On behalf of the Republic of Moldova, the Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Mr. Talal Igor DOLEA, GEOGRAPHIC LOCATION, Mr. Victor PALMER, Mr. Zadrahimi, judges, with the participation of Mrs. Ludmila Chihai, Registrar, considering the appeal filed on 20 December 2016 and recorded at the same time, examining the appeal referred to in public plenary, taking into account the acts and proceedings of the dossier , acting in the Council, following a judgment Pronounced: PROCEDURE 1. The origin of the case lies the exception of non-constitutionality of article 307 of the penal code, raised ex officio by the judicial panel examining complaints against standing decisions of Superior Council of magistrates and the Superior Council of the prosecutors within the Supreme Court of Justice in file No. 3-10/16, pending at the Supreme Court of Justice.
2. The plea of unconstitutionality has been lodged with the Constitutional Court on 20 December 2016 by the Panel of judges within the Supreme Court of Justice, pursuant to paragraph 1 of article 135. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016, and of the regulation on the procedure for examining complaints lodged with the Constitutional Court.
3. The author of the non-constitutionality exception claimed that article 307 of the penal code, which establishes the right of infringement consists of the delivery of the good science by a ruling by judge, judgment, decision or conclusion contrary to the law, comes into conflict with articles 6, 22 and 116 paragraphs 1 and 2. (1) of the Constitution.
4. By decision of the Constitutional Court of 27 December 2016 referral has been declared admissible, without prejudeca Fund case.
5. In the process of examination referral, the Constitutional Court requested the views of the President, Parliament, Government.
6. The Court has also sought the opinion of the European Commission for democracy through law of the Council of Europe (hereinafter "Venice Commission"). On 13 March 2017, the Venice Commission has communicated its Opinion of the Constitutional Court Amicus Curiae (CDL-AD (2017) 002) concerning the criminal liability of judges, adopted within the framework of the 110-to plenary session (Venice, 10-11 March 2017).
7. The public tender to the Court, the plea of unconstitutionality was presented by Ms. Iulia Sîrcu, judge of the Supreme Court of Justice. Parliament was represented by Valeriu Kuchuk, Chief Service representation at the Constitutional Court, and law enforcement agencies in the general direction of the Parliament Secretariat. The Government was represented by E, Deputy Minister of Judiciary Ov.
The MAIN DISPUTE CIRCUMSTANCES 8. In this case, a group of citizens has begun carrying out a republican constitutional referendum.
9. The Central Election Commission found that were not fulfilled conditions necessary for initiating the constitutional referendum and rejected the initiative.
10. The initiative group disputed the judgment of the Central Election Commission in the courts.
11. On 14 April 2016 Chisinau Court of Appeals overturned the judgment and ordered the Central Election Commission to adopt a decision concerning the constitutional republican referendum to revise the Constitution.
12. On 22 April 2016, judging the appeal declared by the Central Election Commission, the Supreme Court quashed the judgment of the Court of appeal, and has rejected a new judgment, by which it dismissed the claims of the initiative group for the constitutional referendum.
13. On 24 may 2016 interim General Prosecutor referred the matter to the Superior Council of Magistracy, requesting their agreement to start criminal proceedings and criminal prosecution of the Chisinau Court of appeal judge, M.d., for the alleged committing the crime referred to in article 307 of the penal code. The motivation of his approach, the Attorney General argued that, in its judgment, the Supreme Court found misinterpretation by the first instance of legal norms and limits exceeded its powers given by interpreting the Constitution and upheld the Central Election Commission to adopt an act.
14. By decision No. 369/17 of 31 May 2016, the Superior Council of Magistracy (SCM) has agreed to start criminal proceedings and criminal prosecution of the Chisinau Court of appeal judge, D. M. 15. On 13 June 2016 D.M. filed a claim in court against the Superior Council of Magistracy, which called for the annulment of decisions No. 368/369 and no. 17/17 of 31 May 2016.
16. By the conclusion of the Supreme Court of Justice College of 15 December 2016 was willing exception raising the constitutionality of article 307 of the penal code and the Constitutional Court to remit the referral resolution.
PERTINENT LEGISLATION 17. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 6Separaţia and cooperation of powers "in the Republic of the legislative, Executive and judicial powers are separate and cooperate in the exercise of their prerogatives under the Constitution."


Article 22Neretroactivitatea of law no one may be sentenced for actions or omissions which, at the time they were committed, did not constitute an offence. It also will not apply to any punishment harsher than the one that was applicable at the time of committing the Act offense. "


Article 116Statutul "(1) the judges of the courts are independent, impartial and irremovable under the law.
