Separate opinion: denegation of justice. Why do I think the judge of the Ploiești Court of Appeal had the right to judge the case, and ICCJ had to do the same

I am not a judge at the ICCJ, but I allow myself to have a separate opinion, both from the one expressed by the magistrates in the Complete that judged the appeal against the “decision from Ploiești”, as well as to the similar one of some approved personalities (such as Judge Cristi Danileț, or of the Constitution or some dignitaries with duties in the field of justice (such as the Minister of Justice, Radu Marinescu).

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What did the mentioned said

Cristi Danileț: “A court cannot suspend or annul a decision of the RCC, such as the annulment of the presidential elections of December 2024 ” (posting on the personal Facebook page, quoted by Pro TV).

Augustin Zegean: “The decisions of the Constitutional Court cannot be verified, challenged anywhere, no court, no other court in this world can annul or do not know what to do with a decision of the Constitutional Court; The Constitution itself provides that the CCR decisions are generally mandatory, so that means they can no longer be challenged, they can no longer be canceled ” (interview at B1TV, 25.04.2025).

Radu Marinescu: (Decision) “It is contrary to the administrative litigation jurisprudence in Romania of the last 30 years; Since 1990, no judge has censored acts of the Constitutional Court of Romania“(Quoted by Hotnews, 25.04.2025).

The first observation I make is that in the case we refer to it is not a decision, as the first two states, but about a decision (Decision no. 32 of the Constitutional Court), the difference between the two types of acts being essential, as I will explain below.

Then, not even the third statement, of the Minister of Justice, is not true, because in the jurisprudence of administrative litigation, acts of the Constitutional Court have been censored: Examples graceDecision no. 1/2017 of the CCR was canceled, in part, by sentence no. 2924/2018 of the Bucharest Court of Appeal, maintained by the High Court of Cassation and Justice by decision 2792/2021, because he violated the rights of a person.

Unlike these opinions and compared to many similar ones in the content, my thesis is as follows: by the decision of 25.04.2025, given as a result of the appeal declared against the decision by which the Ploiești Court of Appeal annulled the decision 32/2024 of the CCR of the elections for the President of Romania, the High Court of Cassation, justice. Moreover, in the Decision/ CCCJ communication device it is stated that the applicant's request is inadmissible, and the courts are not general competent (to judge the judgments of the Constitutional Court).

And more precisely, we are in the situation of a denegation of law, with reference to the fundamental right of access to justice.

I will try to formulate my arguments as clearly as possible, so that it is easy to understand, including people who have no legal studies and no activity or concern in the jurisdictional field.

In my opinion things are that way (I will explain on points, to be easier to follow):

The electoral activity involves arbitrators who watch over and correct the electoral process (starting from the application, to the election campaign, counting the votes, validating the results of the elections).

The referees I refer to are administrative agentswith attributions of state authority and are called “electoral offices”: constituency offices, municipal electoral offices, county electoral offices, central electoral office.

The activity of the electoral bureaus is materialized by decisions of these bodies, which are censored by Irahic and then in the courts.

For example, if a person (candidate or voter) considers that he has been violated electoral rights, or other rights during the electoral process and in connection with him, he notifies the competent electoral bureau. More specifically, if, to say, a person advertises the violation of such a law and the competent body is the municipal electoral bureau, and he rejects his appeal, the person will address the upper electoral bureau, in this case of the county electoral bureau; If he also rejects his appeal, he addresses the court, by virtue of the fundamental right of access to justice, for the defense of the violated fundamental law (competent are the administrative litigation); Likewise, if they had addressed (according to the competence) of the County Electoral Bureau: the negative response of this body would have generated an appeal to the Central Electoral Bureau, whose decision would have been challenged before the courts.

However, there are certain acts/facts whose analysis fall within the competence of the Central Electoral Bureau, as the first notified body, such as those regarding the election of the President of Romania. As these acts, in their turn, be able to be censored, and as the Central Electoral Bureau is at the top of the hierarchy of the electoral bureaus, the electoral law has regulated this competence for the Constitutional Court, which is pronounced by decision, or in favor of the Central Electoral Bureau.

