inadmissibility of referral No. 1A/2016 on notification constitutionality control decrees of the President of the Republic of Moldova nr. 1908-14 January 2016. 1912-VII and no. 1913-15 January 2016 (nomination for the post of Prime Minister)



Published: 25.03.2016 in Official Gazette No. 69-77 art no: 18 date of entry into force: 19.01.2016 Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Mr. Victor POPA, judges, with the participation of Mrs. Sadik Munteanu, Registrar, taking into account the appeal lodged on 18 January 2016, recorded at the same time, examining preliminary referral referred to, taking into account the acts and proceedings of the dossier , acting on 19 January 2016 in closed session, Pronounce the following decision: in fact 1. On 18 January 2016, the Parliament deputies, Mr. Igor Dodon, Sandy, Corneliu Batrincea as Fork, and Adrian Ladani asked the Constitutional Court on an appeal concerning the President's decrees on notification constitutionality control of Republic of Moldova. 1908-14 January 2016 on the appointment of the candidate for the post of Prime Minister, no. 1912-VII of 15 January 2016 concerning the repeal of a decree of the President of the Republic of Moldova nr. 1913-15 January 2016 on the appointment of the candidate for the post of Prime Minister.
A. reasons for referral 2. Reasons for referral, as were exposed by the authors of the referral, can be summarized as follows.
3. On 21 December, 2015, the President of the Republic of Moldova appointed Mr Ion Sturza as candidate for the post of Prime Minister and authorized him to draw up the work schedule and the list of the Government, presenting them to Parliament for review. During the meeting of the Parliament to the Government Jan. 4 swearing in 2016, if there is no quorum necessary to declare a session of Parliament, President of the deliberative found that these offices attempt to Government failed.
4. by Decree No. 1908-14 January 2016, the President of the Republic of Moldova appointed Mr. Ion Paduraru as candidate for Prime Minister. On January 15, 2016, the President of the Republic of Moldova passed a decree stated in relation to the surrender of Mr. Ion Paduraru and the quality of the designated candidate for the post of Prime Minister. On the same day, the President of the Republic of Moldova issued Decree No. 1913-VII on the appointment of Mr. Pavel Filip for the post of Prime Minister.
5. The authors have requested the Constitutional Court referral to submit notification constitutionality control decrees set out supra under the following aspects: 1) Parliament has decided not to vote on the investiture of the Government/rejection Sturza, a sitting of the Parliament the quorum requirements not being met, so the Government formation attempt has not been exhausted;    2) parliamentary majority has not been established and regular;    3) Decrees are unconstitutional because they were issued within the last 15 days of the term of three months, provided for the investiture of the Government;    4) Moldova's President has applied double standards of integrity the appointment/designation of refusal of candidates for Prime Minister;    5) Neconsultarea the parliamentary faction of the party of Socialists of the Republic of Moldova (hereinafter STATED).    6. In the opinion of the authors of the referral, the President of the Republic of Moldova to issue decrees no. 1908-14 January 2016. 1912-1913 No. VII-VII of 15 January 2016 contrary to article 98 of the Constitution.


B. relevant Legislation 7. The relevant provisions of the Constitution (Official Gazette, no. 1, 1994) are as follows: "Article 68Mandatul representative (1) In the exercise of their deputies are in the service of the people.
(2) Any imperative mandate is null. "Article 77Preşedintele of Moldova, the Chief of State" (1) the President is the head of State.
(2) the President of the Republic of Moldova represents the State and is the guarantor of national independence, sovereignty, unity and territorial integrity of the country. "


Article 94Actele of the President "(1) in the exercise of his powers the President of the Republic of Moldova issues decrees whose execution is compulsory throughout the State. The decrees shall be published in the Official Gazette of the Republic of Moldova.
[...]”


Article 98Învestitura "(1) after consulting parliamentary factions, the President of the Republic of Moldova designates a candidate for the post of Prime Minister.
(2) the candidate for the post of Prime Minister will be asked, within 15 days from designation, the vote of confidence of Parliament upon the work programme and the entire list of the Government.
(3) the work schedule and the list of the Government debating upon sitting in Parliament. This trust of the Government by a majority vote of the elected deputies.
(4) on the basis of the vote of confidence granted by the Parliament, the President of the Republic of Moldova appoints the Government.
[...]”


