The sovereignist candidate Diana Sosoaca, censored by the Romanian Constitutional Court

On the date of October 5, 2024, the CCR decided regarding the appeal concerning case file no. 3043F/2024, registered one day prior.

Contestation, widely sanctioned by NGOs, politicians, and civil society, highlighting the criticisms raised by APADOR-CH, ActiveWatch, Expert Forumgenerate opinions from both sides of the aisle.

In this publication, we will explain why the decision is contrary to fundamental law, how it jeopardizes democracy, and ultimately, what impact it will have on Romania's investability for businesses worldwide.

For the purpose of facilitating the analysis, I have attached my opinion below, along with an additional comment:

Our Opinion (Video Format):

Brief contextualization of CCR Decision no. 2 from October 5, 2024

Before we analyze the decision, we consider it appropriate to delve into the substance of the issue, the responsibilities of the Constitutional Court, and what the Court could and could not do according to the law:

How is the Constitutional Court (CCR) regulated in Romania?

The Constitutional Court is an institution responsible for protecting the constitution and making decisions regarding its interpretation.

ARTICLE 142, Constitution
The Constitutional Court is the guarantor of the supremacy of the Constitution.

The Constitutional Court is composed of nine judges, appointed for a term of 9 years, which cannot be extended or renewed.

Three judges are appointed by the Chamber of Deputies, three by the Senate, and three by the President of Romania.

The judges of the Constitutional Court elect, by secret ballot, its president for a term of 3 years.

The Constitutional Court is renewed with one third of its judges every three years, under the conditions provided by the organic law of the Court.

The power of the Constitutional Court is expressly and restrictively established by law, with the CCR having, according to the constitution, the following responsibilities that are relevant in the case of Sosoaca:

ARTICLE 146, Constitution:

f) oversee the adherence to the procedure for the election of the President of Romania and confirm the results of the voting;

[...]

k) decides on the appeals concerning the constitutionality of a political party;

In exceptional cases for a court instance, the Constitution does not provide a means of appeal (nor does it establish the method for carrying out their activities, leaving this procedural aspect to the discretion of the legislator).

LAW no. 47 of May 18, 1992 then complete the Constitution, and specify the manner in which the Parliament elects the 6 judges of the Constitutional Court (3 for each parliamentary chamber), as well as how the judicial activity of the Constitutional Court will be conducted, which is notably distinct from that of common law courts.

Each Chamber of Parliament appoints, at the proposal of the Permanent Bureau and based on the recommendation of the Legal Committee, as a judge, the person who has received the majority vote of the present members.

The first signs of the vulnerability of the Constitutional Court are clearly visible, particularly in the fact that they are chosen by the political parties that held parliamentary and presidential control in previous years, and consequently, they are vulnerable to politicization.

In theoretical terms, even though the Constitution sets clear conditions regarding the experience of judges, it is difficult to equate this with their actual competence or their loyalty to the Constitution versus the individuals who elect them and grant them the power to decide:

ARTICLE 143 - Constitution
Judges of the Constitutional Court must have a higher legal education, high professional competence, and at least 18 years of experience in legal practice or in higher legal education.

According to the Constitution, their mandate is irrevocable, which means they cannot be "dismissed" in any form during the 9-year term:

ARTICLE 145 - Constitution
The judges of the Constitutional Court are independent in the exercise of their mandate and are irremovable during its duration.

The Law 47/1992 regarding the organization and functioning of the Constitutional Court stipulates that their mandate may cease under certain circumstances. We believe that these provisions are contrary to the constitution, as the law cannot limit or condition constitutional norms through additions, especially when they contradict the constitution:

Article 67, LAW no. 47 of May 18, 1992
The mandate of a judge of the Constitutional Court ceases:

a) upon the expiration of the term for which he was appointed or in the event of resignation, loss of electoral rights, exclusion by law, or death;
b) in cases of incompatibility or inability to exercise the function of judge for more than 6 months;
c) in case of violation of the provisions of Article 16 paragraph (3) or Article 40 paragraph (3) of the Constitution, republished, or for serious violation of the obligations stipulated in art. 64.

(2) Establishing the termination of the mandate, according to alin. (1) lit. a), se face de președintele Curții Constituționale, iar în celelalte cazuri, încetarea mandatului se hotărăște în plen, cu votul majorității judecătorilor Curții.

