Is the Romanian Constitutional Court an ‘activist’ court?

In the following sections, I argue that the Romanian Constitutional Court, after a long period of restraint (1992-2012), became more and more activist, but not always consistent with its own case law.

3.1 The Romanian Constitutional Court's design - brief overview

Following the demise of the communist regime in 1989, Romania, like all the other countries of Central and Eastern Europe (CEE), proceeded, with more hesitant steps than other countries in the region, on the path of democracy. After an enthusiastic revolutionary start, shadowed by the turmoil of the years 1990-1991, when democratic values were put at risk by political uncertainty and by the miners’ riots against anti-communist protesters, the situation settled with the adoption, in December 1991, of the new Constitution, which established, among others, the Constitutional Court. Romania was thus part of the ‘third wave’ of constitutional review enshrined in transition democracies.^[394] Among the reasons for adopting the Kelsenian model of constitutional review, to the detriment of the American model (which had existed in Romania between 1912 and 1940) were the distrust in the judiciary, too often identified as faithful to the former communist power,^[395] but also the will to break with the communist past and to join the European organisations (Council of Europe and European Union). A constitutional court was seen, as in the other countries in the region, as a part of the ‘passport’ necessary for the ‘return to Europe’.

The RCC was established by the 1991 Constitution in a separate title (Title V), as an independent institution, outside the judicial system.

At first, during the transition period, the RCC was seen as a ‘negative legis­lator’, as it had mainly the power to review legislation - both by means of abstract and concrete review, with a mission to correct and adapt the legislation to the new political context. The Constitution also gave the Court limited power of electoral and political parties’ review, as well as an advisory power in relation to the political liability of the head of state. In 2003, by constitutional amendment, it was added to the Court’s power to solve ‘legal conflicts of a constitutional nature’^[396] and to review international treaties and agreements. In 2004 and 2010, two additional

When activism takes the wrong turn 131 powers were introduced by the organic law: the power to review the laws on constitutional amendments after the final adoption by the Parliament and the power to review the constitutionality of parliamentary resolutions, other than the chambers’ Standing Orders (which were already under the Court’s jurisdiction).

3.2 Politicisation of the Constitutional Court: Crisis and beyond

The RCC was, at the beginning, a revolutionary court, both literally and figura­tively: literally, as it was established by a post-revolutionary Constitution and it was a departure from the concept of constitutional review that existed in Romania before the totalitarian era; figuratively, the Court started to be revolutionary in some of its early decisions, but not as activist as the Hungarian or Polish courts of the same period (1992-1999).^[397]

In 2000, the RCC revolutionised the Romanian ordinary courts’ approach towards human rights and the Strasbourg case law, by taking ECtHR judgments more into account.^[398]

This approach did not, however, increase the activism of the Court in respect of human rights, but it managed to increase the awareness of the ordinary courts regarding the European Convention on Human Rights.

As mentioned above, in 2003, the Court received, by way of constitutional amendment, a power that passed unnoticed at the time, but became a ‘revolu­tionary’ power over the years: the power to solve legal conflicts of a constitutional nature between public authorities. This power allowed the Court, especially in the last five years (2017-2021), to become more and more involved in politics, showing an ‘activism’ that took a different turn than one should expect from its declared role as ‘guardian of the Constitution’ and guardian of the rule of law.

In this context, it must be mentioned that independence of the judiciary from political and other interests has been a recurring issue in the debate about Romania’s EU adhesion and, after 2007, EU membership. In 2006, the European Commission established a monitoring mechanism, the ‘Cooperation and Verification Mechanism’ (hereinafter CVM), which is focused on two main issues: strengthening the inde­pendence of justice and increasing the fight against corruption. In the Commission’s reports issued within this mechanism, the RCC is deemed to be one of the paragons of independence and the rule of law. For example, whereas in the European Com­mission’s reports of 2010, 2011 and 2012, the RCC was scarcely mentioned, in the reports of 2013, 2014 and 2017, it suddenly became a central figure:

While the Constitution and the Constitutional Court’s role and decisions have been respected, commitments regarding the independence of the judiciary and regarding the response to integrity rulings have not been adequately imple­mented. [...] What is important is that the process of constitutional reform pro­gresses in full respect of fundamental values such as respect for the rule of law and the separation of powers.