In the authors ' Arguments AS a. referral 8. The authors argue that referral Moldovan President's decrees were issued after the failed attempt of the Government to the 2009 January 4, 2016, due to the lack of quorum in the Parliament sitting, which was interpreted as a negative vote groundless expressed the candidate to the post of Prime Minister, designated by Decree of the President of the previous Republic of Moldova nr. of 21 December 1877.
9. In support of such allegations, the authors stated that the President of the Republic, Maserati, Moldova had to nominate another candidate for the Prime Minister only convened another meeting of Parliament in which deputies, in accordance with the provisions of article 98 para. (3) of the Constitution, to cast a vote of no confidence Mr Ion Sturza (at that time the candidate for the post of Prime Minister), or where it would have withdrawn his candidacy.
10. At the same time, the authors of the referral, failure of some deputies to the Parliament session from 4 January 2016 would be described as obstructing the State power, and under no circumstances be regarded as giving a negative vote. Accordingly, the President of the Republic of Moldova was to sanction the Parliament by dissolving it.
11. With regard to the absolute parliamentary majority was formed in order to support a candidate for the post of Prime Minister, the authors of the referral considers this to be declared (formalized) and in Parliament, not only within the framework of the consultations with the President.
12. In the same context, the authors claim that the referral after Mr. Ion Paduraru renounced the status of candidate for the post of Prime Minister, the President of the Republic of Moldova was obliged to resume consultations with parliamentary factions before appointing another candidate.
13. Moreover, according to the authors of the referral, the appointment of Mr. Pavel Filip as candidate for Prime Minister, the President of the Republic of Moldova has neglected the constitutional term of 15 days given to each candidate in order to request a vote of confidence in Parliament.
14. At the same time, the authors invoke the application of referral to the double standards of integrity the appointment/designation of refusal of candidates for position of Prime Minister by the President of the Republic of Moldova. Or, as the authors of the referral, the candidacy of Mr. Pavel Filip presents doubts as regards integrity, since he was part of a Government ousted earlier for suspicions of corruption, and this has prompted the President of the Republic of Moldova to reject another candidate for the post of Prime Minister. 
15. For the reasons given above, the authors argue that referral Moldovan President's decrees were issued in contravention of the provisions of article 98 of the Constitution.
B. Assessment Of The Court 16. Examining the admissibility of the referral, the Court notes the following.
17. pursuant to paragraph 1 of article 135. (1) (a). the article of the Constitution). (1) (a). a) of the law on the Constitutional Court and to article 4 para. (1) (a). the constitutional jurisdiction of the code), the Court enforces, constitutionality Presidential decrees.
18. the Court indicates that articles 25 lit. g) of the law on the Constitutional Court and 38 para. (1) (a). g) of the code of constitutional jurisdiction authorizing Deputy in Parliament with the right to refer the matter to the Constitutional Court.
19. Note that the prerogative Court was vested in it by article 135 paragraph 1. (1) (a). a) of the Constitution requires correlation of decrees challenged and the text of the Constitution, taking into account the principle of the supremacy of the latter.
20. the Court finds that the object on notification constitutionality control are the decrees of the President of the Republic of Moldova nr. 1908-14 January 2016. 1912-VII and no. 1913-15 January 2016.
21. the Court noted that, in essence, the authors have cited alleged violations of the referral procedure provided for in the Constitution and the Parliament's regulation under the designation of the candidate to the post of Prime Minister.
22. Next, the Court will consider the merits of the arguments put forward by the authors of the referral.
1) concerning the alleged attempted neepuizare of formation of Government

