On 6 July 2012, the Secretary General of the Council of Europe has
asked the Venice Commission to provide an opinion on the
compatibility with constitutional principles and the rule of law of
actions taken by the Government and the Parliament of Romania in
respect of other state institutions.
On 9 July 2012, the Prime Minister of Romania, Mr Ponta, requested
an opinion on the Government Emergency Ordinance on amendment to the
Law no. 47/1992 regarding the Organisation and Functioning of the
Constitutional Court and on the Government Emergency Ordinance on
amending and completing the Law no. 3/2000 regarding the
Organisation of a referendum.
Given that these requests overlap, the Commission decided to prepare
a single opinion covering both requests.
The opinion deals with two different types of actions: (a) formal
legal texts, such as the government emergency ordinances, submitted
by Prime Minister Ponta, but (b) also actions taken by
representatives of the Government and the Parliament of Romania in
respect of other state institutions, some of which are public
statements, rather than formal legal acts. This opinion will examine
both legal texts (see notably CDL-REF(2012)031 and 032) and
A yardstick for these acts are the formal rules for the adoption for
the legal texts and, especially as concerns public statements, also
the principles of the European Constitutional Heritage, which ensure
a fair implementation of the provisions of the Constitutions.
In July 2012, the Romanian Government and Parliament adopted a
series of measures in quick succession, which led to the removal
from office of the Advocate of the People, the Presidents of both
Houses of Parliament, a limitation of the competences of the
Constitutional Court, changes on the conditions for a referendum on
the suspension of the President of the Republic and the suspension
of the President itself. The Venice Commission is of the opinion
that these measures, both individually and taken as a whole are
problematic from the viewpoint of constitutionality and the rule of
The events examined include ordinances, decisions and procedures
whose constitutionality is questionable, especially when taken
together in quick succession. The Commission is worried in
particular about the extensive recourse to government emergency
ordinances – both by previous and present majorities – which
presents a risk for democracy and the rule of law in Romania.
In addition, the events and several statements made demonstrate a
worrying lack of respect among representatives of State institutions
for the status of other State institutions, including the
Constitutional Court as the guarantor of the supremacy of the
The Commission is of the opinion that the respect for a Constitution
cannot be limited to the literal execution of its operational
provisions. The very nature of a Constitution is that, in addition
to guaranteeing human rights, it provides a framework for the state
institutions, sets out their powers and their obligations. The
purpose of these provisions is to enable a smooth functioning of the
institutions based on their loyal co-operation. The Head of State,
Parliament, Government, the Judiciary, all serve the common purpose
of furthering the interests of the country as a whole, not the
narrow interests of a single institution or the political party
having nominated the office holder. Even if an institution is in a
situation of power, when it is able to influence other state
institutions, it has to do so with the interest of the State as a
whole in mind, including, as a consequence, the interests of the
other institutions and those of the parliamentary minority.
The Venice Commission is of the opinion that the Romanian state
institutions should engage in loyal co-operation between themselves
and it is pleased about the statements from both sides expressing
their intention to respect their obligations.
The Commission warmly welcomes the fact that its interlocutors were
of the opinion that constitutional and legislative reform is
required to ensure that a similar situation should not arise again.
In section X
above, this opinion refers to elements, which could become part of
The Venice Commission remains at the disposal of the Romanian
authorities for assistance in the implementation of such reforms.
Text of the opinion CDL-AD(2012)022