(CVM Report on Romania, January 2013)

The Constitution and the Constitutional Court are at the heart of the rule of law. [...] The [Constitutional] Court will continue to have a key role in defending key principles like the separation of powers, including any future discussion on Constitutional change.

(CVM Report on Romania, January 2014)

Throughout 2016, the judiciary (represented by the High Court of Cassation and Justice and the Superior Council of the Magistracy) and the Constitu­tional Court continued to support judicial independence as institutional actors contributing to the balance of power.

(CVM Report on Romania, January 2017)

A change of heart occurred in the recent years, especially starting with 2017, when the government changed after the general elections of 2016 and the new political power started an offensive against the independence of the judiciary and the anti-corruption measures. Thus, in the more recent report of 2018, the actions of the RCC were seen as affecting the irreversibility of the fight against corruption:

At the same time as the legal amendments [on the laws of the judiciary, n.n.], specific decisions have underlined the consequences of the concentration of power in the hands of the Minister of Justice. This was the case first with the dismissal of the Chief Prosecutor of the National Anti-Corruption Directorate (DNA) at the request of the Minister of Justice. In a first stage, the President of Romania rejected the proposed dismissal, in line with the negative opinion of the Superior Council of the Magistracy. However, a Constitutional Court Decision in May on the dismissal procedure reinforced the trend of increased power for the Minister [.]. These developments also have consequences for the irreversibility of the fight against corruption.

(CVM Report on Romania, November 2018)^[399]

Finally, in 2019, the Commission explicitly said that:

The Constitutional Court rulings directly impact ongoing high-level corrup­tion cases, entailing delays and restarts of trials, and have allowed the re­opening of several final cases, under certain conditions.

(CVM Progress Report on Romania, October 2019)

How did the RCC become, from an institution placed on a rule-of-law pedestal, one whose certain actions endanger the very values that it was defending a few years ago?

The constitutional crisis that took place in the summer of 2012 ‘raised the Constitutional Court to a position of influence and public visibility that it had never before enjoyed’. Nevertheless, even then, the RCC has not acted in a completely politically free and objective manner. Therefore, the powers by which the Court exercised a certain judicial control of the political power has frequently had a ‘boomerang’ effect, generating the struggle of the political forces to subdue the independence of the Court by using different means of pressure.

Formally, there are some constitutional and legal guarantees of the independence of RCC judges towards political authorities which appointed them: irremovability, impossibility of term renewal, disciplinary autonomy, certain incompatibilities established by the Constitution and by the organic law. However, even if there would be a suspicion of lack of impartiality, according to the organic law, constitu­tional judges cannot be recused and may not abstain from judging a case.

The political influence starts, as in many other countries, with the appointment process. The appointing authorities are, like in most Kelsenian constitutional review systems, the chambers of parliament and the head of state. However, as the constitutional requirements are rather loose and there is little transparency in the choice of candidates, conflicts frequently took place in respect of the election of judges. In the Parliament’s chambers, no supermajority is required for electing constitutional judges: the chambers elect the judges with absolute simple majority (half plus one of the total number of members).

The recurring political fights for the appointment of constitutional judges created around the Court a suspicion of partiality (that, despite the obligation of inde­pendence and impartiality, there are ‘teams’ within the Court, serving the interests of the political majorities who appointed them). Unfortunately, the Court did not always act so as to refute this suspicion and sometimes it became an instrumenta­lised organ.^[402]

This tendency manifested especially when the Court exercised its ancillary powers, because they bring the Court in closer contact with the political institutions. From the perspective of the whole Romanian constitutional judicial culture, ‘in spite of its post-2003 gain in influence, prerogative and Westernization, the RCC does not appear to have acquired the essential features of a credible judicial culture’.^[403]

Controlling the other state powers gave the Court the incentive to become a distinct branch of power itself, interfering with its role of neutral arbiter. Even when reviewing legislation, the Court frequently exceeded its competence and openly interfered with the legislative power, thus trespassing its own limits of an independent ‘negative’ legislator.

