future, as the Constitutional Council was seen as a potential threat183, which

175 Ioncică Dumitru, Geneza… op. cit. , p. 858.
176 Mihai Ruva: “I only ask the Constituent to meditate on the fact that, by accepting the institution of the
Constitutional Court, we are not doing anything but getting a fourth power in state which nobody controls” (see
Dumitru Ioncică, Geneza… op. cit. , p. 886).
177 Mihai Ruva: “In relation with the principle of separation of powers, this institution appears as something sui
generis . Although it does not pertain to any power in the state, it has attributions which make it not a fourth power,
but a superpower, which nobody controls” (see Dumitru Ioncică, Geneza… op. cit. , p. 860).
178 Dan Lăzărescu: “… I don’t think we can talk about a fourth power in state, which would sit nicely beside the
first three, but the only power in state. It has the tendency, as its attributions are strung in article 144, to draw itself
absolutely all power in state, even to censor the Parliament. Beware!” (see Dumitru Ioncică, Geneza… op . cit., p.
893).
179 Deputy Dumitru Teaci: “…in which of the three acknowledged powers does the suggested Constitutional
Council fall? It would appear it fits the juridical field, but… it exercises a certain power on the juridical field as
well. In this case, it is somehow situated outside the triangle of the three powers, enabling it to exercise an action
of denying or blocking and not an action of proposing solutions” (see Dumitru Ioncică, Geneza… op. cit. , p. 861).
180 Mihai Ruva “What is the Constitutional Council? Which organized power in the state does it belong to? The
Executive – although it controls it – definitely not! The Legislative – although it also verifies it – again, no! The
judicial power – which deprives of traditional attributions – again no, because it is not part of the chapter on the
judicial authority” (see Dumitru Ioncică, Geneza… op. cit. , p. 860).
181 Mihai Ruva “According to the principle of separa tion of power, as it has been throughout time, developed in
the practice of constitutional law, the powers – I repeat – the powers in a state mutually control each other. The
Constitutional Council is not defined as a power in state, it seems only an insti tution of the state, but no text in the
draft says who will control it. Or, this is mainly inadmissible” (see Dumitru Ioncic ă, Geneza… op. cit. , p. 860).
182 Mihai Ruva still insisted on this issue, even after the existence of the Constitutional Court had already been
established by vote in the Constituent Assembly: “Just one question. Who controls the Constitutional Court? And
if you cannot answer this question, I ask for the second time: if there would be an uncontrolled body, why not
place it as a specialized court within the judicial power instead of bringing a fourth power in the state?” (see
Dumitru Ioncică, Geneza… op. cit. , p. 860).
183 Mihai Carp “By the fact that none of the members can be members of Parliament, it is an extra -parliamentary
body. And by its attribution to decide on the constitutionality of laws, after they are promulgated, it is a supra –
parliamentary body. Thus, a group of people can monopolize power in state by the possibility to neutralize the acts
of the legislative at any time, and even those of the executive, without any right to appeal” (see Dumitru Ioncică,
Geneza… op. cit. , p. 865).

97 “allows the interferenc e of the executive”184 and characterized as a super -Parliament185 or a
“discretionary body, which may censor the Parliament with no possibility of control or
contestation”186. Mihai Carp went as far as claiming that “the Constitutional Council makes a
true work of governing and, in addition, indirectly conducts the power and the orientations of
the legislative power, representing a greater obstacle than the justice in applying the voted
laws”187.
Moreover, several aspects regarding the judges at the Constitutiona l Court were also
subjected to debate. Mircea Ionescu Quintus and Marian Enache188 suggested that 3 of the
judges should be appointed by the Supreme Court of Justice, Emil Tocaci believed that 6 of the
judges should be appointed by the Deputies’ Assembly and 3 by the Senate in order to “increase
the probability of objectivity, of a selection […] closer to the ideal”189 – Vasile Gionea
supported this amendment, although for different reasons190. Quite ironically, Vasile Gionea
came to be the first constitutional j udge appointed by the President of Romania in 1992, Ion
Iliescu. Even if the Theses advanced the idea that two thirds of the Court’s justices would be
appointed by Parliament, Mihai Carp appreciated this provision was insufficient, given that a
judge’s man date is longer than that of a MP191. The 15 years of experience advanced by the

184 Ion Predescu “Also […] this institution allows the interference of the executive in the affairs of the judicial, and
it does so also by the manner of notifying this Council and by the manner this instit ution is composed, taking into
account the two powers have not only the duty, but the quality to interfere in the attributions of the third power,
which is the judicial power” (see Dumitru Ioncică, Geneza… op. cit. , p. 868).
185 Dumitru Teaci “I wonder if th is Constitutional Council is not a sort of a super -Parliament, but only with the
power to deny and not with the power to promote” (see Dumitru Ioncică, Geneza… op. cit. , p. 861).
186 Mihai Carp, who also warned that “the problem of the Constitutional Council must particularly attract out
attention, regardless of the formation or the parliamentary group we are part of because it essentially concerns the
very democratic functioning of the state power” (see Dumitru Ioncică, Geneza… op. cit. , p. 864).
187 Dumitru I oncică, Geneza… op. cit. , p. 866.
188 Marian Enache “…we suggest that three members are appointed by Parliament, in a joint meeting of the two
Chambers, three by the President of Romania and three by the Supreme Court of Justice. Motivation: we consider
the judicial solution, since the Constitutional Council must be conceived as a body between powers and so as to
maintain the balance and cooperation of powers. The make -up of the Council must be made by persons assigned
by the three powers, so as to grant it n eutrality and impartiality. If the members of the Council will be designated
only by the Parliament and the executive power, the Council could be considered of those. The make -up of the
Council with members designated by the Supreme Court would highlight t he professionalism of the body, by
combining theoretician specialists of high authority with practicians from within the judicial power” (see Dumitru
Ioncică, Geneza… op. cit. , p. 862).
189 Dumitru Ioncică, Geneza… op. cit. , p. 871.
190 Vasile Gionea “…the P resident of the country should not appoint any members. Why? Because the
Constitutional Council has, in its competency, among others, not only the verification of the procedure of the
President’s election, but it has also been entrusted with the prerogativ e to advise on the suspension of the President,
in the event he would breach the Constitution or commit acts which would render him unworthy of the office of
President. […] Thus, if he appoints part of the members – a third – he will obviously have them by his side for
always, as they will be grateful he appointed them to this high magistracy” (see Dumitru Ioncică, Geneza… op.
cit., p. 859).
191 “The circumstance that the legislative appoints 6 of the 9 members does nothing to attenuate Parliament’s
subordi nation to this body, because the duration of the Council members’ mandate is longer than the duration of
the Parliament’s mandate. The MPs and the President’s mandate, based on the Theses, will be of 4 years and the

98 Theses were changed, following the amendments in the Assembly, for 18 years of experience
and the 9 years length of the judges’ mandate was also harshly criticized192. Last but not least,
another proposal in this matter was the amendment formulated by Rene Radu Policrat, which
“forbade the rotation of a third [of the judges] from three to three years and proposed the
changing of the entire team of 9 judges at the fulfillment of the nine year term, solution which
would not allow for a continuity in the Court’s activity which, in time, would have led to a very
different practice from a team to another, with serious implications on the constitutional
stability and the evolution of the c onstitutional democracy”193.
The Court’s competences were also highly debated194 and eventually failed to reach
quorum195, so were sent back to the Commission. Statistically speaking, only in respect to the
article on the Court’s competences, “no less than 13 amendments were submitted to vote, the
theses being approved, eventually, with 263 votes in favor (just 8 above the minimum threshold
of admission), 31 votes against and 13 abstentions”196. To many members of the Constituent
Assembly, it seemed that the Cou rt had far too many prerogatives – and those on the
constitutionality control were most particularly problematic. In this regard, Gheorghe Frunda
suggested that a specialized parliamentary commission could exercise the abstract
constitutionality control197. Illustrative in this matter, still, remains the Dedu amendment,
according to which the Parliament could overthrow a decision of unconstitutionality as ruled
by the Constitutional Council, by a two thirds majority. Antonie Iorgovan characterized this
initia tive an “atypical Constitutional revision”198.

Constitutional Council is appointed for 9 years. So, in two legislatures, the Parliament and the President of
Romania are submitted to the decisions of a body appointed by others before them” (see Dumitru Ioncică,
Geneza… op. cit. , p. 865).
192 Emil Tocaci: “The 9 years duration is too large and, as a consequence, the possibility of an unfavorable
modification of some of the components of the council appears. More straightforward and Romanianly put, it may
happen to coopt older people who, in 9 years, will be too old” (see Dumitru Ioncică, p. Genez a… op. cit. , 871).
193 Antonie Iorgovan, Odiseea elaborării Constituției… op. cit. , p. 326.
194 Alexandru Bârlădeanu: “… the Commission is constrained. It has the theses, first of all, once voted by us, which
provide for the establishment of this Constitutio nal Court. Secondly, it has the decisions we made today, when we
approved both the title and its establishment. It’s about article 143, in which its attributions are determined” (see
Dumitru Ioncică, Geneza… op. cit. , p. 894).
195 227 votes in favor and 50 a gainst.
196 Antonie Iorgovan, Odiseea elaborării Constituției… op. cit. , p. 310.
197 Gheorghe Frunda “In what regards the a priori , abstract, if you will, control, it can be made, I believe, by a
specialized Commission of each Chamber, or by the Judicial Commi ssion of those. This Commission, which we
could even call Constitutional Commission , would have as main attribution the verification of the constitutionality
of laws, but could also have secondary attributions, such as, for example, the legislative correla tion of various
bills” (see Dumitru Ioncică, Geneza… op. cit. , p. 856).
198 Antonie Iorgovan, Odiseea elaborării Constituției… op. cit. , p. 625.

99 Additionally, the generally binding and final character of the Court’s decisions was
frowned upon by Parliament Members199200 and perceived as a source of power greater than all
others in state201. To their view, the Parliament should have the last word on matters of
constitutionality control202, even if, as Marian Enache pointed out, “the inexistence of a
constitutional control would transform the legislating body in part and judge at the same
time”203. Others argued in favor of a diffused model of constitutionality control, as provided by
the 1923 Constitution, when the High Court of Cassation and Justice, in reunited section,
pronounced on the constitutionality of laws regarding specific judiciary cases204. Of course, the
abstract constitutionality review of laws before promulgation was perceived as especially
dangerous, in the words of Gheorghe Frunda “if we accept the anterior, aprioric intervention
of the Constitutional Court, it means we are judicializing the political , which is just as
dangerous as politicizing the judicial”205. But, once again, Ioan Deleanu’s speech explained the
Commission’s point of view:
“It could also be – and I find it necessary – that this Constitutional
Council falls within the system of jurisdi ctional authority, so as to eliminate
any suspicion on the fact that we would create a category of extra bodies or
create a body above all others. It is conceived as a body among powers, a
bridge between these powers, in terms of the constitutionality cont rol, made
by the three powers and under their control. At any rate, I believe you will
eventually have to opt for a system of constitutionality control. When
discussing the chapter on judicial authority you repudiated, by your vote, the
amendments proposed in order to acknowledge the courts the right of
constitutionality control. By elimination, we have no other solution but to
institutionalize such a mechanism, regardless of its name. I find it – not only
me, but the members of the Commission – that your f ear that such a body
might act voluntaristic, arbitrary in evaluating the constitutionality of a law

199 Stelian Dedu: “…the Constitutional Court, as the Commission formulated it, in its prerogatives, has powers
greater than the Parliament, since its decisions are final in all cases and mandatory” (see Dumitru Ioncică,
Geneza… op. cit. , p. 888).
200 Nicolae Simescu “They couldn’t convince the Constituent Assembly of the necessity of a supreme forum, not
subjected to any control and with absolute, unassailable decisions” (see Dumitru Ioncică, Geneza… op. cit. , p.
891).
201 Adrian Nicoară “It seems to me that article 144 comes to put a lid on everything that has been said up to this
point about this institution. I mean, i t is given a power above all other powers in state, to this Constitutional
Council, which has the capacity to dispose on an entire series of issues in an absolute manner. It is said that the
decisions of this institution are final. Without, thus, any contr ol. I find it is an exaggeration which should not
appear in any of our laws” (see Dumitru Ioncică, Geneza… op. cit. , p. 890).
202 Andrei Echim: “I believe the last word should remain with the Parliament” (see Dumitru Ioncică, Geneza… op.
cit., p. 861).
203 Dum itru Ioncică, Geneza… op. cit. , p. 862.
204 In Mihai Carp’s opinion “the reasoning for such an organization – and at the same time, its advantage – is first
of all, that a Court does not issue decisions with a generally binding character which render any law declared
unconstitutional inapplicable in other cases and areas. It does not, thus, create a censorship of the Parliament,
justice limits only to the exercise of its specific attributions, within the limits of the power it represents” (see
Dumitru Ioncică , Geneza… op. cit. , p. 865).
205 Dumitru Ioncică, Geneza… op. cit. , p. 892.

100 would be more justified if the right to control would pertain to the Supreme
Court of Justice or, even more seriously, to all courts. That because the
decisions of the judicial authorities have the authority of the res judicata and
even if they are wrong, they cannot be changed, they cannot be withdrawn
and secondly, because the judges are independent and irremovable as long as
they live”206.
Eventually, Ovid iu Gherman pointed out that both Mihai Ruva and Adrian Nicoară were
trying to eliminate the institution of the Constitutional Court, given their amendments to
eliminate 3 of the 6 articles in the Constitution dealing with it. He emphasized that the institu tion
had already been voted and approved by the Constituent Assembly and they could not attempt
to eliminate the entire Title V on which the Assembly had already decided207. After this,
Alexandru Bârlădeanu and Antonie Iorgovan208 often invoked the Regulation of the Constituent
Assembly and dismissed all further amendments made by Nicoară and Ruva, using Gherman’s
argument, according to which any attempts to eliminate the institution of the Constitutional
Court were futile since the Constituent had already vote d in favor of its existence.
Finally, another controversy regarding the Constitutional Council and quite speculated
was that according to which the members of the Constitutional Commission had only advanced
and supported this institution for their own in terest, hoping to become constitutional judges
themselves. Ioan Deleanu, who also presented the Commission’s report on the Constitutional
Court, was the first to address this issue, admitting that “in today’s newspapers, and perhaps
among you, the idea tha t we are keen on establishing such an institution so that we, the ones
from the Constitutional Commission, to create a sinecure, to ensure some future positions, as
one of today’s newspapers stated, calling ourselves the ‘Wisemen Council’”209. Antonie
Iorgov an also admitted this210 and further explained in his Odiseea elaborării Constituției that

206 Dumitru Ioncică, Geneza… op. cit. , p. 873.
207 When confronted, however, senator Adrian Nicoară admitted that he has “been against this institution and it is
normal that all the oth er articles about this institution are eliminated. For this reason I have asked for the elimination
of the articles deriving from the acceptance of this institution, time and again. [but pointed out that] Senator
Gherman is outside the issue” (see Dumitru Ioncică, Geneza… op. cit. , p. 888).
208 At this point, Antonie Iorgovan had a very passionate intervention claiming that “We have here a reaction: we
just don’t want the institution. And if we don’t want the institution, we don’t want anything! So, wherever possible,
from the articles on this institution, let’s find a breach to do something – a schwaizer! This cannot be! This
institution is harmonious. We either accept it as a whole, or we cannonball it, good people! Please believe me that
we cannot work in t his conditions. It is impossible to find a solution for this decision you adopted! […] If we
accept this institution, please, we either accept it or we don’t. But we cannot mutilate it!” (see D umitru Ioncică,
Geneza… op. cit. , p. 891).
209 Dumitru Ioncică, Geneza… op. cit. , p. 873.
210 And proposed an amendment “that none of the current members of the Constitutional Commission be part of
this Constitutional Court” which was met with applauses. Maria n Enache, however, who was also a member of
the Constitutional Commission and who has just been appointed judge at the Constitutional Court quickly argued
that “such an amendment is an offense incompatible with the people who worked on this Constitution dr aft and
their quality” (see Dumitru Ioncică, Geneza… op. cit. , p. 885).

101 the idea of the amendment according to which the members of the Constitutional Commission
would not become judges at the Constitutional Court was an attempt of sabotage carried out by
the President of the Supreme Court of Justice211 and explained why he eventually accepted the
office of constitutional judge nonetheless212. Iorgovan’s case aside, however, a simple analysis
of the former constitutional judges shows that many of them have been members of the
Constitutional Comm ission213, Marian Enache being the most recent example in 2016.
Taking everything into account, the institution of the Constitutional Court was one of
the most debated during the days of the Constitutional Assembly. The main reasons, in my
opinion, are the following: a) the high -stakes represented by the powers it possesses; b) the
position it holds in relation to the executive, legislative and judicial powers in the state; c) its
role in safeguarding and preserving the principle of separation and balance o f powers and last
but not least d) the particular and political interests of the members of the Constituent Assembly.
Nonetheless, in spite of the latter, the final form under which the Constitutional Court was
established turned out to be functional, at t he very least, improved by the organic laws regarding
its functioning and organization, and throughout the years of its activity and jurisprudence,
subsequently amended at the Constitutional revision of 2003.

3.6. HISTORICAL OVERVIEW
The historical acco unt of the Constitutional Court of Romania is brief, given that this
institution did not even exist before 1991. However, most constitutionalists examine it from the
perspective of the constitutionality control of laws, which is one of the most fundamental and
originary powers of the Court. Consequently, this section also focuses on the historical
overview of the constitutionality review of laws, but mainly from an institutional perspective.
A more detailed of the constitutionality control of laws itself wi ll be included in the first chapter
of empirical analysis in the second part of this thesis.

211 “The President of the Supreme Court of Justice at that time had made the destruction of the Constitutional Court
a matter of personal pride” and for this purpose “he sent an amendmen t, as an official document, by which he
demanded that the first Constitutional Court would not be comprised of any of the members of the Constitutional
Commission” (see Antonie Iorgovan, Odiseea elaborării Constituției… op. cit. , p. 656).
212 “I declared I would not accept any position at the future Court, and the statement was honest; I reconsidered
my position in May 1992, not because I wanted the office of a judge, but because Ion Iliescu wanted me, in the
idea, as passed on by Mr. Bârlădeanu, that it was in the country’s best interest” (see Antonie Iorgovan, Odiseea
elaborării Constituției… op. cit. , p. 656).
213 Vasile Gionea, Antonie Iorgovan, Mihai Constantinescu, Ioan Deleanu, Ioan Muraru, Florin Bucur Vasilescu,
Nicolae Popa, Petre Ninosu, Ioan Vida an d Ion Predescu.

102 The extent to which an actual constitutionality control of laws existed in Romania is
debated among constitutionalists. Generally, it is argued to have emerged i n mid XIX century,
when article 32 of the Convention on the Permanent Reorganization of the Danubian
Principalities of Moldova and Wallachia established a Central Commission, responsible of
deciding whether or not the laws submitted before it were in accor dance with the constitutive
dispositions in the Convention214. Others, such as Claudia Gilia, argue it started with the
Developing Status of the Paris Convention, in which article 12 stipulated that “the constitutional
dispositions of a new organization of R omania are under the watch of the Moderating
Body215”216. She further explains that this body was “actually, the higher Chamber of
Parliament”217, but notes that “the Constitution of 1866 did not sanction this constitutionality
control, particularly since it had never been put into practice”218.
Nevertheless, the first case of constitutionality control in Romania is clearly highlighted
in literature and pinpointed as the 1912 Tram Society Trial. Although not provided by
Constitution at that time, “for the first ti me in Romania’s history, a court admitted an
unconstitutionality exception and decided, in principle, that a tribunal may pronounce on the
constitutionality of a law”219. Although theoretically, until the 1923 Constitution , all courts of
law, regardless of t heir rank, could perform the constitutionality review of laws, “after 1912,
the exercise of the constitutionality control of laws was rather low in practice”220.
In Europe, the beginning of the XX century was marked by Hans Kelsen’s theory and
the emergence of the Austrian Constitutional Court, which prefigured the centered
constitutionality control. The 1923 Constitution of Romania, too, adopted this pattern and
acknowledge the Court of Cassation, in united sections, the exclusive power of constitutionality
review221. This system of judicial constitutionality control, albeit somewhat centered, was
preserved by article 75 paragraph (1) of the 1938 Constitution.

214 See Marieta Safta, Drept constituțional și instituții politice. Vol. I. Teoria generală a dreptului constituțional.
Drepturi și libertăți, second edition, Hamangiu, Bucharest, 2015.
215 Translated from Romanian, original version “Corp Ponde rator”.
216 Claudia Gilia, Manual de drept constituțional și instituții politice: sistemul constituțional românesc , Hamangiu,
Bucharest, 2010, p. 245.
217 Ibidem.
218 Ibidem .
219 Claudia Gilia, Manual de drept constituțional… op. cit. , p. 246. In this case, the court was the Ilfov Tribunal,
II Commercial Section.
220 Marieta Safta, Drept constituțional… op. cit. , p. 112.
221 According to article 103 paragraph (1) “Only the Court of Cassation, in united sections, is entitled to judge the
constitutionality of laws and to declare those which are contrary to the Constitution inapplicable”.

103 However, the communist regime and the party -state could not allow any control over its
actions and d ecisions and as such, the April 13th 1948 Constitution did not contain any
provisions on constitutionality control222. For the sake of appearances, the constitutionality
control of laws was resumed in a different form by the 1952 Constitution223 and the 1965
Constitution224 which opted for a political control which would be performed by the Great
National Assembly. Furthermore, Law no. 1/1969 stipulated that a Constitutional and Legal
Commission would be responsible for issuing reports and notices on the constitu tionality of
laws.
Lastly, as shown in the previous section, the Constitutional Court of Romania and the
Kelsian system of constitutionality review were established by the 1991 Constitution of
Romania and further enhanced with the 2003 revised Fundamental Law in what Ioan Vida
considered to be “the result of the capitalization on a decade of activity at the Constitutional
Court seeking to enhance its efficiency, as guarantor of the supremacy of the Constitution”225.

3.7. FEATURES
As sole court of constitut ional jurisdiction, the Constitutional Court of Romania is
distinguished by several particular characteristics, which derive both from the Constitution and
from Law no. 47/1992 on the Organization and Operation of the Constitutional Court and which
emphasi ze its politico -judicial nature226. Marieta Safta argues that these features, which may be
drawn from the role of the Court itself are “to guarantee the supremacy of the Constitution, to
support the well -functioning of public powers within the constitutional relations of separation,
balance, collaboration and mutual control, simultaneously with the effective judicial protection
of the citizens’ fundamental rights and freedoms”227. Professors of Constitutional Law Ioan

222 Article 44 paragraph (3) of the 1948 Constitution of Romania provided that the Presidium of the Great National
Assembly “interprets the laws voted by the Great National Assembly of t he Romanian Popular Republic” and
article 72 paragraphs (5) and (6) enabled it to nullify those acts of the Council of Ministers which were not in
accordance with the Constitution.
223 According to article 24 letter j), one of the powers granted to the Grea t National Assembly was that of “the
general control on the application of the Constitution”.
224 Article 53, which was amended in 1969 and in 1975, allowing the permanent parliamentary constitutional
commission to perform the constitutionality control at t he request of the Great National Assembly Bureau or the
State Council, the Ministers Council, the Supreme Tribunal and the General District Attorney of the Republic.
225 Ioan Vida, Curtea Constituțională a României… op. cit. , p. 153.
226 For example, see Ioan Stanomir, În jurul Constituției. Practică politică și arhitectură legală , editura
Universității din București, 2006, p. 107: “By its very nature, the Constitutional Court is a bod y whose legitimacy
is born politically and whose relation with politics is originary consecrated”.
227 Marieta Safta, Drept constituțional… op. cit. , p. 99.

104 Muraru and Elena Simina Tănăsescu228 also ide ntified several features of the Court, namely: its
exclusivity as constitutional jurisdictional authority in Romania, its role as guarantor of the
supremacy of the Constitution and its independence from any other public authorities.
The first one and most important of which being its role as guarantor of the supremacy
of the Constitution229. This sets out the main features as well as the main role of the Court – not
only does the supremacy of the Constitution entail the constitutional control of laws230, but it
also involves the Court in ensuring and preserving the separation and balance of powers
(illustrative in this respect being its powers to solve the legal conflicts of a constitutional nature
between public authorities, as well as to issue advisory opinion s on the suspension from office
of the head of state or to ascertain the objective circumstance which may justify the interim in
the office of President). The fact that the Constitutional Court is the guarantor of the supremacy
of the Constitution position s it in a special relation with the executive and the legislative in
particular.
Secondly, the Constitutional Court is independent from all other public authorities, as it
is “subjected only to the Constitution and to the laws on its organization and func tioning”231.
This essential feature confirms the judges’ neutrality and independence, in spite of the manner
in which they enter into office232. At the same time, it entails that neither the legislative nor the
executive may influence or control the activity o f the Court. The Court’s independence is also
crucial for the very exercise of its prerogatives – otherwise how could an institution subjected
to parliamentary control decide upon the constitutionality of laws in an objective manner? Or
an institution subj ected to executive control decide on the suspension from office of the
President of Romania?
Finally, the Constitutional Court of Romania has exclusivity as body of constitutional
jurisdiction. Following the European model of centralized constitutionalit y control, the
Constituent Assembly eventually opted in 1991 for a unique, special and specialized body233,

228 Ioan Muraru, Elena Simina Tănăsescu, Drept constituțional… op cit., vol. II, 2013.
229 Article 142 p aragraph (1) of the Constitution and article 1 paragraph (1) of Law no. 47/1992.
230 Luminița Dragne, Drept constituțional și instituții politice , Universul Juridic, București, 2009, pp. 40 -41,
explained that “so as to ensure the supremacy of the Constitutio n, the constitutionality control of laws was created,
as a control which is within the exclusive competence of the Constitutional Court of Romania”
231 Cristian Ionescu, Drept constituțional și instituții politice: curs sinteză , Hamangiu, Bucharest, 2012, p. 328.
232 As Professor Cristian Ionescu noted on page 329 of the book previously mentioned: “the fact that the judges of
the Court are appointed by the legislative and the executive power (the President of Romania) does not create a
subordination report of t he Court to those [authorities]”.
233 Mihai Constantinescu, Ioan Deleanu, Antonie Iorgovan, Ioan Muraru, Florin Vasilescu, Ioan Vida, Constituția
României, comentată și adnotată , Regia Autonomă „Monitorul Oficial”, București, 1992, p. 303 “the
Constitutional Court of Romania is a politico -judicial body, special and specialized to ensure – by means of

105 instead of allowing ordinary courts of law, the Supreme Court at that time or other special
commissions within Parliament to perform constitutionality review. The 2003 revision of the
Fundamental Law furthered this exclusivity by eliminating the initial provisions according to
which the Parliament could, by a two thirds majority of votes, overturn the Court’s decisions
on unconstitutionality of laws.

3.8. JUDGES
The nine judges of the Constitutional Court of Romania are, according to article 142
paragraph (2) of the Fundamental Law, appointed for a nine year term of office. The public
authorities involved in their appointment are the President of Romani a and the two Parliament
Chambers, distinctively: the Senate and the Chamber of Deputies, each of which appoint 3 of
the judges.
This section of the chapter on the Constitutional Court of Romania is dedicated not only
to a theoretical overview of the pri mary and secondary sources on the constitutional judges, but
also to an empirical analysis. As such, gathering the information available on the Court’s
website, as well as using the brief biographies provided by Mircea Criste234, I have first
constructed a d atabase on the constitutional justices, from 1992 until 2016, taking into account
the following: a) name and surname; b) the public authority which appointed the respective
judge; c) education (in terms both of level and institution); d) professional backg round relevant
for this position (I distinguished between lawyers, judges and prosecutors); e) teaching
experience (particularly since 18 years of teaching experience are considered to be sufficient,
even if the respective candidate lacks any professional activity); f) political activity (party
membership, Parliament member, Cabinet member, Mayor, member of Local Councils) and g)
other activities (referring mostly to publications and research activity, which I considered
pertinent in view of the professiona l prestige in the academic field a constitutional judge might
have). In addition, wherever possible, the timeframe during which each activity took place was
mentioned, including the years of their term. My analysis ends before the 2016 July nominations
of Marian Enache, Livia -Doina Stanciu and Varga Attila and therefore takes into account the
35 constitutional justices the Court had had up to that point, namely: Vasile Gionea, Ion
Filipescu, Fazakas Miklos, Antonie Iorgovan, Viorel -Mihai Ciobanu, Mihai Cons tantinescu,

constitutionality control – the supre macy of the Constitution in the normative judicial system, as well as to fulfill
other powers expressly granted to it by the Fundamental Law”.
234 See Mircea Criste, Controlul constituționalității legilor în România… op. cit. , 2002.

106 Victor -Dan Zlătescu, Ioan Deleanu, Ioan Muraru, Florin Bucur Vasilescu, Romul Petru Vonica,
Lucian Mihai, Nicolae Popa, Costică Bulai, Lucian Stângu, Constantin Doldur, Kozsokar
Gabor, Șerban Viorel Stănoiu, Petre Ninosu, Ioan Vida, Nicolae Cio chinescu, Aspazia
Cojocarui, Acsinte Gaspar, Ion Predescu, Iulia Antoanella Motoc, Toni Greblă, Augustin
Zegrean, Petre Lăzăroiu, Mircea Ștefan Minea, Puskas Valentin Zoltan, Tudorel Toader, Valer
Dorneanu, Marius Morar, Mona Maria Pivniceru and Simona May a Teodoroiu.
Before proceeding with the empirical analysis, however, several theoretical
explanations on the term of office, status, obligations, as well as qualifications for appointment
and dismissal are pertinent for a better understanding of the pers onnel dimension.
Perhaps most importantly in what regards the composition of the Constitutional Court
of Romania is that it “shall, every 3 years, be renewed with one third of its judges, according to
the Court’s organic law”235. Thus, in the early years of this institution, its judges were appointed
for different terms: 3, 6 and 9 years, respectively, which constitutionalists Ioan Muraru and
Simina Tănăsescu claimed that “allows for a combination of both experience and continuity
with new tendencies”236.This implies that, in the first years of its activity, not all judges at the
Constitutional Court benefited from the 9 years mandate and that their terms were not equal.
Nevertheless, in order to preserve the equality and balance237 in terms of the public authori ties
involved in their appointment procedures, it was established that the President of Romania, the
President of the Chamber of Deputies and the President of the Senate should appoint a judge
for a 3 years mandate, one for 6 years and on for 9 years, resp ectively, each. By comparison
with the European model of constitutional jurisdiction analyzed in the previous chapter,
Romania has a mixed system of appointing the constitutional judges: 3 of them are nominated
and appointed by the head of state, whereas 6 are nominated and elected by vote of Senate and
Chamber of Deputies238, respectively. Former President of the Constitutional Court of
Romania , Ioan Vida, revealed that “both the media and the literature have criticized this system,
especially after 2004, wh en a center -right coalition came to power with only 2 representatives
in the Constitutional Court, the others being appointed or elected by the previous center -left
governments”239.

235 Article 142 paragraph ( 5), Constitution of Romania 2003, available in English at https://www.ccr.ro/constitutia –
romaniei -2003 [accessed on 23.03.2013].
236 Ioan Muraru, Elena Simina Tănăsescu, Drept constituțional… op ci t., p. 269.
237 Ioan Vida, Curtea Constituțională a României… op. cit. , p. 47 considered it “balanced the political
configuration of the Constitutional Court”.
238 With the support of a parliamentary majority group.
239 Ioan Vida, Curtea Constituțională a Român iei… op. cit. , p. 47

107 In order to be nominated, the constitutional judges “must have graduated in law, must
have high professional competence, and at least eighteen years’ experience in judicial or
academic activities in law”240. Ioan Vida related that, in 2005, “in a legislative proposal signed
by the representatives of the National Liberal parliamenta ry group from the Chamber of
Deputies it was asked, no more and no less, that the judges of the Constitutional Court should
originate, exclusively, from the ranks of the judges with at least 12 years of experience in
magistracy”241. Professor Cristian Ionesc u observed, nevertheless, that “following through
precisely with those conditions [for appointing the constitutional justices] remains up to the
public authorities who have the constitutional right to appoint the 9 judges. They are minimal
conditions evalu ated according to some internal procedures established in this regard. It is
important to underline that mentioning those respective conditions in the very text of the
Constitution is a minimal measure meant to soften the subjective perception according to which
the 9 judges are selected on political grounds”242.
The law on the organization and functioning of the Constitutional Court of Romania
also stipulates that, once appointed, the office of constitutional judge is “incompatible with any
other public or private office, except that of academic professorial activity in law”243. Such a
regulation possesses a dual purpose: a) on the one hand, it strengthens the autonomy and
independence of the judges, as they will not tend to favor, in any way, the institutions at which
they hold office (be they public or private); and b) on the other hand, it highlights the
responsibility inherent of the office of constitutional judge, which implies a full -time
commitment of the holder which would not be possible if he/she is o therwise engaged
professionally. Also, as soon as their mandate terminates, they “have the right to resume the
position previously held, provided their appointment to the Constitutional Court was made on
condition of its reservation”244. Also, “in the event the judge held a magistrate office, the
reservation of the office is obligatory”245.
On this note, article 62 of Law 47/1992 further conditions that “the appointment of the
judges under the conditions of the present law can be made only with the previous ag reement

240 Article 61 paragraph (3) of Law no. 47/1992 also available in English at https://www.ccr.ro/Legea -nr-471992
[accessed on 23.03.2013].
241 Ioan Vida, Curtea Constituțională a României… op. cit. , pp. 48 -49.
242 Cristian Ionescu, Drept constituțional și instituții politice: curs sinteză… op. cit., p. 330.
243 Article 61 paragraph (4) of Law no. 47/1992 also available in English at https://www.c cr.ro/Legea -nr-471992
[accessed on 23.03.2013].
244 Article 69 paragraph (1) of Law no. 47/1992 also available in English at https://www.ccr.ro/Legea -nr-471992
[accessed on 23.03.2013].
245 Article 69 paragra ph (2) of Law no. 47/1992 also available in English at https://www.ccr.ro/Legea -nr-471992
[accessed on 23.03.2013].

108 of the candidate, expressed in writing. In case the candidate holds an office incompatible with
that of judge at the Constitutional Court, or he is a member of a political party, the agreement
shall necessarily include the candidate’s engagement to resign from that office or from the
political party whose member he or she is, on the day of the appointment”246. Thus,
constitutional judges may have political affiliations prior to their appointment, as long as they
cease them on the day they commence the ir term of office247 – and, as practice has shown since
the Court’s establishment in 1992, many judges have been either senators, deputies, mayors,
secretary generals or even Ministers of Justice. In my opinion, non -affiliation to any political
party or fact ion should actually be a pre -condition for being nominated as a constitutional judge.
Mainly, because a judge at this institution is considered a constitutional arbiter between public
authorities – and any sort of political past will affect his/her credibi lity, as recent practice has
proven, particularly during the procedures for the suspension of the head of state in 2011. At
the same time, the very manner in which the constitutional judges are nominated for office
renders them susceptible of a certain pol itical affiliation: nominated by different political parties
or factions, they need the support and the vote of the majority of the deputies and the senators,
whereas the 3 judges nominated by the President need to be acknowledged and supported by
him. Fro m this perspective, it is obvious that a MP or at least a party member will have more
chances to be nominated for office at the Constitutional Court of Romania .
The nine judges of the Constitutional Court of Romania are independent and
irremovable from the ir office during the exercise of their mandate. Also, according to article 61
paragraph (2) of Law no. 47/1992, they “cannot be held legally responsible for their opinions
and for the votes cast in rendering the decisions”248. These first provisions on the s tatus of the
constitutional judges are particularly significant as they safeguard the independence of the
judges, given the political nature of the cases it is called upon. Hence, the judges may
objectively vote in accordance with their knowledge and perso nal opinion without fearing they
will be dismissed from office by those who had appointed them.
The justices of the Constitutional Court of Romania have the numerous obligations: “a)
to perform their function unbiasedly and in abidance by the Constitutio n; b) to keep the secret
of their deliberations and of the votes, and not to take a public stand, or to give legal opinion in

246 Article 62 of Law no. 47/1992 also available in English at https://www.ccr.ro/Legea -nr-471992 [accessed on
23.03.2013].
247 Ioan Vida, Curtea Constituțională a României… op. cit. , p. 45 further explained that “in addition, they are
obliged that, in the activity they will exercise in this quali ty, not to use the ideas, doctrine or interests of the party
which promoted them”.
248Law no. 47/1992 also available in English at https://www.ccr.ro/Legea -nr-471992 [accessed on 23.03.2013].

109 matters within the competence of the Constitutional Court; c) to express their affirmative or
negative vote in adopting the acts o f the Constitutional Court, abstention from voting not being
permitted; d) to impart to the President of the Constitutional Court any activity which might
entail incompatibility with the mandate exercised; e) to preclude the use of the office performed
for purposes of trade publicity or propaganda of any kind whatsoever; and f) to abstain from
any activity or manifestation contrary to the independence or dignity of their office”249.
Finally, the conditions under which the mandate of the constitutional judges ceases,
according to paragraph (1) of article 67 are the following: “a) expiration of the term of
appointment, or in case of resignation, disfranchisement, exclusion de jure , or of demise; b) in
situations of incompatibility, or of impossibility of exerci sing the office of judge for a period
which is longer than six months; and c) in case of infringement of the provisions of article 16
paragraph (3)250 or of article 40 paragraph (3)251 of the Constitution, republished, or of severe
infringement of the obligati ons under article 64”252. Then, in case the term of office ceases due
to natural causes, the only authority enabled to acknowledge the cessation of a constitutional
judge’s terms is the President of the Constitutional Court, whereas the plenum of the Court –
by the vote of its majority – is required to acknowledge the cessation stipulated by letters b)
and c) of article 67. For instance, according to the Court’s website, the judges who resigned
were: Antonie Iorgovan (in 1996), Ioan Deleanu (also in 1996, sho rtly after his appointme nt by
the President of Romania, Ion Iliescu, in 1995), Lucian Mihai Stângu (in 2001), Constantin
Doldur (in 2006), Iulia Antoanella Motoc (in 2013) and Toni Greblă (in 2015). Most of them
invoked personal reasons and did not comment much on their decisions to resign. In the case
of Judge Iulia Antoanella Motoc, she was appointed Judge at the European Court of Human
Rights. In the most recent case, Judge Toni Greblă was investigated for charges of corruption
and bribery, which even though he denied, are stil l currently undergoing.
The President of the Court also notifies the President of Romania, the President of the
Chamber of Deputies or the President of the Senate, respectively, when the mandate of a judge
is about to expire. Along with this notification, the President of the Constitutional Court of

249 Article 64 o f Law no. 47/1992 also available in English at https://www.ccr.ro/Legea -nr-471992 [accessed on
23.03.2013].
250 “Public functions or dignitary positions, whether civil or military, may be held in accordance with the law by
persons who are Romanian citizens and have their domicile within the national territory. The Romanian State
guarantees equal opportunities for men and women in order to accede to such functions and dignitary positions”.
251 “Judges of the Co nstitutional Court, the advocates of the people, magistrates, active members of the Armed
Forces, policemen and other categories of civil servants as determined by organic law, are forbidden to join
political parties”.
252 See Law no. 47/1992 also available in English at https://www.ccr.ro/Legea -nr-471992 [accessed on
23.03.2013].

110 Romania also asks for a new judge to be appointed. This procedure begins three months before
the expiration of a judge’s mandate and the new judge is appointed “at least one month before
the cessation of the man date of the preceding judge”253. Exceptionally, however, if a judge’s
mandate ends more than six months before the expiration of the term for which he or she had
been appointed, the President of the Constitutional Court notifies the public authority which
had appointed the respective judge “within three days at the most from the date of cessation of
the mandate, in order to appoint a new judge. The mandate of the judge thus appointed shall
cease at the expiration of the mandate of the judge replaced”254. As the brief history of this
institution has shown, there were cases when the period for which a new constitutional judge
has been appointed following the unexpected termination of another judge’s term was shorter
than three years – an example being that of judg e Tudorel Toader – case in which “the respective
judge can be appointed for a full mandate of nine years at renewal of the Constitutional
Court”255. This is an exception to the provisions of the Fundamental Law, article 142 paragraph
(2) according to which t he term of 9 years “cannot be prolonged or renewed”256.

3.8.A. AGE DISTRIBUTION
Often characterized as a “Council of the Elderly” during the debates of the Constituent
Assembly, the Constitutional Court of Romania did not establish any age limits for its
personnel, unlike other European Constitutional Court. This normative gap associated with the
18 years of professional experience or teaching activity in the legal field, has led to a rather
heterogeneous distribution of the age when the constituti onal jud ges enter into office. Most of
the constitutional judges were between 50 to 59 years old when appointed (15 from a total of
35), followed by those who were in their sixties (7 judges) and those who were in their forties
(6 judges).
The youngest judge at the Constitutional Court was Simona Maya Teodoroiu, appointed
by the Senate in February 2015 and supported by the Social Democratic parliamentary group.
She replaced Toni Greblă after his resignation. At the opposite extreme, there were three judges

253 Article 68 paragraph (1) of Law no. 47/1992 also available in English at https ://www.ccr.ro/Legea -nr-471992
[accessed on 23.03.2013].
254 Article 68 paragraph (2) of Law no. 47/1992 also available in English at https://www.ccr.ro/Legea -nr-471992
[accessed on 23.03.2013].
255 Article 68 paragraph (3) of Law no. 47/1992 also available in English at https://www.ccr.ro/Legea -nr-471992
[accessed on 23.03.2013].
256 https://www.ccr.ro/ constitutia -romaniei -2003 [accessed on 24.03.2013].

111 aged 70 -79 upon their entry into office as constitutional justice, namely: Vasile Gionea, Fazakas
Miklos and Ion Predescu. Of these, Faza kas Miklos died in 1995, so only three years after he
was appointed to the Court257.

3.1. Age Distribution among the Judges of the Constitutional Court
Source: Own Compilation of Data

On the whole, however, the age distribution graphic above portrays a balanced variation
in the age at which the constitutional judges enter office, reflecting, to a certain extent,
Iorgovan’s statement that “younger judges (but not younger than 40) as well as judges close to
the age of retirement must be included in the body of “supreme magistrates”, so as to provide
it with the force of receiving the new tendencies of the legal sciences, but also so as to
permanently maintain the direction of reasonability, imposed by the constants of law”258.

3.8.B. EDUCATIONAL PROFILE
Basically, the educational profile analyzed in this section has two dimensions: a)
education level (which differentiates between BA and PhDs) and the higher institutions the
judges attended. To a certain extent, the Fundamental Law itself stipulates that a condition for

257 Incidentally, his mandate was of 4 years.
258 Antonie Iorgovan, Odiseea… op. cit. , p. 662.
Age051015
30 – 3940 – 4950 – 59
60 – 69
70 – 791615
7
3
30 – 39 40 – 49 50 – 59 60 – 69 70 – 79
Age 1 6 15 7 3Age Distribution Among the Judges of the
Constitutional Court

112 the appointment at the Constitutional Court of Romania is to have “graduated Law” (article
143). As such, a BA degree in Law would suffice.

3.2. Constitutional Judges’ Education Level
Source: Own Compilation of Data

According to the data available however, 80% of the judges have a PhD. in Law and
20% hold only a BA degree (Mihai Constantinescu, Constantin Doldur, Petre Ninosu, Nicolae
Cochinescu, Acsinte Gaspar, Ion Predescu, Toni Greblă, Augustin Zegrean, Puskas Valentin
and Daniel Morar). A possib le explanation for this educational over -achievement might be the
fact that many of the judges are academics – professors or researchers at universities throughout
the country or at the Romanian Academy.
Regardless of the level of education attained, it i s also interesting to observe that most
of the judges have graduated from the University of Bucharest (66%), whereas the fewest
graduated from the “Alexandru Ioan Cuza” University, Iași (6%): Tudorel Toader and Mona
Pivniceru. Judges Costică Bulai, Șerban Viorel Stănoiu and Simona Maya Teodoroiu had their
BA degrees from the University of Bucharest, but pursued doctoral studies at the Romanian
Academy.

0% 20% 40% 60% 80% 100%110 25Constitutional Judges' Education Level
BA in Law
PhD. in Law

113

3.3. Higher Education Institutions Attended by the Judges
Source: Own Compilation of Data

3.8.C. PROFESSIONAL BACKGROUND
The professional background of the constitutional judges provides a better insight into
their previous activities. Therefore, I divided them into the following categories: i) singular
legal professions: a) lawyer; b) judge; c) distri ct attorney; – where they exercised only one of
those throughout their entire careers and ii) combinations of the previous group: d) lawyer and
judge; e) lawyer and district attorney; and f) lawyer and district attorney and judge. It is
important to note that the chart illustrates these categories distinctively – for instance, those
judges who were grouped in category d) were no longer included in category a), so a judge who
had professional experience as both a lawyer and a judge, would no longer be inclu ded in the
category reserved to those who had only worked as lawyers, or judges.
To begin with, throughout the history of the Constitutional Court of Romania , there is
only one judge who had the most complex professional background – Iulia Antoanella Moto c.
Most of the judges had previously worked as lawyers, whereas 4 as District Attorneys
exclusively – Kozsokar Gabor, Nicolae Cochinescu, Valer Dorneanu and Daniel -Marius Morar.
66%
20%
6%
8%Higher Education Institutions
Attended by the Judges
University of Bucharest
"Babes-Bolyai" University
"Al. I. Cuza" University
Romanian Academy

114

3.4. Professional Background of the Constitutional Judges
Source: Own Comp ilation of Data

Five of the judges had been both lawyers and judges (Victor Dan Zlătescu, Romul Petru
Vonică, Mihai Constantinescu, Petre Lăzăroiu and Mona Pivniceru), whereas only two had
served as both lawyer and district attorney (Io an Muraru and Tudorel Toader). Last but not
least, there were 8 judges who lacked any professional experience, according to the data I found
available: Aspazia Cojocaru, IoanVida, Lucian Stângu, Costică Bulai, Nicolae Popa, Florin
Vasilescu, Ioan Deleanu, Fazakas Miklos.
Nonetheless, it is important to note that the data collected was lacking as not all formed
judges at the Constitutional Court of Romania have any CVs or bibliographical data available
online. As a general rule, the Constitutional Court of Romania hosts the biographical
information – as submitted by each judge – on its website only until that respective judge’s
mandate comes to an end. Afterwards, each judge is listed in the “former judges” section and
the information on their political background, education, professional exp erience and so on is
erased. As such, there were cases in which I could not find any data and this may account for
the previously mentioned lack of professional experience, for instance.

01020
111
4252 18PROFESSIONAL
BACKGROUND OF THE
CONSTITUTIONAL JUDGES
lawyer district attorney
judge lawyer & judge
lawyer & district attorney lawyer & judge & district attorney
none

115
3.8.D. TEACHING EXPERIENCE
The lack of professional experience is n ot necessarily an issue. When considering
qualification for appointment in office, the 18 years of experience required by the Constitutional
Court may also be “years of academic professorial activity”259.
This does not imply, however, that all of the judges who were faculty members prior to
their appointment were not also lawyers, judges or district attorneys – with the 8 exceptions
previously mentioned. Also, since the office of constitutional judge is compatible only with
teaching activities in the legal hi gher educational system, the 74% of the judges with teaching
experience were allowed to continue their academic activities.
It is, at this point, obvious that most of the judges do have teaching experience and it is
important to mention that my analysis did not distinguish between private or public universities,
not between professors, senor lecturers or lecturers. Also, not all of the judges were professors
of Constitutional or even Public Law. Some teach Fiscal Law, others Commercial and Business
Law, a nd there were also judges who teach at other Faculties than Law – for instance, Simona
Maya Teodoroiu teaches law at the National School of Political Studies and Public
Administration.

3.5. Teaching Experience among the Constitutional Judges
Source : Own Compilation of Data

259 Article 143 of the Constitution of Romania, 2003, also available in English at https://www.ccr.ro/constitutia –
romaniei -2003 [accessed on 24.03.2013].
74%26%Teaching Experience Among the
Constitutional Judges
teaching experience no teaching experience

116
Given the nature of the office of a judge at the Constitutional Court, however, I do not
believe that teaching experience alone is sufficient, without practicing a profession in the field
of law. More importantly, experience as a j udge would be the most suitable standard for
qualification, since it involves a direct contact with the judicial system and a first -hand
interaction with the procedures required for its exercise. Whereas a mere academic professorial
activity, albeit illust rative for the knowledge acquired by any individual, does not guarantee the
respective individual is also skilled at applying it.

3.8.E. POLITICAL AFFILIATION
A key characteristic of any judge should be the lack of any sort of political affiliation.
In fa ct, nowadays, membership in a political party is unacceptable even in the case of the
training -magistrates at the National Institute of Magistracy. Needless to say, a political
affiliation to any political party is likely to bias the judgment of a member o f a Court of Law.
Particularly that of a judge at the Constitutional Court, where the cases involve public
authorities with a political affiliation of their own.
However, when studying the biographic information on the constitutional judges, I
noticed t hat many of them did have a political agenda and some sort of political activity in the
past. As such, I distinguished between judges who had held offices during communism, who
had been Parliament members (either deputies, senators, secretary generals or m embers of any
commissions), who had been Government members, mayors, councilors to the President or the
Prime -Ministers and those who had been members of the Constitutional Commission

117

3.6. Political Background of the Constitutional Judges
Source: Own C ompilation of Data

As the chart above illustrates, only 15 of the judges at the Constitutional Court of
Romania lacked any sort of political background260, whereas a staggering number of 12 were
Parliament Members and 6 were members of the Constitutional C ommission. There were 2
Mayors and 5 councilors either of the President or of the Prime -Minister. Although at the point
when this section of the thesis was first drafted, I did not take into account judge Marian
Enache’s appointment in July 2016, 6 of the appointed judges by that time had been members
of the Constitutional Commission261.
Last but not least, 4 of the judges of the Constitutional Court had held political offices
during communism. These are Vasile Gion ea, who had been a member of PNȚ CD, Zlătescu,
Muraru and Antonie Iorgovan, who was a member of the Communist Party. I believe that any
political background should de jure disqualify any potential candidate for the office of
constitutional judge , particular ly one that is connected to the Communist Party. On the other
hand, since an amount of political support is required in order to be appointed in office, given
the current recruitment procedures in Romania, a certain political background appears vital for
the nomination itself. But the cases when the candidate nominated for the office of

260 Simona Maya Teodoroiu, Ion Filipescu, Viorel -Mihai Ciobanu, Ioan Deleanu, Nicolae Popa, Costică Bulai,
Șerban Viorel Stănoiu, Ioan Vida, Nicolae Cochine scu, Aspazia Cojocaru, Petre Lăzăroiu, Mircea Ștefan Minea,
Tudorel Toader, Daniel -Marius Morar, Mona -Maria Pivniceru.
261 Vasile Gionea, Antonie Iorgovan, Ioan Muraru, Ioan Deleanu, Florin Bucur Vasilescu, Lucian Stângu.
0 2 4 6 8 10 12 14 16Parliament MemberGovernment MemberCouncilor of Presidency/ Prime-MinisterMayorMember of the Constitutional Commissionoffices during communismnone
124526415POLITICAL BACKGROUND OF
THE CONSTITUTIONAL
JUDGES

118 constitutional judge has to immediately resign from his/her office as Deputy/Senator are, to my
mind, exaggerated.

