Impeachment Procedures against Presidents in Central and South-East European Democracies. A Comparative Constitutional Approach

Transcription

1 Impeachment Procedures against Presidents in Central and South-East European Democracies. A Comparative Constitutional Approach Author: Bogdan Dima Institutional affiliation: Faculty of Law, University of Bucharest Session: RC08 Legislative Specialists Panel: How can we fix representative democracy? Abstract Seven out of eight presidents in former communist states of Central and South-East Europe now part of the EU and NATO are directly elected by the people. Only in one country (Romania) the impeachment procedures for breaches of the Constitution by the president ends with a referendum for dismissal. In all the other countries, one can find constitutionally regulated impeachment procedures for breaches of the constitution, but all of them end with a final decision by the constitutional court. Therefore, only in Romania, the impeachment procedure for breaches of the constitutional provisions refers to the President`s political accountability, while in all other countries, the impeachment procedures for breaches of the constitutional provisions refer to the President`s legal accountability. First, this article has a descriptive approach, trying to gather all common and specific elements of the impeachment procedures regulated in the constitutions of these post-communist democracies, together with some relevant examples from their political and institutional practice. Second, this article develops also an analytical perspective. Considering some normative indicators (who initiates impeachment procedures, who is judging the charges, who is taking the final decision etc.), one can develop a chart showing the complexity level of such impeachment procedures for each country, thus offering some answers about the stability of the presidential offices in all these new democratic regimes. Basically, my assumption is that in Central and South-East former communist states the impeachment procedures for breaches of the Constitutions by the presidents are difficult to be put in practice mainly because the presidential offices were constructed so that they generate a more rigid power relation with the legislatures, thus making the presidents stable and influential political actors of the constitutional architectures of these states. Keywords: impeachment procedures, breaches of the Constitution, accountability, presidents, post-communist states 1

2 I. Introductory remarks The adoption of the new constitutional provisions governing the post-communist countries in Central and South East Europe was the result of a conflicting process 1 where the main actors were, on one hand, the reformist elites representing a fading communist regime and, on the other hand, the moderate elites 2 representing a newly born Western-type democratic regime 3. The conflicting relationship between the representatives of the former totalitarian regime and the representatives of the new democratic opposition were reflected by the intensive rounds of negotiations 4 that marked the end of the 9 th decade of the XX th century. According to Przeworski, all transitions towards democracy are negotiated, thus the result of a compromise. However, negotiations are not always used to break up from a totalitarian regime 5, but they are always needed in order to design the new democratic institutions which will govern the society and the state. One can say that liberal democracy cannot be imposed; it can only be the result of negotiation and compromise 6. The two major problems which had to be rapidly solved by the political actors facing transition referred to the adoption of a new system of government 7 and, strongly related to this objective, to the electoral rules concerning the election of the presidents and also to the constitutional role and prerogatives of the new chiefs of state 8. Even though the theoretical debates which legitimated the choice for a specific system of government revolved around the advantages and disadvantages of governmental stability of presidentialism or parliamentarism, 1 Robert Elgie, Jan Zielonka, Constitutions and Constitution-Building: A Comparative Perspective, in Jan Zielonka (ed.), Democratic Consolidation in Eastern Europe. Institutional Engineering, vol. I (New York: Oxford University Press, 2001), p Jon Elster, Constitutionalism in Eastern Europe, in The University of Chicago Law Review 58, 2 (1991), pp For more details regarding the transition process from authoritarian regimes to democratic regimes, see Guillermo OʼDonnell, Philippe Schmitter, Laurence Whitehead (eds.), Transitions from Authoritarian Rule: Comparative Perspectives (Baltimore: The Johns Hopkins University Press, 1986); Samuel P. Huntington, The Third Wave: Democratization in the Late Twientieth Century (Norman: University of Oklahoma Press, 1991); Adam Przeworski, Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America (Cambridge: Cambridge University Press, 1999 [1991]); Scott Mainwaring, Guillermo OʼDonnell, J. Samuel Valenzuela (eds.), Issues in Democratic Consolidation: The New South American Democracies in Comparative Perspectives (Couth Bend: University of Notre Dame, 1992); Juan Linz, Transition to Democracy, in The Washington Quarterly 13, 3 (1990): pp Wojciech Sadurski, On the Relevance of Institutions and the Centrality of Constitutions in Post-Communist Transitions, in Jan Zielonka (ed.), Democratic Consolidation, p In Poland, Hungary and Bulgaria the well-known round table talks were organized. In Romania and former Czechoslovakia the reformed successors of former communist regime negotiated the rules of the new regime with the representatives of the new born democratic opposition in an interim institutional framework. 5 See Levent Göneç, Prospects for Constitutionalism in Post-communist Countries (Hague: Kluwer Law International, 2002), p The author writes about transition-reform (Bulgaria), rupture-transitions (Czecholsovakia, Romania, Croatia), pacted-transitions (Poland) or negotiated-transitions (Hungary). 6 Adam Przeworski, Democracy and the Market..., p Mirjana Kasapović, Parliamentarism and presidentialism in Eastern Europe, in Politička misao XXXIII, 5 (1996): p See, for example, how the powers of the presidents in Poland, Bulgaria and Hungary were negotiated in Jon Elster, Bargaining over the Presidency, in East European Constitutional Review 4, 1 (1993/1994): pp

