Decision No. 5 of 22 June 2023 in constitutional case No. 5/2023
Referring entity and subject matter of the case
The case has been initiated upon a request of 71 MPs of the 48th National Assembly. The subject matter of the case is constitutionality of the decision of the National Assembly of 20 January 2023 to release the president of the Audit Office. The request relies on the incompatibility of the challenged decision with the rule of law principle enshrined in Article 4, para 1 of the Constitution, and in particular specific aspects such as legal certainty, legality, and predictability.
Summary of the reasons
Article 19, para 1 of the Audit Office Act lays down the grounds and procedure for early termination of the term of office of the president, vice-president and members of the National Audit Office. A review of the envisaged grounds – none of which has been pointed out in the National Assembly decision under discussion – demonstrates that these refer to objective facts or an expressed will, yet none of them entails dismissal of the acting president of the Audit Office entirely due to considerations related to political appropriateness.
Together with the constitutional principles and values, the grounds for termination laid down in the law form the legal framework, which must accommodate the National Assembly discretion to take decisions for terminating the powers of the president of the Audit Office. The concept of a limited discretion granted to everyone to which the sovereign has entrusted exercising state power, including the Parliament, does not run contrary to democracy or the rule of law principle in a democratic society functioning under the rule of law.
The Constitutional Court has consistently held that the rule of law principle determines and directly affects the exercise of official authority by all public bodies, including the legislature, and this certainly applies to the decisions it takes (judgment No. 10/2009 in constitutional case No. 12/2009). The assessment of the compliance of the challenged act of the National Assembly with the rule of law principle cannot be limited solely to its compliance with the Constitution, ignoring its conformity with the overall legal framework. This is why making the representation mandate conditional on the grounds set forth in the legislation currently in force for terminating the term of office of the president of the Audit Office guarantees the substantive aspect of the term of office as an element of the rule of law.
The analysis of the reasons to the challenged decision of the National Assembly does not allow us to reach to any of the statutory grounds for termination. None of the arguments put forward may stand as a valid legal ground for dismissing the president of the Audit Office, which constitutes a violation of the rule of law principle.
Grounds for the ruling and decision
Pursuant to Article 149, para 1, item 2 of the Constitution (power to rule on the constitutionality of laws), the Constitutional Court declares anti-constitutional the decision of the National Assembly of 20 January 2023 for dismissing the president of the Audit Office as it runs contrary to the rule of law principle enshrined in Article 4, para 1 of the Constitution.