No Complaint Was Inadmissible. 18B / 2016 Concerning Article 90 Para. (1) In Conjunction With Articles 80 Para. (1) And Paragraph. (2) And 91 Of The Constitution

Original Language Title: de inadmisibilitate a sesizării nr. 18b/2016 privind interpretarea articolului 90 alin. (1) coroborat cu articolele 80 alin. (1) și alin. (2)și 91 din Constituția Republicii Moldova

Read the untranslated law here: https://www.global-regulation.com/law/moldova/5965959/de-inadmisibilitate-a-sesizrii-nr.-18b-2016-privind-interpretarea-articolului-90-alin.-%25281%2529-coroborat-cu-articolele-80-alin.-%25281%2529-i-alin.-%25282%252.html

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The Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA,
Mr. Victor POPA, judges
with Ms Ludmila Chihai, Registrar,
Considering the complaint filed on 15 March 2016
recorded on the same date
preliminary Examining the complaint said,
Considering documents and materials,
deliberated on 16 March 2016 in the room the council
Delivers the following decision: tHE FACTS

1. On 15 March 2016 the President of Moldova, Mr. Nicolae Timofti, a notification addressed to the Constitutional Court requesting interpretation of Article 90 para. (1) in conjunction with Articles 80 para. (1) and paragraph. (2) and 91 of the Constitution.
A.
Two grounds for referral. The author requested the referral interpretation of the constitutional provisions mentioned by elucidating the following:
1. Occurrence of the vacancy of the President of the Republic of Moldova in terms of art. 90 para. (1) of the Constitution, in connection with the expiration of four years from the oath it is the basis for ensuring the interim office in accordance with art. 91 of the Constitution? 2. When the term expires President Nicolae Timofti, who was elected on 16 March 2012, and was sworn in on 23 March 2012, taking into account the provisions of the Constitutional Court judgment no. 7 of March 4, 2016, which restored the presidential election by direct vote of the citizens?
B.
Relevant legislation in March. The relevant provisions of the Constitution (OJ 1994, no. 1) are:

Article 77Preşedintele Moldovan president

"(1) The Moldovan president is head of state.
(2) The President of Moldova represents the State and is the guarantor of national sovereignty, independence, unity and territorial integrity. "
Article 80Durata mandate


"(1) Presidential term lasts four years and is exercised from the date of swearing.
(2) The President of Moldova exercises his mandate until oath by the newly elected President.
[...] "
Article 90Vacanţa function


"(1) The office of the President of the Republic of Moldova shall be due upon expiry of the mandate, resignation, removal from office, permanent inability to discharge duties, or death.
(2) demand the resignation of the President of Moldova is presented to Parliament, which shall act upon it.
(3) Failure duties more than 60 days by the President of Moldova is confirmed by the Constitutional Court within 30 days of the notification.
(4) Within 2 months from the date of vacant President of Moldova will be organized in accordance with the law, elections for a new President. "
Article 91Interimatul function


"If the President of the Republic of Moldova becomes vacant or the President is dismissed, or if they are temporarily unable to exercise his powers, the interim shall, in order, the President of Parliament or the Prime Minister."
THE LAW A. The author of the notification
4. The author claims that the referral to the need to interpret Article 90 para. (1) of the Constitution has been generated by the adoption by the Constitutional Court Decision no. 7 of March 4, 2016 on reviewing the constitutionality of some provisions of Law no. 1115-XIV of 5 July 2000 on amending the Constitution of the Republic of Moldova.
May. Author of the notification mentions that according to art. 80 para. (2) of the Constitution, during the constitutional Presidential term starts on the day and lasts until oath sworn by newly elected President.
June. In his view, the expiry of four years from the oath by the President of the Republic does not always signify their term and in any case not necessary to provide interim office of president.
July. Therefore, the mandate of President Nicolae Timofti, elected on March 16, 2012, began the day swearing at March 23, 2012 and will last until the oath by the President who will be elected in the elections held under the provisions of the Constitution, reinvigorated by Decision no. 7 of March 4, 2016.

