for constitutionality Ruling Parliament. 172 of 15 October 2015 concerning the lifting of the parliamentary immunity of the enforceability of parliamentarian Vladimir Filat (Referral No. 39a/2015)
Published: 25.03.2016 in Official Gazette No. 69-77 art no: 12 date of entry into force: 17.11.2016 In the name of the Republic of Moldova, the Constitutional Court, acting as part of Mr. Igor DOLEA, Chairman of the meeting, Mr. Aurel BĂIEŞU, Mr. Talbot GEOGRAPHIC LOCATION, Mr. Victor POPA, judges, with the participation of Mr. Bjørn Maximum, Registrar, considering the appeal filed on 19 October 2015 and recorded at the same time, examining the appeal in public plenary considering the acts and proceedings of the dossier, Pronounce the following judgment: 1. The origin of the case lies the appeal lodged with the Constitutional Court on 19 October 2015, pursuant to articles 25 lit. g) of the law on the Constitutional Court and 38 para. (1) (a). g) of the code of constitutional jurisdiction, by 18 deputies from the parliamentary fraction of the Liberal Democratic Party of Moldova, on notification constitutionality control of Parliament for the ruling No. 172 of 15 October 2015 concerning the lifting of the parliamentary immunity of the enforceability of parliamentarian Vladimir Filat.
2. referral to the Authors claimed that the contested act was adopted in violation of the procedure prescribed by law and are thus inculpability, contrary to articles 1 para. (3) subparagraph (c), 21 and 66. a) and j) of the Constitution.
3. On 19 October, 2010, the Court rejected the application for suspension of the contested act, in favor of its examination in emergency regime. At the same time, the Court has decided to examine the linkage the admissibility of the referral, without prejudeca Fund case.
4. In the plenary session of the Court of referral were authors represented by Tudor Deliu, Angel Aaa, N-Simion Pleșca, Canon, deputies in Parliament. Parliament was represented by Mr. Iurie Cojocaru, lead counsel in the public law Department of the Directorate-General of the Secretariat of the Parliament.
In FACT 5. On October 15, 2015 the Attorney General has informed the Parliament that 13 October 2015 was started prosecution based on reasonable suspicions regarding the conduct of the Deputy Vladimir Filat of the offences covered by articles 324 para. (3) letter a) and b) and para. 326 (3) (a)) of the penal code and asked for the lifting of parliamentary immunity.
6. On the same day, with the votes of the 79 deputies, the Moldovan Parliament passed the judgment that the waiver of immunity parliamentary încuviințat for detention, arrest, searches and send Sue Deputy Vladimir Filat.
PERTINENT LEGISLATION 7. The relevant provisions of the Constitution (Official Gazette, no. 1, 1994) are as follows: Article 1Statul "(3) the Republic of Moldova is a democratic State of law, in which human dignity, rights and freedoms, the open development of human personality, justice and political pluralism represent supreme values and are guaranteed."
Article 7Constituţia, "Constitution Supreme Law of the Republic of Moldova is the Supreme law. No law and no legal act that violates the Constitution has no legal power. "
Article 21Prezumţia of innocence "any person charged with an offence is presumed innocent until his guilt is going to be proven legally, during a public trial in which he was assured all the guarantees necessary for his defence."
Article 34Dreptul to information "(1) a person's right to have access to any information of public interest shall not be restricted.
(2) the public authorities, according to their competences, are obliged to ensure that citizens are properly informed both on public affairs and matters of personal interest.
(3) the right to information must not prejudice the measures to protect the citizens or the national safety. "
Article 65Caracterul of the public meetings of the meetings of the Parliament are public.
(2) the Parliament may decide that certain meetings to be closed. "
Article 66Atribuţiile "Parliament has the following attributions: the laws, judgments) and motions; […]”
Article 70Incompatibilităţi and immunities "(3) the Parliament may not be detained, arrested, searched, except in cases of flagrant infringement or sent to court without the consent of the Parliament, after listening to."
Article 74Adoptarea of laws and decisions (1) organic laws shall be adopted by a majority vote of the elected deputies, after at least two readings.
(2) ordinary laws and decisions shall be adopted by a majority vote of deputies present.
8. The relevant provisions of law No. 39-XIII of April 7, 1994 on status of parliamentarian (republished in the Official Gazette of the Republic of Moldova, 2005, nr. 59-61, art. 201) are as follows: "article 10. (1) Parliament may not be detained, arrested, searched except in cases of flagrant infringement or sent to court criminal case without prior consent of the minor times of Parliament after hearing him.