[...]. "
18. The relevant provisions of the Criminal Code of the Republic of Moldova No. 985-XV of 18 April 2002 (reprinted O.g., 2009, no. 72-74, art. 195) are as follows: Article 307Pronunţarea a judgment, decision, încheierisau ruling contrary to the law "(1) Pronunciation in good science by a ruling by judge, judgment, decision or conclusion contrary to law shall be punished by a fine in the amount from 650 to 1150 conventional units or by imprisonment for up to 5 years in both cases, with deprivation of the right to occupy certain positions or to exercise a certain activity for a period of up to five years.
(2) the same action: a) related to the charge of instigating a crime serious, very serious or exceptionally serious;
c) resulting in serious track

shall be punished with imprisonment from 3 to 7 years with depriving the right to occupy certain positions or to exercise a certain activity for a period of up to five years. "
19. The relevant provisions of law No 544-XIII of 20 July 1995 on the status of judges (republished in the Official Gazette, no. 2013, 15-17, art. 63) are as follows: Article 1Judecătorul, spokesman of the judicial power "[...] (3) the judges of the courts are independent, impartial and irremovable and obey only the law.
(4) the judges shall take decisions independently and impartially and without any restrictions, influences, pressures, threats or intervention, direct or indirect, from any authorities, including judicial authorities. Hierarchical organization of jurisdictions cannot affect the independence of the individual judge. "


Article 19Inviolabilitatea of the judge "(1) the personality of the judge is inviolable.
(2) the judge shall extend to the Inviolability of residence and his place of service, vehicles and means of telecommunications used by him, the correspondence, documents and personal property.
(3) the judge may not be held liable for his opinion expressed in the administration of Justice and for judgment if there will be established through the final sentence, his guilt of criminal abuse.
(4) criminal proceedings against a judge can only be switched on by the Attorney General or Deputy Prime, and in his absence, by a Deputy under the order issued by the Attorney General, with the consent of the Superior Council of Magistracy, under the code of criminal procedure. If it was committed by the judge of the criminal offences specified in article 243, 324, 326 and 330/2 of the Criminal Code of the Republic of Moldova, as well as in the case of flagrant crimes, consent of the Superior Council of Magistracy for starting criminal prosecution is not necessary.
(5) the judge may not be detained, subject to execution of greening, arrested, searched without the consent of the Superior Council of Magistracy. All procedural actions in respect to the judge, except in cases of flagrant crime, can only be performed after the issuance of the order to start the prosecution, with the guarantees established by constitutional norms and international laws. Consent of the Superior Council of Magistracy is not required in the case of flagrant offense.
(6) the judge may be subject to administrative sanctions only by court. The Court shall inform the Superior Council of Magistracy that sanction administrative judge.
(7) the judge shall, where it is suspected that he has committed a contravention, to be issued immediately after identification. "


Article 21Răspunderea of the judges ' disciplinary action (1) the judges shall bear disciplinary liability in the manner established by law No. 178 of July 25, 2014 with regard to disciplinary liability of judges.
(2) the cancellation or amendment of the judgment incurs according to law No. 178 of July 25, 2014 with regard to disciplinary liability of judges if the judge who pronounced it has violated the law intentionally or as a result of serious negligence. "
In LAW 20. Of constitutionality exception, the Court notes that this relates essentially to the criminal prosecution of judges has decided in good science a judgment, sentence, decision or conclusion contrary to the law.
21. Thus, the exception of constitutionality relate to a set of elements and principles with constitutional value, such as the separation of powers in the State, the independence and impartiality of judges in carrying out the Act of Justice and conditions in which may occur to the judge for criminal liability instruments adopted.
A. ADMISSIBILITY 22. By its decision of 27 December 2016, the Court verified the meeting the following conditions for eligibility: (1) subject to the exception comes into the category of acts covered by article 135 paragraph 1. (1) (a). of 23 of the Constitution). In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws, in particular the criminal code, is the responsibility of the Constitutional Court.
(2) Exception is raised by one of the parties or its representative, or indicates that it is lifted by the Court ex officio 24. Being raised ex officio by the judicial panel examining complaints against standing decisions of Superior Council of magistrates and the Superior Council of the prosecutors within the Supreme Court of Justice in file No. 3-10/16, on the role of the Supreme Court of Justice, the appeal regarding constitutionality exception is made by the subject in charge with this right under article 135, paragraph 1. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016, as well as the regulation on the procedure for the examination of complaints lodged with the Constitutional Court.
