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2017 ROMANIAN PROTESTS
- A LEGAL AND AN OPEN GOVERNMENT PERSPECTIVE -
Luca Ciubotaru, May 2017
Cronology – 2017 (I)
18th
Jan.
Government passes an
Emergency decree modifying
the Criminal Code and
partially decriminalizing the
abuse of power and sends to
Parliament a draft bill
regarding the pardoning of
certain crimes.
The EO was
passed at 10
PM, again
without being
on the agenda
and it was
published at 1
AM in the night
in the Official
Gazette.
The Superior Council of
Magistracy and the
President of Romania
request the Constitutional
Court to solve a legal dispute
of constitutional nature
between Government on one
side and Parliament and
judicial power on the other
side
31st
Jan.
1st - 2nd
Feb.
8th
Feb.
After the Government
meeting, Ministry of Justice
publishes the two projects of
Emergency Ordinances
regarding decriminalization of
abuse of power and pardoning
certain crimes and announces
a public debate
The Government does not
publish the weekly agenda
and after rumors that two
ordinances will be added,
the President of Romania
attends and presides the
meeting.
3rd
Feb.
After massive
protests,
Government adopts
Emergency
Ordinance
no14/2017 to repeal
EO modifying
Criminal Codes
5th
Feb.
The Advocate of
the People
notifies the
Constitutional
Court to
adjudicate on the
constitutionality
of EO no
13/2017.
The President of the
Senate requests to
solve a legal dispute
of constitutional
nature between
Government on one
side and the Public
Ministry
(Prosecutor’s Office)
Cronology – 2017 (II)
21st
Feb.
The draft bill on the
pardoning of certain
crimes is debated in the
Senate. Ammendments
related to corruption
crimes are followed by
new protests.
February –
May
Minister of
Justice,
(Florin
Iordache)
resigns
The
Parliament
approves EO
14/2017 and
rejects the EO
13/2017.
8th
Feb.
CC rejects the
requests from
the Superior
Council of
Magistracy
and the
President of
Romania
CC rejects the
request from
the Advocate
of the People
as lacking on
object.
9th
Feb.
27th
Feb.
CC approves the
request from the
President of the
Senate and statues
that prosecuting the
adoption of
EOn°13/2017 does
create a legal conflict
of constitutional
nature
23rd
May
Deadline for the
Senate to vote for or
against the bill for
pardoning of certain
crimes, or it will be
tacit adopted.
Today
114 days of
#rezist protests
and civic
movement
against
measures that
weaken the rule
of law
25th
Apr.
ECtHR issues the
decision about the
conditions in the
Romanian
penitentiaries.
Romania has 6 months
to present a calendar
with adequate measures
Constitutional Court – “mixed feelings”
Decision n°63/2017 – nominal interpretation
of constitutional requirements for the
legislative delegation; EO n°13/2017 does not
create a legal conflict of constitutional nature
Decision n°68/2017 – substantive
interpretation of constitutional requirements
for the legislative delegation; the opportunity
of delegated legislation can only be
appreciated by Parliament; adopting legal
statues cannot be inquired by prosecutors or
checked by courts; prosecuting the adoption of
EOn°13/2017 does create a legal conflict of
constitutional nature
The Constitutional Court:
• protects fundamental rights
• in/validates laws
• arbitrates institutional
disputes between
powers of the state
Qui custodiet custodies?
Politization
of justice
Judicialization
of politics
Legitimac
y based
on
argument
s
Legitimacy
based on
votes
53.17%
64.10%
48.44%
39.49%
0%
10%
20%
30%
40%
50%
60%
70%
Presidential
elections in 2014
- 1st round
Presidential
elections in 2014
- 2nd round
Local elections
2016
Parliamentary
elections in 2016
(among the
lowest since
1990)
Turnover in the Romanian elections (%)
Governmental coalition formed of PSD (46%) and ALDE (6%)
Is there legitimacy?
Facts
76.29%
76.01%
65.31%
58.51%
39.20%
41.76%
39.49%
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
1992 1996 2000 2004 2008 2012 2016
Turnover in the parliamentary elections
since `92 (%)
Against a more general background
November 2015 – January 2017 technocratic government
• Creation of the Ministry for Public Consultation and Civil Dialogue – portfolio for access to
information, transparency monitoring, public consultation and participation, NGO policies;
• Doubled the number of datasets available on data.gov.ro (data about the European funded
projects, public procurements in the health system etc).
• Enabled citizens to see the execution of the budget for all the public institutions by launching
www.transparenta-bugetara.gov.ro
• Improved of the secondary legislation for FOIA and ran a first national monitoring of the
compliance of the public institutions with FOIA (more than 1700 institutions and over 34.000
entries monitored).
• Launch of the National Registry for Transparency of Interests (inspired by the european model):
www.ruti.gov.ro;
Maintaining a high standard
Despite some drawbacks, checks and balances are still
in place.
