Alexandru Tănase refuses to withdraw his criticism of Dorian Istratii and claims that the appointment of Herman von Hebel was the result of a "fraud of the procedure": "The CC decision in the von Hebel case, treated, essentially, like a piece of toilet paper, devoid of any legal value"

The former president of the Constitutional Court, Alexandru Tănase, responds harshly to PAS MP Dorian Istratii, who asked him to withdraw his statements about his comment on the Court's ruling on the "von Hebel law" and to publicly apologize. The parliamentarian classified the statements attributed to him by Tănase as "false". Istratii mentioned that, if the former president of the CC does not deny the statements, he reserves the right to consider him "an ordinary liar". Tănase refuses to withdraw his criticism and claims that he made a value judgment, based on the statements and public conduct of the MP.

In a Facebook post, Tănase states that Istratii was dissatisfied with his criticisms and threatened him with legal action.

"I learned that a brilliant parliamentarian is furious and is threatening me with legal action because I allowed myself to criticize his public activity. He was deeply dissatisfied with a value judgment I made regarding one of his statements. My criticism stemmed from a contradiction that I consider fundamental: although deputies are bound by the obligation of constitutional loyalty, the attitude of our brave parliamentarian results in a disregard for the Constitutional Court's decision in the von Hebel case, treated, in essence, like a piece of toilet paper, devoid of any legal value," Tănase wrote in a Facebook post.

The former president of the Constitutional Court claims that he did not reproduce the parliamentarian's statement word for word, but that he reproduced what he considers to be its essence.

"It is true, I did not reproduce his statement word for word. As a rule, I tend to quote accurately when I refer to Hans Kelsen or Carl Schmitt. However, when it comes to the emanations from the well of Moldovan parliamentary thought, I consider it more useful to reproduce the essence of the reasoning than every word spoken. At least in order not to further disturb those who have the patience to listen to us. However, I have faithfully reproduced, in my opinion, the spirit and logic of his statements," Tănase also stated.

Tănase harshly criticizes PAS deputy Dorian Istratii, whom he mocks regarding his level of legal culture.

"A person with a minimum of legal culture should know the distinction between factual statements and value judgments. They should know that a value judgment involves interpreting facts or statements and formulating their own conclusions on their meaning, logic and implications. It is not reduced to the literal reproduction of what is stated, but expresses the author's critical assessment of their meaning and consequences," said Tănase.

The former president of the Constitutional Court argues that the limits of admissible criticism are considerably wider in the case of politicians than in the case of private individuals.

"Those who choose to enter political life consciously and inevitably expose themselves to rigorous public scrutiny of their statements and actions. And, above all, they should be aware of a principle long established in the jurisprudence of the European Court of Human Rights: freedom of expression protects not only information and ideas received favorably or considered harmless, but also those that offend, shock or disturb," explained Tănase.

Tănase proposes a public debate to Istratii, stating that, in political debate, certain doses of exaggeration and provocation are admissible. According to the former CC president, polemical language, irony and sarcasm do not become illicit just because a dignitary feels offended.

"If my interpretation is not to the liking of the brilliant parliamentarian, I am ready for a public debate in which I will explain, in detail, with references to the jurisprudence of the Constitutional Court and to the Joint Opinion of the Venice Commission and the Directorate General for Human Rights on the amendments to Laws no. 65/2023 and no. 252/2023, why I consider that the appointment procedure of Herman von Hebel was abusive and why the legislative intervention that made this appointment possible contravenes the principles of the rule of law," Tănase also said.

Tănase claims that he will demonstrate, with arguments based on constitutional jurisprudence and specialized doctrine, why he believes that, after the Constitutional Court's decision of October 15, a Parliament that acts with loyalty to the Constitution had the obligation to repair the consequences of this abuse.

"I will also explain why it is inadmissible for Parliament to rely on the formal aspects of a constitutional decision to disregard its substance and evade its consequences. Respecting the Constitution is not an exercise in procedural skill, in which you look for loopholes to preserve the result of a legislative intervention declared unconstitutional. It involves respecting in good faith the authority of the Constitutional Court and the principles it protects.

