09.10.2024

Constitutional democracy: a key to reading the CCR judgment no. 2/2024

At certain intervals of time, constitutional courts, supreme courts and international jurisdictions (e.g., ECHR, ECtHR, CJEU) issue rulings that arouse the interest of the general public, a situation that is an exception to the tranquility that derives from the legal technicality of the daily work of judges, less attractive to people who are not directly interested in a particular subject.

When such cases arise, as in the case of CCR Judgment No 2/2024[1], there are generally three broad elements on which the legal debate focuses: (i) the issuer of the judgment, (ii) the soundness of the reasoning and its legal validity, and (iii) the effects. The angles from which the analysis is carried out are and must be different, especially when one is looking for arguments to reach a conclusion, and not arguments to support a conclusion embraced before the reasoning was formed.

In the particular context of CCR Ruling No. 2/2024, the fundamental question whose answer must also be provided by arguments of constitutional law is the following: why will a particular citizen not be able to run in the presidential elections of 2024? The main task of providing an answer lies with the Constitutional Court and it is up to each individual to judge whether the arguments are convincing or not. But this judgment also depends on the key in which the CCR Judgment 2/2024 is read, and one of these keys is constitutional democracy. The ideas that I will present in the following are not a legal analysis, but are some thoughts based on concepts of constitutional law, which I will try to present avoiding specific jargon, with the intention of inviting reflection and with the hope that they may be useful to others interested in the subject.

CCR judgment No 2/2024 contains a reasoning that is specific to an intervention of last resort, as a last lever to protect the constitutional order. Many of the Constitutional Court's considerations explain the basic principles of how our community is organized. These are not philosophical ideas, but, being enshrined in the text of the Constitution, they are legal norms, i.e. binding rules of conduct. The specific feature of many rules in the Constitution is that they appear at first sight to be vague, as their content (i.e. the conduct to be followed) is not obvious at first reading of the text, but requires a broad process of interpretation. This kind of rules are called general principles of law: we are still in the presence of binding rules, but they have a special element - general principles of law indicate a goal to be achieved or a value to be protected and do not impose a particular solution in a particular case[2]. (3) that "Romania is a State governed by the rule of law", the Basic Law does not describe the Romanian State, but imposes a certain conduct (e.g., in a State governed by the rule of law, it is obligatory to respect the supremacy of the Constitution, respect fundamental rights, limit arbitrary power by a clear and predictable law, etc.)[3] These premises are also valid in relation to the concept of constitutional democracy, expressly mentioned in Art. (4) of the Romanian Constitution. Constitutional democracy designates the system in which power is exercised in this community. It is a system in which power belongs to the people, but it is exercised within the legal framework laid down by the Constitution and, as a rule, in an indirect manner, through the representative bodies[4] As guarantor of the supremacy of the Constitution, it is the task of the Constitutional Court to protect this system. Protecting the system is not an end in itself: the system of a constitutional democracy is designed to protect human freedom and dignity. In law, the concept of democracy is no longer limited to the mere idea of citizens' participation in the electoral process, but is "based on respect for the human being and the rule of law"[5]. An action that contravenes human dignity is (also) an anti-democratic act.

Starting from the rules in the fundamental laws, in particular those that take the form of principles of law, all constitutional courts have developed a conceptual arsenal that enables them to intervene and respond to more complex issues when they arise. Famous is the Weiss judgment of the German Federal Constitutional Court[6], when the constitutional court declared a judgment of the Court of Justice of the European Union to be inapplicable in Germany in order to defend the constitutional order, sending shock waves through the legal system.

The use by a constitutional court of innovative reasoning, based in particular on fundamental principles, with unpredictable effects and capable of calling into question rules and practices that have acquired a certain stability over time, should only be used in extremis, when there is a real danger to the value that the jurisdiction seeks to protect, with a very precise purpose, with due regard for proportionality and with a strong reasoning.

From a reading of CCR Judgment No. 2/2024, the idea seems to emerge that the constitutional jurisdiction felt the need to intervene in order to defend constitutional democracy, that is precisely to protect what I mentioned earlier is the very system of organization of the exercise of power, as this system results from the rules of the Constitution. If this is the aim, it appears to be a legitimate one.

It is no less true, however, that at least three aspects call into question the soundness of the mechanism used.