23. With regard to the fact that Parliament has voted through a vote on the investiture of the Government/rejection Sturza, a sitting of the Parliament the quorum requirements not being met, so the Government formation attempt has not been exhausted, the Court considers allegations of the authors of the referral as groundless.
24. the Court observes that the quorum requirement were not met in Parliament sitting from 4 January 2016 i.e. occurred due to the deliberate blocking of sitting by OUR PARTY faction, by the absence of the deputies of this faction, and is therefore the result of her actions.
25. Following its previous case-law (Judgment No. 30 of 1 October 2013), keep in mind that the term of 15 days referred to in article 98, paragraph 1. (2) of the Constitution to Parliament demands the vote of investiture, is the deadline given to the designated candidate for the post of Prime Minister to carry out all procedures of forming the Government. Thus, regardless of whether Parliament has expressed or not expressly vote, Government formation attempt is deemed to be exhausted at the end of this period.
26. Therefore, in proceedings for the formation of the Government, should not be a vote of confidence by Parliament within the time limit of 15 days from designation, regardless of the reasons that could not be produced, meaning failure attempt of Government formation.
27. Thus, in accordance with its constitutional powers, the President of the Republic of Moldova was to designate a candidate for the post of Prime Minister.
2) regarding alleged irregular formation of parliamentary majority 28. As regards the authors ' claim that the parliamentary majority of referral has been given regular, the Court recalled that by decision No. 32 of 29 December 2015 adopted an address, by which he requested Parliament to expressly regulate the concept of formalization of the parliamentary majority to support a certain candidate for the post of Prime Minister and President of the notification procedure in this respect.
29. According to the judgment of the rationales used on display no. 32 of 29 December 2015, which were reiterated and the Address, the Court has emphasised the need for the establishment of a transparent parliamentary majority, which is to be formalized, not just stated, indicating that lawmakers are accompanied by the availability of supporting a specific candidate for the Prime Minister and with the official notification to the President of the Republic of Moldova.
30. Therefore, the content of the judgment and of the address, it is absolutely obvious that in this case it is a different situation than that provided by the Parliament's regulation, which refers directly to the configuration immediately after the Parliament vote, and not to reconfigurările.
31. In the context of the establishment of procedural services parliamentary majority, invoked by the authors of the referral, the Court recalled that previously held in its case-law that, according to article 68 of the Constitution, any imperative mandate is null. The provisions of this article leverages without limits the mandate of representative and constitutes the starting point in explaining the constitutional relations between the lawmaker and his voters.
32. Moreover, the interpretation of the constitutional provisions of article 68, in its judgement No. 8 of 19 June 2012, the Court held: "34. [M] andatul mp expressing the relationship with the whole nation, parliamentarian in the service which is not only with voters who voted him, although they benefit from the presence of parliamentarian by virtue of its obligation to keep in touch with voters. Thus, the phrase "being in the service of the people" in article 68 para. (1) of the Constitution means that the election and until expiry, each Deputy becomes the representative of the people as a whole and has as its mission to serve the common interest of the people, and not just the party. [...]
35. In defining these interests, the option is free, parliamentarian even though he belongs to a party that he represents in Parliament. In accordance with article 2 (2). (2) of the Constitution, no person, no part of any social group, political party or other public party may exercise State power in their own name. In this respect, the fundamental principles of the rule of law must be respected scrupulously in order to obstacula the temptation which may have one or more political parties, which have become the majority in Parliament, to transform the "elect" party activists "or central public administration structures and local party organs in" ", Central or local."
33. In addition, the Court indicates that, in its report No. CDL-AD (2009) 027 on the terms of binding and similar practices, Venice Commission stated: "[...] Venice Commission did not cease to maintain that loss of the representative, due to the change of political afiliației is contrary to the principle of free and independent mandate. Although the purpose pursued by this type of measures can be considered to be somewhat justified, fundamental constitutional principle that forbids or other imperative mandate similar practices aimed at depriving a representative of its mandate, must prevail as a cornerstone of the democratic european constituționalismului. "
34. In the context of those exposed, the Court emphasises the character neimperativ mandate, which includes the right of parliamentarians to vote independent of party/faction it belongs to. Thus, the Association of Deputies for supporting a Government may exceed the framework of the factions formed immediately after the election.
3) concerning alleged non-constitutionality of decrees issued during the last 15 days of the term of 3 months 35. With reference to the fact that the decrees of the President of the Republic of Moldova are unconstitutional because they were issued within the last 15 days of the term of 3 months (with a delay of one day), the Court notes that this argument is also unfounded.
36. In this context, its previous jurisprudence, the Court reiterates that the term of 15 days is one strictly for candidate in order to request a vote of investiture, and not for the President, for appointing the candidate. This does not preclude the right of candidate to solicit the vote of investiture before expiry of the time limit of 15 days.
37. Thus, the exhaustion of the 15-day deadline is not mandatory for the vote of confidence of Parliament upon the programme of activity and of the entire list of Government on the part of the designated candidate for the post of Prime Minister. In this regard, note that Court order sought priority is sworn by a Government before the constitutional deadline of 3 months.
38. Therefore, failure by Moldovan President has 15 days to the deadline set out cannot affect the validity of the decree for the nomination of the candidate, the more so as it is about the reduction of this period with one day and does not affect the substance of these offices procedures of the new Government. In this context, note that Court within 14 days is a sufficient period for the candidate nominated to solicit the vote of investiture of the Government.
39. Moreover, the Court indicates that nomination Pavel Filip was carried out with the consent of the latter, which requires acceptance by default for this limitation.
40. Following his constant jurisprudence, the court notice that, pursuant to article 98 of the Constitution, within the term of 3 months, including within the last 15 days, Moldova's President and Parliament are not limited in the number of attempts the Government formation.
4) regarding the alleged application of double standards of integrity issue decrees for the nomination of candidates for the post of Prime Minister, 41. With regard to the authors ' alegația referral that the Moldovan President has applied double standards of integrity the appointment/designation of refusal of candidates for position of Prime Minister, the Court noted that he has voted over similar claims.
42. In essence, the authors noted that the referral to Mr. Pavel Filip was part of a government ousted through the motion of no-confidence on the grounds of corruption.
43. Thus, the Court recalled that, by decision of inadmissibility no. 10 of 18 November 2014, emphasized the distinction to be made between personal liability that a Prime Minister for the Government he leads in relation to other members of the Government.
44. Therefore, taking into account its previous case-law, the Court retains that the dismissal of the motion of censure by supposed members of the ousted Government's failure to pursue an automatic function for public dignitaries.
5) regarding the alleged neconsultare of the parliamentary faction of OUR PARTY 45. With respect to neconsultarea the parliamentary faction of OUR PARTY, the Court noted that he has voted on this issue in its judgement No. 32 of 29 December 2015. Therefore, the Court finds that in this part of referral is repetitive.