(3) the provisions of the contested to be applied to the settlement of the case 25. Note that the power of the Court to settle, with the exceptions of unconstitutionality that had been vested in it by article 135 paragraph 1. (1) (a). g) of the Constitution, requires correlation of laws and the Constitution, taking into account the principle of the supremacy of its provisions and to address the relevance of the contested dispute in the courts.
26. the court notice that the object of the main exception is in article 307 of the penal code.
27. The Supreme Court of Justice, in the conclusion of which was raised by the non-constitutionality exception, he noted that, although article 307 of the criminal code is not a rule of direct application in the matter, on the basis of this norm was formulated interim Attorney General approach by the Superior Council of magistrates, which, by decision No. 369/17 of 31 May 2016, and agreed to start criminal proceedings and criminal prosecution of judges within the Court of appeal. In this respect, the Court accepts the arguments of the author that the exception of unconstitutionality is there a causal link between the constitutionality of article 307 of the penal code and the solution to be given in this case.
(4) there is a previous judgment of the Court has as its object the contested provisions

28. the Court note that provisions challenged did not have previously been subject to constitutionality.
29. Following its previous case-law, the Court will address the issue of the constitutionality of the challenged provisions in respect of the circumstances of the dispute in the light of the main constitutional rules cited by the author of the exception, taking account both of the principles enshrined in the Constitution and in national law, and the ruling in the European Court.
30. Consequently, the Court considers that the exception of non-constitutionality of article 307 of the criminal code cannot be rejected as inadmissible and there is no other reason to interruption of the process, in accordance with the provisions of article 60 of the code of constitutional jurisdiction.
31. Thus, in order to elucidate the issues dealt with in the Court of constitutionality exception will operate with the provisions of article 116 paragraph 1. (1) combined with article 6 of the Constitution, with the reasoning set out in the case-law of the Court to that of the European Community, as well as with international principles and standards governing the independence of the judges.
B. the CASE of alleged infringement of the FUND article 116 paragraph 1. (1) combined with article 6 of the Constitution 32. The author argued that the exception rule is in contradiction with the provisions of the contested article 116 paragraph 1. (1) of the Constitution, according to which: "(1) the judges of the courts are independent, impartial and irremovable under the law.
[...].”
33. Equally, the author argues that the non-constitutionality exception provisions challenged in breach of article 6 of the Constitution, which stipulates that: "in the Republic of the legislative, Executive and judicial powers are separate and cooperate in the exercise of their prerogatives under the Constitution."
1. the author's Arguments exception neconsti-tuționalitate 34. Exception of unconstitutionality author considers that the provisions of article 307 of the penal code, according to which criminal offence constitutes a judgment, decision, conclusion or judgment is contrary to the law, affecting the principle of separation of powers in the State and the principle of judges ' independence.
35. The author claims that the exception should judges enjoy immunity, immunity towards the pursuit of laws issued in the exercise of their function, with the exception of committing offences with intent. Immunity of judges in the face of liability is a necessary condition of their independence when exercising their judicial activities.
36. At the same time, the complaint is that the functional immunity ensure the administration of justice by limiting the possibility of exercising the influence of factors outside of this process. This mechanism constitutes a guarantee of the separation of powers, judiciarului and other judicial immunity is an important factor in countries where democracy and mechanisms designed for the separation of powers have not been consolidated yet.
37. The author claims that the exception functional immunity protects judges against political influences, challenges, repression or external pressures. Its purpose is to protect the integrity of the judges in the face of possible reprisals on the part of persons who were prosecuted.
2. Arguments of the 38 authorities. In the opinion of the President of the Republic of Moldova by, the independence of judges is not an absolute immunity in criminal matters. They can be attracted to criminal liability for the Commission of crimes of both the common law and those committed in the exercise of the profession and in bad faith.
39. According to the Government, noted that the State's punitive policy does not constitute an interference in the work of the judiciary, or, when not exercising judicial powers, judges can be punished criminally.
40. According to the Government, criminal liability under article 307 of the penal code is to be applied only if the judge knows with certainty that judgements, sentences, decisions or the decisions handed down by him are illegal or when they are based on substantial violations of procedural or substantive nature.
