The Ministry of Justice emphasized on Wednesday that none of the provisions of the package amending the Justice laws "ignores" the binding character of the rulings of the Constitutional Court of Romania (CCR).
The Ministry issued a statement with a series of clarifications after accusations were launched in the public space claiming that the draft laws are "retrograde" and that the removal from the bill on the magistrates' statutes of the possibility of subjecting them to disciplinary sanctioning for non-compliance with the CCR decisions, while giving preference to the enforcement of a mandatory provision of EU law would violate national sovereignty.
The Superior Council of the Magistrates (CSM) approved by a vote of 13 to 6 the bill on the statutes of judges and prosecutors (294 articles), the bill on judicial organization (159 articles) and the bill on the Superior Council of the Magistrates (96 articles), the release mentions.
"From none of the provisions of the three bills does it result that the mandatory nature of the CCR rulings is being ignored, no provision stipulates their optional nature. The provisions of Art. 147 paragraph (4) of the Constitution remain untouched. The bills do not regulate the relations between the Constitution of Romania and the European Treaties, but have a completely different purpose and regulatory content," the cited source said.
According to the Ministry, the provision of the law in force according to which the judge should be liable to disciplinary sanctions in case of non-compliance with a CCR decision is "redundant" and "lacking logic" in relation to the mandatory nature of other sources of law.
"For a judge, all sources of binding law are and remain binding, and the judge must have complete freedom and independence in interpreting, harmonizing, removing them (in case of conflict) and applying them," the statement explains.
On the other hand, the Ministry of Justice maintains that providing that the judge should be liable to disciplinary sanction if they do not apply a (mandatory) decision of the CCR is tantamount to the regulation according to which a judge is liable to disciplinary sanction if they fail to apply an equally mandatory legal provision or other source of binding law (a decision of the Court of Justice of the European Union or a decision of the European Court of Human Rights, for example).
"Yet this is precisely the reason for the construction of the entire chapter on disciplinary liability in the bill, which includes no less than four articles, the particularization of disciplinary misconduct by referring only to the CCR rulings leading to a wrong conclusion and an interpretation contrary to the purpose pursued by the legislator," argues the Ministry.
According to the cited source, Romania has "sovereignly" joined or decided to be part to the European Treaties, and numerous CJEU decisions "clarify harmoniously, logically and clearly" the correlation between domestic law and European law "even for a reader who is no law specialist".
The Constitution of Romania, argues the Ministry, ensures the necessary legal framework for the observance of the principle of the supremacy of EU law through the provisions of Art. 11 paragraph (1), according to which "the Romanian state undertakes to fulfill exactly and in good faith the obligations deriving from the treaties it is a party to", and of Art. 148 para. (2), according to which "as a result of the accession, the provisions of the EU constitutive treaties, as well as the other binding community regulations have priority over the contrary provisions of the internal laws, in compliance with the provisions of the act of accession".
The Ministry adds that, pursuant to Art. 148 para. (4) of the Constitution, the Parliament, the President of Romania, the government and the judicial authority guarantee the fulfillment of the obligations resulting from the act of accession and from the provisions of paragraph (2).
"The jurisprudence of the European Court of Justice (CJEU) crystallized the principle of the supremacy of EU law over the law of the member states, a principle that derives from the fact that the EU Treaties have established their own legal order with the consequence that the member states, through their authorities - regardless of whether they belong to the legislative, executive or judicial power - cannot ignore a rule of EU law in order to give priority to a national rule, regardless of its (even constitutional) nature," the statement further explains.
The Ministry of Justice points out that it is easy to conclude that there is a direct and subtle connection between Union law, national law and national sovereignty, given that Union law can only arise from the manifestation of the national sovereignty of the member states, as states organized on the principle of legality and the rule of law, therefore based on constitutionality and national legality, guaranteed by an independent judiciary, Agerpres.
Through the Union law and the European Union construction, national sovereignty finds, on a higher level, the expression of the fulfillment of one of its major roles - guaranteeing the rights and freedom of national citizens, and their prosperity.
"This is why, in conclusion, upon careful examination, the concerns of those who fear that sovereignty would be diminished by valuing the Union law in the correct relationship with the national law, as enshrined by the Union treaties, are not only unjustified, but stand at a lower level of ambitions, expectations and fulfillment of the rights and freedoms of our citizens, although they claim the opposite. The superior expression of the development of the guiding and fundamental principle in state construction, the principle of national sovereignty, is its free development and manifestation, as the state institutions manifest themselves effectively in a European concert, within the European Union," the Ministry points out.
Judge Gabriela Baltag, a member of the Superior Council of the Magistrates, argued last week in the Council's plenary sitting that the changes brought to the Justice laws can become "mechanisms of pressure" on the magistrates, adding that she has never set eyes on "more retrograde laws".
Baltag declared that she will cast a "negative" vote on the bills amending the Justice laws, because she "does not see any progress", but on the contrary - "the concentration of power in the hands of a small number of people".
Comentează