No Complaint Was Inadmissible. 2B / 2016 Concerning Article 98 Of The Constitution

Original Language Title: de inadmisibilitate a sesizării nr. 2b/2016 privind interpretarea articolului 98 din Constituţia Republicii Moldova

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The Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA, Mr. Tudor
Panţiru,
Mr. Victor POPA, judges, with
Mr Maxim Iurcu participation, Registrar,
Considering the complaint lodged on 18 January 2016
recorded on the same date
examined the admissibility of the complaint mentioned
Considering documents and materials,
deliberated on 26 February 2016 in the council chamber,
Delivers the following decision: tHE FACTS

1. On 18 January 2016, Members of Parliament, Mr Vladimir Turcan Vasile Grigore Novac Bolea, addressed the Constitutional Court complaint concerning Article 98 of the Constitution.
A.
Two grounds for referral. The authors of the complaint requested the interpretation of constitutional provisions set out in the following aspects:
"1. Members have the right Moldovan parliament, holding simultaneous and quality of candidate for minister in the new government, which was to be given the vote of confidence to participate in the vote?
2. If not allowed, then the MPs who are in this situation of conflict of interest shall refrain from voting or participating in any way in the examination and discussion of this question?
March. What are the legal consequences of these votes? "
B.
Relevant legislation in March. The relevant provisions of the Constitution (OJ 1994, no. 1) are:
Article 98Învestitura


"(1) After consultations with parliamentary Moldovan President shall nominate a candidate for prime minister.
(2) The candidate for Prime Minister shall, within 15 days of the designation, the vote of confidence of Parliament upon the program and complete list of activities of the Government.
(3) program and the list of Government shall be debated in the Parliament sitting. It gives confidence to the Government by majority vote.
(4) In the vote of confidence of Parliament, the President of Moldova appoints the Government.
(5) The Government shall exercise his powers on oath by members before the President Republic of Moldova.
(6) In the event of government reshuffle or vacancy of office, the President of Moldova revokes and appoints the Prime Minister's proposal, some members of the Government. "
4. The relevant provisions of Law no. 16-XVI of 15 February 2008 on conflict of interest (MO, 2008, no. 94-96, art. 351) are:
Article 2Noţiuni main


"The concepts presented in this law shall have the following meaning:
[...] conflict of interest - the conflict between the exercise of her position and personal interests of the persons referred to in Article 3, in their capacity as private individuals, which could improperly influence objective and impartial fulfillment of their responsibilities and obligations under the law; [...] "

Article 3 Subjects declaration of personal interest

"(1) This declaration of personal interest am:
a) persons holding public positions in the Annex to Law no. 199 of 16 July 2010 on the status of public functions;
B) the members of the Supervisory Board of the National Public Broadcasting Company "Teleradio-Moldova"; Members of the People's Assembly of Gagauzia autonomous territorial unit; Deputy Director General of the National Health Insurance Company;
C) heads and their deputies of the administrative authority (public institution) subordinate to specialized central body of the state or municipal enterprise, the company with the state-owned financial institution with total or majority state capital;
D) persons responsible for the management and control institutions within the state education system and the public health system;
E) staff cabinet with public functions;
F) public officials, including those with special status.
(2) The provisions of this law shall apply to persons who are empowered, under legislation, to take decisions on state-owned property or property of administrative-territorial units, including the funds or entitled to dispose of such goods and persons who are not civil servants, but whom the State temporarily delegate any of these powers. "