(2) the request to arrest, detention, search or send administrative prosecution times is addressed to the President of the Parliament by the Attorney General. The speaker brings to the attention of lawmakers in open court no later than 7 days from parvenirea and send it without delay to the legal Commission for appointments and immunities that, within 15 days, will ascertain the existence of reasonable grounds for approval of the request. The Commission decision shall be taken by secret vote of at least half plus one of its members.
(3) the Attorney General shall submit all documents in the Commission that it request it. In case of refusal the Commission will appeal to Parliament.
(4) the report shall be submitted to the examination and approval of Parliament immediately, not later than 7 days from its presentation.
(5) the Parliament shall decide on the application of the Prosecutor General with the secret vote of the majority of the elected deputies.
(6) the criminal proceedings against the Deputy can be instituted only by the Attorney General.
9. The relevant provisions of the regulations, Parliament adopted Law No. 797-XIII of 2 April 1996 (republished in the Official Gazette of the Republic of Moldova, 2007, no. 50, art. 237), are as follows: Article parliamentary 94Imunitatea "(2) the Parliament may not be detained, arrested, searched, except in cases of flagrant infringement or sent to court without the prior approval of Parliament, after listening to."
Article 95Cererea for the waiver of parliamentary immunity "(1) where the legislator has committed an infringement or an irregularity, the Attorney General may request withdrawal of immunity from its Parliament to perform procedural measures of restraint, percheziţionare, arrest or prosecute.
(2) the request for waiver of the immunity of parliamentarian shall be addressed to the President of Parliament.
(3) the speaker shall notify the lawmakers request in Parliament at the next meeting after the date on it and sends it immediately to the legal Commission for appointments and immunities.
(4) where an application the Attorney General referred to in paragraph 1. (2) to have been received in the period between sessions, it will be brought to the attention of the deputies at the first plenary meeting of the session.
(5) the request for waiver of the immunity of Deputy shall be submitted for each separate offence or irregularity. […]”
Article 96Procedura of the General cereriiProcurorului in the legal Commission for appointments and immunities (1) the legal Commission for appointments and immunities shall examine the request of the Attorney General not later than 15 days after bringing it to the attention of the deputies by the President of Parliament and will ascertain the existence or absence of reasonable grounds for acceptance or rejection of the application.
(2) the Attorney General shall furnish the legal Commission for appointments and immunities documents relating to the case, requested it.
(3) date and place of hearing legal Commission for appointments and immunities shall be communicated to the Deputy Attorney General and in respect of which it is requested the lifting of immunity. Absence without leave to any of them shall not preclude the examination of the application.
(4) after hearing of the application the Attorney General and lawmaker in respect to which the required waiver of immunity, the legal Commission for appointments and immunities by a majority vote of its members, expressed the secret, a judgment.
(5) following the examination of the application of the Prosecutor General, the legal Commission for appointments and immunities shall draw up a report which shall be submitted to the permanent Bureau.
(6) the report legal Commission for appointments and immunities shall appear as a priority in its agenda. "
Article 97Procedura for the waiver of parliamentary immunity "(1) the report of the legal Commission for appointments and immunities is subject to examination and approval by Parliament no later than 7 days from its presentation of the permanent Bureau.
(2) presence at the plenary session of the State in respect of which it is requested the lifting of immunity. The absence of a reasoned demand suspension of its draw. Absence without leave Deputy shall not prevent the application in his absence.
(3) the President of Juridical Commission for appointments and immunities or another Member of the Commission's report presents its edge examination of the application of the Prosecutor General.
(4) the Attorney General will motivate the request for waiver of the immunity of Deputy and will answer the questions, after which lawmakers will be listened to Deputy in respect of which the request was submitted for the waiver of immunity, and he will answer questions.
(5) before the voting, parliamentarians have the right to express its position on the request for waiver of the immunity of parliamentarian.
(6) the Parliament shall decide on the application of the Prosecutor General by a majority vote of the elected deputies, the secret.
(7) the provisions of article secret 8 shall apply accordingly.
(8) the results of the voting shall be by a secret Charter, which will comply with the lifting of the immunity of parliamentarian or will reject the request of the Attorney General.
(9) the judgment of the Attorney General shall submit to the Parliament within 3 days from the date of its adoption. "
LAW 10. From the contents of the referral, the Court observes that it is aimed at essentially lifting the parliamentary immunity of Deputy.
11. Thus, the appeal relates to a set of elements and principles with constitutional value interconexe as well as the rule of law, the inviolability of the lawmaker, the presumption of innocence.