In the following sections, I will briefly examine how the RCC recently mani­fested its ‘activism’^[404] in decisions that distorted the balance of state powers, informally amended some constitutional provisions and even interfered directly with the exercise of certain state powers, such as the judiciary.

3.3 Activism in the constitutional review of legislation and of constitutional amendments

Abstract review of legislation is considered the most ‘politicised’ type of constitu­tional review within the Kelsenian model.^[405] Within its abstract review powers, the RCC can be addressed with an ‘objection of unconstitutionality’ of a law before promulgation, by authorities from all branches of power: the President of Roma­nia, one of the presidents of the Chambers of Parliament, the High Court of Cassation and Justice (hereinafter HCCJ), at least 50 deputies or 25 senators, and by the Ombudsman. However, in the last few years, decisions issued in the con­crete review of legislation, i.e. by means of the referral of unconstitutionality,^[406] had an impact on the judicial activity and became an example of RCC activism taking the wrong turn.

After the already famous decisions from the 2012 constitutional crisis, especially the ones regarding the referendum law,^[407] the RCC adopted a more moderate approach in exercising its constitutional review powers (2013-2017). The context of the recent changes was the coming to power of a new political majority and the intensification of the attempts to weaken the judiciary and especially the fight anti­corruption. The main legislative initiatives of the new political majority in this direction were important changes to the Criminal Code (especially related to the ‘neutralisation’ of corruption offences),^[408] to the Code of Criminal Procedure and, most importantly, to the laws on the organisation of the judiciary. For space rea­sons, I will only quote a few relevant examples of the approach of the RCC to these legislative changes. One of the techniques used by the Court in its most recent case law, ‘in order to achieve specific targets’,^[409] [410] is the modulation of the effects of its own decisions, ‘in a manner that obliges the legislator to adopt spe­cific laws, practically as drafted by the Court’.³ For example, in Decision 466/

2019, the Court stated that the challenged legal provisions had already been declared unconstitutional by the Court, and therefore ‘the margin of appreciation of the Parliament [to adopt a new law] is limited, because the legislator is com­pelled to re-analyse the normative substance of the law exclusively to bring it in line with the decision of the Court’. Therefore, the only choice of the legislator is to draft the new law as instructed by the RCC and thus transform the Court into a positive legislator. The decision concerned, inter alia, the articles from the Crim­inal Code on the abuse of office, a frequent corruption offence in Romania.

In a similar ‘activist’ manner, through Decisions 874/2018, 220/2019 and 55/

2020, the RCC interfered with the judicial power. In the first two cases, regarding the Code of Civil Procedure and the Code of Criminal Procedure respectively, the Court expanded the effects of its previous decisions with a retroactive effect, thus interfering with the outcome of pending cases before ordinary courts. In Decision 874/2018, the Court even ‘declared unconstitutional’ an interpretative decision of the HCCJ, an act which is not under its jurisdiction, while in Decision 26/2019, the Court decided that pending criminal cases on corruption offences must be reviewed if the evidence had been gathered by targeted surveillance, because such means of surveillance cannot be used in ordinary criminal procedures, but only in matters pertaining to national security.

In the same vein, in Decision 55/2020, by declaring unconstitutional an article from the Law on National Security, the Court practically removed from hundreds of criminal files the evidence collected with the help of the technical surveillance of the intelligence service, even though such surveillance had been ordered by a judge. At the same time, the Court stated that similar recordings, if taken by means of private individuals, are allowed as evidence, ‘because the Code of Crim­inal Procedure (CCP) does not prohibit them’ [N.B. the CCP did not prohibit the abovementioned ones either]. Two judges, L.-D. Stanciu and E.-S. Tanasescu, wrote a very well-documented separate opinion, in which they said, firstly, that ‘it is out of our understanding why the text that provides the use as evidence of recordings made by the authorities that perform duties regarding intelligence col­lection is unconstitutional [... ] whereas the text that provides the use as evidence of recordings made by private parties or any other persons is constitutional’. Moreover, the dissenting judges rightly emphasized that the decision exceeds the jurisdiction of the Court and interferes with the jurisdiction of the ordinary courts, as well with the competence of the legislator.^[411]

