Inadmissibility Of Referral No. 57B/2015 Concerning The Interpretation Of Articles 4 And 23 Of The Constitution

Original Language Title: de inadmisibilitate a sesizării nr. 57b/2015 privind interpretarea articolelor 4 și 23 din Constituție

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    The Constitutional Court, acting in the composition: Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Mr. Talal Igor DOLEA, GEOGRAPHIC LOCATION, Mr. Victor POPA, judges, with the participation of Mr. Theodore Slipper, Registrar, considering the appeal filed on December 15, 2015, recorded at the same time, examining the admissibility of the referral, taking into account the laws and proceedings, Acting on February 26 in the Council room 2016 the next decision, a decision: in fact 1. December 15, 2015, Mr. Vasile Bae and Adrian Ladani, deputies in the Parliament of the Republic of Moldova, addressed the Constitutional Court a complaint, requesting interpretation of articles 4 and 23 of the Constitution.


A. reasons for referral 2. The authors have requested that referral through the interpretation of article 23 in conjunction with article 4 of the Constitution to explain if: 1. It is compulsory to develop uniform judicial practice within the Supreme Court of Justice, as part of the accessibility of the law?
2. What are the criteria of formation of uniform judicial practice?
3. What are the conditions for changing the practice Court for the application of legal norms?
4. The College of the Supreme Court of Justice jurisprudence or modify it to make it the plenum of Supreme Court Justice? "


B. relevant Legislation 3. The relevant provisions of the Constitution (Official Gazette, no. 1, 1994) are as follows: Article 4Drepturile and freedoms of man "(1) constitutional provisions for human rights and freedoms shall be interpreted and applied in accordance with the Universal Declaration of human rights, and with other conventions and treaties endorsed by the Republic of Moldova is a party.
(2) If there are inconsistencies between covenants and treaties regarding fundamental human rights to which Moldova is a party and its internal laws, international regulations have priority. "


Article 23Dreptul of everybody knows the rights and duties "(1) every person has the right to recognize legal personality.
(2) the State ensures the right of everybody to know their rights and duties. For this purpose the State publishes and makes accessible all laws and other regulations. "
4. The relevant provisions of the code of civil procedure of the Republic of Moldova nr. 225-XV of 30 May 2003 (reprinted in the Official Gazette, no. 13, 130-134, art. 415) are as follows: Article 122Avizele of the Advisory to the plenary Supreme Court "(1) If in the process of trial of pricinii in a Court of law the difficulties to correct application of substantive rules or procedural, the Court shall request the Plenum of the Supreme Court of Justice, ex officio or at the request of the participants in the proceedings to issue a consultative opinion regarding how to implement the law. The Advisory opinion shall be published on the website of the Supreme Court of Justice.
(2) if the Court rejects the approach of the participants in the proceedings on the request of an advisory opinion on the part of the plenum of the Supreme Court of Justice, it will emit a discharge wastes in appeal.
(3) if the reject the request, decides the Supreme Court of Justice shall issue a reasoned decision closing that is published on the website of the Supreme Court of Justice.
4. Advisory opinion of the Supreme Court Plenum is no longer obligatory for the Court if the law is changed or subsequently changes the way of implementing it.
(5) until the Advisory opinion to the plenary of the Supreme Court of Justice judgment of pricinii postponed. "


Article 17Formarea of the judicial practice "For the correct and uniform application of legislation, the Supreme Court of Justice generalizes the practice of ex officio examination by courts of certain categories of issues, adopt and give explanatory judgements relating to advertising the correct application of the rules of law and the fair resolution of examining."
5. The relevant provisions of law No. 789 of 26 March 1996 concerning the Supreme Court of Justice (republished in the Official Gazette, no. 185, article 620) are as follows: Article 1Curtea-Supreme Supreme Judicial power "[...] (2) the Supreme Court of Justice is the Supreme Court which ensures the proper and uniform application of the law by all courts of law, the settlement of disputes arising in the context of the application of laws, the State's responsibility towards guaranteeing the citizen and of the citizen towards the State. [...] "