3 the major controversies referred in fact to the role and prerogatives of the presidents in relation with the other institutional actors of the new regimes, especially the parliaments and the governments 9. The new regimes wanted to mark the transition from a constitutional design whose aim was to excessively centralize political power in the hands of the communist party leaders to a constitutional design where the political power was decentralized and split among multiple authorities in accordance with the principle of the separation of powers. Former communist states from Central and South-East Europe now EU and NATO member states have made a clear option at the beginning of the 1990s for semi-presidentialism (either president-parliament type: Croatia, either premier-president type 10 : Bulgaria, Poland, Romania, Slovenia) and parliamentarism (Czechoslovakia and Hungary). Thus, only Czechoslovakia and Hungary opted for a parliamentary system of government immediately after the chute of the communist regime, with presidents elected by the parliaments while the prime ministers and their cabinets were politically accountable to the legislative body. After the dissolution of Czechoslovakia, the new states (The Czech Republic and Slovakia) kept the parliamentary system of government. However, in 1999 (Slovakia) and 2011 (Czech Republic), they decided that presidents should be elected directly by the people, thus shifting towards a premier-president type of semi-presidentialism. Moreover, in 1997, Poland adopted a constitution limiting the prerogatives of the President but still maintaining the premierparliament type of semi-presidentialism adopted after the chute of the communist regime. At last but not at least, in 2001 Croatia also changed its constitution marking a shift from president-parliament type towards a premier-parliament type of semi-presidentialism. Therefore, from eight former communist countries now EU and NATO members, seven have chosen a premier-parliament semi-presidentialism and only one has kept a classic parliamentary system of government (Hungary). The adoption of a certain type of system of government was, in fact, the result of the political actors` specific interests with the need to establish as soon as possible new constitutional rules to stabilize the new regime, in a context in which the constitutional designers were not acquainted with the democratic institutions of western states. Therefore, even if these constitutional designers were not prepared to make complete and efficient assessments regarding the advantages and disadvantages of different types of systems of government with regard to their institutional efficiency, a model of government had to be adopted as soon as possible. Von Beyme considered that a pattern was clear enough in the 1990s: the larger the number of voters swinging between different political parties and the lower the degree of the consolidation process of political forces was, the more relevant became the option for a direct election of the president. Thus, in a context where the representativeness of the community interests was low due to the huge number of 9 Jacek Wojnicki, Political Transformation in Central and Eastern Europe. Twenty Years of Experience, in Studia Juridica et Politica Jaurinensis 1 (2014): p The distinction was operated by Mathew Soberg Shugart, John M. Carey, Presidents and Assemblies. Constitutional Design and Electoral Dynamics (New York: Cambridge University Press, 1992), p

4 unconsolidated political parties, a president directly elected by the people embodied, even in a symbolic manner, the public good. 11 Moreover, what really counted in that period of massive political, economic and social change was the stability of the new regime. The obsessive yet logical need to counter-balance the fear of an unknown new regime which touched more or less all the political actors in the 1990s, as also the need to block the negative effects of an extreme multi-party system unable to generate stable legislative and governmental coalitions or impose loyalty among its members 12 forced the birth of a new institution. This new institution was built so that it could induce stability for the regime while being a symbol of the nation and a guarantor of the state continuity: a president either directly elected by the people 13 (Bulgaria, Croatia, Poland, Romania, and Slovenia) either elected by the parliament (Czechoslovakia and Hungary). The stability of the new democratic regime was essential in order to enforce the harsh decisions of the transition period which followed. In such a context, when major reforms had to be taken in order to change the political and economic structure of the society, the new regimes needed an agent of unity. This agent was embodied by the president. One should keep in mind that all first post-communist presidents, either directly elected by the people either elected by the parliaments, were the most important leaders of the revolutionary movements against the communist regimes, thus personalities holding a significant legitimacy in the eyes of the public opinion. This legitimacy helped the presidents to secure a safe and very stable position in the new constitutional architectures developed after the 1990s. Therefore, the analysis of the constitutional provisions regulating the impeachment procedures for breaches of the constitutional provisions by the presidents in these countries will show that the constitutional designers were pretty careful to protect the presidents against any attempts of the parliaments to destabilize the new presidential institutions, regardless of the system of government adopted (semi-presidential or parliamentary). II. Constitutional procedures for impeachment II.1. Bulgaria The President and the Vice-president shall not be held liable for actions committed in the performance of their duties, except for high treason, or a violation of the Constitution. In 11 Klaus von Beyme, Parliamentary Democracy. Democratization, Destabilization, Reconsolidation, (Basingstoke: Macmillan, 2000), p Vezi Petr Kopecký, Structures of Representation, in Stephen White, Judy Batt, Paul G. Lewis (eds.), Developments in Central and East European Politics, 4 th ed. (Houndmills, Basingstoke, Hampshire: Palgrave Macmillan, 2007), p Thomas Sedelius, The Tug-of-War between Presidents and Prime Ministers. Semi-Presidentialism in Central and Eastern Europe, in Örebro Studies in Political Science 15 (2006): pp See also Leslie Holmes, Postcommunism. An Introduction (Durham: Duke University Press, 1997), p The author shows that parliamentary systems of government tend to work better when party systems are consolidated and there is a high level of party discipline. These conditions were not fulfilled in the first years of transition. 4

