The Constitutional Court of Romania (CCR) does not have the authority to verify the behaviour, opinions, statements or attitudes of a candidate in the presidential election, all of which are subjective aspects that are part of the sphere of freedom of expression, according to judge Iuliana Scantei, in a separate opinion to the decision of the CCR by which the candidacy of Diana Sosoaca was rejected.
„Electoral litigation regarding the presidential election is an objective and abstract litigation and cannot concern behaviours, speeches, political qualifications or acts of electoral propaganda, specific to a subjective and concrete electoral litigation. (…) The Court’s attribution is to verify the fulfillment or non-fulfillment of some objective legal conditions (for example, compliance with the deadline for submitting the candidacy proposal, the minimum number of signatures of the supporters, the documents that must accompany the candidacy proposal, possible cases of restrictive prohibition provided by the Constitution and the law, when submitting the candidacy). By their essence, these conditions do not concern the behaviour, opinions, statements or attitudes of the person who submits his/her candidacy for the election of the President of Romania under the Law No. 370/2004, all these aspects of a subjective nature being part of the sphere of freedom of expression of those who are candidates,” argues Iuliana Scantei, who disagrees with her colleagues from the CCR.
In her opinion, the sanctioning of the violation of the limits of freedom of expression falls to other institutions of the state, after a judicial procedure, not being an attribution expressly recognized for the Constitutional Court in carrying out the competence to watch over the observance of the procedure for the election of the president of Romania.
Iuliana Scantei says that the majority decision of the colleagues from the CCR to reject the candidacy of Diana Sosoaca „is not based on any of the objective conditions of substance and form, expressly regulated by the Constitution and by organic law.”
(…) The judge draws attention to the fact that, in the constitutional and legal order, including in the CCR jurisprudence, electoral rights can be prohibited only in the situations expressly and limitedly provided by the Constitution (art. 37 in conjunction with art. 16 para. (3) and art. 40 paragraph (3) of the law).
Thus, the provisions of art. 28 of Law no. 370/2004 establish express prohibitions related to the candidacy in the presidential election of persons who, on the date of submitting their candidacy, do not meet the conditions provided for in art. 37 of the Constitution of Romania in order to be elected, or who have previously been elected, twice, as president of Romania, as well as for persons who, on the date of submitting their candidacy, were definitively sentenced to custodial sentences for crimes committed with intent, if rehabilitation, post-conviction amnesty or decriminalization did not take place.
At the same time, the prohibition of the exercise, for a period of one to 5 years, of one or more of the following rights (the right to be elected to public authorities or any other public office, the right to choose), is regulated as a complementary punishment in the Criminal Code.
Iuliana Scantei believes that the mentioned constitutional and legal prohibitions are not incident in the case of Diana Sosoaca, as there is no definitive judicial decision prohibiting her right to be elected.
AGERPRES