While Article 16, paragraph 3 and Article 40, paragraph 3 of the Constitution refer more to the formal conditions for being elected as a judge of the court (must be Romanian citizens residing in the country, and not be members of a political partyArticle 64 (which refers this time to the Organic Law) imposes the following obligations on the Judges of the Constitutional Court:

Article 64, Law no. 47 of May 18, 1992

The judges of the Constitutional Court are required to:
a) to fulfill the entrusted function impartially and in accordance with the Constitution;

b) to maintain the confidentiality of the deliberations and votes and not to take a public position or provide advice on matters within the jurisdiction of the Constitutional Court;

c) in adopting the acts of the Constitutional Court, they must express an affirmative or negative vote, abstention from voting is not permitted;

d) to inform the President of the Constitutional Court of any activities that may lead to a conflict of interest with the mandate they are exercising;

e) not to allow the use of the function I perform for commercial advertising or any form of propaganda;

f) to refrain from any activities or manifestations contrary to the independence and dignity of their position.

We can see that the legislator has attempted to condition and provide several mechanisms for the termination of the CCR mandate, within a self-regulatory system that, in our opinion, exceeds the constitutional framework, which clearly stipulates the immovability of judges.

Turning to the risks to democracy and the mechanisms to prevent them, we must note that the mechanism for selecting the country's supreme constitutional judges (at least from a constitutional perspective) is not unique in the world and is applied in many states.

Supreme Court of the United States

In the U.S., for example, judges Federal Supreme CourtThe ones responsible for interpreting the constitution are appointed by the President and confirmed by the Senate.

Although this system provides a certain level of political power control over the composition of the supreme court, it is balanced by several important guarantees:

1. Judges are appointed for life, which ensures their independence from subsequent political fluctuations after their appointment.
2. The Senate, sometimes dominated by opposition to the President, can refuse to confirm a candidate proposed by him if it believes that the candidate does not meet the necessary standards of competence and integrity.
3. The Supreme Court has a strong tradition of independence and a jurisprudence that has often imposed constitutional limits on the other branches of government, including the President who appoints the judges.

Even though in recent years we have seen controversies regarding their decisions, such as in the case of the annulment of the previous ruling generated by Roe vs Wadethese situations are rare and usually pertain to less significant political issues, not impacting the core of democracy.

It should be noted that this system, which requires the approval of the Senate as well as the President, somewhat complicates the appointment of hostile judges or those heavily influenced by politics, who, by the nature of their lifetime appointment, are accountable to no one. they can only be replaced after the death of one of the judgeswhich makes hostile takeover of this court difficult.

Constitutional Court in Spain:

Constitutional Court of Spaindefined in Title IX of the Spanish Constitution and governed by Organic Law 2/1979, is composed of 12 magistrates appointed for a term of 9 years, without the possibility of reappointment.

The process of appointing judges to the Court involves all three branches of government:

• 4 magistrates are appointed by the Congress of Deputies
• 4 magistrates are appointed by the Senate
• 2 magistrates are appointed by the Government
• 2 judges are appointed by the General Council of the Judiciary

The court is renewed with one third of the judges every 3 years, according to a predetermined schedule:

• First renewal: Government and Judicial Council
• Second renewal (after 3 years): Senate
• The third renewal (after another 3 years): Congress of Deputies

Over time, the law regulating the operation of the Constitutional Court (LOTC) has undergone various amendments, particularly to address the increasing volume of cases and to clarify or expand the Court's competencies. These changes have targeted, among other things:

• Extension of deadlines for filing with the Court (L.O. 1/2000)
• New rules regarding admissibility requests for amparo (requests for the protection of constitutional rights) and providing additional means to ordinary courts to address violations of fundamental rights (L.O. 6/2007)
• Instruments for executing court decisions (L.O. 15/2015)

Federal Constitutional Court in Germany:

Judges Federal Constitutional Court of Germany They are elected by the Bundestag (the German parliament) and the Bundesrat (a legislative body representing the 16 state governments at the federal level).

Each of these bodies selects four members for each Senate of the Court. The election of a judge requires a two-thirds majority, a requirement set by ordinary law, not by the Fundamental Law (the constitution).