5 fact, the Bulgarian Fundamental Law provides that the President and the Vice-president cannot be placed under detention, nor shall be criminally prosecuted in the exercise of their mandates. According to the Constitution, the impeachment of the President will require a motion from no less than one-quarter of all Members of the National Assembly and will stand if supported by more than two-thirds of all members of the National Assembly. In the event that such impeachment is voted by the Bulgarian Parliament, it will be tried by the Constitutional Court within a month following the lodging of the impeachment. If the President is found guilty and he/she is convicted by the Constitutional Court for the violation of the Constitution, the President`s prerogatives will be suspended and his/hers prerogatives will be exercised by the Vice-president until the expiry of the term of office. Should the Vice-president be incapable of assuming the President's duties, the President's prerogatives shall be assumed by the Chairperson of the National Assembly until the election of a new President and Vice-president. In such a case, the elections will then be held within two months after the Chairperson took the office ad interim. In 2010, an impeachment procedure for violation of the Constitution was initiated by the Parliament against President Georgi Parvanov. The motion for impeachment was initiated by members of the parliamentary majority backing the Prime minister Boiko Borisov. The charges brought to the President referred to the fact that the President had published the transcripts of a discussion between himself and Vice-president Siméon Dyankov, which took place immediately after the Vice-president implied in a TV show that the President was very rich but he was concealing his fortune. The parliamentary majority considered that the President has breached art. 32 from the Constitution protecting the private life of a person. Eventually, however, the motion of impeachment did not reach the Constitutional Court for trial as it did not receive the necessary number of votes to be adopted according to the constitutional provisions. 14 II.2. Czech Republic According to the Czech Constitution, while in office, the President may not be taken into detention, criminally prosecuted, and prosecuted for misdemeanors or other administrative offense. However, the President is accountable for high treason, a gross violation of the Constitution or another component of the constitutional order. The impeachment procedure is initiated by a minimum of one-third of the senators and, in order to be adopted, it has to be voted by a three-fifths majority of the senators participating to the sitting if the quorum is reached (one-third of all senators). Nevertheless, if the Senate has voted to adopt a motion of impeachment against the President, according to the Constitution, the consent of the Chamber of Deputies is needed in order to further proceed with the impeachment. For the Chamber of Deputies to consent to the adoption of the motion of impeachment a three-fifths majority of all deputies is required: if the Chamber of Deputies fails to grant the consent within three months from the day when the Senate requests the consent, the consent shall be deemed withheld. 14 Maria Mateeva, Bulgaria 2010, in Est Europa 2 (2011): pp