3.9. POWERS
The powers of the Constitutional Court of R omania are expressly established by article
146 of the Constitution of Romania as well as by the provisions of Law no. 47/1992 on the
Organization and Operation of the Constitutional Court.
According to article 146 of the Fundamental Law, the Constitution al Court of Romania
has the following prerogatives262:
“a) it adjudicates on the constitutionality of laws before promulgation,
upon referral by the President of Romania, the President of either of the
Chambers, the Government the High Court of Cassation an d Justice, the
Advocate of the People, at least 50 Deputies or at least 25 Senators, as well
as ex officio , on any initiative purporting a revision of the Constitution263; b)
it adjudicates on the constitutionality of treaties or other international
agreemen ts, upon referral by the President of either of the Chambers, or at
least 50 Deputies or at least 25 Senators; c) it adjudicates on the
constitutionality of the Standing Orders of Parliament upon referral by the
President of either of the Chambers, a parli amentary group or at least 50
Deputies or at least 25 Senators; d) it rules upon objections as to the
unconstitutionality of laws and ordinances which are raised before the courts
of law or commercial arbitration; a plea of unconstitutionality may also be
brought up directly by the Advocate of the People; e) it decides on legal
disputes of a constitutional nature between public authorities, at the request
of the President of Romania, the President of either of the Chambers, the
Prime Minister or the Preside nt of the Superior Council of Magistracy; f) it
sees to the observance of the procedure for the election of the President of
Romania and confirms the ballot returns; g) it ascertains any circumstance as
may justify the interim in the exercise of office of President of Romania, and
it reports its findings to Parliament and to Government; h) it gives advisory
opinion on the proposal to suspend the President of Romania from office; i)
it sees to the observance of the procedure for the organization and holding of
a referendum, and confirms its returns; j) it verifies whether conditions are
met for the citizens’ exercise of their legislative initiative; k) it rules upon
challenges as to the unconstitutionality of a political party; l) it also fulfills
other prero gatives as provided by the Court’s organic law264”265.

262 Ioan Vida, Curtea Constituțională a României… op. cit. , p. 59: “criterion based on the logical differentiation
of these prerogatives”.
263 Thus, the Constitutional Court of Romania cannot perform the abstract constitutionality control of laws prior
to their promulgation ex officio.
264 This sp ecific letter of article 146 is highly contested by the Romanian constitutionalists, as an organic law
should not complement constitutional provisions.
265 Article 146, Constitution of Romania, 2003, also available in English at https://www.ccr.ro/constitutia –
romaniei -2003 [accessed on 24.03.2013].

119 In literature, one of the first classifications of these powers belongs to Professor Cristian
Ionescu, who distinguished between 1) attributions concerning constitutionality review –
stipulated at article 146 letters a) – d) and j); attributions regarding the organization and activity
of certain public authorities and political parties, as provided by letters e) – h) and k) of the
Fundamental Law266. Another important constitutionalist, Professor Ioan Delea nu considers the
Court’s attributions are divided into two main categories, according to the scope of their control,
namely: 1) attributions of control – constitutionality control, suffrage for the President of
Romania’s election and the referendum control , as well as a control of whether the conditions
for the exercise of citizens’ initiative are met and 2) consultative attributions (interim and
suspension from office). Similarly, Marieta Safta grouped the Court’s powers into two
categories: 1) prerogative s concerning the constitutionality control of some normative acts; and
b) prerogatives concerning the verification of the constitutionality of some activities, behaviors,
attitudes (e, f, g, h, I, j, k)267. Last but not least, professors Mihai Constantinescu and Ioan
Muraru suggest a classification based on the object of these powers: 1) constitutionality control
of laws; 2) constitutionality control of political parties; 3) control of the constitutional criteria
for fulfilling the office of President of Roma nia and 4) referendum and popular initiative
control268.
Finally, Law no. 47/1992 on the Organization and Operation of the Constitutional Court
has also advanced a classification based on the type of acts the Court pronounces in exercising
its powers, name ly: a) decisions – pronounced on the constitutionality of laws before and after
their promulgation, on the constitutionality of treaties or other international agreements before
being ratified by Parliament, on the constitutionality of the Standing Orders of Parliament, in
solving the legal disputes of a constitutional nature between public authorities, and on the
constitutionality challenges of political parties; b) rulings – pronounces on the procedures
regarding the election of the President of Romania, on the ascertainment of the circumstances
justifying the interim in the office of President, on the organization, holding and results of a
referendum and on the fulfillment of the conditions for the citizens’ legislative initiative; and
c) advisory opinion s – pronounced on the suspension proposals in the case of the President of
Romania’s political accountability.

266 Cristian Ionescu, Constituția României. Legea de revizuire comentată și adnotată cu dezbateri parlamentare ,
ed. All Beck, București, 2003, p. 194.
267 Marieta Safta, Drept constitutional… op. cit. , p. 101.
268 See Ioan Muraru, Mihai Constantinescu, Drept parlamentar românesc , C.H. Beck, București, 2005.

120
3.10. ACTS AND DECISIONS
The plenum of the Constitutional Court of Romania is formed by all of its active
constitutional judges. It is importa nt to note that, in accordance with article 51 paragraph (1)
“the Constitutional Court shall be authorized to act in the presence of two -thirds of the judges.
The plenum decides by the majority of votes of the judges, unless otherwise stipulated by
law”269.
There are three types of acts issued by the Constitutional Court, after its plenum
pronounces on the cases submitted, namely decisions, rulings and advisory opinions270. It is
interesting to note that the Constitution only distinguishes between decisions and advisory
opinions271, whereas Law no. 47/1992 expressly stipulates that “the Constitutional Court shall
pronounce decisions, rulings and it shall issue advisory opinions”272. If the advisory opinions
have a clearly optional nature, as the name implies – they are opinions which may and have
been disregarded by Parliament – the decisions and the rulings both have a general binding
effect and are final. The difference between decisions and rulings , as Ioan Vida explains it, is
that rulings are species of decisi ons and “their legal force is similar to that of decisions, because
their effects are generally binding and their legal legitimacy is granted by the terminology used
by the Constituent legislator when defining the attributions of the Constitutional Court”273.
Furthermore, he emphasizes the difference between these two types of acts by maintaining that
“decisions are pronounced when solving a litigation, rulings are acts of ascertaining a
preexistent situation”274.
On the other hand, however, “constitutional jur isdictions lack authorities to enforce its
decisions and rulings, their effectiveness depending to a great extent on the constitutional
behavior of public authorities”275. Exemplary in this matter were the two advisory opinions on
the suspension from office of Pre sident Traian Băsescu in 2007 and 2012 which, although
negative, were both disregarded by the Parliament. Even the generally binding and final

269 Law no. 47/1992 also available in English at https:/ /www.ccr.ro/Legea -nr-471992 [accessed on 24.03.2013].
270 Article 60 paragraph (1) of Law 47/1992 also available in English at https://www.ccr.ro/Legea -nr-471992
[accessed on 24.03.2013]: “Decisions, ruling s and advisory opinions shall be drafted in written form by the
assistant -magistrate who has participated in the proceedings, under the guidance of the judge -rapporteur. The term
for drafting shall be maximum thirty days as from the pronouncement”.
271 Impli citly provided.
272 Article 11 paragraph (1) of Law no. 47/1992 also available in English at https://www.ccr.ro/Legea -nr-471992
[accessed on 24.03.2013]
273 Ioan Vida, Curtea Constituțională a României… op. ci t., p. 111.
274 Ibidem.
275 Ioan Muraru, Elena Simina Tănăsescu, Drept constituțional… op cit. , p. 283.

121 decisions of the Court, as are those on the abstract constitutionality control of laws, have not
always been comp lied with by Parliament276.
Because they have erga omnes effects, decisions have the force of a normative act –
they are generally binding and only effective for the future. On the other hand, i n the words of
Professor Drăganu, “the obligations deriving fr om the Constitutional Court’s decisions vary
depending on their object”277. The Court’s decisions on legal disputes of a constitutional nature
between public authorities, for example, engage all future political actors who might find
themselves in circumsta nces similar to those which were brought to the Court. The Court’s
decisions on the abstract constitutionality control of laws engage the Parliament, which is
obliged to modify the unconstitutional bill accordingly. Otherwise, as recent jurisprudence has
shown, the President of Romania may re -submit the same bill to the Constitutional Court of
Romania for another constitutionality review before promulgating it.

3.11. PROCEDURES
This section sets out to scrutinize the general procedural legislation prior to the hearing
session, during the hearing session, during the session of deliberation and after the session of
pronouncement, as established by Law no. 47/1992 and the Regulations on the Organization
and Functioning of the Court, as approved by Resolution no. 6/07.03.2012 of the Plenum of the
Constitutional Court and published in the Official Gazette of Romania, Part I, no.
198/27.03.2012.
3.11.A. GENERAL PROCEDURES PRIOR TO THE HEARING SESSION
Established by articles 45 – 51 of the Regulations on the or ganization and functioning
of the Constitutional Court of Romania , approved by Resolution no. 6/07.04.2012 of the
Plenum of the Constitutional Court and published in the Official Gazette of Romania, Part I no
198/27.03.2012, the general procedures in the a ctivity prior to the hearing session are specific
to all cases brought to the Constitutional Court. Even if, in the second part of my thesis, each
chapter of empirical analysis also features the procedural aspects specific to the constitutional
review of l aws before promulgation, the legal disputes of a constitutional nature between public

276 See the interview with judge Mircea Ștefan Minea, annexed at the end of this thesis.
277 Tudor Drăganu, Drept constitutional… op. cit., vol. I, p. 320. He further explained, for instance, that
“Constitutional Court’s advisory opinions are official opinions which the bodies stipulated by law are obliged to
ask, but not to respect”.

122 authorities and the Court’s prerogatives on the procedures regarding the suspension from office
of President of Romania, I believe that a brief general outline of the pro cedures specific to the
Court’s activity will contribute to a better understanding of the ensuing specific procedures.
First of all, the Constitutional Court of Romania may be notified by post or courier, by
fax, telegram or electronic mail278 or the notifi cation may be delivered in person, and “shall be
filed in at the Clerk, Registry and Archive Compartment, where – on that same day – receive a
dater certain, after which are submitted by the First Assistant -Magistrate to the President of the
Court, with th e envelopes attached”279. As such, all notifications received are first recorded and
then submitted to the President of the Court who, “having received the act of reference, shall
designate the judge -rapporteur and the assistant -magistrate, by his dated sign ature and,
depending on the case, shall set the date of the hearing”280.
Then, as in all public institutions, any official act submitted must receive a registration
number and be accounted for in the general Register281. A new case file folder is created,
mentioning on its cover every specific detail of the respective case, such as the parties involved,
the author of the referral, the substantive matter disputed282. Every one of the constitutional
judges and the assistant -magistrate also receive a copy of the ca se file, as soon as these first
procedures are carried out.
Next, “the staff from the judges’ offices shall draft the letters requesting the viewpoints
as provided by article 30, paragraph (1) of Law no. 47/1992, republished, as well as the
information s heets on domestic legislation and Constitutional Court case -law, subject to these
rules”283. So as to gain further information, according to paragraph (4) of article 47 “the judge –

278 According to paragraph (3) of article 45 of the Regulations on the Organizat ion and Functioning of the Court,
available in English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03.2013]:
“Dispatch of correspondence of jurisdi ctional character shall be made by post, courier, fax, electronic mail or
through any other communication channel which allows identification and tracking down, and ensures its official
character”.
279 Article 45 paragraph (1) of the Regulations on the Orga nization and Functioning of the Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03.2013].
280 Article 46 paragraph (1) of the Regulations on the Organization and Functioning of the Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03.2013].
281 Article 46 paragraph (2) of the Regulations on the Organization and Functioning of the Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03.2013] :“the act of
reference shall be returned to by the First Assistant -Magistrate to the Clerk, Registry and Archive Compartment
where, on that same day, it receives a number from the Register of case file entry/exit and is recorded in the genera l
Register of case files”.
282 Article 46 paragraph (4) of the Regulations on the Organization and Functioning of the Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03.2013] : “the name of
the Constitutional Court, case file number, authors of the referral, subject matter of referral and date of trial, once
it has been fixed”.
283 Article 47 paragraph (2) of the Regulations on th e Organization and Functioning of the Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03.2013].

123 rapporteur may solicit expert advice from individual persons or institutions, with prior approval
by the Presiden t of the Constitutional Court”. Also an attribution of the judge -rapporteur is to
prepare a written report on the case284.
According to article 47 paragraph (6) “in cases provided under article 146 letter (a) […]
of th e Constitution, republished, the time limit for filing in the report shall be, as a rule, no
longer than 90 days from the date of registration of the reference act” while paragraph (7) sets
a general rule that “in the other cases, the time limit for filing in the report is established while
taking into account the deadlines provided by law” whereas paragraph (8) stipulates that “in
exceptional circumstances, when urgency requires, the President of the Constitutional Court
may decide, after consulting the Ju dge-Rapporteur, to shorten the time limit” of 90 days for the
abstract constitutionality control.
The President of the Court sets the date at which the trial is to take place and, once again,
the judges and the assistant -magistrate designated for the res pective cases are given copies “of
the report prepared in the case, of duly received viewpoints in connection with the case, as well
as other documents in the case file, if appropriate”285. The proceedings for the debates are
prepared by the magistrate -assis tant286. Just prior to the hearing session, the assistant -magistrate
also ensures that all legislation relevant to the case at hand is up to date287 and that the case file
is complete.288
The next procedural step regards the preparation of “the draft summons an d their notice
[as well as to] write down reports concerning other operative ways for calling appearance before

284 Article 47 paragraph (5) of the Regulations on the Organization and Functioning of the Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03.2013]: “ha ving
examined the draft report, the viewpoints and other information made available, or conclusions from Romanian
and foreign case -law and/or literature, as well as other elements that appear to be necessary for the debate, shall
prepare a written report o n the case”.
285 Article 48 paragraph (2) of the Regulations on the Organization and Functioning of the Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03.2013].
286 Article 47 paragraph (9) of the Regulations on the Organization and Functioning of the Court, available in
English at https://www.ccr.ro/Regula mentul -de-organizare -i-funcionare [accessed on 24.03.2013]. In addition,
according to article 49 paragraph (7) of the same law, “the assistant -magistrate shall oversee the communication
of copies of the acts of reference, follow up whether viewpoints as p rovided by law have been received and ensure
that all pieces of work ordered by the President or by the judge -rapporteur, as the case may be, are being carried
through”.
287 Article 50 paragraph (3) of the Regulations on the Organization and Functioning of t he Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03.2013]: “at least 24
hours before the hearing session, the assistant -magistrate shall check if further pleadings, defense memorandums,
viewpoints, acts or other information requested subject to the law have been submitted to the case file”.
288 Article 50 paragraph (4) of the Regulations on the Organization and Functioning of the Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03.2013]: “at least 24
hours before the hearing session, the assistant -magistrate shall check out if further pleadings, defense
memorandums, viewpoints, acts or other information requested subject to the law have been submitted to the case
file”.

124 the Constitutional Court”289 which “shall be instantly carried our once the date of hearing has
been fixed, in urgent cases, or on the next workin g days at the latest, in the other cases”290.
However, attendance to the hearings of the Constitutional Court is not mandatory291.
Finally, according to article 51 paragraph (2) “case files shall be made available for
study to the parties or their legal repre sentatives within the Clerk, Registry and Archive
Compartment during public opening hours, after identification and having noted down the
applicant’s name and surname, while checking identity papers, powers of attorney or
delegations, as well as whether fi les have been returned intact. The registry clerk shall be
supervising the study of case files”.

3.11.B. GENERAL PROCEDURES DURING THE HEARING SESSION
Before the hearing begins, the assistant -magistrate responsible for the respective case
“takes on the ca ses as assigned to him/her”292.
“For each and every case, the assistant -magistrate takes the call -over
of the parties, thereafter reports about the manner in which the summoning
procedure and other measures ordered by the Constitutional Court to the
process have been accomplished, and gives a brief account on the case subject
– matter and stage of the proceedings”293 and “shall carry out, for each file,
the provisions under article 56294 of Law no. 47/1992, republished”295.
Of course, not all decisions and rulings of the Court are issued on the exact day of the
hearing. Sometimes, pronouncement in the case or some proceedings are adjourned and in this

289 Article 49 paragraph (1) of the Regulations on the Organization and Functionin g of the Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03.2013].
290 Article 49 paragraph (2) of the Regulations on the Org anization and Functioning of the Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03.2013].
291 According to paragraph (4) of article 49 of the Regulations on the Organization and Functioning of the Court,
available in English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03 .2013]:
“The summons shall specifically mention that appearance before the Constitutional Court is not compulsory”.
292 Article 52 of the Regulations on the Organization and Functioning of the Court, available in English at
https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03.2013]. In addition, according to
article 53 paragraph (1) of the same legislation, “after the President has opened proceedings, the cases shall be
called out by the assistant magistrates, in the order established on the hearing list.”
293 Article 53 paragraph (2) of the Regulations on the Organization and Functioning of the Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03.2013].
294 “In the course of a public session the assistant -magistrate shall take notes, per case number, of the oral
arguments made by the par ties and by the public prosecutor, of the measures ordered by the Court, as well as of
any other aspects arising from the development of the proceedings in the record book whose pages are
consecutively numbered and affixed with a seal. On its basis, the as sistant -magistrate shall prepare the minutes of
the proceedings. Such records shall be kept in the archives of the Court for a period of five years as from the date
of the last written notes”.
295 Article 53 paragraph (3) of the Regulations on the Organizat ion and Functioning of the Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03.2013].

125 case, the assistant -magistrate is responsible to “write down the fixed date in the Journal of
judgment sessions, an d within the next 24 hours prepare the interim order of adjournment,
which must state the reasons for such measure”296.

3.11.C. GENERAL PROCEDURES DURING THE SESSION OF DELIBERATION
First of all, it is important to note that the deliberations of the Consti tutional Court of
Romania are secret “and only the judges who have also taken part in the debate proceedings
and the assistant -magistrate assigned to the case are allowed to attend”297.
According to article 58 paragraph (1) of Law 47/1992, “deliberation shal l be in secret,
and only the judges who have also taken part in the debates are allowed to attend. The assistant –
magistrate who has prepared and participated in the debate proceedings may be consulted”298.
Pending on the complexity of the case under scrutiny , the deliberations of the Constitutional
Court may be interrupted, adjourned or even determine a re -opening of the proceedings299.
Furthermore, in what regards the voting procedures, a specific order is established by paragraph
(2) of article 58 of Law 47/1 992, namely that “the first one to vote is the judge -rapporteur,
second comes the youngest of the judges, then the others, while the President of the
Constitutional Court is the last to vote”300.
However, “if not all of the judges who have taken part in the debate proceedings are
present or where conditions provided by article 58 paragraph (3) of Law 47/1992301,
republished, are met, adjudication on the case shall be deferred to a later date. Postponement
shall be written down in an interim order which is prep ared by the Assistant -Magistrate and
must state the reasons for such a measure”302.

296 Article 54 paragraph (1) of the Regu lations on the Organization and Functioning of the Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24.03.2013].
297 Article 56 p aragraph (1) of the Regulations on the Organization and Functioning of the Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 24. 03.2013].
298 Law no. 47/1992 also available in English at https://www.ccr.ro/en/Legea -nr-471992 [accessed on 25.03.2013].
299 According to paragraph (4) of article 58 of Law 47/1992: “if further clarificat ion of certain aspects may appear
to be necessary while in the process of deliberation, the President of the Constitutional Court may order that
proceedings be re -opened”.
300 Law no. 47/1992 also available in English at https://www.ccr.ro/en/Legea -nr-471992 [accessed on 25.03.2013].
301 “Where either of the Judges demands to interrupt deliberation in order to have a better sight into the matters
under their current examination, and the President of the Con stitutional Court or at least one third of the judges of
the plenum consider that such request has a good reason, pronouncement shall be adjourned for a later date, taking
into account the urgency of the case”.
302 Article 56 paragraph (2) of Law no. 47/1992 also available in English at https://www.ccr.ro/en/Legea -nr-
471992 [accessed on 25.03.2013].

126 Finally, according to article 59 paragraph (1) of Law no. 47/1992 “the result of the
deliberation is recorded in the minutes, which are signed by the judges who have taken part in
the session and by the assistant -magistrate”. In the event one or more judges disagree with the
opinion of the majority, they “may formulate a separate opinion. With regard to the reasoning
of the decision, it is also possible to write a concurring opinion. The separate (dissenting) and,
as the case may be, concurring opinion shall be published in the Official Gazette of Romania,
Part I, together with the decision”303.

3.11.D. GENERAL PROCEDURES FOLLOWING THE SESSION OF PRONOUNCEMENT
According to t he specificity of the case at hand, “the acts of the Constitutional Court
shall be prepared in as many copies as needed in order to have them attached to the case file,
communicated in the cases provided by law, and sent for publication in the Official Gaz ette of
Romania, part I”304. Finally, “after drafting the decision, ruling, advisory opinion or interim
order, the assistant -magistrate shall return the case file to the Clerk, Registry and Archive
compartment”305.
The debates of the Constitutional Court are n ot public306, with the exception of cases on
posterior constitutionality control of laws, legal disputes of a constitutional nature between
public authorities and unconstitutionality objections concerning a political party. On the other
hand, the President o f the Court “can invite anyone whose presence is deemed necessary, to
give clarification”307. The Constitutional Court may choose a date different than that on which
its debates have taken place to pronounce itself, but “as a rule, such postponement shall no t
exceed thirty days”308.

303 Article 59 paragraph (3) Law no. 47/1992 also available in English at https://www.ccr.ro/en/Legea -nr-471992
[accessed on 25.03.2013].
304 Article 58 paragraph (1) of the Regulations on the Organization and Functioning of the Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 25.03.2013].
305 Article 58 paragraph (4) of the Regulations on the Organization and Functioning of the Court, available in
English at https://www.ccr.ro/Regulamentul -de-organizare -i-funcionare [accessed on 25.03.2013].
306 According to article 52 paragraph (3) “Debates shall take place […] with no other than the Judges partaking
therein, witho ut the parties being summoned […].
307 Article 52 paragraph (3) of Law no. 47/1992 also available in English at https://www.ccr.ro/en/Legea -nr-
471992 [accessed on 25.03.2013].
308 Article 57 of Law no. 47 /1992 also available in English at https://www.ccr.ro/en/Legea -nr-471992 [accessed
on 25.03.2013].

127
3.12. POSITION AMONG STATE POWERS
The last part of this chapter focuses on an analysis concerning the Court’s position
among state powers. Although several points have already been made, particularly when
presenting this instituti on’s genesis, this section aims to underline and explain their most
important consequences, particularly given that the Fundamental Law “does not mention the
nature of this public authority, nor its position within state authorities”309.
To begin with, the Constitutional Court of Romania is an independent public
authority310. Nevertheless, in spite of its status as public authority, it is apparent that the
Constituent legislator did not include it under the provisions of Title III in the Fundamental
Law, among the other public authorities of the legislative, executive and judicial branches.
Instead, Title V in the Constitution separates the Court from all other public authorities and
sanctions its independence – from both the judicial and the legislative. The Constitutional Court
of Romania is not part of the judicial authorities, unlike in the American model, where the
Supreme Court is positioned at the top of the judicial pyramid – especially since, stricto sensu ,
it is not a typical court of law311, but the onl y court of constitutional jurisdiction in Romania312.
Nor is it part of the legislative branch, given that the Court can neither amend, nullify nor
abrogate any legislation. Its role is merely that of a negative legislator, which only sanctions
the unconstit utionality of the normative acts it controls. Also, the Court’s independence derives
from that of its judges who are, according to the Fundamental Law, “independent in the exercise
of their office and irremovable during their term of office”313 and, as such, constitutional judges
“cannot be held accountable for the opinions and votes expressed in adopting solutions”314.

309 Ioan Vida, Curtea Constituțională a României… op. cit. , p. 39.
310 Article 1 paragraph (3) of Law no. 47/1992 also available in English at https://www.ccr.ro/en/Legea -nr-471992
[accessed on 25.03.2013] states that “ the Constitutional Court is independent of any other public authority and it
shall be subject only to the Constitution and to the present law”.
311 Marieta Safta, Drept constituțional… op. cit. , p. 99 argued that “even if, in exercising the powers granted by
the Constitution and its law of organization and functioning, the Constitutional Court carries out a jurisdictional
activity, and the procedures by which the attributions in its competence are realized have, to a great extent, the
features of judicial pro cedures, the Constitutional Court is not a court of law in the strict meaning of this concept
and neither does it fit within any of the three classic powers – legislative, executive and judicial”.
312 Article 1 paragraph (2) of Law no. 47/1992 also availabl e in English at https://www.ccr.ro/en/Legea -nr-471992
[accessed on 25.03.2013]: “The Constitutional Court shall be the only authority of constitutional jurisdiction in
Romania”.
313 Article 145 of the Con stitution of Romania, 2003.
314 Ioan Muraru, Simina Tănăsescu, Drept constituțional… op cit., p. 269

128 Is the Constitutional Court the fourth power in state, as some members of the Constituent
Assembly declared it to be in 1991? At that time, for certain, it was not315, given that the first
post-communist constitution enabled the Parliament to overrule any decisions of a priori
unconstitutionality with a two thirds majority and therefore, established a form of parliamentary
control over the Court. A lthough, as Professor Drăganu underlined, “the separation of powers
does not necessarily require the existence of three powers in state. They may be four or five and
we could still have a separation of powers in state if, by the game of constitutional disp ositions,
a balance is created between them)”.
Finally, the Constitutional Court of Romania has its own budget316 and enjoys
administrative autonomy. Another dimension of the Court’s autocephalous character is that it
chooses its own President317. The Constitu tional Court of Romania is “above statal powers, it
is legitimated by the very will of those power which, in turn, are elected by the electoral
body”318. “The Constitutional Court is not part of the system of the three powers in state, being
independent from those. The fact that the judges of the Court are appointed by the legislative
and the executive power (the President of Romania) does not create a relation of subordination
of the Court to those”319.

3.13. PRELIMINARY CONCLUSIONS
Situated “outside the thr ee statal powers”320, the Constitutional Court of Romania is a
politico -jurisdi ctional arbiter, heavily affected by its political component. First of all, the
manner in which the judges at the Constitutional Court are appointed, as well as their political
background and affiliations influence the Court’s legitimacy and, ultimately, its credibility.
How can a political body decide on what are, essentially, political matters, such as the legal

315 Tudor Drăganu, Drept constitutional… op. cit., vol. I also claimed that “The Constitutional Court is far from
appearing as a fourth power in state given its manner of recruiting and th e Parliament’s right to infirm its most
important decisions, it is sooner profiled as a body dependent on a political majority”.
316 Article 74 paragraph (1) of Law no. 47/1992 also available in English at https://www.ccr.ro/en/Legea -nr-
471992 [accessed on 25.03.2013]: “The Constitutional Court shall have its own budget, which shall be an integral
part of the State budget”, whereas paragraph (2) states that “The draft of the budget shall be approved by Ple num
of the Constitutional Court and it shall be forwarded to the Government in order to be distinctively included in the
State Budget”.
317 Ioan Vida, Curtea Constituțională a României… op. cit. , p. 50.
318 Idem , p. 40.
319 Cristian Ionescu, Drept constituționa l și instituții politice: curs sinteză… op. cit., p. 329.
320 Ioan Vida, Curtea Constituțională a României… op. cit. , p. 42: “In Romania, the Constitutional Court has been
established as an authority which mainly ensures the constitutionality control of laws and which is situated outside
the three statal powers – legislative, executive and judicial – tasked with watching public authorities respect the
principles and norms of the Fundamental Law”.

129 disputes of a constitutional nature between public authorities and e specially the advisory
opinion on the suspension from office of the President of Romania? Even though, according to
article 144 of the Fundamental Law, the office of constitutional judges is incompatible with any
others, practice has shown that Parliament Members – career politicians – can become judges
at the Constitutional Court321, provided they resign from their office as MP. Finally, the Court’s
credibility is also affected by the political background of its judges. They are typically suspected
of polit ical bias in their decision -making and accused of ruling in favor of the political
formation that supported their appointment in office. Given that “the credibility of the
Constitutional Court is crucial for democratic consolidation”322, the politicized mann er in which
the judges at the Constitutional Court enter into office is one of the weaknesses of its
institutional design.
The eligibility criteria for the office of judge at the Constitutional Court are fairly
permissible, yet the actual appointment depe nds entirely on the will of political bodies – the
President of Romania and the majority parliamentary groups in the Chamber of Deputies and
in the Senate. Political support, is therefore, a pre -requisite, unwritten criterion in this case.
Several candidat es may be equally competent for this position, but only a parliamentary
majority/coalition or the head of state may actually instate one of them in the office of
constitutional judge. In the end, “political parties have a decisive role in creating the mos t
important statal institutions”323 and Professor Ioan Stanomir concludes that “the profile and the
orientation of the constitutional judges are, in the logic of the Fundamental Law, directly
dependent on the orientation of the electorate itself”324.
On the other hand, the set of powers vested in the Court by article 146 of the
Fundamental Law reflects the judicial component of the Constitutional Court. The Court is
vested to decide on the constitutionality of laws before their promulgation, thus sanctioning the
Parliament’s activity after 2003. The Court settles the legal disputes of a constitutional nature
between public authorities, as according to the Constitution, indirectly providing a binding
interpretation of the Fundamental Law and regulating the rela tions between the representatives
of these public authorities, particularly when their political affiliations differ.

321 For instance, senator Toni Greblă or deputy Mircea Enache.
322 Raportul Comisiei Prezidențiale de Analiză a Regimului Politic și Constituțional din România – pentru
consolidarea statului de drept , CH Beck, București, 2009, p. 62.
323 Ioan Muraru, Simina Tănăsescu, Drept constituțional… op cit., vol. 2, p. 251.
324 Ioan Stanomir, În jurul Constituției. Practică politică și arhitectură legală , editura Universității din București,
București, 2006, p. 105.

130 Finally, t he Constitutional Court of Romania “could be seen as a distinctive power, on
the behavior of which an entire institutional bala nce would come to depend”325. The conditional
tense, however, depends upon i) the quality of its personnel; ii) the force of its acts and iii) the
extent to which its decisions/rulings/advisory opinions are taken into account by those against
which they are issued.

325 Idem , p. 104.

131 − CHAPTER IV −
THE ROLE OF THE CONSTITUTIONAL COURT OF ROMANIA IN THE
ABSTRACT CONSTITUTIONALITY CONTROL OF LAWS326327

4.1. INTRODUCTION
The second part of this thesis focuses on an empirical analysis of the Constitutional
Court of Romania ’s decisions in solving the disputes between public authorities. In order to do
so, three dimensions of the Court’s activity were selected, namely those stipulated by article
146 letters a)328, e)329, g)330, h)331 and i)332. Corresponding to three subseque nt chapters of
empirical analysis – i) on the abstract constitutionality control of laws; ii) on the legal disputes
of a constitutional nature between public authorities and iii) on the suspension procedures from
the office of President of Romania (which a ssociates the Court’s advisory opinion on the
suspension proposal, its ascertaining of any circumstances which may justify the interim in the
exercise of office of President of Romania and its confirmation of the returns of a referendum)
– this analysis is to be correlated with the cohabitation typology previously presented.
In order to do so, each chapter will be drafted according to the following analysis
algorithm: a theoretical framework in which the main concepts employed are explained both
from the doctrinarian as well as from the jurisprudence perspective; an overview of the

326 A preliminary version of the research included in this chapter was presented at the Third Internationa l
Conference “After Communism. East and West under Scrutiny”, organized by the University of Craiova (5th – 6th
of April 2013) – An Analysis of the Abstract Constitutionality Control of Laws in the Context of Divided
Government in Romania.
327 A complementar y research was presented at the International Conference “The European Culture of Human
Rights” organized by the “Dimitrie Cantemir” Christian University (13th – 15th December, 2012) – Comparative
Perspectives on the Constitutionality Control in Central an d Eastern Europe.
328 “It adjudicates on the constitutionality of laws before promulgation, upon referral by the President of Romania,
the President of either of the Chambers, the Government, the High Court of Cassation and Justice, the Advocate
of the Peopl e, at least 50 Deputies or at least 25 Senators, as well as ex officio , on any initiative purporting a
revision of the Constitution”.
329 “It decides on legal disputes of a constitutional nature between public authorities, at the request of the President
of Romania, the President of either of the Chambers, the Prime Minister, or the President of the Superior Council
of Magistracy”.
330 “It ascertains any circumstance as may justify the interim in the exercise of office of President of Romania, and
it reports it s findings to Parliament and to Government”.
331 “It gives advisory opinion on the proposal to suspend the President of Romania from office”.
332 “It sees to the observance of the procedure for the organization and holding of a referendum, and confirms its
returns”.

132 procedures relevant for each case, apart from the general ones previously explained in the
chapter on the Constitutional Court of Romania ; a brief account of the cases solved by the Court
from 1992/ or 2003, respectively, in the case of legal conflicts of a constitutional nature between
public authorities, explaining the object of the notification, the viewpoints maintained by all
parties involved, the constitutional provisions a llegedly breached and the Court’s decision; and
finally, a comparative analysis of the decisions in each chapter, taking into account the
following variables333: a) the status of the Court’s decisions; b) notification frequency; c)
duration of the Court’s de liberations; d) constitutional provisions allegedly breached; and e)
public authorities involved and their positions.
Illustrative for the cohabitation typology this thesis advances as a central element of
novelty, the aim of this empirical analysis is to demonstrate that during periods of dysfunctional
cohabitation, the conflicts with which the Court is notified tend to increase. In addition, they
set out to analyze whether or not the representatives of the public authorities with the same
political affil iation supported each other, whether or not the judges who had a separate opinion
in the Court’s decisions sided with the representatives of those public authorities who had
appointed them in office, which are the constitutional provisions most susceptible to
misinterpretation and whether or not the Court’s rulings/decisions/advisory opinions clarified
the conflicts between public authorities at least in so far as preventing them from repeating.
As such, the first chapter of empirical analysis is dedicated to the abstract
constitutionality review of laws, as exercised by the President of Romania, before
promulgation. Of course, the President of Romania is not the only representative public
authority enabled by the Fundamental Law to notify the Court on such cases – he shares this
prerogative with the Government, the President of the Chamber of Deputies or the President of
the Senate, the Advocate of the People, the High Court of Cassation and Justice, the
Constitutional Court of Romania itself, ex officio , as well as at least 50 Deputies or at least 25
senators334. The reason for which I have selected only those cases on which the head of state
referenced the Court is because it is more relevant to the theory advanced in the beginning of
this thesis, as it rese mbles a veto right the president holds against the Parliament and, to a certain
extent, the Government. Moreover, the Advocate of the People, the High Court of Cassation
and Justice, as well as the Constitutional Court of Romania itself, as notification su bjects in

333 The variables may differ according to the specificity of each case.
334 Article 146 paragraph (1) letter a) of the Constitution of Romania also available here
https://www.ccr.ro/constituti a-romaniei -2003 [accessed on 05.05.2013].

133 these cases, are irrelevant for this analysis as they do not hold any political affiliation. The 50
deputies or 25 senators who could also notify the Court are not sufficiently representative, on
the other hand, for the public authorities they co me from. And, last but not least, rather than
opposing the Government to the laws adopted by the Parliament which also invested it in office
by its vote of confidence335 or by opposing either Chamber of Parliament to another on the laws
they voted themselves , the President of Romania appears as the only viable and relevant referral
subject on the cases regarding the a priori constitutionality control of law.

4.2. METHODOLOGY
From a methodological point of view, this chapter focuses on an empirical analysis of
the Court’s decisions on the prerogative provided by article 146 letter a) of the Constitution.
This study started from the following research questions: i) how many cases of abstract
constitutionality control of laws were admitted? How many were dismi ssed?; ii) how frequent
were the notifications received from the President of Romania since 1992 to 2012? was there
any increase during the periods of cohabitation?; iii) how long did it actually take the
Constitutional Court of Romania to deliberate on th e cases with which it was notified by the
President? is that duration from the date of notification to the date when the decision is issued
related or in any way dependent on the complexity of the legal text examined?; iv) which were
the constitutional pro visions allegedly breached most often in the abstract constitutionality
control of laws? did they repeat even after the Court had explained them in a previous decision?;
and v) what was the position adopted by the other public authorities notified by the C ourt on
the unconstitutionality cases invoked by the President? did they admit/ partially admit or reject
the objections raised by the President? did they support the President’s claims when they had a
similar political affiliations and did they dismiss hi s claims during periods of cohabitation?.
My main assumption and the main hypothesis on which this chapter is grounded is that
during periods of dysfunctional cohabitation, the Constitutional Court of Romania is requested
to control the constitutionality of laws before their promulgation more often. In addition, a first
sub-hypothesis is that the more complex a legal text examined is, the more time is going to take
the Constitutional Court to deliberate . Secondly, I also believe that as their political aff iliation
differ, the representatives of other public authorities notified by the Constitutional Court will

335 According to article 103 paragraph (3): “The program and list of the Government shall be taken up for debate
by the Chamber of Deputies and Senate, in a joint session. Parliament grants its confidence in the Gov ernment by
a majority vote of Deputies and Senators”.

134 also disagree with the President’s claims of unconstitutionality . Conversely , if they share the
same political affinity, the representatives of the o ther public authorities will support the
President of Romania’s unconstitutionality allegations.
As such, each decision was analyzed qualitatively by using the method of thematic
content analysis and identifying specific elements which were then employed in a quantitative
comparative analysis so as to highlight the following dimensions: a) whether or not the
unconstitutionality claims were admitted, partially admitted or dismissed; b) whether or not the
number of notifications made by the President incre ased during the periods of
cohabitation/divided government; c) the time it took the Court to solve these cases; d) the
constitutional provisions supposedly violated; and e) the extent to which the viewpoints
expressed by the representatives of the other pu blic authorities notified by the Court in such
cases (the Prime -Minister, on behalf of the Government; the President of the Chamber of
Deputies and the President of the Senate) supported the head of state’s claims or not.
As elements of novelty, first of all, the brief account of each decision provided in this
chapter and the database I created and which I will publish on the Romanian Association of
Young Scholars’ website are important to note. Also, starting from that database and my own
compilation of d ata, I also created several graphics to better illustrate the results of my empirical
analysis.

4.3. SOURCES
The mains sources employed throughout this chapter were primary sources, namely the
decisions issued by the Constitutional Court of Romania on the abstract constitutionality control
of laws: Decision No. 70/05.05.1999, published in the Official Gazette No. 221/19.05.1999;
Decision No. 98/05.04.2001, published in the Official Gazette No. 256/18.05.2001; Decision
No. 515/24.11.2004, published in the O fficial Gazette No. 1195/14.12.2004; Decision No.
217/20.04.2005, published in the Official Gazette No. 417/18.05.2005; Decision No.
417/14.07.2005, published in the Official Gazette No. 772/25.08.2005; Decision No.
418/18.07.2005, published in the Officia l Gazette No. 664/26.07.2005; Decision No.
419/18.07.2005, published in the Official Gazette No. 653/22.07.2005; Decision No.
279/22.03.2006, published in the Official Gazette No. 323/11.04.2006; Decision No.
498/08.06.2006, published in the Official Gazet te No. 554/27.06.2006; Decision No.
970/31.10.2007, published in the Official Gazette No. 796/22.11.2007; Decision No.

135 1056/14.11.2007, published in the Official Gazette No. 802/23.11.2007; Decision No.
1177/12.12.2007, published in the Official Gazette No . 871/20.12.2007; Decision No.
39/30.01.2008, published in the Official Gazette No. 122/14.02.2008; Decision No.
1094/15.10.2008, published in the Official Gazette No. 721/23.10.2008; Decision No.
1218/12.11.2008, published in the Official Gazette No. 785/ 24.11.2008; Decision No.
55/14.01.2009, published in the Official Gazette No. 46/27.01.2009; Decision No.
56/14.01.2009, published in the Official Gazette No. 46/27.01.2009; Decision No.
1018/19.07.2010, published in the Official Gazette No. 511/22.07.2010 ; Decision No.
1595/14.12.2011, published in the Official Gazette No. 924/27.12.2011; Decision No.
1596/14.12.2011, published in the Official Gazette No. 924/27.12.2011; Decision No.
1597/14.12.2011, published in the Official Gazette No. 924/27.12.2011; De cision No.
1598/14.12.2011, published in the Official Gazette No. 924/27.12.2011; Decision No.
681/27.06.2012, published in the Official Gazette No. 477/12.07.2012; Decision No.
785/26.09.2012, published in the Official Gazette No. 704/15.10.2012. All of t hese decisions
are publicly available on the website of the Constitutional Court of Romania .
The Court’s decisions in matters of abstract constitutionality control were not only a
source for the section on empirical analysis, but also one for the theoreti cal framework, as the
literature in this field is scarce. Particularly relevant was Mircea Criste’s Controlul
constituționalității legilor în România336, as well as Cristian Ionescu’s book on the
Constitutional Court of Romania337 and Gheorghe Iancu’s on constitutional procedures338.

4.4. STRUCTURE
The first chapter of empirical analysis in the second part of this thes is features an
extensive theoretical framework drawn from the Court’s jurisprudence since its establishment
in 1992 until the 2012 legislative elections. Based on Cristian Ionescu’s definition of the
abstract constitutionality control, this section also ex amines other concepts, such as the
categories of laws admissible for the a priori constitutionality control, the number of times the
President can send a bill for reexamination to the Constitutional Court, the limits on the Court’s
power given its status o f a negative legislator, and the effects of its decisions in these matters.

336 Mircea Criste, Controlul constituționalității legilor în România… op. cit. .
337 Ioan Chelaru, Cristian Ionescu, Constituția României comentată și adnotată cu dezbateri parlamentare și
jurisprudența Curț ii Constituționale. Titlul V. Curtea Constituțională , Universul Juridic, București, 2015.
338 Gheorghe Iancu, Proceduri constituționale: drept procesual constitutional , Monitorul Oficial, București, 2010.

136 At the same time, throughout its jurisprudence, the Court has also come to extent of the
Parliament’s powers when a) it re -examines a bill before promulgation, at the President’s
request and b) it amends a bill before promulgation, at the Court’s request.
The next part provides a brief account of each decision the Constitutional Court of
Romania has issued on the abstract constitutionality control of laws until the 2012 legislative
elections. As I have previously mentioned, from as far as my research allowed me, this is a
novelty in the current Romanian literature. The Court’s decisions were summarized in terms of
i) elements of identification; ii) author of the referral; iii) motiv ation; iv) context; v)
constitutional provisions allegedly breached; vi) the Court’s decision; vii) other explanations
and interpret ations of the Fundamental Law.
Finally, the last section deals with a comparative analysis of the Court’s decisions. The
dimensions examined were the following: 1) status – whether or not the reference for
constitutionality review had been admitted, partially admitted or dismissed; 2) frequency of
notifications – a timeline which illustrated the periods in which these notific ations increased;
3) duration of the deliberation – the times necessary from the moment the Court is notified until
it issues its decisions; 4) constitutional provisions allegedly breached; and 5) positions of the
other public authorities notified by the C ourt, according to its procedures – in order to examine
the extent to which the representatives of these public authorities ally with the President or
group against him and his request for constitutionality review, in accordance with their political
affili ations.

4.5. THEORETICAL FRAMEWORK
The first prerogative the Constitutional Court possesses, that of the abstract
constitutionality of laws, offers the President of Romania a power which resembles, to a certain
extent, the veto power of the President of t he United States of America, as I have previously
mentioned. The head of state may, according to article 77 paragraph (2)339 return a law he
disagrees with to Parliament. He may only do so once, obliging the Parliament to reexamine it,
but in the end, the Pa rliament may or may not amend the law returned by the President. Then,
the President can still withhold the promulgation of a law by sending it to the Constitutional

339 Before signing it, the President of Romania may ret urn a law to Parliament for reconsideration, and he may do
so only once.

137 Court of Romania for a constitutionality review340. Since the decisions of the Court are
generally binding, if the constitutionality reference is admitted, the Parliament will have to
comply with the Court’s decision and subsequently amend, supplement or eliminate the
respective law altogether. If, however, the Court dismissed the President’s ref erence of
unconstitutionality, within 10 days from receiving the Court’s ruling, he is obliged to
promulgate it, regardless of whether he agrees with it or not.
Professor Cristian Ionescu defined the constitutionality control of laws as “the ensemble
of normative dispositions which regulate the activity of verifying the conformity of laws and
other normative acts with the dispositions of the fundamental law”341. Another definition of the
abstract constitutionality control of laws is the one advanced by Clau dia Gilia, who argues that
“constitutionality control represents an essential condition for the rule of law state because it
guarantees the actual supremacy of the Constitution, the supreme juridical act on which the
entire juridical order in a state is ba sed on”342. Both of these definitions are based on the theory
of the supremacy of the Constitution, according to which the Fundamental Law is superior and
more important than all other laws and as such, any given law in a rule of law state should be
in accor dance with the constitutional provisions343.
Apart from the definitions and explanations set out by constitutional experts, the
jurisprudence of the Constitutional Court of Romania has also offered numerous clarifications
on the meaning, causes, implicatio ns and consequences of the constitutionality control
throughout the years. Although there were only 24 references of unconstitutionality the head of
state notified the Court with, their specificity provided an appropriate context in which
additional theore tical explanations were provided.
To begin with, it is important to emphasize that the Constitutional Court cannot be
notified by the President of Romania, in accordance with the provisions of article 146 letter a)
to examine the constitutionality of a l aw already in force. Such laws, which have already started
to produce its effects, are to be examined during the a posteriori constitutionality control, as

340 According to article 77 paragraph (3): “Where the President may have requested reconsideration of a law or
where such may have been subjected to a constitutionality review, promulga tion shall follow within 10 days from
receipt of the law as is passed after reconsideration, or from receipt of the decision ruled by the Constitutional
Court acknowledging its constitutionality”.
341 Cristian Ionescu, Drept constitutional și instituții politice – Curs sinteză , Hamangiu, București, 2012, p. 113.
342 Claudia Gilia, Manual de drept constituțional și instituții politice , Hamangiu, Bucharest, 2010.
343 Cristian Ionescu, Drept constitutional și instituții politic e… op. cit ., 2012,, p. 112 – “The theoretical justification
of the supremacy of the Constitution resides in its very political and juridical character. Thus, the people’s supreme
will in what concerns the objectives and the tools of exercising political po wer are expressed in the Constitution.
The constitutional norms set the main tools of government, they establish the authorities which will government
and the relations between those”.

138 exceptions of unconstitutionality. To be more precise, the Court ruled that only those laws
which ha ve not yet been promulgated can be accepted for the abstract constitutionality review.
An example in case is the very first decision on this matter, in 1999, when the Court established
that “in what regards the legality of the notification, the Court finds the Law on the organization
and holding of the referendum has not been promulgated. Hence, there are no constitutional or
legal impediments for conducting the constitutionality control”344. More extensively, in 2006,
the Constitutional Court explained that:
“the a priori constitutionality control is exercised by the Constitutional Court
only on laws prior to their promulgation, and not on the dispositions of a law in effect.
Regardless of the connections which may be made between the modifying and the
modifi ed text, the Constitutional Court, in accordance with article 146 letter a), cannot
pronounce in the a priori constitutionality control but on the modifying text of the law
which is to be submitted to promulgation and cannot extend the unconstitutionality
control to the modified text in a law into force. […] To do otherwise would mean to
breach the constitutional dispositions concerning the different treatment applicable in
the case of constitutionality control, as it refers to laws prior to promulgation or to
promulgated laws, published in the Official Gazette of Romania and entered into
force”345.
Furthermore, in the same decision in 2006, the Court also explained what categories of
laws are eligible for constitutionality control:
“the constitutionality co ntrol of a law is triggered, under the conditions
of article 146 letter a) of the Constitution before its promulgation . Since the
constitutional text does not distinguish, by ‘laws’ as object of constitutionality
control, we also understand ‘the laws on th e approval or dismissal of an
ordinance’, regardless of its nature, ‘ordinary laws’ or ‘organic laws’. […] In
such a situation, the a priori constitutionality control of a law of dismissal of
an ordinance may concern only its extrinsic constitutionality, i n terms of
compliance with the constitutional procedures for debate and adoption”346.
Not only does the Constitutional Court not examine those laws that had already been
promulgated, but in reviewing the constitutionality of those laws which had not been
promulgated, the Court may not associate the two categories of law, even if they are, indeed,
connected: “according to article 146 letter a) of the Constitution, the a priori constitutionality
control is exercised by the Constitutional Court only on laws befo re their publication, and not
on the dispositions of a law already into force. Regardless of the connections which can be
made between the amending text and the amended text, the Constitutional Court, based on
article 146 letter a) of the Constitution, can not pronounce itself during a priori control but on

344 Decision No. 70/05.05.1999, published in the Official Gazette of Roma nia No. 221/19.05.1999, p. 7.
345 Decision No. 498/08.06.2006, published in the Official Gazette of Romania No. 554/27.06.2006, p. 4.
346 Ibidem.

139 the amending text of the law which will be subjected to promulgation and cannot extend the
unconstitutionality control of the amended text from a law already in force. […] To do
otherwise would mean to br each the constitutional dispositions regarding the different treatment
applied in the case of the unconstitutionality control, as it refers to laws before promulgation or
to promulgated laws, published into the Official Gazette and in force”347. On the other hand,
the “Constitutional Court pronounces both on the provisions mentioned in the notification, as
well as on those which, necessarily and obviously, cannot be dissociated; the Court extends the
constitutionality control on the entire Law on amending and supplementing the Law on National
Education no. 1/2011”348.
Secondly, the only legal reference to which all laws submitted to the abstract
constitutionality control are examined is the Fundamental Law. As previously explained, the
supremacy of the Constitu tion requires that all laws are drafted and adopted in accordance to
it: “according to its competency, the Constitutional Court, in the exercise of the constitutionality
control, pronounces only on the meaning of the law contrary to the Constitution, in ac cordance
to article 2 paragraph (3) of the final theses from Law no. 47/1992”349. Consequently, no other
laws may be invoked in the motivation for a constitutional review request, and the
Constitutional Court is not competent to examine the correlation betwe en a given law and any
other law except the Constitution.
Moreover, not only should the notification for the abstract constitutionality control of
laws refer to the Fundamental Law, but it should do so in a precise manner: “the critique cannot
be retain ed, as it regards an omission of the legislator, which the Court cannot complement by
constitutionality review, thus rendering it as inadmissible. Independent from this, it must be
noted that, by its declared object, such a critique does not refer to the l aw, on the whole, but
necessarily, to certain dispositions from it, which must be identified. In the absence of any
indication of the legal texts considered unconstitutional, the notification is, also from this
perspective, inadmissible”350. On this note, th e Constitutional Court cannot decide which
constitutional provisions are allegedly breached: “the Court finds that the motivation in the
notification does not contain references to the violation of any constitutional article or principle.
Taking into accou nt the dispositions of article 10 paragraph (2) of Law no. 47/1992 on the
organization and functioning of the Constitutional Court, according to which ‘the institutions

347 Idem , p. 4.
348 Decision No. 681/27.06.2012, published in the Official Gazette of Romania No. 477/12.07.2012, p. 5
349 Decision No. 70/05.05.1999, published in the Official Gazette of Romania No. 221/19.05.1999, p. 7.
350 Decision No. 418/18.07.2005, published in the Official Gazette of Romania No. 664/26.07.2005, p. 7.