- Stronger civil society and
assertive diaspora
- Romania remains firmly in
favor of EU integration
- No extremist political
parties in public authorities
- Successful fight against
corruption at all levels
- Attempts towards
majoritarian decisions
- Weak political opposition
- Religious neutrality divides
the Romanian Constitutional
Court
External oversight still in place, albeit with mixed results
Thank you for your attention!
luca.ciubotaru1@gmail.com

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2017 Romanian protests - A legal and an open government perspective

  • 1. 2017 ROMANIAN PROTESTS - A LEGAL AND AN OPEN GOVERNMENT PERSPECTIVE - Luca Ciubotaru, May 2017
  • 2.
  • 3. Cronology – 2017 (I) 18th Jan. Government passes an Emergency decree modifying the Criminal Code and partially decriminalizing the abuse of power and sends to Parliament a draft bill regarding the pardoning of certain crimes. The EO was passed at 10 PM, again without being on the agenda and it was published at 1 AM in the night in the Official Gazette. The Superior Council of Magistracy and the President of Romania request the Constitutional Court to solve a legal dispute of constitutional nature between Government on one side and Parliament and judicial power on the other side 31st Jan. 1st - 2nd Feb. 8th Feb. After the Government meeting, Ministry of Justice publishes the two projects of Emergency Ordinances regarding decriminalization of abuse of power and pardoning certain crimes and announces a public debate The Government does not publish the weekly agenda and after rumors that two ordinances will be added, the President of Romania attends and presides the meeting. 3rd Feb. After massive protests, Government adopts Emergency Ordinance no14/2017 to repeal EO modifying Criminal Codes 5th Feb. The Advocate of the People notifies the Constitutional Court to adjudicate on the constitutionality of EO no 13/2017. The President of the Senate requests to solve a legal dispute of constitutional nature between Government on one side and the Public Ministry (Prosecutor’s Office)
  • 4. Cronology – 2017 (II) 21st Feb. The draft bill on the pardoning of certain crimes is debated in the Senate. Ammendments related to corruption crimes are followed by new protests. February – May Minister of Justice, (Florin Iordache) resigns The Parliament approves EO 14/2017 and rejects the EO 13/2017. 8th Feb. CC rejects the requests from the Superior Council of Magistracy and the President of Romania CC rejects the request from the Advocate of the People as lacking on object. 9th Feb. 27th Feb. CC approves the request from the President of the Senate and statues that prosecuting the adoption of EOn°13/2017 does create a legal conflict of constitutional nature 23rd May Deadline for the Senate to vote for or against the bill for pardoning of certain crimes, or it will be tacit adopted. Today 114 days of #rezist protests and civic movement against measures that weaken the rule of law 25th Apr. ECtHR issues the decision about the conditions in the Romanian penitentiaries. Romania has 6 months to present a calendar with adequate measures
  • 5. Constitutional Court – “mixed feelings” Decision n°63/2017 – nominal interpretation of constitutional requirements for the legislative delegation; EO n°13/2017 does not create a legal conflict of constitutional nature Decision n°68/2017 – substantive interpretation of constitutional requirements for the legislative delegation; the opportunity of delegated legislation can only be appreciated by Parliament; adopting legal statues cannot be inquired by prosecutors or checked by courts; prosecuting the adoption of EOn°13/2017 does create a legal conflict of constitutional nature The Constitutional Court: • protects fundamental rights • in/validates laws • arbitrates institutional disputes between powers of the state
  • 6. Qui custodiet custodies? Politization of justice Judicialization of politics Legitimac y based on argument s Legitimacy based on votes
  • 7. 53.17% 64.10% 48.44% 39.49% 0% 10% 20% 30% 40% 50% 60% 70% Presidential elections in 2014 - 1st round Presidential elections in 2014 - 2nd round Local elections 2016 Parliamentary elections in 2016 (among the lowest since 1990) Turnover in the Romanian elections (%) Governmental coalition formed of PSD (46%) and ALDE (6%) Is there legitimacy? Facts 76.29% 76.01% 65.31% 58.51% 39.20% 41.76% 39.49% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 1992 1996 2000 2004 2008 2012 2016 Turnover in the parliamentary elections since `92 (%)
  • 8. Against a more general background
  • 9. November 2015 – January 2017 technocratic government • Creation of the Ministry for Public Consultation and Civil Dialogue – portfolio for access to information, transparency monitoring, public consultation and participation, NGO policies; • Doubled the number of datasets available on data.gov.ro (data about the European funded projects, public procurements in the health system etc). • Enabled citizens to see the execution of the budget for all the public institutions by launching www.transparenta-bugetara.gov.ro • Improved of the secondary legislation for FOIA and ran a first national monitoring of the compliance of the public institutions with FOIA (more than 1700 institutions and over 34.000 entries monitored). • Launch of the National Registry for Transparency of Interests (inspired by the european model): www.ruti.gov.ro; Maintaining a high standard
  • 10. Despite some drawbacks, checks and balances are still in place. - Stronger civil society and assertive diaspora - Romania remains firmly in favor of EU integration - No extremist political parties in public authorities - Successful fight against corruption at all levels - Attempts towards majoritarian decisions - Weak political opposition - Religious neutrality divides the Romanian Constitutional Court External oversight still in place, albeit with mixed results
  • 11. Thank you for your attention! luca.ciubotaru1@gmail.com