6 The motion of impeachment adopted by the Senate and approved by the Chamber of Deputies is sent to the Constitutional Court which will decide if the President is or is not guilty of gross violation of the Constitution. If the President is found guilty by the Court, he/she will lose the office and the eligibility for holding it in future. There was no Czech President impeached by the Constitutional Court for gross violation of the Constitution. However, one of the Czech presidents was close to being impeached for high treason, according to a procedure which is identical for gross violations of the Constitution. Thus, in 2013, President Václav Klaus was charged by the Senate with high treason. Three main arguments were put forward by the Senate to build the case against the President: (i) the President did not ratify the European Stability Mechanism amending art. 136 of the Treaty on the functioning of the European Union; (ii) the President did not appoint constitutional judges since March 2013, thus affecting the functioning of the Constitutional Court; (iii) the President granted pardon to all convicted persons to imprisonment for one year or less, decision which lead to a gridlock for the criminal justice system in the Czech Republic. However, the Constitutional Court did not judge on the merits but simply argued that the charges were dismissed considering that the President`s office ended (7th of March 2013) immediately after the Court was charged to judge the case by the Senate (5th of March 2013) 15. II.3. Croatia According to the Croatian Constitution, the President enjoys full criminal immunity; he/she may not be detained nor may criminal proceedings be instituted against without prior consent of the Constitutional Court. The President may be detained without the prior consent of the Constitutional Court only if he has been caught in the act of committing a criminal offense which carries a penalty of imprisonment of more than five years. In such a case the state body which has detained the President will instantly notify the President of the Constitutional Court thereof. As for the impeachment procedure for breaching the Constitution in the performance of his/hers duties, the proceedings may be instituted by the Croatian Parliament by a two-thirds majority vote of all representatives only if a minimum of one-fifth of the total number of MPs asked for such proceedings to be opened. The final decision will be taken by the Constitutional Court by a two-thirds majority vote of all the judges, during the term of 30 days from the day of the submission of the proposal to impeach the President. If the Constitutional Court sustains the impeachment, the President is losing the office by force of the Constitution. Since the breakdown of the communist regime, no post-communist president was dismissed as a result of a Constitutional Court`s decision acknowledging a breach of the constitutional provisions. 15 For details, see the Constitutional Court Decision regarding the impeachment of the President for high treason; available online: verified at

7 II.4. Poland According to the Polish Constitution, the President may be held accountable before the Tribunal of State 16 for an infringement of the Constitution or statute, or for the commission of an offense. Bringing an indictment against the President will be done by resolution of the National Assembly passed by a majority of at least two-thirds of all members of the National Assembly, on the motion of at least 140 MPs. On the day on which an indictment is brought against the President, he/she will be suspended from discharging all functions of his office. The Marshal of the Sejm will temporarily assume the duties of the President of the Republic. If the Marshall of the Sejm cannot also perform his/hers duties as interim President, the President of the Senate will exercise the duties of the President until new presidential elections are held. The specificity of the Polish Constitution regarding the impeachment procedure refers to the institution of the Tribunal of State, composed of a chairperson (the first president of the Supreme Court), two deputy chairpersons and 16 members chosen by the Sejm for the current term of office of the Sejm from amongst those who are not Deputies or Senators. The deputy chairpersons of the Tribunal and at least one-half of the members of the Tribunal shall possess the qualifications required to hold the office of judge. The Tribunal of State and the impeachment procedure were regulated by the Little Constitution in 1992, but there were no details provided as for its structure, composition and appointment procedure of the members. These details were inserted in the 1997 first post-communist Polish Constitution. No post-communist Polish President was dismissed following an impeachment procedure for breaches of the constitutional provisions. II. 5. Romania According to the Romanian Constitution, the President`s accountability for gross violations of the Constitution is conceived as a particular type of political accountability and not as a legal accountability as in all other seven post-communist countries. If the President of Romania commits serious offenses which violate provisions of the Constitution, he/she can be suspended from office by the Chamber of Deputies and the Senate, in joint session, by majority vote of all the deputies and senators, only after the Constitutional Court adopts a consultative opinion on the accusations formulated by the Parliament. The President can give Parliament explanations in regard to the actions with which he/she is charged. As for the proposal to suspend the President for gross violation of the Constitution it can be initiated by at least one-third of the deputies and senators and it is immediately brought to the attention of the President. If the proposal to suspend the President is adopted by the Parliament sitting in joint session, a referendum on the removal of the President is organized within 30 days, at the latest. 16 According to art from Polish Constitution, the President, the prime-minister, the ministers and ministers, the president of the National Bank, members of the National Council Broadcasting, the supreme comander of the armed forces might be held accontable for breaches of the Constitution and laws while exercising the prerogatives of the office. 7