140 of proceedings shall be made in writing and they shall be motivated’ – this critique wi ll be
dismissed as inadmissible, as the Court cannot substitute to the author of the notification in
what regards invoking a reason of unconstitutionality”351. Another example in point occurred
in 2005, when the Court established that “in the absence of any indication of the legal texts
considered to be unconstitutional, the notification is inadmissible”352.
In addition, the Constitutional Court of Romania cannot decide a law is unconstitutional
simply because the respective law should have been otherwise sy stematized or stylistically
formulated. The judges maintained that “the systematization of a legal disposition in a
normative act represents a problem of legislative technique, not one of constitutionality”353.
Illustrative in this respect was President Emil Constantinescu’s request in his 1999 reference of
unconstitutionality to stylistically, lexically and structurally amend a law because he disagreed
with the word order and sentence topic of several texts. Another example of jurisprudence is
that “the Cour t finds that the arguments brought to support the unconstitutionality critique have
no support in any constitutional text or principle […] The present notification poses no
constitutionality issue, but aspects pertaining to the legislator’s option regardin g the legal
terminology usage within the normative acts it adopts”354. The Court further explained in
another decision that “censoring the legislative technique deficiencies is of Parliament’s
competency, which will be able to reexamine the dispositions decl ared unconstitutional […].
This would also necessarily involve the adoption of regulation corrections, which, however,
exceeds the constitutional competencies of the Court, which lacks the quality of positive
legislator”355. Still, in Decision no. 1018/19.07 .2010 the Constitutional Court of Romania did
rule on the drafting of a law, as follows: “the Court finds that the normative act had not been
appropriately systematized nor drafted in a legal language and style, specific normative,
concise, clear and preci se, which would exclude any ambiguity”.
On this note, the Constitutional Court further explained that “the systematization of a
legal disposition in a normative act constitutes a matter of legislative technique, not one of
constitutionality”356 because “the law does not grant the Constitutional Court the competence

351 Decision No. 56/14.01.2009, published in the Offi cial Gazette of Romania No. 46/27.01.2009, p. 7.
352 Decision No. 418/18.07.2005, published in the Official Gazette of Romania No. 664/26.07.2005, p. 7.
353 Decision no. 37/1996 published in the Official Gazette of Romania of Romania no. 141/08.07.1996.
354 Deci sion No. 417/14.07.2005, published in the Official Gazette of Romania No. 772/25.08.2005, p. 3.
355 Decision No. 418/18.07.2005, published in the Official Gazette of Romania No. 664/26.07.2005, p. 8.
356 Decision No. 37/1996, published in the Official Gazette of Romania No. 141/08.07.1996.

141 to amend drafting errors and, consequently, to give another formulation to the legal texts
submitted for review”357.
How many times can the President notify the Court on the constitutionality contr ol of a
law? In Decision no. 417/14.07.2005 published in the Official Gazette no. 772/25.08.2005,
President Train Băsescu argued that “there is and there can be no limit on the number of
unconstitutionality notifications the President of Romania is entitle d to formulate prior to
promulgating a law, all the more so since the option of sending the law for reexamination has
already been used in this case and the unconstitutional norm has been introduced after the
Constitutional Court pronounced itself, precise ly in order to remedy the vice it had ascertained.
Consequently, even though the notification refers to articles of law on which the Court had
already pronounced, we cannot be considered to be faced with an impediment, because the
criticized norm is differ ent than that previously subjected to constitutionality review”358. The
Constitutional Court of Romania agreed with his claim, in so far as “the criticized norms are
different than those previously subjected to constitutionality review”359. In this case, the
Parliament had modified the law after the Court decided the initial form of the bill was
unconstitutional – and as such, the Court admitted its competency in this case, where it had been
notified twice about the same law. However, on a general level, the Co nstitutional Court itself
also declared that “the dispositions of article 77 paragraph (2) of the Constitution, do not
expressly establish a limit to restrain Parliament’s prerogative on resuming the legislative
process, after the re -examination request fo rmulated by the President of Romania”360.
After the President of Romania sends a law for reexamination to Parliament, “the Court
finds that these constitutional norms361 impose submitting the law to the final vote, and not the
report on the request of reexami nation issued by the President of Romania”362. The
Constitutional Court further detailed its explanations on the Parliament’s activity in a 2010
decision:
“In what regards the debate of a reexamination request formulated by the
President of Romania, the Pa rliament deliberates only within the limits of the
request, but is obliged to express itself on all of the texts with that law which
refer to an issue raised by the President of Romania, even in the absence of

357 Decision No. 70/05.05.1999, published in the Official Gazette of Romania No. 221/19.05.1999, p. 9
358 Decision No. 417/14.07.2005, published in the Official Gazette of Romania No. 772/25.08.2005, p. 1.
359 Idem , p. 2.
360 Decis ion No. 515/24.11.2004, published in the Official Gazette of Romania No. 1195/14.12.2004, p. 5.
361 Article 77 paragraph (2) of the Fundamental Law.
362 Decision No. 1018/19.07.2010, published in the Official Gazette of Romania No. 511/22.07.2010, p. 3.

142 such an express mention in his request and to even make those legislative
technical correlations when modifications are made.
The Parliament, being the sole legislative authority of the country, according
to the provisions of article 61 paragraph (1) of the Constitution, with regard
to the demands in the President of Romania’s reexamination request, may
adopt any kind of solution it considers necessary. Thus, it may admit partially
or entirely the request, it may dismiss it or entirely or partially modify certain
texts connected to the reexamination r equest, including by re -correlating the
dispositions of the law”363.
It is also important to note that the Constitutional Court of Romania may, ex officio ,
pronounces itself on legal texts connected with the texts referenced for constitutionality control
by the President. With Decision no. 418/18.07.2005 published in the Official Gazette no.
664/26.07.2005 the Court increased the extent of the notification received from the President,
maintaining that, in so far as an article submitted for constitutional rev iew is strongly connected
with another, the Court may examine the related article even without having been called to do
so364.
The categories of laws the Constitutional Court of Romania examines in the exercise of
its abstract constitutionality control ha ve also been expressly enumerated throughout its
jurisprudence, as follows: “The constitutionality control of a law is set, in the conditions of
article 146 letter a) of the Constitution, ‘prior to their promulgation’. Since the constitutional
text does no t make any distinctions between ‘laws’ as object of the constitutionality control, it
also comprises ‘the laws of approval or dismissal of certain ordinances’, regardless of their
nature, ‘ordinary laws’ or ‘organic laws’”365 and “the a priori constitutional ity control of a law
of dismissal of an ordinance may only concern its extrinsic constitutionality in terms of
respecting the constitutional provisions of debate and adoption”366. However, “the lack of
correlation existing between different laws does not fal l under constitutionality control”367.
Decision no. 991/2008 published in the Official Gazette no. 682/06.10.2008: “the texts
in the President of Romania’s request must be reexamined, as well as those related to them, a
technical -legislative correlation of all dispositions from that law being necessary. In this
context, even some dispositions of the law which were not expressly included in the

363 Idem, p. 10.
364 According to article 18 paragraph (1) of Law no. 47/1992: “The debate shall take place in the plenum of the
Constitutional Court, with the participation of the Judges of the Court, on the basis of the act on the case submitted
to the Court, of the deeds and of the viewpoints received, both on the provisions mentioned in the respective act
and on those which cannot obviously and necessarily be dissociated”.
365 Decision No. 498/08.06.2006, published in the Official Gazette of Romania No. 554/27.06 .2006, p. 4.
366 Idem , p. 4.
367 Decision No. 1056/14.11.2007, published in the Official Gazette of Romania No. 802/23.11.2007, p. 4. Also
stipulated in Decision no. 151/12.10.1999 published in the Official Gazette of Romania no, 3/07.01.2000.

143 reexamination request. The Parliament deliberates only within the limits of the reexamination
request, but is oblig ed to express on all texts from the law which refer to an issue raised by the
President of Romania, even in the absence of an express mention in his request. The Parliament,
as the sole legislative authority of the country, according to the provisions of a rticle 61,
paragraph (1) of the Constitution in relation to the requests included in the President of
Romania’s request of reexamination, may adopt any kind of solution it considers necessary.
Thus, it may admit fully or partially the request, it may rejec t it or it may entirely or partially
amend certain texts related to the reexamination request, including by re -correlating the
dispositions of the law”.
Finally, the Constitutional Court of Romania not only declines any role as a positive
legislator which substitutes the Parliament, but also declines its competency to amend in any
way the provisions of a law submitted to constitutionality control: “the law does not grant the
Constitutional Court the competency to correct drafting errors and, consequently, to give a
different formulation to the texts of law submitted to control”368. This implies that the Court
will not correct the law found unconstitutional, nor will it systematize it or otherwise amend it
in accordance with the requests of the author of the n otification.
However, the Court did pronounce on the elimination of several legal texts, appreciating
its futility: “the Court retains that the modifications proposed by the criticized law are imprecise
and inappropriate, since expressions whose scope ca nnot be determined are used. Therefore,
the Court finds that, under the conditions in which, through the criticized law, insufficiently
elaborated measures are regulated, with an obvious unconstitutional effect, their elimination is
necessary”369.
Also, the Constitutional Court of Romania cannot decide on whether or not any
alternative texts suggested by any party involved in the abstract constitutionality control are
more appropriate than the original text of the law, nor can it decide on whether or not the
Parliament should adopt the alternative texts proposed by any other party involved in the case.
Even when the law examined is found unconstitutional: “although the unconstitutionality
objection is grounded […] the Court cannot pronounce on the alternative text proposed in the
notification, considered to be in accordance with the constitutional dispositions in the contents
of the objection, since the final drafting is the exclusive attribution of the legislator, according

368 Decision No. 7 0/05.05.1999, published in the Official Gazette of Romania No. 221/19.05.1999, p. 9.
369 Decision No. 55/14.01.2009, published in the Official Gazette of Romania No. 46/27.01.2009, p. 4.

144 to article 58 paragraph (1) of the C onstitution”370. Once again, the Constitutional Court cannot
substitute the Parliament and assume the role of a positive legislator, it can only ascertain the
unconstitutionality of laws and, because its decisions are generally binding, the Parliament will
have to consequently amend the law found unconstitutional – but on its own accords.
With regard to the effect of the Court’s decisions on the abstract constitutionality control
of laws, it is important to note that they are generally binding and produce erga omnes effects.
This implies that, once a law has been declared unconstitutional by the Constitutional Court of
Romania , it cannot be evoked in Courts and is de jure abrogated – “the Court observes that the
erga omnes obligativity of the decisions prono unced in the constitutional disputed claims results
from the very essence of the constitutionality control”371.
Last, but not least, the effects of a decision of unconstitutionality in accordance to the
provisions of article 146 letter a) have best been exp lained in the Court’s jurisprudence, as
follows: “the normative provision whose unconstitutionality had been ascertained can no longer
be applied, de jure ceasing its effects for the future. Of course that in the aftermath of a decision
by which the uncons titutionality of a law or of an ordinance is established, the Parliament will
interfere, amending or abrogating the normative act declared unconstitutional. But this does not
mean that in the event such a measure is not taken or delayed, the decision of th e Constitutional
Court does not produce its effects”372. However, it is also important to note that the
Constitutional Court of Romania cannot actually abrogate a law it rules as unconstitutional,
since this, again, would be an interference with the attribut ions of the Parliament. Instead,
“although the Court does not have the competency to abrogate a legal text, this power lying
exclusively with the Parliament, the effect of its decisions of ascertaining the unconstitutionality
of a law or of an ordinance, o r of a disposition from a law or an ordinance is similar to the effect
of abrogation”373. Also, the Constitutional Court can also examine the manner in which the
Parliament amends the laws declared unconstitutional in accordance with the Court’s decisions.
For example, the Court examined “within the control triggered by the President of Romania’s
notification, the manner in which the Parliament of Romania correlated the provisions of the
Law on reform in the areas of property and justice, as well as certain a djacent measures with

370 Decision No. 70/05.05.1999, published in the Official Gazette of Rom ania No. 221/19.05.1999, p. 10.
371 Decision No. 98/05.04.2001, published in the Official Gazette of Romania No. 256/18.05.2001, p. 3.
372 Ibidem.
373 Ibidem. .

145 the Court’s decision no. 375/06.07.2005 published in the Official Gazette no.
591/08.07.2005”374.

4.6. PROCEDURES
Apart from the general procedures previously explained, the Constitutional Court of
Romania also has a set of jurisdicti onal procedures specific to the a priori constitutional control
of laws, as stipulated by articles 15 – 18 of Law 47/1992.
To begin with, eligible applicants for this case are the President of Romania, the
Government, the President of the Chamber of Deput ies, the President of the Senate, the
Advocate of the People, the High Court of Cassation and Justice and either at least 50 deputies
or 25 senators375. However, for the purposes of this chapter, only those procedures specific to
the cases in which the Court is notified by the President of Romania will be taken into account.
According to the Fundamental Law, the head of state may send a bill back to Parliament for re –
examination, before promulgating it. If the Parliament decides to preserve the respective bil l in
its original form, disregarding the President’s request, he may also notify the Constitutional
Court and ask for a constitutional review before promulgating that law. If the Court also decides
the law is constitutional, even if he still disagrees, the President has no choice but to promulgate
that respective bill. Nonetheless, it is important to underline that this type of constitutional
review is specific only to those laws which have not yet been promulgated by the President. For
those which have alr eady been promulgated and entered into force, the Constitutional Courts
decides on the exceptions of unconstitutionality raised before courts of law “at the request of
either party or ex officio , by the court of law or of commercial arbitration hearing the case”376.
Equally important is note that the Court establishes a pre -condition of eligibility for
notifications in this area of jurisdiction: in its final form, 5 days before promulgation or two
days in the event the law has been passed under an expeditiou s procedure, it must be presented
to the Advocate of the People, the Secretary General of each Parliament Chamber, the
Government and the High Court of Cassation and Justice377. Within 24 hours from registering
the notification made by the President of Roman ia, the Court also notifies the Government, the

374 Decision No. 419/18.07.2005, published in the Official Gazette of Romania No. 653/22.07.2005, p. 2.
375 https://www.ccr.ro/Legea -nr-471992 [accessed on the 12th of September 2013].
376 Article 29, paragraph (1) of Law 47/1992, also available at https://www.cc r.ro/Legea -nr-471992 .
377 Article 15 paragraph (2) of Law no. 47/1992.

146 President of the Chamber of Deputies and the President of the Senate, setting the official date
for the debates in the case at hand.
According to article 17 paragraph (1) “the Presidents of the two Chambers of
Parliament, the Government and the Advocate of the People may present their point of view in
writing, by the date of the debates”378 and according to paragraph (2) “the Government’s point
of view shall be presented only under the signature of the Prime -Minister”379. As such, it
appears that, unlike in the case of the legal conflicts of a constitutional nature where the Court
requests the public authorities involved in the conflict their written viewpoints, the contestation
of a law does not require an explan ation from the institution which issued it. From my analysis
of the Court’s jurisprudence, I have seen that it is seldom that the Prime -Minister or the
Presidents of the two Parliament Chambers choose to express their viewpoints on the
unconstitutionality allegations of the President. Nevertheless, I believe that such an explanation
would be pertinent and more than welcomed in the context in which the President contests the
constitutionality of a piece of legislation issued by the legislative body.
Based o n the documents submitted to the request for constitutionality review, the
viewpoints expressed in written by the Government, President of Senate and the President of
the Chamber of Deputies, as well as on the statements made during the ensuing debates in the
plenum, the Court then deliberates and issues a decision which “shall be pronounced by the
majority of the judges’ votes and […] shall be notified to the President of Romania”380. Only if
the law scrutinized is found, indeed, unconstitutional, the Cour t also notifies the Prime -Minister
on behalf of the Government and the Presidents of the two Chambers. The reason for which
these other two public authorities are notified only in the cases of admission is that, pending a
decision of unconstitutionality, “ the Parliament shall be bound to re -examine the respective
provisions in order to bring them into accord with the decision of the Constitutional Court”381.
Hence, the decisions of the Court in the abstract constitutionality control of laws have a general
and binding effect, producing erga omnes effects which require the Parliament to modify any
given bill in accordance with the Court’s decision. Otherwise, if the Parliament fails to adapt
those legal provisions declared unconstitutional – either entirely or p artially – the President of
Romania may submit the same law, with the slight modifications made by the Parliament – to
the Constitutional Court of Romania for another constitutional review before promulgation.

378 https://www.ccr.ro/Legea -nr-471992 [accessed on the 12th of September 2013].
379 Ibidem .
380 Article 18 paragraph (2) of Law no. 47/1992.
381 Article 18 paragraph (3) of Law no. 47/1992.

147
4.7. OVERVIEW OF THE COURT ’S DECISION
This se ction aims at providing a brief overview of the decisions issued on the
constitutional review of laws before promulgation, as the Constitutional Court of Romania issue
from 1992 until 2012.
From a simple statistical overview, it becomes apparent that mos t of these requests for
constitutionality review were made by President Traian Băsescu (more specifically, 22 from a
total of 24 cases on article 146 letter a), whereas Presidents Emil Constantinescu and Ion Iliescu
each submitted only one such notificatio ns during their entire mandates.

4.7.1 . DECISION NO. 70/05.05.1999
The first decision the Court issued was during President Emil Constantinescu’s term.
He notified the Court on April 2nd 1999 with several objections on the constitutionality of the
Law o n the organization and holding of a referendum, adopted by the Chamber of Deputies and
the Senate during the meeting on 22.02.1999 – more specifically, he contested the provisions
stipulated by article 2, paragraph (1), article 6 paragraph (1), article 9, article 11 paragraph (2),
article 12 paragraph (1), letter B.h, article 15 paragraph (1), article 17 paragraphs (1) and (2),
article 18, article 30 paragraph (2) and article 45. He motivated his objection by claiming that
the following articles of the Fund amental Law of 1991 had been supposedly breached: Article
90, article 95 paragraph (3), article 147 paragraph (3), article 72 paragraph (3), letter c), article
2 paragraph (1), article 72 paragraph (2) letter c), article 81 paragraphs (1) and (2), article 144
letters d) and g).
According to the procedural rules on this matter previously explained in this chapter,
the Constitutional Court of Romania communicated the President’s unconstitutionality referral
to the Government and the two Presidents of the bic ameral Parliament, whose points of view in
this issue were requested. Perhaps also because this was the first such case in the Court’s
jurisprudence and a procedural novelty at that time, Ion Diaconescu (PNȚ -CD) – President of
the Chamber of Deputies, Petre Roman ( DP) – President of the Senate and Radu Vasile (PNȚ –
CD) – Prime -Minister382 all responded to the Court’s request.
Contrary to what might have been expected, given their political affil iation, they all
partially admitted the President’s objection, although for different articles of that respective

382 The Prime Minister represents the Government.

148 law. Therefore, it appears that even when the President and the Prime -Minister and, in this case,
the President of the lower Parliament Chambe r do share the same political affiliation, they do
no necessarily support the President’s unconstitutionality reference.
Consisting of judges Costică Bulai, Constantin Doldur, Ioan Muraru, Kozsokar Gabor,
Nicolae Popa, Lucian Stângu and Romul Petru Vonica, the Court plenum decided to partially
admit the unconstitutionality of the law reviewed – only with regard to article 1 1 paragraph (2),
article 12 paragraph (1) letter B h) and article 45. Their decision was issued on May 5th 1999,
so it took the Court 33 days to deliberate on this instance.

4.7.2 . DECISION NO. 98/05.04.2001
Formulated by President Ion Iliescu, this unc onstitutionality objection referred to the
Law on the rejection of the Government Emergency Ordinance no. 23/1999 on the abrogation
of Law no. 31/1996 on the regime of state monopoly.
This law consisted of only one article, which, as the title suggests, w as on the rejection
of the Government Emergency Ordinance previously mentioned. In his motivation, Ion Iliescu
claimed that this law “was adopted following a time period greater than 1 year from the moment
when the Constitutional Court established the ordi nance’s unconstitutionality”383 and that “the
criticized law breaches the obligativity of the erga omnes effects of the unconstitutionality
objection decision, as pronounced by the Constitutional Court”384.
In accordance with the provisions of art 17 (1) from Law no. 47/1992385, the Court
notified and requested the points of views on this objection from the President of the Chamber
of Deputies – Valer Dorneanu ( PDSR/SDP), the President of the Senate – Nicolae Văcăroiu
(PDSR/SDP) and, on behalf of the Government – Prime -Minister Adrian Năstase (PDSR/SDP).
Ion Iliescu’s own political affiliation, on this note, was also PDSR/SDP, so it is no surprise that
Valer Dorneanu supported him, by also claiming that the law in this respective was
unconstitutional. Adrian Năsta se and Nicolae Văcăroiu, however, did not communicate their
points of view.

383 Decision No. 98/05.04.2001, published in the Official Gazette of Romania No. 256/18.05.2001, p. 1.
384 Idem , p. 1.
385 “The Presidents of the two Chambers of Parliament, the Government and the Advocate of the Peo ple may
present their point of view in writing, by the date of the debates”.

149 Finally, the Constitutional Court of Romania found that the Law on the rejection of the
Government Emergency Ordinance no. 23/1999 on the abrogation of Law no. 31/1996 on the
regime of state monopoly was breaching the constitutional provisions of article 145 paragraph
(2) of the Fundamental Law and, as such, issued a decision of admission on the 5th of April,
2001.

4.7.3 . DECISION NO. 515/24.11.2004
The second case of constituti onality control of a law before promulgation during
President Ion Iliescu’s term of office occurred in November 2004 and regarded the Law on the
approval of Government Emergency Ordinance no. 24/2004 on the increase of transparency in
the exercise of publi c dignities and offices, as well as on the intensification of measures of
preventing and fighting corruption, the part on the dispositions of article 28 paragraph (5) of
the Government Emergency Ordinance no. 43/2002.
As in the previous case, only Valer D orneanu, President of the Chamber of Deputies
remitted a point of view in which he validated Iliescu’s unconstitutionality claim, whereas
neither Nicolae Văcăroiu, nor Adrian Năstase expressed any of their opinions on this matter.
Apart from the specific, case -related arguments, Valer Dorneanu also included several
theoretical clarifications, the most interesting of which being one where he explains the role of
the President of Romania to the Constitutional Court:
“The President of Romania, upon promulgating the law ‘performs a
control of constitutionality, of opportunity, seek s to keep a harmony of
domestic legislation, some concurrences, avoiding contradictions and
discriminations, and pronounces upon the final form of the law, being entitled
to return the respective law to Parliament only once. In case the Parliament
surpasse s the limits of the notification, ‘the President of Romania is put in the
situation to promulgate a modified law upon which he cannot exert any real
opportunity control”386.
The constitutional provisions considered violated in the head of state’s notificati on were
those of article 111 paragraph (1), article 138 paragraph (5) and article 77 paragraph (2). Also,
the head of state pointed out that the sources for financing the increase of the compensations
for certain members of the judicial system personnel we re not mentioned and neither was the
Government informed on this matter. In addition, he argued that “this increase was made when
the legislative process was resumed, following the re -examination request for the criticized law,

386 Decision No. 515/24.11.2004, published in the Official Gazette of Romania No. 1195/14.12.2004, p. 2.

150 formulated on July 14th 2004 ”387, “that the Parliament had surpassed the limits of the re –
examination request”388 and that “the dispositions provided by the sole article, point 8 of the
Law on the approval of Government Emergency Ordinance no. 24/2004, the part on the
dispositions of art icle 28 paragraph (5) of the ordinance were adopted by breaching some
constitutional norms regarding the enactment procedures”389.
Even though the President of the Senate did not express his point of view on the
unconstitutionality allegations, the Secretar y General of the Senate did submit a series of
documents and transcripts of debates which demonstrated that the Government (by
representatives of the Minister of Justice and of the Minister for Administration and Domestic
Affairs) was aware of this bill an d, in fact, endorsed it. Thus, the Constitutional Court of
Romania declared this law constitutional, dismissing this second notification made by President
Ion Iliescu towards the end of his mandate, on the 24th of November 2004.

4.7.4 . DECISION NO. 217/2 0.04.2005
Early in his first mandate, President Traian Băsescu began a long series of 21
constitutionality control before promulgation requests. On April 4th 2005, he challenged the
constitutionality of several articles in the Law on the free circulation of Romania n citizens
abroad – namely Article 2 paragraph (2), article 18 paragraph (3), article 30 paragraph (1),
article 31 paragraph (1), article 32 and article 36. In his view, they violated the provisions
established by articles 25, 53 and 16 of the 2003 Fundame ntal Law, as they limited a group of
people’s freedom of circulation.
The Government, represented by Prime -Minister Călin Popescu Tăriceanu expressed its
point of view, disagreeing with Băsescu’s claims, whereas the Presidents of the two Parliament
Chambers did not express their opinions. Although the Prime -Minister had a d ifferent political
affiliation, being member of the National Liberal Party, he was part of the winning party
coalition “Justice and Truth” as the head of state, who won the 2004 elections in this coalition,
on behalf of the Democratic Party. Thus, even if the two representatives of the executive were
part of the same political coalition, their opinion on the scrutinized law were divergent. By
contrast, the Social -Democratic Presi dent of the Chamber of Deputies, Adrian Năstase and the

387 Idem , p. 1.
388 Idem , p. 4.
389 Ibidem.

151 Social -Democratic President of Senate, Nicolae Văcăroiu, did not submit any written points of
views on the unconstitutionality allegations, even if their political affiliation was opposite to
that of the President.
On April 20th 2005, judges Ioan Vida, Șerban Viorel Stănoiu, Petre Ninosu, Ion
Predescu, Kozsokar Gabor, Constantin Doldur, Aspazia Cojocaru and Acsinte Gaspar partially
admitted the Law on the free circulation of Romanian citizens abroad was unconstitutional –
with respect to articles 28 paragraph (1) and article 26 and “in so far as they refer to the under
aged married woman”390.

4.7.5 . DECISION NO. 417/14.07.2005
Published in the Official Gazette No. 772/25.08.2005, Decision No. 417/14. 07.2005
referenced the constitutionality control of the Law on the free circulation of Romanian citizens
abroad, as amended after the reexamination request of 05.11.2005 and Constitutional Court’s
Decision no. 217/20.04.2005.
On this occasion, President T raian Băsescu argued that the respective law violated the
constitutional provisions stipulated by article 16 paragraph (1), article 48 and article 53.
Although this notification regarded a law he had previously submitted to the Court for
constitutionality control before promulgation, he motivated that:
“…there is and there cannot be any limitation on the number of
unconstitutionality references the President of Romania may formulate before
promulgating a law, even more so since the option of sending the la w for
reexamination had been exhausted in this case, and the unconstitutional norm
had been introduced after the Constitutional Court pronounced precisely for
remedying the vice it had found. Therefore, even though the notification
refers to articles on wh ich the Court has pronounced upon, it cannot be
considered that we are faced with an impediment, because the criticized norm
is different than that previously submitted to constitutionality control”391.
Indeed, this was the first time the Constitutional Cou rt of Romania was called to verify
the constitutionality of a law before promulgation, on two occasions and represents one of the
most important pieces of jurisprudence. The Court agreed that “the criticized norms are
different than those previously submit ted to constitutionality control, so according to article 146

390 Decision No. 217/20.04.2005, publish ed in the Official Gazette of Romania No. 417/18.05.2005, p. 8.
391 Decision No. 417/14.07.2005, published in the Official Gazette of Romania No. 772/25.08.2005, p. 1.

152 paragraph a) of the Constitution and article 15 of Law no. 47/1992, the Constitutional Court is
competent to solve the unconstitutionality notification ”392.
Following a very expeditious process o f deliberation – the shortest, in fact – in only 2
days, the Court dismissed this unconstitutionality reference, finding that “the arguments
brought in support of the unconstitutionality critique lack support both in text and constitutional
principle. As s uch, the present notification does not rise a constitutionality issue, but aspects
regarding the legislator’s option on the usage of legal terminology within the normative acts it
adopts”393. Also, it is interesting to observe that, at least in the text of t he Decision – which is
the only material on the case publicly available – the Court did not request any points of view
from the Government and the Presidents of the two Parliament Chambers, or at least none was
provided. In the database I included at the e nd of this thesis, I noted the latter option.

4.7.6 . DECISION NO. 418/18.07.2005
One of the most controversial laws submitted for constitutionality control before
promulgation was the Law on reproductive health and medically assisted human reproductions .
On the whole, President Traian Băsescu motivated his request based on allegations that article
49 paragraph (2), article 26, article 21, article 126, article 22, article 29, article 33 and article
16 of the Constitution had been breached.
Upon the Court’s request, the Government, as represented by Prime -Minister Călin
Popescu Tăriceanu supported Băsescu’s unconstitutionality claims394, whereas both Adrian
Năstase and Nicolae Văcăroiu did not communicate any points of view on behalf of the lower
and upper Par liament Chambers.
After only 3 days since receiving Traian Băsescu’s request, the Constitutional Court of
Romania pronounced itself and partially admitted that several legal provisions in the Law on
reproductive health and medically assisted human reprod uctions were unconstitutional, as
follows: article 2, article 3 letter n), o), r), article 5, article 7 paragraph (6), article 10, article 12
paragraph (1), (2), (3), (4), article 13 paragraph (1), article 15 paragraph (2) letter d), article 17

392 Idem , p. 2.
393 Idem .
394 He admitted that “the law submitted to control contains aspects wh ich are not clearly and rigorously
reglemented and, thus, susceptible of reservations regarding their constitutionality and may generate major
difficulties in the process of application” – p. 3 of the Decision No. 418/18.07.2005, published in the Official
Gazette of Romania No. 664/26.07.2005.

153 letter a), b), c), d), article 21 paragraph (1) and (4), article 28 letter a), article 29, article 30
paragraph (2), article 32, article 35, article 36 paragraph (2), article 12 and article 27.

4.7.7 . DECISION NO. 419/18.07.2005
The Law on reform in the areas of property and justice, as well as certain measures
related to the Constitutional Court’s Decision no. 375/06.07.2005 was also contested by
President Traian Băsescu during the same timeframe.
On this occasion, the Court’s decision was drafted in a more lac unar manner and it did
not mention the constitutional provisions allegedly violated nor did it specify whether or not
the representatives of the other public authorities (Senate, Chamber of Deputies and
Government) had remitted any points of view on this c ase. Again, as in another case previously
mentioned, the database included in this thesis noted that there were no such viewpoints
expressed.
On July 18th 2005, the Constitutional Court of Romania dismissed President Traian
Băsescu’s unconstitutionality objection, finding that “the reformulation of the texts of law
mentioned has been made in accordance with the reasoning in Decision no. 375/07.07.2005,
the law being therefore harmonized with the Co urt’s decision”395.

4.7.8 . DECISION NO. 279/22.03.2006
In 2006, President Traian Băsescu submitted only 2 unconstitutionality reference to the
Constitutional Court of Romania , based on article 146 letter a) of the Fundamental Law. The
first notification w as submitted on March 14th 2006 and regarded the unconstitutionality of the
Law on the statute of deputies and senators, more specifically the legal texts at article 22 – the
formulation “during mandate”, article 23 paragraph (3) – final sentence, article 28, article 35
paragraph (1) letters i) and j), articles 38 – 40, article 41 paragraphs (3) and (6), article 49
paragraphs (1) – (5) and article 50 paragraph (2).
In his view, these parts of the law violated the following constitutional provisions: articl e
1 paragraph (3), article 15 paragraph (2), article 16 paragraphs (1) and (2), article 69 paragraph
(1), article 72 paragraphs (1) and (3), article 111 and 138 paragraph (5). Most importantly, to

395 Decision No. 418/18.07.2005, published in the Official Gazette of Romania No. 664/26.07.2005., p. 2.

154 the head of state, this law “establishes both for the parli ament members in office as well as for
former parliament members, certain rights which, by their excessive nature, constitute into
privileges and, at the same time, discriminations between different categories of Romanian
citizens”396.
In what regards the positions of the other public authorities notified by the Court, the
President of the Chamber of Deputies and the Prime -Minister did not express their viewpoints,
while the President of the Senate, Nicolae Văcăroiu of the Social Democratic Party, dismisse d
the unconstitutionality allegations.
The plenum formed by judges Nicolae Cochinescu, Aspazia Cojocaru, Viorel Șerban
Stănoiu, Ion Predescu, Petre Ninosu, Acsinte Gaspar, Constantin Doldur and Kozsokar Gabor
decided that the President’s notification sho uld be partially admitted, and declared that only the
following articles were unconstitutional: article 22 – formulation “during mandate”, article 23
paragraph (3) – final sentence, article 28, article 35 paragraph (1) letters i) and j), as well as
paragra phs (2) and (3).
However, not all judges agreed with this decision. For the first time in the jurisprudence
of the abstract constitutionality control, a separate opinion was issued by judges Ion Predescu,
Aspazia Cojocaru and Petre Ninosu, who believed th at the provisions of articles 38 – 40 as well
as those of article 41 paragraph (3), which the Court’s plenum, by majority of its votes,
pronounced constitutional should, in fact, be considered unconstitutional. They motivated their
separate opinion by expl aining that:
“The outstanding particularity of adopting the Law on the statute of
deputies and senators consists in the fact that, in this case, the deputies and
the senators enact, in joint session, based on their own legislative initiative,
by organic l aw, for themselves, and the legiferation regards the rights, the
advantages – material and financial – all coming from the public money of
the state budget. In this special situation, which does not have a
reglementation of its own, the constitutional disp osition of article 142
paragraph (1) which obliges the Constitutional Court to safeguard and ensure
the supremacy of the Constitution becomes particularly active. Even for
Parliament members, the dispositions of the Constitution are mandatory, even
if they form the supreme representative body of the Romanian people and the
sole legislative authority of the country ”397.

396 President’s Address no. CA/33 3 from 28.02.2006, as quoted in Decision No. 279/22.03.2006, published in the
Offic ial Gazette of Romania No. 323/11.04.2006, p. 1.
397 Decision No. 279/22.03.2006, published in the Official Gazette of Romania No. 323/11.04.2006, p. 10.

155 The cases in which separate opinions have been issued by some constitutional judges
are especially important. These are the cases in which th e often alleged and controversial loyalty
of the constitutional judges is best displayed. In this instance, Ion Predescu was appointed by
the Senate and supported by the Social Democratic Party, Aspazia Cojocaru was also supported
by the Social Democratic Party, although nominated by the Chamber of Deputies, whereas
judge Petre Ninosu is the only one appointed by the President of Romania. Nevertheless, he
was appointed in 2001, by President Ion Iliescu, hence, his support also stemmed from the
Social Democr atic Party.
Contrary to popular belief, therefore, in this first example, constitutional judges do not
seem to bear any political allegiance to the political parliamentary group which supported and
nominated them.

4.7.9 . DECISION NO. 498/08.06.2006
The second case of abstract constitutionality control of laws at the request of the head
of state concerned the Law on the dismissal of Government Emergency Ordinance no. 99/2005
on amending and supplementing Law no. 3/2000 on the organization and holding o f the
referendum. In his notification, President Traian Băsescu pointed out that this law violates the
clauses at article 90, article 2, article 146 letter a) and article 115 paragraph (7) of the
Fundamental Law.
The President of the Senate was the only public authority r epresentative to have
expressed his viewpoint. Nicolae Văcăroiu dismissed Traian Băsescu’s claims once again and
also found his notification “partially inadmissible, since its object is the expansion of the
constitutionality review on some legal dispositio ns in effect”398.
On this occasion, the Court dismissed the unconstitutionality objection, finding that the
procedures on which it has been called to decide have been according with the Constitution and
it cannot review the constitutionality of a law alread y into force, as is the case of the Law no.
3/2000 on the organization and holding of the referendum.

398 Decision No. 498/08.06.2006, published in the Official Gazette of Romania No. 554/27.06.2006, p. 2.

156
4.7.10 . DECISION NO. 970/31.10.2007
The year 2007 coincides with the first period of dysfunctional cohabitation, starting with
the Government reshuffle of April 5th 2007, when all Cabinet members from the President’s
Democratic Party were replaced with Ministers from the Social Democratic Party. During this
timeframe, President Traian Băsescu notified the Constitutional Court of Romania on 3
occasions, r equesting the constitutionality review of several laws before their promulgation.
The first notification was submitted in late June 2007 and took the Court 126 days to
solve, even though the law in question did not seem to be particularly complex or with a great
socio -economic impact.
The Law concerning the allocation of a house to the retired General Marin Lungu was
declared unconstitutional by the Court in late October 2007. According to the head of state, the
constitutional dispositions violated were those of article 4 paragraph (2), article 16 paragraph
(1), article 1 paragraph (4), article 124 paragraph (3), article 126 paragraph (1) who claimed
that “a law with individual character is unconstitutional”399.
At the Constitutional Court’s request, the P resident of the Senate, Nicolae Văcăroiu,
expressed his conviction that the law was constitutional, whereas Prime -Minister Călin Popescu
Tăriceanu defended the Parliament and maintained that “the reglementation with individual
character adopted by Parliame nt is ‘an act of recognition and retribution for the distinguished
heroic acts of Mr. Marin Lungu, currently a retired general”400. Bogdan Olteanu, from the
National Liberal Party, as President of the Chamber of Deputies, did not present any viewpoints
on th is matter to the Constitutional Court. Therefore, during cohabitation, none of the other
public authorities called to express a position on the constitutionality of a law pending
promulgation support the President of Romania. Not only do they not support h im, but they
also dismiss his allegations.
The Constitutional Court of Romania , however, did admit Traian Băsescu’s referral and
declared the Law concerning the allocation of a house to the retired General Marius Lungu
unconstitutional.

399 Decision No. 970/31.10.2007, published in the Official Gazette of Romania No. 796/22.11.2007, p. 1.
400 Ibidem .

157
4.7.11 . DECISION NO. 1056/14.11.2007
Also during cohabitation, Traian Băsescu sent the Law for amending and supplementing
Law no. 495/2004 on wages and pecuniary rights of the personnel from central administration
of Ministry for Foreign Affairs and diplomatic missions, consular offices and Romanian
cultural institutes abroad to the Constitutional Court of Romania . In his constitutional review
request, he maintained that this law breached article 138 paragraph (5) of the Fundamental Law,
as well as the Law on Public Finan ces, by failing to provide the sources for the budgetary
increases.
The President of the Chamber of Deputies, Bogdan Olteanu, has shown that “the
budgetary sources necessary to finance the expenditures will be taken from the consular and
emergency taxes collected by the diplomatic representations”401 and that the head of state had
already asked the Parliament to reexamine this law, for the exact reasons presented in the
current unconstitutionality reference, on July 19th 2007, but the Parliament had dismiss ed his
request for reexamination, preserving this law in its original form402. On behalf of the
Governm ent, Prime -Minister Călin Popescu Tăriceanu also dismissed the President’s
unconstitutionality allegations, while Nicolae Văcăroiu, the President of the Senate, did not
communicate his position on this issue.
The Constitutional Court of Romania dismissed Traian Băsescu’s objection, deciding
that the Law for amending and supplementing Law no. 495/2004 on wages and pecuniary rights
of the personnel from central administration of Ministry for Foreign Affairs and diplomatic
missions, consular office and Roman ian cultural institutes abroad was constitutional and that
“because the Government did not argue there were no sources for financing the expenditures
provided by the Law in the state budget”403.
Judge Augustin Zegrean, however, disagreed with the plenum’s decision and formulated
a separate opinion, claiming that “the salary increases instituted by the criticized law create
discriminations between people in equal situations, which determine the violation of the
constitutional provisions of article 16 paragra ph (1) which establishes the principle of citizens’
equality in rights”404. In contrast with the previous case of separate opinion on such a matter,
judge Augustin Zegrean was appointed in office in 2007 by the President of Romania, Traian

401 Decision No. 1056/14.11.2007, published in the Official Gazette of Romania No. 802/23.11.2007, p. 2.
402 Ibidem ..
403 Idem , p. 4.
404 Idem , p. 6.

158 Băsescu, and had t he support of the Democratic Party and, as such, this case might be
considered one in which a constitutional judge shows loyalty to those who appointed him in
office.

4.7.12 . DECISION NO. 1177/12.12.2007
The third request for constitutionality review ma de by Traian Băsescu concerned 3 laws,
in fact, namely: a) the Law for the election of Chamber of Deputies and Senate and for
amending and supplementing Law no. 67/2004 for the election of local public administration
authorities, b) the Law on local public administration no. 215/2001 and c) Law no. 393/2004
on the Statute of local elected officials. These three pieces of legislation all had in common a
rather sensitive and politically important topic – that of the local elections. On November 21st
2007, in his notification, the head of state identified article 62 paragraph (1), article 2 paragraph
(1), article 89, article 73 paragraph (2) and article 69 to be the constitutional provisions
supposedly violated in this case.
At the request of the Court, the t wo National Liberal representatives of public authorities
– Bogdan Olteanu and Călin Popescu Tăriceanu – claimed the unconstitutionality reference was
not founded, whereas the Social Democratic President of the Senate, Nicolae Văcăroiu did not
express his opinion on the matter. The Constitutional Court of Romania admitted the law
submitted for review before promulgation was unconstitutional on December 12th 2007.

4.7.13 . DECISION NO. 39/30.01.2008
Until the legislative elections of November 30th 2008, wh ich did not result in a new
Government until late December, the year 2008 is also one marked by dysfunctional
cohabitation in Romania, as other three cases of constitutionality review before promulgation
were submitted to the Constitutional Court of Romani a. The first one occurred at the beginning
of the year, when President Traian Băsescu asked for an examination of : i) the Law on the
approval of Government Emergency Ordinance no. 30/2007 on the organization and
functioning of the Minister of Internal Aff airs and Administrative Reform and ii) the Law on
the approval of Government Emergency Ordinance no. 77/2007 on amending and
supplementing Law no. 164/2001 on military state pensions, as well as for amending Law no.
80/1995 on the statute of military perso nnel.

159 In order to support his claim, the head of state mentioned that the constitutional
provisions violated by these laws were those of article 16 paragraph (2), article 107 paragraph
(1), article 115 paragraph (4), article 119. Prime -Minister Călin Popescu Tă riceanu was the only
representative who expressed a position regarding these allegations, which he dismissed,
claiming that “the author of the notifications does not point any disposition within the content
of the law or the ordinances which would contradi ct constitutional provisions or principles, thus
rendering the constitutionality review devoid of purpose”405.
The Court considered that “the critique formulated concerns only aspects of extrinsic
constitutionality, the author of the referral criticizing t he procedures of elaborating and issuing
the emergency ordinances approved by the laws submitted to the Court’s control, mainly
because the CSAT advice was not requested”406 and dismissed this unconstitutionality objection
on January 30th 2008.

4.7.14 . DECISION NO. 1094/15.10.2008
Moreover, in 2008 the President of Romania contested several legal dispositions from
the Law on amending and supplementing Law no. 94/1992 on the organization and functioning
of the Court of Accounts, namely article 1 point 56 [ar ticle 107 paragraphs (1) and (4)], point
12 [article 12 paragraph (2)], point 50 [article 96], point 77 [article 129 paragraph (1)] and point
53 [article 105 paragraph (2)]. In his view, these legal provisions violated contravened those of
article 107 para graphs (4) and (1), article 12 paragraph (2), article 96, article 129 and article
105 paragraph (2) of the Constitution.
National Liberals Bogdan Olteanu, as the President of the Chamber of Deputies, and
Prime -Minister Călin Popescu Tăriceanu sent a written position concerning these allegations,
dismissing them. Nicolae Văcăroiu did not express any viewpoints on behalf of t he Senate. The
Constitutional Court of Romania also dismissed this reference and decided the laws reviewed
were constitutional.

405 Decision No. 39/30.01.2008, published in the Official Gazette of Romania No. 122/14.02.2008, p. 2.
406 Idem , p. 3.

160
4.7.15 . DECISION NO. 1218/12.11.2008
Published in the Official Gazette of Romania No. 785/24.11.2008, this decision
admitted t he President’s unconstitutionality objection to the Law for supplementing article 5 of
Law no. 3/2000 on the organization an holding of the referendum. The article Traian Băsescu
contested stipulated that a referendum cannot be held simultaneously with the legislative,
presidential or European Parliament elections. In the initiators of this legal disposition, the aim
was to avoid any sort of influence these elections (and perhaps those involved in them) might
have on the results of the referendum.
The new President of the Senate – although a Social Democratic like his predecessor –
Ilie Sârbu407, and Prime -Minister Călin Popescu Tăriceanu did not communicate the Court any
of their positions. Bogdan Olteanu, however, did mention that the Chamber of Deputies had
already admitted President Traian Băsescu’s request to reexamine this law considered th at “the
provision of article 5 does not prejudice in any way the President of Romania’s right to trigger
the procedure of referendum”408.
Still, the Court agreed with the objection formulated by the head of state, considered the
legal dispositions of articl e 5 of Law no. 3/2000 on the organization and holding of the
referendum did breach article 2 paragraph (1) and article 90 of the Fundamental Law, thus
considering it unconstitutional and pointed out that “these dispositions may generate
constitutional bloc kages, the date of the elections becoming dependent on the date the
referendum is held”409.

4.7.16 . DECISION NO. 55/14.01.2009
In 2009, Traian Băsescu contested the constitutionality of the Law on amending the
Youth Law no. 350/2006, arguing that it breach ed the following constitutional dispositions:
article 1 paragraph (4), article 40 paragraph (1), article 44, article 124 paragraph (1). The
Democratic -Liberal Emil Boc supported the President and also claimed this law was
unconstitutional, whereas the Pres idents of the two chambers of Parliament (Roberta Anastase
and Mircea Geoană) did not express their positions at the Court’s request.

407 He only served as interim President of Senate for a brief period of time, after Nicolae Văcăroiu was appointed
President at the Court of Accoun ts and until the results of the legislative elections of that year were confirmed and
the new MPs began their terms in office.
408 Decision No. 1218/12.11.2008, published in the Official Gazette of Romania No. 785/24.11.2008, p. 2.
409 Idem , p. 4.

161 The Constitutional Court of Romania plenum admitted his objection and declared the
respective law unconstitutional 14 da ys after receiving the notification, also deciding that “the
modifications proposed by the criticized law are imprecise and inadequate, because expressions
with undetermined scope are used. As such, the Court finds that, since the criticized law
regulates insufficiently elaborated measures, with an obvious unconstitutional effect, it is
necessary that they are removed”410.

4.7.17 . DECISION NO. 56/14.01.2009
During a similar time period and issued on the exact same date, the Constitutional Court
of Romania also verified the constitutionality of the Law on amending and supplementing Law
no. 10/2001 on the judicial regime of some real estates abusively taken during the period
between 06.03.1945 – 22.12.1989. In his view, this law violated the constitutional pr ovisions
of article 61 paragraph (2), article 75 paragraph (1), article 15 paragraph (2), article 15, article
16, and article 21. This started a series of three notifications focused on extrinsic
unconstitutionality claims.
Once again, the Democratic – Liberal Prime -Minister Emil Boc supported Traian
Băsescu’s claims – using the exact same arguments – whereas the Social -Democratic President
of the Senate Mircea Geoană and the Democratic -Liberal President of the Chamber of Deputies
Roberta Anastase did not provide any accounts on this contestation.
On this occasion, however, the Court dismiss his unconstitutionality referral and decided
this law was in accordance with the current constitutional dispositions, noting that:
“the motivation of this notificatio n does not contain references to the
breach of any constitutional article or principle. Given the dispositions of
article 10 paragraph (2) of Law no. 47/1992 on the organization and
functioning of the Constitutional Court, according to which notifications must
be written and motivated, it follows that this critique must be rejected as
inadmissible , the Court cannot substitute itself to the author of the referral in
what regards the invocation of an unconstitutionality reason”411.

410 Decision No. 55/14.01.2009, published in the Official Gazette of Romania No. 46/27.01.2009, p. 4.
411 Idem , p. 7.

162
4.7.18 . DECISION NO. 1018/19 .07.2010
Issued on the 19th of July 2010, Decision no. 1018/19.07.2010 admitted the President’s
objection to the constitutionality of the Law on integrity in the exercise of public offices and
dignities, for amending and supplementing Law no. 144/2007 on the founding, organization
and functioning of the National Agency for Integrity, as well as for amending and
supplementing other normative acts.
This was the only case of abstract constitutionality review in 2010 and in it, the head of
state grounded his objection on article 75 of the Constitution, focusing once again on reasons
of extrinsic unconstitutionality, and claiming that “the legislative procedure after which the
criticized law was adopted was affected by unconstitutionality vices”412. In short, Tra ian
Băsescu explained that after he re -sent this law to Parliament for reexamination, the Chamber
of Deputies integrated his recommendations and had modified the law accordingly, but the
Senate “adopted the law after the reexamination request in a different form than that at the
Chamber of Deputies, eliminating most of the newly -adopted texts, including the provisions of
article 37 on the wealth investigation commissions”413.
As expected, given the particularity of this case, the President of the Chamber of
Deputies, the Democratic -Liberal Roberta Anastase and the Democratic -Liberal Prime –
Minister Emil Boc both supported the author of this unconstitutionality referral. The Social –
Democratic President of the Senate, Mircea Geoană, did not communicate his position.

4.7.19 . DECISION NO. 1595/14.12.2011
In late 2011 Traian Băsescu notified the Constitutional Court on four cases in which he
requested a constitutionality review of several laws. The first on of which was the Law for
supplementing the Law on Education no. 84/1995. In his view, this law violated the
constitutional provisions established by art 76 paragraph (1) and article 77 paragraph (3).
The Democratic -Liberal interim President of the Senate, Petru Filip, also claimed the
President’s request was founded for the reasons invoked by the author of the referral, and so
did the President of the Chamber of Deputies, the Democratic -Liberal Roberta Anastase and so
did, on behalf of the Government, the Democratic – Liberal Prime -Minister Emil Boc. It thus

412 Decision No. 1018/19.07.2010, published in the Official Gazette of Romania No. 511/22.07.2010, p. 1.
413 Idem , pp. 1 -2.

163 appears t hat when the heads of the public authorities share the same political affiliation as the
President, they support his unconstitutionality objection.
The Constitutional Court of Romania decided, on December 14th 2011, that this law was
unconstitutional, un derlining that “only aspects of extrinsic constitutionality are covered by the
critique formulated, the author of the notification attacking the procedure of adopting the law
which, although regulates social relations in the domain of organic laws, had not been subjected
to the vote of the Senate’s plenum”414.