The president of each senate is elected alternately by the Bundestag and Bundesrat, also with a two-thirds majority.

The procedure for electing judges was modified in 2015:

• Previously, the Bundestag delegated this task to a special committee (Richterwahlausschuss), composed of several members of the Bundestag. This procedure has been deemed unconstitutional by many experts.
• Since 2015, the Bundestag has directly elected judges by secret ballot in plenary sessions. To be selected, candidates must obtain:
  • A two-thirds majority of those present at the vote.
  • A number of votes in favor that constitutes an absolute majority of the total members of the Bundestag, including those absent.
• The election committee retains only the power to nominate candidates.

In the Bundesrat, where the governments of the 16 German states are represented (each state having between 3 and 6 votes depending on population, expressed en bloc), a candidate needs at least 46 out of 69 possible votes.

The mandate and conditions for judges:

• Judges are elected for a term of 12 years, but they must retire upon reaching the age of 68, regardless of the time served in their term.
• Re-election is not possible.
• A judge must be at least 40 years old and a well-qualified legal professional.
• Three out of eight members of each senate must have served as judges in one of the federal courts.
• The other five members of each senate usually have prior experience as university jurists, public officials, or lawyers.

After the end of their term, most judges withdraw from public life, with a few notable exceptions, such as Roman Herzogwho was elected president of Germany in 1994, shortly before the end of his term as president of the Federal Constitutional Court.

Among the other five members of each senate, the majority of the judges have previously worked as university jurists, public officials, or lawyers.

After the end of their term, most judges withdraw from public life. However, there are a few notable exceptions, the most remarkable being Roman Herzog, who was elected President of Germany in 1994, shortly before the end of his term as President of the Court.

Judgment of the Constitutional Court

Similar to the situation of common law courts, the Constitutional Court, as a form of exercising judicial power, can only rule within the limits permitted by law, this limitation being referred to as subject matter jurisdiction immediately.

This means that the courts cannot determine, for example, whether they can judge aspects that do not fall within their jurisdiction, such as in the case of Ms. Ivanovici Sosoaca, the assessment of her loyalty to the constitution.

This subjective judgment returns:

• Common law instances: Regarding the violation of criminal law by Ms. Ivanovici Sosoaca, which may consequently restrict her right to vote or to be elected.
• "Voting Instant" Regarding the violation of unwritten moral laws through various behaviors deemed unorthodox, immoral, or antisocial that are not punished by law.
  
  The judge of this "court" is precisely the citizens with voting rights, who can choose, through equal voting, who deserves and who does not deserve the position of president of the country.

Moreover, in addition to subject matter jurisdiction, another essential element is that the court can only rule on what it has been invested with, a principle known asNot beyond what is requestedwhich is based on continental law (civil law), underpinned by public international law and relates to the principle of availability.

In the case of the Constitutional Court, the situation is somewhat nuanced by the fact that the constitution stipulates that cases submitted to the Constitutional Court cannot be withdrawn by the petitioner, as adherence to the constitution is a matter of public order.

Even so, the law clearly stipulates the conditions for referring cases to the Constitutional Court, conditions without which the court could not rule.

These mechanisms serve a dual purpose: first, to prevent the undue burden on the Constitutional Court, and second, to limit the power of the Court, ensuring it does not become an authority that can make discretionary decisions without direct democratic oversight regarding the direction of the country.

So, the first step that any court takes is to verify its material jurisdiction and the correct referral, if it is provided by law, or in this case, the constitution.

This aspect is important because the Constitutional Court can indeed be notified regarding the constitutionality of a political party, but ONLY if this is done through legal channels, namely:

Article 39, LAW no. 47 of May 18, 1992
The Constitutional Court rules on challenges regarding the constitutionality of a political party.
(2) The challenge regarding the constitutionality of a political party may be submitted by the president of either Chamber of Parliament or by the Government. The president of the Chamber can only submit the challenge based on a resolution adopted by the Chamber with the majority vote of its members.
The appeal must be substantiated and accompanied by the evidence on which it is based.

Unlike the previous situation, where we believe the law has improperly annulled or tempered the immovability of the judges of the Constitutional Court (albeit in a manner favorable to democracy), in this case, the law has merely established the procedural means of operation of the Constitutional Court, an aspect that the Constitution leaves to the discretion of the legislator and the Constitutional Court.