August. At the same time, by notification, we are analyzing the constitutional norms of art. 90 para. (1) and of art. 80 para. (1) and (2) by reference to the current mandate of presidential and recent jurisprudence of the Constitutional Court, found inaccuracies in applying the provisions of the Constitution, the case can be resolved only by the High Court, interpreting the rules, to eliminate misunderstandings, legal differences, but also to determine the exact meaning of the constitutional norm.
B.
Court's assessment in September. Examining the notification in terms of admissibility, the Court finds as follows.
10. 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.
11. Under the law, the President of Moldova is subject entitled to appeal to the Constitutional Court.
12. 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.
13. 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 in which the standard must be applied.
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 if the Court has not ruled previously.
15. Simultaneously, the Court holds that the interpretation of constitutional provisions and official acts and binding on all subjects of legal relations.
16. The Court finds that the author requested the referral interpretation of the constitutional provisions of Article 90 para. (1) in conjunction with Articles 80 para. (1) and (2) and 91 of the Constitution in respect of the: (1) The office of President in case of expiry of the mandate; (2) extend the duties to the oath by the newly elected President, and (3) situations occurring interim.
17. The Court held that Articles 80 para. (1) and (2), 90 and 91 of the Constitution have been interpreted previously by Resolution No. 43 of 14 December 2000.
18. In this respect, in Case No. 43 of 14 December 2000, the Court stated:
"[...] according to Art. 80 para. (1) and (2) of the Constitution, the period of the Presidential term from the date of his swearing begins and lasts until the oath of newly elected President. In the circumstances invoked art. 90 para. (1) of the Supreme Law, laying down cases interrupt the flow presidential term of office, the vacancy occurs. These situations are: resignation, dismissal, unable definitive duties or death. Failure final death duties and circumstances can be classified as "natural targets". Dismissal or resignation of the President's initiative circumstances qualify as "voluntary or subjective" initiative stemming subjects with the right to decide the dismissal or resignation. "
19. With reference to the interim situations occurring in that judgment the Court stated:
"examining the provisions of Article 90 para. (1) in conjunction with article 91 of the Constitution, the Constitutional Court notes that the establishment of interim president the republic aims to ensure continuity in office the President, if the President can no longer perform his duties, so, this will be regarded as function vacancy caused by resignation, dismissal of the President, the temporary or definitive impossibility to and duties or death. "

20. According to the judgment of the Constitutional Court No. 43 of 14 December 2000, in case of vacancy of the President of the Republic of Moldova under Article 90 para. (1) of the Constitution in relation to the expiry of the mandate laid down in art. 80 para. (1) of the Constitution, the President of the Republic of Moldova exercises his mandate under Article 80. (2) of the Constitution to take the oath to the newly elected President.
21. Also, interim President of the Republic, occurs only in case of vacancy of office by resignation or dismissal of the President, temporary or permanent inability to perform his duties or death and in accordance with article 91 shall ensure in Constitution (in order from the President of Parliament or the Prime Minister).
22. In the context of previous findings, the Court holds that the extension of powers Presidential oath to the newly elected President can not be regarded as exercising the interim.
23. Meanwhile, referring to Resolution no. 7 of March 4, 2016, which were declared unconstitutional certain provisions of Article I of Law 1115-XIV of 5 July 2000 amending the Constitution of the Republic of Moldova and was ordered constitutional amendments revive previous legal mechanism that would ensure the election of President by direct vote of the citizens, the Court emphasized that its effects do not extend to the Moldovan president elected by Parliament's vote expressed on 16 March 2012. Thus, it remains in office until the expiration of the term for which elected, as provided by the provisions Article 80 (2) of the Constitution, namely to take the oath to the newly elected President.
24. Therefore, the Court concludes that, since no new elements liable to cause change in jurisprudence of the Constitutional Court, both recitals and the device still valid judgment in this case.
25. In conclusion, the Court holds that the issues addressed in referral were previously decided by the Constitutional Court. Thus, finding that there was an identity of purpose, the Court notes that the notification does not meet the admissibility interpreting constitutional provisions invoked can not be accepted for examination.
For these reasons, in accordance with Articles 26 para. (1) 31 of the Law on Constitutional Court, Articles 61 para. (3) and 64 of the Code of Constitutional Court Constitutional

DECIDED:

1. Declare inadmissible referral by the President of Moldova, Mr Nicolae Timofti, on the interpretation of Article 90 para. (1) in conjunction with Articles 80 para. (1) and paragraph. (2) and 91 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