4.7.20 . DECISION NO. 1596/14.12.2011
On November 28th 2011, the head of state referenced the Law on the approval of
Government Emergency Ordinance no. 79/2010 for amending some normative acts in the f ield
of research, alleging that it had violated the Constitution with respect to article 77 paragraph
(3).
When asked to express the viewpoints of the public authorities they represent, Prime –
Minister Emil Boc and Vasile Blaga, the President of the Chambe r of Deputies, both supported
the unconstitutionality objection made by the head of state, for the precise reasons Traian
Băsescu exposed. Both of them were members of the Democratic – Liberal Party. Roberta
Anastase, although also a member of the Democrat ic – Liberal Party, did not communicate any
official viewpoint on this case. Hence, even when the heads of the other public authorities share
the same political affiliation as the President of Romania, they may sometimes not submit any
written viewpoints t o the Constitutional Court.
The Court admitted his objection and declared the law unconstitutional, since it
concerned a matter of extrinsic unconstitutionality, as the previous one and emphasized that in
the event of a reexamination request made by the head of state, the entire law must be submitted
to a final vote in Parliament, and not only the report on the President’s request for
reexamination”415.

414 Decision No. 1595/14.12.2011, p ublished in the Official Gazette of Romania No. 924/27.12.2011, pp. 2 -3.
415 Idem , p. 3.

164
4.7. 21. DECISION NO. 1597/14.12.2011
A second notification made on the same date as the previous one q uestioned the
constitutionality of the Law on the approval of Government Emergency Ordinance no. 96//2008
on amending article III paragraph (1) letter b) of Government Emergency Ordinance no.
29/2005 on amending Law no. 29/2002 on the organization and func tioning of research –
development units in the fields of agriculture, silviculture, food industry and of “Gheorghe
Ionescu Sisești” Academy of Agriculture and Forestry. The constitutional dispositions
supposedly breached in this instance were, once again, th ose of article 76 paragraph (1) and
article 77 paragraph (3) – so the President contested the extrinsic constitutionality of the law,
meaning the procedural process by which it came to be approved by the Parliament, claiming
the law was not voted by the ma jority in the Chamber of Deputies.
Yet again, the Democratic -Liberal Prime -Minister and President of the Senate supported
the President’s claims and Roberta Anastase did not submit any official position of the Chamber
of Deputies. One possible explanatio n for this lack of response might be the fact the Traian
Băsescu challenged the constitutionality of the law on grounds of it not having been voted by
the majority of the MPs in the Chamber of Deputies. For the same reasons as in the previous
case, the Constitutional Court of Romania admitted Traian Băsescu’s unconstitutionality
reference, emphasizing once again that the final version of the law should have been subjected
to Parliament’s vote and not the its report on the President’s request for reexaminati on.

4.7.22 . DECISION NO. 1598/14.12.2011
Finally, the fourth decision on the abstract constitutionality control of laws issued by
the Constitutional Court of Romania also admitted Traian Băsescu’s unconstitutionality
reference on the grounds of article 76 paragraph (1) and article 77 paragraph (3). The law
examined was the Law for supplementing article 7 of Law no. 50/1991 on the authorization of
construction works execution.
In this case as well, the extrinsic constitutionality objection was that the law under
scrutiny should have been approved by the majority of the parliament members in the Chamber
of Deputies. And, once again, the President of the Senate and the Prime -Minister remitted their
official positions on this issue in writing, admitting Tra ian Băsescu’s claims, whereas Roberta
Anastase did not communicate an official viewpoint. In addition, similar to the other previous

165 two cases, the Parliament only submitted to vote the report on Traian Băsescu’s request for
reexamination, not the final ve rsion of the law in question.

4.7.23 . DECISION NO. 681/27.06.2012
Given the political context of 2012 – the second period of dysfunctional cohabitation,
two unconstitutionality references were registered at the Court by President Traian Băsescu.
The firs t one, which was also admitted by the Court, was submitted on the 25th of May 2012
and referred to the Law on amending and supplementing the Law on National Education no
1/2011, on grounds of violating the constitutional dispositions at article 44 paragrap hs (1) and
(2), as well as those of article 32, paragraph (6).
On this occasion, the Presidents of the two Parliament Chambers, both Democratic –
Liberals, Roberta Anastase and Vasile Blaga expressed their official position according to
which the notific ation submitted by the head of state should be admitted. The Prime -Minister
of that time, however, the Social -Democratic Victor Ponta argued against the President’s
referral, maintain the law subjected to constitutionality review was, indeed, constitutiona l.
A separate opinion was formulated by judges Augustin Zegrean and Petre Lăzăroiu,
who considered the reference on unconstitutionality should have been dismissed. Augustin
Zegrean and Petre Lăzăroiu416 were both appointed by Traian Băsescu himself and support ed
by the Democratic -Liberal parliamentary group. Unlike in the case of the Decision No.
1056/14.11.2007, published in the Official Gazette No. 802/23.11.2007, when Augustin
Zegrean formulated a separate opinion which supported the one who appointed him, t his time
he formulated a separate opinion against him, further proving the theory according which
constitutional judges are not loyal to the authorities which appointed them in their decision –
making process.

4.7.24 . DECISION NO. 785/26.09.2012
Finally, the last decision on the abstract constitutionality control of laws included in the
empirical analysis of this chapter is Decision no. 785/26.09.2012, published in the Official
Gazette of Romania, no. 704/15.10.2012. As mentioned in the introductory part, I chose to limit

416 He was appointed in office by Pr esident Traian Băsescu on two occasions: the first time in 2008 for a two year
mandate, replacing judge Petre Ninosu after his death, and then again in 2010.

166 my analysis to the legislative elections of 2012, which have taken place on the 9th of December.
This notification regarded the Law on the approval of Government Emergency Ordinance no.
248/1000 on amending Government Emergency Ordinance n 0. 64/1998 on granting some
facilities to the payment of stocks and budgetary obligations for the privatization of
“Petromidia” – S.A. Constanța Trade Company, and was motivated by Traian Băsescu as
contrary to article 1 paragraph (5) and article 16 paragr aph (1) of the Fundamental Law.
None of the representatives of the other public authorities, namely the Social –
Democratic President of the Chamber of Deputies, Valeriu Zgonea, the National -Liberal
President of the Senate – Crin Antonescu and the Social -Democratic Prime -Minister Victor
Ponta, communicated their official positions to the Court. In the second most time -wise
extensive deliberation – of 116 days – the Court decided this law was constitutional and
dismissed the President’s notification.

4.8. A COMPARATIVE ANALYSIS
4.8.A. STATUS OF THE COURT ’S DECISIONS
When analyzing the Court’s decisions on the abstract constitutionality control of laws, the
first and most important question is a quantitative one: how many of them were admitted? Was
the Presi dent simply sending the Court those laws he did not want to promulgate for political
reasons (particularly during the periods of cohabitation)? Or were his claims justified and
acknowledged as such by the Court?
From a total of 24 decisions on the abstrac t constitutionality control of laws issued by
the Constitutional Court of Romania from 1992 until 2012, a number of 11 were admitted and
4 were partly admitted. In total, this means that only 37% of these decisions rejected the
President’s claims of uncons titutionality.
Also, it is important to note that only 2 of the cases and, respectively, decisions issued
by the Constitutional Court, were initiated by other presidents except Traian Băsescu417. The
first was partially admitted and the second was admitted. Thus, from a t otal of 22
constitutionality referrals made by Traian Băsescu, 9 were dismissed.

417 Those were Decision no. 70/05.05.1999, published in the Official Gazette of Romania No. 221/19. 05.1999 and
Decision no. 98/05.04.2001, published in the Official Gazette of Romania No. 256/18.05.2001.

167

Fig.4.1. Status of the Court’s Decisions on the Abstract Constitutionality Control
Source: Own Compilation of Data

At this point, an observation about this par ticular prerogative of the Constitutional Court
is in order. On numerous occasions, the judges of this institution have been accused of being
loyal to the public authorities which appointed them. Since the Court’s decisions are taken by
majority, in plenum , and the majority of the judges (6 from a total of 9) are appointed by the
Chamber of Deputies and by the Senate, it seems that they rule against the Parliament more
often, in fact. Consequently, in what regards this particular prerogative, it appears tha t the
constitutional justices do not take the sides of those who appointed them, but only rule in the
spirit of the Constitution.

4.8.B. NOTIFICATION FREQUENCY
A second variable for analysis concerns the frequency with which the Constitutional
Court of R omania is notified for the abstract constitutionality control of laws, so as to highlight
the periods during which the head of state notified the Court more often and examine whether
or not such notifications tend to increase during the periods of cohabita tion.

Admitted
46%
Partially admitted
17%Dismissed
37%
Status of the Court's Decisions on the
Abstract Constitutionality Control
Admitted
Partially admitted
Dismissed

168

Fig. 4.2. Notification Frequency Timeline for the Abstract Constitutionality Control
Source: Own Compilation of Data

As results from the graphic above, the timeframe between 2004 -2005 had the largest
number of notifications. This pe riod coincides with the moment when President Traian Băsescu
assumed office as head of state. Only one decision was issued during President Emil
Constantinescu’s term (in 1999) and during President Ion Iliescu’s second term (in 2001). The
periods of dysfunctional cohabitation (2007 -2008 and 2011 -2012, respectively) also illustrate
an increase in the Court’s activity as stipulated by article 146 letter a). Particularly in 2011, the
President of Romania had a tendency to ask the Court to examine the constitutionality of laws
on procedural grounds, more rather.

4.8.C. DURATION OF THE COURT ’S DELIBERATIONS
The duration of the Court’s deliberations on the abstract constitutionality control
notifications appears to vary to a great extent. In order to create the graphic below, I took into
account the date on which the Constitutional Court of Romania was notified by the President
and the date on which the Court issued its ruling.
As such, the graphic below presents the number of days it took the Court to issue each
of the 24 decisions on th e abstract constitutionality control. The least amount of time taken by
the Constitutional Court of Romania to deliberate on such matters was of 2 days, whereas the 00,511,522,533,544,5
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012Notification Frequency Timeline for the Abstract
Constitutionality Control

169 largest was of 126 days, closely followed by the 116 days it took the Court to issue Decisi on
no. 785/26.09.2012. But these are the exceptions. On average and on most occasions, the Court
took between 2 to 3 weeks to deliberate on the a priori constitutionality review.
Last but not least, however, it is also important to note that the duration of the Court’s
deliberations also depend on the additional documents or requests public authorities include in
their files, as well as on the responses – and their respective complexity – sent by the public
authorities notified: the Government (as represe nted by the Prime -Minister) and the Presidents
of the two Chambers.

Fig. 4.3. Duration of the Court’s Deliberations on the Abstract Constitutionality Control Notifications
Source: Own Compilation of Data

4.8.D. CONSTITUTIONAL PROVISIONS ALLEGEDLY BREACHED
Regarding the constitutional provisions allegedly breached, for this comparative
analysis I have extracted all of the constitutional provisions invoked by the President in his
references of unconstitutionality418 and grouped them under the following cat egories: general

418 Those were the following: Article 1 paragraphs (3), (4) and (5), article 2 paragraph (1), article 4 paragraph (2),
article 4 paragraph (2), article 1 2 paragraph (2), article 15, article 15 paragraph (2), article 16, article 16 paragraphs
(1) and (2), article 21, article 22, article 25, article 26, article 29, article 32 paragraph (6), article 33, article 40
paragraph (1), article 44, article 44 paragra phs (1) and (2), article 48, article 49 paragraph (2), article 53, article 62
paragraph (1), article 69 paragraph (1), article 72 paragraphs (1) and (3), article 72 paragraph (2) letter c), article
33
2113 16
2 3 3834126
33
21 22
513 1422
619 16 16 1633116
020406080100120140Duration of the Court's Deliberations on the
Abstract Constitutionality Control Notifications

170 principles; fundamental rights, freedoms and duties; organization and functioning of
Parliament; statute of deputies and senators; legislation; the President of Romania; the
Government; relations between Parliament and Government; courts o f law; economy and public
finance; and the Constitutional Court.
As it appears from the chart below, the most frequently invoked constitutional violations
were those regarding the fundamental rights, freedoms and duties of citizens (articles 15 – 60
of the Fundamental Law) – 23%. The least invoked constitutional provisions allegedly breached
were those concerning the organization and functioning of Parliament (article 61 – 68 of the
Constitution) – with only 2% of the cases. A total of 15% each was represe nted by the claims
regarding the violations of the constitutional provisions on legislation (articles 73 – 79) and
those on the Constitutional Court (articles 142 – 147), albeit the latter only concerned the
President’s appreciation of the Court’s competen cy in the cases of constitutionality review as
well as several discussions on the effect of its decisions in the matter of the abstract
constitutionality review.

72 paragraph (3) letter c), article 75, article 76 paragra ph (1), article 77 paragraph (3), article 81 paragraphs (1)
and (2), article 90, article 95 paragraph (3), article 96, article 105 paragraph (2), article 107 paragraphs (1) and (4),
article 111 paragraph (1), article 115 paragraph (4) and (7), article 119, article124 paragraphs (1) and (3), article
126, article 126 paragraph (1), article 129, article 138 paragraph (5), article 145 paragraph (2), article 146 letter
a), article 147 paragraph (3).

171

Fig. 4.4.Constitutional Provisions Allegedly Breached in the Laws Submitt ed for the Abstract Constitutionality
Control of Laws
Source: Own Compilation of Data

4.8.E. PUBLIC AUTHORITIES INVOLVED AND THEIR POSITIONS IN THE ABSTRACT
CONSTITUTIONALITY CONTROL OF LAWS
Finally, the last part of this analysis focuses on the positions adopted by the
representatives of the other public authorities notified by the Constitutional Court of Romania .
According to the provisions of article 16 paragraph (2) of Law no. 47/1992419, when a
notification on the abstract constitutionality control of l aws is made by the President of
Romania, the Court notifies the Government, the President of the Chamber of Deputies as well
as the President of the Senate on the unconstitutionality objection. In turn, they may or may not

419 “If the institution of proceedings was made by the President of Romania, by the Members of Parliament, by the
High Court of Cassation and Justice, or by the Advocate of the People, the Constitutional Court shall communicate
such to the Presidents of the two Chambers of Parliament and the Government within twenty -four hours from the
registration, also specifying the date when the debates are to take place”. 15%
23%
2%6%15%7%4%8%8%6%6%Constitutional Provisions Allegedly Breached in
the Bills Submitted for the Abstract
Constitutionality Control of Laws
General principles (1 – 14)
Fundamental rights, freedoms
and duties (15 – 60)
Organisation and Functioning of
Parliament (61 – 68)
Statute of Deputies and
Senators (69 – 72)
Legislation (73 – 79)
The President of Romania (80 –
101)
The Government (102 – 110)
Relations between Parliament
and Government (111 – 115)
Courts of Law (124 – 130)
Economy and Public Finance
(135 – 141)

172 communicate their positions on th e President’s claims: they may admit it, partly admit it or
dismiss it altogether.
However, from my analysis, I have found that on most occasions, the representatives of
the legislative and the government part of the executive seldom send their positions. More often,
they express none.

POSITIONS OF THE OTHER PUBLIC AUTHORITIES
NOTIFIED BY THE COURT
NO.
CRT. DECISION Government President of the Chamber of
Deputies President of the
Senate
1 Decision No.
70/05.05.1999 partially
admitted partially admitte d partially
admitted
2 Decision No.
98/05.04.2001 none
expressed admitted none expressed
3 Decision No.
515/24.11.2004 none
expressed admitted none expressed
4 Decision No.
217/20.04.2005 dismissed none expressed none expressed
5 Decision No.
417/14.07 .2005 none
expressed none expressed none expressed
6 Decision No.
418/18.07.2005 admitted none expressed none expressed
7 Decision No.
419/18.07.2005 none
expressed none expressed none expressed
8 Decision No.
279/22.03.2006 none
expressed none expresse d none expressed
9 Decision No.
498/08.06.2006 none
expressed none expressed partly admitted
10 Decision No.
970/31.10.2007 dismissed none expressed dismissed
11 Decision No.
1056/14.11.2007 dismissed dismissed none expressed

173 12 Decision No.
1177/12.12 .2007 dismissed dismissed none expressed
13 Decision No.
39/30.01.2008 dismissed none expressed none expressed
14 Decision No.
1094/15.10.2008 dismissed dismissed none expressed
15 Decision No.
1218/12.11.2008 none
expressed dismissed none expressed
16 Decision No.
55/14.01.2009 admitted none expressed none expressed
17 Decision No.
56/14.01.2009 admitted none expressed none expressed
18 Decision No.
1018/19.07.2010 admitted admitted none expressed
19 Decision No.
1595/14.12.2011 admitted admitted admitted
20 Decision No.
1596/14.12.2011 admitted none expressed admitted
21 Decision No.
1597/14.12.2011 admitted none expressed admitted
22 Decision No.
1598/14.12.2011 admitted none expressed admitted
23 Decision No.
681/27.06.2012 dismissed admitted admitted
24 Decision No.
785/26.09.2012 none
expressed none expressed none expressed

Fig.4.5. Chart on the Positions of the Other Public Authorities Notified by the Constitutional Court of Romania
Source: Own Compilation of Data

Having highlighted th ose decisions issued during the periods of cohabitation, it is
apparent from the chart above that the results were exactly as expected. During the 2007 -2008
cohabitation, the Prime -Minister dismissed 5 from a total of 6 of the President’s claims of
unconst itutionality and did not express his point of view on the last decision in 2008. Then,

174 during the second period of dysfunctional cohabitation, from a total of 2 cases of abstract
constitutionality control of the laws in 2012, the Prime -Minister dismissed t he first, and did not
express his position on the second.

4.9. PRELIMINARY CONCLUSIONS
Overall, the role of the Constitutional Court of Romania in solving the disputes between
public authorities, examined from the perspective of the abstract constitution ality review,
appears to increase, indeed, during the periods of cohabitation. Not only is it a timeframe during
which the Court receives more notifications from the head of state, but the Government
dismisses the unconstitutionality claims made by the Pre sident, even in those cases when the
Court eventually admits them. The results of the previous empirical analysis have also
confirmed my two sub -hypothesis that, as their political affiliation differ, the representatives of
other public authorities notifie d by the Constitutional Court will also disagree with the
President’s claims of unconstitutionality, whereas, if they share the same political affinity, the
representatives of the other public authorities will support the President of Romania’s
unconstitut ionality allegations.
In addition, if we were to divide the 20 years of experience in the field of the abstract
constitutionality control of laws into two equal halves, it would appear that the Court had only
been notified on constitutionality review twi ce – once by President Emil Constantinescu and
once by President Ion Iliescu – in the first 10 years of its activity, and 22 times by President
Traian Băsescu, during his two consecutive terms of office – and only up to 2012. A total of 8
cases from those 22 occurred only during cohabitation, thus during a mere 3 years’ timeframe.
Consequently, it appears there is indeed a connection between the frequency with which the
Constitutional Court of Romania is notified on the abstract constitutionality of laws an d the
periods of cohabitation.
In addition, almost half of these unconstitutionality claims were admitted by the Court,
while an additional 17% were partially admitted. If we were to contrast these results of the
empirical analysis with the fact that, as mentioned in the chapter on the Constitutional Court of
Romania , the majority of the judges are appointed by the two Chambers of Parliament, it
appears that the suppositions and the accusations in mass -media according to which the
constitutional judges are loyal to those who appointed them in office, thus being influenced by
their allegiance in their decision -making process are false. And not only from a political point

175 of view, but from an obvious institutional one. Also, the cases in which some of the jud ges
issued separate opinions are very few, further strengthening the hypothesis according to which
the judges at the Constitutional Court typically do not vote in support of neither the public
authority, nor the political party that advanced them in office .
Also, from the previous comparative analysis, it appears that the average duration for
the Court to pronounce in cases of abstract constitutionality review is of two -three weeks. The
complexity of the case does not necessarily determine a longer time -span, as was the case of
the bill on assisted human reproduction. Hence, my first sub -hypothesis that the more complex
a legal text examined is, the more time is going to take the Constitutional Court to deliberate
was not confirmed.
Furthermore, the const itutional provisions most often breached in the laws the President
submitted for the a priori constitutionality control were those on fundamental rights, freedoms
and duties (a number of 12 such cases), followed by those on the general principles of the
Romanian state and those on legislation (8 cases each). Of course, to a certain extent, it could
be argued that these are the reasons invoked by the President and that they are influenced by
his choice. However, to ensure the success of his requests for cons titutionality review, the head
of state would have to be accurate in his request and objectively select those constitutional
provisions that are, indeed, breached by the bill he submits to control.
Nevertheless, there are some limits on the Court’s abstrac t constitutionality control of
laws, all of which are determined by its status as negative legislator. The first of which is that
the Constitutional Court of Romania cannot validate any alternative formulation of the legal
text controlled: “although the un constitutionality objection is founded […], the Court cannot
pronounce itself on the alternative text proposed in the notification, considered in the objection
contents to be appropriate relative to constitutional provisions, since the final drafting [of t he
law] is the exclusive attribution of the legislator, according to article 58 paragraph (1) of the
Constitution”420. As such, even if the President of Romania would advance such an alternative,
as Emil Constantinescu did in practice, the Court cannot decid e the President’s alternative could
replace the original bill proposed by the Parliament. First of all, because by doing so, the Court
would substitute itself to the Parliament’s role as sole positive legislator and secondly, because
it would also enable t he President to act as a positive legislator. Nor can the Constitutional

420 Decision No. 70/05.05.1999, published in the Official Gazette of Romania No. 221/19.05.1999, p. 10

176 Court decide on a better formulation – neither grammatically, nor stylistically – of the
scrutinized bill, for the same reasons previously mentioned.
Last but not least, however, th e analysis previously presented revealed that, in spite of
the significantly theoretically abundant jurisprudence of the Court on the matter of
constitutionality review, a certain consistency does continue to exist with respect to the
constitutional provis ions allegedly breached.

177
− CHAPTER V −
THE ROLE OF THE CONSTITUTIONAL COURT OF ROMANIA IN
SOLVING THE LEGAL DISPUTES OF A CONSTITUTIONAL NATURE
BETWEEN PUBLIC AUTHORITIES421422

5.1. INTRODUCTION
The second dimension of this empirical an alysis focuses on the Court’s powers in
matters of legal disputes of a constitutional nature. Perhaps this is one of the most illustrative
examples of the Court’s role in solving disputes between public authorities, especially since
such cases have a tende ncy to exponentially increase during periods of cohabitation.
The most important characteristic of these conflicts is that they only involve public
authorities, as they have been enlisted under Title III of the Fundamental Law. For the purposes
of this th esis, however, authorities pertaining to the judicial branch will be excluded, since only
those with political affiliation are relevant for examining the initial hypothesis.
As shown in the previous chapter on Constitutional Courts throughout Europe, the re are
two types of conflicts these institutions are entitled to solve: a) the horizontal conflicts of
competence, which involve authorities of a similar rank – such as the President and the
Parliament, for instance; and b) vertical conflicts of competence , in which the relation between
the authorities involved is one of subordination – for example, a conflict between the
Government and the Mayor of Bucharest. The Constitutional Court of Romania , according to
letter e) of article 146423 of the 2003 revised Co nstitution has the powers to solve only those
horizontal conflicts between public authorities. Even though a discussion on the vertical

421 A preliminary version of this chapter was published in Revis ta de Științe Politice. Revue des Science Politique,
no. 35/2012 – see Cristina Manolache, “The Role of the Constitutional Court of Romania in Solving the Conflicts
between Public Authorities”, pp. 214 -228.
422 The previously mentioned 2012 publication was p roceeded by a presentation delivered at the Second
International Conference “After Communism. East and West under Scrutiny” organized by the University of
Craiova (2nd – 3rd of March 2012), under the same title.
423 “It decides on legal disputes of a constit utional nature between public authorities, at the request of the President
of Romania, the President of either of the Chambers, the Prime -Minister, or the President of the Superior Council
of Magistracy”.

178 conflicts did exist during the debates of the 1990 Constituent Assembly, they were not included.
In fact, the first post -communist Basic Law did not mention anything about any types of
conflicts and it was not until 2003 that the Constitutional Court of Romania was vested with
the power to solve horizontal conflicts of competence between public authorities.
As jurisprudenc e has shown, throughout the past decade, this power was needed on the
Romanian political arena, particularly during periods of cohabitation or to settle disputes which
had the potential to generate institutional blockages. Since the Court can be notified b y a third
party, one which is not even directly involved in the conflict under scrutiny, and given the role
of mediator and safeguard of the Constitution that the President of Romania holds, its
implication in such matters, especially during periods of coh abitation, is beneficial for the very
functioning o f these public authorities. One of the most notable examples – and most avidly
portrayed in the mass -media – was the conflict between President Traian Băsescu and Prime –
Minister Victor Ponta over who should attend the European Council in 2012.
On this not e, the main assumption in cases of legal disputes of a constitutional nature
between public authorities is that they tend to interpret the Constitution in a manner that is
favorable to their own interests. The fact that, unlike other Constitutional Courts in Eastern
Europe, the Romanian Court cannot issue any binding interpretations to the Constitution also
contributes to the preservation of this status -quo. Depending on their political interest,
especially during periods of divided government, the represen tatives of public authorities will
equally expand and contract their competences, as it benefits their political interests. By its
decisions on such conflicts of a constitutional nature, to a certain extent, the Court also issues
a binding, concrete interp retation of the Constitution, which the public authorities involved in
conflicts are obliged to follow.
Finally, in order to correlate this section of empirical evaluation with the theory I
previously established on dysfunctional cohabitation, one of the most important dimensions of
my analysis will be that of the political affiliation the representatives of public authorities – the
President of Romania, the Prime -Minister, the President of the Chamber of Deputies and the
President of the Senate, respecti vely – hold. The reason for this differentiation among
Parliament is that the heads of the two Chambers do not always have similar stances in such
conflicts and, in addition, the Fundamental Law itself establishes both heads of the Parliament
Chambers indi vidually as subject referrals in such cases under the provisions of article 146
letter e).

179
5.2. METHODOLOGY
Taking into account the primary sources used for this specific research, the main method
employed throughout this chapter is that of thematic co ntent analysis, thus focusing on a
qualitative research. There were certain dimensions I followed in the Court’s decisions, such
as: i) the public institutions notifying the Court; ii) the political affiliation of the representatives
of these institutions; iii) the Constitutional provisions supposedly breached; iv) the Court’s
decisions; and v) the frequency with which the Court was notified.
As in the previous chapter, an element of novelty – besides the overall brief analysis of
elements of jurisprudenc e the Constitutional Court had produced until 2012 in matters of legal
disputes of a constitutional nature between public authorities – is the database on these conflicts,
which I will publish on the Romanian Association of Young Scholars’ website, as part of the
doctoral research groups project.
Furthermore, after studying each decision from a qualitative perspective, the focus of
my research shifted towards the quantitative dimension, as a comparative analysis enabled me
to put together several graphic r epresentations of the dimensions previously mentioned, by
taking into account all decisions on legal disputes of a constitutional nature. They also allowed
me to have a better visual on the implications the Constitutional Court of Romania had in this
respe ct.
The research question from which this chapter originated was “What was the role of the
Constitutional Court of Romania in solving the legal disputes of a constitutional nature between
public authorities?”. The sub -hypothesis was that, during periods of cohabitation, the number
of legal disputes on which the Court is called to decide increases . Another sub -hypothesis is
that as their political affiliations differ, the representatives of public authorities will be more
involved in legal disputes of a co nstitutional nature . Similarly, a third sub -hypothesis was that
within the Executive branch, the number of legal disputes of a constitutional nature between
the President and the Prime -Minister will increase during periods of cohabitation .

5.3. SOURCES
The sources used for this chapter were also primary sources, available on the Court’s
website in Romanian. Once again, access to these files is not permitted in the Court’s archive
and, hence, the only version available is that online. Decision No. 53/28.0 1.2005, Decision No.

180 356/5.04.2007, Decision No. 98 /7.02.2008, Decision No. 270/10.03.2008, Decision No.
1559/18.11.2009, Decision No. 1560/18.11.2009, Decision No. 1431/03.11.2010 , Decision No.
1525/24.11.2010 , Decision No. 683/27.06.2012 and Decision No. 730/09.07.2012. The
decisions previously mentioned, on matters of legal disputes of a constitutional nature between
public authorities, are both those of admittance as well as those by which the Constitutional
Court dismissed the allegations formulated. In addition to the relevant jurisprudence, this
chapter is also based on the relevant literature, as formulated by specialists in the field of
constitutional law: Cristian Ionescu , Gheorghe Iancu, Ioan Stanomir and Marieta Safta.

5.4. STRUCTURE
After pres enting the methodology and the main sources from which this chapter is
drawn, the next section will outline several conceptual delimitations the Court’s jurisprudence
and the consequent literature have developed. Terms such as legal disputes of a constitut ional
nature , public authorities , and conflicts of competence will be explained.
Then, a next part will examine the procedures at the Court in cases of legal disputes of
a constitutional nature between public authorities – before the Court, during the deb ates, as well
as after pronouncement. The special quality of the subjects referring the Court on such cases,
the specific deadlines, conditions, the procedures before the Constitutional Court during the
debates, as well as the effects of those decisions ar e relevant in order to understand the manner
in which legal disputes of a constitutional nature are settled at the Constitutional Court of
Romania , as well as the limits of its scope of action in such matters.
Next, a brief overview of the decisions the Constitutional Court of Romania has issued
since 2003 on letter e) article 146 will present each decision – both of admittance and dismissal.
From my research, this approach is an element of novelty in itself, as there are no publications
which sum up the C ourt’s decisions in particle Each decision will be examined chronologically
in terms of the parties involved, their political affiliation, the timeframe required, the
substantive matter in question, the viewpoints and the evidentiary support each party sub mitted
to the Court, as well as the Court’s decisions and reasoning. When a separate opinion is
formulated, the judges issuing it will also be analyzed from a political perspective so as to
observe whether or not their potential political allegiance influe nces their decision -making
process.

181 Finally, the last section of this chapter provides a comparative analysis of the decisions
formulated from 2003 until the 2012 legislative elections. The dimensions of this comparative
analysis are the following: 1) the political affiliations of the heads of the public authorities; b)
the Constitutional provisions allegedly violated by the authorities in conflict; c) the Court’s
clarifications throughout its decisions and d) the impact of its decisions. As previously
mentioned, the only decisions taken into account are those which involve public authorities
susceptible of political affiliation, such as the Prime -Minister, the President of Romania, the
President of the Chamber of Deputies and the President of the Senate.

5.5. THEORETICAL FRAMEWORK
The theoretical framework in the Romanian cases of legal disputes of a constitutional
nature between public authorities, as a recently established prerogative of the Constitutional
Court, rests – to a large extent – on the juri sprudence it has produces during its first years. The
judicial practice in our country has produced two definitions: a positive and a negative one.
The positive definition maintains that a legal dispute of a constitutional nature between
public authoritie s implies “concrete acts or actions through which an authority or several
authorities grant themselves powers, attributions or competencies which, according to the
Constitution, belong to other public authorities” or “the public authorities’ omission consi sting
of the decline of competence or in the refusal to fulfill certain acts which are part of their
obligations”424. Such a conflict “exists between two or more authorities regarding the content
or the extent of their attributions deriving from the Constitu tion, which means that these are
conflicts of competence, either positive or negative, which may create institutional
blockages”425.
On the other hand, the negative definition of legal disputes of a constitutional nature
between public authorities states wha t these conflicts are not – they are not opinions, statements
or judgments made by the representative of a public authority and regarding other public
authorities. Furthermore, such statements “regarding the manner in which a certain public
authority or it s structures act or should act, although critical in content, are not likely to generate
institutional blockages unless they are followed by actions and/or inactions of a nature to forbid

424 Decision No. 53/28.01.2005, published in the Offi cial Gazette of Romania No. 144/17.02.2005.
425 Decision No. 838/27.05.2009, published in the Official Gazette of Romania No. 461/03.07.2009.

182 the fulfillment of the constitutional attributions of those public a uthorities. Such opinions or
suggestions remain within the limits of the freedom of expression of political opinions”426.
On this note, these conceptual delimitations are the results of the practice in our country,
having been issued when the Constitutional Court was called to decide in such cases. They are
heavily influenced by the political experiences in our country – exemplary in this point being
the negative definition, especially since the Romanian political actors tend to exploit political
speeches and statements to their own interests. The extent to which the mere existence of such
a prerogative among the Court’s powers stimulated its subsequent usage is uncertain, but the
fact that representatives of public authorities with different and opposing poli tical affiliation
tend to make most use of it is evident. Even if this power was not included in the first post –
communist Constitution, not even by organic law in the following years,
Another relevant issue as to determining the purpose of assigning such a role to the
Constitutional Courts is that of establishing the public authorities which may be involved in a
legal dispute of a constitutional nature. Again, by practice, the Constitutional Court of Romania
has decided that only the public authorities men tioned in the third title of the Constitution may
be involved in a legal dispute of a constitutional nature and that, therefore, political parties427,
“parliamentary groups as they are structures of the Parliament Chambers”428 or “judicial
persons of public la w which, according to the provisions of article 8, second paragraph of the
Constitution contribute to the definition and the expression of the political will of the
citizens”429 are not considered to be public authorities.
Also important to note is that the Court has emphasized that it does not deal with the
conflicts between the legislative and the executive power on the one hand, and the judicial
power on the other, as long as it does not refer to any of the following public authorities: the
Parliament – either the Chamber of Deputies or the Senate – the President of Romania , as a
unipersonal public authority, the Government, the organs of the public central and local
administrations as well as the organs of the judicial authority – the High Court of Cassat ion and
Justice, the Public Ministry and the Superior Council of Magistracy”430. Therefore, it appears
that the Constitutional Court of Romania has decided to adopt a narrower definition of the
public authorities, meant to prevent an overwhelming quantity of claims of a legal dispute of a

426 Decision No. 435/26.05.2006, published in the Official Gazette of Romania No. 576 of 04.07.2006.
427 Decision No. 53 /28.01.2005, published in the Official Gazette of Romania No. 144/17.02.2005.
428 Ibidem .
429 Ibidem .
430 Ibidem .

183 constitutional nature which was quite likely to be generated by the political parties or the
parliamentary groups pertaining to this category.
Finally, an exception to these theoretical delimitations which came to be throug h
practice is the statement according to which a legal dispute of constitutional nature cannot exist
between the judicial branches, including between the High Court of Cassation and Justice, and
other public authorities, as the courts would need to analyze and solve their general competency
ex officio431. However, practice and experience have dismantled this perception in 2008 and in
2009, when the Constitutional Court of Romania admitted and subsequently solved two cases
of a legal dispute of a constitutiona l nature which involved the President of Romania and the
High Court of Cassation and Justice (2008)432 and another one involving the High Court of
Cassation and Justice on the one hand, and the Romanian Parliament and Government on the
other (2009)433.

5.6. PROCEDURES
In what regards the procedural aspects specific to legal conflicts of a constitutional
nature between public authorities, as stipulated by articles 34 – 36 of Law no. 47/1992, it is
important to underline that it is not only those public author ities with political affiliation that
may notify the Court on the existence of such conflicts, but also the President of the Superior
Council of Magistracy. As mentioned several times throughout this thesis, however, my
analysis only takes into account tho se public authorities which do hold a certain political
affiliation: the President of Romania, the Government and the Presidents of the two Parliament
Chambers. In addition, as jurisprudence has shown, the representative of a public authority may
also noti fy the Constitutional Court on a conflict in which it does not take part434, which
involves other public authorities and which may not even affect the notifying institution
directly.

431 Bogdan Dima, “Conflictele juridice de natură constituțională dintre legislativ, executiv și puterea
judecătorească” in Sfera politicii , no. 141 , nov. 2009, p. 3.
432 Decision No. 1222/12.11.2008, published in the Official Gazette of Romania No. 864/22.12.2008.
433 Decision No. 1560/18.11.2009, published in the Official Gazette of Romania No. 824/30.11.2009.
434 During Traian Băsescu’s consecutive manda tes, he had the tendency to notify the Constitutional Court of
Romania on conflicts in which he was not directly involved, invoking his role according to article 80 paragraph
(2) of the Romanian Constitution: “The President of Romania shall watch the obser vance of the Constitution and
the proper functioning of the public authorities. To this effect, he shall act as a mediator between State Powers as
well as between the State and society”.

184 The file with which the Court is notified on article 146 letter e) must pr esent the alleged
legal conflict of a constitutional nature, the parties involved, the cause of the conflict – by
highlighting those “legal texts upon which the conflict is bearing”435 and, needless to say, an
argumentative opinion of the author of the refer ral.
As usual, the Constitutional Court appoints a Judge -Rapporteur on each case, who is
responsible for communicating the file case to the public authorities involved in the conflict –
which, as previously stated, can be others than that which notified t he Court – and officially
asks them “to express, in writing, the viewpoint on the subject matter at dispute and the possible
ways or resolution”436. However, the public authorities involved are not obliged to act on the
request of the Court437 and, in fact, bu t unlike in the cases of abstract constitutionality control,
most of the times, they do so. Upon receiving the requested documents, a hearing session is set
so as to allow each party to defend itself against the accusations of others. Again, the public
authorities involved may or may not send a representative to the hearings of the Court.
Finally, after taking into account all the documents presented, the evidence and the
viewpoints expressed during the hearings and the designated Judge -Rapporteur’s offic ial report,
the Constitutional Court of Romania debates on the case and finally issues a final decision
which is communicated to the public authorities involved, as well as to the notifying part, if it
was not directly involved in the constitutional confli ct settled by the Court. The decision is
published in the Official Gazette of Romania and the parties involved are obliged to comply
with it.

5.7. OVERVIEW OF THE DECISIONS
This section provides a detailed account of each of the decisions issued by the R omanian
Constitutional Court since the introduction of this prerogative in 2003 until the legislative
elections of 2012, in so far as they involve public authorities susceptible of political affiliation.

435 https://www.ccr.ro/Legea -nr-471992.
436 Ibidem.
437 For this purpose, t here is a deadline of 20 days, after which, if there are no viewpoints expressed, the Court still
continues its procedures. Also according to article 35 paragraph (2) “The debate shall take place on the day fixed
by the President of the Constitutional Cour t, regardless of whether either of the public authorities involved has
failed to meet the deadline for presenting its point of view”.

185
5.7.1. DECISION NO. 53/28.01.2005
To begin with, i t is important to note that, although the much -debated attribution of
solving the legal disputes of a constitutional nature between public authorities has been granted
to the Constitutional Court of Romania since the constitutional amendments of 2003, it w as not
officially used until the year of 2005, when the Presidents of the Chamber of Deputies and that
of the Senate formulated an official request asking the Court to solve the legal dispute of a
constitutional nature between the President of Romania and the Romanian Parliament.
According to the Decision No. 53/28.01.2005 which was published in the Official
Gazette No. 144/17.02.2005, the President of the Chamber of Deputies and the President of the
Senate claimed that the President of Romania had display ed a behavior that was against the
Constitution when he made certain statements to the newspaper “Adevărul” in an interview
published on January 6th 2005, regarding other political parties such as the Social Democratic
Party and the Romanian Humanist Party which he considered to be “limited in their
understanding of the future of Romania” and respectively “an immoral solution” and also
regarding the need for anticipated parliamentary elections. The two presidents of the Parliament
therefore considered that the nature of these statements was against the spirit of the
Fundamental Law as they had the potential of generating conflicts between the public
authorities. Apart from asking the Constitutional Court to admit the existence of a legal dispute
of a constit utional nature between the President and the Parliament, the President of the Senate
also demanded that the Court would oblige the President to “publicly apologize to the Presidents
of the two Chambers of the Parliament and to all of the parliamentary stru ctures that have been
offended by his unconstitutional behavior”438.
After receiving the notification, the Constitutional Court of Romania has to notify the
parties involved in the demand in turn and await for their response to the alleged accusations.
In hi s response, the President of Romania maintained that the conflict under discussion is not
at all a judicial one of a constitutional nature, but merely a political conflict and therefore, not
within the competency of the Court to solve. He also argued that the parties involved were not
all of them public authorities, as according to Title III of the Fundamental Law, the political
parties and the parliamentary groups are not considered to be public authorities. Furthermore,
the opinions expressed by the Presi dent in the previously mentioned interview were within the

438 Decision No. 53/28.01.2005, published in the Official Gazette of Romania No. 144/17.02.2005, p. 3.

186 limits of the freedom of expression and they were political opinions and therefore, it is not
within the attributions of the court to solve political conflicts between different authorities.
From this perspective, it is obvious that many terminological concepts were at that time
unclear to the parties involved in the conflict and many of them were susceptible to
contradictory interpretations. Thus, the Decision No. 53/28.01.2005 of the Constitution al Court
of Romania is fundamental to the following cases on which the Court was asked to intervene,
as it set straight several controversial concepts. The first one refers to the definition of a legal
dispute of a constitutional nature between public auth orities, as one which “implies acts or
concrete actions through which an authority or more would grant itself more powers,
attributions or competencies which, according to the Constitutions, pertain to other public
authorities or the omission of some publi c authorities consisting of the decline of competency
or the refusal to fulfill certain acts which are within their obligations”439. In addition, the Court
also ruled that the parties which may be involved in a legal dispute of a constitutional nature
can on ly be those public authorities which are specifically mentioned under Title III of the
Fundamental Law, and that indeed, as the President argued, neither the political parties, nor the
parliamentary groups may be involved in such conflicts as they are not public authorities.
Finally, the Constitutional Court of Romania decided that there was no legal dispute of
a constitutional nature between the President of Romania and the Romanian Parliament, as the
public declarations of the President did not produce an y judicial effect, were within the limits
of the freedom of speech and were merely political opinions. Nevertheless, the Constitutional
Court did underline that “such public declarations may create tensions which could eventually
result in conflicts betwee n the public authorities of a judicial nature”440, circumstances under
which the Court would be entitled to interfere.

5.7.2. DECISION NO. 356/5.04.2007
The year 2007 was heavily dominated by political conflicts between the President and
other political f actions which ultimately resulted in the procedures of impeachment of the
President. Since it is not the topic of this chapter , I will not further develop on this issue, even
though it is worth noting that the activity of the Constitutional Court during th at period was
increased. With reference to the topic of the present chapter and perhaps somewhat surprising,

439 Idem , p. 4.
440 Ibidem.

187 the Court was called only once to solve a presumed legal dispute of a constitutional nature
between the President of Romania and the Romanian Gover nment. Notified by the Romanian
Prime -Minister at that time, Călin Popescu Tăriceanu, the Decision No. 356/5.04.2007 which
was published in the Official Gazette No. 322/14.05.2007 deals with the issue of separation of
powers again, only that this time rega rding a conflict between the dual structure of the
executive.
On this occasion, the problem was that the President of Romania at that time, Traian
Băsescu refused to nominate a new minister of foreign affairs – namely the senator Adrian
Mihai Cioroianu – after the official resignation of the former minister of foreign affairs, Mihai
Răzvan Ungureanu on the 5th of February 2007. The Prime -Minister, in his requests, argues that
the President of Romania is obliged, under the current constitutional provisions to agree to the
nomination of the Prime -Minister as soon as possible when a minister of the Cabinet resigns
and that the President does not have the right to turn down the Prime -Minister’s proposal for
nomination “on grounds of opportunity because the Gov ernment is the only public authority
with the responsibility of the program of governing”441. A second charge against the President,
albeit less important, is that he was not sufficiently prompt in recognizing the official
resignation of the Minister of Fore ign Affairs, matter which lingered on the process of
nomination and which affected Romania’s image in the international arena as it had no
representative.
In turn, the President replied that he did respect the term limits, in the situations in which
they existed, whereas in other cases, there were no deadlines specified, and therefore, he
believes that this is not a case of a legal dispute of a constitutional nature and neither is it a
situation in which an institutional blockage has occurred. He maintains that the President has a
“veto right” in several other circumstances as well and that, since the Prime -Minister’s
attribution is that of proposing a candidate for the ministerial portfolio in the case of a
resignation of one of the ministers of his Cabine t and the President’s attribution is that of
accepting that nomination or not, as long as these procedures are confined within the 45 days
timeframe stipulated by the Constitution, the constitutional conflict is once again inexistent. In
addition, in what concerns the issue of violating the principle of separation of powers, as he
was accused by the Prime -Minister, the President of Romania quite interestingly pleads for “the
need of loyalty which must exist in the relations of cooperation between the state’ s institutions,
according to the principle of checks and balances, principle which exists and operates within

441 Decision No. 356/5.04.2007, published in the Official Gazette of Romania No. 322/14.05.2007, p. 2.

188 every state of the European Union”442. Finally, the President concludes in a rather ironical
manner by saying that he is expecting another nominatio n from the Prime -Minister for the
Minister of Foreign Affairs Portfolio.
Unlike in its previous decisions, the Constitutional Court of Romania admitted the
existence of a legal dispute of a constitutional nature between the public authorities involved –
the President and the Government – as a consequence of the President’s initial refusal to accept
the Prime -Minister’s nomination, maintaining that the President has the obligation to accept the
nominations proposed by the Prime -Minister and not a veto -right in these matters. Nevertheless,
the Court also contended that the conflict was terminated when the President of Romania issued
the Decree No. 193/12.03.2007 published in the Official Gazette No. 177/14.03.2007, the
Decree No. 237/22.03.2007 published in t he Official Gazette No. 200/23.03.2007 and the
Decree No. 379/4.04.2007 which was published in the Official Gazette No. 235/4.04.2007. In
effect, the Court also decided that “in exercising the attributions granted by article 85, paragraph
(2) of the Consti tution, the President of Romania does not have a veto right, but can ask the
Prime -Minister to renounce his proposal, when he finds that the person nominated does not
fulfill the legal conditions for exercising the function of a Government member”443.
On a final note, another interesting remark that the Constitutional Court of Romania
made in the spirit of the rather interpretable suggestions it made on the previous decision
regarding the presumed legal dispute of a constitutional nature, the Court also stat ed that “the
institutional relations between the Prime -Minister and the Government, on the one side, and the
President of Romania , on the other, must function with the constitutional framework of loyalty
and cooperation, in order to achieve the constitutio nal attributions distinctly regulated for each
of the authorities, as the cooperation between the separate public authorities is a necessary and
essential condition for the well -functioning of the state”444.

5.7.3. DECISION NO. 98/07.02.2008
Published in t he Official Gazette no. 140/22.02.2008, this decision analyzed the alleged
legal dispute of a constitutional nature between the President of Romania and the Government.
On the 24th of January 2008, Prime -Minister Călin Popescu Tăriceanu requested the

442 Idem , p. 4
443 Idem , p. 6.
444 Idem , p. 7.

189 Const itutional Court “to ascertain: 1) the existence of a legal conflict of a constitutional nature
between the Government and the President of Romania; b) that this conflict is caused by the
President’s refusal to act upon the proposal advanced by the Prime -Minister on Ms. Norica
Nicolai’s appointment in office of Minister of Justice; and c) that the President’s refusal to
appoint Norica Nicolai in the office of Minister of Justice is unconstitutional”445. The author of
the referral further pointed out that “the President of Romania does not have a veto right to the
Prime -Minister’s proposal”446 and that “the President’s attribution to appoint in public offices
is an obligation, not a right”447.
The dispute began after Tudor Chiuariu resigned from his office of Minis ter of Justice
and, throughout late December 2007 – early January 2008, Prime -Minister Călin Popescu
Tăriceanu nominated Norica Nicolai and the President Traian Băsescu refused to accept this
nomination – nomination which the Prime -Minister insisted on pre serving, although the
President repeatedly asked him to propose another person.
In response, Traian Băsescu also claimed that a legal dispute of a constitutional nature
did exist between the Prime -Minister and the President “due to differences in politic al
opinions”448, because “the Prime -Minister refuses to exercise his power to make a new proposal
to the head of state”449 and that “this conflict stems from the Prime -Minister’s refusal to
collaborate with the President of Romania and to advance an appropriat e proposal for the office
of Minister of Justice”450. He further explained that the reasons for which he disagreed with
Tăriceanu’s proposal was that Norica Nicolai had been repeatedly sanctioned both
professionally and politically, for inappropriate exercise of the offices previously held and, for
this rea son, he requested the Prime -Minister to appoint an interim Minister.
The Constitutional Court of Romania established that “in solving such a legal dispute,
it is obliged to give the texts from the Fundamental law a suitable interpretation”451. It
concluded that a legal dispute of a constitutional nature did exist between the Prime -Minister
and the President, regarding the latter’s refusal to appoint Norica Nicolai in the office of
Minister of Justice. However, the Constitutional Court also explained that “in exercising the
attributions provided by article 85 paragraph (2) of the Constitution, the President of Romania

445 Decision no. 98/07.02.2008 published in the Official Gazette of Romania no. 140/22.02.208, p. 1.
446 Ibidem.
447 Ibidem.
448 Idem , p. 2.
449 Ibidem.
450 Ibidem.
451 Idem , p. 2.

190 can refuse, only once, justified, the Prime -Minister’s proposal to appoint a person in the vacant
office of Minister. The Prime -Minister is obli ged to appoint another person”452.
A separate opinion was formulated by judges Tudorel Toader and Puskas Valentin
Zoltan, who claimed that the Court’s decision and the obligation it imposed the Prime -Minister
are “a significant step away from the semi -presi dential constitutional architecture towards a
presidential republic”453. They also argued the nomination for the office of Minister of Justice
was the responsibility of the Prime -Minister, for which he could be sanctioned by Parliament
with a censorship moti on. Judge Tudorel Toader was supported by the National Liberal
parliamentary groups when he was appointed at the Constitutional Court. Both Tudorel Toader
and Puskas Valentin Zoltan have formulated other separate opinions, often times contrary to
the Presi dent of Romania’s stance.

5.7.4. DECISION NO. 270/10.03.2008
Moreover, perhaps the most complex decision the Constitutional Court had to take was
the Decision No. 270/10.03.2008 which was published in the Official Gazette No.
290/15.04.2008. Although the Court was notified on three distinct occasions, it considered that
the conflicts were quite similar – they are concerned with the same issue, indeed – and that two
of them would be quite easily compiled altogether. Thus, the first notification was formula ted
by the President of the Chamber of Deputies and by the President of the Senate and it signaled
the existence of a conflict between the President of Romania , the Ministry of Justice on the one
hand, and the Romanian Parliament on the other, whereas the second conflict on which the
Court ruled in this decision was notified by the President of the Superior Council of Magistracy
regarding the conflict between the Public Ministry and the Romanian Parliament – the Chamber
of Deputies.
Basically, the main is sue in this case concerned the fact that the President Traian
Băsescu sent the requests to proceed with the prosecution of 4 Cabinet members at that time
which were also Parliament members, namely Adrian Năstase, Codruț Sereș, Miron Mitrea and
Paul Păcurar u to the Public Ministry. In short, the Parliament considered that the President, the
Ministry of Justice and the Public Ministry had taken on themselves certain prerogatives which

452 Idem , p. 5.
453 Idem , p. 6.

191 pertained to the another public authority – the Parliament or the Chamber t o which those
Parliament members belonged454 – and therefore violating the principle of separation of powers.
On the second conflict presented in this decision I will not develop much, because it is
identical in content to the previous one, the only differ ence being that the authority notifying
the Constitutional Court was the President of the Senate. In addition, Ilie Sârbu requested at
that time that the public authorities involved in the conflict should be “obliged to request the
approval of the two Cham bers of the Parliament before proceeding with the criminal
investigations of the senators and the deputies accused of criminal acts while exercising their
function as Cabinet members”455.
The third conflict which was dealt with by the Constitutional Court o f Romania ’s
Decision No. 270/10.03.2008 and which was published in the Official Gazette No.
290/15.04.2008 regarded the request of the President of the Superior Council of Magistracy to
solve a legal dispute of a constitutional nature between the Public Mi nistry, as a judicial
authority and the Romanian Parliament – more precisely, the Chamber of Deputies. The main
concern in this case is that the conflict between the Chamber of Deputies who maintains that it
must give its approval prior to any investigatio n on Parliament members and the Public Ministry
which refuses to submit the files of the former ministers to the Chamber of Deputies, is
generating an institutional blockage which ultimately prevents the judicial authorities from
exercising their attributi ons in the cases under discussion. Once more, needless to say, the basic
principle bridged is that of the separation of powers, as in this case, the legislative authority
believes that the executive authority is taking on certain competencies which are of its own
according to article 109, paragraph (2) of the text of the Fundamental Law.
After the ensuing opinions of all of the parties involved and after the debates that
followed, the Constitutional Court of Romania decided that a legal dispute of a consti tutional
nature did exist between the Public Ministry and the Parliament regarding the procedure in the
case of the requests of criminal investigation of the former and actual members of the
Government which are also, at that time, deputies or senators. In this respect, the Court also
decided that the Public Ministry is to notify the Chamber of Deputies or the Senate to ask for
the approval of the criminal investigation of those Cabinet members which are, at that time,
either deputies or senators. By contra st, the Public Ministry will notify only the President to ask
for the approval of the prosecution procedures of those Cabinet members which were not, at

454 According to article 109, paragraph (2) of the Constitution.
455 Decision No. 270/10.03.2008, published in the Official Gazette of Romania No. 290/15.04.2008, p. 3.