3.4 Activism in solving conflicts between authorities

As neither the Constitution nor the organic law defines them in any way, the RCC established that its power of solving conflicts between authorities is circumscribed to the following requirements: the ‘conflict’ should be of a legal nature; the con­flict should have a constitutional basis. As regards the contents of the conflict, the Court defined it as the existence of: ‘acts or actions by which one or more authorities arrogate powers, attributions or competencies which, according to the Constitution, belong to other public authorities, or the omission from the part of some authorities, by means of declining their competence or of refusing to carry out certain acts within their competence’ (Decision 144/2005), or ‘any legal con­flict situations born directly from the constitutional text’ (Decision 901/2009).

These types of decisions not only brought the Court into the centre of political fights, but also enable us to detect the main directions in which the Court’s acti­vism was headed in the last five years: dismantling the powers of the President of Romania and interfering with the activity of the judiciary. Also, in this context, as stated by E.S. Tanasescu, ‘the RCC has gradually embraced a populist agenda in the area of criminal repression of corruption’.^[412]

One of the first controversial cases was the conflict between the Prime Minister and the President from June 2012, over the participation at the reunion of the European Council. In a highly controversial decision, the Court decided in favour of the President, arguing, inter alia, that ‘taking into account that these [meetings] entail conclusion of treaties on behalf of Romania, the participation of the head of state, which has the power to conclude treaties in this field, is needed’. However, as it was pointed out in the scholarship:

Are acts adopted by the European Council ‘international treaties’? And also, even supposing that on the occasion of a European Council meeting a treaty is signed by the States’ representatives, [...] that act is not an act of the Eur­opean Council (and even not of the Union itself). Significant examples are international agreements concluded by eurozone members. On the other hand, acts adopted by the European Council under simplified revision proce­dures (Article 48 TEU) are by no means (classic) international acts.^[413]

This decision is a part of the series of RCC decisions that enhanced presidential powers between 2009 and 2012.^[414] Arguably assuming Maurice Duverger’s defi­nition of semi-presidentialism (which is not widely accepted in today’s constitu­tional scholarship, being considered outdated^[415]), the Court has interpreted constitutional text so as to increase presidential powers:^[416] in the silence of the text, the Court ruled that the president has the right to refuse only once, by reasoned decision, the proposal of the Prime Minister to appoint a minister on a vacated ministerial post and also that the president may refuse only once the appointment of a magistrate proposed by the Superior Council of Magistracy (whereas usually the head of state power to appoint judges is only formal).

This favourable attitude towards the presidential powers dramatically shifted in 2017, due to a completely different political context and under a completely dif­ferent political majority (including within the Court itself). The Court started to gradually diminish the presidential powers, in a series of decisions ruling upon ‘legal conflicts of constitutional nature’, by discovering such conflicts where they did not exist or by reinventing existing interpretations of the Constitution.^[417]

Thus, in 2019, the Court found that there was a ‘legal conflict of constitutional nature’ as a result of the refusal of the President of Romania to revoke a few ministers and to appoint ad interim ministers at the proposal of the Prime Minis­ter, in the circumstances of a governmental reshuffle. During the reshuffle, a change of the political composition of the Government occurred, due to the withdrawal from the Government of one of the parties from the majority coalition. As the Constitution requires that, in such a case, the Prime Minister should seek the approval of the Parliament, the President did not appoint the suggested ad interim ministers. Although the Court stated that there was no legal conflict of a constitutional nature, it still required the President to ‘immediately give a written and motivated answer’ regarding the refusal to appoint ad interim ministers. In the same decision, the Court ruled that there was such a conflict due to the refusal of the President to revoke the reshuffled ministers and that the President is obliged to issue the decrees of revocation. This, too, was a case of political conflict and not a legal one, as stated by the dissenting judges, E.S. Tanasescu and L.D. Stanciu.⁴