The first relates to the obvious broad interpretation of the conditions of eligibility. Any condition imposed on a fundamental right (the right to be elected) must be interpreted restrictively, because in the field of fundamental rights the rule is to recognize the right, not to make it conditional. Even if we were to accept that there is a constitutional anchor for the condition implicitly inferred by the Constitutional Court, however, the reference to the rule governing the oath of allegiance in the case of the President of Romania seems far too remote. Much stronger springs could have been found both in the Romanian Constitution and in the vast jurisprudence of the ECHR, which emphasizes that the right to elect is not unlimited. In any case, in order to defend constitutional democracy, I cannot resort to arbitrary action: I have to prove that the power I exercise (whatever the purpose may be) is itself framed by legal norms.

The second aspect relates to the extension of the Constitutional Court's jurisdiction[7] There is a natural tendency for the highest courts to extend their jurisdiction, more or less subtly, whether we are talking about constitutional courts or even the Court of Justice of the European Union. But the premise is that jurisdiction must be limited, not that it can be extended. The provisions of Article 146(f) of the Constitution (the basis of the CCR's jurisdiction) stipulate that the Court 'shall ensure that the procedure for the election of the President is observed'. The verb 'to ensure ' does not appear to have been chosen by the constituent legislature by chance. One can deduce an implicit limitation of the possibility of intervention by the Constitutional Court in the process of electing the President of Romania. The Constitutional Court must ensure that the democratic game respects the constitutional rules and refrain from developing new rules during the game.

The third point raised is the procedure used. If the idea of framing participation in elections by law lies behind the Constitutional Court's judgment, and the Court extends its jurisdiction to examine concrete actions of a candidate, then the Court should itself have acted according to the rules laid down in the Constitution. Even in order to defend the constitutional order, the Court cannot place itself outside this constitutional framework. Even if the legislature has not provided for an adversarial procedure (e.g., the possibility for a candidate to provide explanations to the Court on the challenge lodged), the Constitutional Court's previous practice has been that the right of defense must prevail in this type of procedure[8].

Read in the key of constitutional democracy, CCR Judgment No. 2/2024 seems to justify a legitimate aim that any constitutional jurisdiction could pursue in its capacity as guarantor of the supremacy of the Constitution, namely the protection of the fundamental values on which constitutional democracy is based. However, the means used are open to criticism from many points of view. Quite apart from any legal arguments that might be raised, one question that arises is whether the danger to constitutional democracy identified by the Constitutional Court is really so great as to justify a radical solution, legally based on the entire arsenal of fundamental constitutional principles.

An article signed by Constantin Cosmin Pintilie, Managing Associate - cpintilie@stoica-asociatii.ro - STOICA & ASOCIATII.

[1] Ruling No. 2 of October 5, 2024 on the challenge to the registration of the candidacy of Mrs. Diana Iovanovici-Soșooaca in the elections for the President of Romania in 2024, published in M.Of. No. 1003 of October 8, 2024.

[2] R. Dworkin, Taking Rights Seriously, Harvard University Press, Cambridge, Massachusetts, USA, 1978, chapter 3, The Model of Rules I, passim .

[3] In other words, the Constitution does not tell us how the Romanian State is, but how it should be.

[4] See art. 2 of the Constitution.

[5] I. Muraru, E.-S. Tănăsescu in I. Muraru, E.-S. Tănăsescu, Constituția României: comentariu pe articole, 2nd edition, C. H. Beck, Bucharest, 2019, p. 11.

[6] BVerfG, Judgment of the Second Senate of May 5, 2020 - 2 BvR 859/15 -, paras. 1-237, ECLI:DE:BVerfG:2020:rs20200505.2bvr085915.

[7] This issue has been extensively detailed in the separate opinion filed by Judg. Laura Iuliana Scântei.

[8] For example, Judgment No. 40 of November 7, 2000, published in M.Of. No. 622 of November 30, 2000, in which the Constitutional Court upheld an appeal and invalidated a candidate registered by the Central Electoral Office. On that occasion, the Constitutional Court emphasized the following: "although the provisions of Article 11 paragraph (3) of Law no. 69/1992 for the election of the President of Romania oblige the Constitutional Court to resolve the appeal within 48 hours of its registration (i.e., in the present case, no later than 2 p.m. on 2 November 2000), the Court considered that the above-mentioned legal regulation prevails over the above-mentioned provision, in the light of the guarantee, under Article 24 of the Constitution, of the right of defense, the imperative need to ensure that the candidate has the time necessary to take any steps necessary to remove the unfavorable evidence in the file".