Constitutional loyalty does not mean respecting only what suits you in a Court ruling and ignoring the rest. It means accepting even the constitutional consequences that are politically inconvenient to you.

The issue of Herman von Hebel's appointment cannot be ignored just because someone wants to sweep the dust under the rug. It is a matter that concerns the integrity of the institutions, respect for the decisions of the Constitutional Court, and the credibility of the justice reform.

As for the threat of judgment... the great poet's words: "We endure everything with joy, whether it's peace or war," Tănase mentioned.

He returned to the subject, stating that, in the context of the von Hebel scandal, he maintains his previously expressed position. He claims that his opinions are value judgments, based on public facts and circumstances, which he analyzed and from which he drew his own conclusions.

"Modifying the rules of the game during the game, when done by Parliament to achieve a result that could not have been achieved according to the initial rules, represents, in my opinion, a fraud of the procedure and a violation of the principles of the rule of law."

Parliament is not entitled to modify the rules of a procedure for appointing a public office while it is already underway, after it finds that the person it wishes to promote does not meet the majority of votes required by law.

The moral value of a conduct is not measured exclusively by its formal conformity with the law, but also by the principles that determine it. Not everything that can be done by a parliamentary majority becomes, by the simple fact of adopting a law, morally and constitutionally legitimate.

I am convinced that an integrity evaluator who has benefited from such a controversial "dedicated" legislative intervention no longer has the moral authority necessary to demand that others respect standards of conduct, as long as he accepted the position following a procedure that I consider to be clearly fraudulent.

I am absolutely convinced that keeping Herman von Hebel in office, in the circumstances created by the Constitutional Court's ruling, undermines the credibility of the judicial reform as a whole.

And finally, I believe that Herman von Hebel's refusal to step down from this position raises serious questions about the standards of integrity he claims to promote. Integrity cannot be a requirement applicable exclusively to others. It begins with one's own conduct," Tănase pointed out.

We remind you that the parliamentarian asked Alexandru Tănase to publicly apologize and deny the statements. At the same time, Istratii requested the right to reply on N4, on the same day of the week and at the same time that the show in which Tănase made the statements was broadcast.

We recall that, on October 15, the CC declared unconstitutional the legislative amendments promoted and voted on in March by PAS, which reduced from 61 to 51 the number of votes required for the appointment of international members of external evaluation committees.

The President of the High Court, Domnica Manole, explained on October 15 that the amendment had no indispensable connection with the draft in which it was included, violating the constitutional requirement for voting on organic laws in at least two readings. At the same time, the Court established that the ruling does not affect acts previously issued based on the contested provisions, including the appointment of Herman von Hebel.

On October 15, during the show "Cutia Neagră" on TV8, PAS deputy Dorian Istratii commented on the CC's decision.

"Even the amendment and the draft law were in the field of justice. Because the draft law was about the safety of judges and prosecutors, but the amendment was about the Commission that conducts the external evaluation of judges and prosecutors. The Constitutional Court made it clear that the amendment must be strictly about the safety of prosecutors and judges. In other words, this amendment did not stick well. Accordingly, even if it was voted on, it should have been voted on in two readings. I assume that my colleagues in the Legal Committee decided that it was enough for the amendment to be applied to this draft law and because of this, it was not voted on in three readings. I must specify that the Constitutional Court's decision is enforceable from today onwards and in no way has retroactive effect, which means that the Commission will continue to do its work," he said.

Later, on October 20, on the "Fourth Power" show on N4, Alexandru Tănase criticized the deputy's comment.

"The reaction of MP Dorian Istrati when Mrs. Rață asked him about the execution of the Constitutional Court's decision... He laughed mockingly, effectively spat on a Constitutional Court decision. (...) It is something that goes beyond the von Hebel issue. This goes beyond the issue of judicial reform. We are entering another area, the area where a person who is obliged by his status to respect the principle of loyalty to the Constitution says: "I don't care, we're moving forward. No one is stopping us". This is unacceptable", the former CC president noted.