However, we can see that in the situation of the decision made by the majority of the Constitutional Court, although they remind of the unconstitutionality of certain political opinions of candidate Sosoaca, they refuse to declare the party constitutional, precisely because the law does not allow them to do so.

Thus, the CCR was required to limit itself precisely to the verification provided by point f of Article 146 of the constitution:

The Constitutional Court [...]: oversees the adherence to the procedure for the election of the President of Romania and confirms the results of the ballot.

Citing from the official CCR website, accessible here:

While the information available on the institution's website serves merely as a Codex of legislative information, which alone becomes mandatory for the Constitutional Court, what is immediately apparent is that if there are other grounds for oversight, they remain unclear and entirely unpredictable for citizens.

The laws of a democratic state must be predictable, easy to understand, and accessible to everyone. Just as it is the obligation of all to respect the law, it cannot be interpretable only by legal experts; it must be information that is digestible by anyone.

While it is normal for courts to handle exceptional situations in an exceptional manner, those situations should not turn from clarifications into amendments of the law.

Judge's Opinion in Dissent - Ms. Laura Iuliana Scantei

The minority judge also discusses this aspect, explaining, among other things (gathering the information highlighted by the dissenting judge), that:

The Constitutional Court is called upon to oversee, by fulfilling certain effective duties, express and restrictive provisions set forth by the legislatorin accordance with the procedure for electing the President of Romania, [...]

The Court's competence concerns the fulfillment by candidates of the substantive and formal conditions to be elected as President of Romania, in relation to the contested decision of the Central Electoral Bureau.

The constitutional jurisdiction in electoral matters does not carry out a subjective litigationbecause it does not aim to protect the subjective rights of specific individuals, which is why the procedure before the Court for resolving disputes regarding the registration or rejection of candidacies is conducted under the provisions of Article 52 of Law No. 47/1992 on the organization and functioning of the Constitutional Court and Article 68 paragraph (1) of Law No. 370/2004 for the election of the President of Romania, without notifying the parties, with the mandatory participation of the representative of the Public Ministry, based on the notification and the other documents in the file.

The Court's role is to verify the fulfillment or non-fulfillment of certain objective legal conditions. (for example, compliance with the deadline for submitting the candidacy proposal, the minimum number of supporting signatures, the documents that must accompany the candidacy proposal, any cases of disqualification provided by the Constitution and law, when submitting the candidacy).

In essence, these conditions I do not consider the behavior, opinions, statements, or attitudes of the person applying for the election of the President of Romania under the conditions stipulated by Article 27 of Law no. 370/2004, as all these subjective aspects fall within the realm of the freedom of expression of those who are candidates.

The sanctioning of violations of the limits of freedom of expression is the result of judicial procedures provided by law, under the responsibility of other state institutions, following a judicial process, and is not an expressly recognized duty of the Constitutional Court in overseeing the compliance with the procedure for the election of the President of Romania.

We can only align ourselves with the correct interpretation of the Constitution, which correctly states that it is not the role of the Constitutional Court to rule on the moral legitimacy of Ms. Ivanovici Sosoaca.

This also highlights the absence of a constitutional prohibition, which is necessary in advance to disqualify a candidate from voting (for example, in cases where they have committed an offense that includes the complementary penalty of being prohibited from voting and being elected):

The constitutional and legal prohibitions mentioned above do not apply to the individual whose candidacy for the presidential elections in 2024 has been contested in Case No. 3043F/2024, as there is no definitive court ruling prohibiting this person's right to be elected that has been submitted to the case file.

The harsh criticism of the amendment to the law generated by the CCR decision:

In the absence of any of the expressly provided cases in the Constitution or by law, as mentioned above, we believe that, through the interpretation of its own jurisdiction, the Constitutional Court cannot establish new eligibility conditions whose non-fulfillment, as directly determined by the Court, would lead to a prohibition on candidacy.

This concludes by bringing criticisms regarding the fairness of the process, which, once transformed into a subjective process that establishes restrictions on individuals' rights, must comply with certain standards imposed by law, the constitution, and the treaties to which Romania is a party, for example, the ECHR:

The majority's decision transformed the objective electoral dispute provided by law into a subjective electoral dispute by taking on the verification of the behaviors, actions, and statements of a candidate for the office of President of Romania.