192 the time of the notification, members of the Parliament. However, the Court decided that there
was no l egal dispute of a constitutional nature between the President of Romania and the two
Chambers of Parliament, as it was “within the President’s attributions to ask for the criminal
investigation of the Cabinet Members”456 even without notifying the Parliament .
Finally, the Constitutional Court of Romania also decided that a more coherent
conceptual delimitation of the term “legal dispute of a constitutional nature” was required and
therefore ruled that “it is within its competency to solve any legal dispute o f a constitutional
nature between public authorities, and not just those regarding their competencies”457.
Nonetheless, seeking to remain consistent with its neutral stance from the political sphere, the
Court also emphasized that “it is not within its attri butions to decide upon certain statements
with an obvious political meaning”458.

5.7.5. DECISION NO. 1559/18.11.2009
A second decision taken by the Constitutional Court of Romania in 2009 dealt with the
request to solve the legal dispute of a constitutiona l nature between the Romanian Parliament
and the President of Romania , which was formulated by the President of the Senate. The issue
in this case was the appointment of several Cabinet members, which was among the attributions
of the Parliament. After off icially resigning from their posts, several ministers from the Social
Democratic Party – Cristian Diaconescu (Minister of Foreign Affairs), Ecaterina Andronescu
(Minister of Education, Research and Innovation), Marian Sârbu (Minister of Work, Family
and So cial Welfare), Ilie Sârbu (Minister of Agriculture, Forests and Rural Development), Ion
Bazac (Minister of Health), Nicolae Nemirschi (Minister of Environment), Constantin Niță
(Minister of Small and Medium Enterprises, Commerce and Business) and Victor -Viorel Ponta
(Minister for the Relation with the Parliament), the President has replaced them with the
following interim ministers of the Democrat Liberal Party, at the proposal of the Prime –
Minister459: Emil Boc (interim Minister of Education, Research and In novation), Gabriel Sandu
(interim Minister of Small and Medium Enterprises, Commerce and Business), Gheorghe Pogea

456 Idem , p. 5.
457 Idem , p. 7.
458 Ibidem .
459 By the Decree No. 1361/1.10.2009, Decree No. 1362/1.10.2009, Decree No. 1363/1.10.2009, Decree No.
1364/1.10.2009, Decree No. 1364/1.10.2009, Decree No. 1365/1.10.2009, Decree No. 1366/1.10.2009, Decree
No. 1367/1.10.2009 and the Decree No. 1368/1.10.2009 all of which were published in the Official Gazette of
Romania No. 649/1.10.2009.

193 (interim Minister of Work, Family and Social Welfare), Elena Gabriela Udrea (interim Minister
of Environment), Radu Mircea Berceanu (interim Minister of Agriculture, Forests and Rural
Development), Cătălin Marian Predoiu (interim Minister of Foreign Affairs), Adriean Videanu
(interim Minister of Health), Sorina Luminița Plăcintă (interim Minister for the relation with
the Parliament) which cons equently changed in a dramatic manner the political configuration
that the Cabinet had had.
Therefore, following the provisions of article 85, paragraph (3)460 of the Fundamental
Law, the President of the Senate argues that a legal dispute of a constitution al nature has arisen
between the Parliament and the President, because in cases such as the present one, when the
political configuration is significantly altered, it is within the Parliament’s attributions to
approve the proposals and the nominations of t he Prime -Minister prior to the Presidential
approval and official nomination. Finally, another important aspect on which the President of
the Senate wanted to be specifically clear about was on the constitutional provision which was
presumably broken – namely that there was no distinction whatsoever made between the interim
Ministers and the permanent holders.
Also in this case, according to the procedural standards of the Constitutional Court of
Romania461, the parties involved in the conflict were officia lly required to state their opinions
on the matter under discussion. In his Address No. 3.284/26.10.2009, the President of Romania
maintained that there was no legal dispute of a constitutional nature as he considers that he “did
not assume any of the attr ibutions of other public authorities”462 and that the provisions of
article 85, paragraph (3) are different from the current case, as it regards the interim ministers,
as a temporary measure.
In a similar fashion, the President of the Chamber of Deputies (as an involved party in
the conflict which the President of Senate considered to be between the President and the
Parliament, as a whole) did not consider that the situation was a legal dispute of a constitutional
nature and that the de jure provisions of the invoked constitutional stipulations were not
applicable to the present de facto situation. On this note, taking into account the political

460 “If, through the reshuffle proposal, the political structure or composition of the Government is changed, the
President of Romania shall o nly be entitled to exercise the power stipulated under paragraph (2) based on the
Parliament’s approval, granted following the proposal of the Prime -Minister”.
461 According to article 34, paragraph (2) of the Law No. 47/1992 “the request to solve the confli ct will mention
the public authorities involved in the conflict, the legal texts upon which the conflict is based, the presentation of
the parties’ stances and the opinion of the author of the request”.
462 Decision No. 1559/18.11.2009, published in the Off icial Gazette of Romania No. 823/30.11.2009, p. 4.

194 configuration of the Chamber of Deputies, their stance does not appear surprising at all, as the
President of th is institution was also a Democrat Liberal.
Taking everything into account, by its Decision No. 1559/18.11.2009 which was
published in the Official Gazette No. 823/30.11.2009, the Constitutional Court of Romania has
ruled that this was not a case of a leg al dispute of a constitutional nature between public
authorities based on the fact that the President of Romania , Traian Băsescu had taken on more
prerogatives and attributions than the Constitution had granted him, because from the Decrees
issued by the President, “no holder Ministers were named on the vacant functions, but just
ministers of the same Cabinet in ord er to ensure the interim functioning of the posts until the
nomination of other, holding ministers”463 and further invoking article 107, with paragraphs (3)
and (4) of the Fundamental Law in support of their reasoning. From those legal provisions, the
Court also emphasized that “the interim is always ensured by a member of the Government and
not by a person on the approved list of the Parliament by granting their vote of investiture and
only for a limited period of 45 days at most”464. In addition, because the interim ministers were
already members of the Government and, by consequence, had already previously been invested
with the trust and the approval of the Parliament, such a procedure is not necessary in the present
case and, thus, the President did not vio late the Parliamentary competency as it did not exist in
the present circumstances.

5.7.6. DECISION NO. 1560/18.11.2009
At the same time and on the same grounds, albeit in a more specific manner, the
President of the Senate notified the Constitutional C ourt of Romania on another legal dispute
of a constitutional nature that had emerged between the President and the Parliament. The main
difference which led to the formulation of a distinct request was that in this case, the focus was
on the replacement of the former Minister of Administration and Internal Affairs and vice –
Prime -Minister Constantin Nica of the Social Democratic Party with the Democrat Liberal
Vasile Blaga by the Decree No. 1358/1.10.2008. Based on these actions which, once more,
violate the article 85, paragraph (3) of the Fundamental Law as in the previous case, Mircea
Geoană argues that “the President of Romania is arrogating himself the power of changing the

463 Idem , p. 6.
464 Idem , p. 7.

195 political composition of the Government, although this power pertains […], exclus ively, to the
Romanian Parliament”465.
The principle of separation of powers is brought into discussion in a more explicit
manner on this occasion, as the President of the Senate believe that this principle was inflicted
upon when the Traian Băsescu did not submit Vasile Blaga’s nomination to the Parliament’s
approval, fact which disrupted the constitutional order in itself and at the same time refrained
the Parliament from exercising one of its rightful attributions, which was instead taken on by
the Presid ent.
Following the same counter -arguments it had presented in the previous case, both the
President of Romania and the President of the Chamber of Deputies have maintained that this
was not the case of a legal dispute of a constitutional nature, based on the distinction that is
made between the interim ministers and the actual holders of a ministerial portfolio.
Although the political stake in this conflict was slightly more obvious, given the
perceived importance that both of the opposing political for ces attributed to the Minister of
Administration and Internal Reform, the arguments employed were basically the same and,
since the situation and the context was also identical to the previously presented case, it may
come as no surprise that the Constitut ional Court of Romania ruled, in its Decision No.
1560/18.11.2009 which was subsequently published in the Official Gazette No. 824/30.11.2009
that this was not the case of a legal dispute of a constitutional nature, as the President of
Romania did not brea k any of the constitutional barriers that define his attributions, nor did he
alter in any way the principle of separation of powers.

5.7.7. DECISION NO. 1431/3.11.2010
Furthermore, during the final timeframe analyzed in this chapter , two more decision s of
the Constitutional Court of Romania were taken regarding the possible legal disputes of a
constitutional nature between public authorities, which I will present in a chronological order.
The Decision No. 1431/3.11.2010 which was published in the Offi cial Gazette No.
758/12.11.2010 was concerned with solving the legal dispute of a constitutional nature between
the Romanian Parliament and the Romanian Government and centered on the issue of the

465 Decision no. 1560/18.11.2009, published in the Official Gazette of Romania no. 824/30.11.2009, p. 1.

196 national education bill. Basically, because the Government decided to assume the responsibility
on the new national education bill, which was at that time, in the process of legiferation in the
Parliament, Mircea Geoană maintains that “the Government practically stopped the normal,
legislative and parliamentary pr ocedures and by consequence, prevented the Government from
exercising its own constitutional attributions and competencies”466 which ultimately created a
legal dispute of a constitutional nature between these public authorities.
Therefore, in this case as i n most of the previously presented situations, what is disputed
most intently is the presumed breach of the principles of separation and balance of powers
which are stipulated by the article 1, paragraph (4) of the Fundamental Law and which, in the
opinion of the President of the Senate could “constitute a very dangerous precedent through
which the evasion from the parliamentary debates could become a general practice”467. In
addition, the President of the Senate also invoked another decision of the Constitut ional Court,
namely the Decision No. 1557/18.11.2009 by which the Court had decided that “assuming the
responsibility on a legislative project is an unconstitutional practice”468 unless it is done under
exceptional circumstances. Finally, in the subsequent d ebates on the case in front of the Court,
the representative of the Senate clarified that “the object of the conflict is not that the legislative
procedure was blocked, but that fact that, through this procedure, the Government had avoided
the Parliament’s competency”469. In their response to the alleged accusations, the President of
the Chamber of Deputies and the Romanian Prime -Minister Emil Boc were quite consistent, as
they both, needless to say, argued that this was not the case of a legal dispute of a c onstitutional
nature.
On this occasion, however, the President of the Chamber of Deputies wanted to make a
clear conceptual delimitation, as the only possible constitutional conflict was that between the
Senate and the Government, and not between the Par liament, as a whole, and the Government
on the other side, precisely because the Chamber of Deputies does not see any disagreement
with the executive. Both the President of the Chamber of Deputies and the Romanian Prime –
Minister invoked the constitutional provisions of article 114 of the Fundamental Law which
enables the Government to assume its responsibility on a legislation project and this procedure

466 Ibidem .
467 Idem , p. 2.
468 Decision No. 1557/18.11.2009, p. 8.
469 Decision No. 1431/03.11.2010, published in the Official Gazette of Romania No. 758/12.11.2010, p. 4.

197 does not, however, put an end to the legislative process, as the Senate is free to continue its
deliberat ions”470.
In addition, the President of the Chamber of Deputies believes that this extraordinary
measure of the Government was a necessity because of the duration of the legislative
procedures, as “the political structure of the Education Commission of the Senate does no afford
the passing of the Law on the National Education, because the opposition has a larger number
of members than the political parties in power which leads to the tardiness with which the law
in question is being adopted”471. From this per spective, the importance of the political
dimension in the supposedly legal disputes of a constitutional nature becomes more than
obvious and apparent.
The Government’s official position is that, by the fact that they took into consideration
the modifica tions and the improvements that the Commission of the Chamber of Deputies
brought to the bill, the Government did not disregard the parliamentary debates and views on
this law. Also, the Romanian Government believes that the Senate delayed the bill in ques tion
for a too longer period of time and, given the importance of the reform in the educational
system, the bill in question could suffer no further postponements, which would justify the
Government’s decision to assume responsibility on this project.
In its ruling, the Constitutional Court of Romania emphasized that this procedure of
assuming the Governmental responsibility is not “an absolute right of the Government, although
it is not specifically stipulated and limited anywhere in the constitutional p rovisions”, but
should be adopted only under in extremis circumstances. Nonetheless, after analyzing the
circumstantial and factual dimensions of the case, the Court ruled that the Government’s option
“found no justification and that the Government’s state ment that this procedure had been
delayed is unfounded”472 because article 75 of the Constitution does not provide any deadlines
with regard to the debating of the legislative projects in the decisional Chamber.
Moreover, the general practice of such a proc edure would damage the principle of
separation of powers, as the Government would become “a legislative public authority
concurring with the Parliament in its attributions”473. Finally, the Court also retained that the
Government had breached the erga omnes effect of its Decision No. 1557/2009 by which it had

470 Idem , p. 5.
471 Ibidem .
472 Idem , p. 9.
473 Ibidem .

198 ruled that there is no de jure or de facto motivation which would enable the Government to
avoid the parliamentary debates and examinations and to assume it responsibility on various
legislation bills.
Hence, in this case, the Constitutional Court of Romania admitted the existence of a
legal dispute of a constitutional nature between two public authorities – the Parliament and the
Government. On this note, it is worth keeping in mind that the Court decid ed the Parliament as
a whole was one of the parties involved in the conflict, and not just the Senate, regardless of
the distinction that the President of the Chamber of Deputies was so keen on making. This was,
according to the judges, because “from the p erspective of the legislative process, this distinction
is irrelevant [as the] law represents the judicial act of the Parliament and its adoption requires
not only the approval of one of the Chambers, but involves the entire parliamentary
procedure”474. With reference to the Decision No. 435/26.05.2006, the Constitutional Court of
Romania underlined, once more, the importance of an attitude of cooperation between the state
powers and that of the “loyal behavior which is an extension of the principle of separa tion and
balance of powers in the state”475.
Last but not least, another interesting aspect of this case was the demand expressed by
the President of the Senate, when he required that the Constitutional Court “would oblige the
Government to give up on the p rocedure of assuming its responsibility”476. It is not the first
time that the representative of a public authority involved in a legal dispute of a constitutional
nature requires the Court to take certain measures against the accused party, but until this c ase,
such explicit demands had not been made in the cases that were admitted as legal disputes of a
constitutional nature. It is important to note, therefore, with reference to the impact of its
decisions, that the Court cannot enforce its decisions in the same manner that an executive or
an administrative authority could and that such a request “exceeds its competencies”477.

5.7.8. DECISION NO. 1525/24.11.2010
As if following the same pattern in a thematic perspective and not just in a temporal
coincidenc e, the next case with which the Constitutional Court of Romania was presented was
that of another presumed constitutional conflict between the Romanian Government and the

474 Idem , p. 10.
475 Ibidem .
476 Idem , p. 2.
477 Idem , p. 11.

199 Romanian Parliament, only that this time, the Court was notified by the Prime -Ministe r Emil
Boc.
Another difference is that this time, the issue which was believed to constitute an
institutional blockage in itself was “generated by the refusal of the Romanian Parliament to
allow the presentation and the debate of the motion of censorship deposited after the
Government assumed its responsibility”478 on the bill of national education. Although, by its
Decision No. 1431/3.11.2010, the Court decided that a legal dispute of a constitutional nature
had emerged between the Parliament and the Gover nment after the latter had decided to assume
its responsibility on a legislative project and emphasized that this procedure was
unconstitutional, the Government maintains that it cannot stop the parliamentary procedures
that were generated by its decision, as the President of the Senate, Mircea Geoană requested.
In addition, because the two Chambers had already allowed the Government to assume
its responsibility on the project of the law on national education before the Court ruled in its
Decision No. 143 1/3.11.2010 and because that decision does not oblige the Government to
renounce the already initiated decision, the Prime Minister asks the Constitutional Court to
admit that this is a situation in which a legal dispute of a constitutional nature has crea ted an
institutional blockage “which can only be removed by the continuation of the parliamentary
procedure of the Government’s assuming its responsibility”479.
On the other hand, the response of the Parliament was delivered, again, in a separate and
dividi ng manner. While the Chamber of Deputies supported the Prime -Minister’s plea that there
was, indeed, a legal dispute of a constitutional nature caused by the Parliament, the Senate took
a different stance. Drawing on the provisions of article 1, paragraph (4) of the Constitution
which promotes the principle of sepa ration of powers and on the Court’s Decision No.
1431/3.11.2010, Mircea Geoană argued that such a request in itself continues the conflict
previously established, because “the Government was obliged to take back the act by which it
assumed responsibility o n the bill of national education”480.
As in its Decision No. 901/17.06.2009 which was published in the Official Gazette No.
503/21.07.2009, the Constitutional Court of Romania underlined that the notion of legal dispute
of a constitutional nature “regards a ny legal disputed situations which were directly generated

478 Decision No. 1525/24.11.2010, published in the Official Gaze tte of Romania No. 818/07.12.2010, p. 2.
479 Ibidem .
480 Idem , p. 4.

200 by the text of the Constitution”481 thereby extending its attributions beyond “the competency
conflicts, be they positive or negative, which may create institutional blockages”482.
Furthermore, given the role of the censorship motion as an instrument of the Parliament
so as to control the activity of the Government, the Court also emphasized in its Decision No.
1525/24.11.2010 that “the Parliament does not have the competency to prevent the Government
from taking the decision to assume its responsibility and, once taken this decision, the
Parliament cannot prevent the Government from continuing this procedure”483. In addition, the
Government cannot take back its decision either, therefore the only soluti on is the procedure of
the censorship motion which “has the meaning of a parliamentary control over the activity of
the Government and which is also an irrevocable act”484.
Finally, because the Government’s decision to assume its responsibility on the bill of
education had already been “implicitly accepted by the permanent Office of the two Chambers
when they established the calendar of the governmental procedure”485, it follows that the
Decision No. 1431/3.11.2010 which was published in the Official Gazette N o. 758/12.11.2010
and which declared unconstitutional the act of the Government through which it assumed its
responsibility on that legislative project could not be applied on the case in question, because
the decisions of the Court have effect only for fu ture references – the so -called ex nunc effect
which is also stipulated by article 147, paragraph (4) of the Romanian Constitution486. On this
logic, the legal dispute of a constitutional nature that existed between the Government and the
Parliament in this matter, although existent, was ended when the Parliament established the
calendar of the Government’s decision to assume its responsibility.
In consequence, a legal dispute of a constitutional nature did exist between these two
public authorities, a confl ict which was determined by the Parliament’s refusal to continue with
the parliamentary procedures that enabled the Government to assume responsibility on a
legislative project – a process which “cannot be stopped once it had begun”.

481 Decision No. 901/17.06.2009, published in the Official Gazette of Romania No. 503/21.07.2009, p. 9.
482 Ibidem .
483 Decision No. 1525/24.11.2010, published in the Official Gazette of Romania No . 818/07.12.2010, p. 6.
484 Idem , p. 4.
485 Idem , p. 5.
486 “The Decisions of the Constitutional Court shall be published in the Official Gazette of Romania of Romania.
As from their publication, decisions shall be generally binding and effective only for the fu ture”.

201
5.7.9. 2011
There we re no cases registered at the Constitutional Court of Romania on legal conflicts
of a constitutional nature between public authorities in 2011. The first explanation is that 2011
was a year of unified politics, when the President and the Prime -Minister Emi l Boc shared the
same political affiliation, and the Parliament was headed by the Democratic -Liberal Roberta
Anastase as President of the Chamber of Deputies and the Social -Democratic Mircea Geoană
until late 2011, when he was succeeded by the Democratic -Liber al Vasile Blaga.

5.7.10. DECISION NO . 683/27.06.2012
For the purposes of this empirical analysis, there were only two decisions the
Constitutional Court issued in 2012, as a third one was issued upon a notification made by the
Superior Council of Magistr acy – which cannot be considered a public authority susceptible of
political affiliation and is, therefore, outside the scope of the present research. Since the year
2012 was marked by the President’s suspension from office, these two decisions on legal
conflicts of a constitutional nature were controversial and even led to the emergence of separate
and concurrent opinions.
The first conflict of 2012 and, most likely, the event that triggered the procedures for
Traian Băsescu’s suspension from office of P resident concerned the disagreement between
President Traian Băsescu and Prime -Minister Victor Ponta on who should attend the European
Council on the 28th-29th of June 2012. The President notified the Court on the 22nd of June,
explaining the constitutive elements of a legal conflict of a constitutional nature were
“generated by the Government and Prime -Minister’s action to exclude the President of Romania
from the component of the delegation participant at the European Council during the 28th-29th
of June 2012 and, consequently, by the Prime -Minister’s taking over of the constitutional
prerogative to represent the Romanian people”487. The President also mentioned that the
Minister of Foreign Affairs at that time, Andrei Marga, had refused to submit the Presid ent’s
list of attendants to the Secretary General of the Council of the European Union and he also
maintained the Parliament had issued a Declaration – Declaration no. 1/2012, published in the
Official Gazette of Romania no. 392/12.06.2012 – by which it es tablished that “The Prime –
Minister has precedence to represent Romania and to participate in the decisional process of

487 Decision no. 683/27.06.2012 published in the Official Gazette of Romania no. 479/12.07.2012, p. 1.

202 the European Council”488. In addition, the President also stated he had informed the Prime –
Minister of his wishes to attend the European Co uncil, and that he does not wish to delegate
anyone. Overall, he considered the Prime -Minister’s attempt to take his place at the European
Council “an illegitimate appropriation of a presidential constitutional prerogative by the Prime –
Minister”489.
In repl y, the Government submitted its viewpoint to the Court, arguing the President’s
request was inadmissible because that was not a legal dispute of a constitutional nature. Also,
they emphasized that the term head of state does not exist in the Romanian Funda mental Law
and that “representing Romania at the European Council is not an exclusive prerogative of the
President of Romania”490.
The debates took place on the 27th of June 2012 and were attended by Ștefan Diaconu,
on behalf of the President, Prime -Ministe r Victor Ponta, Minister of Justice Titus Corlățean and
Minister for the relation with Parliament, Mircea Dușa. Ștefan Diaconu pleaded that “the
President is the representative of the Romanian people”491, that “the Parliament’s Declaration
no. 1/2012 is a po litical document which does not produce judicial consequences neither to the
President, nor to the Prime -Minister”492
In turn, the Prime -Minister and his Cabinet members explained that previous Prime –
Ministers in office did not wish to participate or simply did not participate, but that does not
mean that the Prime -Minister is not allowed to participate. Also, when asked by judge Acsinte
Gaspar if “such a conflict would not have been better solved by a loyal dialogue between the
authorities involved”493, Victo r Ponta claimed “there was a permanent opening towards
dialogue with the President of Romania”494. However, when asked by judge Aspazia Cojocaru
why did he request Parliament a Declaration, he claimed he cannot answer.
The Constitutional Court of Romania established this case was, indeed, one of a legal
dispute of a constitutional nature between public authorities, concerning the violation of article
80 paragraph (1) and article 102 paragraph (1) of the Constitution495, but that the President of
Romania was en titled to represent the state at the European Council the following day.

488 Ibidem.
489 Idem , p. 2.
490 Idem , p. 4.
491 Idem , p. 5.
492 Ibidem.
493 Ibidem.
494 Idem , p. 8.
495 Idem , p. 10.

203 A separate opinion, claiming the President’s notification should have been dismissed,
was formulated by judges Acsinte Gaspar, Puskas Valentin Zoltan and Tudorel Toader. Judge
Tudore l Toader was appointed by the Chamber of Deputies in 2006/2007 and supported by the
National Liberal parliamentary group, Acsinte Gaspar was appointed by the Social Democratic
former President Ion Iliescu in 2004 and Valentin Zoltan Puskas was appointed by the Senate
in 2007, being supported by the Democratic Alliance of Hungarians in Romania. In their view,
“the decision regarding the country’s representative to an international meeting, including to
the European Council, is a political matter, which must be settled, when such disputes between
the President and the Prime -Minister exist, by the Parliament”496. As such, even if they agreed
the Parliament’s Declaration no. 1/2012 was a political act that does not hold any binding legal
effects, they concluded th at “the Constitutional Court cannot censor a vote of the Parliament
expressed on an act with an exclusively political resonance”.
Another separate opinion was formulated by judge Ion Predescu497, one throughout
which he advocated the importance and relevanc e of the Parliament’s Declaration no. 1/2012
which:
“is an act of political will. It is the act of political will of the supreme
representative body of the Romanian people and, therefore, indisputable,
unavoidable and to be enforced by the effects it pro duces. The Parliament is
the sole competent public authority to pronounce on disagreements regarding
the state’s representation which occur between the two public authorities –
the President of Romania and the Government’s Prime -Minister. The solution
adop ted by the Parliament is obviously constitutional and its enforcement as
well. As a political act of the supreme representative body, the Parliament’s
Declaration is not subjected to the Constitutional Court’s control. The
Parliament’s political act does n ot create a legal conflict of a constitutional
nature between the two authorities, but solves their disagreements on the
state’s representation to every meeting of the European Union”498.
Last but not least, in agreement with the majority, judge Aspazia Coj ocaru formulated
a concurrent opinion, one in which she claimed that “the Prime -Minister’s appeal to the
Parliament finds no legal ground, since the Parliament does not have, among its powers, the
power to establish and solve the conflicts between public a uthorities” and that “the Parliament’s
political statement does not produce any legal effects, even if the Parliament is the supreme
representative body of the Romanian people”499. Supported by the Social Democratic

496 Idem , p. 17.
497 He was supported by the parlia mentary group of the Democratic Alliance of Hungarians in Romania, being
appointed by the Senate in 2004.
498 Idem , p. 19.
499 Idem , p. 20.

204 parliamentary groups, judge Aspazia Cojoca ru was appointed by the Chamber of Deputies in
2004 and was, at that time, the first woman in the Court’s plenum. She also openly declared her
gratitude for Adrian Năstase’s support at the end of her term of office, so I would have expected
her to disagree w ith the President and to support the Social Democratic Government. Instead,
she decided against any presumed political allegiances and was heavily criticized in the mass –
media during that year in particular.

5.7.11. DECISION NO . 730/09.07.2012
The seco nd decision the Constitutional Court of Romania issued in 2012 also started
from President Traian Băsescu’s notification by which he “requested the Court to ascertain the
existence of a legal dispute of a constitutional nature between the Parliament of Romania, on
the one hand, and the President of Rom ania, on another, conflict arisen following the
Parliament’s action to dispose [his] suspension from the office of President of Romania, with
the violation of the provisions of article 95 paragraph (1) of the Constitution”500.
Among the arguments he employe d were the following: a) the Parliament “knowingly
ignored one of the essential conditions [for the suspension from office] provided by article 95
paragraph (1), namely the perpetration of serious offenses by which the President of Romania
violates the con stitutional provisions; b) that the “Parliament did not have the competence to
pronounce itself on the suspension proposal in the absence of serious offenses of the President
of Romania by which constitutional provisions were violated, qualifying the facts as ‘serious
offenses’ being one of the Constitutional Court’s powers”501; c) “the Romanian Parliament
surpassed its competence”502. In addition, on the 9th of July he supplemented his request with
the following claims: d) the suspension endeavor “was committe d by seriously breaching the
Constitution”503; b) “the procedure of suspending [him] from office of President of Romania
was carried out by breaching the princip les of the rule of law state”. The Constitutional
provisions Traian Băsescu claimed had been brea ched in this dispute were those of article 16,
article 1 paragraph (5), and article 95 paragraph (1).

500 Decision no. 730/09.07.2012 published in the Official Gazette of Romania no. 473/11.07.2012, p. 1.
501 Ibidem .
502 Ibidem .
503 Idem , p. 2.

205 In response, the Senate and the Chamber of Deputies argued that the President’s
notification is inadmissible since he no longer has the quality of Preside nt of Romania504 and
he cannot contest the procedure of suspension505. Moreover, they maintained that “the
Parliament of Romania is the public authority with the exclusive competence to appreciate the
seriousness of the acts by which constitutional provisions are breached”506.
For the debates that took place on the 9th of July 2012, apart from Ștefan Deaconu – the
presidential counselor – Traian Băsescu participated himself, claiming from the very beginning
of his statement that his “presence before the Constitu tional Court is necessary, not to influence
the constitutional judges, but to offer explanations he did not give on the occasion of the issuing
of the advisory opinion”507. After reminding the plenum that his first attempt of suspension
from office in 2007 l asted for 65 days – by contrast to the fast -forward pace of the 2012 attempt
– he emphasized that “his statements cannot be considered serious offenses, since the most
legitimate of the politicians must have the courage to speak to the citizens on the econ omic and
social issues they are to confront”508. He also criticized the Court’s advisory opinion, claiming
that “its affirmation according to which the President of Romania had influenced the
Government’s decisions, by diminishing its role and the Prime -Mini ster’s is questionable”509.
More interestingly he also requested the Court to formulate an official answer to several issues:“
1) if the finding expressed in Parliament that the Constitutional Court’s Advisory Opinion no.
1/2012 established ‘the President of Romania had committed certain serious offenses in breach
of the Constitution’; 2) […] to establish whether by its vote, the Parliament performed a
constitutionality control, according to the Constitution, or merely a political control (as in the
case of a censorship motion against the Government); and 3) […] to establish that the President
of Romania, according to the Constitution of Romania, is not subordinated to the Parliament,
so that its political actions cannot be sanctioned by the Parliament, as hap pens in the case of the
Government”510.
On the same day, however, the Constitutional Court of Romania ’s plenum formed of
the judges Aspazia Cojocaru, Acsinte Gaspar, Petre Lăzăroiu, Mircea Ștefan Minea, Iulia
Antoanela Motoc, Ion Predescu, Puskas Valentin Zoltan, Tudorel Toader and President

504 Idem , p. 2.
505 Idem , p. 3.
506 Idem , p. 2.
507 Idem , p. 3.
508 Idem , p. 4.
509 Ibidem .
510 Ibidem .

206 Augustin Zegrean established the President’s request was inadmissible since “only the
Parliament can decide the President’s suspension from office, being given this power, and once
the parliamentary procedure for the Pr esident of Romania’s suspension from office set in
motion, it cannot be stopped”511.
A separate opinion, in this case, was formulated by judge Iulia Antoanella Motoc, who
“considered the request was admissible and grounded”512 because the President had the
necessary quality at the time he submitted his notification513 and because the Court is competent
to decide on “any legal conflictual situation that resulted directly from the text of the
Constitution514. She also declared that, in her opinion, “the President’s suspension from office
is part of a series of unconstitutional acts adopted by the Parliament and by the Government
with a serious violation of article 1 paragraphs (1), (3) and (5)”515. Judge Iulia Motoc was not
appointed by the President Traian Băsescu, but by the Senate. However, she was supported by
the Democratic -Liberal parliamentary group in 2010.

5.8. COMPARATIVE ANALYSIS
The last section of this chapter focuses on the actual analysis of the role of the
Constitutional Court of Romania in solving the legal disputes of a constitutional nature between
public authorities. As such, in order to test the hypothesis and the sub -hypotheses previously
mentioned, and to answer the researc h question originally formulated, I will present and
subsequently analyze the following dimensions which I found relevant to this topic, namely: a)
the political affiliations of the heads of the public authorities involved in the legal disputes of a
consti tutional nature, b) the Constitutional prerogatives which were violated in the claims, c)
the clarifications made by the Court in its decisions and d) the actual impact of the rulings of
the Constitutional Court; e) the frequency with which the Court has b een notified on article 146
letter e); and f) the number of times each public authority has been involved in these cases as
well as the number of times each representative of the public authorities has notified the Court.

511 Idem , p. 5.
512 Idem , p. 6.
513 Ibidem .
514 Ibidem .
515 Idem , p. 7.

207 The indexation method has been u sed and, after establishing a general database on the
legal disputes of a constitutional nature between public authorities, several graphics have been
generated so as to quantitatively illustrate the results of the comparative analysis.

5.8.A. FREQUENCY O F CASES
As previously explained, the power to settle the legal disputes of a constitutional nature
between public authorities has been vested in the Constitutional Court of Romania at the 2003
revision of the Fundamental Law. Since 2003 and 2004 were both years of unified government,
there were no such cases at the Court. The chart below illustrates the number of cases of legal
disputes of a constitutional nature brought to the Court, following their chronological evolution.
However, it should be noted that this chart only accounts for those disputes in which the
public authorities involved are susceptible of possessing a certain political affiliation. As such,
I have excluded the cases in which one of the parties involved in the conflict or the author of
the referral was the judicial branch – as represented by either the Superior Council of
Magistracy or the High Court of Cassation and Justice. In addition, I have also opted for a
different quantification of these cases – whereas the jurisprudence portal on the Court’s website
differentiates between the authors of the referral within the same decision, thus repeatedly
counting two or three decisions for each author, I only counted them once. These explanations
are particularly relevant when comparing my resul ts with the statistics published on the Court’s
website – the results presented in this section are limited to the scope of my research.

208

Fig. 5.1. Chronological Chart with the Evolution o f the Number of Cases of Legal D isputes of
a Constitutional Natu re Brought to the Court
Source: Own Compilation of Data

The year 2011 was one in which there were no legal disputes of a constitutional nature
at the Constitutional Court because this was also a year of unified government – with the
exception of the Senat e presided by the Social Democratic Mircea Geoană, the President of the
Chamber of Deputies, Roberta Anastase; Prime -Minister Emil Boc and the President Traian
Băsescu all originated and were supported by the Democratic -Liberal Party.

5.8.B. THE POLITICAL AFFILIATIONS OF THE HEADS OF THE PUBLIC AUTHORITIES
INVOLVED IN THE LEGAL DISPUTES OF A CONSTITUTIONAL NATURE
After the previous and rather vast overview of all of the decisions taken by the
Constitutional Court of Romania in dealing with such conflicts, one of the most important
dimensions examined in this section is that of the political affiliations of the heads of the public
authorities involved in the legal disputes of a constitutional nature, as these institutions – and,
to a certain extent, these co nflicts in themselves – are of a political nature, rather than a judicial
one.
Hence, by analyzing all of the cases brought to the Constitutional Court from 2005 until
2012, it appears that the President has been involved in most of the legal disputes of a
constitutional nature – 8 times, followed closely by the Parliament, with 7 conflicts and the
Government, with 8.
00,511,52
2003200420052006200720082009201020112012001
012 2 2
02Chronological Chart with the Evolution of the
Number of Cases of Legal Disputes of a
Constitutional Nature Brought to the Court

209

Fig. 5.2. The Number of Times Each of the Public Authorit ies Has Been Involved in Legal D isputes of a
Constitutional Nature
Source: Own Compilation of Data

However, it is important to keep in mind that the Constitutional Court does not
necessarily need to be notified by one of the parties that are involved in the conflict, thus
implying that any public authority can refer a case to the C ourt516. In addition, no distinction
between the Chamber of Deputies and the Senate is made, as the Parliament is taken together,
regardless of the different stances its Chambers may adopt in the conflicts, which strongly
biases the institutional perspective – especially since these differences are most likely the result
of a mere political configuration.
Then again, when analyzing the political affiliations of the public authorities, on a first,
basic level, I took into account only the political color of t heir heads, as they are the only ones
who can constitute a party involved in the conflict. Respectively, the political affiliations
presented below are, in the case of the Government – restricted to that of the Prime -Minister,
as the head of Government; in the case of the Parliament – they represent those of the Presidents
of the two Chambers, that of the President of the Chamber of Deputies and that of the President
of the Senate; and finally, in the President’s case since 2004, the affiliation to the Demo cratic
Party/ The Democratic -Liberal Party. As mentioned in the introduction of this thesis, the
President of Romania does not have, according to the Constitution, any de jure political

516 Examples in point are the Decisions No. 356/5.04.2007, published in the Official Gazett e of Romania No.
322/14.05.2007, Decision No. 838/27.05.2009, published in the Official Gazette of Romania No. 461/03.07.2009,
or Decision No. 270/10.03.2008, published in the Official Gazette of Romania No. 290/15.04.2008.
024688
57The Number of Times Each Public
Authority Was Involved in a Legal
Dispute of a Constitutional Nature
President Government Parliament

210 affiliation, as he is required to resign from the party that supported him. However, as he has
been accused on countless occasions and as the Constitutional Court of Romania itself admitted
in 2007 and in 2012, President Traian Băsescu has openly supported the Democratic Party/
Democratic -Liberal party in turn. Hence, the ba sic assumption on which the very theory of
cohabitation rests is that, de facto , the head of state does have a political affiliation and he is
examined as such throughout this thesis. As such, a chronological account of the parties and the
public authoriti es involved is the following:
In 2005, the first legal dispute of a constitutional nature was between the President and
the Romanian Parliament and therefore, in terms of their respective political affiliations,
between the Democratic Party and the Social Democratic Party which was represented both in
the Chamber of Deputies and in the Senate by Adrian Năstase and Nicolae Văcăroiu;
The second constitutional conflict was that between the President of Romania and the
Romanian Government, as chiefly represente d by the Prime -Minister at that time Călin Popescu
Tăriceanu, in a numerous series of political conflicts that occurred during 2007. On this
occasion, the political affiliations of the parties involved were the Democratic Party – the
President – and the Na tional Liberal Party – the Prime -Minister;
In another conflict in 2009, the Romanian Parliament was involved against the
President, albeit it was only the Social Democratic Senate that acknowledged the dispute with
the Democratic -Liberal President, while t he Democratic -Liberal Chamber of Deputies sided
with Traian Băsescu and denied the existence of such a conflict;
A final conflict in 2009 occurred between the President and the Parliament, although
once more, it is important to note that the Chamber of Dep uties, represented by Roberta
Anastase of the Democratic -Liberal Party, sided with the President and denied the conflict
against the Senate, as represented by the Social Democratic Mircea Geoană;
Then, in 2010 the first legal dispute of a constitutional na ture was between the
Parliament and the Government and centered around the bill on the national education and later
that same year, another conflict ensued again between the same public authorities. On this final
occasion, the main dispute was actually bet ween the Senate on the one side, against the
Government and the Chamber of Deputies which supported it, on the other. Or, in other word s,
between the Social Democrat s and the Democratic -Liberals.
After this explanation of the political affiliations repres entatives of the public authorities
involved in legal disputes of a constitutional nature held at their respective time, the following

211 charts will best synthesize the findings of this first dimension analyzed, while also providing a
graphic basis for a cle arer general understanding of this topic.

Fig. 5.3 . Number of Conflicts between Public Authorities by Their Political Affiliations
Source: Own Compilation of Data

To conclude, it appears that the political affiliation which was most actively involved in
constitutional conflicts was the Democratic -Liberal one (or the Democrat, prior to December
2006), mainly through the Presidential authority and the post -2008 Government. In addition,
when correlating the political affiliations of these public authoriti es, it is obvious that most of
the conflicts are between opposing political parties that hold those offices of authority, namely
the Social Democratic Party and the Democratic Party/Democratic -Liberal Party, confirming
Isabel de Madariaga’s view that the p rinciple of checks and balances has, during the recent
times of democracy and political pluralism, come to refer mainly to the majorities in power and
those that oppose them or, as Jean Gicquel put it, “the political separation now regards the
division bet ween the majority and the opposition”517.

517 Apud Victor Duculescu, Constan ța Călinoiu și Georgeta Duculescu, Drept constituțional comparat. Tratat , ed.
Lumina Lex, București, 2007, p. 50.
0% 10% 20% 30% 40% 50% 60% 70% 80%74%26%0%Number of Conflicts between Public
Authorities by their Political
Affiliations
NLP – SDP DP/D-LP – NLP SDP- DP/D-LP

212
5.8.C. THE CONSTITUTIONAL PREROGATIVES WHICH WERE VIOLATED IN THE CONFLICTS
The second important variable in analyzing the role of the Constitutional Court of
Romania , naturally, that of the constitutional prerogati ves which were presumably violated in
the conflicts.
The first legal dispute of a constitutional nature was brought to the Court’s attention by
the President of the Chamber of Deputies on the 8th of January 2005, claiming that the following
Constitutional provisions had been broken: that of article 1, paragraph (4)518, that of article 8,
paragraph (1)519 article 61, paragraph (1)520, article 64 521and article 80, paragraph (2)522 as well
as the second paragraph of article 82523 in a conflict between the Parliament and the President,
so the legislative and the executive branch, over certain slanderous accusations made by the
latter in the mass media.
Then, in 2007, the Prime -Minister Călin Popescu Tăriceanu notified the Constitutional
Court on a constitutional conflict in which the President was accused of refusing to fulfill his
duties with regard to nominating a new minister at the proposal of the Prime -Minister and as
such violating a series of constitutional provisions on this matter under articles 80, 85, 86, 87,
91, 103, 106 and 107 on which I will not further develop at this point524, but basically, this was
a negative legal dispute of a constitutional nature, in which the President refused to fulfill
certain attributions regarding the approval of the nomination of M inisters, fact which led to an
inter-branch conflict in the dual executive of the Romanian political system.
Later in 2008, in the most complex decision of the Constitutional Court of Romania
which compiled three notifications of presumed legal disputes of a constitutional nature which,
nonetheless, all dealt with the same issue in the matter of the criminal investigations of four
Cabinet members who were also Parliament members, article 109, paragraph (2)525 was brought

518 “The State shall be organized on the principle of the separation and balance of powers – legislative, executive
and judicial – within the fr amework of constitutional democracy”.
519 “Pluralism in the Romanian society is a condition and guarantee of constitutional democracy”.
520 “The Parliament is the supreme representative body of the Romanian people and the sole legislative authority
of the coun try”.
521 Within its 5 paragraphs, refers to the organizational structure of the Parliament.
522 “The President of Romania shall guard the observance of the Constitution and the proper functioning of the
public authorities. To this effect, he shall act as a me diator between the powers in the State, as well as between the
State and society”.
523 Regards the validation of the President of Romania’s mandate and his oath -taking.
524 In essence, these articles refer to the role of the President of Romania to appoint the Government, to consult
with the Government, to participate in meetings of the Government as well as with regard to the investiture and
the cessation of membership of the Government.
525 “Only the Chamber of Deputies, the Senate and the President of Romania have the right to demand legal
proceedings to be taken against members of the Government for acts committed in the exercise of their office. If

213 under discussion and debates – basical ly, the approval of the criminal investigations of the
members of Government who were also Parliament members was disputed in this case between
the executive branch and the legislative.
Then, the Constitutional Court of Romania ’s Decisions No. 1559 and 15 60 which were
both taken on the 18th of November 2009, after analyzing an alleged conflict between the
Romanian Parliament and the President of Romania , the following Constitutional provisions
were breached (in both cases): article 85, paragraphs (2)526 and (3)527 and article107528 –
basically, the dispute was over the fact that the President had extended his prerogatives in what
regards the appointment of new ministers to the detriment of the Parliament’s power in this
respect, so a conflict between the executiv e and the legislative branches.
A similar situation occurred in 2010, when two legal disputes of a constitutional nature
between public authorities shared the same articles of the Fundamental Law in their dispute –
that between the Parliament and the Gover nment on the bill of the national education –
respectively article 1, paragraph (4)529, article 61, paragraph (1)530, article 102, paragraph (1)531
and article 114, paragraph (1)532 and article 147, paragraph (4)533 – in essence, conflicts over
the constitutional at tributions of the legislative branch and the exceptional circumstances in
which the executive branch, namely the Government, can exercise the legislative function as
well.
Therefore, after an overview of the constitutional provisions which were violated in the
legal disputes of a constitutional nature between public authorities and which were brought
forth to the Constitutional Court of Romania , as well as of the parties involved in these conflicts,

such legal proceedings have been requested, the President of Romania may decree that they be suspended from
office. Institution of proceedings against a member of Government entails his suspension from office. The case
shall be within the competence of the High Court of Cassation and Justice”.
526 “In the event of Government reshuffle or vacancy of office, the Preside nt shall dismiss and appoint, on the
proposal of the Prime Minister, some members of the Government”.
527 “If, through the reshuffle proposal, the political structure or composition of the Government is changed, the
President of Romania shall only be entitle d to exercise the power stipulated under paragraph (2), based on the
Parliament’s approval, granted following the proposal of the Prime Minister”.
528 Regarding the Romanian Prime -Minister’s attributions.
529 Within its 5 paragraphs, refers to the organizatio nal structure of the Parliament.
530 “The Parliament is the supreme representative body of the Romanian people and the sole legislative authority
of the country”.
531 “The Government shall, in accordance with its governmental programme accepted by Parliament, ensure the
implementation of the domestic and foreign policy of the country and exercise the general management of public
administration”.
532 “The Government may assume responsibility before the Chamber of Deputies and the Senate, in joint sitting,
upon a programme, a general policy statement or a bill”.
533 “The Decisions of the Constitutional Court shall be published in the Official Gazette of Romania of Romania.
As from their publication, decisions shall be generally binding and effective only for the fu ture”.

214 it appears that most of them occurred between the Presi dent and the Parliament (5), followed
by the conflict between the President and the Government (3) and those between the
Government and the Parliament (2).

Fig. 5.4 . Number of Legal Disputes of a Constitutional Nature between Public Authorities
Source : Own Compilation of Data

Furthermore, when analyzing the actual constitutional provisions disputed between
these public authorities, I found that most of them were centered on the fourth paragraph of
article 1 of the Fundamental Law, which refers to the principle of separation of powers. This
implies that the mere theoretical formulation of this principle does not seem to be enough for
its actual implementation in a newly democratic state.
Furthermore, the second most frequently breached constitutional provisions are those
regarding the President’s competency – or so they are perceived by the President – when the
Parliament is the one breaching them. I believe that the reasons these conflicts occur is precisely
because the constitutional provisions disp uted are not sufficiently clear and hence, they are
arbitrarily interpreted by the authorities involved in the conflict, as each of the holders of
political power normally seeks to expand their own attributes. Consequently, the role of the
Constitutional C ourt of Romania in legal conflicts of a constitutional nature between public
authorities is to clarify those Constitutional provisions that are disputed and, precisely because
the Court’s decisions are binding and have legal power for the future, they will serve as a
reference point for other similar cases of constitutional conflicts.
President –
Government
30%
Parliament –
Government
20%President –
Parliament
50%NUMBER OF LEGAL DISPUTES OF A
CONSTITUTIONAL NATURE
BETWEEN PUBLIC AUTHORITIES

215

Fig. 5.5 . Disputed Constitutional Prerogatives
Source: Own Compilation of Data

On a final note, after taking into account the previous explanations, it appears that the
analysis of the constitutional prerogatives presumably violated and disputed in the legal
disputes of a constitutional nature between public authorities are also those provisions which
need a terminological improvement and thereby, the Constitutional Cour t of Romania is the
only authority competent to carry out such clarifications.

5.8.D. THE CLARIFICATIONS MADE BY THE CONSTITUTIONAL COURT IN ITS DECISIONS
Before proceeding with the analysis of this next variable, it is important to note that not
all of the cases implying legal disputes of a constitutional nature which were brought to the
Constitutional Court of Romania were automatically admitted as such. In fact, the situation is
quite the opposite: most of the alleged constitutional conflicts or, even worse, institutional
blockages between the public authorities were dismissed by the Court, after a thorough analysis
of the factual and legal dimensions they posed.
On this note, from a total of 10 d ecisions on legal disputes of a constitutional nature
between public authorities examined for this thesis, the Constitutional Court of Romania
44%
26%30%Disputed Constitutional Prerogatives
On the Principle of Separation of Powers
On Parliamentary Prerogatives
On Presidential Prerogatives

216 decided that 4 of them were not cases of such conflicts534, 4 of them were indeed admitted as
constitutional conflicts and solved accordingly, whereas 2 had a special stat us535 – they were
recognized as being legal disputes of a constitutional nature, but they were perceived to have
already stopped before the Court’s ruling so no legal clarifications were made in those cases.
In this section of the analysis I will present and analyze the clarifications made by the
Constitutional Court of Romania in the Decisions it had admitted as constitutional conflicts,
namely Decision No. 270/10.03.2008 which was published in the Official Gazette No.
290/.16.04.2008, Decision no. 98/07.02. 2008, published in the Official Gazette no.
140/22.02.2008, Decision No. 1431/3.11.2010 which was published in the Official Gazette No.
758/12.11.2010, Decision No. 1525/24.11.2010 which was published in the Official Gazette
No. 818/07.12.2010 and Decision no. 683/27.06.2012, which was published in the Official
Gazette no. 479/12.07.2012.
To begin with, the Decision No. 270/10.03.2008 which was subsequently published in
the Official Gazette No. 290/15.04.2008 admitted the existence of a legal dispute of a
constitutional nature between the Public Ministry and the Parliament regarding the procedural
aspects employed in the prosecution of the Cabinet members who are also Parliament members.
Therefore, the Court decided that the Public Ministry has to notify the Chamber of the
Parliament to which that respective person who is also a Parliament member belongs to in order
to ask for the approval to proceed with the criminal investigation, as is to be understood from
article 109, paragraph (2) of the Fundamental Law . In addition, the Court also decided that the
Public Ministry has to notify only the President in the cases in which those members of the
Government are not also members of the Parliament and that his approval is sufficient in such
a matter.
Secondly, the Decision no. 98/07.02.2008, published in the Official Gazette no.
140/22.02.2008, solved a legal dispute of a constitutional nature between the President and the
Prime -Minister at that time, Călin Popescu Tăriceanu, generated by the President’s refusal to
appoint Norica Nicolai in the office of Minister of Justice. The Prime -Minister notified the
Court, claiming the President should be obliged to appoint the person he chooses as Minister,
even more so since, after the President of Romania rejected his prop osal, he preserved it. On

534 Decision No. 53/28.01.2005 which was published in the Official Gazette of Romania No. 144/17.02.2005, the
Decision No. 435/26.05.2006 which was published in the Official Gazette of Romania No. 576/04.07.2006, the
Decision No. 97/7.02.2008 which was published in the Official Gazette of Romania No. 169 of 05.03.2008 and
the Decision No. 1559/18.11.2009 which was published in the Official Gazette of Romania No. 823/30.11.2009.
535 Decision No. 356/5.04.2007 which was published in the Official Gazette of Romania No. 322/14.05.2007 and
the Decision No. 1560/18.11.2009 which was published in the Official Gazette of Romania No. 824/30.11.2009.

