The Initiative To Revise Article 70 (3) Of The Constitution (Mp Immunity) (Notification No. 14C / 2016)

Original Language Title: asupra iniţiativei de revizuire a articolului 70 alineatul (3) din Constituţia Republicii Moldova (imunitatea deputatului) (Sesizarea nr. 14c/2016)

Read the untranslated law here: http://lex.justice.md/index.php?action=view&view=doc&lang=1&id=364111

the initiative to revise Article 70 (3) of the Constitution

(Immunity MP)
(Notification no. 14c / 2016)


Posted: 08/04/2016
in the Official Gazette

Nr. 90-99
Article No. 30
Effective Date: 16/03/2016

On behalf of the Republic
Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA,
Mr. Victor POPA, Judges, Sorina Munteanu
with Ms Registrar,
Considering the complaint filed
1 March 2016 and registered on the same date
examining the notification mentioned in the council chamber acts given
and on file
Adopts the following opinion:
1
PROCEDURE. The case originated notification is submitted to the Constitutional Court on 1 March 2016 by the Government, pursuant to Articles 135 para. (1) c) and 141 para. (1) c) of the Constitution, Article 4 para. (1) c) of the Law on Constitutional Court and Articles 2 para. (1), paragraph 38. (2) and 63 lit. a) the Constitutional Jurisdiction Code, which requires approval of the bill amending Article 70 (3) of the Constitution.
2. The bill to amend the Constitution provides:
"Single article. - Article 70 of the Constitution, adopted on 29 July 1994 (Official Gazette of the Republic of Moldova, 1994, no. 1), as amended and supplemented, (3) reads as follows:
(3) MP can not be searched or detained at home and / or residence, can not be detained or arrested without the consent of Parliament, except the existence of a final judgment of conviction or flagrant offenses. "
March. The bill amending Article 70 of the Constitution was approved by Government Decision no. 202 of 26 February 2016. The relevant legislation

4. The relevant provisions of the Constitution (OJ 1994, no. 1) are:
Article 1 Moldova State


"[...] (3) The Republic of Moldova is a democratic law, where human dignity, rights and freedoms, free development of human personality, justice and political pluralism represent supreme values ​​and are guaranteed."

Article 7Constituţia the Supreme Law

"The Constitution is the supreme law. No law or other legal act that contravenes the Constitution has no legal power. "

Article 60Parlamentul supreme representative and legislative

"(1) Parliament is the supreme representative body of the people of Moldova and the sole legislative authority of the state.
(2) Parliament consists of 101 members. "
Article 63Durata mandate


"(1) Parliament is elected for a term of 4 years [...].
(3) The mandate is extended to Parliament legally meets the new structure. During this period the Constitution can not be changed and can not be adopted, amended or repealed organic laws. "
Article 70Incompatibilităţi and immunities


"(1) The membership is incompatible with any other remunerated position, except in education and research.
(2) Other incompatibilities shall be established by organic law.
(3) A deputy may not be detained, arrested, searched, except in cases of flagrant crime, or prosecuted without the consent of parliament after the hearing. "
Article 72Categorii laws


"(1) Parliament passes constitutional, organic and ordinary laws.
(2) Constitutional laws are aimed at revising the Constitution.
[...] "

Article 135Atribuţiile [Constitutional Court]

"(1) The Constitutional Court:
[...]
c) on initiatives to revise the Constitution;
[...] "
Article 141Iniţiativa review


"(1) Revision of the Constitution may be initiated by:
[...]
c) Government.
(2) Constitutional draft laws will be submitted to Parliament together with the Constitutional Court, adopted by a vote of at least 4 judges. "
Article 142Limitele review


"(1) The provisions regarding the sovereignty, independence and unity of the state and those regarding the permanent neutrality of the State may be revised only by referendum by a majority of voters included in the electoral lists.

(2) No revision may be made, if it implies the rights and freedoms of citizens or their guarantees.
(3) The Constitution shall not be revised during a state of emergency, siege and war. "
Article 143Legea on amending the Constitution


"(1) Parliament has the right to pass a law on amending the Constitution at least 6 months after the initiative was submitted. Law shall be passed by a two-thirds majority vote.
(2) If, after the submission of the initiative on amending the Constitution, Parliament has not passed the appropriate constitutional law one year, the proposal shall be considered void. "
5. The relevant provisions of the Criminal Procedure Code of the Republic of Moldova, no. 122-XV of 14 March 2003 (republished in OJ 2012, no. 263-269, art. 855) are:

