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There is a judicial conflict between Parliament and ICCJ regarding establishment of five-judge panels, CCR says

 Romanian Constitutional Court (CCR) admitted 7 votes “for” and 2 votes “against” Prime Minister Viorica Dancila’s referral regarding the five-judge panel from the High Court: there is a conflict between the Parliament and the High Court, CCR sources told G4Media.ro. According to the cited sources, judges Livia Stanciu and Stefan Minea voted against the majority decision.

Today’s decision of the Constitutional Court is significant for Liviu Dragnea. He has repeatedly called on the Government to attack at the CCR the way in which the High Court constituted the five-judge panel that judges his appeal of the three and a half year sentence with execution in the fictive employment file at Teleorman Child Protection.

Constitutional judges have ruled that the High Court has been acting illegally since 2014, when it decided not to comply with the provision of Law 304/2004 on the composition of the five-judge panels. The normative act says that all five judges on the panel should be determined by random assignation, whereas the High Court decided that only four of them should be elected in that way.

Following today’s CCR decision, the High Court “will have to proceed immediately to the random assignment of all judges in the five-judge panels”.

The consequence of the decision will be that all the pending processes of the High Court five-judge panels will be resumed.

Moreover, those who have received final sentences in the High Court since 2014 will be able to attack them if they have not exhausted the extraordinary ways of attack provided by the Code of Criminal Procedure.

CCR has confirmed, by means of a press release, the following information:

“The Constitutional Court, by a majority of votes: Admitted the referral formulated by the Prime Minister of the Romanian Government and found a legal constitutional conflict between the Parliament on the one hand and the High Court of Cassation and Justice on the other hand, generated by the judgments of the governing body of the High Court of Cassation and Justice, starting with Decision no. 3/2014, according to which only four of the five members of the five-judge panels were randomly appointed, contrary to the provisions of Article 32 of the Law no.304 / 2004 on judicial organization, as amended and completed by Law no. 255/2013. The High Court of Cassation and Justice shall immediately proceed to the random assignment of all members of the five judge panels, in compliance with art.32 of the Law no.304 / 2004 on the judicial organization, as amended and completed by the Law no.207 / 2018 “, a statement of the CCRstates.

On 2 October, Premier Viorica Dancila complained to the Constitutional Court that there was a legal conflict between the Parliament and the High Court of Cassation and Justice regarding the way of forming the five-judge panels.

Liviu Dragnea repeatedly made this request. His trial has already been postponed twice. Dragnea has already been sentenced in a first instance to three and a half years in prison regarding the fictitious employment record of Teleorman Child Protection.

In the referral sent to the CCR Dancila affirms that the High Court has arrogated itself legislative powers by failing to immediately implement the provision in the new law on judicial organization, according to which the five-judges panels in the High Court are formed exclusively by random assignment of judges, without ex-officio judges.

Currently, there are two five-judge panels at the High Court(C5), one headed by High Court vice-president, Iulian Dragomir, and another headed by the interim head of the Criminal Section, Judge Sorina Mirela Popescu. These complements give final sentences to dignitaries (ministers, parliamentarians, etc.).

The panel that will give final judgment in Liviu Dragnea is lead by the deputy chairman of the High Court of Cassation and Justice, Iulian Dragomir, and considered to be a very tough one.

At the beginning of September, the High Court Governing Board considered the change in the composition of C5s following the entry into force of amendments to the law 304 on judicial organization (the first of three controversial Laws of Justice, modified by the PSD-ALDE Coalition ).

Under Law 207/2018 amending Act 304/2004 on Judicial Organization, the C5s are no longer run by ex-officio members, such as the High Court Deputy Chairman and Chief of the Criminal Division, but all judges in the panel are randomly assigned.

Th high Court’s governing board decided, however, that there is no need to change the composition of the C5s in 2018 because they were already chosen by the old law at the end of 2017. The old law said C5s are governed by ex-officio members, and the other judges are randomized at the end of each year for next year. For the year 2018, the composition of the C5s was determined by random assignment at the end of last year, on the old law, which provided that they were governed by ex-officio members. The ICCJ Governing Board decided that the composition of C5s will change only at the end of this year for 2019 when the new law will be implemented and all magistrates will be drawn and will no longer be members of the law.

The High Court of Cassation and Justice (ICCJ) is in an "unprecedented situation" where it has to explain why it applied the law "in both its letter and spirit," top court President Cristina Tarcea said during debates this Wednesday at the Constitutional Court regarding Prime Minister Viorica Dancila's notification of a constitutional legal conflict between Parliament and the ICCJ over the five-judge panel.

"I have to confess that the High Court is in an unprecedented situation where it has to explain the reasons why it applied the law in both its letter and spirit. Because the letter and the spirit of the law mean (...) observing the deadlines imposed by the law on someone with a particular obligation. Of course, whenever we talk of a legal conflict of a constitutional nature, we implicitly talk about loyal cooperation among authorities, but loyal cooperation among the authorities implies not only diligence in avoiding institutional gridlocks, but also correctness in citing and reading the law, and I am referring to citing and reading the legal texts in their entirety, and I also have in mind the corroborated presentation of the situations that may result from different, sometimes contradictory texts," Tarcea said.

The head of the supreme court said that although she did not make any reference to the capacity to pursue proceedings of the initiator of the challenge, "it seems a bit odd that, when a gridlock between two authorities is invoked, it's another authority that files this challenge."

The Constitutional Court of Romania discusses on Wednesday, in public session, Prime Minister Viorica Dancila's challenge regarding a constitutional legal conflict between Parliament and the High Court of Cassation and Justice in relation to the five-judge panel.

The government is represented by head of the Government's Secretariat General and former constitutional judge Toni Grebla, ICCJ - by the court's President Cristina Tarcea, and the Senate by Cristian Ionescu. The representative of the Chamber of Deputies is absent from debates.