217 the other hand, Traian Băsescu was adamant in his refusal to appoint Norica Nicolau, and he
claimed the Prime -Minister should appoint another candidate. The Constitutional Court
established that, indeed, the President of Romania w as within his right to refuse the Prime –
Minister’s proposal for the office of Minister of Justice – but only once. At the same time, the
Court also maintained that the Prime -Minister, upon having his proposal dismissed, should
nominate another person for t he office in question.
Moreover, another legal dispute of a constitutional nature was acknowledged in the
Court’s Decision No. 1431/3.11.2010 which was published in the Official Gazette No.
758/12.11.2010, involving the Parliament and the Government, over the bill of the national
education. After a thorough legal analysis, and after assessing that the fact that the Government
had assumed its responsibility in front of the Parliament was an unconstitutional act which
triggered the constitutional conflict, ho wever, in this case, the Constitutional Court of Romania
did not offer any further clarifications. The situation is all the more intriguing, as the Court had
already ruled, through its Decision No. 1557/18.11.2009 published in the Official Gazette No.
40/19.01.2010 that this procedure of the Government should be taken only under exceptional
circumstances and that it is, otherwise, unconstitutional.
Furthermore, the Decision No. 1525/24.11.2010 which was published in the Official
Gazette No. 818/07.12.2010, once more in a paradoxical manner, ruled that there was another
conflict between the Parliament and the Government on the same matter, only that this time,
the public authority causing it was the Parliament – namely the Senate – which refused to debate
the motion of censorship that followed after the Government had assumed its responsibility,
claiming that, in the light of the previously presented decision of the Constitutional Court, the
Prime -Minister Emil Boc had to take back that respective act. Howeve r, the Court decided that,
taking into account the Constitutional provisions, such a procedure of the Executive cannot be
stopped once initiated and that the mere fact that the Parliament had already adopted a calendar
for the unfolding of this procedure p rior to the Court’s ruling implicitly means that it had
accepted it and now, the only solution is to let it continue.
Lastly, Decision no. 683/27.06.2012 concerned the conflict between the President of
Romania, Traian Băsescu, and the Prime -Minister Victor Ponta on which one of them was
entitled to attend the European Council of June 28th-29th 2012. The Court established that the
President was responsible for representing the state in foreign affairs and that the Prime –
Minister could (also) attend the European Council only if delegated expressly by the head of
state. This decision also stipulated that the expression “head of state”, although not expressly

218 mentioned throughout the Constitution, has been previously used throughout its jurisprudence
and is applicable to the President of Romania, as well as that the Parliament is not competent
to solve such disputes, since its Declarations cannot produce any legal effects, but only political
ones.
On the whole, the clarifications which were made by the Constitutional Court of
Romania in the four decisions on which it had accepted the existence of a legal dispute of a
constituti onal nature between public authorities can be considered as both i) binding
interpretations of the constitutional texts which apparently leave room for interpretation; and
ii) clarifications for future similar cases.

5.8.E. THE IMPACT OF THE RULINGS OF TH E CONSTITUTIONAL COURT OF ROMANIA
According to article 147, paragraph (4) of the Fundamental Law, “the decisions of the
Constitutional Court of Romania shall be published in the Official Gazette of Romania. As from
their publication, these decisions shall be generally binding and effective only for the future”536.
Starting from this legal stipulation and taking into account the previously analyzed decisions of
the Court with regard to solving the legal disputes of a constitutional nature between public
author ities, in this final section of the chapter I will briefly assess the impact of the rulings of
the Constitutional Court of Romania .
Firstly, it is important to emphasize that what are basically inter partes conflicts which
would concern only the parties in volved, are to become erga omnes decisions, opposable to all
parties involved in such situations in the future. On the one hand, the advantage of such an
impact is that it offers the system of interaction established between public authorities a certain
sense of predictability, regardless of the political configuration adopted. On the other hand
though, it cannot be denied that the primordial nature of these legal disputes of a constitutional
nature is, most of the times, a political one. As I have previous ly demonstrated, such conflicts
tend to appear more frequently between opposing political affiliations in power, whereas
different branches of power with similar political affiliations tend to ally in political conflicts –
an example in point being the rec ent stance taken by the Chamber of Deputies, which is headed
by the Democrat Liberal Roberta Anastase and which never sides with the Senate in these
constitutional conflicts, but with the President or with the Government with which it shares the

536 http://www.cdep.ro/pls/dic/site.page?id=371 [accesse d on the 20th of January, 2012].

219 same polit ical affiliation. As such, it is rather unpractical to rule with erga omnes decisions
those conflicts which are mostly political and therefore, essentially contextual – inter partes .
Secondly, the Constitutional Court of Romania ’s decisions are “effective only for the
future”537, which means that regardless of the gravity and the impact of the conflict they solve,
these decisions do not have retroactive effects and by consequence, cannot undo any acts,
actions or inactions that occurred prior to its publicati on in the Official Gazette. This principle
is fundamental to the legal doctrine and promotes the stability and the predictability which
should be inherent to any legal system. Nonetheless, it also greatly limits the effective impact
of the decisions of the Constitutional Court, which are rendered as mere acknowledgments of
the political realities rather than legal tools through which the principle of checks and balances
can be enforced.
Furthermore, as I have previously mentioned, the decisions of the Cons titutional Court
of Romania serve as instruments which clarify those disputed constitutional provisions which
enabled one of the public authorities to attempt to attain more political power at the expense of
another authority.

5.9. PRELIMINARY CONCLUSION S
All in all, the empirical analysis throughout this chapter indicates that, particularly
during periods of dysfunctional cohabitation, the Constitutional Court of Romania is more
frequently called to settle the cases of legal disputes of a constitutional nature. Its role in these
matters is strengthened due to the general and binding force of its decisions. In addition,
although the power to provide binding interpretations of the Fundamental Law is not included
among its prerogatives, upon solving these le gal disputes of a constitutional nature, the
Constitutional Court of Romania also provides an interpretation of the Constitution, as the
constitutional provisions disputed by the public authorities are often susceptible to
interpretation and each party ten ds to interpret the constitutional provisions in their own interest.
By virtue of the binding force its decisions hold, the Constitutional Court of Romania ’s
interpretation of the respective constitutional texts becomes binding as well.
The hypothesis acco rding to which, during periods of cohabitation, the number of
conflicts on which the Constitutional Court is called to decide increases has been confirmed.

537 See article 147, paragraph (4) of the Constitution.

220 The comparative analysis illustrated above has shown that the years 2007 -2008 and 2012
respectively, during which Romania experienced the dysfunctional cohabitation I explained in
the first chapter of this thesis, the Court was called to settle two legal disputes of a constitutional
nature per year (the maximum number so far). In addition, each year, one of the conflicts was
between the President and the Prime -Minister, which also confirm the third sub -hypothesis that
stated that within the Executive branch, the number of legal disputes of a constitutional nature
between the President and the Prime -Minist er will increase during periods of cohabitation.
Unlike in the Polish case, the Romanian example of cohabitation has generate multiple cases
of legal disputes of a constitutional nature, cases which cannot be solved by loyal cooperation
between the public authorities involved, as the Court had repeatedly recommended. Ultimately,
the very fact that these disputes have to be settled by the Constitutional Court is sufficient
evidence of the consequences dysfunctional cohabitation determines.
Furthermore, the c onstitutional provisions allegedly violated by the parties involved in
legal disputes of a constitutional nature are related to the President of Romania/ Prime -Minister/
Parliament’s prerogatives. Thus, these conflicts are based on the different understand ing of the
Constitutional text. Even if it has been often criticized as insufficiently comprehensive, I believe
that the Basic Law is not the real reason for which certain constitutional provisions are
misunderstood, but rather the natural interest each po litician has to attain more power to the
detriment of another. A particular case on this note is represented by those legal disputes of a
constitutional nature in which the author of the referral is not directly involved in the respective
case. An example in point is that of President Traian Băsescu, who has sometimes notified the
Court on conflicts in which he was not a part and therefore had no obvious, direct interest.
However, given the President’s role as mediator and also as guardian of the Constituti on,
stipulated expressly by the Fundamental Law, I believe he is justified to notify the
Constitutional Court of Romania about legal disputes of a constitutional nature between other
public authorities.
Moreover, the judges’ allegedly political bias in th eir decision making is infirmed. Yet,
unlike in the previous chapter, these decisions have been marked by several separate opinons
which are typically issued by judges Tudorel Toader, Ion Predescu, Valentin Puskas Zoltan and
Iulia Antoanella Motoc. On each occasion, I have reiterated the public authority that has
appointed them and their respective political support and, from an analysis of the nature of their
separate opinions, it appears that sometimes, and to a certain extent, they do tend to formulate
these separate opinions based on their political and institutional affinities.

221 The most important sub -hypothesis mentioned in the beginning of this chapter argued
that as their political affiliations differ, the representatives of public authorities will be more
involved in legal disputes of a constitutional nature. This implies that during periods of
cohabitation, the number of conflicts will increase and, as I have already mentioned, the results
of the present research have also confirmed this hypothesis.
Lastly, it appears that the Constitutional Court of Romania is more and more frequently
called to rule upon cases of legal disputes of a constitutional nature between public authorities,
especially when those holding the head offices are of opposing politi cal affiliations and when
the constitutional provisions allow interpretation.

222 CHAPTER VI –
THE ROLE OF THE CONSTITUTIONAL COURT OF
ROMANIA IN ESTABLISHING THE POLITICAL
ACCOUNTABILITY OF THE PRESIDENT OF ROMANIA538

6.1. INTRODUCTION
The last chapter of this thesis examines two of the prerogatives the Constitutional Court
of Romania possesses in solving conflicts between public authorities, namely that of issuing an
advisory opinion on the proposal to suspend the President of Romania fro m office539, that of
ascertaining the circumstances which justify the interim in the exercise of office of President of
Romania540 and that of exercise of powers in respect of the organization and holding of a
referendum and confirmation of its results541. Both of these prerogatives regard horizontal
conflicts of competence, which specifically occur between public authorities of the same rank
– in this case, between the President and the Parliament.
Instead of analyzing these three competences separately, I hav e decided to examine all
of them within the same chapter because I believe they are they are three interdependent phases
of the same process, rather than three separate and distinct processes. More specifically, the
Court’s attribution regarding the ascert aining of the circumstances which justify the interim in
the exercise of office of President of Romania cannot be carried out prior to the suspension
procedures which would vacate the Presidential office. Even though, according to article 97 of
the Fundame ntal Law, the vacancy of the presidential office can occur as a result of resignation,
removal from office, when the President is on a temporary or on a permanent impossibility to
discharge his powers and duties or death, recent post -communist history has provided none of

538 A preliminary version of this chapter was published in the Romanian Journal of Social Sciences, vol. I, no. 1,
May 2015 – see Cristina Manolache, “ RA Comparative Analy sis of the Political Substantive Issues of the
Suspension from Office of the President of Romania during Traian Băsescu’s Mandates”, pp. 49 – 80.
539 The Constitutional Court, on the grounds of article 146 letter h) of the Constitution, article 42 and articl e 43 of
Law no. 47/1992 on the organization and functioning of the Constitutional Court, republished, has the power to
give an advisory opinion on the proposal to suspend the President of Romania from office.
540 Article 146, letter g) of the Constitution an d articles 44 -45 of Law no. 47/1992 on the organization and
functioning of the Constitutional Court, republished.
541 Article 146 letter i) of the Constitution and articles 46 -47 of Law no. 47/1992 on the organization and
functioning of the Constitutional C ourt, republished.

223 these cases, as opposed to the two successful attempts of suspension from office in 2007 and
2012, respectively. On the other hand, the very nature of advisory opinions issued by the
Constitutional Court, enables the Parliament – the initi ator of these proposals – to decide
whether or not to take it into account. Consequently, although the Court issues a negative
opinion on the suspension procedure, because it is simply an advisory opinion, the Parliament
may still continue the suspension p rocedure and organize a referendum while at the same time
request the Court to ascertain the circumstances which justify the interim in the exercise of
office of the President of Romania.
Two case -studies542 are examined in this chapter: the suspension proc edures of 2007
and 2012, while Ion Iliescu’s attempted suspension from office in 1994 is briefly mentioned. It
is interesting to note that on both occasions, the President against which the suspension
procedures were set into motion was Traian Băsescu – yet on different terms of office.
Similarly, the party responsible for drafting and supporting the suspension proposal was the
Social Democratic Party543, illustrating the importance of an active and aggressive opposition
in creating and sustaining strong conf licts between public authorities. And last but not least, it
should be emphasized that both cases took place during period of cohabitation – the first in
2007, when the Democrat President cohabited with the National Liberal Prime Minister and the
second in 2012, when the Democratic Liberal President cohabited with the Social Democrat
Prime Minister.

6.2. METHODOLOGY
Consistent with the general problematic addressed throughout this thesis regarding the
role of the Constitutional Court of Romania in solving conflicts between public authorities
during periods of divided government, the research question from which this chapter originated
is the following: “What is the role of the Constitutional Court of Romania regarding the political
accountability of the Pr esident of Romania ?”.
On this note, this chapter starts from the sub -hypothesis that dysfunctional cohabitation,
as defined and explained in the first chapter, will ultimately generate extreme consequences,

542 The case of President Ion Iliescu’s attempted suspension from office in 1994 will only be briefly mentioned, as
the Parliament decided to put an end to the procedures for his suspension from office of President of Romania,
following th e Court’s explicit negative advisory opinion.
543 Alone in 2007, in an alliance with the National Liberal Party (the Social -Liberal Union) in 2012.

224 such as the set on of suspension procedures, th us limiting or sometimes even nullifying the
active role of the Constitutional Court.
The most important variable taken into account regards the political affiliations of the
President of the Senate and of the President of the Chamber of Deputies, as wel l as the overall
parliamentary political composition – both of which were instrumental in advancing and
supporting the suspension proposal. A second variable regards the reasons set forward in the
suspension proposal, and groups them into 3 categories: a) political; b) economic; c)
institutional. The first category, that of political reasons mainly refers to the public statements
and public opinions expressed by President Traian Băsescu. The group of economic
justifications, highly articulated in the 2012 p roposal, advocate a causal relation between the
economic decline and the President’s activity, whereas the third category, of institutional
justifications, points to those cases in which the President of Romania either refused to do
certain acts which were of his competence or substituted himself to other public authorities
(more often, the Prime Minister) and carried out actions specific to other institutions.

6.3. SOURCES
The last section of the empirical part of this thesis also focuses on primary sou rces, such
as the advisory opinions and rulings issued by the Constitutional Court of Romania , which are
also available on the institution’s website, along with the laws and regulations on the
organization of this institution. Advisory Opinion no. 1/05.07. 1994 published in the Official
Gazette of Romania Part II, no. 166/16.07.1994 ; Advisory Opinion no. 1/05.04.2007, published
in the Official Gazette no. 258/18.04.2007; Advisory Opinion. n o. 1/06.07.2012, published in
the Official Gazette No. 456/06.07.2012 ; Ruling no. 1/20.04.2007, p ublished in the Official
Gazette no. 269/20.04.2007 ; Ruling no. 2/23.05.2007 published in the Official Gazette of
Romania no. 389/08.06.2007; Ruling no. 3/23.05.2007 published in the Official Gazette of
Romania no. 389/08.06.200 7; Ruling no. 4/23.05.2007 published in the Official Gazette of
Romania no. 389/08.06.2007; Ruling no. 5/23.05.2007 published in the Official Gazette of
Romania no. 352/23.05.2007; Ruling no. 1/09.07.2012 published in the Official Gazette of
Romania no. 46 7/10.07.2012 ; Ruling no. 2/24.07.2012 published in the Official Gazette of
Romania, Part I, no. 516/25.07.2012; Ruling no. 3/02.08.2008 published in the Official Gazette
of Romania, Part I, no. 546/03.08.2012; Ruling no. 6/21.08.2012 published in the Of ficial
Gazette of Romania, Part I, no. 616/27.08.2012; Suspension Proposal Document of 2007;

225 Suspension Proposal Document of 2012; Transcripts of the February 28th 2007 Parliamentary
Debates; Transcripts of the July 5th 2012 Parliamentary Debates; Transcripts of the July 6th 2012
Parliamentary Debates.
Although access to the files regarding these cases is restricted at the Court, each decision
does indeed list the documents which were annexed to the notifications it receives. As such, I
was able to find the s uspension proposals drafted in 2007 and 2012 and the transcripts of the
joint sessions of the Parliament. From the transcripts and video -recordings of those joint
parliamentary meetings, apart from a thorough reading and argumentation of the suspension
proposal, I could also extract the President’s response – in 2007, by means of a letter, when he
refused to attend the parliamentary debates and in 2012, when he attended the very first joint
parliamentary meeting, and gave a speech even though the suspension proposal was not to be
debated on that day.
Finally, another power the Constitutional Court of Romania holds in this matter will be
briefly examined, as each case requires an account of the public referendum regarding the
removal from office of the Pres ident. Hence, the Court’s acts in the exercise of powers in respect
of the organization and holding of a referendum and the subsequent confirmation of its results
– along with the rulings on the contestations to the referendum – conclude the list of the pr imary
sources em ployed throughout this chapter.

6.4. STRUCTURE
The first part aims at contextualizing the Court’s involvement in the procedures
regarding the suspension from office of President of Romania. As such, drawing from a
previous chapter which f ocused on a comparative analysis of the European Constitutional
Courts, I proceeded with a brief account of the manner in which these attributions are stipulated
and exercised at other similar institutions.
Secondly and most importantly, a theoretical fra mework provided the general
conceptual delimitations used throughout this chapter, such as advisory opinion ,
suspension from office , impeachment , high treason , or serious acts infringing upon
constitutional provisions . Most of these concepts are not even explicitly defined, neither by the
Fundamental Law itself – although they are mentioned – nor in literature. They have been,
however, explained in the Court’s jurisprudence, in more detail and more elaborated with each
new case.

226 The next section deals wit h a comprehensive account of the procedures before the Court
when called upon to issue a) an advisory opinion on the suspension from office of President of
Romania; b) a ruling on the ascertainment of the circumstances which justify the interim in the
office of President of Romania and c) a ruling on the observance of the organization and holding
of a referendum, as well as on the confirmation – or information, rather – of its results. The
authors of the referral to the Constitutional Court, its subject mat ter, the procedures specific at
the Court, the type of acts issued, its communication to the parties involved/interested, as well
as the effects of the issued acts will be explained in the third part.
Finally, the fourth section aims at examining the two attempts of suspension from office
of President of Romania in 2007 and 2012, during Traian Băsescu’s mandates, while briefly
presenting Ion Iliescu’s case in 1994. As such, each case study will feature a content analysis
of the suspension proposal, an overview of the parliamentary debates at that time, the advisory
opini on issued by the Constitutional Court, the Court’s ruling ascertaining the circumstances
which justify the interim in the office of the President of Romania, the ensuing public
referendum and the Court’s ruling with regard to the organization and holding o f those
referendums, as well as the confirmation of their results.

6.5. THEORETICAL FRAMEWORK
Before proceeding with the actual analysis of the role of the Constitutional Court of
Romania in solving the conflicts between public authorities in the case of the suspension from
office of President of Romania, this section seeks to outline a few conceptual delimitations for
the main terminology employed, such as: suspension from office, impeachment, serious offenses
against the Constitution and high treason .
To begin with, it is important to distinguish between the suspension and the
impeachment of the President of Romania. Among few others throughout Europe, the
Romanian Constitution provided for both measures. However, there is a key difference to be
noted between the two institutions, as the suspension procedure regards the political
accountability of the President, whereas the impeachment procedure employs his legal
accountability. Thus, the President of Romania is both politically and judicially accountab le.
The political accountability of the President consists of two phases: i) the actual political
accountability of the head of state in front of the Chamber of Deputies and the Senate, and ii)
his accountability to the people, exercised by means of the re ferendum organized for removing

227 the suspended President from office544. Although distinct, these two phases are inter -dependent
.545 Overall, “the juridical institution of the suspension from office of the President of Romania
must be seen as an atypical way of exercising parliamentary control – [particularly since the
initiative for this measure] pertains to the Parliament546.
It is important to note that the Fundamental Law provides the President of Romania with
an immunity which resembles that of the Parliam ent Members547. However, some authors548
argue that this immunity is only partial, and it obviously disregards the other constitutional
provisions on parliamentary immunity against preventive measures such as search, detention or
arrest. As such, according to article 84, paragraph (2) he “cannot be held accountable for those
political opinions expressed during and regarding his mandate and in connection with his
presidential prerogatives”. However, Professor Cristian Ionescu warns that this does not imply
a certain liability exemption of the head of state, who may still be held politically or judicially
accountable by Parliament in case of serious offenses against the Constitution or high treason.
Fundamental to the suspension procedure currently analyzed in t his chapter is the
expression “serious offenses against the Constitution”. The term is not defined, however,
neither in the Constitution549, nor in other special laws. The Constitution does not specifically
mention the nature of those acts which might trigge r the procedures for the suspension from
office of the head of state and therefore, in Cristian Ionescu’s view, “the seriousness of the
offenses will be evaluated by the initiators of the suspension procedure and, should it be
triggered, by the two Chamber s”550. In my opinion, although realistic, this perspective enables
a majority coalition of political actors to affect the separation of powers principle, by
suspending the President on mere political considerations of their own design. It should be
pointed o ut that “the serious offenses against the Constitution should not be mistaken with the
President’s decisions to make or to not make use, in a certain manner, of those attributions
specific to the presidential institution which he may choose whether or not to fulfill”551.

544 Cristian Ionescu, Drept Constituțional și Instituții Politice… op. cit. , 2012, p. 320: “The political accoun tability
is carried out in two phases: the suspension phase and the dismissal phase”.
545 Luminița Dragne, Drept constitutional… op. cit. , p. 40.
546 Cristian Ionescu, Drept Constituțional și Instituții Politice… op. cit., 2012, p. 270.
547 According to article 84, paragraph (2) of the Constitution.
548 Bianca Selejan -Gutan, Drept constituțional și instituții politice, Hamangiu, București, 2008, p. 289: “For the
acts committed during his term of office but which have nothing to do with the attributions specific to the exercise
of his presidential mandate, the immunity is temporarily limited, so that, as soon as his mandate ends, the President
may be subjected to search, detained or arrested for those acts”.
549 For further information, see article 96 of the Constituti on of Romania.
550 Cristian Ionescu, Drept Constituțional și Instituții Politice… op. cit. , 2012, p. 321.
551 Claudia Gilia, Manual de drept constitutional… op. cit. , p. 212.

228 Particularly since the Romanian Basic Law has embraced the theory of a reasonable breach (of
the Constitution), in the opinion of Professor Gheorghe Iancu. However, which acts carried out
by the President of Romania in violation of the Consti tution are serious enough to constitute
reasons for suspension from office? And how should their degree of seriousness be determined?
According to the same author, the two Chambers of Parliament are the only authorities entitled
to determine the seriousnes s of the President’s offenses against the Constitution, which
ultimately means that any kinds of offenses in violation of the Constitution could be considered
serious and thus trigger the President’s suspension from office procedures.
Ultimately, in the s econd stage of the suspension procedures, the suspended President
may only be dismissed by means of a national referendum. The dismissal by means of a
referendum is imposed by the manner in which the President enters into office – by a direct
vote from the people. However, should the results of that referendum turn out to be negative,
“in the absence of a specific constitutional provision, the President dismissed from office in the
aftermath of the referendum, if on his first mandate, is entitled to run ag ain for a new
mandate”552 A certain principle of legal symmetry is employed in this respect, on grounds of
legitimacy, as the citizens may elect/dismiss their President by means of a direct, secrete vote,
universal, equal and freely -expressed vote.
On the o ther hand, the impeachment procedure for establishing the legal accountability
of the President is also carried out in two phases: a) criminal indictment and b) the trial at the
High Court of Cassation and Justice553. Established by article 96 of the Basic L aw, “the
impeachment proposal may be initiated by a majority of deputies and senators and shall, without
further delay, be notified to the President of Romania, so that he can give explanations about
the facts he is being held accountable for”554.
In the pro cedure of impeachment, the notion of “high treason” is an equally
controversial term, also left undefined in the Constitution. The content of the high treason
criminal offense must be established by Parliament, in the Procedural or in the Criminal Code.
In other words put, the Parliament Member is the only one who, upon finding the President
committed acts of high treason, may establish whether or not those acts fulfill the elements of
content of one or more crimes of high treason, characterizing them in su ch a manner, claims
Gheorghe Iancu. Professor Cristian Ionescu, however, points out that “since the Criminal Code

552 Bianca Selejan -Gutan, Drept constitutional… op. cit., p. 289 -290.
553 Gheorghe Iancu, Drept constituțional și instituții politice, C.H. Beck, București, 2014, p. 567.
554 Paragraph (2), article 96 of the Fundamental Law.

229 doesn’t mention the material content of the high treason offence, the High Court of Cassation
and Justice would have no legal grounds to judge the President of Romania, should the
Parliament charge him with this”555. “Once the content of the crime of high treason so
determined, the High Court of Cassation and Justice will only have to decide, from the
administrated evidence, if the acts done by th e head of state constitute the crime defined by the
two Parliament Chambers”556. Essentially, nevertheless, high treason is considered to be the
most serious trespassing of the oath and interests of the people and of the country in the exercise
of the presid ential prerogatives. The high treason charges are investigated by the General
District Attorney who must notify the High Court of Cassation and Justice. During the
investigation, the head of state is de facto suspended from office and, should he be found g uilty,
dismissed from office without a referendum557.
On a final note, the advisory opinion issued by the Constitutional Court regarding the
suspension proposal of the head of state does not have the same generally binding force as the
other decisions and r ulings issued by the Court. Consequently, “as it is only advisory, the
Parliament is not obliged to take into account of the opinion delivered by the Constitutional
Court. It is an independent legal review of the proposal for suspension in terms of imputat ions
brought against the President”558. Also, in practice, with the exception of the 1994 suspension
from office of President Ion Iliescu, both in 2007 and in 2012, the Parliament disregarded – or
interpreted, rather – the Court’s advisory opinion.

6.6. PROCEDURES
From a procedural perspective, the Constitutional Court’s activity mediates between two
public authorities – the President and the Parliament – of an equal legitimacy. Its role appears
even more important when considering the political bias to whic h the presidential institution of
political accountability is subjected. Naturally, an opposite parliamentary majority will have
the power to inflict this suspension from office procedure on the head of state arbitrarily ,
especially given the lacking theor etical framework on this matter, were it not for the procedural
safeguards imposed by the Fundamental Law and safeguarded by the Constitutional Court.

555 Cristian Ionescu, Drept Constituțional… op. cit., 2012, p. 322.
556 Gheorghe Iancu, Drept constituț ional… op. cit., 2014, p. 568.
557 Cristian Ionescu, Drept constituț ional… op. cit., 2012, p. 322.
558 https://www.ccr.ro/Emiterea -avizului -pentru -suspendarea -din-funcie -a-Preedi ntelui -Romniei [accessed on
July 16th 2015].

230 To begin with, there is only one author of the referral enabled to notify the Constitutional
Court in o rder to issue an advisory opinion on the proposal to suspend the President of Romania
from office – namely, the President who chaired the joint meeting of the two Chambers.
Although not binding in nature, the Court’s advisory opinion on the proposal for th e suspension
from office of President of Romania also has certain specific procedural characteristics, laid out
in the provisions of articles 42 and 43 of Law no. 47/1992. According to the Regulation on the
Joint Meetings of the Chamber of Deputies and of the Senate, approved by the Decision of the
Parliament of Romania no. 4/03.03.1992, published in the Official Gazette of Romania, Part I,
no. 34/04.03.1992, as amended and supplemented by the Decision of the Parliament no.
13/1994, published in the Officia l Gazette of Romania, Part I, No. 136/05.07.1995, that
President may be either the President of the Senate or the President of the Chamber of Deputies.
The President submits “a copy of the proposal to suspend the President of Romania from office,
together with evidence in support”559 to the Court. Then, the Court nominates a Judge –
rapporteur. The Court decides on this matter “following upon debate on the proposal of
suspension and on the given evidence”560 and it is important to note that the President is also
“notified on the date of the debate, and he may offer explanations regarding the imputations
brought to him”561. The Court’s advisory opinion is published in the Official Gazette and
communicated to the President of Romania and to the President of Senate and the Chamber of
Deputies, respectively.
Contrary to popular belief, particularly given the recent experiences with the attempt of
suspension from office of President of Romania in Traian Băsescu’s case, the Parliament is,
indeed, entitled to set a specific deadline for the Constitutional Court to issue an advisory
opinion562. The extent to which the Parliament is qualified to accurately estimate the necessary
length of such a term remains, however, an entirely different matter.

559 Law no. 42/1992 on the organization and operation of the Constitutional Court, republished in the Official
Gazette of Romania of Romania, Part I, no. 807 of December 3rd 2010, on the grounds of provisions und er Article
V of Law no. 177/2010 for the amendment and supplementation of Law no. 47/1992 on the organization and
operation of the Constitutional Court, of the Civil Procedure Code and of the Criminal Procedure Code of Romania,
published in the Official Ga zette of Romania of Romania, Part I, no. 672 of October 4th 2010, being given a new
numbering to the texts. Law no. 47/1992 was previously republished in the Official Gazette of Romania of
Romania, part I, no. 643 of July 16th 2010, and subsequently also a mended by Law no. 330/2009 on a unitary
salary scheme for the personnel paid from public funds, published in the Official Gazette of Romania of Romania,
Part I, no. 762 of November 9th 2009, article 42, paragraph (2).
560 According to article 43, paragraph ( 1).
561 For more information, see Law no. 42/1992, article 43, paragraph (2).
562 Article 80, paragraph (2) of Law no. 47/1992.

231 Still, before issuing such an advisory opinion, the jurisdictional p rocedures in such cases
also require the Court to hold a debate, during which the accused head of state “may offer
explanations regarding the imputations brought to him”563. Similar to the suspension procedures
during parliamentary working sessions, the Pres ident’s attendance to these debates is optional
and, in fact, President Train Băsescu refused to participate in person both in 2007 and in 2012.
In this matter, the Court pronounces itself on this issue only on the basis of the request
formulated and the e videntiary support included by the author of the referral. Throughout its
jurisprudence, however, the Court only received notifications based on political public
statements, which did not present any actual evidence in support except for quotations from
those respective speeches.
Finally, after examining the documents and evidentiary support, as well as after the
debate to which the head of state is invited, the Constitutional Court of Romania issues an
advisory opinion on the proposal to suspend the Presi dent of Romania from office, which “shall
be notified to the Presidents of the two Chambers of Parliament and the President of
Romania”564.
In essence, regardless of whether the advisory opinion on the suspension proposal from
office of President of Romani a is positive or negative, the Parliament can continue the
suspension procedures – first, by appointing an interim head of state and secondly, by
organizing and holding a referendum for the President’s dismissal. A second phase of the
suspension from offic e of the President of Romania in which the Constitutional Court of
Romania is involved is that of ascertaining the reality of circumstances justifying the interim in
the exercise of office of Romania – given the vacancy of the office of President of Romani a.
According to articles 97, paragraph (1) and 98, paragraph (1) of the Fundamental Law,
there are three cases in which the Constitutional Court is called to ascertain the existence of the
circumstances which justify the interim in the exercise of the off ice of President of Romania,
namely: a) vacancy of office (due to resignation, removal from office, permanent impossibility
to discharge his powers or death); b) the President is suspended from office; and c) the President
is temporarily unable to exercise his powers565. In this chapter, however, the focus will be on
the interim caused by the suspension from office. In what regards the procedure on establishing
the reality of the circumstances justifying the interim in the exercising of the office of Preside nt

563 Article 43, paragraph (2) of Law no. 47/1992.
564 Idem, paragraph (3).
565 Article 97, paragraph (1) of the Fundamental Law.

232 of Romania following the suspension proposal, the Court also requires a special quality of the
authors of the referral and it may be notified only by the “President who presided over the
proceedings of the common session of the two Chambers of Parliamen t on the basis of the
decision adopted at the common session”566. However, the regulation leaves room for an
exception in case the interim of the office is requested “due to a temporary incapacity to exercise
the presidential attributions, [when] the request shall be made by the President of Romania, or
by the President of one of the Chambers of Parliament”567. Finally, the request of the President
of one of the two Chambers will be submitted to the Court with relevant evidentiary support
and the Court’s ruling is notified to the Parliament (as initiator of the procedure) and to the
Government (in order to initiate the procedures for organizing a public referendum on the
dismissal from office of the suspended head of state)568. On this note, the Court does not not ify
the suspended President of its decision, since he no longer is in office.
Finally, a third stage of the suspension procedures as reflected in the Court’s
jurisprudence refers to its exercise of powers in respect of the organization and holding of a
referendum and confirmation of its results – according to a joint interpretation of paragraph (1)
article 46: “the Constitutional Court shall supervise the observance of the procedure for the
organization and holding of a referendum, and it shall confirm it s results”569 and paragraph (2)
of article 47: “the ruling made by the Constitutional Court establishes whether the procedure
for the organization and holding of the referendum has been complied with, and it shall confirm
its results”570. Particularly from the provisions of article 47, it follows that the Court may
validate or invalidate the results of a referendum – an example in point is the 2012 referendum
on Traian Băsescu’s dismissal, the results of which were controversially not confirmed by the
Court.
Moreover, the Court is entitled to “request information from any public authority”571 in
order to determine the validity of a referendum. For instance, also in the 2012 case, when the
total number of voters was heavily disputed by those who advocated Traian Băsescu’s dismissal
and after receiving divergent information on these numbers, the Constitutional Court of
Romania requested additional information on the latest demographic data from the Ministry of

566 Accordi ng to article 44, paragraph (4) of Law no. 47/1992.
567 Ibidem .
568 Article 44, paragraph (1) of Law no. 47/1992.
569 Law no. 47/1992.
570 Ibidem .
571 According to article 46, paragraph (1) of Law no. 47/1992, which must be corroborated with paragraph (3) of
the sam e article which states that “At the request of the Constitutional Court, the Central Election Committee must
present information on the stages and operations related to the carrying out of the referendum”.

233 Internal Affairs, from the Permanent Electoral Authorit y and – when these numbers were also
contradictory and the Minister of Internal Affairs at that time, the Social -Democrat Liviu
Dragnea, declined responsibility for the accuracy of the numbers presented – to the Government
itself.
Last but not least, “bef ore publication in the Official Gazette of Romania, Part I, the
ruling of the Constitutional Court shall be presented to the Chamber of Deputies and the Senate,
in their common session”572. At the same time, the interim President of Romania’s mandate
ceases and the suspended President is reinstated in office.

6.7. THE PRECEDENT : ION ILIESCU ’S ATTEMPTED SUSPENSION FROM OFFICE OF
PRESIDENT OF ROMANIA (1994)
The first post -communist President of Romania to have been suspended from office –
albeit unsuccessful ly – was Ion Iliescu. In July 1994, 167 deputies and senators initiated the
proposal of suspension from office of head of state, which the Parliament, in a joint and
extraordinary session, accepted and forwarded to the Constitutional Court.
The reason an d the starting point of this procedure was Iliescu’s public statement at Satu
Mare, on May 20th 1994, during which he discussed the issue of the nationalized and confiscated
houses during the communist regime, as well as the legal progress made on this mat ter – by
both the public administration and the judicial system, on a rather criticizing tone – naming
them “an abuse” against the people and claiming that “all decisions adopted by the judges are
outside the law”573.
With respect to the Constitution, the p roponents of the suspension from office document
believed President Ion Iliescu had violated the provisions of articles 41574, 42575, 21576, 16
paragraph (2)577, article 123 paragraph (2)578 and article 1, paragraph (3)579. Overall, they

572 Article 47 paragraph (3) of Law no. 47/1992.
573 Advisory Opinion no. 1/05.07.1994 published in the Official Gazette of Romania of Romania Part II, no.
166/16.07.1994, p. 1.
574 Regarding the labor and social protection of labor.
575 On the prohibition of forced labor.
576 On free access to justice.
577 “No-one is above the law”.
578 “The Prefect is the representative of the Government at a local level and shall direct the decentralized public
services of ministries and other bodies of the central public administration in the territorial -administrative units”.
579 “Romania is a democratic and social state, governed by the rule of law, in which human dignity, the citizens'
rights and freedoms, the free development of human personality, justice and political pluralism represent supreme

234 estimated that “President Ion Iliescu’s statements are of a particular seriousness, because they
deny fundamental constitutional values”580.
Nonetheless, upon analyzing each allegation, the Constitutional Court of Romania
established that:
“President Ion Iliescu’s statement represents a political option without
any legal relevance and, consequently, falls under the incidence of article 84
paragraph (2), in conjunction with article 70 of the Constitution, regarding
the independence of opinions, which regards the President in so much as i t
does the Parliament Members” .
On July 5th 1994, so in 24 hours or less since being notified with the request to issue an
advisory opinion on this matter, the Court drafted an act of only 4 pages, which did not provide
any explanations on the terms “serio us offenses against the Constitution”, not did it dismiss the
suspension proposal as being grounded only on public statements, instead of acts, as the 2007
and 2012 advisory opinions did.
Instead, for the first and only time in its jurisprudence on the ma tter, the Constitutional
Court of Romania explicitly issued a negative advisory opinion on the proposal of suspension
from office of the President of Romania581, claiming that the suspension proposal “is not
founded on reasons which, according to article 95 of the Constitution, would constitute a serious
offense against the constitutional provisions”582. Finally, accepting the Court’s advisory
opinion, the Parliament of Romania did not decide to continue the suspension procedure and
Ion Iliescu resumed his offi ce as President of Romania.

6.8. CASE STUDY #1: PRESIDENT TRAIAN BĂSESCU – FIRST TERM OF OFFICE (2007)

6.8.1. THE SUSPENSION PROPOSAL
On February 11th 2007, a number of 182 senators and deputies from the parliamentary
groups of the Socialist -Democrat Party (SDP) and the Greater Romania P arty (GRP) initiated
a document that proposed the suspension of the President of Romania, Traian Băsescu.

values, in the spirit of the democ ratic traditions of the Romanian people and the ideals of the Revolution of
December 1989, and shall be guaranteed”.
580 Advisory Opinion no. 1/05.07.1994 published in the Official Gazette of Romania of Romania Part II, no.
166/16.07.1994, p. 2.
581 Neither th e 2007 nor the 2012 advisory opinions were sufficiently explicit in their nature and therefore, they
were both susceptible to interpretation by all parties involved.
582 Advisory Opinion no. 1/05.07.1994 published in the Official Gazette of Romania of Romani a Part II, no.
166/16.07.1994, p. 4.

235 Supported by the majority in Parliament, the document was soon adopted and therefore,
triggered the procedures on the suspension from office of the Pr esident of Romania, for the
second time in post -communist Romania.
Numerous and various reasons were invoked throughout the document, each of them
dully noting the constitutional provisions which were supposedly breached, but briefly
exemplifying the actu al acts of the President that lead to those serious violations of the
Fundamental Law he was accused of.
The first category of constitutional breaches, as presented in the suspension proposal of
2007, regarded the “violations against the principles of th e rule of law, of democracy and an
overall disregard of the role of the Parliament, as the ultimate representative organ of the
Romanian people, as well as a breach of the provisions which regulate the interaction between
the presidential and parliamentary institution”583. Numerous articles of the Constitution were
invoked: article 103 paragraph (1), article 64, article 89, article 65 paragraph (2h), article 74
and article 90 and each one of these supposedly constitutional breaches was illustrated by Traian
Băsescu’s actions, measures, decisions and speeches made throughout his two -year-mandate as
President of Romania. The second group regarded the “violation of constitutional texts –
particularly those of articles 86, 87 and 102 of the Romanian Constitution, which regulate the
relations between the President of Romania and the Government”584.
Then, a third category of accusations included in the 2007 suspension proposal regards
the “violation of the principle of the rule of law and the principle of separation a nd balance of
powers, as stated in article 1 paragraphs (3) and (4) of the Constitution and in the texts
regulating the relation between the President of Romania and the Judicial Authority, as well as
the Constitutional provisions on the Constitutional Cou rt”585. Articles 133 paragraph (1), article
124, article 126 paragraph (1), article 125 paragraph (2) with article 134 paragraph (1), article
133 paragraph (1) with article 133 paragraph (6), article 142 paragraph (1), article. 145 and
article 147 paragraph (4) of the Constitution were also invoked.
Next, the fourth group regarded the “breaches of article 1 paragraph (5), article 16
paragraph (2) and other texts regarding the fundamental rights ensured by the Constitution”586.
Besides these constitutional pre rogatives, they also pointed to article 28, article 8 paragraph (2),

583 Suspension Proposal Document of 2007, p. 2.
584 Idem , p. 3.
585 Idem , p. 4.
586 Idem , p. 5.

236 article 40 paragraph (1), article 41 with article 135 paragraph (1) and paragraph (2a), as well as
article 65 paragraph (2f) of the Romanian Fundamental Law.
Finally, the suspension pro posal pointed to “the surpassing of the limits of attributions
in the field of foreign affairs of the Head of State, as stipulated by article 91 of the Constitution
and breaches of the prerogatives of the Government in the same matters, as stipulated by ar ticle
102 paragraph (1) of the Constitution”587 and “violating the status held by the office of President
of Romania and its role as defender of the Constitution and mediator, according to article 80
paragraph (2) of the Fundamental Law”588.
Apart from the co nstitutional articles presented in the Suspension Proposal Document
of 2007, it appears that most of the reasons supporting the initiative of impeaching the Head of
State are merely of a discursive nature. In addition, those pertaining to the economic sphe re are,
to a large extent, contextually -driven and should be accounted as such. As for the institutional
group of reasons, which imply that Traian Băsescu has provoked and repeatedly sustained
institutional conflicts between the legislative, judicial and t he dual executive branches, as well
as between social classes of the people, they are also discursive, at large.

6.8.2. PARLIAMENTARY DEBATES
The parliamentary debates on the issue of Traian Băsescu’s first suspension from office
of President of Romani a took place in the joint meeting of the Parliament chambers on the 28th
of February, 2007. The meeting began at 10 a.m. and was chaired by Nicolae Văcăroiu,
President of the Senate, assisted by Ioan Munteanu – secretary of the Chamber of Deputies and
Vale ntin Zoltan Puskas – secretary of the Senate, with Eugen Nicolicea, Vicepresident of the
Chamber of Deputies.
First of all, according to the regulations on joint parliamentary sessions, Nicolae
Văcăroiu noted that the meeting had a legal quorum, since fr om a total of 467, 332 Parliament
Members were present and 135 were absent. The only issue to be discussed during that joint
meeting was the suspension proposal initiated by 182 senators and deputies, as the Parliament
needed to be consulted and decide whe ther or not it would continue the procedures regarding
the suspension from office of Romania.

587 Idem , p. 6.
588 Ibidem .

237 It is interesting to note that, from the very beginning, Ioan Oltean declared the meeting
was “convened in an unconstitutional manner”. He further explained that the parliamentary
group of the Democrat Party believed that the suspension proposal should have been first
analyzed by the Constitutional Court and, in case of a positive advisory opinion, then debated
in Parliament. In response, Sergiu Andon ironically e mphasized that the purpose of the joint
session was to formally register and acknowledge the suspension proposal, enabling the
parliamentary groups to state their position on the document, and that a second debate in joint
session would take place after th e Constitutional Court issues its advisory opinion”589. Finally,
he also explained that the President of Romania, Traian Băsescu, had already been invited to
the debate, invitation which he officially declined.
Since the beginning, the atmosphere during t he joint parliamentary session was comical,
rather than solemn. Deputy Cornel Știrbeț590 argued that the President must be suspended from
office because he “danced on the seaside, ate at Golden Blitz, argued with the Prime -Minister
– all of which are very se rious deviations”591. When he rhetorically asked the 182 Parliament
Members who initiated the document whose support were they still waiting to have, Valeriu
Ștefan Zgonea592, from his bench, shouted “Elena Udrea’s!”. Following interventions from
deputies Euge n Nicolicea and Cristian Sorin Dumitrescu, Nicolae Văcăroiu announced that this
was not going to be a substantive debate. Deputy Valentin Adrian Iliescu claimed that members
of the Social -Democrat and Greater -Romania parliamentary groups signed a blank doc ument,
instead of the actual suspension proposal document which thus renders it null.
Ioan Oltean, who had initially demanded that a new joint session meeting should be
convened so as the President of Romania could attend it, changed his position for the second
intervention and stated that “the President of Romania cannot be called to give explanations in
front of the Parliament because he has at least the same legitimacy as the Romanian Parliament
and, for this reason, cannot be held judicially accountab le by the Parliament”593.
The suspension proposal was presented by deputy Titus Corlățean and greeted with
applauses from the audience. In the end, he added that “they (the initiators of the proposal)
demand the Parliament to vote in favor of their suspens ion proposal”594.

589 http://www.cdep.ro/pls/ steno/steno.stenograma?ids=6242&idm=1&idl=1 [accessed on June, 22nd 2015].
590 Ibidem .
591 Ibidem .
592 Ibidem .
593 http://www.cdep.ro/pls/steno/steno.stenograma?ids=6242&idm=1&idl=1 [accessed on June, 22nd 2015].
594 Ibidem .

238 Then, instead of debating on the document presented by Corlățean, President Nicolae
Văcăroiu gave word to secretary Valentin Zoltan Puskas, who read President Traian Băsescu’s
letter to the Parliament. Furthermore, Văcăroiu underlined tha t the head of State had been
invited to the parliamentary meeting, but he declined saying that it was not necessary. In his
letter, the President of Romania acknowledged the “constitutional right of the Parliament to
make use of such a political gesture an d dully concluded that he considers all of his actions and
statements since the beginning of his mandate as President of Romania were in accordance with
the constitutional order”595. Instead of providing the Parliament with any explanations
regarding the acc usations formulated in the suspension proposal, Traian Băsescu concluded his
official letter by expressing his faith that “the Constitutional Court’s advisory opinion, the PM’s
vote and the popular vote in the event of a referendum will confirm or infirm t he grounds of the
political endeavor initiated by 182 senators and deputies”596.
Immediately afterwards, Nicolae Văcăroiu called on his colleagues to proceed with the
debate on the proposal of suspension from office of the President of Romania by allowing 1 0
minutes to each political group and 5 minutes for the minority groups and independent PMs.
He further emphasized that they will not be debating on the substantive issue of the proposal,
which will take place only after receiving the Court’s advisory opin ion. He stated that
“irrespective of its form, eventually, the suspension proposal will reach the Constitutional Court
which, in turn, will have to issue an advisory opinion”597.
Deputy Sergiu Andon, from the Conservative Party began the debate by accusing
President Traian Băsescu of “national discord, with his policy of enmity and, [ultimately of]
usurping foreign affairs policies of the state, with dangerous consequences for peace, national
sovereignty and territorial integrity598.
Senator Mircea Geoană con tinued by jokingly stating that, if the “parliamentary debate
is broadcasted live on television, they might manage to provide a telephonic connection, in case
the President wanted to intervene live to their debate”599. He then expressed his disappointment
in the President’s attitude towards Parliament and compared Băsescu’s reaction to that of Ion
Iliescu in 1994, when he was also subjected to a suspension proposal, to which he also replied
with an official letter, but who, unlike Traian Băsescu, had solidly argued against each and

595 Ibidem .
596 Ibidem .
597 Ibidem .
598 Ibidem .
599 Ibidem .

239 every charge. He also underlined that “a very serious act is not necessary in order to violate the
Constitution, but that any violation of the fundamental law is a serious act”600.
Next, deputy George Crin Laurentiu Antonescu took wo rd for the National Liberal
Party, who began his speech by reminding the Parliament of a series of statements and acts
made by the President of Romania, each one of which ended with an ironic rhetorical question
“Is this a breach of the Constitution? I fea r it is not.”601 He mentioned that Traian Băsescu had
the state’s institutions under his control, but he “still needs something – or is bothered by
something, rather. The Romanian Parliament, as it is”. He concluded by warning that “it might
be tempting to b elieve that there are no grounds for a suspension from office of the head of
state, since being a demagogue, a populist, a cynical liar are no serious breaches of the
Constitution”602. However, he warned against the negative impact these features of the
President have in the pursuit of the reforms he desires.
On behalf of the Democrat Party, Cristian Rădulescu, member of the Chamber of
Deputies reminded those who had previously invoked the sacristy of the Constitution on so
many occasions that they too, were guilty of breaching it. As examples in point, he men tioned
the cases of the ad-hoc modification of the Law on the referendum, which the Constitutional
Court itself had declared unconstitutional. He was the first to bring about the opportunity of
creating a special parliamentary commission for investigating the alleged constitutional
breaches, openly declaring that the parliamentary group he represents is against such a measure
and, should it be approved by the majority, he will contest it at the Constitutional Court. He
claimed such a commission would be unc onstitutional, since the only normative act regulating
it are the parliamentary regulations of 1992, not the revised Constitution of 2003. He warned
that neither the presidential institution, nor President Traian Băsescu will lose this personal
rather than institutional battle, but the political class and Parliament consequently.
Next, the Vicepresident of the Chamber of Deputies, Bolcaș Augustin Lucian
dramatically emphasized that Romania is torn by internal strife [..] which is basically shaking
the cor e of democracy”603. He emphasized that all efforts to shrink the conflict between the
state’s institutions to a mere personal conflict between Traian Băsescu, Călin Popescu –
Tăriceanu, Mircea Geoană or Corneliu Vadim Tudor were futile, since these names do no t act
as mere physical persons, but rather on behalf of the institutions they represent. He continued

600 http://www.cdep.ro/pls/steno/steno.stenograma?ids=6242&idm=3&idl=1 [accessed o n June, 22nd 2015].
601 Ibidem .
602 Ibidem .
603 Ibidem .