Perhaps the most famous and controversial decision on constitutional conflicts from the last five years was Decision 358/2018, by which the Court ordered the President of Romania to issue a decree on a particular matter involving the judi­ciary - i.e. a decree dismissing the chief prosecutor of the anti-corruption office. The procedure was initiated by the Minister of Justice, who, according to the law on judicial organisation, had to request the advisory opinion of the Superior Council of Magistracy (SCM) before submitting the proposal to the President of Romania. The SCM gave a negative opinion and the President, upon receiving the proposal, refused to dismiss the chief prosecutor. The Prime Minister then addressed the RCC with a request to solve a constitutional conflict between the Minister of Justice and the President, as a result of the President’s refusal. Although the appointment and dismissal of chief prosecutors is not a power of the President established by the Constitution, but by an organic law, and thus the case did not fit in its own defini­tion, the RCC decided that it was still a ‘constitutional conflict’. In doing that, the Court argued that the administrative litigation courts do not have jurisdiction in this case, although the refusal of the President had an administrative nature. In doing this, the Court practically ‘established that a minister enjoys greater discretionary powers than a directly elected President of the republic’^[418] [419] [420] and, as a result, drastically diminished the powers of the President by ordering him to issue the dismissal decree (which he did in July 2018). This decision was considered ‘a turning point in the functioning of the political regime in Romania: while the guardian of the Constitu­tion has, apparently, trespassed its boundaries, the President of Romania remained compliant with the principles of the rule of law’. ⁴ The decision is also part of the ‘rollercoaster’ case law regarding the powers of the President of Romania: from the increasing of these powers via the decisions from 2009-2012 to a dramatic decreasing via the case law of 2018-2019.

Decision 358/2018 had another - unexpected - outcome, this time at the Eur­opean Court of Human Rights. The dismissed chief prosecutor, Laura-Codruta Kovesi, complained to the Strasbourg Court for the violation of her rights to a fair

When activism takes the wrong turn 139 trial and of freedom of expression, because she had no possibility to intervene and defend herself in the dismissal procedure (as the RCC ruled that the administrative courts were not competent in the case) and because the decision of her dismissal was taken on grounds of her opinions and not for professional faults. The Eur­opean Court found in favour of the applicant on both complaints and, in the part concerning the alleged violation of Article 6 of the Convention, it held that:

in the absence of domestic case law examples of similar cases and in view of the binding and specific nature of the decision adopted by the Constitutional Court in the current case, the Court is not convinced that the applicant had an available domestic remedy for effectively attacking in court [... ] the reasons of her removal from the position of chief-prosecutor of the DNA by the pre­sidential decree of 9 July 2018 in accordance with the judgment of the Con­stitutional Court of 30 May 2018.^[421]

The Strasbourg Court also said that ‘the respondent State impaired the very essence of the applicant’s right of access to a court owing to [my emphasis, B.S.- G.] the specific boundaries for a review of her case set down in the ruling of the Constitutional Court’^[422] and, accordingly, found a violation of Ms. Kovesi’s right of access to a court.

Another highly controversial result of the Constitutional Court’s ‘activism’ in solving constitutional conflicts was the interference with the judicial power. Deci­sion 685/2018, which regarded the changes brought to the laws on the judiciary in the same year, is a relevant example. One of these changes required that all members of the five-judges panels (the last-instance panels) of the High Court of Cassation and Justice (the supreme court of the land) should be drawn at the beginning of the calendar year. The current practice was the draw of four mem­bers, whereas the fifth was appointed ex officio, according to a decision of the HCCJ ruling board. The RCC did not rule on this matter within one of its con­stitutional review powers, but was addressed by the Prime Minister with a request to solve a ‘conflict of constitutional nature’ between the Parliament and the HCCJ on the grounds that the Supreme Court refused to apply the new law immediately. Thus, in the first place, by addressing the Constitutional Court, the Government (which was not a part of the alleged conflict) interfered in a matter that could have been solved within the judiciary itself. Secondly, the Constitutional Court, by declaring that there was a conflict and by ‘solving’ it in its own way, interfered with the judiciary, more specifically infringed the principle of res iudicata, as many cases were prone to reopening as a result of the Court’s decision. In its decision, the CC admitted to interfere in the judicial process, by stating that ‘by solving this conflict [the CC] substituted the ordinary citizens, who would be otherwise compelled to seek justice in courts’.^[423]