8 Due to the fact that referendum to dismiss the President is organized, one should better understand the rules pertaining to the quorum and majority conditions to be attained in order to validate the results of the referendum. Serious problems occurred regarding art. 5 paragraph (2) and art. 10 of the Law no. 3/2000 on the referendum 17. According to the initial version of the Law, art. 10 stipulated that the President would be dismissed if an absolute majority of all the registered voters were to vote in favor of the dismissal. Law no. 129/ modified art. 10 of the Law no. 3/2000, and the initial rule was replaced by a new one according to which the referendum would be valid if a majority of all valid votes are in favor of the dismissal of the President. The constitutionality of the Law no. 129/2007 was judged by the Court following an objection of unconstitutionality. Among others, the Court stated that one should not abandon the idea that at some point in time the legislator might choose the rules according to which the President can be dismissed with a relative majority of casted votes 19. By Emergency Ordinance no. 103/2009, approved by Law no. 62/ , the already famous art. 10 was once again modified, stating in the new version that the President is dismissed only if an absolute majority of the registered voters agree with the dismissal. The constitutionality of the Ordinance was raised before the Court. As a result, in Decision no. 731/ , basically by adding to the law, the Court stated that the new version of art. 10 is constitutional only if a turnout quorum of at least half plus one of all registered voters is respected. This turn out quorum was seen by the Court as an essential prerequisite in order to achieve a real and effective will of the people, as a genuine premise for the authentically direct and democratic manifestation of the state sovereignty through the people, thus giving sense to the constitutional principle stated in art. 1 paragraph 2 of the Romanian Constitution (see the Court`s Decision no. 731/2012). Following Decision no. 731/2012 of the Court, new changes were brought to the Law no. 3/2000 on the referendum. Thus, according to Law no. 341/ , all the referenda, including the referendum for the President`s dismissal, are valid only if a turn-out quorum of at least 30% and a majority of casted votes in favor of the dismissal representing at least at least 25% of the total number of registered voters are reached. Deciding once again on the new rule, the Court changed its case law and stated that the rules governing the two types of the quorum are constitutional but they cannot be applied to referenda organized one year after the law entered into force 23. Since more than one year passed since the entering into force of Law no. 341/2013, at this moment, the law might be applied to a possible future referendum for dismissal of the President. 17 Published in the Official Gazette no. 84 from 24 th of February Published in the Official Gazette no. 300 from 5 th of May Published in the Official Gazette no. 162 from 7 th of March Th Court considered the law unconstitutional. Thus, the law was modified by the Parliament in accordance with the Constitutional Court`s Decision refering only to the mandatory majority of votes to validate the dismissal referendum. 20 Published in the Official Gazette no. 247 from 12 th of April Published in the Official Gazette no. 478 from 12 th of July Published in the Official Gazette no. 787 from 16 th of December Decision of the Constitutional Court no. 334/2013, published in the Official Gazette no. 407 from 5 th of July

9 Starting with 1990, the procedure to suspend the President for gross violations of the Constitution was initiated three times, but many more times used as a political issue for harsh debates between political actors 24. The first parliamentary vote to suspend the President was organized in However, an absolute majority of the votes in favor of the suspension from office of the President was not reached. In April 2007, the President was suspended by the Parliament, but the people confirmed their trust in the President. Following the dismissal referendum, 74,48% of the voters participating in the referendum were against the President`s dismissal. In July 2012, the President was once again suspended by the Parliament. This time, the vast majority of voters participating in the referendum agreed to the dismissal of the President. However, the Constitutional Court did not validate the final electoral results due to the fact that the turn-out quorum condition (50% plus one of the total number of registered voters) was not accomplished. As a specific element of the referendum campaign, the suspended President asked his supporters to stay home and boycott the referendum, thus trying to determine a turnout lower than the turn-out quorum demanded by the law on the referendum at that time. Only voters (46,24% of the all registered voters) participated in the referendum, thus the turn-out quorum was not reached and the Constitutional Court invalidated the results, while the President resumed his office. Therefore, alongside other political factors, the strategy of the President was successful, as he kept his office even though voters (87.52% of the valid votes cast) were favorable to the dismissal of the President. Before the legislative change which established a turn-out quorum of 30% of all registered voters in order to validate a referendum, the office of the Romanian President was somehow protected against an opposing Parliament, hence the development of a more rigid separation of powers under the umbrella of the Constitution which initial aim was to assure that the President and the Parliament are the most two stable central institutions of the state. After the legislative change adopted in 2013, the normative protection of the office of the President was significantly lowered, as he/she is now enjoying a limited legal protection against the discretionary power of the Parliament to suspend the President for gross violations of the Constitution. Moreover, in the event of a dismissal referendum, if the President is not popular enough, he/she might easily lose the office. 24 See Bogdan Dima, Conflictul dintre Palate. Raporturile de putere dinte Parlament, Guvern şi Preşedinte în România postcomunistă (Bucureşti: Hamangiu, 2014), pp and pp See also Bogdan Iancu, Separation of Powers and the Rule of Law in Romania: The Crisis in Concepts and Contexts, in Armin Von Bogdandy, Pál Sonnevend (eds.), Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Oxford: Hart Publishing House, 2014); Ramona Delia Popescu, The forms of direct democracy and their role in ensuring good governance, available online: verified at