A. ADMISSIBILITY Of 12. The court notice that, pursuant to article 135 paragraph 1. (1) (a). the article of the Constitution), "". (1) (a). a) of the law on the Constitutional Court and article 4 para. (1) (a). the constitutional jurisdiction of the code), enforces on notification constitutionality control over laws, and decisions of the Parliament.
13. Articles 25 lit. h) of the law on the Constitutional Court and 38 para. (1) (a). h) of the Code empowers the constitutional jurisdiction of the parliamentary right to refer the matter to the Constitutional Court.
14. the Court finds that the judgment plenary belongs to supervision, formulated a referral being parliamentary fraction, which according to legal provisions, the subject of the complaint.
15. the Court recalls that, in accordance with its previous jurisprudence, in article 135, paragraph 1. (1) (a)), the Republic of Moldova's Constitution empowers the Constitutional Court with the constitutionality of all laws adopted by Parliament, without distinguishing between the individual and the normative acts (HCC nr. 10 of 16 April 2010).
16. At the same time, the Court note that a condition for the admissibility of complaints concerning the unconstitutionality of parliamentary decisions on the relevance of their constitutional. In accordance with the case-law of the Court, constant may be subject to the control of constitutionality rulings affecting Parliament, constitutional principles and rules or, where appropriate, the Organization and functioning of the authorities and institutions of constitutional rank (see Decisions No. 8 of 20 may 2013, no. 27 of September 20, 2013).
17. the Court note that constituent legislature considered it necessary to introduce in the text of the law on fundamental guarantees to be observed in the case of the lifting of parliamentary immunity as a condition for carrying out procedural actions and measures are stringent (detainment, arrest, search warrants) and prosecute, criminal or administrative, to members of Parliament. This procedure aims at preventing the risk of exercising bad faith, abusive or şicanator, as an instrument of pressure on parliamentarians of nötigung times. By the same token, moreover, the Constitutional Court ruled, by HCC No. 2 of 20 January 2015, that under the terms of paragraphs 1 and 2 of article 70. (3) of the Constitution the parliamentary inviolability in the Republic of Moldova ensures the deputies protection proceedings for acts not connected with parliamentary function, which can affect the functioning of Parliament and disrupt the serenity of the parliamentary works (§ 72-73). Therefore, Parliament's assent is aiming to prevent such possible abuse.
18. In applying these considerations, keep in mind that the object of the Court decision of Parliament no. 172 of 15 October 2015, namely the dilatory Declaration of enforceability to detention, arrest and prosecute dispatch Deputy Vladimir Filat, undoubtedly lies in the constitutional matter, the Attorney General's request being made and resolved in accordance with article 70 para. (3) of the Constitution.
19. Furthermore, the Court finds that the subject-matter of the judgment is directly tied to the rules enshrined in article 74 of the Constitution, which establishes a quorum decision-making they adopted Parliament acts, which relate to the values, principles and constitutional rules.
20. Having regard to the foregoing, the Court finds a constitutional ruling on the relevance of the article criticized, this condition for admissibility, thus satisfied the matter.
21. In accordance with article 6 para. (2) the constitutional jurisdiction, the Constitutional Court shall adopt itself limits of jurisdiction.
22. Pursuant to article 6 para. (3) of the code of constitutional jurisdiction, the constitutionality of the challenged Act, controlling Constitutional Court may pronounce a judgment and the other rules of the constitutionality of which depends entirely or partly challenged the constitutionality of the Act.
23. In this context, the Court note that by this question the constitutionality of the contested judgment of Parliament is in connection with the constitutionality of the legal rule invoked.
24. Please note that Court to exercise control of constitutionality of legal rules invoked it is necessary to the interpretation of the provisions of articles 34, 65, 68 and 74 of the Constitution in light of the possibility of setting up some decision-making and cvorumuri secretizării not covered by the Constitution.
25. In those circumstances, the Court note that in this question constitutionality interpretation of constitutional norms absorbs.
26. Therefore, the Court considers that the appeal cannot be rejected as inadmissible and there is no reason to halt the process in accordance with the provisions of article 60 of the code of constitutional jurisdiction. Note that the Court has been seised is competent and legally competent to decide on the constitutionality of the decision of the Parliament. 172 of 15 October 2015. Therefore, the Court will examine further referral to the Fund.
27. The two issues that were subject to the Court for resolution are interrelated. Considering the fact that the constitutionality of the establishment of decision-making and unregulated cvorumurilor secretizării Constitution affect the reasoning concerning the constitutionality of the challenged Act, article 97 para. (6) of the Regulation and of article 10 paragraph 1 Parliament. (5) of the law on status of parliamentarian will be addressed jointly in the examination of the problem concerning the form and procedure for adopting (I), the issue of the presumption of innocence should be examined separately.
