As expected in the drastic polarization of Romanian society, everyone read in the Venice Commission’s opinion exactly what they wanted. Some announced Călin Georgescu’s definitive defeat, considering the clarification, from the very beginning, by the high authority that „it is not within the competence of the Venice Commission to enter into the specifics of the case or to examine the decision of the Constitutional Court of Romania.”
Others read nothing more, nothing less than a verdict of a coup d’état and started screaming on screens demanding „blood” from the Constitutional Court judge and rushing to the Court’s headquarters with a stack of petitions, only to leave after 3 hours with the great victory called a registration number. It’s a different story when you have a registration number, isn’t it?
Of course, compared to the delirium of the announcement that the Constitutional Court judges are being investigated by the International Criminal Court (specialized in genocide and war crimes), around 9,000 registration numbers are, metaphorically, from the open-plan ground floor.
In fact, the Venice Commission, like the ECHR, does not have the competence to annul a decision of the Constitutional Court. Even if many do not want to accept it, the decisions of the Constitutional Court cannot be annulled by anyone or anything. Only the Constitutional Court can change its practice in the next solutions on the same subject. Therefore, the statement that there are chances of a rerun of the second round after the opinion of the Venice Commission is a perfect nonsense.
Its purpose is clear. The drug of slogans has a limited effect, and people abhor losers. Călin Georgescu must project at least the illusion of victories, no matter how absurd the theories he relies on.
But that does not mean that the opinion is without value. It is of great importance because it sets some legislative standards to which the Romanian state must align.
On the one hand, there are recommendations that strictly concern the possibility of canceling elections, and they are common sense. Such a measure can only be a last resort for absolutely exceptional situations and based on clear and public evidence.
If clear evidence existed in November, we do not know, because it was not made public. And we do not know because either there was none at all, or the Romanian state exhibited the secrecy that characterizes it. Let’s remember how long military aid for Ukraine was kept secret.
On the other hand, there are also important recommendations not only for the electoral process but also for the role of the Constitutional Court in general.
The Constitutional Court has become a monster, the holder of absolute power associated with total immunity for votes and opinions.
And the worst part of absolute power is when the Constitutional Court becomes a kind of court, allowing it to restrict rights and freedoms, to judge intuitu personae, and to impose sanctions, as in the case of Kovesi or Șoșoacă, without a contradictory procedure in which the parties can defend themselves, present arguments and evidence, without an appeal.
These types of definitive decisions, pronounced by individuals with no form of legal responsibility for the solutions provided, and against which there is no appeal, represent a legal monstrosity. We overlook the irony that exactly those who now accuse it, with shouts and hands on their hips, fervently welcomed it in the Kovesi case. I have denounced this monster and fought it for years, including in the curses of today’s rebels.
The Venice Commission points out this aberration, the correction of which requires legislative solutions that the Commission indicates, not to be invented. In short, an appeal, a correct procedure based on evidence, in which the parties present their views and evidence.
Marcel Ciolacu promised these types of reforms after the Șoșoacă decision, but it did not go beyond statements. We will see to what extent he will be mobilized by the recommendations of the Venice Commission.
If this opinion has no effect on the annulment of the elections, it remains to be seen what effect it can have on the May 4th election.
Theoretically, it is possible for the Legislature to make the necessary changes urgently by then. Practically, it is unlikely that there will be the necessary political will.
The question is what could happen with a very likely candidacy of Călin Georgescu, if it is attacked at the Constitutional Court . The Venice Commission states that „a candidate who manipulated the elections can be excluded from the new election only if convicted criminally.”.
It is evident that a final judicial decision cannot be pronounced until April. But there may be other reasons for invalidating the candidacy, apart from the issue of election manipulation.
The Constitutional Court can, nothing prevents it, ensure a contradictory procedure, with evidence, with arguments, but of course, it cannot ensure an appeal.
Legally speaking, the Court is not legally bound by these recommendations, it is the supreme court in presidential electoral matters, by the current law and its own jurisprudence in the case of Șoșoacă.
Certainly, the decision will be much more difficult to make and under much greater pressure than last year, and it remains to be seen whether the Constitutional Court will show the same impermeability as in the case of CJEU decisions that contradicted the Constitutional Court or will comply.