10 II.6. Slovakia According to the Slovak Constitution, the President enjoys full immunity, except for willful infringement of the Constitution or for treason. At the initiative of at least one-fifth of all MPs, the National Council shall decide on the bringing of a prosecution on a President by a three-fifth majority of all parliamentarians. The National Council shall file the prosecution to the Constitutional Court, which will decide on its merits in a plenary session. A condemning decision of the Constitutional Court will trigger the loss of the presidential office and of the eligibility to regain this office. A specific element refers to the presidential prerogatives split between the Government and the National Council when the vacancy of the presidential office is declared (see art. 105 and 102 of the Slovak Constitution). Before the passage from parliamentarism to semi-presidentialism following the constitutional revision in 1998, the 1992 Slovak Constitution stated that the National Council could revoke the President if the latter endangered the sovereignty and territorial integrity of the country, and also for activities aiming at eliminating the democratic order. Moreover, concerning treason, the 1992 Slovak Constitution regulated that the indictment was decided by the National Council while the judgment was delivered by the Constitutional Court. Contrary to the constitutional provisions of other states, the Slovak Constitution establishes also a classic political accountability for the President of the Republic, which might be recalled via a plebiscite. Thus, a plebiscite on the recall of a President will be declared by the President of the National Council on the basis of a resolution of the National Council adopted by at least a three-fifths majority of all members of Parliament. The plebiscite will be held within 60 days of its declaration. The President will be recalled if an absolute majority of all legitimate voters agrees with his/her recall. However, if the President was not recalled, the President dissolves the National Council within 30 days of the announcement of the results of the plebiscite. In such a case, a new presidential electoral term shall begin also. In the post-communist period, no Slovak President was dismissed as a result of a Constitutional Court decision concerning a violation of the constitutional provisions. II.7. Slovenia According to the Slovenian Constitution, if in the performance of his office the President violates the Constitution or seriously violates the law, he/she may be impeached by the National Assembly before the Constitutional Court. By comparison with other countries, the Slovenian Constitution does not provide details regarding the parliamentary procedure for the impeachment of the President. However, the Rules of Procedures of the National Assembly does provide the necessary information (art ) 25. Thus, one-third of all MPs (30 out of 25 See Rules of Procedures of the Slovenian National Assembly; available online: GPw1vu771LTZm1KIFREVqXsJjTUFdTJXg3596zEouns67o47YFAAG6pHKyrdyqHqrC5ZeEl2hyDbpC6m5yTE7LRfrgJKPX omip8xynbgh4gr1sdauifm2hmkmxpfpqwraxmi683f-_fq- 1QAU_zGFVfkruytRutxWjjooDGGCClFx4mSDn5rNHLSUHwEYeyL55bn8Qtck-Rd/dz/d5/L2dBISEvZ0FBIS9nQSEh/, verified at 26 th of June

11 90) might initiate the procedure. The decision to impeach the President is adopted by a simple majority of the attending members of the Parliament, of course, if the quorum is reached (meaning at least half plus one of all members of the National Assembly). Moreover, if a decision is not taken by the Parliament in 60 days since the procedure was initiated, the proposal to impeach the President is considered rejected. After the majority of MPs adopt a decision to impeach the President, the Constitutional Court will decide if the impeachment charges are justified or not. In the last case, it will dismiss the charges. In the first case, it may further decide on relieving the President of the office by a two-thirds majority vote of all judges. Upon receiving a resolution on impeachment from the National Assembly, the Constitutional Court may decide (it is not by default) that pending a decision on impeachment the President of the Republic may not perform his office. No Slovenian President has lost his mandate following a decision of the Constitutional Court establishing that the President has indeed violated the constitutional provisions. II.8. Hungary According to the Constitution of Hungary, the President enjoys full immunity from criminal prosecution as long as he/she is holding the office. In fact, the Constitution expressly provides that criminal proceedings against the President might be instituted only after the termination of his/her office. However, if the President of the Republic willfully violates the Fundamental Law or, in connection with performing his/her office, any act, or if he/she commits a willful criminal offense, one-fifth of all the members of the National Assembly may propose the removal from office of the President. In order for the impeachment procedure to be instituted, the votes of two-thirds of all the members of the National Assembly are required. The voting will be held by secret ballot. The Constitution also provides that, as from the adoption of the decision of the National Assembly until the impeachment procedure is fully concluded, the President may not exercise his/her prerogatives. As in all other countries under scrutiny in this study, except Romania, the Hungarian Constitutional Court has the power to decide the dismissal of the President following the decision of the Parliament to initiate the impeachment. If, as a result of the procedure, the Constitutional Court establishes the responsibility of the President under public law, it may remove the President from office. No one of all the six Hungarian post-communist presidents after 1990 was removed from office by a Constitutional Court decision. Except President Pál Schmitt, who resigned on the 2 nd of April 2012 following a plagiarism public scandal, all the other Hungarian presidents have concluded their full term mandates, indicating that the office of the President is a stable one in the Hungarian constitutional architecture. 11