Article 1Noţiunea and purpose of criminal proceedings

"[...] (2) Criminal aims to protect the individual, society and state crimes and protecting the individual and society unlawful acts of individuals in positions of responsibility in their alleged crimes or related research committed, so that any person who committed a crime would be punished according to his guilt and no innocent person would be prosecuted and sentenced. [...] "
June. The relevant provisions of Law no. 39 April 7, 1994 MP status (republished in the Official Gazette, 2005, no. 59-61, art. 201) are:
"Art.10. - (1) A deputy may not be detained, arrested, searched except in cases of flagrant crime, or prosecuted on criminal case or minor without prior approval of Parliament after the hearing. [...] "THE LAW

July. From the content of the notification, the Court observes that it essentially aims possibility of revising the Constitution in respect of the limitation of deputy immunity.
August. According to the applicable provisions of Article 70 of the Constitution, the deputy can not be detained, arrested, searched, except in cases of flagrant crime, or prosecuted without the consent of parliament after the hearing.
September. The draft law proposes to exclude parliamentary immunity not only in cases of flagrant offenses, but additionally (1) the step of sending the case to court and (2) if the existence of a final judgment of conviction.
10. Constitutional Court's jurisdiction to resolve the present case is referred to the provisions of Article 135 para. (1) c) of the Constitution, according to which the Constitutional Court decides on initiatives to revise the Constitution.
I. General on amending the Constitution
11. Constitution is the fundamental legal framework in terms of content regulation, but also the supreme legal, as legally, for the organization and functioning of the state and society, it is the source of all legal regulations.
12. Opinion No. 1 of 22 September 2014, the Constitutional Court stated:
"21. Protection of the Constitution of Moldova expresses both within the review provided for in Article 142 of the Constitution and the rigidity of procedures provided for the adoption of the review. "
13. Referring to the issue of constitutional revision, the Decision no. 57 of 3 November 1999 on the interpretation of art. 75, art. 141 para. (2) and 143 of the Constitution, the Court stated:
"3. In the opinion of the Constitutional Court, the constitutional revision is to change its redrafting repeal certain rules or adding new text. "
14. Regarding protection guarantees of the Moldovan Constitution, in the same Decision no. 57 of 3 November 1999, the Constitutional Court stated that:
"[I] n its quality of writing and systematic establishment of normative supreme law in the legal system, the Constitution is relatively rigid in the sense that it admits the revision, but only for an initiative aimed at revising technical default (141), limits the review (Article 142) and its procedure (Article 143). "

15. In Decision no. July 4 March 2016 on the control of constitutionality of some provisions of Law no. 1115-XIV of 5 July 2000 on amending the Constitution of the Republic of Moldova, the Court noted that the constitutional provisions relating to revision of the Constitution shall be determined by the concept, nature and purpose of the Constitution itself. In this respect, any review must not be operated in compliance with the principles of supremacy of the Constitution, its stability, unity of matter and balance values ​​established by the Supreme Law and the task of the Constitutional Court to decide on initiatives to revise the Constitution in the exercise of shared Parliament and the Court in the process of amending the Constitution. There can be no amendment to the Constitution adopted that would affect harmony with the Constitution or the harmony of values ​​enshrined in them. However, the nature of the act legally Constitution supreme and constitutional idea implies that there is neither internal contradictions there may be gaps or the Constitution.
16. Meanwhile, in the judgment the Court pointed out that under Article 135 para. (1) c) in conjunction with Article 141 para. (2) of the Constitution, after delivery of the notice by the Constitutional Court, are not allowed intervention in the text of the draft law on amending the Constitution and ignoring or overcoming it may serve as grounds for invalidity of such alteration .
II. On the legislative proposal to amend the Constitution
1. 17
provisions and scope of the project. The draft law proposes to exclude immunity is submitted to the step "of sending the case to court".
18. Respectively, according to the draft, the deputy immunity will only be maintained to carry out certain measures of constraint, namely body searches or at home and / or residence, arrest and detention. These measures shall be applied only with the consent of Parliament, except in cases of flagrant offenses or the existence of a final judgment of conviction.
19. According to the Government, the constitutional draft law was elaborated in order to enforce paragraph 5.3 of Section A "Political corruption, independence and effectiveness of institutions" Government Action Plan for the years 2015-2016, approved by Government Decision no. 680 of 30 September 2015, and amendment of Art. 70 para. (3) of the Constitution is required by the existing legal mechanisms currently insufficient for criminal liability for offenses committed deputies.
2. The initiative to revise the Constitution
20. Under Article 141 of the Constitution:
"Revision of the Constitution may be initiated by:
a) of at least 200 000 Moldovan citizens with voting rights [...];
B) of at least one third of MPs;
C) Government. "
21. In this case, the legislative proposal to revise the Constitution shall be submitted for approval to the Constitutional Court by the Government, was approved by Decision no. 202 of 26 February 2016. The right of legislative initiative to revise the Constitution has been exercised in compliance with article 141 para. (1) c) of the Constitution.
March. 22
limits constitutional revision. Regarding the limits of revising Article 142 of the Constitution provides:
"(1) The provisions regarding the sovereignty, independence and unity of the state and those regarding the permanent neutrality of the State may be revised only by their referendum by a majority of voters included in the electoral lists.
(2) No revision may be made, if it implies the rights and freedoms of citizens or their guarantees.
(3) The Constitution shall not be revised during a state of emergency, siege and war. "
23. Text cited conditions governing constitutional review intrinsic initiative [para. (1) and (2) of article 142] and extrinsic its constitutionality [para. (3) 142].
A) The constitutionality of extrinsic (time limits)