41. in the opinion of Parliament, noted that judge handled exclusively on the basis of the law cause and within them. Consequently, pronouncing with good science by a ruling by judge, judgment, decision or conclusion contrary to the law is one of the most serious offences against justice.
3. Assessment of the Court 3.1. General principles concerning the independence of judges 42. The Court note that constitutional provisions for separation of powers into legislative, Executive and judicial powers (article 6), concerning the independence, impartiality and immovability of judges of courts of law (art. 116 (para. 1)), organic law relating to the establishment of the Organization of the courts, their competence and procedure of the Court (article 115 (para. 4)) define the legal status of judges in the Republic of Moldova and recognises as a justice independent and impartial branch of State power. 43. The judicial power is one of the three fundamental pillars of the modern democratic State, equal in importance. To carry out the duties of the judicial power must be independent of the legislative and executive branches, which implies freedom from any influence that can be exerted by these (HCC No. 23 of 25 July 2016, § 56).
44. The independence of the judiciary is the key element in terms of guaranteeing human rights and freedoms in accordance with the law and, therefore, is not an end in itself. This independence is derived from and to ensure a fair trial, which requires courts to be independent condition (HCC No. 23 of 25 July 2016, § 57).

45. Likewise, the independence of the judiciary as a whole guarantees the independence of individual judges. It must exist in relation to society in general and with the parties in any dispute over which judges must rule. The independence of judges is not a prerogative or privilege granted in the interests of judges, but it is a guarantee against external pressures in making decisions, being justified by the need to allow judges to carry out their role as guardians of human rights and freedoms. Thus, the independence of judges is a fundamental aspect of the rule of law and the guarantee of a fair trial (HCC No. 23 of 25 July 2016, § 58).
46. the Court notes that the constitutional provisions relating to the status of the judge sets out the same requirements and principles stipulated by international laws and agreements governing the status and rights of judges, their independence guarantees, taking into consideration the importance of Justice in defence of the rule of law.
47. Thus, according to the principles of the Bangalore regarding judicial conduct, "the judge shall exercise the judicial function independently on the basis of its own assessments of the facts and in accordance with the spirit of the law, without external influences, pressures, threats, suggestions and without any mixture, directly or indirectly, regardless of from whom it originated and what reason" (UN resolution 2003/43 of 29 April 2003).
48. In its recommendation CM/Rec (2010) 12 Member States regarding judges: independence, effectiveness and the responsibilities of the Committee of Ministers of the Council of Europe has established that: "5. Judges must have unrestricted freedom to settle cases impartially in accordance with the law and with its own assessment of the facts.
[...]
22. The principle of the independence of the judiciary implies independence of each judge in the exercise of judicial functions. Judges must take decisions independently and impartially, and that they can act without any restrictions, influences, pressures, threats or intervention, direct or indirect, on the part of any authority, or even judicial authority. Hierarchical organization of jurisdictions cannot affect the independence of the individual ".
49. the independence of judges is drawn and in Opinion No. 1 (2001) of the Consultative Council of European Judges of the Council of Europe (CCJE), according to which, in the exercise of his powers, the judge is not employee anyone; It is the holder of a State. He is so in service to the law and shall be accountable only to the front of it. The fact that the judge who resolves a case does not act according to rules or instructions from another person, from outside or within the judicial system, is one that should not be shown.
50. Moreover, under the opinion No. 1 (2001), the CCJE took note of the potential threat to judicial independence that might arise in the context of the judicial hierarchy. It recognizes that the independence of the judiciary depends not only freedom from unwanted external influences, but also freedom from unwanted influences, which might arise in certain situations from the attitude of other judges.
51. European Association of Magistrates, in its resolution of 27 September-2 October 2006, stressed that: "the Independence of the judiciary and the preeminent way to characterize the necessary rule of law, being a fundamental guarantee for a fair trial. At the same time, is a key pillar of a democratic State and have to be respected and reinforced by all State institutions, including the legislative power ".
52. Judicial Independence is to be treated and in the light of the concept of "independent court" enshrined in article 6 of the European Convention. The European Court stressed the importance of the independence of judges not only in relation to undue influences from outside the judiciary, but also inside this system (cause Parlov-Tkalčić v. Croatia judgment of 22 December 2009).
53. Given the fact that the concepts of independence and impartiality objective are closely linked together, the European Court has established that in certain circumstances they could be discussed (cause Parlov-Tkalčić v. Croatia judgment of 22 December 2009; cause Oleksandr Volkov v. Ukraine, judgment of 9 January 2013; the cause of Findlay v. United Kingdom, judgment of 25 February 1997).