Article 9Obligaţiile persons to whom the law applies


"(1) A person referred to in article 3 shall immediately inform, but not later than 3 days from the date of the determination in writing hierarchical superior or superior body about:
a) interest, his times of close associates linked to the decision that people have to take personal or which shall participate in decision, or action they should take in fulfilling his duties;
B) quality of her or his close associates founder, shareholder, partner, member of the Board, member of the control or maintenance of a legal person (commercial or noncommercial) if such person has received from the public organization operating assets, including cash, loans guaranteed by the state or local government authority or control of public procurement.
(2) The President of Moldova, MPs, Government members and other leaders of public organizations will announce the National Integrity Commission about conflicts of interest specified in para. (1) is located.
(3) persons who hold public office are prohibited his service relationship with a person who has previously worked in a public authority if it falls within the restrictions laid down in Article 22 para. (1). "|| | THE LAW
A. Arguments authors referral
May. The authors of the referral argue that MPs who were included in the nominal list of ministers, is in conflict of interest when granting the vote of confidence Government will therefore abstain from voting.
June. They consider that the granting of the vote of confidence to the Government directly affects the personal interest of the MP, which is manifested by his desire to get into another position (prime minister or minister), granting political benefits, decision-making, materials and additional social.
July. Thus, the authors elucidate these issues calls for referral under Article 98 of the Constitution.
B.
Court's assessment in August. Examining the notification in terms of admissibility, the Court notes the following.
September. The Constitutional Court exercises jurisdiction constitutional referral subjects specified in Article 25 of the Law on Constitutional Court and Article 38 of the Constitutional Jurisdiction Code.
10. Under the law, MPs are subjects entitled to notify the Constitutional Court.
11. Similarly, Article 135 para. (1) b) of the Constitution, Article 4 para. (1) b) of the Law on Constitutional Court and Article 4 para. (1) b) of the Code of constitutional court of constitutional jurisdiction empowers the task of interpreting the Constitution.
12. In several of its judgments, the Court held that the power conferred upon it by that Article 135 para. (1) b) of the Constitution requires genuine and fully establish the meaning of constitutional norms, which can be achieved by the literal or functional , as far as can be inferred from the Constitution, given the generic nature of the rule, the concrete situations which the legislator had no way to predict when drawing up rules, regulations subsequent complex situations where the rule should be applied etc.
13. The Court notes that the interpretation of constitutional provisions and official acts and binding on all subjects of legal relations.
14. Given the importance of the interpretation of constitutional provisions, the Constitutional Court deals with complaints of this nature with a special requirement. They can be accepted for examination only if the constitutional provision whose interpretation is sought, is uncertain, ambiguous or incomplete and that the Court has not ruled on it previously.
15. The Court notes that the authors of the referral requested interpretation of Article 98 of the Constitution, which regulates the inauguration of the Government.
16. The Court observes that, in essence, referral concerns the right of MPs listing in nominal Government proposed to grant to inaugurate its vote of confidence. The authors complaint in this case alleges the existence of a "conflict of interest".
17. The Court notes that Article 98 of the Constitution, whose interpretation is requested, the arrangements aimed at conferring upon the Government and how to make government reshuffles.

18. The Court points out that, because the Constitution does not prohibit Member's right to vote list will become Minister of the Government, it can not be said about a conflict of interest. In this regard, the questions raised by the authors complaint can not be reported to the constitutional provisions, particularly Article 98.
19. At the same time, the Court points out that, according to Law no. 16 of 15 February 2008, the conflict of interest is to understand the conflict between the exercise of her position and personal interests of the persons referred to in Article 3 [lit. a) - persons holding public positions], in their capacity as private individuals, which could improperly influence the impartial and objective performance of the obligations and their responsibilities under the law.
20. In the context of the law on conflict of interest, the Court holds that a vote of confidence by MP holding simultaneously the status of candidate for minister can be attributed to the ratios determined by the position of public dignity of the person and the quality of its private person .
21. The Court also notes that the arguments of the authors notification regarding the benefits of membership of the Government are without legal foundation and does not cover the constitutional jurisdiction.
22. The Court also reiterates the findings of Decision no. 21 of 24 June 2015 for the interpretation of Articles 69 para. (2) 70 paragraph (1), 99 and 100 of the Constitution, which established that by the time limit provided by law for the cease of the incompatibility (30 days) deputy will choose between deputy mandate and function of the generates incompatibility, resigning from one function.
23. If the application for resignation from the post of deputy to the deputy in the situation of incompatibility deputy's mandate terminates the time of application. If the incompatibility continues to exist after the date stipulated by law, the deputy is considered as resigned from the post of deputy.
24. Thus, under those listed above, the Court finds that the issues tackled by the authors of the complaint can not be related to Article 98 of the Constitution. Accordingly, the appeal does not meet the conditions of admissibility and can not be accepted for examination.
For these reasons, pursuant to Article 26 of the Law on Constitutional Court, Articles 61 para. (3) and 64 of the Code of Constitutional Court Constitutional

DECIDED:

1. Declares inadmissible the complaint Members of Parliament Vladimir Turcan Vasile Grigore Novac Bolea and on the interpretation of Article 98 of the Constitution.
2. This decision 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