Another case in which the RCC interfered with the principle of res iudicata was Decision 417/2019, where, in the same manner (by solving a ‘legal conflict of constitutional nature’ between the Parliament and the HCCJ, at the request of the President of the Chamber of Deputies this time), the RCC stated that the five- judges panels ruling on corruption cases should be formed by judges ‘specialised in ruling upon corruption’, according to a law from 2000. The HCCJ and the judi­ciary in general interpreted this law, over the years, in an extensive way and said that all judges that rule upon criminal cases at the level of the HCCJ were spe­cialised ope legis in corruption cases. The RCC did not agree and said that all panels which, between 2003 and 2018, were not constituted by ‘specialised’ judges^[424] were in breach of the law and therefore null and void. The cases decided by these panels should be reopened. The decision was adopted with a very thin majority - five to four - and all four minority constitutional judges wrote separate opinions. However, the decision was adopted and severely encroached the princi­ple of res iudicata.^[425]

3.5 The Court as ‘activist judge' of its own powers

In the period that coincided with the gradual increase of its ‘activism’ with a political dimension, the RCC also started to protect and expand its own powers and interests, by ‘seizing every opportunity to increase its powers [at] the expense of its partners or competitors, legislator and judiciary alike, while also showing a propensity to invalidate decisions taken by them in order to enforce its own vision upon the Constitution and, sometimes, its own political vision’.^[426]

The power of the Court to review parliamentary resolutions enhanced its acti­vism. The power was introduced by Law no. 177/2010 amending the organic law of the Court and includes the review the constitutionality of all resolutions adop­ted by the chambers of parliament (other than the Standing Orders of the cham­bers, which already were included in the Court’s competence via the Constitution). From the outset, this disposition was criticised by the majority of the doctrine, because of its obvious political purpose: submitting the Parliament to the Court’s review which, at the time of the changes, was the object of a real ‘battle’ between the political parties for the nomination of new judges, with the obvious purpose to create a ‘new majority’ within the Court. Such a power is very rare in other democratic constitutional review systems (one of these rare examples being Latvia).^[427] And this, because the traditional role of a Constitutional Court,

When activism takes the wrong turn 141 despite being granted other ancillary powers, must remain the constitutionality review of legislation, and only in subsidiary a ‘microconstitutionality review’ (of judicial or administrative acts). This traditional role should prevent a constitutional court from having the power to become involved in the political game, by check­ing acts with a political stake, such as, in the Romanian case, parliamentary reso­lutions (for example, the US Supreme Court imposing the condition that the cases brought before it should lack a political character, as well as the ‘cases and con­troversy’ requirement).

The first failed attempt to change the law back was made in June 2012. The amending law was challenged before its promulgation and the Court had to decide on its constitutionality. By Decision 727/2012, the Court proved a manifest tendency to transform into an omnipotent and intangible organ, situated above the Parliament and any other authority, using as a single argument ‘the respect of the rule of law’. No instance, said the Court, may give an opinion on the Court’s activity: ‘to appreciate and decide on the activity of the Constitutional Court [...] means its incorrect reception and, moreover, to ignore the substance of its fundamental role’.