54. Thus, with regard to the guarantees of a fair trial, the European Court has established that the impartiality of the judge must be assessed both according to a subjective approach, which takes into account the personal beliefs or interests of the judge in a case, and according to an objective test, which determines whether or not the judge offered sufficient guarantees to preclude any doubt motivated from this point of view (case Demicoli v. Malta No. 13057/87, judgement of 27 august 1991, § 40). By way of a principle, in the case of Italy Padovani v. (26 February 1993) the Court held that it is fundamental that in a democratic society courts, litigants should inspire trust art. 6 paragraph 1 of the Convention requiring each court to be impartial.
55. The European Court has pointed out on several occasions that the impartiality of a magistrate shall be presumed until proven to the contrary (Hauschildt v. Denmark, 24 May 1989).
56. According to the Venice Commission, in order to guarantee the independence of the judiciary, judges must be protected against any external influences, and induced to this end, they should just functional immunity (report on the independence of the judiciary. Part one: independence of judges). In addition, the Venice Commission pointed out that "it is essential to ensure the possibility of exercising the functions of the judges without their independence to be compromised for fear of criminal prosecution or civil action initiated by the injured party, including States ' authorities ' (CDL-AD (2014) 018, paragraph 37).

57. the court notice that, according to international standards, as a rule, immunity shall be granted to judges in order to ensure the exercise of the duties of the Office. Judicial independence is not a prerogative or privilege granted in the interests of the judge, rather it is a fundamental principle, an essential element of any democratic State, a precondition for the rule of law and a fundamental guarantee of a fair trial. The independence of judges must be regarded as a guarantee of freedom, respect for human rights and impartial application of the law. Judiciary must be independent in order to fulfil its role in relation to the other powers of the State, society in general and with the parties to the dispute.
58. At the same time, no matter how important it would be freedom of judges in the exercise of their judicial functions, it does not mean that judges are not responsible.
59. Thus, in its judgement No. 22 of 5 September 2013, the Court noted that the judge's independence does not exclude engaging its responsibility, it being conducted subject to prudenţe caused by the need to guarantee full freedom of judges against all pressures induced.
3.2. General principles of criminal liability for the acts of the judge handed down 60. The Court noted that the constituent legislator, acting that judges of the courts are independent, impartial and irremovable under the law, the independence of the judge to ensure the exclusion of any influences from other authorities. This warranty may not be interpreted as such that there is a lack of accountability of the judge. The Supreme Law, according to article 116 paragraph 1. (1) do not confer powers on only, that underlie the concept of independence, but sets certain limits, and which circumscribes the phrase "according to law".
61. Moreover, article 116 paragraph 1. (6) of the Constitution provides that judges may be punished in accordance with the law.
62. the Commission from Venice, according to Amicus (CDL-AD (2017) 002), adopted at the fifth plenary session of the 110-said it is necessary to establish a balance between the immunity as a means of protection of judges against excessive pressure and abuse on the part of the powers of the State or to individuals (immunity), on the one hand, and the fact that no judge is above the law (responsibility) on the other hand. Venice Commission consistently stressed that judges should not benefit from immunity, but functional immunity for acts performed in the exercise of their judicial functions. This is because, in principle, the judge should have immunity only in the performance of its functions. If he commits a criminal offence in the exercise of their functions, must not enjoy immunity in relation to criminal liability (§ 17).
63. the Court notes that, as in a democratic society the judge cannot be in the middle of an absolute immunity, it outlines the issue of employment conditions and modalities of the liability of the judge. Thus, it should be noted that, although the European standards allow judges to be held criminal responsibility in the exercise of their judicial functions, the threshold is pretty high.
64. In this respect, the court notice that, according to the recommendation CM/Rec (2010) 12: ' 68. There may be criminal liability of a trained judge for how to interpret the law, appreciation of the facts or evaluation, except in cases of bad faith. [...]
70. The judges shall not be personally liable in the event that their decision is invalidated or modified in an appeal. [...]”
65. The Universal Status of judges, adopted by the International Union of judges (Taipei, 1999) provides that when it allowed civil and criminal liability, civil action against a judge, and that in criminal matters, including arrest, must be carried out in conditions which cannot relate to the exercise of influence over judicial activity.
