Simple excess of skills or abuse of service at CCR?

Five judges of the Constitutional Court of Romania (CCR) declared on Saturday, October 5, 2024, that they were not satisfied only with the role of supervisors regarding the observance of the fundamental act of the state and decided to turn themselves into a mini-Parliament or rather in a small Grand National Assembly and to legislate new eligibility criteria for candidates in the presidential elections.

For the five magistrates, the clear eligibility criteria regarding the admissibility of submitting a candidacy for the position of president established by Law no. 370/2004 for the election of the President of Romania are not sufficient, and they decided, with the power conferred by the CCR, that it is necessary that any candidate for the supreme office in the state to respect the Constitution in force.

According to the reasoning of the decision by which the CCR invalidated the candidacy of Diana Iovanovici-Şoşoăca in the presidential elections, the right to be elected is not absolute and that, for the candidate for the supreme position in the state, it necessarily implies the "unequivocal" observance of the Constitution and democracy. The CCR showed that the person running for the Presidency of Romania must demonstrate responsible behavior, oriented towards supporting and defending constitutional values.

According to Decision 2/5 October 2024, the CCR specifies: "Any candidacy that, through the political program promoted and the position statements made, challenges the constitutional order, the fundamental options of the Romanian people and the requirements of democracy can and must be examined by the Constitutional Court in terms of verifying its constitutionality , when reporting the legal subjects provided by law. (...) Regarding the candidate for the supreme office in the state, the right to be elected necessarily implies the condition of unequivocally respecting the Constitution and having a constitutionally responsible conduct, capable of supporting the position to the President of Romania to ensure compliance with the Constitution. (...) The defense of democracy is also a condition to be able to run for the position of President of Romania. As the Court has shown above, as a general obligation, this is imposed on any of the citizens of Romania, however, for the candidates for the position of President, considering the constitutional role of the President of Romania and the content of the oath of allegiance regulated by the Constitution, it represents a condition essential intrinsic and substantive eligibility regarding the candidate for the position of President of Romania".

However, Law 370/2004 establishes the following eligibility criteria and conditions:

ART. 4 (1) In the elections for the President of Romania, candidates proposed by political parties or political alliances, established according to the Political Parties Law no. 14/2003, with subsequent additions, as well as independent candidates. Political parties and alliances can nominate only one candidate. Member parties of a political alliance that nominates a candidate cannot also nominate candidates separately. (2) Candidates proposed by political parties and alliances, as well as independent candidates, can only be submitted if they are supported by at least 200,000 voters. A voter can support more than one candidate.

ART. 27 (1) Candidate proposals for the election of the President of Romania shall be submitted to the Central Electoral Bureau, no later than 50 days before the date of the elections. (2) Proposals are made in writing and will be accepted only if: a) they are signed by the leadership of the party or the political alliance or their leadership, who proposed the candidate or, as the case may be, by the independent candidate; b) include the first and last name, place and date of birth, marital status, residence, studies, occupation and profession of the candidate and the statement that he meets the conditions provided by law to be a candidate; c) are accompanied by the declaration of acceptance of the candidacy, written, signed and dated by the candidate, by the declaration of assets, the declaration of interests, by a declaration on the candidate's own responsibility in the sense that he or she had the capacity of Security worker or of its collaborator, as well as the list of supporters, whose number cannot be less than 200,000 voters.

ART. 28 Persons who, on the date of submitting the candidacy, do not meet the conditions provided for in art. 37 of the Constitution of Romania, republished, to be elected or who were previously elected, twice, as President of Romania.

And the Romanian Constitution establishes:

ART.37 The right to be elected

- Citizens with the right to vote who meet the conditions set forth in Article 16 paragraph (3) have the right to be elected, if they are not prohibited from joining political parties, according to Article 40 paragraph (3).

- Candidates must be at least 23 years old, up to and including election day, to elected in the Chamber of Deputies or local public administration bodies, at least 33 years old to be elected to the Senate and at least 35 years old to be elected President of Romania.

That's it and nothing more. The essential intrinsic and substantive eligibility condition of unequivocally respecting the Constitution, defending democracy and maintaining responsible constitutional conduct, able to support the function of the President of Romania to ensure compliance with the Constitution, now requested by the five judges of CCR does not appear either in law 370/2004 or in the fundamental act of the country. Under these conditions, we reiterate the question from the last few days: what is the legal basis for rejecting the presidential candidacy of Diana Iovanovici-Soşoacă, as long as the legislation in force does not provide for the essential condition of intrinsic and substantive eligibility invoked by the CCR?

And related to this question, two more appear: Is the CCR decision erroneous? Did the judges who made that decision exceed their powers or are they politically motivated?