Constitutional Court decision or Emergency Decree: Dragnea’s options for changing the High Court 5 judge panel supposed to try him in the fictitious employment case

Sources from SDP told G4Media.ro that Liviu Dragnea is currently considering two ways which could serve his intention of changing the composition of five judge panel from the Supreme Court that will be judging his appeal in the case file of the fictitious employment at the Teleorman Child Protection Office, a case in which he was sentenced in a first instance to 3 and a half years imprisonment with execution. According to them, there would be two methods to be employed.

1. Referral to the Romanian Constitutional Court of the existence of a constitutional conflict with the High Court, similar to the conflict identified between the Government and the President, which led to the revocation of Laura Codruta Kovesi from the head of the DNA.

2. Issue an Emergency Decree in order to amend Law 304/2004 concerning Judicial Organization, which regulates the creation of Supreme Court panels.

A constitutional conflict. Liviu Dragnea favors the option of notifying the Romanian Constitutional Court – an institution which has been constantly favorable to the SDP leader since Valer Dorneanu has been at its head. The model has already been tested and successfully implemented in the Kovesi case: the Court has forced President Klaus Iohannis to revoke the Anti – Corruption Directorate Chief, as requested by the Minister of Justice. Dragnea would want the same in this case: the Romanian Constitutional Court should oblige the Supreme Court to apply immediately a provision of law 304 on the random selection process for the judge panels. Normally, this law with all its provisions would be applied as of January 1st, 2019.

The challenge is how to get the question in the ambit of the Romanian Constitutional Court. Dragnea would like the Minister of Justice to do it; he asked him publicly „to think about this.” However, SDP leaders say for G4Media.ro that, as Tudorel Toader – Minsiter of Justice – is taking his time in „doing something,” the SDP leader is considering a referral from the Parliament to the Romanian Constitutional Court,. The referral would be signed by him, as President of the Chamber of Deputies, and by Călin Popescu Tăriceanu, as President of the Senate.

Emergency Decree. Liviu Dragnea’s second option is the release of an emergency decreefor the immediate amendment of the law 304. Political sources explained to G4Media.ro that due to Tudorel Toader’s restraint in initiating the emergency decree, this could be done by Toni Grebla, the new Secretary General of the Government, who was appointed early this week. This option is more challenging because Liviu Dragnea will have to convince Viorica Dăncilă to agree to it, as an emergency decree is impossible without her signature.

Background: G4Media.ro has extensively described the difficult backstage struggles to alter the composition of the High Court panel that will give Dragnea his final sentence.

There are two appeal panels to the High Court, with 5 judges (C5), one led by the High Court Vice-president, Iulian Dragomir, and another headed by the interim head of the Criminal Section, Judge Sorina Mirela Popescu. These panels establish final sentences for dignitaries (ministers, parliamentarians, etc.).

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

Five Jusges Panel P1 – Penal cases

President – Vice-President of the High Court of Cassation and Justice (ICCJ) judge Dragomir Ilie Iulian

Titular members:

1. Judge Nenita Simona Cristina

2. Judge Grădinaru Daniel

3. Judge Dragomir Florentina

4. Judge Lefterache Lavinia Valeria

Substitute Members:

1. Judge Cobzariu Maricela

2. Judge Enescu Dan Andrei

3. Judge Selaru Valentin Horia

4. Judge Cerbu Silvia

According to sources in the magistracy, at the beginning of September, the Managing Board of the High Court 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 the three controversial laws of Justice, modified by the SDP-ALDE Coalition).

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

The High Court governing board decided, however, that it is not necessary to change the composition of C5s in 2018, because they were already elected on the old law at the end of 2017. The old law said C5s are run by an ex-officio judge, and the other judges are randomly assigned at the end of each year for next year. For 2018, the composition of the C5s was determined by draws executed at the end of last year, on the old law, which provided that they were governed ex-officio judges. The High Court 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 randomly, and there will no longer be ex-officio judges.

SDP leader Liviu Dragnea reaffirmed on Thursday that it is illegal to have 5 judges from the High Court who will judge from 8 October the appeal in the fictive employment file of the Teleorman Child Protection Office, a case in which he was sentenced at first instance to 3 years and half imprisonment with execution.

Dragnea said he would discuss with his lawyers to see what he can do in this case, but has ruled out possible parliamentary actions on this issue.

„I will examine with my lawyers what we can do, it is illegal (the lawsuit – n.r.) because the law, I do not know which, that changed 304, says something else and we consider it is illegal. I’ll talk to lawyers today and tomorrow to see what we can do, ” Dragnea sais in Parliament.

Asked if there would be a move on this issue and in Parliament, Dragnea replied: „No, I do not see why.”

On Sunday, Liviu Dragnea affirmed that the intention was to imprison him through the means of a High Court panel that would be illegally constituted.

“They want to jail me with the help of an illegally constituted panel. The law says that panel presidents are randomly assigned. The High Court adopted a decision by which the law enters into force on January 1, 2019. Why? To designate two unlawful panels. We will contest the decision, surely, in the High Court” said Dragnea on Antena 3.

On Monday, Dragnea announced that he had spoken to Justice Minister Tudorel Toader to take action on the appointment of the 5 High Court judges.

Asked about a request to refer the matter to the Constitutional Court, Dragnea said: „I passed this on to Minister Toader, I talked to him about this subject and asked him as a specialist to think about possible governmental action on this”.

On Tuesday, the High Court President Cristina Tarcea responded to allegations by SDP chairman Livu Dragnea that the High Court did not respect the law, referring to the regulation of the five judges’ panels. She stated that the High Court respected the law, and that in Romania there are judges who respected the law any cost. The new law on judicial organization provides that all judges in the panel are randomly assigned. The old law held that C5s are ruled by ex-officio members, and the other judges were randomized at the end of each year for next year.

Traducerea: Ruxandra Stoicescu