66. In its opinion No. 3 (2002), the rule that CCJE supports judges who, in the exercise of their committing deeds that would be considered offences under any circumstances (i.e. bribes) cannot invoke immunity in an ordinary criminal trial (item 52). With regard to cases where the abusive judges, CCJE recommends, in the States where you can embark on an investigation or a criminal action at the request of a private person, there should be a mechanism to prevent or halt such investigations or actions [...] if there are no facts to suggest that the judge must be held criminal responsibility (item 54).
67. Furthermore, in its opinion No. 18 (2015) on the position of the judiciary and its relationship with the other powers of the State in a modern democracy, the CCJE has stated that the tasks of interpreting the law, the review and assessment of the facts carried out by a judge to settle the cases, should not give rise to liability of the judge in cases of bad faith, intentionally , fault or gross negligence demonstrated.
68. Thus, the Court retains that simple interpretation of the law, establishing facts or appreciation of the evidence by the judges to settle causes give rise to civil liability, criminal or disciplinary, even in the case of ordinary negligence. The judges must have unrestricted freedom to settle causes their own impartial, according to beliefs and interpretations of facts and in accordance with applicable law. Civil liability (or criminal) may limit the discretion of a judge to construe and apply the law. Therefore, the responsibility of judges should not be extended to statutory interpretation it adopts in the judicial review process. Only errors committed intentionally, deliberately or with substance abuse, no doubt, with repeated or serious negligence should be balanced with disciplinary actions and sanctions, criminal responsibility or civil liability.

69. the court notice that, although there is a certain element of discretion in the interpretation of laws, determine the facts and assessment of evidence, intimate conviction of the judge is to operate within the limits of the legal framework. The intimate conviction of the judge in making a decision does not have the meaning of a simple subjective opinions of judges, but also that of certitude acquired it in an objective, evidence-based indubitabile.
70. the Court noted that the application and interpretation of law is the essence of the judicial function and constitutes a basic element of the judge's independence. The independence of individual judges must allow each of its full judgment and each make an effort to change the established practice-to adopt another decision-when you think that this should be done in a particular case. Of course, such a test will be done openly, and the judge must show coherent arguments regarding the reason for the cause under consideration differs from previous jurisprudence or reasoning why the previous jurisprudence applied should be modified. Subsequently the courts will decide whether the hierarchical superior or not follow this argument.
71. In general, the judge should not be limited only to the application of the existing jurisprudence. The essence of its function consists in interpreting rules of law in an independent manner. Sometimes, judges are required to apply and interpret legislation contrary to "national uniform judicial practice", when particular circumstances so require speței. Such situations may arise, for example, as a result of the implementation of international treaties, as well as where through international courts decisions which oversees the implementation of international treaties is requested modification of national judicial practice. Interpretation of the law, that one can make a judge and which may not conform to the established case-law, must not become, in itself, a reason for the imposition of disciplinary sanctions, except that this interpretation is done in bad faith, with the intent to obtain a benefit or harm one side to process or as a result of serious negligence. Even if the judges from courts of inferior must generally to existing case-law, lead by them should not be forbidden to appeal where, in their opinion, they believe that this is correct. This idea is shared by the Venice Commission in its Amicus opinion (CDL-AD (2017) 002).
72. the Commission from Venice, Italy, said the finding is possible lack of professionalism of judges only in case of manifestation of an insistent resistance against a consolidated practice, which repeatedly give rise to distinct solutions in cases in respect of which there is already a clear and well established case-law (opinion on the normative acts and disciplinary and evaluation of judges of "the former Yugoslav Republic of Macedonia" (2015)).
73. In this regard, and the European Court, in its jurisprudence, held that there is a right to a constant jurisprudence, so changing the case law imposed by a dynamic and progressive approach is permissible and does not infringe the principle of legal certainty (Unedic v. France, § 74, 2008; Legrand v. France, 2011), if two conditions are met: the new approach to be consistent at the level of that Court and the Court which decided to change the interpretation of the detailed recitals to motivate for which so decided (Atanasovski v. Macedonia, 2010 § 38).
74. Moreover, according to the European Court stated in rationales used cause Chevrol v. France, exercise of jurisdictions by a court means that you don't give up any one of the components of the function of judge. Thus, a court's refusal or inability to rule independently on certain crucial issues for resolution of the dispute, which has been referred to it, could constitute a breach of art. 6 § 1 of the European Convention.
75. It concludes that it is appropriate on the basis of European standards relating to the independence of the judges is that the process of adjudication of the case is not and has never been a purely mechanical task. For this reason, the European standards regarding justice protects the right and obligation of every judge, whatever the level of the hierarchy of the Court, to exercise the functions of adjudication cases free from any interference, either external or internal.