240 by acknowledging the high responsibility they are taking with the measure of suspension and
that he believes the Greater Romania Party has the legitimacy to contribute to this endeavor.
He expressed his belief that there are no degrees of comparison when it comes to breaching the
constitution – any breach is serious in itself. He also expressed his positive point of view on the
opportunity of a special comm ission of investigation – which he initially thought was useless
since the suspension proposal document was so exhaustive604. He concluded by saying that “the
supremacy of the Parliament is the supremacy of the Constitution itself” and that the suspension
proposal “should reach its finality”.
Since senator Gyorgy Frunda gave up his right to address the Parliament on behalf of
the Democratic Alliance Of Hungarians In Romania parliamentary group, senator Gheorghe
Flutur took the stand on behalf of the independ ent Parliament Members. He emphasized that,
what is really held against the President of Romania, are but opinions and political attitudes –
which are not unconstitutional in Romania605. He also declared that the suspension proposal
document is not supported by any evidence. He also predicted that, should a parliamentary
majority against the President Traian Băsescu emerge, another national majority, much
stronger, will be favorable to him606.
Next on the agenda of the joint session of the two chambers of th e Parliament, they
discussed the issue of creating a special commission of investigation – which would have
required a minimum of 234 votes. Sergiu Andon, of the Conservative Party, requested the
creation of a special commission for investigating the crime s that have led to the suspension
proposal forwarded by the Social Democratic Party and the Greater Romania Party. After
interventions on procedural issues made by deputy Lucian Augustin Bolcaș, deputy Cristian
Rădulescu (who suggested a nominal vote so as each PM would assume his/her responsibility
on the vote) and deputy Anghel Stanciu (who suggested an open vote of “show of hands”),
Nicolae Văcăroiu underlined that a nominal vote would imply a large amount of time and the
PMs voted against it. They final ly voted on the initiative to constitute a common commission
of investigation: 258 were in favor, 76 were against and 21 abstained themselves.
Consequently, since an investigation commission was approved by the Parliament, the
parliamentary debates conti nued on the numeric and nominal composition of the commission.
Nicolae Văcăroiu presented the proposal unanimously voted at a previous meeting, which

604 Ibidem .
605 Ibidem .
606 http://www.cdep.ro/pls/steno/steno.stenograma?ids=6242&idm=4&idl=1 [accessed on June, 22nd 2015].

241 advanced the formula of 15 senators and deputies, distributed as follows: 5 seats – SDP, 3 seats
– NLP, 2 seats – DP, 2 seats – GRP and the Democratic Alliance Of Hungarians In Romania,
Conservatives and the Minorities – 1 seat each. Before the vote, however, deputy Cristian
Rădulescu announced that the Democrat Party does not wish to be involved in such an
unconstitutional commission and therefore give up their two seats to those interested607. Nicolae
Văcărescu then suggested that only 13 seats should be available in the investigation
commission, but deputy Anghel Stanciu, supported by senator Gheorghe Constant in, continued
to insist for the 15 -members formula. At the vote, Nicolae Văcăroiu also advanced the 15 –
members formula, for which 243 PMs voted in favor, 60 against and 11 abstained. The nominal
composition608, in the chart below, was voted with 263 votes in favor, 52 against and 2
abstentions.

POLITICAL AFFILIATION MEMBERS
SDP Șerban Nicolae, Tărăcilă Doru Ioan,
Nicolicea Eugen, Mihai Tudose and Iordache
Florin
NLP Norica Nicolai, Crin Antonescu, George
Scutaru
GREATER ROMANIA PARTY Dinulescu Valentin, Iorga Nicolae
CP Dan Voiculescu609
DEMOCRATIC ALLIANCE OF
HUNGARIANS IN ROMANIA Mate Andras
National Minorities Ibram Iusein
DP no members nominated

6.1. Nominal Composition of the Parliamentary Investigation Commission
Source: http://www.cdep.ro/pls/ parlam/structura2015.co?cam=0&leg=2004&idc=57

In the end, Nicolae Văcăroiu read and subjected to an open vote (by show of hands) the
Parliament’s resolution on the commission. It was decided that the commission will later on

607 Ibidem .
608 It is interesting to note that this report was not to be found anywhere on the website of the Romanian Parliament,
although the Commission responsible for issuing it is still mentioned.
609 According to the video recordings of the meeting, the Parli ament members clapped and caused a rumor when
senator Dan Voiculescu was nominated.

242 elect its own president, vicepresident and secretary, instead of having to d ebate and approve
them in the Parliament. Also, they agreed on a deadline of three weeks (until March, 21st2 2007),
as requested by the initiators of the commission from the Conservative Party. They also agreed
that in 3 days after the Commission submits i ts report, all documents will be sent to the
Constitutional Court, and that they would set the deadline for the Constitutional Court only after
having the report from the special commission of investigation.

6.8.3. ADVISORY OPINION ON THE PROPOSAL TO SUSPEND THE PRESIDENT OF ROMANIA
FROM OFFICE
The Advisory Opinion no. 1/ April 5th, 2007 regarding the proposal on the suspension
from office President of Romania, published in the Official Gazette no. 258/18.04.2007 was
negative. After a thorough analysis o f each head of accusation invoked by the 185 senators and
deputies and after providing a definition for those “severe acts of breaches of the Constitution”
stipulated in article 95 paragraph (1) of the Romanian Fundamental Law, the Constitutional
Court fou nd no evidence in support of the claims made by the Social -Democrats and Greater –
Romania Parliament Members. The judges who participated in this deliberation were: Nicolae
Cochinescu, Acsinte Gaspar, Kozsokar Gabor, Petre Ninosu, Ion Predescu, Șerban Viore l
Stănoiu and Tudorel Toader, the meeting being chaired by President Ioan Vida.
Most importantly, this act established a fundamental jurisprudence on the issue,
providing a comprehensive definition of those allegedly “serious offences in violation of the
Constitution”:
“it is obvious that an act, i.e. an action or inaction, in breach of the
provisions of the Constitution, is serious in comparison even to the
infringement subject. But in the regulation of the procedure of suspension
from office of the Pres ident of Romania, the Constitution is not limited to this
meaning, because, otherwise, the notion “serious offences” would make no
sense. Analyzing the distinction contained in the quoted text and taking into
account that the Basic Law is a normative legal act, the Constitutional Court
finds that not any violation of the Constitution can justify the suspension from
office of the President of Romania, but only “serious offences”, in the
complex meaning of this notion in law science and practice. From a legal
perspective, to appreciate the seriousness of an offence against the value that
it harms, as well as its harmful consequences, potential or already occurred,
the means employed, the individual offender and, not least, his subjective
position and the purpo se for which he committed the offense. Applying these
criteria to the acts of violation of the constitutional legal order referred to in
article 95, paragraph (1) of the Basic Law, the Court holds the serious

243 offences in violation of the provisions of the Constitution could be those acts
of decision or the failure to comply with mandatory decision acts, whereby
the President of Romania would hamper the functioning of public authorities,
would suppress or restrict the citizens’ rights and freedom, would dist urb the
constitutional order or would aim to change the constitutional order or other
acts of the same nature that would have or might have similar effects”610.

To begin with, the Court also pointed out that the charges brought against Traian
Băsescu, are “considered notorious by the authors of the proposal of suspension from office
and, for that reason, the Court cannot examine them but from a hypothetical perspective, leaving
it up to the Parliament to decide on the existence and seriousness of the offen ses for which the
suspension was proposed”611.
The Court did, however, clarify the interpretation of the constitutional provisions
employed by the initiators of the suspension proposal on several accounts. However, unlike in
Russia, Ukraine or Moldova, the Constitutional Court of Romania does not have that
competence to issue binding interpretations of the Basic Law – at least not explicitly mentioned.
As such, the Court grouped the accusations brought against the President of Romania
and offered its inter pretation of the constitutional texts they invoked, interpretation which
always established the charges mentioned in the suspension proposal document were not
substantial.
The judges explicitly noted that “attitudes and opinions held against the Presiden t of
Romania cannot be considered violations of the Constitution”612. They also underlined that
Traian Băsescu’s “manifestations may be characterized as political opinions and are therefore
protected by immunity while exercising his mandate [since] they fall within the limits of the
freedom of expression of political opinions stipulated by article 30, paragraphs (6) and (7) of
the Constitution”613. Nevertheless, the judges did emphasize that “institutional interactions
between participants in the public sphere should be carried in civilized manners”614 and that
“the constitutional status of the President and the Prime -Minister, as well as their role within
constitutional democracy force them to select appropriate forms of expression, so as the critique
they issue with respect to powers of state will not become elements that might generate judicial

610 Advisory Opinion No. 1/05.04.2007, published in the Official Gazette of Romania No. 258/16.04.2007, p. 2.
611 Ibidem .
612 Idem , p. 3.
613 Ibidem.
614 Ibidem.

244 conflicts of a constitutional nature between them”615. A recommendation that the Constitutional
Court had previously made in its Decision no. 435/2006616.
Furthermore, the C ourt distinguished between the President’s mere political statements
and other public authorities’ acts of decision – which represent their own acts of will, for which
the President cannot be held accountable, even if, through his statements, on a purely
declarative level, he may be considered the initiator617. Overall, the Constitutional Court of
Romania established that:
“the President of Romania may, in virtue of his prerogatives and
legitimacy, express opinions and political options, he may formulate
observations and critiques with regard to the good -functioning of public
authorities and their exponents, he may propose reforms or measures he
considers desirable and the national interest. The President’s opinions,
observations, preferences or demands, howe ver, do not have a decisional
character and do not produce legal effects, the public authorities remaining
exclusively responsible for both acknowledging and ignoring them. Either
way, the fact that the President exercises an active role in the political a nd
social life of the state cannot be characterized as a behavior against the
Constitution”618.

Finally, they gave a negative advisory opinion regarding the first attempt of suspension
from office of President of Romania, arguing that the offenses mentione d in the suspension
proposal document of February 2007 “through their content and consequences, cannot be
considered serious , of nature to determine the suspension from office of the President according
to article 95, paragraph (1) of the Constitution”619 and that the Parliament “should decide, based
on the data and information presented to it on the occasion of the debates, on the existence and
seriousness of the facts for which the suspension from office of the President of Romania was
proposed”620.

615 Ibidem.
616 Ibidem .
617 Idem , p. 4.
618 Idem , p. 6.
619 Idem , p. 7.
620 Ibidem .

245
6.8.4. ASCERTAINING THE CIRCUMSTANCES WHICH JUSTIFY THE INTERIM IN THE EXERCISE
OF OFFICE OF THE PRESIDENT OF ROMANIA
Following the negative advisory opinion no. 1/5th of April 2007 on the suspension from
office of the President of Romania, Traian Băsescu, the Pa rliament debated and decided to
continue with the procedures they initiated in February and suspend the President.
On the 20th of April 2007, the Constitutional Court of Romania issued its Ruling no. 1
on the ascertainment of the existence of the circumst ances justifying the interim in the exercise
of the office of President of Romania621. The plenum was formed of the following constitutional
justices: Nicolae Cochinescu, Aspazia Cojocaru, Acsinte Gaspar, Kozsokar Gabor, Petre
Ninosu, Șerban Viorel Stănoiu, Tudorel Toader, Claudia Miu622 and President Ioan Vida.
To begin with, the Presiden t of the Chamber of Deputies, Bogdan Olteanu’s request to
ascertain the existence of the circumstances justifying the interim in the exercise of office of
President of Romania was accompanied by an appeal made by Traian Băsescu, requesting the
Court to asc ertain that the procedural requirements of his suspension from office were not
fulfilled. He claimed that the Parliament brought no new data or information on his suspension
proposal that could have changed the Court’s negative advisory opinion. Consequent ly, he
argued that the Parliament had decided to suspend him from office even though he had not, as
the Court’s Advisory Opinion no. 1/05.04.2007 concluded, committed any serious offenses
against the Constitution.
The Court noted that “the procedure of su spension from office of President of Romania
did not provide for any appeal and, as such, Traian Băsescu’s request is rendered
inadmissible623. In addition, the majority vote of Deputies and Senators required by the
Constitution did express themselves in fav or of the suspension proposal through Decision no.
20 adopted during the joint meeting of the Chamber of Deputies and Senate of April 19th 2007.
Therefore, the Constitutional Court of Romania rejected Traian Băsescu’s request and,
instead, ascertained the existence of the circumstances justifying the interim in the exercise of
the office of President of Romania, appointing the President of the Senate, Nicolae Văcăroiu.

621 Published in the Official Gazette of Romania no. 269/20.04.2007.
622 First Assistant – Magistrate at the Constitutional Court of Romania.
623 Idem , p. 8.

246
6.8.5. REFERENDUM FOR THE DISMISSAL OF PRESIDENT TRAIAN BĂSESCU
Apart from ruling on the observance procedure for the organization and holding of the
national referendums for the dismissal from office of the President of Romania, the
Constitutional Court also analyzes and rules on the various contestations political parties may
submit on t his occasion. Both in 2007 and particularly in 2012, the Court had to solve several
such contestations, but always dismissed them.
In 2007, the Greater Romania Party (GRP) submitted contestations on the procedures
for the organization and holding of the May 19th 2007 referendum, as presented in the foll owing
chart and detailed be low.
RULING OBJECT REFERENCED BY
Ruling no.
2/23.05.2007
published in the
Official Gazette no.
389/08.06.2007 On the contestation regarding the observance
procedure for the organ ization and holding of
the national referendum of May 19th 2007 for the
dismissal of the Preside nt of Romania, Mr.
Traian Băsescu Greater Romania
Party (GRP)
Ruling no.
3/23.05.2007
published in the
Official Gazette no.
389/08.06.2007 On the contestation regarding the observance
procedure for the organization and holding of
the national referendum o f May 19th 2007 for the
dismissal of the President of Romania, Mr.
Traian Băsescu Greater Romania
Party (GRP)
Ruling no.
5/23.05.2007
published in the
Official Gazette no.
352/23.05.2007 On the observance procedure for the
organization and holding of the national
referendum of May 19th 2007 for the dismissal
of the President of Romania, Mr. Traian
Băsescu, and confirmation of its results Central Electoral
Bureau
Ruling no.
4/23.05.2007
published in the
Official Gazette no.
389/08.06.2007 On the contestati on regarding the observance
procedure for the organization and holding of
the national referendum of May 19th 2007 for the
dismissal of the President of Romania, Mr.
Traian Băsescu Greater Romania
Party (GRP)

6.2. List of the Court’s Rulings on the 2007 Referendum for the President’s Dismissal
Source: Own Compilation of Data624

624 All contestations on the referendums for the Presi dent’s dismissal from office can be found using the search
engine available on the Court’s website at https://www.ccr.ro/ccrSearch/MainSearch/SearchForm.aspx [accessed
on the 25th of June, 2015].

247 6.8.5.A. RULING NO . 2/23.05.2007 PUBLISHED IN THE OFFICIAL GAZETTE OF ROMANIA NO .
389/08.06.2007
The contestation formulated by the Greater Romania Party (GRP) was submitted on
May 22nd 2007 and alleged that the Central Electoral Bureau had failed to “draw up a situation
on the voters who voted on supplementary electoral lists and those who declared they had not
voted on any other supplementary electoral lists”625. In addition, the p arty also accused the
Central Electoral Bureau of not having “verified those persons who voted on supplementary
lists”626, according to Government Emergency Ordinance no. 34/2007.
The Court dismissed this contestation the very next day, concluding that the Central
Electoral Bureau did not breach any legal disposition, since it is not tasked with centralizing
the votes expressed on supplementary electoral lists, nor is it vested with verifying those lists
for multiple voters.

6.8.5.B. RULING NO . 3/23.05.200 7 PUBLISHED IN THE OFFICIAL GAZETTE OF ROMANIA NO .
389/08.06.2007
This second contestation was also made by the Greater Romania Party (GRP) on May
22nd 2007 and referred to a breach of article 24 paragraph (3) of Law no. 3/2000, claiming that
the procedur es on the election of the President of the Central Electoral Bureau had not been
respected – more specifically, that the President “had not been elected by secret vote among the
members of the Central Electoral Bureau, within 24 hours from their designatio n”627.
After requesting and receiving additional documents from the High Court of Cassation
and Justice in this matter on the same day, the Constitutional Court of Romania found that the
procedures regarding the election of the President of the Central Elec toral Bureau had been
complied with and that the seven judges of the High Court of Cassation and Justice, having
been designated by draw on the 26th of April 2007628, elected their President “on the same date,
at 14:30”629. Therefore, the Court dismissed this contestation as well.

625 Ruling no. 2/23.05.2007 published in the Official Gazette of Romania of Romania no. 389/08.06.2007, p. 1.
626 Ibidem.
627 Ruling no. 3/23.05.2007 published in the Official Gazette of Romania of Romania no. 389/08.06.2007, p. 1.
628 Thus, 2 days aft er the Parliament decided on the date of the national referendum, by Ruling no. 21/24.04.2007,
published in the Official Gazette of Romania of Romania Part I, no. 273/24.04.2007.
629 Ruling no. 3/23.05.2007 published in the Official Gazette of Romania of Rom ania no. 389/08.06.2007, p. 2.

248 6.8.5.C. RULING NO . 4/23.05.2007 PUBLISHED IN THE OFFICIAL GAZETTE OF ROMANIA NO .
389/08.06.2007
The third contestation regarding the observance of the procedure for the organization
and holding of the national referendum of May 19th 2007 for the dismissal of President of
Romania, Traian Băsescu, was also submitted by the Greater Romania Party on the 22nd of May
2007. Essentially, the authors claimed that “the Central Electoral Bureau adopted Ruling no.
43/21.05.2007 by which the provis ions of Law no. 3/2000 on the organization and holding of a
referendum and those of the Central Electoral Bureau Ruling no. 29/18.05.2007 were
breached”630.These allegations concerned the voters abroad or those on supplementary electoral
lists, about which t he contesters claim the Central Electoral Bureau had no knowledge of their
numeric proportion. The Constitutional Court of Romania “verified the centralized data of the
electoral circumscription of Bucharest631 [and] found that the data resulting from the
supplementary electoral lists of the voting stations abroad had been centralized”632.
In addition, the author of the contestation also claimed that the results of the referendum
had not been “signed by the representatives of the Greater Romania Party, the Nat ional Liberal
Party and the Conservative Party”633. The Constitutional Court of Romania decided that “this
fact is not likely to invalidate the mentioned centralized act”634 and overall dismissed this
contestation as well.

6.8.5.D. RULING NO . 5/23.05.2007 PUB LISHED IN THE OFFICIAL GAZETTE OF ROMANIA NO .
352/23.05.2007
Finally, this act of the Constitutional Court regarded the observance of the procedure
for the organization and holding of the national referendum of May 19th 2007 for the dismissal
of President of Romania, Traian Băsescu and the confirmation of its results.

630 Ruling no. 4/23.05.2007 published in the Official Gazette of Romania of Romania no. 389/08.06.2007, p. 1.
631 According to article 23 paragraph (1) of Law no. 373/2004 on the election of the Chamber of Deputies and the
Senate , published in the Official Gazette of Romania of Romania, Part I, no. 887/29.09.2004, the electoral
circumscription of Bucharest also includes the voting sections abroad.
632 Ruling no. 4/23.05.2007 published in the Official Gazette of Romania of Romania n o. 389/08.06.2007, p. 2.
633 Idem , p. 1.
634 Idem , p. 2.

249 Based on the official final results communicated by the Central Electoral Bureau, the
Court found that “the referendum was held in compliance with the dispositions provided by
law, without regis tering any violations or incidents likely to influence the result of the vote”635.
According to article 10 of Law no. 3/2000 on the organization and holding of the
referendum, with its subsequent amendments and supplementations “the dismissal of the
Preside nt of Romania is approved only if it gathered the majority of the valid votes cast, on a
national level, by the citizens who participated in the referendum”.
As such, the plenum of the Constitutional Court of Romania636 unanimously decided
that at the date on which this ruling is published in the Official Gazette of Romania, Part I, the
interim in the office of President of Romania exercised by Nicolae Văcăroiu ceases and “Traian
Băsescu resumes the exercise of his constitutional and legal attributions as Pr esident of
Romania”637.

6.9. CASE STUDY #2: PRESIDENT TRAIAN BĂSESCU – SECOND TERM OF OFFICE (2012)
6.9.1. THE SUSPENSION PROPOSAL

Drafted by an opposition led, once again, by the Social Democratic Party, the second
suspension proposal was drafted and init iated by a number of 154 deputies and senators638.
Though, perhaps, more radical in terms of content and more punctually supported by Traian
Băsescu’s numerous statements.
Structured into 7 chapters, some of which regard similar allegations, the suspension
proposal document begins with a preamble which essentially portrays President Traian Băsescu
a dictator:
“These political acts resulted only in hindering the functioning of the
State’s democratic institutions up to calling into question the existence of the
rule of law, but also in a serious deterioration of the population’ living
standards, extension of poverty, bankruptcy of hundreds of thousands of
companies, serious erosion of the Romanian capital and dissolution of the
middle class. […] From Cotrocen i Palace the President dictated the form and

635 Idem , p. 1.
636 Formed at that time of judges Nicolae Cochinescu, Tudorel Toader, Aspazia Cojocaru, Acsinte Gaspar,
Kozsokar Gabor, Petre Ninosu, Șerban Viorel Stănoiu, Ion Predescu and President Ioan Vi da.
637 Ruling no. 4/23.05.2007 published in the Official Gazette of Romania of Romania no. 389/08.06.2007, p. 2.
638 Please note that most of the quotations used are taken from Advisory Opinion no. 1/06.07.2012, as they
translated in English extensive excerp ts from the Suspension Proposal Document.

250 manner of adoption of acts, aimed at avoiding the democratic process, i.e. the
legislative debate in Parliament.
The analysis of political events in the past 3 years show that he who
created, designed and mainta ined the process of alteration of the democratic
State was President Traian Băsescu639.
[…] he is directly responsible for most decisions that led to the collapse
of the Romanian State’s institutions, the deepening economic crisis, the
current impasse of th e rule of law and endangering the very fundamental
principles of operation of the democratic State”640.

Without mentioning any of the recurrent specific charges, the preamble of the
suspension proposal appears to blame the effects of the 2010 economic cris is in particular and
every social problem or institutional malfunction in general on Traian Băsescu’s second term
of office. The authors conclude by stating that “there is no other way that the President be held
accountable for his actions than the popular r eferendum under the terms of article 95 of the
Constitution”641 and that “the popular referendum is necessary because there is a substantial list
of violations against the Constitution”642.
The most stringent constitutional breach the President committed, as f ormulated in the
first chapter of this document, was that he “has usurped the role of the Prime Minister and
substituted himself to the constitutional powers of Government”643. In support of this
accusation, the authors argue that “by his political behavior, the President promotes a continual
state of violation of the constitutional framework, [as] he assumed the Government’s role in
economic and social decision -making and he performed duties specific to the Prime -Minister,
seriously breaching the Constitutio n”644. The evidence brought by the authors consists of
several quotations from various public statements the head of state had made, in which he often
identifies the Government’s views, plans and actions with his own, which they considered as
pointing to the fact that “the President’s transformation into a Prime Minister was openly
assumed by Traian Băsescu [and] although many official documents bore the signature of Emil
Boc or of representatives of other institutions, they are the result of Traian Băsescu’s personal
will”645. As an example in point, they mentioned the budgetary cuts of 2010 which were
announced by the President, rather than by the Prime Minister.

639Advisory Opinion. No. 1/06.07.2012, published in the Official Gazette of Romania No. 456/06.07.2012, p. 2.
640 Idem , p. 3.
641 Ibidem .
642 Ibidem .
643 Idem , p. 4.
644 Ibidem .
645 Ibidem .

251 More on that note, the next section is centered on other political statements the President
had m ade, such as: “4.2 million employees cannot support the pensions of 4.9 million
pensioners”646, his “various insults against the Roma community or his recommendation to
doctors to leave the country, despite national realities confirming a lack of medical sta ff”647.
Furthermore, the next part of the suspension proposal accuses the President of having
“generated crises in what concerns the relations between the presidency and the main public
authorities, violating and ignoring their powers, denigrating their act ivity and affecting their
credibility”648. Examples in point are President’s statements against the Parliament’s Upper
Chamber (on legislative reforms in the healthcare, social assistance and judiciary systems, when
he claimed the Government should adopt law s by assuming its responsibility) and his supposed
substitution of the Superior Council of Magistracy’s role in 2011’s statements on the
Cooperation and Verification Mechanism’s (MCV) Report and his criticism on the overall
activity of Romanian judges.
The fourth chapter maintains that “another one of Traian Băsescu’s actions outside the
limits of the Constitution is the decision to send the Parliament a proposal for the revision of
the Constitution already declared unconstitutional by the Constitutional C ourt”649. This
allegation is, in fact, another example of how the authors believe he has taken over the Prime
Minister’s prerogatives, while at the same time illustrates, in their opinion, a certain “disregard
of the Constitutional Court’s decision concernin g the proposal’s compliance with the Basic
Law, which is mandatory”650. On a similar note, other examples of political statements651 or
behavior652 which supposedly defy the Constitutional Court are grouped under the fifth title of
the proposal.
Moreover, in th e sixth chapter, the President is accused of having taken “specific
political actions making him the de facto leader of the Democratic Liberal Party [and that he]
substituted Emil Boc not only as Prime Minister, but also as the leader of the Democratic Lib eral

646 Idem , p. 6.
647 Idem , p. 7.
648 Ibidem .
649 Idem , p. 10.
650 Ibidem .
651 The authors used Traian Băsescu’s statement of November 16th 2011: “Regardless of the outcome at the
Constitutional Court (of challenging the decision to freeze pensions and salaries of State employees in 2012 – n.
ed.), there is no money. If we had any, we would pay them. We can live by borrowing money for the Government
– but it would be easy to play generous, thus dooming the country next year. I have lived this experience before,
in 2007 and 2008”. (p. 11).
652 The authors point out to the fact that “the President appointed Mr. Petre Lazăroiu for a second term of office
with the Constitutional Court, by violating the provisions of article 142, paragraph (2) of the Constitution,
according to which the terms of office of the Court’ s judges cannot be renewed”. (p. 11).

252 Party”653. Moreover, he is accused that “throughout his mandate, he rejected any real dialogue
with political parties other than his own, D -LP, that he praises, supports and rules
authoritatively”654. It is reminded of Traian Băsescu’s participation at the European People’s
Party (EEP) meeting in Helsinki, on March 4th 2011, as well as of his participation at the
Summer School of the Democratic Liberal Party’s Youth Organization which illustrate how
“Mr. Băsescu has constantly attended different meetings with members of his party and was an
active participant in their decision -making process”655.
Last but not least, the final chapter of the suspension document argues that “the
President seriously violate d the constitutional provisions and the basic principle of
representative democracy when he declared that he would not appoint an USL Prime Minister,
even if this political group obtained absolute majority within the Parliament”656.

6.9.2. PARLIAMENTARY DEBATES
The Parliamentary debates concerning Traian Băsescu’s second suspension from office
of President of Romania took place on the 5th of July 2012, during an extraordinary working
session of the Parliament. The joint meeting of the Chamber of Deputies and the Senate was
chaired by deputy Valeriu Ștefan Zgonea, as President of the Chamber of Deputies, assisted by
deputy Niculae Mircovici, as Secretary of the Chamber of Deputies and senator Gheorghe
David657, as Secretary of the Senate. The presidium also included senator George -Crin-
Laurențiu Antonescu, as President of the Senate. From a total number of 433 deputies and
senators, only 306 were present, while 127 were absent. The legal quorum being of a minimum
number of 217, President Valeriu Zgonea noted that the number of attending Par liament
Members was sufficient. On behalf of the initiating groups of the Social Democratic Party and
National Liberal Party, senator Toni Greblă read the document concerning the proposal of
suspension from office of the President o f Romania.
Afterwards, President Traian Băsescu who, this time attended the joint meeting of the
two Parliament Chambers, took word. Although he would have been expected to give at least

653 Idem , p. 12.
654 Ibidem .
655 Ibidem .
656 Idem , p. 13.
657 Gheorghe David, had in fact just switched back from the Social Democratic parliamentary group to the
Democratic Liberal one. His presence at the Tribune of the Parli ament was requested by Mircea -Nicu Toader, the
leader of the Democratic Liberal parliamentary group.

253 several explanations on the charges brought against him, he pointed out that he will provide
those explanations during the debate after the Constitutional Court’s advisory opinion, when
the Parliament will debate on the substance of the suspension proposal. He did, however,
mention that he was “put in a difficult position, because the Presidential staff had only just
received the suspension proposal document on the day before, at 7:30 pm and it would have
been impossible to prepare a debate and a punctual approach for the 20 pages of the document
initiated by SDP and NLP”658.
Instead, he argued that the only reasons for which he was being suspended from office
were for the initiators to take control over the state’s institutions, particularly over the judiciary;
to subordinate the state’s institutions to the party; to avoid putting into practice the results of
the 2009 referendum in favor of a unicameral Parliament with 300 MPs and the “Copy -Paste”
nickname of the Prime -Minister the Social -Liberal Union supplied659.
He also emphasized that the only charges brought against hi m regarded his statements,
not actual facts and suggested that he also has the freedom of any Parliament Member to make
such political statements. He argued that, throughout his statements, he expressed the truth,
however harsh, as it was his “obligation, as President, to tell the Romanian people the truth
about the country’s finances, about what Romania can and cannot do during crisis periods”660.
In the end of his speech, he encouraged the Parliament to continue the procedure of
suspending him from office of President of Romania respecting the State’s institutions, the
procedures and the Constitution and suggested the Parliament to include the proposal of a
unicameral Parliament with 300 MPs in the same referendum.
Then, deputy Ioan Oltean of the Democra tic Liberal Party argued that the document
regarding the suspension from office of President Traian Băsescu was insufficient and lacking
from a legal point of view, since it is based on statements, opinions and attitudes which cannot
be characterized as se rious offenses against the Constitution. Reminding the Parliament of the
failed attempt of 2007, he pleaded them to avoid subjecting themselves to ridicule when the
Constitutional Court issues a second negative advisory opinion and to form a common
commiss ion of investigation on this issue661. His proposal was supported by deputy Cezar
Preda, who reminded the Parliament of the four special commissions on the plagiarism

658 http://www.cdep.ro/pls/steno/steno.stenograma?ids=7143&idm=3&idl=1 [accessed on June, 25th 2015].
659 Ibidem .
660 Ibidem .
661 Ibidem .

254 accusations of Victor Ponta, arguing that if they vote against such an investigation commis sion
on this occasion, the Parliament will appear unfair and not serious enough.
However, when submitted to vote, the proposal to create a special commission of
investigation on the suspension from office of President received no votes in favor, 216 again st
and 18 abstentions – thus being rejected.
Deputy Cristian Boureanu added that it is sad how, after only 4 days since the majority
coalition of the Social -Liberal Union had installed a Prime -Minister without any elections, they
also wish to have a new President without any elections. He warned of the consequences such
an endeavor might have on the Romanian political class and pleaded the MPs to keep in mind
that they cannot set a deadline for the Constitutional Court’s advisory opinion – let alone one
of 24 hours662.
The vice -leader of the National Liberal Parliamentary group, deputy Eugen Nicolăescu
expressed his opinion against the forming of a special investigation commission, pointing out
that they “consider that at this moment, as the facts, the realities are presented, there is sufficient
evidence so that the text they proposed the Parliament could be forwarded to the Constitutional
Court”663. He maintained that the parliamentary groups of the Social -Liberal Union would like
to set a deadline for the Constitutional Court to issue its advisory opinion. The deadline was of
24 hours ( or even less, since the Court received the notification later that day) – July, 6th 2012
at 12:00 p.m. They claimed that such a deadline would be useful for President Traian Băsescu,
so that he could have enough time to formulate the explanations he will present in front of the
Parliament, during the subsequent debates. President Valeriu Zgonea supported Nicolăescu’s
proposal.
Deputy Ioan Oltean acknowledged the Parliament’s possibility to set a deadline for the
Constitutional Court on this issue, yet claimed that given the complexity of this case, 24 hours
is not an appropriate term. He reminded of the 2007 precedent, when the Court had 2 weeks
(from March, 21st to April, 4th 2007) to examine the documentation provided by the Parliament
and to issue a proper advisory opinion on the suspension from office of President of Romania.
Also, he demanded the Parliament to expand the 24 -hours deadline to a minimum of 2 weeks.
Senator Vasile Blaga, supported by senator Niculae Mircovici664, tried to point that the
vote on the special commission of investigation had not reached the minimum quorum of 217

662 http://www.cdep.ro/pls/steno/steno.stenograma?ids=7143&idm=4&idl=1 [accessed on June, 22 2015].
663 Ibidem .
664 He st ated: “I won’t lie for a single vote”.

255 votes, since President Zgonea had announced only 216 votes in favor. He was, however,
incorrect, as senator Bogdan Nicolae Niculescu Duvăz also explained, since the quorum is
reached by the total number of votes, not only by those in favor of a proposa l665.
Even though Mircea -Nicu Toader asked to take the stand on another procedural issue –
regarding the voting manner – Valeriu Zgonea first submitted Eugen Nicolăescu’s proposal to
vote, repeatedly ignoring Toader’s request. Only after he announced that there were 221 votes
in favor of the 24 -hours -deadline for the Court’s advisory opinion, none against and 8
abstentions, did he allow Mircea Toader to take the stand. He criticized President Valeriu
Zgonea for not respecting the Standing Orders on the Joi nt Meetings of the Parliament
Chambers and demanded a nominal voting procedure. To this Valeriu Zgonea pointed out that
the deputies and senators of the Democratic Liberal Party, although present, did not vote666.
Next, deputy Clement Negruț asked for a re -vote for deputy Ioan Oltean’s proposal and
instead of invoking a procedural issue, expressed his wish that the Parliament will also submit
to popular referendum the Constitutional review previously mentioned by t he President of
Romania.
Finally, deputy Marian -Florian Săniuță, as independent, took the stand to protest that
he, too, was not allowed to speak by the President of the meeting, Valeriu Zgonea. He pleaded
that the deadline for the Constitutional Court’s advisory opinion be extended to at least 3 days,
as was the case of the Parliament667, but his proposal was also ignored.
Immediately after receiving the Constitutional Court’s negative advisory opinion on the
suspension from office of President of Romania of Traian Băsescu, the Parliament reconvened
for a second extraordinary joint meeting on the 6th of July 2012. The meeting began late in the
afternoon at 5:05 pm and was led by senator Crin Antonescu, as President of the Senate, deputy
Valeriu Zgonea as P resident of the Chamber of Deputies, assisted by deputy Georgian Pop, as
Secretary of the Chamber of Deputies and senator Gheorghe David, as Secretary of the
Senate668. President Crin Antonescu announced that from a total of 432 senators and deputies,
318 we re present and 114 were absent. The quorum of 217 MPs was, however, met and they
could debate on the substance of the proposal of suspension from office of the President of

665 According to article 67 of the Regulation on the Joint Meetings of the Chamber of Deputies and of the Senate,
approved by the Decision of the Parliament of Romania no. 4/03.03.1992, published in the Official Gazette of
Romania of Romania, Part I, no. 34/04.03.1992, as amended and completed by the Decision of the Parliament no.
13/1994, published in the Official Gazette of Romania of Romania, Part I, No. 136/05.07.1995.
666 http://www.cdep.ro/pls/steno/steno.stenograma?ids=7143&idm=5&idl=1 [accessed on June, 25th 2015].
667 Ibidem .
668 http://www.cdep.ro/pls/sten o/steno.stenograma?ids=7147&idm=1&idl=1 [accessed on June, 25th 2015].

256 Romania. Deputy Mircea Toader reminded that the Permanent Bureaus should have reuni ted
first and only after 24 hours should they have had a joint meeting in plenum.
In the beginning of the debate, deputy Eugen Nicolaescu briefly presented the
suspension proposal document initiated by the Social -Liberal Union. He was followed by
Preside nt Traian Băsescu, whose speech was shorter than expected. He began by expressing his
satisfaction that “the Constitutional Court did not find any deviation of the President of
Romania that would justify his suspension from office, as stipulated by article 95 of the
Fundamental Law”669. He continued by pointing out that he does not seem to be able to
cohabitate with the Social Democratic Party, nor with the National Liberal Party, who, when
brought together in a governing coalition, are preoccupied with suspe nding the President. He
characterized their endeavor over the last two weeks as “nothing but a powerful shakedown of
the rule of law state so as to submit it to the Social -Liberal Union”670.
Overall, the President’s entire first intervention during that p arliamentary debate was
not as punctually explanatory as he had announced it the previous day – he focused on pointing
out that the MPs refuse to put into practice the results of the November 2009 referendum, that
they are trying to defend Dan Voiculescu f rom the judicial system, and so on. He did, however,
underline that he has always respected the decisions of the Constitutional Court, the judicial
system – in spite of his criticism, that he did follow the procedure regarding Constitutional
revision, that he did attempt to cooperate with every political party, but that the Social -Liberal
Union repeatedly declined his invitations for consultation, and that he had full responsibility as
head of state during the economic crisis of 2009 -2011. Quite interesting ly, he did admit that he
had made certain xenophobic statements and concluded that he “regrets them and that such
statements should not be made by any politician, let alone by a Head of State”671.
On behalf of the Democratic Liberal Party, senator Vasile Bl aga emphasized that those
of the Social -Liberal Union did not agree with the reading of the advisory opinion issued by the
Constitutional Court of Romania because they did not want the Romanian people to hear it. He
also emphasized that “the sole preoccupa tion [of those of the Social -Liberal Union] is to obtain
and control all power in state”. He accused them of a coup against the judicial power, the
legislative power and the presidential branch of the executive power and characterized their
endeavor to sus pend Traian Băsescu from office as “hypocritical and hilarious at the same time”

669 Ibidem .
670 Ibidem .
671 http://www.cdep.ro/pls/steno/steno.stenograma?ids=7147&idm=5&idl=1 [accessed on June, 25th 2015].

257 because “the enemies of the Constitution wish to suspend a President who respects the
Constitution”. He warned that “the Romanian voters see and understand” and he appealed to
the MPs from UNPR, DAHR and the minorities to not take part in “bringing down the rule of
law state in Romania”.
Crin Antonescu himself took the stand next, to present the National Liberal
parliamentary groups’ viewpoints. He ironically began by saying “let’s pretend that Mr. Blaga
didn’t say anything and let’s get back to the point”672. He observed that “the Parliament is not
a legal court of justice and the decision they take is not a sentence”. He accused Traian Băsescu
of “illegally and unconstitutionally transforming Romania into a de facto presidential political
regime [or worse yet] into a unipersonal and discretionary political regime”. Furthermore, he
expressed his disapproval of the disti nction the President makes between statements and
actions, as he claimed that “under certain circumstances and in certain functions, the statement
is action”. He accused President Traian Băsescu of not having been entirely honest with the
people on econom ic and judicial issues, as well as of fearing the legal system since “he is the
one involved in closed or suspended judicial files”. He concluded by admitting that “Traian
Băsescu is and always has been a strong man, a strong politician [even though] he ha s never
been nor will he ever (and we cannot punish him for that) be a true leader of this nation”. He
waged that “if [the President] is not dismissed by referendum, he will permanently retire from
the political arena”.
On behalf of the Democratic Allianc e of Hungarians In Romania, deputy Marton Arpad
Francisc briefly remarked that: “the President’s activity is well -known. Regarding it, the text
of the proposal of suspension does not bring any new elements and the Court’s decision is
subjected to interpret ation. Therefore, the parliamentary groups of the Democratic Alliance of
Hungarians in Romania have not made a decision on whether or not they are going to support
the suspension proposal, thus allowing each member to vote according to his/her own
conscien ce”. Neither the representative of the Progreseist parliamentary group, nor that of the
minorities wished to take the stand. After using the popular Chucky doll as an illustrative
example of the meanness reflected in Antonescu’s speech, he argued that the reason for such a
hasty suspension procedure of the President is the PMs fear of “a fair justice, of fair democratic
institutions and a fear of the power of the Constitution”. Similarly, independent deputy Vasile

672 Ibidem.

258 Oajdea argued that “the Social -Liberals’ ha ste to suspend the President from office, breaking
the Constitution and the laws of the country, are a deviation from democracy”.
Then, from the Social Democratic parliamentary groups, Dan Șova began by claiming
that Traian Băsescu cannot cohabitate with SDP and NLP because “he cannot cohabitate with
free people, with people who think independently”. He continued by mentioning four points of
the Court’s advisory opinion which were in favor of their suspension proposal: 1) that the
President did usurp the role of the Prime Minister; 2) that he breached the fundamental rights
and freedoms provided to all citizens by Constitution; 3) th at the violated the independence of
justice and the separation of powers principle; and 4) that he violated the principle of non –
affiliation with any political party. He concluded that “the Constitutional Court tells us expresis
verbis that the President s hould answer in front of the voters and the civil society. Meaning he
should go to referendum”. He emphasized that their endeavor was “no coup d’état and that
there was nothing unconstitutional or illegal about it [and that] “this fight is not the fight of
Parliament Members against Traian Băsescu, but Traian Băsescu’s fight against the Romanian
people, which he should represent”.
Furthermore, senator Mircea Geoană claimed that “a new beginning is necessary and
perhaps the President’s term of office has b een dramatically cut short also because the 2009
presidential elections were unclear, to say the least”. Deputy Marian Săniuță supported the
suspension proposal and encouraged the MPs to “suspend today, but don’t sink the economy
and the rule of law state” .
On behalf of the Democratic Liberal Party, senator Gheorghe David brought the
Constitution and the Bible (actually quoting from it) to the stand and pleaded the Parliament to
stop from this endeavor. His intervention was highly contested by the audienc e, who laughed,
protested or applauded loudly.
Deputy Călin Popescu -Tăriceanu pointed out that, unlike the one in 2007, the
Constitutional Court’s advisory opinion did find the President guilty of several Constitutional
breaches, which he does not have the time to read, however. After expressing his f aith in a
coercive vote at the referendum, he claimed that “by usurping the Government’s powers, Traian
Băsescu has gained sufficient power to transform the last two Prime -Ministers into individuals
without political personality and the Constitutional Cour t has confirmed these accusations in
the advisory opinion issued”.

259 Senator Dumitru Staicu compared the joint meeting of the Parliament with the
Mineriada of 1990 and the USL MPs to the miners. He also quoted from the Court’s advisory
opinion, specifically a paragraph which dismissed the suspension proposal as not based on
factual acts and lacking in terms of evidentiary support. Raluca Turcanu and Cristinel
Dugulescu followed, each claiming that the President’s suspension from office is an abuse
which “gen erates the risk of a dangerous political precedent, practically enabling the breach of
any constitutional balance by the will of a parliamentary majority”. She concluded by claiming
that “the President’s suspension from office is not based on arguments and facts, but on lies and
interpretations of certain political statements (which is obvious from the Court’s advisory
opinion)” and that “the argumentation in favor of the suspension proposal was made in the
studios of a television channel”. Cristinel Dugule scu was not allowed to make a speech,
particularly since he began by attempting to quote from the Constitutional Court’s advisory
opinion those excerpts that rendered the President not guilty of any serious offenses against the
Constitution.
Finally, Pres ident Traian Băsescu took the stand once again, reminding the Parliament
that he did appoint a Prime -Minister from the opposition, as well as a representative from the
opposition for the Internal Intelligence Service and for the External Intelligence Servi ce. He
also expressed his regret of having appointed as Prime -Ministers both Călin Popescu -Tăriceanu
and Victor Ponta. He concluded by stating that he has a clear conscience for having fulfilled his
duty to his country and his people and by leaving a sheet of paper for Crin Antonescu to write
his resignation in the event he should win the referendum673. The meeting was temporarily
interrupted by a long standing ovation, as the President of Romania left.
Deputy Mircea Toader, supported by senator Dumitru Opre a, requested the entire
Advisory Opinion no. 1/06.07.2012 be presented in front of the Parliament. The President of
the Chamber of Deputies, Valeriu Zgonea, supported by deputy Bogdan Nicolae Niculescu
Duvăz, objected to this proposal, as he pointed out th e document should have been read before
the President’s intervention. However, President Crin Antonescu agreed to submit Toader’s
proposal to vote, and with 104 votes in favor and 234 against, the proposal was rejected674.
The voting was secret, with black and white balls, yet nominal. Secretary Georgian Popa
and secretary Gheorghe David called each deputy and senator, respectively, to vote. The

673 During his speech, Crin Antonescu promised to permanently resign from politics, should the President not be
dismissed at the referendum.
674 http://www.cdep.ro/pls/steno/steno.stenograma?ids=7147&idm=6&idl=1 [accessed on June, 25th 2015].

260 Parliament’s resolution on Traian Băsescu’s suspension from office of President of Romania
was adopted with 256 v otes in favor, 114 votes against and 2 votes annulled from a total number
of 374 present Parliament Members675. Then the Parliament voted on the Bill regarding the
object and date of the national referendum for the dismissal of the President of Romania, whic h
was submitted to an open vote, receiving 242 votes in favor, 0 votes against and 1 abstention676.
The joint meeting of the Chamber of Deputies and the Senate ended at 09:10 pm.

6.9.3. ADVISORY OPINION OF THE CONSTITUTIONAL COURT OF ROMANIA
Given the shor t timespan the Constitutional Court of Romania was granted with by the
two Chambers of Parliament (less than 24 hours) to analyze and debate on Traian Băsescu’s
second suspension from office proposal, the Advisory Opinion no. 1 issued on the 6th of July
2012 and published in the Official Gazette no. 456/06.07.2012 was bound to be characterized
by certain peculiarities.
To begin with, the document of 2012 clearly differentiates from that of 2007 in that it
relies on extensive quotes from the suspension propo sal document a dvanced by the Social
Democrat s and Liberals on July 5th 2012. In fact, it appears that the advisory opinion consists
of quotations from the suspension proposal document, rather than a coherent and
comprehensive constitutional analysis of the allegations against the President. As previously
mentioned, the judges Aspazia Cojocaru, Acsinte Gaspar, Mircea Ștefan Minea, Iulia
Antoanella Motoc, Ion Predescu, Puskas Valentin Zoltan and President Augustin Zegrean had
very little available time to de bate upon and accurately examine the suspension proposal
document.
Another curious element in this advisory opinion is that the Constitutional Court
outright expressed its opinion on the issue from the very beginning, stating that “the Court,
following de liberation, rejects the lodged requests”677. This statement resembles more of a
preview, as it is immediately followed by extensive quotations from the document advancing
the proposal of suspension from office of the head of state. It is highly unusual for t he Court to
openly and outright express its opinion prior to having analyzed and respect certain standard
elements of procedural content.

675 Ibidem .
676 Ibidem .
677 Advisory Opinion. No. 1/06.07.2012, published in the Official Gazette of Romania No. 456/06.07.2012, p. 1.

261 In essence, the serious offences committed by President Traian Băsescu were breaching
the following constitutional pro visions: article 1, paragraphs (3), (4) and (5); article 8, article
16; article 21; article 23 paragraph (3); article 34; article 47 paragraph (2); article 77; article 80;
article 82, paragraph (2); article 84; article 102; article 134 paragraph (2); artic le 142, paragraph
(2); article 147 and article 150 paragraph (1) of the Fundamental Law.
First of all, on the allegations in the preamble of the suspension proposal, which
basically portrayed President Traian Băsescu as the scapegoat responsible for having
“in the past 3 years […] created, designed and maintained the process of alteration of the
democratic state […] guided by the political ideology of the ‘player president’”678 the Court
found that “they do not specify the elements to identify and characterize violations of the
Constitution or evidence in support of these imputations”.
In the first chapter of the suspension proposal, which was centered around allegations
that “the President has usurped the role of Prime Minister and substituted himself to the
constitutional powers of Government”679, allegations supported once again by political
statements that contain the expression “I and the Government/ I and the Prime -Minister” the
Court surprisingly found them true:
“The fact that the President of Romania, through his political behavior,
publicly assumed the initiative to take socio -economic measures before their
adoption thereof by the Government, by assuming responsibility, can be
considered as an attempt to diminish the role and powers of the Prime
Minister. Therefore, this attitude imputed to Mr. Traian Băsescu cannot be
framed in the concept ‘political opinions and options’, as established by the
Constitutional Court in the Advisory Opinion no. 1 of 5 April 2007, according
to which the President of Romania, by virtue of his powers and legitimacy,
may make comments and criticism on the functioning of public authorities
and their representatives”.
Moreover, the second part of the document presented various statements the President
had made during 201 0, 2011 and 2012 in which he “has repeatedly violated fundamental rights
and freedoms of citizens provided under the Constitution”680. On this account, the Court found
that these statements “cannot constitute the elements leading to infringement upon the sub stance
of those fundamental rights [since] the legislative measures concerning the reduction of salaries
and pensions have been taken by the Government, through assumption of responsibility”681.

678 Idem , p. 2.
679 Idem , p. 4.
680 Idem, p. 6.
681 Idem , p. 7.

262 Once again, the Court found that “these are mere statements, no t acts or facts that might lead to
serious violations of the Constitution. Thus, the President’s display referred to by the authors
of the suspension proposal can be characterized as opinions”682.
Next, the third section of the proposal for suspension from office of President of
Romania is based on allegations of supposed constitutional violations of the principle of
separation of powers, thus affecting the independence of the judiciary and provides numerous
accounts of various political statements made by t he President during his second term of office.
Thus, once more, the Constitutional Court noted that “these statements made by the President
of Romania did not have any legal effects, as they did not have any decision -making nature.
Therefore, the violation of the constitutional provisions concerning the independence of the
judiciary cannot be held, as the criticism expressed cannot prevent magistrates from fulfilling
their constitutional duties”683. However, the Court did once again express “its disapproval o f
the allegations, offensive labelling and insults addressed to the representatives of the public
authorities about their activity, as stated in the Advisory Opinion no. 1 of 5 April 2007, as well
as in Decision no. 435/2006 published in the Official Gazet te of Romania, Part I, no. 576 of 4
July 2006”684.
Furthermore, the next chapter of the suspension from office proposal document
“claimed that the President initiated an unconstitutional proposal for the revision of the
Constitution and violated the procedu re for the revision of the Constitution referred to by the
Basic Law”685. The Court dismissed this charge as well, arguing that the procedure in question
was constitutional and that “the fact that certain provisions in the bill for the revision of the
Consti tution were found unconstitutional [. ..] cannot lead to the conclusion that the President
of Romania violated the provisions of the Basic Law”686.
On a similar note, the fifth section reminded of Traian Băsescu’s disregard for a decision
issued by the Const itutional Court on the salaries and pensions cut -downs of 2012 and his visits
to the Court “before some major decisions”687. As on previous charges, the Court decided these
were mere political statements, rather than serious offenses against the Constitution , which
would support the proposal of suspension from office of the Head of State.

682 Ibidem .
683 Idem , p. 10.
684 Ibidem .
685 Ibidem .
686 Idem , p. 11.
687 Ibidem .

263 Even more interesting, however, is the accusation according to which “the President
appointed Mr. Petre Lăzăroiu for a second term of office with the Constitutional Court, by
violating the provisions of article 142, paragraph (2) of the Constitution, accor ding to which
the terms of office of the Court’s judges cannot be renewed”688. After quoting the article 68
paragraphs (2) and (3) of Law no. 47/1992 on the Organization and Operation of the
Constitutional Court which enabled the second mandate of judge Petr e Lăzăroiu under specific
circumstances, the Court sarcastically concluded that “besides, the two Chambers of Parliament
have also applied the above -cited legal provisions”689.
Once again, President Traian Băsescu is accused of granting preferential treatm ent to
the party which supported his coming into office, the Democrat -Liberal Party, up to the point
in which he basically becomes the de facto leader of this party, thus replacing Emil Boc once
again. Unlike in 2007 when it supported the President’s speci al relation with the party that
promoted and supported him, the 2012 advisory opinion on the suspension proposal of the head
of state finds that “Mr. Train Băsescu did not fulfill with maximum efficiency and rigor the role
of mediator between State powers, as well as between State and the society”690.
Finally, the last chapter of the suspension proposal document claims that “the President
seriously violated the provisions of the Constitution and the basic principle of representative
democracy, when he declare d that he would not appoint an USL Prime -Minister, even if this
political group obtained absolute majority within the Parliament”691. Without any other
explanation, the Constitutional Court of Romania dismissed these allegations, arguing that it
“finds them irrelevant, as the Prime Minister of Romania is the President of the Social
Democratic Union, appointed by the President of Romania”692.