24. In terms of constitutionality extrinsic the circumstances revision of the Constitution, the Article 142 para. (3) of the Basic Law, which prohibits revise the Constitution during a state of emergency, siege and war, corroborated by that of Article 63 para. (3 ) second sentence of the Constitution, according to which Parliament can not revise the Constitution during the term of office extends until the meeting structure of the new.
25. Also include time limits for its adoption of the initiative to revise the Constitution.
26. In accordance with Article 143 of the Constitution, which governs the amendment of the Constitution, a law on amending the Constitution may be approved with at least 6 months after the initiative was submitted.
27. The Court notes that, when initiating constitutional revision in the present case does not subsist any of the situations mentioned constitutional texts that refer, the extrinsic conditions for the constitutional review initiative.
B) The constitutionality of intrinsic (material limits)
1.1. General
28. To rule on the constitutionality of intrinsic (material limits) requires analysis of proposed changes in relation to the provisions of article 142 para. (1) and paragraph. (2) of the Constitution, to determine whether the scope of the review is the sovereignty, independence and unity of the state, as well as those regarding the permanent neutrality of the state and whether proposed changes have resulted in the suppression of fundamental rights and freedoms of citizens or their guarantees.
29. The Court will examine whether the proposed constitutional amendments do not conflict with other constitutional provisions and if they ensure their applicability as a whole without excluding each other.
1.2. Exclusion of parliamentary immunity to the stage of sending the case to court
30. The Court notes that by excluding the phrase "prosecuted" in Article 70 para. (3) of the Constitution, additional prosecution stage, it is proposed to deprive deputies of immunity and at the stage of sending the case to court.
31. Thus, in respect of the imperative of fighting corruption, invoked by the author of the initiative to revise the Constitution, the Court notes that Resolution (97) 24 of the Committee of Ministers of the Council of Europe (adopted on 6 November 1997), which covers the twenty guiding principles for the fight against corruption provides that Member is to "ensure to limit any immunity from prosecutions and penalties on corruption, what is necessary in a democratic society" (p. 6) and " encourage research into corruption "(p. 18).
32. The Court also stated that Article 30 para. (2) the United Nations Convention against Corruption (October 31, 2003) states that "each State Party shall take the necessary measures to establish or maintain, according to its legal system and its constitutional principles, an appropriate balance between any immunities or jurisdictional privileges its public officials acting in their possibility, if necessary, for investigating, prosecuting and adjudicating offenses established in accordance with this Convention ".
33. At the same time, the Court recalls that the immunity is justified by the need to protect the parliamentary term as a guarantee of accomplishment constitutional prerogatives, aimed at protecting parliament against repressive measures, arbitration, which could be taken by the political power and would affect its independence .
34. Referring to the parliamentary inviolability, the Venice Commission stated:
"184. The Venice Commission considers that the rules governing parliamentary inviolability are not a necessary part of a modern democracy. In a well-functioning political system, MPs enjoy adequate protection through other mechanisms and do not require a special immunity of its kind.