12 III. Measuring the stability of the presidential office It is my assumption that as long as the normative conditions to impeach the presidents are difficult to fulfill, the stability of the office of the president is greater, thus enhancing the degree of rigidity between the presidents (executive power) and parliaments (legislative power). This feature is relevant especially when the presidents are directly elected by the people mainly because when stability in office guaranteed by the constitution is doubled by a direct legitimacy resulted from the popular vote, the presidents tend to become influential actors, either imposing strategic directions for the country, either blocking decisions taken by the other state institutions. Regardless of how they have used their influence, the postcommunist presidents were all relevant institutional actors guaranteeing by their stability in office the checks and balances systems put in practice after the breakdown of the communist regimes in Central and South-East Europe. In order to measure the stability of the presidential offices with regard to the impeachment procedures for breaches of the Constitution, I developed four indicators (see Table 1). Each indicator refers to different possible situations and each situation received a specific score (between 0 and 4). The scoring variation is based on the degree of difficulty imposed by the constitutional provisions for the implementation of the impeachment procedures: the higher the score the more difficult it becomes to finalize an impeachment procedure, thus the greater the stability of the presidential office gets (see Table 2). First, I shall identify which type of parliamentary majority is needed in order for the parliament to validly adopt a motion to impeach the president. Such an indicator is relevant especially because the parliamentary majorities are hard to coagulate and they are highly unstable in post-communist countries, where extreme to moderate multi-party systems are the standard rule. Therefore, if a qualified majority is needed to adopt a motion of impeachment, it would be very difficult for such a majority to be achieved. That is why I shall note with 4 points such a situation. If an absolute majority is needed, I shall score 3 points. If a qualified majority of parliamentarians attending the plenary sitting while respecting the quorum condition is needed, I shall score 2 points. One point goes for the situation when a simple majority of the parliamentarians attending the plenary sitting while respecting quorum condition is needed. No points will be given to the situation when any parliamentarian, a parliamentary group or any other internal structure of the Parliament have the prerogative to adopt a motion of impeachment against the president, without a vote in a plenary sitting of the parliament. Second, I shall make a distinction between the dismissal of the president as a result of the people`s will expressed via a referendum and the dismissal of the president as a result of a trial which is judged by a specific institutional body (Supreme Court of Justice, a special jurisdiction or the Constitutional Court). In the first case, the success of the impeachment procedure rests upon the legal criteria for the validation of the referendum`s results. For example, if no turnout quorum is regulated and a simple majority of valid casted votes is provided, it becomes quite easy to dismiss the president; not to mention that any political actor (including a president) tends to lose his/her credibility after a certain period of time of being in office. In the second case, it is more difficult to succeed with the impeachment procedure 12

13 against the President, especially when the institution judging the motion of impeachment is either the supreme court or a special jurisdiction empowered with this specific prerogative by the constitution, the latter eventually led by the president of the supreme court (as for example, in Poland). Therefore, when the dismissal of the president is the result of a referendum, five different situations should be taken into consideration. If the dismissal is decided with a qualified majority of all registered voters, I shall score 4 points. If the dismissal is decided with an absolute majority of registered voters, I shall score 3 points. If the dismissal is decided with a relative majority of the valid casted votes while the turnout quorum is at least 50% of all registered voters, I shall score 2 points. If the dismissal is decided with a simple majority of the valid casted votes while the turnout quorum is more than 25% but less than 50% of all registered voters, I shall score one point. No points will be given when the dismissal of the president is decided by a simple majority of the valid casted votes while there is no turnout quorum or the turnout quorum is lower than 25% of all registered voters. When the dismissal of the president is decided by another public authority, six situations will be taken into consideration. If a supreme court or a special jurisdiction decides the dismissal of the president on the basis of a motion of impeachment adopted by the parliament, I shall score 4 points. If the Constitutional Court decides the dismissal of the president, I shall score 3 points. If the parliament decides to dismiss the president with a qualified majority of all members, I shall also score 3 points. If the dismissal of the president is decided by the parliament with an absolute majority of all its members or with a qualified majority of MPs participating in the plenary sitting, if the quorum is higher than 50% of all MPS, I shall score 2 points. If the parliament dismisses the president with a simple majority of attending members while the quorum is 50% of all MPs, I shall score 1 point. No points will be given to the situation when the president is dismissed by the parliament with a simple majority of attending members while the quorum for the plenary session is less than 50% of all parliamentarians or such a quorum is not regulated. Third, I shall refer to the discretionary power of the president to dissolve the parliament if his/her dismissal following the adoption of a motion of impeachment has failed. This indicator is relevant because the presidential prerogative to dissolve the parliament act as a blocking institutional device. The MPs opposing the president will use the impeachment procedure only when they have a legitimate expectation that the impeachment will end with the dismissal of the president, otherwise they might face the dissolution of the parliament, hence the loss of their own mandates. At least two situations are possible. If the president is not dismissed at the end of the impeachment procedure and he/she has a constitutional obligation or just a full discretionary power to dissolve the parliament, I shall score 3 points. No points will be given for the particular situation when the president is not dismissed at the end of the impeachment procedure and he/she has no prerogative to dissolve the parliament. Analyzing the constitutional provisions of the eight former communist states and the indicators as they have been presented above (see Table 1), it seems that only in Romania the impeachment of the president for breaches of the Constitution is a type of political 13

