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Landmark decision of the Romanian High Court of Cassation and Justice on the right to constitute electoral alliances

On 8 March 2019, the High Court of Cassation and Justice of Romania (HCCJ) was asked to rule upon the prerequisites for the constitution of electoral alliances in view of participating to elections for Parliament.

By means of its Decision no. 1263, HCCJ has admitted the opposition of several political parties and has annulled the Decision of 7 March 2019, rendered by the Electoral Central Bureau (BEC), by means of which a protocol for constitution of electoral alliances was invalidated.

HCCJ has consequently endorsed the protocol for the constitution of the electoral alliance „Alliance 2020 USR PLUS”. The alliance was formed by Uniunea Salvati Romania (USR), Partidul Libertate, Unitate si Solidaritate (PLUS) and Alianța 2020 USR PLUS.

The reasoning behind such decision, that has been recently released by HCCJ, emphasises that BEC was not entitled to reject the protocol for the constitution of the electoral alliance, because the formal and substantial requirements needed for the admission of such protocol were met.

The judges confirmed the rulings in prior cases that have been decided on similar issues and reaffirmed that the political will of a party to take part in the elections as an alliance cannot be censored merely on formal grounds.   

HCCJ’s analysis was focused primarily on the interpretation of BEC’s legal obligations when analysing the protocol for the constitution of an electoral alliance with the purpose of participating to the elections.

The judges held that BEC should have merely verified the fulfilment of the following legal requirements: (i) that the alliance is formed of political parties registered in the registry of the political parties; (ii) that the signatory parties of the protocol do not take part in another political alliance; (iii) that the legal requirements regarding the name of the electoral alliance are met and (iv) that the protocol was submitted within a 48-hour term since the BEC was registered.

Having in view the arguments of the claimants and the evidence gathered to the case file, HCCJ deemed that all the above mentioned legal conditions were met and consequently, BEC’s decision to reject the protocol was unlawful.

HCCJ has also explained that it cannot be inferred from the Law no. 33/2007 (regarding the organization and deployment of the elections for the European Parliament), that the signatories of the protocol for constitution of the alliance must be the very presidents, as they are registered in the registry of the political parties. On the contrary, it was noted that it is essential that the signatories of the protocol were empowered by the parties, through their management bodies, condition which was met in the case at hand.

Another argument that was endorsed by HCCJ was that the protocol was ratified by the executive management of the two parties, prior to BEC rendering its decision, yet within the deadline prescribed by the law and by the electoral calendar. This fact also led to the conclusion that the Protocol cannot be invalidated.

Likewise, the judges considered that the rationale of the legislator was not to impede the access of the competitors to the elections for the European Parliament, in this manner being ensured “the imperative of complying with the right to associate and with the right to take part in elections” that are fundamental rights guaranteed by the Romanian Constitution, by the ECHR and the Additional Protocol thereof.

In conclusion, while it was acknowledged that no legal provision was breached when concluding the protocol for constitution of the electoral Alliance „Alliance 2020 USR PLUS” and that BEC displayed excessive formalism, the arguments raised by USR, PLUS and the Alliance 2020 USR PLUS were well received and the protocol was endorsed.

Ion Dragne, Dragne & Asociatii’s Managing Partner and Dean of the Bucharest Bar, pleaded in front of the HCCJ, together with other fellow lawyers, the case of PLUS regarding the admission of the protocol for the constitution of the electoral Alliance „Alliance 2020 USR PLUS”.

Ion Dragne declared that his decision to become involved in this case was prompted by the fact that, in his opinion, the legal profession is centred on defending the human rights and liberties, whose exercise must be granted under the conditions of the law, in all activity fields.

Andreia Dumitrescu, Partner and Raluca Gune, Associate were also part of the team that handled the case.

Dragne & Asociații is a law firm of over 35 lawyers, acknowledged by the international publications as market leader in dispute resolution and arbitration.

Dragne & Asociatii SCA