28. the Court note that article 66 lit. (j)) of the Constitution is inapplicable in the present case, since the contested judgment does not refer to the election or appointment of a person. Moreover, AEI does not give rise to the termination of the mandate of lawmaker.
29. To elucidate the issues addressed in the referral, the Court will operate, in particular, with the provisions of articles 1 (1). (3), 7, 34, 65, 68 and 74 of the Constitution, with its previous case-law and with the principles enshrined in international law, using all methods of legal interpretation.
B. FUND CASE i. Alleged violation of article 1 para. (3) of the Constitution, in part related to the procedure of adoption. According to the authors of the referral, the Act in question was adopted in breach of article 1 para. (3) of the Constitution, according to which: "(3) the Republic of Moldova is a State of law [...]."
31. Also in the vision of the authors of the referral, the adoption of the contested act was violated and article 66 lit. to that of the Constitution) provides for powers to adopt decisions Paraments.
1. Arguments of the authors referral 32. The authors argue that the contested referral contrary to the constitutional provisions of article 1, paragraph 1. (3) relating to the principle of legality and article 66, paragraph. the powers of) Recent to adopt decisions.
33. According to the authors of the referral, the President of Parliament being proposed, following the submission of the application, contrary to legal norms, by the Attorney General, and voted by Parliament through open vote, the Act in question was adopted in breach of the procedure laid down by law, namely article. 10 para. (2) and (5) of the law on status of parliamentarian and art. 89 para. (4), 95 para. (2) to (3) and 97 para. (6) to (8) of the implementing regulation.
2. Parliament's arguments
34. During the meeting, the representative of the public Court of the Parliament admitted that, under article 74 of the Constitution, decisions of the Parliament shall be adopted by a majority vote of deputies present at the session. At the same time, he said, sitting in the Parliament, by an absolute majority of Deputies (79 votes) voted ad hoc open vote instead of the secret documents, provided by the Parliament's regulation for approval of withdrawal of immunity, which is the political will of the legislature body, which falls within the constitutional provisions.
3. Assessment of the Court 3.1. 3.1.1. Basic principles 35 parliamentary autonomy. Pursuant to the principle of the autonomy of the regulations provided for in article 64 para. (1) of the Constitution, the Parliament has the right of disposal in respect of their own organization and procedures for the conduct of parliamentary works.
36. statutory Autonomy constitute the expression of the rule of law, democratic principles, but can operate solely within the limits laid down in the basic law.
37. Thus, the vehicle's autonomy cannot be exercised in discretion, abusive, in breach of the constitutional powers of the Parliament or the rules relating to parliamentary procedure mandatory.
38. In this context, the regulatory rules represent legal instruments which allow the parliamentary activities in fulfilment of the constitutional powers of the legislature and should be interpreted and applied in good faith and in a spirit of loyalty to the Basic Law (see HCC No. 9 of 21 may 2013).
3.1.2. Parliamentary Transparency works 39. The right to information is one of the fundamental human rights, being guaranteed by art. 34 para. (1) of the Constitution: "the right person to have access to any information of public interest shall not be restricted."
40. This law obliges the public authorities to ensure that citizens are properly informed both on public affairs and matters of personal interest. The right to information cannot be ensured solely by an adequate level of transparency of the public authorities.
41. Decisional finality through trackable, shall ensure the exercise by citizens of their right to administer, held through art. 39 of the Constitution. Thus, along with the right to access public office, Moldovan citizens shall be guaranteed the right to participate in the administration of public affairs directly and through their representatives.
42. In the light of Parliament's role and share in the institutional architecture of the State, it is necessary to ensure that Parliament represents the interests of the citizens in a fully open and transparent manner.
43. According to article 65 paragraph 1. (1) of the Constitution, the Parliament's sessions are public.
44. The importance of transparency in the parliamentary activity is determined by the unique role of the legislature in a democracy, namely to represent their electorate and to guide the activity of the needs, interests and aspirations of the citizens.
45. The principle of transparency is derived from the mandate of the representative, as set out in article 68 of the Constitution, which provides that, in the exercise of their deputies are in the service of the people. Thus, a citizen sends a Deputy mandate of representation. Therefore, throughout the term, lawmakers must reside permanently under the supervision and control of public opinion. The representative's mandate ensures that the overall activity of parliamentarians is under control through electoral meetings with voters, interviews or press conferences, participation in the meetings of Parliament and voters ' tracking the behavior of elected officials, the openness of the vote in Parliament, parliamentary televising meetings, parliamentary debates, publication of advertising instruments adopted.