14 accountability 26. In all the other countries, the impeachment for breaches of the constitution is a type of legal accountability, alongside accountability for high treason or other breaches of the law. However, specific provisions regulating political accountability of the president are regulated in the Slovakian Constitution: the President might be recalled by a popular plebiscite even though he/she did not breach the Constitution. Nevertheless, as we have seen n the Section II of this article, the Slovakian Fundamental Law regulates also a procedure for the impeachment of the President for breaches of the constitutional provisions, as a specific type of legal accountability. According to Table 2, one can easily observe that in Romania and Slovenia the procedure for the impeachment of the president is easier to be initiated by the parliaments by comparison with Bulgaria, Czech Republic, Poland, Slovakia, and Hungary. In fact, Romania was the only country where the parliamentary majorities from 2007 and 2012 have voted for the suspension of the President, thus triggering two national referendums for his dismissal. Therefore, when the procedure to initiate and adopt a motion of impeachment against the president is less restrictive for the parliamentary majority, the parliaments tend to use it more often, especially when the president has no power to dissolve the parliament if the impeachment procedure fails. Considering that seven out of eight former communist countries have semi-presidential systems of government, it is quite easy to reach deadlocks between the directly elected president and an opposing parliamentary majority. In such a case, the constitutional and legal norms should induce stability for the presidential office by making it difficult for the parliament to initiate and adopt a motion of impeachment against the president, especially when the content of the motion refers to such abstract and precariousness concept of breaches of the constitutional provisions. In fact, a semi-presidential system of government with unstable presidential offices might be even worse in practice than a semi-presidential system with stable and influential presidents opposing the parliamentary majority. In the second case, such periods of conflict are inherently related to the system of government affecting at the worst the good functioning of the system, while in the first case the conflicts between presidents and parliaments might endanger the very existence of the whole system of government. IV. Conclusions I do believe that the constitutional designers in the early 1990s agreed to build stable presidential offices in order to formally guarantee the very stability of the new democratic regime. However, looking for stability, the constitutional designers open the door for the personalization of power for the presidential offices translated into a tendency more or less 26 In the first phase, the President might be suspended from office by the Parliament for gross violations of the Constitution. In the second phase, a dismissal referendum is organized. The results are validated if more than 30% of all registered voters participate to the referendum (turn out quorum) and the majority of casted votes representing at least 25% of all registered voters refer to the dismissal of the President. However, by comparison with Slovakia, in Romania the Parliament is not dissolved if the dismissal referendum fails. 14

15 pronounced to exercise influence over the governments and parliamentary majorities. However, this was an imminent process, considering that the first formal presidents of the new regimes were the massively appreciated informal leaders of the revolutionary movements. Considering also that seven out of eight presidents are now directly elected by the people, thus enjoying a direct popular legitimacy, the high symbolic stature of the presidential office is a given fact in the former communist states in Central and South-East Europe. Thus, tampering with the stability of the presidential offices in this part of Europe will be a very dangerous affair as it might affect not just the functioning, but the very existence of the young democratic regimes. To build the new democratic regime, one needed institutional stability, popular legitimacy and symbolic stature for the president, while the day to day governmental activities would be accomplished by a cabinet ruled by a prime minister politically accountable in front of a parliament endowed with massive prerogatives. At the beginning of the 1990s, the institution of the Parliament represented the cornerstone of the new constitutional architecture. However, over the years, its popular credibility has massively declined and its main legislative function is strongly under the influence of the executive power. In such a political and institutional reality, one should keep in mind that the democratic regime should be protected from potential institutional frustrations of any political actors by ensuring a more rigid power relation between the executive and legislative authorities (for example, complex procedures for impeachment of the presidents, as well as harsh conditions for the presidents to dissolve the parliaments). As a general rule, both the constitutions as also the political practice in the former communist states showed that the presidents of the new democratic regimes were relatively well protected against potential baffles from opposing parliamentary majorities. Therefore, even though there are some differences between the impeachment procedures across countries, the overall conditions needed in order to reach the dismissal of the president are quite difficult to attain. By regulating such harsh conditions, the constitutional legislators in former communist countries tried to build a stable office for the presidents, thus allowing them to represent and assure, even at a symbolic level, the stability of the state and of the new democratic regime. 15