185. The Venice Commission, however, acknowledges that the rules stipulate inviolability may, in some states, to fulfill the democratic function of protection of Parliament as an institution, and in particular the parliamentary opposition, an undue pressure or harassment by the executive power court or from other political opponents. The rules establish parliamentary inviolability may therefore be justified where other measures to protect members of Parliament are inadequate. But they should always be interpreted and applied in a restrictive manner. Such rules shall be subject to limitations and conditions, and must always be the possibility of lifting immunity, following clear procedures and impartial. "
[Report on the limits and lifting parliamentary immunity (CDL-AD (2014) 011 ), approved in the framework of the 98th plenary meeting from 21 to 22 March 2014]
35. Regarding the concept of "inviolability" parliamentary Venice Commission indicated that it refers to all regulations that protect the deputy, in one way or another, the legal consequences of the alleged violations. In general, these rules protects MPs from criminal liability without the consent of Parliament.
36. However, the Venice Commission established certain criteria regulating the scope of parliamentary inviolability, so that the national legal framework to provide for: subjecting parliamentary inviolability limits prescribed by law or the rules of Parliament; the time limitation of parliamentary inviolability, with subsequent possibility of resuming proceedings; lifting the parliamentary inviolability, according to a clear and impartial; neextinderea parliamentary inviolability of the preliminary examination of a case; neextinderea parliamentary inviolability of flagrant offenses; neextinderea parliamentary inviolability of cases of particularly serious crimes; neextinderea parliamentary inviolability of minor breaches of the law or the administrative offenses.
37. Given the findings of the Venice Commission, the Court holds that Parliament is the only authority competent to decide on the establishment, exclusion or limitation of immunity of deputies.
38. The Court notes that previously ruled on review of constitutional provisions on parliamentary immunity by opinions No. 1 of 25 January 2001 and No. 1 of 25 November 2011 on initiatives to revise the Articles 70 and 71 of the Constitution, and by November 10, 2015 Opinion No.2 on civic initiative to revise the Articles 60, 70, 78, and 89 of the Constitution by referendum Republican.
39. In all these cases, the Court approved the constitutional draft laws submitted, which provided including exclusion of paragraph (3) of Article 70 of the Constitution.
40. Therefore, the constitutional amendments proposed by notification in respect of the exclusion provisions on parliamentary immunity at the stage of sending the case to court not exceed revise the Constitution required by art. 142 para. (2) it is in accordance with the requirements regarding the sovereignty, independence and unity of the state, and are not likely to lead to the suppression of fundamental rights and freedoms of citizens or their guarantees.
1.3. The effects of the existence of a final judgment of conviction on 41
parliamentary immunity. The Court notes that the draft law for amending paragraph (3) of article 70 of the Constitution, additional flagrant, proposes to exclude immunity from the application of measures of constraint on deputy in case of a final judgment convicting him.
42. The Court notes that, according to the author of the bill, excluding declaration of Parliament for carrying out certain measures concerning deputy in case of a final judgment of conviction is necessary to ensure the enforcement of justice.
43. The Court emphasizes that the execution of a final judgment is an inseparable stage of the judicial process, which can not be restricted under the imperative of immunity.

44. In this regard, the Court notes that Article 120 of the Constitution, compliance with sentences and other final decisions of the courts is mandatory. The binding nature of the judgments expressed by requiring their execution.
45. While examining the text of the draft law, the Court finds no causal link between the judgment convicting Member and procedural actions to be performed on it. It is necessary to establish clearly indicated that procedural actions (search, detention, arrest) to be made specifically for purposes of enforcement of the judgment.
46. However, in Decision no. 2 of January 20, 2015 concerning the interpretation of Article 1 para. (3) combined with Articles 69 and 70 of the Constitution, the Court found the effects of a judgment final and irrevocable on the deputy mandate and consequently on its immunity.
47. In its judgment no. 2 of January 20, 2015, the Court noted that in case of conviction MP for crimes committed intentionally and / or sentenced to prison (jail) by judgment final and irrevocable, including a foreign state, the MP is in a situation of ineligibility, incompatible with that of Member and cease its legal mandate.
48. Accordingly, the Court finds that, according to that judgment, the deputy immunity does not work in MP conviction for offenses committed intentionally and / or sentenced to prison by court final. In the above circumstances mandate shall automatically be terminated without the need for other conditions of form and substance.
49. For these reasons, the Court notes that the proposed constitutional amendment creates confusion about the scope of the deputy immunity in the case of a final judgment of conviction, likely to generate uncertainties and difficulties of interpretation and application.
50. In light of the above, content analysis of the bill shows that it violates constitutional limits under Article 142 para review. (2) of the Constitution.
For these reasons, under Article 135 para. (1) c) Article 141 para. (2) of the Constitution, article 26 para. (1) of the Law on Constitutional Court, art. 61 para. (1) and art. 63 lit. a) of the Code of constitutional jurisdiction, the Constitutional Court adopted the following

OPINION:

1. The initiative to revise Article 70 para. (3) of the Constitution, from the Government, it is presented by the person authorized and, in this regard complies with the provisions of Article 141 para. (1) c) of the Constitution.
2. The draft constitutional law on the revision of article 70 par. (3) of the Constitution goes beyond the constitutional review required by Article 142 para. (2) of the Constitution in respect of the confusion generated by the relationship between the deputy immunity and the existence of a final judgment of conviction. Consequently, the draft constitutional law on the revision of article 70 par. (3) of the Constitution in the current newsroom can not be submitted to the Parliament.
March. This opinion is final, can not be subject to any appeal, shall enter into force upon adoption and shall be published in the Official Gazette of the Republic of Moldova.

CONSTITUTIONAL COURT PRESIDENT Alexandru Tanase