76. nonmecanic Aspect of adjudication of the case implies that individual responsibility for the exercise of judicial functions should not depend only on the solution given in the superior court. Responsibility should be linked more particularly just by judge professional conduct standards, ethics and respect for legal procedures. The mere fact that a court order is canceled in upper court doesn't mean that lower court judge from violated professional standards or violated the law.
77. In the report on the situation with regard to the judiciary and judges in the Member States of the Council of Europe no. 2 (2015) CCJE pointed out that, although criminal investigations in respect of judges are not illegal and there is no general immunity for judges, the authorities should respect, guarantee and ensure the proper functioning of the judiciary as the third power of the State. In this way, measures of investigation that could have the effect of preventing or impeding the functioning of the judicial procedures, should be used with utmost care by any organ of the prosecution.
78. the Court shall retain that independence of the judiciary implies a special status of judges must be protected against criminal prosecution bodies of subjectivism, which could affect its credibility. That's exactly why the legislature established a separate procedure and rigorous attracting judges to criminal liability, the determining role attributed to her in the process, the higher magistrates Council, as guarantor of the independence of the judiciary.

79. the Court notes that judicial independence requires the proviso that judges to be protected from the influence of other powers of the State and that each judge should be entitled to freedom in interpretation of the law, in assessing the facts and the evidence in each individual case. Erroneous decisions therefore must be corrected through appeal and may not have as a consequence the accountability of individual judges. Or the role of the right of appeal is to straighten out any mistakes of lower courts. As exceptions, can serve only if, in the process of decision-making, the judges acted in bad faith or admitted a serious omission. The same opinion is shared by the Venice Commission.
80. Next, the Court note that Parliament is free to decide on the penal policy of the State by virtue of the provisions of paragraph 2, article 60. (1) of the Constitution, as a single legislative authority of the country. At the same time, the Court retains that jurisdiction to get involved in the field of criminal policy and the compliance with the rule, any contrary attitude forming an interference into the competence of this constitutional authority.
81. Thus, the Court recognizes that, in this area, the legislature enjoys a discretion broad enough, considering that it is in a position which enables it to appraise, depending on a number of criteria, the need for specific policies. However, note that although, in principle, Parliament enjoys exclusive competence in regulating the measures relating to the State's criminal policy, this competence is not absolute in the sense of exclusion for exercising supervision of the constitutionality of the measures taken.
82. the Court finds that the criminalization of certain acts/decriminalization times resetting the constitutive elements of a crime falling within the margin of appreciation of the legislature, that margin is not absolute, it is limited by the principles, values and constitutional requirements.
83. In this regard, the Court retains that the legislature must use criminal means of determining the basis of social value preserved, the Court being empowered to censure option the legislature where they contravene the principles and requirements of constitutional rank.
84. In that context, the Court note that, in the exercise of legislative competence in criminal matters, the legislator must take into account the principle according to which an offence criminalizing acts that must intervene as a last resort in protecting a social values, guided by the principle of "ultima ratio", which signifies that the criminal law is the only measure that could achieve the purpose pursued, other civil order administrative, disciplinary, etc. being ineffective in achieving this aim.
85. In the same vein, the Court note that, from the perspective of the principle of "ultima ratio" in criminal matters, it is not enough to note that the facts relating to affect social value protected, but this prejudice must have a certain degree of intensity, severity, justifying the criminal sanction.
86. the Court points out that the judges cannot be compelled to exercise the powers under the threat of a sanction, which may adversely influence the decisions to be taken. However, in the exercise of their duties, judges should have unrestricted freedom to settle cases impartially, in accordance with the legal provisions in force and their own appraisals, unaffected by bad faith. Feedback from these discussions, the judge who determined the adoption of a decision on a specific question, the judgment that has annulled or altered, cannot serve as a decisive basis for penalizing judges. Application of normative acts, being the primary task of the courts, where it comes in contradiction with the fundamental rights of the person, becomes attributable to the judge only in consequence of his duties in bad faith or negligence in the conduct of Justice.
3.3. Application of article 307 of the penal code in relation to the principles set forth in the 87. The court notice that, according to article 307 of the penal code, the judge may be held liable for criminal proceedings in good science to a judgment, sentence, decision or conclusion contrary to the law.