6.9.4. THE ASCERTAINMENT OF THE EXISTENCE OF THE CIRCUMSTANCES JUSTIFYING
THE INTERIM IN THE EXERCISE OF THE OFFICE OF PRESIDENT OF ROMANIA
Ruling no. 1 issued on the 9th of July, 2012 on the ascertainment of the existence of the
circumstances justifying the interim in the exercise of the office of President of Romania was
published in the Official Gazette no. 467/July 10th 2012 was issued by the presidium formed

688 Ibidem .
689 Idem , p. 12.
690 Idem , p. 13.
691 Ibidem .
692 Ibidem .

264 from the following justices: Aspazia Cojocaru, Acsinte Gaspar, Petre Lăzăroiu, Mircea Ștefan
Mihnea, Iulia Antoanella Motoc, Ion Predescu, Puskas Valentin Zoltan, Tudorel Toader, Ioana
Marilena Chiorean and Augustin Zegrean (President).
On the same day in which the Court gave its second negative advisory opinion on the
suspension from office of Traian Băsescu, July 6th 2012, another joint meeting of the Chamber
of Deputies and Senate was set. 256 senators and deput ies (which represents the majority vote
of Parliament Members required by the Constitution) voted in favor of Resolution no. 33/2012
on the head of state’s suspension from office, its content establishing that “ article 1 – Mr. Traian
Băsescu is hereby susp ended from the office of President of Romania”693 and “ article 2 – The
resolution shall be notified to the Constitutional Court in order to ascertain the circumstances
which justify the interim in the exercise of the office of President of Romania”694.
As su ch, having fulfilled the requirements set by the Basic Law, the Constitutional Court
decided that “Mr. Traian Băsescu’s procedure for suspension from the office of President of
Romania was complied with”695 and, having ascertained the circumstances that just ify the
interim in the exercise of the office of President of Romania, nominated Crin Antonescu, the
President of the Senate, as interim in the exercise of the office of President of Romania696.

6.9.5. REFERENDUM FOR THE DISMISSAL OF PRESIDENT TRAIAN BĂSESC U (2012)
The 2012 national referendum for Traian Băsescu’s dismissal from office of President
of Romania was contested at the Constitutional Court of Romania by 6 parties, namely the
International League of Romanians, the President of the Chamber of Deput ies and the President
of the Senate, Gheorghe Hogea, Liviu Dragnea and Daniel Chițoiu, 63 Democrat -Liberal
deputies and the Organization for the Defense of Human Rights.
The Constitutional Court grouped together some of them, since they basically invoked
similar arguments, sometimes even requested additional information from public institutions
and electoral authorities, but eventually dismissed them altogether. The chart below lists the
contestations received in 2012 and a detailed account of each contes tation is further presented.

693 Ruling no. 1/09.07.2012 published in the Official Gazette of Romania of Romania no. 467/10.07.2012.
694 Ibidem.
695 https://www.ccr.ro/files/products/H0001.pdf [accessed on June, 25th 2015].
696 Ibidem .

265 RULING OBJECT REFERENCED BY
Ruling no.
3/02.08.2012
published in the
Official Gazette no.
546/03.08.2012 On the contestations regarding the
observance of the organization and holding
of the national referendum of July 29th 2012
for the dismissal of the President of Romania,
Mr. Traian Băsescu International League
of Romanians
Liviu Dragnea and
Daniel Chițoiu
President of the
Chamber of Deputies
and President of the
Senate
Gheorghe Hogea
Organization for the
Defense of Human
Rights
Ruling no.
6/21.08.2012
published in the
Official Gazette of
Romania no.
616/27.08.2012 On the observance of the organization and
holding of the national referendum of July
29th 2012 for the dismissal of the President of
Romania, Mr. Trai an Băsescu and
confirmation of its results Central Electoral
Bureau
Ruling no.
2/24.07.2012
published in the
Official Gazette no.
516/25.07.2012 On the request regarding the ascertainment of
the inapplicability to the referendum on July
29th 2012 of the p rovisions in sole article
point 4 [regarding article I, point 5, ind. 2 of
Government Emergency Ordinance no.
41/2012] of the Law on the approval of
Government Emergency Ordinance no.
41/2012 for the amendment and
supplementation of Law no. 3/2000 on the
organization and holding of the referendum,
as well as those of the sole article point 2 of
the Law for amending Law no. 3/2000 on the
organization and holding of the referendum 63 Democrat -Liberal
deputies

6.3. List of the Court’s Rulings on the 2012 Ref erendum for the President’s Dismissal
Source: Own Compilation of Data697

697 All contestations on the referendums for the President’s dismissal from office can be found usin g the search
engine available on the Court’s website at https://www.ccr.ro/ccrSearch/MainSearch/SearchForm.aspx [accessed
on the 25th of June, 2015].

266 6.9.5.A. RULING NO . 2/24.07.2012 PUBLISHED IN THE OFFICIAL GAZETTE OF ROMANIA ,
PART I, NO. 516/25.07.2012
Deputy Mircea Toader, the leader of the Democrat -Liberal parliamentary group in the
Chamber of Deputies, notified the Constitutional Court on July 19th 2012 with a request698 to
ascertain the inapplicability to the referendum from 29.07.2012 of the provisions of the sole
article point 4 [regarding article I point 52 of the Governmen t Emergency Ordinance no.
41/2012] of the Law for the approval of Government Ordinance no. 41/2012 for amending and
supplementing Law no. 3/2000 on organizing and holding a referendum, as well as those of
sole article point 2 of the Law for amending Law no . 3/2000 on the organization and holding
of a referendum699. Invoking both the Mechanism of Verification and Cooperation and the Code
on Good Practices in electoral matters”, the author claimed the latest amendments of Law no.
3 breached the stipulations in article 1 paragraph (5)700 of the Constitution.
The Constitutional Court of Romania , however, established the Democrat -Liberals
contestation was inadmissible, as it failed to fulfill either one of the two conditions: “a) to regard
matters of constitutional ity, namely to request the Constitutional Court to exercise an a
posteriori constitutionality control on the normative acts incidental to the referendum
procedure; b) to concern the ascertainment of the legality of some acts (including those issued
by the Central Electoral Bureau) or facts incurred during the holding of the referendum, as long
as solving such a request does not fall within the competence of the electoral bureaus or of
courts of law”701. Consequently, the Court declined its competence in this matter, but reminded
that “the referendum must be held fairly, within the limits and conditions provided by the
Constitution and by Law no. 3/2000, the aspects of legality and constitutionality being
indissolubly connected to the confirmation of the refere ndum’s results, according to article 146
paragraph i) of the Constitution”702.

698 The request was signed by 63 dep uties of his parliamentary group.
699 Legislative amendments made on July 18th 2012 in the Lower Parliament Chamber – so he notified the
Constitutional Court even before these amendments entered into force.
700 “Observance of the Constitution, of its supremacy , and the laws shall be obligatory in Romania”.
701 Ruling no. 2/24.07.2012 published in the Official Gazette of Romania of Romania, Part I, no. 516/25.07.2012,
pp. 3 -4.
702 Idem , p. 4.

267 6.9.5.B. RULING NO . 3/02.08.2008 PUBLISHED IN THE OFFICIAL GAZETTE OF ROMANIA ,
PART I, NO. 546/03.08.2012
This ruling grouped together contestations formulated by the Romanian I nternational
League, by the Social -Democrats Liviu Dragnea and Daniel Chițoiu, by the President of the
Chamber of Deputies and the President of the Senate, as well as by Gheorghe Hogea and the
Organization for the Defense of Human Rights, since essentially , they all contested the
procedure regarding the national referendum for the dismissal of the President of Romania, Mr.
Traian Băsescu. One PM even asked to defend the justifications presented in his request in front
of the Court, but his request was dismi ssed, as “the procedure in such cases does not allow for
public debates in which the authors of the referral are subpoenaed or invited”703.
Taking into account statistical evidence from several public institutions and authorities,
such as the Ministry of Internal Affairs, the National Institute of Statics, the House of National
Health Insurances and the Permanent Electoral Authority, the authors claimed that the number
of voters is, in fact, much lower than that required by the Court. They also identified a series of
reasons for which the turnout at the referendum was lower than the 50% +1 percentage needed,
as follows:
“the lack of a proper drafting of the voters’ lists in diaspora by the
Ministry of Foreign Affairs, the Ministry of Internal Affairs and t he Ministry
of Justice, the chaotic voting process at the voting centers abroad, the
Romanian citizens abroad lack of information regarding their electoral rights,
the disregard of these citizens and consequently, not printing the appropriate
number of bal lots…”704.
As a solution, the authors proposed the referendum be invalidated and the electoral
process resumed within 3 months. In short, the Constitutional Court of Romania disagreed,
arguing that “the participation quorum and the voting majority are two c onditions which must
be cumulatively met in order to dismiss the President of Romania”705.
In addition, they claimed that “the open boycotting of the referendum by some political
forces represents a de jure abuse according to article 57 of the Constitution ’706. One of Traian

703 Ruling no. 3/02.08.2008 published in the Official Gazette of Romania of Romania, Part I, no. 546/03.08.2012,
p. 9.
704 Idem , p. 4.
705 Idem , p. 21.
706 Idem , p. 5. They further explained that “the boycott of the referendum was accomplished by both public
statements, as well as actual actions which prevented the free exercise of th e citizens’ right to vote, which in turn
determined the lack of legal effects of the other Romanian citizens’ votes, who presented themselves to the popular
consultation”.

268 Băsescu’s most successful electoral strategies of political communication in the 2012
referendum was that of urging his followers not to vote in any way, to boycott the referendum
by absence. Since the Romanian electoral law does not forc e the citizens to vote, but merely
regulates their right to do so, the Court explained that:
“The expression of a political option may occur not only by
participating in the referendum, but even by not taking part in it, particularly
in the situations in which the relevant legislation imposes a certain quorum of
participation. Thus, a blocking majority may be created in relation to the
number of citizens in a state; in this manner, those who choose not to exercise
their right to vote consider that, by a pa ssive behavior, they may impose their
political will. Thus, by choosing not to exercise a constitutional right, the
citizens see accomplished their own convictions by indirectly not accepting
those against them. Hence, not participating in a referendum, mo re precisely
not exercising one’s right to vote is also a form of expressing the citizens’
political will and of participation to the political life”707.
They also argued that “the dispositions of the Constitution do not impose a voting
attendance conditio n in order to validate the referendum, the Constitutional Court referring to
this condition only so as to ensure the decision taken by referendum is not imposed by an
insignificant minority”708 and that it “thus ignores the vote of the immense majority, name ly of
those who voted “Yes” at the referendum held on July 29th 2012”709. In response, the
Constitutional Court highlighted the legislative modifications Law no. 3/2000 on the
organization and holding of a referendum had incurred since July 6th 2012, when th e referendum
procedure for the dismissal of the President of Romania, Traian Băsescu, had been set in
motion:
 As amended by Government Emergency Ordinance no. 41/2012 published in the
Official Gazette of Romania no. 452/05.07.2012: “By derogation from arti cle 5
paragraph (20, the dismissal of the President of Romania is approved if it gathered the
majority of the votes validly cast by the citizens who participated at the referendum”.
 Decision no. 731/10.07.2012 published in the Official Gazette of Romania n o.
478/12.07.2012 – the abstract constitutionality control of the amendment of article 10
of Law no. 3/2000 found the amendment constitutional.
 Law no. 131/2012 published in the Official Gazette of Romania no. 489/17.07.2012:
“The dismissal of the Presiden t of Romania is approved if, in the aftermath of the
referendum, the proposal gathers the majority of the votes validly cast”.

707 Idem , p. 20.
708 Idem , p. 5.
709 Ibidem .

269  Law no. 153/24.07.2012 published in the Official Gazette of Romania no.
511/24.07.2012 abrogated the provisions of article I, po int 1 of the Government
Emergency Ordinance no. 41/2012.
Finally, the Court ruled that “a majority of votes for the dismissal of the President of
Romania does not meet the conditions of representativity in absence of the necessary quorum
for the holding of the referendum”710 and as such, dismissed as unfounded the contestations
previously presented.

6.9.5.C. RULING NO . 6/21.08.2012 PUBLISHED IN THE OFFICIAL GAZETTE OF ROMANIA ,
PART I, NO. 616/27.08.2012
The Constitutional Court of Romania established that the procedure for the organization
and holding of the referendum had been respected, with minor incidents that did not affect its
validity. However, upon examining the information received from competent authorities, such
as the Ministry of Internal Affai rs, the Ministry of Foreign Affairs and the Permanent Electoral
Authority, the Court found that the number of total voters varied according to the source711. As
such, the Court formulated a request to the Government of Romania to communicate the
updated numb er of persons listed on the permanent voting lists.
In turn, the Government represented by Prime -Minister Victor Ponta, transmitted an
official response to the Court, which the Court found “it had nothing to do with the request it
had formulated”712. Mainly , throughout its letter, the Government mentioned the number of
total voters should exclude those deceased, those whose acts of identity had expired (512.379),
those who were resident abroad (4.775), those who had lost their Romanian citizenship (151),
those who had lost their right to vote (3.414), the mentally ill, who had lost their electoral rights
(199) and the persons with Personal Number Code corrections (349), thus reaching a total of
34.654 persons who should have been irradiated from the permanent electoral lists at the July
2012 referendum713.

710 Idem , p. 22.
711 In addition, the Ministry o f Internal Affairs also claimed, after having provided the Court with a number of
citizens enlisted on the permanent voting lists, that it cannot assume the veracity of that respective number. See
Ruling no. 6/21.08.2012 published in the Official Gazette o f Romania of Romania, Part I, no. 616/27.08.2012, p.
2.
712 Ruling no. 6/21.08.2012 published in the Official Gazette of Romania of Romania, Part I, no. 616/27.08.2012,
p. 4.
713 Idem , p. 3.

270 The Constitutional Court of Romania , however, by its plenum majority, dismissed these
numbers and found that the referendum was invalid because one of the prerequisites for its
validity had not been fulfilled , namely that of the 50% + 1 attendance. Consequently, the Court
invalidated the referendum, e stablished the cessation of Crin Antonescu’s interim in the office
of President of Romania and stipulated that Traian Băsescu would resume his office as head of
state714.
A separate opinion was formulated by judges Ion Predescu, Acsinte Gaspar and Tudor
Toader, who argued that “the persons who had lost their citizenship or their electoral rights,
those residing abroad and those with invalid identification papers should have been eliminated,
[finding] that the final data are likely to lead to the validation o f the referendum’s results”715.
As previously mentioned in the chapter on the Constitutional Court of Romania , Tudorel
Toader was proposed by the National Liberal Party and appointed by the Chamber of Deputies
in 2006 and again in 2007, Ion Predescu was sup ported by the Democratic Alliance of
Hungarians in Romania party and appointed by the Senate in 2004, while Acsinte Gaspar was
appointed by the former President of Romania, Ion Iliescu, in 2004. None of these judges were
supported by the President or by th e Democrat -Liberal, but neither was Aspazia Cojocaru, for
instance. Moreover, they were also in office during the 2007 precedent, when none of them
formulated a separate opinion. Contextually analyzed, in fact, their separate opinion is not so
much related to their political supporters or their former political activity, but with a particular
issue: the errata . The controversial document was allegedly formulated by judge Mihnea Ștefan
Minea716 and stipulated that the Romanian citizens living abroad were to be included in the total
number of voters, thus expanding the electoral threshold for the referendum’s validity – after
the Court’s plenum had already decided there were no legal grounds to determine the total
number of voters717. It was precisely these three judges: Tudorel Toader, Ion Predescu and
Acsinte Gaspar who claimed they had not been consulted about that respective errata , having
learned about its existence from the mass -media, and that such a document should not have
been adopted in the absence of th e Court’s plenum. As such, by challenging the legitimacy of
such a document, they maintained the electoral quorum had been met and that the July 2012

714 Idem , p. 6.
715 Idem , pp. 7 -8.
716 http://www.hotnews.ro/stiri -dosare_juridice -20924218 -dosarul -erata -ccr-privind -organizarea -referendumului –
din-anul-2012 -fost-clasat -parchetul -general.htm [accessed on June 25th 2015].
717 The number itself was contested on multiple occasions, by political parties and NGOs alike, while publ ic
institutions and authorities claimed different numbers should be taken into account. The legislative modifications
prior to the organization of the referendum, previously mentioned in this chapter, also contributed to the
controversy.

271 referendum for Traian Băsescu’s dismissal from office of President of Romania should have
been adopted.
Last but not least, the 2012 errata also constituted the grounds for a criminal
prosecution, the National Anticorruption Directorate having started an inquiry on this matter,
after receiving numerous notifications that questioned the legality of the manner in which the
constitutional judges had decided to invalidate the results of the 2012 referendum on Traian
Băsescu’s dismissal from office. The Prosecutor’s Office attached to the High Court of
Cassation and Justice interrogated judges Ștefan Minea, Augustin Zegrean, Tudorel Toader,
Acsinte Gaspar and Ion Predescu, as well as Toni Neacșu (former member of the Supreme
Council of Magistracy) and Horațiu Dumbravă (member of the Supreme Council of
Magistracy)718, without having charged any one of them of any specif ic crimes719. In April
2016, however, the case was closed.

6.10. PRELIMINARY CONCLUSIONS
On the whole, it appears that the role of the Constitutional Court of Romania in the
suspension procedures of the President is quite limited, given the mere advisory n ature of its
ruling on the matter. The founders of the first post -communist Constitution were not too keen
on the idea of having a supra -parliamentary body, one which could over -turn their decisions,
and so, they limited the effects of the Court’s powers. The optional nature of the advisory
opinion is an illustrative example in point. As previously mentioned, the Parliament may
disregard a negative advisory opinion issued by the Constitutional Court and continue the
procedures to suspend the head of state f rom office – and it has done so on both occasions
during Traian Băsescu’s consecutive terms of office, with the exception of Ion Iliescu’s case in
1994. The extent to which the 1994 Parliament did not wish to continue the suspension
procedures because they believed the Court’s decision was final and binding remains
questionable. Particularly since the latest example, in 2012, when the Constitutional Court of
Romania was set a deadline of only – less, even – 24 hours, has proven the Parliament considers
the advisory opinion on the matter of the President’s suspension from office as merely a
ceremonial step in its endeavor, and not as a phase with significant judicial effects.

718 http://www.cotidianul.ro/o -noua -audiere -in-dosarul -erata -263438/ [accessed on the 28th of June, 2015].
719 http://www.agerpres.ro/justitie/2016/04/08/parchetul -general -a-clasat -dosarul -erata -ccr–17-48-00 [accessed
on the 28th of June 2015].

272 In addition, the lack of a coherent and expressly stipulated theoretical framework on the
terms “serious offenses in violation of the Constitution” or “high treason”, enable a strong
parliamentary majority to speculate and, the very least, attempt to suspended the President of
Romania from office, particularly during periods of cohabita tion. As I have explained in the
previous chapters of this thesis, the Romanian cohabitation deviates from the usual norm and
is dysfunctional, leading on two occasions, to this point, to institutional blockages. Both of the
periods of cohabitation analyze d in my research have triggered the most extreme consequences
of divided government, namely the procedures for the suspension of the President. All three
cases in the Romanian post -communist history have been grounded on political statements and
public spe eches, pointing to the fact that the Parliament Members associate the idea of “serious
offenses against the Constitution” with a verbal dimension. Even if the Court did eventually
establish, in 2007, that the President of Romania enjoys the same immunity r egarding his
political speeches as Parliament Members do, the 2012 attempt of suspension from office
resumed the same practices and used extensive quotations from Traian Băsescu’s statements,
which it associated to various socio -economic and administrative crimes.
Nevertheless, political statement or speeches cannot be taken as public confessions.
They should not be presumed to be entirely true, either. A statement made on TV should not be
considered to be equal in value as one in front of a court of law, under oath. The grounds of any
such statement are too unstable to be seriously considered as authentic or in any case, to hold
the same force as an actual evidentiary support.
Still, while the content or the frequency of any suspension proposal cannot b e controlled,
the activity of the Constitutional Court is rendered futile under the current legislation. Its
jurisprudence and subsequent theoretical clarifications failed to change the verbal nature of the
allegations in the proposals for the President’s suspension from office. Its advisory opinion,
even if negative, is always subjected to interpretation and lack the necessary binding force to
be taken into account by the Parliament or to put an end to the procedures for the head of state’s
suspension from office. And, finally, the Court’s power regarding the ascertainment of the
circumstances justifying the existence of the interim in the office of President of Romania also
depends on the Parliament which, in this case, is the only authority which may requ est it.
All in all, as far as the last years have proven, the only actual authority by virtue of
which the Constitutional Court of Romania may influence the procedures for the President’s
suspension from office, is that regarding its observance of the pr ocedures regarding the
organization and holding of a referendum and the confirmation of its results. The 2012

273 referendum on Traian Băsescu’s dismissal from office of President of Romania is an example
in point, when the Constitutional Court invalidated its results by issuing a ruling contested by
many. Yet, unlike the optional nature of its advisory opinion, its rulings have a similar general
and binding force like its decisions and, as such, cannot be contested or disregarded by any
political parties. Also , these rulings reinstate the suspended President in office and terminate
the interim President’s mandate. The only problem is that this is the last phase of the procedures
for the suspension from office of President of Romania, and up to this point, the P arliament is
the only supreme authority that may decide on these matters, exclusively.
On this note, the role of a strong parliamentary majority is instrumental. In 2012, the
coalition of the Social -Liberal Union, and in 2007 the Social Democratic Party successfully
drafted the document for Traian Băsescu’s suspension from office of President of Romania and
then equally successfully initiated the procedures in order. Since in these first stages of the
suspension, the Parliament basically directs the Court ’s activity (for instance, it can set a
specific deadline for its pronouncement) and it can disregard its negative advisory opinion, the
parliamentary majority opposition is essentially directly responsible for advancing the
procedures on the President’s s uspension from office. In addition, a parliamentary majority can
also take certain adjacent measure, such as legislative changes – the 2007 and 2012 amendments
of Law no. 3/2000 on the referendum – replacements in important offices – the 2012 example
when both Vasile Blaga and Roberta Anastase were revoked from their offices as President of
Senate and President of the Chamber of Deputies, respectively – measures which further
contribute to the success of its attempted suspension of the President from offic e.
Last but not least, the constitutional judges are another important dimension of the
analysis in this chapter. If the 1994 and 2007 case studies did not provide for any peculiarities
in the Court’s acts, the 2012 case was marked by the separate opinion formulated by judges
Tudorel Toader, Acsinte Gaspar and Ion Predescu upon confirming the referendum’s results.
All three judges were connected and supported by the Social -Liberal Union, the initiators of the
attempt of suspension from office of the Presid ent of Romania. Apart from the apparent political
connection, their dissent was grounded on the errata issue – issue which later also constituted
the grounds for a criminal inquiry case, which was not closed until April 2016. Another counter –
argument to th eir supposed and often -times invoked political allegiances is that in the 2007
case, they did not formulate a separate opinion and agreed with the other judges. The extent to
which this final human factor may negatively contribute to the overall lacking ro le of the

274 Constitutional Court in what regards the President of Romania’s political accountability
remains uncertain.

275 CONCLUSIONS

Situated at the cross -roads between political science and law, the thesis on the role of
the Constitutional Court of Romania in solving the disputes between public authorities during
periods of divided government reflects this institution’s duality in several points.
First of all, this research is ascribed to the field of political science by th e theoretical
element of novelty it advances in the first chapter. Starting from Robert Elgie’s work on divided
government and cohabitation in particular, and after identifying a literature gap which did not
account for the Romanian cases of cohabitation, I decided to further elaborate his theory on
cohabitation and advance a typology of cohabitation. The main purpose of this typology was to
suggest that a different model of cohabitation – with different factors that contribute to its
emergence (only struct ural ones), different time and with a specific set of consequences – was
necessary. For the purpose of this thesis, which focuses on the Constitutional Court of
Romania ’s activity, I did not need to expand this typology and analyze other cases, although I
believe that a future comparative study between Romania and Lithuania, would be interesting
to test the extent to which my typology is applicable on a European level. This comparison
would also be possible because Lithuania also has a Constitutional Court , has experienced
periods of dysfunctional cohabitation when the President of Lithuania, Rolandas Paksas, was
not only impeached, but actually dismissed from office of head of state in 2004.
On the other hand, given its empirical focus on the Constitution al Court of Romania ’s
jurisprudence, this thesis can also be ascribed to the field of legal studies. I began my research
on the Constitutional Court of Romania during my MA studies, which also coincided with the
period during which I began to study at Law School. For this reason, I wanted my doctoral
thesis to combine both elements of political science and law, which is the main reason for which
I decided to study the Constitutional Court. However, the empirical analysis is not entirely made
from a legal pe rspective, but also includes elements of political science. Exemplary in this
respect are the consistent analyses of the political affiliations the parties involved in the Co urt’s
jurisprudence possessed.
In terms of structure, the present thesis was divided into two parts. The first part
advances the element of theoretical novelty, as represented by the typology of cohabitation I
proposed after a review of the literature on divided government and cohabitation. The second

276 part is dedicated to elements of empirical analysis. In order to test my typology and to illustrate
the reasons for which the term ‘dysfunctional cohabitation’ as I have explained it is more
appropriate to characterize the Romanian post -communist experiences with cohabitation, I have
chosen to examine the Constitutional Court of Romania ’s jurisprudence. The three dimensions
of my analysis correspond to the three chapter in this work, addressing the Court’s powers with
respect to a) the abstract constitutionality control of laws; b) the leg al disputes of a
constitutional nature; and c) its involvement in the procedures for the head of state’s suspension
from office, namely i) the advisory opinion on the proposal of suspension; ii) the ascertainment
of the circumstances justifying the existen ce of interim in the office of President of Romania;
and iii) the observance of the procedures for the organization and holding of a referendum as
well as the subsequent confirmation of its results. The last dimension of empirical analysis
involves, theref ore, three powers the Court exercises in this matter and which I considered inter –
dependent in the process of engaging the President’s political accountability.
In addition, two separate chapters contextualize my analysis: a chapter on the
Constitutional Courts in the former communist and post -Soviet countries and one on the
Constitutional Court of Romania . The Constitutional Court of Romania is examined in terms
of powers; organization; functioning and specific procedures; role among state powers; specia l
characteristics and judges. An element of novelty, in this section, was the database on
constitutional judges I compiled taking into account the following criteria: 1) the public
authorities that appointed them in office; 2) their educational background – both in terms of
level of education and in terms of institution from which they graduated; 3) their professional
experience (as judges/lawyers and prosecutors); 4) their academic activities, as the Fundamental
Laws enables both practitioners of Law as we ll as Professor to become constitutional judges;
5) their political affiliations prior to assuming the office of judge at the Constitutional Court
and 6) other relevant data – where I mostly noted their publicist ic activity, which I considered
an indicator of their preeminence in the legal field. This database was also used throughout the
chapters of empirical analysis, whenever the judges formulated a separate opinion, so as to
establish whether or not they could, indeed, be suspected of political and inst itutional
allegiances. The chapter on the Constitutional Court of Romania also included an extensive
section on this institution’s genesis, drawn from primary sources such as the transcripts of the
Constituent Assembly’s Debates in 1991. The idea behind my endeavor was to illustrate the
manner in which the institution of the Constitutional Court of Romania , on the whole, was
perceived at the moment of its inceptions and which were the reasoning s that determined its
configuration.

277 Similarly, the chapter on European Constitutional Courts aimed at providing a tool for
contextualizing the Constitutional Court of Romania . By using the indexing method, and after
studying the constitutional provisions of 27 states, I analyzed these institutions in terms of a)
number of judges; b) mandate of the judges; c) appointment procedures; d) special regulations
regarding the judges’ dismissal from office; and e) powers of the Court. The results of my
research in this chapter have pointed, on average, towards a certain model of institutional
design, model in which the Constitutional Court of Romania ascribes.
After studying the literature on divided government, particularly the works on
comparative politics authored by Robert Elgie, I found that none of the theories of coha bitation
provided a sufficiently satisfactory explanation of the Romanian case. In fact, Robert Elgie
himself and Iain McMenamin have admitted that the Romanian case appears as an exception to
their theory. Thus, starting from this literature gap, I formul ated a typology on cohabitation
which, from my perspective, expands the existent theoretical framework on this topic, while at
the same time accounting for the two case -studies post -communist Romania has provided until
the 2012 legislative elections.
Consequently, my method was a deductive one, which started from two actual cases,
namely the two periods of cohabitation in 2007 -2008 and in 2012. I outlined three dimensions
for this typology: 1) causes; 2) emergence; and 3) consequences. The typology on coh abitation
I advanced distinguishes between two categories: a) functional cohabitation and b)
dysfunctional cohabitation. The former is obviously specific and drawn from the existent
theories and literature – it is the typical form of cohabitation that emer ges in the aftermath of
the elections, in which the President and the Prime -Minister have different political affiliations
and, for this reason, their collaboration is susceptible to certain conflicts. On the other hand, the
latter form is not generated by the results of any election – neither presidential, nor
parliamentary – but is rather the result of a political coalition or alliance that can no longer
function. In 2007, the alliance between the Democratic -Liberal Party and the National Liberal
Party co rroded up to the point that Prime -Minister Călin Popescu Tăriceanu excluded from his
Cabinet the members of the Democratic Liberal Party. In 2012, the Social Democratic
Government members resigned over a conflict between Prime -Minister Victor Pont a and
President Traian Băsescu. Finally, the dysfunctional type of cohabitation also has certain
consequences, which I examined as they are reflected in the Constitutional Court of Romania ’s
jurisprudence: a) the increased number of abstract constitutionality control of l aws at the
President’s request; b) the increased number of legal disputes of a constitutional nature; and the
most extreme c) the President of Romania’s suspension from office.

278 The chapters on empirical analysis sought to illustrate precisely those conse quences of
the dysfunctional cohabitation and to examine the extent to which the Constitutional Court of
Romania plays any role in either alleviating or aggravating them. There were three chapters of
empirical analysis, each focusing on the three consequen ces specific to dysfunctional
cohabitation.
The first two chapters of empirical analysis started from a brief overview of each
relevant decision in the Court’s jurisprudence followed by a comparative analysis, whereas the
third, on the procedures for the President’s political accountability, employed the method of
case-study with regard to the 2007 and 2012 events, while presenting the case of Ion Iliescu’s
attempted suspension from office of President of Romania in 1994. The reason for which
Iliescu’s ca se was not taken into account for the purposes of this analysis is that it was an
unsuccessful attempt of suspension from office, as well as the fact that it did not occur during
cohabitation.
On this note, however, it should be emphasized that my analys is was not limited only to
the cases or to the jurisprudence that took place or which was formulated during periods of
cohabitation. Even though it was meant to portray the consequences of dysfunctional
cohabitation, its purpose was to highlight these effe cts by contrasting them precisely to those
periods of unified government which are so characteristic to the Romanian political arena. For
this reason, the chapters on the abstract constitutionality control of law at the request of the
President of Romania and on the legal disputes of a constitutional nature between public
authorities are based on the Court’s jurisprudence since 1992 and 2003, respectively, in so far
as other specific conditions – such as those regarding the author of the referrals to the Co urt,
the parties involved, their susceptibility to political affiliation, and so on – are complied with.
Also specific to the three chapters of empirical analysis is that they were drafted
according to a certain algorithm. Each chapter began with an over view of the methodology
used, of the sources, structure and its specific theoretical framework. Even if, broadly speaking,
these elements were mentioned in the introduction, I believe that every chapter had its special
characteristics that were worth outli ning. With regard to the theoretical framework, however, it
would have been impossible to summarize it entirely in the introduction, even more so because
the three dimensions of empirical analysis are different. Then, every chapter had a section on
the pro cedures upon notifying the Court, those during the debates (if any) and those after
pronouncement. These procedures, again, were specific to each power the Court exercises and
interesting to note. In order to make the comparative analysis more easily compr ehended, the
next section summarized the Court’s jurisprudence until 2012, by taking note of the following:

279 a) the authors of the referral; b) the constitutional provisions allegedly breached; c) viewpoints
expressed by the representatives of other public authorities; d) context; and e) the Court’s
ruling. The empirical analysis, on the other hand, comparatively analyzed elements such as: a)
the political affiliations of the public authorities’ representatives involved in those cases; b) the
public authorit ies involved; c) positions of the other public authorities notified by the Court; d)
duration of deliberation; e) frequency of notifications; and f) constitutional provisions allegedly
breached. The third chapter, on the procedures of suspending the Presid ent of Romania from
office is focused on the two case -studies of 2007 and 2012 and examined each of them in terms
of: a) suspension proposal documents; b) parliamentary debates; c) advisory opinion issued by
the Constitutional Court of Romania on the suspe nsion proposal; d) the Court’s ruling upon
ascertaining the circumstances justifying the interim in the office of President of Romania; and
e) the national referendum for the President’s dismissal – the Court’s confirmation of its results
as well as its ru lings on the inherent contestations.
The first chapter of empirical analysis dealt with the abstract constitutionality control of
laws, since 1992 until 2012. However, the decisions examined where only those in which the
author of the request for constitu tionality review was the President of Romania. My reasoning
was that presidential prerogative to send a law before promulgation to the Constitutional Court
of Romania , particularly after having previously required the Parliament to re -examine the
respectiv e law, implies not only that the head of state is challenging the constitutionality of that
respective law, but also the Parliament itself – or the Government, to a certain extent, in the
case of Emergency Ordinances.
The Court’s jurisprudence has also c ontributed to the literature in the field of
constitutionality control. A notable example is that of Decision no. 417/14.07.2005 published
in the Official Gazette no. 772/25.08.2005, in which President Traian Băsescu claimed that he
was entitled to send a law, prior to promulgating it, to the Constitutional Court as often as he
considered appropriate. On this occasion, the Court established that a law may be re -sent to for
constitutionality control, as long as “the criticized norms are different than those previously
subjected to constitutionality review”720.
Lastly, the force vested in the Court’s acts directly affects its role in solving the disputes
between public authorities. For instance, in the case of the abstract constitutionality control of
laws, as requested by the President of Romania, as well as in the case of the legal disputes of a
constitutional nature between public authorities, the Constitutional Court issues decisions,

720 Decision No. 417/14.07.2005, published in the Official Gazette of Romania No. 772/25.08.20 05, p. 2.

280 which produce erga omnes effects and are generally binding. Before the 20 03 revised
Constitution, however, the Court’s decisions in matters of the a priori constitutionality review
were limited, as the first post -communist Fundamental Law stipulated that the Parliament could,
by a vote of two thirds , overrule the Court’s uncons titutionality decisions and request the
President to promulgate the contested law in its same form. Given that only 2 such references
for constitutionality control were submitted to the Court before the 2003 revision, in practice,
this prerogative was neve r exercised. Yet, the idea that the Parliament, as the sole legislative
authority, could judge and decide on the constitutionality of its own acts undermined not only
the role and the power of the Constitutional Court of Romania , but also the idea of a rul e of law
state.
Which is precisely the situation of the Court’s role in the procedures for the President
of Romania’s suspension from office, where the Court’s advisory opinion can be taken or not
into account by the Parliament. In other words, the Parli ament initiates the procedures for the
President’s suspension from office, it votes whether or not to send it to the Constitutional Court,
the Constitutional Court, if notified, may issue a negative advisory opinion, but the Parliament
can still vote to co ntinue the procedures for the head of state’s political accountability by
appointing an interim for the office of President of Romania and by organizing and holding a
national referendum for the President’s suspension from office. In 2012, when Traian Băse scu
contested his suspension and asked the Court to establish the existence of a legal dispute of a
constitutional nature between him and the Parliament, he claimed that it is not normal that the
Parliament is both the prosecutor and the judge. In return, the representatives of the Parliament
argued that it is not the Parliament who accuses him of serious offenses in breach of the
Constitution, but a group of senators and deputies, and that the Parliament, by the vote of its
majority in a joint working sess ion, judges the seriousness of those alleged accusations.
However, I disagree with this perspective, because most of the times, the initiators of the
suspension procedures and those who accuse the President hold the majority in Parliament and
they even ask the members of their parliamentary groups to vote in favor of the suspension
proposal. Therefore, the parliamentary majority who initiated the proposal for suspension from
office also decides on whether or not the suspension from office procedures should be carried
on, even after a negative advisory opinion.
Furthermore , it should be emphasized that the conflicts brought to the Constitutional
Court of Romania are, essentially, political conflicts. In the case of the procedures for the
President’s suspensi on from office, the political dimension is self -explanatory: i) it entails the
President’s political accountability; ii) it has been invoked and supported by the parliamentary

281 majority in opposition to the party that supported the head of state; iii) regar dless of the Court’s
advisory opinion, the parliamentary majority can continue the procedures for the President’s
eventual dismissal from office – or otherwise put, the legal can be overruled by the political.
As such, in what regards the Constitutional Co urt of Romania ’s powers as stipulated by article
146 letter g), h) and i) of the Fundamental Law, the political dimension of the dispute between
the Parliament and the President of Romania trumps the legal implications, idea which is
ultimately reflected i n the optional nature of its advisory opinion.
In the case of the abstract constitutionality control of laws, the dispute between the
President and the Parliament has once again proven to be of a political nature. During the
periods of unified government, these cases were very scarce – 2 cases prior to Traian Băsescu’s
first mandate, when 22 such cases were registered. In addition, the laws contested by the
President were important and oftentimes political – such as the 4 contestations on Law no.
3/2000 on the organization and holding of a referendum, or the contestatio ns on the
administrative reform. Equally illustrative for the political dimension of these conflicts, from
the empirical analysis conducted in the fourth chapter of this thesis, were the view points
expressed by the representatives of the two Chambers of Parliament and of the Prime -Minister,
on behalf of the Government. On most occasions, during the periods of unified g overnment,
they agreed with the President’s claims of unconstitutionality, e ven if those contested laws were
issued by the Parliament. But during the two periods of dysfunctional cohabitation, 2007 -2008
and 2012, respectively, the Social -Democratic and the National -Liberal Prime -Ministers and
Presidents of the Chamber of Deputies and/or the Senate dismissed the President’s claims,
arguing in favor of the law’s constitutionality.
The Court’s decisions in solving the disputes of a legal nature between public
authorities, in so far as they were examined in this thesis, also appear to be regarding political
conflicts. Even if, according to the Court’s jurisprudence, the negative definition of a legal
dispute of a constitutional nature explicitly underscores that they are not political conflicts and
that the Court cannot decide on politi cal statements and opinions, the legal disputes of a
constitutional nature are still, essentially, the products of a political configuration at a giv en
time. For instance, during the 2012 conflict on whether the President Traian Băsescu or Prime –
Minister Victor Ponta should represent Romania at the European Council of June 28th-29th was
contrasted by the Prime -Minister himself with the previous politic al circumstances during
Traian Băsescu’s mandate when the National Liberal Prime -Minister Călin Popescu Tăriceanu
explicitly did not wish to attend these councils, and the Democratic Liberal Prime -Ministers
Emil Boc and Mihai Răzvan Ungureanu never attende d the European Councils, nor did they

282 express their wish to do so. He also stated that “this will not always be the case”. Indeed,
different political contexts and different politicians in office produce these legal disputes of a
constitutional nature. The ambiguity or the interpretation of the Fundamental Law is only an
instrument used to justify the natural attempts of a politician to attain more possesses in the
detriment of his/her opponent.
Therefore, what are essentially political conflicts, produce g eneral binding effects,
applicable to all future holders of a parliamentary/presidential/governmental mandate. To a
certain extent, the force carried by the Court’s decisions and rulings contributes to the further
clarifying these political disputes so tha t they may be avoided in the future, especially since the
Court’s jurisprudence constitutes and holds the force of a precedent, also taken in consideration
for its cases in the future.
Needless to say, in all cases, however, according to the general lega l norms, none of the
acts issued by th e Constitutional Court possess any retroactive effects. As such, even if the
Court is notified with a legal dispute of a constitutional nature, for instance, its ruling is not
applied but for the future.
The legal f orce which characterizes the Court’s decisions and rulings is an important
part of its authority. In cases of abstract constitutionality of laws, since the 2003 revision of the
Fundamental Law, the Parliament is obliged to amend or supplement the law decla red
unconstitutional before submitting it to the President of Romania for promulgation. Moreover,
the head of state is entitled to request the Court to verify that respective law’s constitutionality
once again before promulgating it, further ensuring that the Court’s decisions in this matter are
respected. In the case of legal disputes of a constitutional nature between public authorities, the
Court’s solution may be disputed or commented, but it is equally respected. And the rulings
issued in order after t he procedures for the observance of the organization and holding of the
referendum for the President’s suspension – even though quite controversial, as was the 2012
case – are also respected.
Hence it appears that the only are in which the Court’s author ity is challenged and even
overlooked is that of the advisory opinions on the proposals to suspend the President of
Romania from office. The non -binding force of the advisory opinion is the undermining factor
in this case. Not only is the Parliament enable d to continue the procedures for the President’s
suspension from office regardless of the Court’s negative advisory opinion but, as the latest
case in 2012 has shown, the Parliament’s request of the Court’s advisory opinion is merely
ceremonial. In order t o follow the procedures established by the Regulations on the Parliament’s
Joint Meetings, the Parliament required the Court to issue an advisory opinion on the proposal

283 to suspend Traian Băsescu from the office of President of Romania in less than 24 hour s, further
pointing to the ceremonial status of this act.
On the other hand, the last two advisory opinions issued by the Constitutional Court of
Romania have proven to be ambiguous. Not only were they heavily subjected to interpretation,
depending on the political interests of each party involved, but they did not expresis verbis
establish whether or not they were negative or positive. The only exception was the 1994
advisory opinion, which explicitly established that:
“the proposal for the suspension f rom office of Mr. Ion Iliescu,
President of Romania, presented to the Parliament of Romania by 167
deputies and senators, on July 4th 1997, is not grounded on reasons which,
according to article 95 of the Constitution, constitute a serious offense against
the provisions of the Constitution”721.
By contrast with the brief time -span for deliberation, the 2012 advisory opinion was the
most extensive. Across 30 pages, the Court extensively quoted from the suspension proposal,
commenting upon each of its 7 chapte rs – dismissing most of the charges, but also agreeing that
some were, indeed, breaches of the Constitution. Unlike the previous two advisory opinion, thi s
one also lacked the specific concluding statements , on which the Court usually states its
decision o n the matter at hand.
On the whole, the role of the Constitutional Court of Romania in solving the conflicts
between public authorities during periods of dysfunctional cohabitation resembles that of an
arbiter. However, its neutrality is challenged by th e manner in which the constitutional judges
are appointed, as well as by the fact that some of them had held political offices or were
members of a political party before assuming office at the Court. In addition, the Court’s
legitimacy rests upon the forc e of its acts , as previously explained and, to a large extent, upon
the manner in which the representatives of the public authorities understand to comply with its
decisions.

721 Advisory Opinion no. 1/05.07.1994 published in the Official Gazette of Romania Part II, no. 166/16.07.1994 ,
p. 4.

284
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297 APPENDIX 1. QUESTIONNAIRE WITH CONSTITUTIONAL JUDGE
MIHAI ȘTEFAN MINEA

1. What do you consider to be the main advan tages of the President of Romania’s
prerogative to notify the Constitutional Court on the constitutionality control of a law
before its promulgation?
According to article 146 letter a) the first thesis of the Fundamental Law, the President
of Romania is on e of the subjects who can notify the Constitutional Court in order to exercise
the constitutional control of laws, before their promulgation. The main advantage is that, in this
phase, the potential unconstitutionality vices of a law can be remedied before it is promulgated
and produces legal effects. Therefore, by the Constitutional Court’s decision, which establishes
the unconstitutionality of a legal norm, the constitutional court can eliminate these legal texts
from the judicial order, before the promul gation, publication and entry into force of the law.
Also, given the role of the President of Romania to watch the observance of the Constitution
and the proper functioning of the public authorities, as well as the fact that he is placed above
partisan pol itical disputes, it is an efficient tool so as to ensure the respect for the rule of law
state.
2. From your experience, how do you evaluate the Parliament’s reactions to the admission
decisions on the unconstitutionality of laws in the aftermath of the contr ol prior to
promulgation?
In the case of establishing the unconstitutionality of a law by way of the a priori control,
the Parliament is obliged to reexamine those respective dispositions, so as to bring them into
line with the Constitutional Court’s decis ion. The decision by which the unconstitutionality of
a law was found is communicated to the Presidents of the two Parliament Chambers and to the
Prime -Minister, in order to begin the procedure for the law’s reexamination, so as to comply
with the provisio ns of article 147 paragraph (2) of the Constitution. The Parliament does not
have a deadline set by the Fundamental Law, so as to bring into line the legal dispositions found
unconstitutional with the decision of the Constitutional Court. It is true there are norms that
establish certain deadlines in this regard, but they are norms with an infralegal character. For
instance, article 134 of the Regulation of the Chamber of Deputies, republished in the Official
Gazette of Romania, Part I, no. 481/28.06.2016 s tipulates the deadlines, rules and the procedure
to follow in the event the Court finds certain legal dispositions unconstitutional. Consequently ,
the Parliament has not always answered with the utmost celerity when it had to apply article

298 147 paragraph (2 ) of the Constitution, but even reiterated the same legislative solution found
unconstitutional in a new normative act. This situation was found by the Court, which observed
the unconstitutionality vice was taken over by a new law adopted by Parliament and it
established, by Decision no. 1018/10.07.2010 that the legislator’s adoption of norms contrary
to those established by a decision of the Constitutional Court, by which it tends to preserve the
legislative solutions affected by unconstitutionality vice, are in breach of the Fundamental Law.
However, there were situations when the Court found the Parliament put in line the
provisions of a law declared unconstitutional with the decision pronounced during the a priori
constitutionality control. Thus, in 2005 , the Court, having examined during the control started
by the notification formulated by the President of Romania the manner in which the Parliament
of Romania had put in line the provisions of the Law on reform in the property and justice areas,
as well as certain measures connected to the Constitutional Court’s Decision no.
375/06.07.2005, found that, by Decision no. 419/18.07.2005, this putting into accord had been
accomplished.
Taking into account the Parliament’s behavior following the adoption of dec isions of
admittance of the unconstitutionality of laws before promulgation, we estimate that it had acted
with relative promptness in compliance with the provisions of article 147 paragraph (2) of the
Constitution.
3. Studying the Constitutional Court of Rom ania’s decisions in the matter of the
constitutionality control of laws before their promulgation, I noticed that, oftentimes,
the Government, the Chamber of Deputies or the Senate do not communicate their
viewpoints at the Court’s request, according to th e procedures . What is your opinion
on this “ custom”?
Law no. 47/1992 on the organization and functioning of the Constitutional Court
provides the obligation that, in exercising its powers, it can request the authorities provided by
the law viewpoints on th e normative acts submitted to the constitutionality control. The
Constitutional Court’s request of viewpoints is mandatory, but their formulation by the
authorities is optional. Given the practice related to solving the files of the Constitutional Court
it may be found that the institutions whose viewpoints are requested are active, forwarding to
the Court, in most cases, their opinion on the unconstitutionality objections.
4. What are the main challenges you face in solving the legal disputes of a constitutio nal
nature between public authorities?
The exercise of this prerogative implies an involvement in areas oftentimes delicate,
which oftentimes imply a certain dose of political subjectivism on behalf of the institutional

299 acts, generated by the nature of the offices held. The constitutional judge, in exercising his
attributions, must place himself above any political conflict, analyzing the legal conflicts of a
constitutional nature in their institutional dimensions, respecting the criteria progressively
established in the Constitutional Court’s jurisprudence.
5. To what extent do you evaluate as efficient the Court’s decisions by which legal disputes
of a constitutional nature are solved?
In the aftermath of the Court’s exercise of the prerogative to solve the legal disputes,
given the fact that its decisions have a general binding character, the public authorities involved
in the conflict have conformed to those statuated by the decisions pronounced. Thus, for
example, the Prime -Minister conformed to the obliga tion to propose another person for the
office of Minister of Justice and the President of Romania did not refuse his proposal, as a result
of Decision no. 98/07.02.2008.
In another hypothesis, the Public Minister – the Prosecutor’s Office at the High Court
of Cassation and Justice followed the procedure pointed out by the Court through the decision
regarding the procedure to follow in the case of the requests regarding the prosecution of the
Government members and former members for the acts committed in th e exercise of their office
and which, at the date of the notification, were also deputies or senators, as a result of Decision
no. 270/10.03.2008.
6. Taking into account everything discussed so far on solving the legal disputes of a
constitutional nature betw een public authorities, do you believe the introduction of this
prerogative starting with 2003 was beneficial or not?
The constituent legislator considered opportune to introduce this new attribution in the
year 2003, attribution which has proven its effic iency within the young Romanian democracy
which was thus aided to evolve in the direction of consolidating the rule of law state. Therefore,
by Decision no. 6/11.11.1992, the Constitutional Court statuated that, by virtue of the
mentioned pri nciple, the Pa rliament does not have the right to interfere in the achievement of
justice. An interference of the legislative authority would put the judicial authority in an
impossibility to function, even if only regarding a certain category of causes and for a certai n
period of time, it would have as consequence the breaking of the constitutional balance between
these authorities.
The prerogative to solve the legal disputes of a constitutional nature was granted to the
Court by the constituent legislator in considera tion of its function as safeguard of the supremacy
of the Constitution and of the fact that it is the sole authority of constitutional jurisdiction in

300 Romania. In conclusion, we consider the introduction of this attribution has proven beneficial
for the Ro manian democracy.
7. In 2007, when Traian Băsescu’s suspension from office of President of Romania was
first attempted, the Court deliberated for 15 days. Then, in 2012, the Parliament gave
the Constitutional Court of Romania a deadline to issue the advisory opinion for the
suspension from office of President of Romania – a day – even less than 24 hours. How
did the Constitutional Court refer to such a short deadline?
The Constitutional Court decided to answer the Parliament’s request within the deadline
it had established, even though such a deadline was not expressly stipulated on a constitutional
or legal level , taking into account the special circumstances which were of a nature to affect the
stability of the constitutional architecture. Even though the pri nciple of loyal collaboration
between institutions was not respected by the Parliament, the Constitutional Court acted as a
responsible institution in a tensed political context that demanded special measures.
8. Also on the proposal of suspension from office of the President of Romania, the nature
of the advisory opinion, as act of the Constitutional Court, has enabled the Parliament
to disregard the negative advisory opinions of 2007, 2012 respectively, and to continue
the procedure for Traian Băsescu’s suspension from office. Do you consider sufficient
and opportune the consultative nature of these advisory opinions or would it be more
suitable they gain the same final and generally binding force of the other acts of the
Court? Why?
We consider that these advisory opinions should continue to be consultative, in what
regards their effects. Within the procedure stipulated by article 95 of the Constitution, what
must ultimately come first is the will of the people, expressed by referendum. Within t his
framework we must keep in mind that it is about a political accountability of the President of
Romania, which benefits from a legitimacy granted by free and fair elections, and that the final
decision must belong to the Romanian citizens with a right t o vote, expressed through the
mandatory referendum organized on the grounds of article 95 pa ragraph (3) of the Constituti on.

301