This conversion was not accompanied by the specific guarantees of the right to a fair trial: ensuring adversarial proceedings, ensuring the right to defense for the person whose unconstitutional behavior is being evaluated, and ensuring a procedure for the administration and contestation of evidence/solutions.

If this point is valid, since everyone deserves the right to a fair trial, which includes their right to be consulted, to challenge the evidence and documents presented, and ultimately to ensure all procedural guarantees regarding the rights of those accused.

While the opposing judge bases their arguments on aspects related to the fundamental principles of the rule of law and justice, the majority recalls several subjective aspects arising from documents submitted (somehow) before the Constitutional Court, which it has acknowledged, without (obviously) allowing Ms. Ivanovici Sosoaca to analyze them or provide counterarguments regarding their legitimacy:

Majority Opinion

To simplify the reading of this Resolution, I have divided it into paragraphs to create a summary. To minimize the impact of subjectivity, I used AI in summarizing the resolution and removed critical opinions regarding the resolution provided by the AI model:

1. Paragraphs 1-4: These paragraphs establish the procedural framework for the appeal.
   
   It is noteworthy that The resolution procedure is conducted without notifying the parties.only with the participation of the representative of the Public Ministry, according to Article 52 of Law no. 47/1992 and Article 68 paragraph (1) of Law no. 370/2004.
   
2. Paragraphs 5-17: These paragraphs present the arguments of the first challenger, Amalia Bellantoni.
   
   This suggests that from the Constitution "additional conditions" for candidates "can be inferred," an unconventional legal approach. The challenger refers to constitutional articles such as art.1 para.(1), (3) and (5), art.2, 80, 91, 148, and 149, attempting to construct a framework for evaluating candidates based on broad interpretations of these provisions.
   
   An interesting aspect is the argument that Romania's status as a member of the EU and NATO should influence the eligibility criteria for the presidential office, representing a significant expansion of the traditional interpretation of eligibility conditions.
   
   1. Attendance at a reception at the Russian Embassy in 2021:
      It is remarkable that the challenger considers this diplomatic act to be incompatible with the presidential candidacy. An unusual approach is interpreting attendance at a diplomatic event as an indicator of constitutional loyalty.
   2. The incident involving the Italian journalists:
      The complainant presents an incident in which Ms. Șoșoacă was allegedly involved in a dispute with foreign journalists. It is noteworthy that this personal incident is being used as an argument against her eligibility for a public office.
   3. Pro-Russian and anti-Western statements:
      An interesting aspect is how the candidate's political opinions are presented as potential violations of constitutional duties. This raises questions about the boundary between political freedom of expression and a candidate's constitutional obligations.
   4. Participation in events organized by the Embassy of Russia following the outbreak of the war in Ukraine:
      It is noteworthy that these participations are presented as evidence of a political orientation incompatible with the presidential office, suggesting a direct link between foreign policy choices and constitutional eligibility.
   5. Controversial legislative proposals:
      The complainant mentions legislative proposals by Mrs. Șoșoacă, including one regarding the annexation of certain Ukrainian territories. An unusual approach is the presentation of these legislative initiatives as evidence of constitutional violations.
   6. Allegations of collaboration with foreign secret services:
      It is remarkable that alleged connections to foreign intelligence services are being discussed without providing concrete evidence. This approach raises serious questions about the standard of proof required in such challenges.
   7. Speeches in the European Parliament:
      The complainant cites speeches by Mrs. Șoșoacă in the European Parliament, interpreting them as anti-Western. It is noteworthy how statements made in a democratic forum are presented as potential grounds for disqualification from a presidential candidacy.
   8. Public behavior considered aggressive:
      There are mentioned incidents in which Mrs. Șoșoacă's behavior has been described as aggressive. An interesting aspect is how these personal incidents are connected to the ability to fulfill the presidential role.
3. Paragraphs 18-22: The arguments of the appellant Mihai Gheorghe Ursa
   
   These paragraphs present the arguments of the second challenger. It is noteworthy that he attempts to link the constitutionality of the party proposing the candidacy to the eligibility of the candidate.
   
   An unusual approach is the suggestion that a political party that does not comply with certain constitutional provisions should not be allowed to propose candidates for the presidency.
   