88. the Court finds that by setting up the art. 307 of the penal code of the phrase "pronunciation in good science," the legislator has determined that the judge may be held responsible for this criminal offence is composed exclusively of only where it is demonstrated its intention to hand down judgment, sentence, decision or conclusion contrary to the legal provisions.
89. the Court reiterates that the judges according to the principles of international judicial independence cannot be held liable for (1) miscarriages of Justice that does not imply bad faith, and (2) differences in interpretation and enforcement. The main remedy for the correction of these errors is the exercise of rights of appeal, and the scrapping of a ruling by the higher courts do not automatically mean that the judge did not act in a professional way.
90. the Court shall retain the fact of using a Court quashed by a superior court as the reason for the determination of ilegalității and attraction to the criminal responsibility of judges does not correspond to European standards itself.
91. the Court shall retain the principle that the responsibility to refrain from resorting to unwarranted article 307 of the penal code against judges and avoid a stigmatizant effect upon them, they have not only the Attorney General and the courts, but also, in particular, the Superior Council of Magistracy, as a guarantor of the independence of the judiciary. Therefore, the Superior Council of Magistracy, the initiating criminal cases under article 307 of the penal code, is required to take account of the fact that criminal liability must remain always a degree to which recourse as a last resort. Therefore, consideration should be given, every time, whether measures other than criminal ones, for example, sanctions or disciplinary in nature, might not be effective.

92. the Court shall retain that criminal liability of judges pursuant to article 307 of the penal code may be compatible with the principle of independence of judges only following a restrictive interpretation, and only on the basis of irrefutable evidence that would prove the intent of the judge in issuing judicial act contrary to the law.
93. With regard to the process of assessing the evidence in the case-law of the European Court was the standard "beyond reasonable doubt" ("beyond reasonable doubt"), which implies that, in order to be given a life sentence, the charges must be proven beyond a reasonable doubt (see cause Bagnall v. Romania judgment of 6 December, 2006; Orhan v. Turkey, judgment of 18 June 2002; Ireland v. United Kingdom, judgment of 18 January 1978) 94. The existence of evidence beyond a reasonable doubt constitutes an essential component of the right to a fair trial and establishes the responsibility of the prosecution to prove all requirement elements of guilt in a manner suitable to remove the doubt.
95. In this connection, the Court noted that, in accordance with principles of criminal procedure, the burden of proof rests with the prosecution, and the situation of doubt is interpreted in favour of the person accused (in dubio pro reo). When starting the prosecution pursuant to article 307 of the penal code and the sentence of condemnation proceedings, the prosecution and the Court must base their belief regarding the judge's guilt on the basis of reliable evidence and arguing that leave no doubt concerning the guilt of the accused. Or, the Act of imputing pronouncement in good science by a ruling by judge, judgment, decision or conclusion contrary to the law, you must prove your understanding of the character of the deed injurious, detrimental consequences and predictability thereof.
96. The factor of intention of the Act is volitive article 307 of the penal code should express the desire of certain failures, consequences contrary to the law, the judge to whom it shall be charged to the deed being sure of the certainty of consequences of failures.
97. the Court shall retain the principle that provisions on criminal liability of judges should be interpreted so as to protect the judges of any arbitrary interference in their judicial functions.
98. the Court noted that judges within the courts, courts of appeal and the Supreme Court of Justice may be brought to criminal responsibility pursuant to article 4. 307 of the penal code only where it is clearly proven beyond any reasonable doubt, the intention in a direct delivery, sentence, decision or conclusion contrary to the law.
99. In the context of those set out, the Court points out that the criminal responsibility of judges pursuant to article 13. 307 of the penal code itself is not contrary to constitutional principles as long as through the mechanism of the criminal are respected guarantees inherent in the independence of judges, any doubt being construed in favor of the judge.
For these reasons, under articles 135 para. (1) (a). a) and g) and 140 of the Constitution, 26 of the law on the Constitutional Court, 6, 61, 62 lit. a) and e) and 68 of the code of constitutional jurisdiction, the Constitutional Court HOTĂRĂȚTE: 1. The exception of constitutionality raised by Panel Supreme Court for handling against the decisions of the Superior Council of magistrates and the Superior Council of public prosecutors, in file No. 3-10/16.
2. recognizes the constitutional article 307 of the penal code of the Republic of Moldova No. 985-XV of 18 April 2002, to the extent that the judges within the courts, courts of appeal and the Supreme Court may be held liable only for the criminal proceedings with the intention of a judgment, sentence, decision or conclusion contrary to the law.
3. This decision is final, cannot be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.