In the authors ' Arguments AS a. referral 6. The authors invoke the obligation of State referral to the Republic of Moldova to observe the principle of legal certainty, as a result of the ratification of the European Convention on human rights.
7. In the opinion of the authors of the referral, this legal standard was not sufficiently implemented in Moldova at the level of courts of law. The failure of implementation would cause conflicts of opinions with regard to the role of judicial precedent in the Republic of Moldova.
8. The authors of the referral considers that, through the interpretation of articles 4 and 23 of the Constitution, it is necessary to make judicial practice requirement: outlining, criteria of foreseeability of judicial practice and amending them, together with an indication of the authority amends the uniform practice of the supreme court.


B. Assessment Of The Court 9. Examining the admissibility of the referral, the Court note that under articles 135 para. (1) letter b) of the Constitution. (1) letter b) of the law on the Constitutional Court and of the implementing regulation. (1) letter b) of the code of constitutional jurisdiction, the interpretation of the Constitution is a competence of the Constitutional Court jurisdiction.
10. the Court noted 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 with right to refer the matter to the Constitutional Court.
11. the Court observes that the interpretation is subject to articles 4 and 23 of the Constitution, in the light of the requirement of foreseeability of the judicial practice of the Supreme Court of Justice.
12. the court notice that articles whose interpretation is required to regulate compulsory application of international laws in the field of human rights (article 4), and the obligation of the State to make accessible all laws and regulatory acts (article 23). Therefore, of the Constitutional Court invoked articles cannot identify a requirement for the Supreme Court of Justice of the judicial practice of smoothing.
13. the Court points out that, according to article 116 of the Constitution, judges of the courts are independent. In its judgment No. 2 of 9 February 2016, the Court noted that: ' 97. The independence of judges is one of the fundamental principles of organization and realization of Justice. Pursuant to the law, the independence of judges exclude the notion of hierarchy, subordination. Given the role to settle disputes in an objective manner, in accordance with the law, and being a power by themselves, judges may not receive orders, instructions or suggestions of any kind with respect to their activities, neither inside nor outside the judicial system. International principles that describe explicitly that judges must take decisions in complete freedom and act without restriction and without being subject to influences, inducements, pressures, threats or unlawful intervention, direct or indirect, regardless of which side people come over and under what reason. The judge, in his capacity as holder of the judicial authority, must be able to exercise its function in complete independence in relation to all the constraints/social forces, and economic and political right in relation to other judges and in relation to the Court.
98. The Court therefore note that judges must possess sufficient power and be in a position to wield it for the performance of duties. The independence of the judge involve disputes resolution requirement without any interference, including from hierarchically superior court. "
14. At the same time, the Court noted that article 1 para. (2) of law No. 789 of 26 March 1996 concerning the Supreme Court of Justice put in charge of this authority the correct and uniform application of the law by all courts. Uniform application of legislation is ensured through the issuance of advisory opinions by the plenum of the Supreme Court of Justice, at the request of the courts, in the event of problems related to law enforcement.
15. in addition, article 17 of the code of civil procedure of the Republic of Moldova stipulates that for the proper application and uniform legislation Supreme Court summary of its practice of examination by courts of certain categories of issues, adopt and give explanatory judgements relating to advertising the correct application of the rules of law and the fair resolution of examining civil.

16. the Court notes that those decisions do not carry an explanatory binding, given the existence of the constitutional principle of the independence of judges. They are advisory and indicative information for representing judges in resolving cases.
17. In the light of those mentioned, the Court finds that the matters addressed by the authors of the referral may not be reported to the provisions of articles 4 and 23 of the Constitution. Therefore, the appeal does not meet the conditions for eligibility and cannot be accepted for examination.
For these reasons, in accordance with the provisions of article 26 para. (1) and 31 of the law on the Constitutional Court and of articles 61 para. (1) and 64 of the code of constitutional jurisdiction, the Constitutional Court D E C I D E: 1. It is hereby declared inadmissible the appeal of deputies in Parliament and Adrian Vasile Bae Ladani concerning the interpretation of articles 4 and 23 of the Constitution.
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