The motivation of the Constitutional Court in the case of Șoșoacă was born very difficultly, with great tensions in the majority of five that made the decision, because it is impossible. Simply put, beyond all kinds of appreciations regarding the conduct, statements, and adherence of Mrs. Șoșoacă to the Constitution, the CCR does not explain and could not explain an inadmissible, unprecedented intervention in the electoral process.
The major vulnerability of the CCR decision in the case of Șoșoacă comes, what irony!, from the Kovesi case.
The CCR imposed on the President of Romania to sign the decree for the dismissal of Mrs. Kovesi, she went to the ECHR, which found that LCK suffered a disciplinary sanction without the possibility to challenge it in court, thus without the right to a fair trial.
Mutatis mutandis and abstracting from the names of the persons involved, the prohibition to run imposed on a person is a sanction, more than that, a restriction of a very well-regulated constitutional right.
It was established by a politico-judicial body, without any contradictory procedure to give the person the right to defend themselves, and, most importantly, without any recourse through which the sanctioned person could bring the case before the judiciary, that is, before a genuine court, as is the case with BEC decisions, which can be appealed in court.
We remember how the BEC considered that the USR-PMP-FD Alliance was not legally constituted and refused its registration for the European Parliament elections, and the court overturned the BEC decision and the alliance was registered.
What exactly the CCR verified is shown in Decision 17/2000. More precisely five articles from the Constitution:
- Art. 16 para. (3): Public, civil, or military functions and dignities can be held by persons who have only Romanian citizenship and domicile in the country;
- Art. 35:(1) Citizens with the right to vote who meet the conditions provided in article 16 para. (3) have the right to be elected, unless they are prohibited from joining political parties, according to article 37 para. (3).
- (2) Candidates must have reached, by the day of the elections, the age of at least 23 years old, to be elected in the Chamber of Deputies or in local authorities, and the age of at least 35 years old, to be elected in the Senate or as President of Romania."
- Art. 34 para. (2): The mentally disabled or mentally alienated, placed under interdiction, and persons convicted by final court decision to lose their electoral rights do not have the right to vote.
- Art. 37 para. (3): Judges of the Constitutional Court, the People's Advocate, magistrates, active members of the army, police officers, and other categories of public officials established by organic law cannot be part of political parties.
- Art. 81 para. (4): "No person can hold the office of President of Romania for more than two terms. These can also be successive."
What did the CCR judge in the case of Șoșoacă? "The Court will evaluate her conduct and public statements, as well as their constitutional effects," as stated in the reasoning.
Why can't she run for office? "It urges the changing of the democratic foundations of the state and the violation of the constitutional order. (...) it questions and disregards the obligation to respect the constitution through her discourse regarding the removal of an essential guarantee of the state's fundamental values and choices, namely the status as a member of the EU and NATO.
The Court notes that it concerns a systematic, persistent conduct intended to affect the constitutional foundations of the Romanian state, namely Romania's membership in Euro-Atlantic structures."
So Diana Șoșoacă was sanctioned for, practically, a thought crime, the sanction consists of restricting a constitutional right, without the right to defend herself in a judicial procedure and without any recourse against the sanction.
To admit such a thing means to validate the precedent that the ECHR has already sanctioned in the Kovesi case.
It is a terrible trap to judge the validity of this atrocious reasoning in relation to democratic standards through personalization, a judgment deeply affected by the, indeed, toxic identity of the main character.
If what 5 politically appointed individuals, in a decision without any recourse, pronounced without exercising even a minimal right to defense, has been found by a court following a process with all procedures and stages respected, we would be in a situation to be applauded.
As it is, we are in a huge abuse, copiously exploited electorally and opening a terrifying precedent. The CCR raises to a new level the arbitrariness and absolutism of an institution that has become an authentic cancer for Romania.
Tomorrow, another CCR, dominated by a majority with different interests, will be able to declare another candidate unconstitutional, will appreciate that the leader of protests like those in 2017 or someone who wants a referendum for monarchy has attacked the constitutional order.