4. Paragraphs 23-24: Connecting files
   
   Although seemingly a routine procedural matter, the consolidation of files has significant implications. It is noteworthy that this decision allows the Court to examine a broader range of arguments against the candidacy in a single ruling. This approach could influence how the Court cumulatively assesses the arguments presented.
5. Paragraphs 25-30: Establishing the competence of the CCR and presenting the eligibility conditions
   
   In this section, the Court establishes its jurisdiction and presents the eligibility criteria. An interesting feature is the distinction the Court makes between formal and substantive conditions. It is noteworthy how this distinction is used to suggest a broad interpretation of the eligibility criteria, beyond those explicitly mentioned in the law.
6. Paragraphs 31-41: Argumentation regarding constitutional values
   
   The court develops an extensive argumentation on constitutional values, democracy, and the rule of law. An unusual approach is the emphasis on Euro-Atlantic integration as a defining element of Romanian democracy.
   
   It is remarkable how the Court links these values to the eligibility criteria for the presidential office, even though this connection is not explicitly mentioned in the legislation.
7. Paragraphs 42-48: Interpretation of the presidential oath
   
   This section presents perhaps the most controversial part of the ruling. It is noteworthy how the Court deduces new eligibility conditions for candidates from the president's oath. An unusual approach is the transformation of a post-electoral act (the taking of the oath) into a pre-electoral eligibility criterion.
8. Paragraphs 49-57: The competence of the Constitutional Court to verify the constitutionality of candidacies
   
   The Court justifies its extensive competence to verify the constitutionality of candidacies. It is remarkable how the Court interprets its own competence, extending it beyond the simple verification of legal conditions.
   
   An interesting aspect is the argument regarding the necessity of a "constitutional filter" in the electoral process.
9. Paragraphs 58-62: Analysis of the conduct of Mrs. Diana Iovanovici-Șoșoacă
   
   In these paragraphs, the Court examines the conduct and public statements of the candidate.
   
   It is noteworthy that the Court engages in an assessment of a candidate's political behavior, an unusual approach in the context of eligibility verification.
10. Paragraphs 63-65: The conclusion and decision of the Constitutional Court
    
    The court concludes that Mrs. Șoșoacă does not meet the new eligibility criteria established in the ruling. It is noteworthy that the decision is based on criteria that are not explicitly provided in the electoral legislation.
    
    An unusual approach is the cancellation of the candidacy registration based on these new criteria.

Opinions expressed in the public domain

Opinions of popular AI models in the market:

Below, I have decided to provide both the "neutral" and detached opinions on the most popular AI models, along with the prompt used for each of them.

I used the standard Chat options on 09.10.2024, for the Claude 3.5 Sonnet models, respectively ChatGPT o1-preview.

I used the AIStudio version (Temperature 0) because the version through the "gemini.google.com" platform generated hallucinations.

Opinions of NGOs:

Numerous NGOs have launched principled criticisms regarding how the Constitutional Court has exceeded its authority in a clearly erroneous ruling.

Opinions of public figures:

The original variants can be accessed using the links mentioned above.

Opinions of Legal Professionals

Former Judge Cristian Danilet condemns the CCR's decision

Lawyer Silvia Uscov recalls a book by a former Constitutional Court judge:

The perspective of former Constitutional Court Judge Augustin Zegrean:

Other relevant articles with expert opinions:

The opinions of the main candidates in the Romanian presidential race:

Similarly, the links under each image can be used to consult and verify the official source of the information, as is standard practice with any news article.

Mr. Marcel Ciolacu's opinions:

Mr. Mircea Geoana's opinions:

Ms. Elena Lasconi's opinions:

Mr. George Simion's opinions:

Mr. Nicolae Ciuca's opinions:

Furthermore, Nicolae Ciuca creates a video in which he harshly condemns the CCR's decision, considering it an assault on democracy, and blaming the PSD for the decision, as they chose a majority of the CCR judges responsible for it.

Ms. Diana Sosoaca's opinions:

Additional documents and information:

Below, we have several samples and information that have been cited in the article or are relevant to its substance.

CCR decision, link and downloadable version:

To facilitate information sharing, I have attached the decision in image format, along with original version available here, or in copy, here (if it disappears, somehow):