46. In addition, given the fact that the ELECTIONS and publicly announced its refusal to participate in consultations with the President of the Republic of Moldova for the formation of a new Government in this part of referral is abusive.
47 conclusions. In the light of those exposed, referring to alleged violations cited in the case, the Court finds that the authors have not demonstrated the incidence of referral to the constitutional norms on the contested acts.
48. Furthermore, the Court noted that the appeal filed is abusive, because OUR PARTY faction refused to participate in the formation of the Government and, thanks to the absence of members of OUR PARTY faction, has contributed to a lack of quorum at sitting of Parliament and at the failure of the Government's attempt was invested Sturza.
49. Therefore, in view of the stated rationale for supra, the Court notes that the appeal is manifestly unfounded, abusive and oppressive formulated and proved.
For these reasons, in accordance with the provisions of article 26 para. (1) of the law on the Constitutional Court, articles 61 para. (3) and 64 of the code of constitutional jurisdiction, the Constitutional Court D E C I D E: 1. Be declared inadmissible to refer to a group of Deputies on notification constitutionality control decrees for the President of the Republic of Moldova nr. 1908-14 January 2016 on the appointment of the candidate for the post of Prime Minister. 1912-VII of 15 January 2016 concerning the repeal of a decree of the President of the Republic of Moldova nr. 1913-15 January 2016 on the appointment of the candidate for the post of Prime Minister.
2. 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.

The PRESIDENT of the CONSTITUTIONAL COURT Alexandru Tanase