In this Decision, the Court exceeded its constitutional limits for many reasons: a) it acted against its ‘negative legislator’ role, thus ‘replacing’ the legislator, even the constituent legislator, by giving a ‘constitutional rank’ to organic law provisions: ‘although the power of reviewing parliamentary resolutions was given by the Court’s organic law, it obtained a constitutional value by virtue of Article 146 (l) of the Constitution’.; b) it expressly limited the competence of the Parliament, by stating that, if there was ‘the possibility to limit, eliminate or reduce these powers [of the Court, introduced by the same legislator] [.] this would mean to distort the goal of perfecting the constitutional democracy’. However, in an earlier decision from 2011, examining a constitutional amendment initiative, the Court had admitted that the powers introduced by virtue of Article 146 (l) of the Constitution had a ‘legal rank’ and not a ‘constitutional rank’ and proposed the elimination of this constitutional provision altogether (Decision 799/2011); c) in its reasoning, the Court uses no solid legal or constitutional argument: it only repeats that such a review is ‘important for the functioning of the rule of law and for the respect of the balance of powers’. Indirectly, the Court proclaims itself the sole guardian of democracy by means of checking any act of parliament, becoming thus a ‘universal reviewer’, claiming to be ‘above the political conflicts which are inherent to the relationships between the majority and the opposition’. By doing this, the Court ignored precisely the fact that, this kind of review makes it a referee of the parliamentary activity and thus a potential instrument used by one of the parties in such type of political conflicts.

In sum, the very practice of the Court shows that, in exercising this power, it examined resolutions with purely political stakes: appointments and dismissals from office, the vote of confidence procedure, resolutions on lifting the parlia­mentary immunity, etc.

In 2014, in a decision regarding a draft law of constitutional amendment (which has never been adopted), the Court reiterated this view and held that, if the con­stitutional legislator wishes to remove from the Constitution the possibility of the ordinary legislator to add new powers of the RCC (namely Article 146 letter l), it

should first ‘constitutionalise’ the two powers already added by means of this Article, because otherwise the removal would ‘breach the right to access to constitutional justice for the defence of constitutional values, principles and rules, i.e. the suppres­sion of a guarantee of these values, rules and principles, which include the sphere of fundamental rights and freedoms’.^[428] If this assertion might be true for the review of laws amending the Constitution (although, in this case, it would situate itself above the parliamentary two-thirds supermajority which can adopt such a law), the Court did not explain how the review of parliamentary resolutions would encompass a guarantee of fundamental rights and freedoms.

This case of judicial activism proves right what T. Ginsburg and Z. Elkins had said:

[T]he involvement of courts in ancillary tasks has the potential to undermine their ability to conduct effective constitutional review, precisely because it pulls them into political conflicts. [...] The prestige of constitutional courts in general, their reputation for neutrality [...] creates an incentive to give them complex political problems to resolve. There is, however, a risk that constitutional courts will be drawn into inherently unwinnable zero-sum conflicts, which require deft maneuvering and skillful action. In new democracies, at least, it is not obvious that the courts themselves will always be up to the task.^[429]

Another striking case in which the RCC acted as a defender not only of its general jurisdiction but of its own majority power was that of the separate opinions for­mulated to the Court’s decisions. Thus, in 2017, following a series of critical, separate opinions formulated by certain judges, the plenum of the Court adopted, with a majority vote, Internal Ruling no. 1/2017, where it said that the right of judges to write a dissenting or concurring opinion is limited by a ‘duty of self­restraint’ and that there must be a ‘reverence’ manifested by ‘any legal subject’ as regards the fundamental institution of the Constitutional Court, ‘a duty that belongs especially to Constitutional Court judges’. Based on these premises, the Ruling prohibited the publication of any opinions that comprise ‘sententious, ostentatious, provocative or political remarks, as well as those which may lead to such an outcome’. Following an administrative case brought by a young lawyer before the Court of Appeals of Bucharest (the complaint held that the separate opinions are highly relevant to the legal profession and should be published at the same time with the Court’s decisions), the Internal Ruling was annulled by the Court of Appeal. The RCC adopted, in July 2018, another Internal Ruling that changed some parts of the first one, but not in an essential manner. Inter alia, the new ruling says that ‘the separate opinion cannot transgress beyond the opinion of the judge in order to become a precise criticism of the Constitutional Court’s decision and it cannot be a direct attack against the latter’.^[430]

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