Following the stretched thread so far, it is clear and obvious that, in the electoral matter regarding the election of the President of Romania, as a body for censuring the decisions of the Central Electoral Bureau, the Constitutional Court is also a body electoral referee; Which means that the decisions of this body should be challenged in the court, by virtue of the same fundamental law: the right of access to justice.

It is true that the decisions of the Constitutional Court are generally mandatory and cannot be challenged in the national courts, but this is concerned about the role of the actor in the constitutional litigation, but here we are talking about another role of the Constitutional Court, an administrative role in the electoral process, which it materializes by decisions and not by decisions.

Moreover, here comes the distinction between the decisions and decisions of the Constitutional Court: we observe that in the Constitution of Romania it is said only about the decisions of the Court that they are generally mandatory, in art 147, not about decisions.

I am now returning to the case from which I started. The High Court of Cassation has decided that the complaints against the decisions of the Constitutional Court (in elecoral matter) are inadmissible, that is, they cannot be judged on the merits, more precisely, cannot be judged by the courts, which would be general general.

This is the definition of the denegation of law: the institutions, according to the JCCJ, should refuse to judge the court applications with which they were invested. All the more so, at least on certain species (which strictly concern the election of the President of Romania), there is no provision of the European Convention on Human Rights that can be invoked at the Strasbourg Court.

Choosing a parallel: Suppose the situation would not have happened in the elections for the President of Romania, but to those regarding the election of the members of the Parliament and, for the identity of reason, the bulb would have invalidated the elections (this type of election is the competent administrative body, the last to be notified by administrative-electoral means). If a citizen had complained against the decision to invalidate the elections, and the bulb rejected his appeal, he could address the court, and the complaint would have been judged on the merits, both by a court of appeal and by the High Court of Cassation and Justice, in a possible appeal.

In this second case, the injured person in a fundamental right could have been addressed to the justice for the defense of the claimed law, while in the first case, although the same fundamental right was violated, the person was rejected the action as inadmissible, by denegation of law (according to the decision of the JCCJ), by violating the fundamental right of access to justice.

Here is a discriminatory situation (not necessarily strictly, technically, legal). It is a subject of reflection on the balance between the powers of the state and the way in which the courts, as the last national actor we can address, can interpret or even challenge the decisions of the RCC, given their importance in protecting the principles and fundamental rights established in the Romanian Constitution.

How did this law deneg and who generated it come to

In her motivation (deduced, for the moment, from the publication of the decision device), the High Court of Cassation and Justice was able to rely only on the provisions of Law 47/1992 of operation of the Constitutional Court, which states that the decisions and decisions of the RCC are generally mandatory. The article by which this thesis is regulated is unconstitutional because it adds to the Constitution of Romania regarding the decisions of the RCC, a situation that leads to the violation of the fundamental right of access to justice, as in this case. Why? Because in the Constitution of Romania it is specified only about the decisions of the Constitutional Court that they are generally obligatory and this in the exercise of the tasks of the Court in constitutional litigation issues (regarding the unconstitutionality of the laws and ordinances of the Government, the treaties, etc.) and not in the administrative field (electoral).

The JCCJ confused the judiciary with the control of the constitutionality, a confusion that, in the case described, leads to the violation of the fundamental right of access to justice. However, the Constitutional Court did not exercise its duties in issues of constitutional litigation, but in the electoral, administrative field.

Therefore, without commenting on the decision on the merits, I believe that the judge of the Ploiești Court of Appeal proceeded correctly by judging the case with which he was invested, with the single mistake that he did not notify the Constitutional Court, in the process, regarding the unconstitutionality of the provisions we mentioned above. Of course, the same thing could be done by the High Court of Cassation and Justice, as this exception could be invoked by the person who opened the process.

The People's Advocate remains to urgently notice the Constitutional Court of this aspect.