Inadmissibility Of Referral No. 4 G/2016 Concerning Excepţiade Unconstitutionality Of A Defunct Article 25 Of Law No. 947 Of 19 July 1996 Concerning The Superior Council Of Magistracy

Original Language Title: de inadmisibilitate a sesizării nr. 4g/2016 privind excepţiade neconstituţionalitate a unei sintagme din articolul 25 al Legii nr. 947 din 19 iulie 1996 cu privire la Consiliul Superior al Magistraturii

Read the untranslated law here: http://lex.justice.md/index.php?action=view&view=doc&lang=1&id=363917

inadmissibility of referral No. 4 g/2016 regarding unconstitutionality of an exception for phrases from article 25 of law No. 947 of 19 July 1996 concerning the Superior Council of Magistracy



Published: 25.03.2016 in Official Gazette No. 69-77 art no: 20 date of entry into force: 26.02.2016 Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Mr. Talal Igor DOLEA, GEOGRAPHIC LOCATION, Mr. Victor POPA, judges, with the participation of Mr. Bjørn Maximum, Registrar, taking into account the appeal lodged on 3 February 2016, recorded at the same time, examining preliminary referral referred to, taking into account the acts and proceedings of the dossier , Acting on 26 February 2016 in Council Pronounce the following decision: in fact 1. On February 3, 2016, the Supreme Court has asked the Constitutional Court on an appeal regarding plea of unconstitutionality of the phrase "only in the part that concerns the procedure for issuing/adoption" at para. (1) of article 25 of law No. 947 of 19 July 1996 concerning the Superior Council of Magistracy. The exception of constitutionality was raised by lawyer Artur Lam within a cause on the role of the Supreme Court of Justice.


A. reasons for referral 2. Reasons for referral, as were exposed, can be summarized as follows.
3. According to article 25, paragraph 2. (1) of law No. 947 of 19 July 1996, the higher magistrates Council rulings can be appealed to the Supreme Court of Justice, only the part that concerns the procedure for issuing/adoption.
4. In the author's opinion, the words of non-constitutionality exception "only the part that concerns the procedure for issuing/adoption", contained in article 25 of the law, contrary to the provisions of article 20 of the Constitution and article 6 § 1 of the European Convention for the protection of human rights and fundamental freedoms.


B. relevant Legislation 5. The relevant provisions of the Constitution (Official Gazette, no. 1, 1994) are as follows: Article 20Accesul to justice "(1) Any person shall be entitled to effective satisfaction on the part of competent courts against acts which violate the rights, freedoms and legitimate interests.
(2) no law may restrict the access to justice. "
6. The relevant provisions of law No. 947 of 19 July 1996 concerning the Superior Council of Magistracy (republished in the Official Gazette No. 15/65-17, 2013) are as follows: Article 1Consiliul of the judicial organ of self-government "(1) the Superior Council of Magistracy is an independent body, formed for the purpose of organizing and functioning of the judicial system, and is the guarantor of the independence of the judicial authority.
(2) the Superior Council of Magistracy shall exercise judicial self-government. "


Article 25Contestarea decisions of the Superior Council of magistrates ' decisions of the Superior Council of Magistracy (SCM) can be appealed, the Supreme Court of Justice, any interested person, within 15 days after notification, only the part that concerns the procedure for issuing/adoption. Appeals will be examined by a panel composed of 9 judges. "
7. The relevant provisions of the European Convention for the protection of human rights and fundamental freedoms, as amended by the additional protocols (done at Rome on 4 November 1950 and ratified by decision of Parliament of the Republic of Moldova No. 1298-XIII of 24 July 1997) are the following:% quot% article 6 Right to a fair trial 1. Everyone has the right to a fair hearing, publicly and in a reasonable period of his cause, by an independent and impartial court established by law, which shall decide upon the infringement of his rights and obligations, be civil on the determination of any criminal charges against him. Judgment shall be pronounced publicly, but access to the courtroom may be forbidden to press and public throughout the process or part thereof in the interest of morality, public order or national security in a democratic society, where the interests of juveniles or the protection of the privacy of the parties in the proceedings so require, or to the extent considered necessary by the Court when in special circumstances, the advertisement would be likely to prejudice the interests of Justice. "


IN THE RIGHT HAND CORNER. The author's arguments for constitutionality exception 8. The author notes that the exception of unconstitutionality of the law article 947 of 19 July 1996 concerning the Superior Council of Magistracy, the Editorial Board of law No. 153 of 5 July 2012 for the modification and completion of some legislative acts, offers the possibility of attacking the Supreme Court of Justice against decisions of the Superior Council of Magistracy only in part that concerns the procedure for issuing/adoption.
9. The author considers that exception the right of appeal on a point of procedure is characteristic only for administrative decisions of the Superior Council of Magistracy, not for disciplinary decisions, which are essentially judicial acts.
10. Thus, the author argues that the disputed rule exception is contrary to article 20 of the Constitution and article 6 § 1 of the European Convention.


B. Assessment Of The Court 11. Note that the Court, pursuant to the provisions of paragraph 1 of article 135. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016, exceptional cases of unconstitutionality of the legislative competence of the Constitutional Court.
12. the Court must act to address that prerogative in exceptional cases of unconstitutionality entails establishing correlation between the contested rules and Constitution, taking into account the principle of the supremacy of its provisions and to address the relevance of the contested dispute in the courts.
13. the Court finds that the subject of the referral targeting the phrase "only in the part that concerns the procedure for issuing/adoption", contained in article 25 para. (1) of law No. 947-XIII of July 19, 1996 with respect to the Superior Council of Magistracy.
14. the Court noted that the contested provision was subject to notification constitutionality control by decision No. 17 of July 2013. By that judgment, the Constitutional Court recognized the phrase "only in the part that concerns the procedure for issuing/adoption" in article 25 of law No. 947-XIII of July 19, 1996 with respect to the Superior Council of Magistracy, the law No. 153 of 5 July 2012 for the modification and completion of some legislative acts.
15. Thus, in view of the identity of the object and the fact that there was new information, liable to lead to reconsideration of the Court's previous jurisprudence, the appeal cannot be declared admissible.
For these reasons, pursuant to article 26 of the law on the Constitutional Court, articles 61 para. (3) and 64 of the code of constitutional jurisdiction and item 28 lit. d) of the regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court D E C I D E: 1. It is hereby declared inadmissible the appeal regarding plea of unconstitutionality of the phrase "only in the part that concerns the procedure for issuing/adoption" in article 25, paragraph 2. (1) of law No. 947-XIII of July 19, 1996 with respect to the Superior Council of Magistracy, the Editorial Board of law No. 153 of 5 July 2012 for the modification and completion of some legislative acts.
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