46. Therefore, citizens have the right to follow closely the activities of Deputies whom i have chosen, ensuring that they comply with the strict principles of conduct and maintain balanced relations that representatives of interest groups. Citizens are also entitled to have the greatest expectations with regard to standards of conduct and efficiency of members of Parliament. Last but not least, citizens must be given the right to access the documents of the Parliament in the appropriate limits specified in law. Essentially all the instruments of transparency have as an objective to enable citizens to monitor the activities and, in particular, the legislative work of Parliament.
47. The principle of transparency is fundamental in a democracy and is adequately transposed into the legal systems of countries with old democratic traditions, it being inconceivable that position and a parliamentary vote on a particular subject may not be known to the electorate. Transparency should be the rule, exceptions can be defined comprehensively, strictly and only in exceptional cases related to national security or State secrecy. 48. In this context, the constitutional principle of transparency of the parliamentary works involves the right to information of any citizen with regard to the work of all members of Parliament. Thus, it is necessary to show transparency in parliamentary activity, including with regard to the votes cast by each Member of the party.
49. without a vote open, transparent and traceable, a citizen cannot track the activity of the State it represents and, consequently, may not assess correctly the way it is represented in Parliament. However, the deputies must take responsibility for political positions expressed, primarily by open vote.
3.2. Application of the principles set out in this question. As regards the appreciation of the issue of compatibility with the provisions of the decision of the Parliament. 172 of 15 October 2015 in terms of shape and the adoption procedure, the Constitutional Court considers necessary to elucidate the constitutional rank requirements.
51. the Court note that in exercising constitutional, according to article 66 of the Constitution relating to the categories of legal acts, Parliament shall adopt laws, decisions and motions.
52. In the present case, the shape does not present an object of contention. Taking into account the constitutional rules, the Court concludes that the lifting of parliamentary immunity is the scope of the decisions of the Parliament. Therefore, the Act in question meets the requirements of form laid down in subparagraph (a) of article 66. of the Constitution).
53. the Court note that, in accordance with article 74 of the Constitution, the Parliament adopted laws and rulings, in the presence of the majority of lawmakers. Constitutional provisions referred to establish categories of legal acts to be adopted by Parliament, as well as the legal quorum necessary for the conduct of meetings and the adoption of laws. Thus, according to paragraph 1. (1) of article 1. 74, the organic laws shall be adopted by a majority vote of the elected deputies, and pursuant to paragraph 1. (2) of the same article, ordinary laws and decisions shall be adopted by a majority vote of deputies present.
54. Therefore, according to constitutional provisions, the rule governing the adoption of decisions decision-making is Parliament a quorum of a simple majority of votes, half plus one of the votes present at the meeting, exceptions to this rule being expressly provided for in the basic law. Thus, the Constitution provides for four situations in which Parliament adopts decisions with absolute majority vote of its members, namely the half plus one of the votes cast, namely in cases relating to: election of the President of the Parliament-art. 64 para. (2) trusting Government-art. 98 para. (3) adoption of vote of no confidence by withdrawing Government trust-art. 106 paragraph 1. (1) adoption or vote of no confidence in the Government's liability engagement procedure-article 11.114/1 (1). 2. The Constitution also requires a qualified majority of votes, i.e. two thirds of the votes, in the case of cancellation, the President of Parliament-art. 64 para. (2)-and the impeachment of President of the Republic of Moldova-art. 81 paragraphs 1 and 2. 3. In one case, the Constitution requires a three-fifths majority: Presidential election-article 78 paragraph 1. (3) the analysis of these constitutional provisions, it follows that all the decisions taken by Parliament, with the exception of those relating to the cases mentioned above, the rule laid down in article 74 para. (2) of the Constitution, shall be adopted by a majority vote of the members present. However, the Constitution does not distinguish between decisions adopted according to their subject matter, and according to the principle "ubi lex non distinguit, nec nos distinguere debemus"-where the law does not distinguish nor his interpreter can do.
55. On the other hand, the Constitution does not cover particular requirements concerning the nature of the vote (open or secret) to lift immunity of lawmaker.
56. the Court note that, according to article 65 of the Constitution, the Parliament's sessions are public. In conjunction with the provisions of articles 34 (right of citizens to information) and 68 (Representative's mandate), in order to ensure the constitutional principle of transparency, each lawmaker voting is open. Exceptions to this rule are laid down in the Constitution expressly and exhaustively. Thus, the Constitution provides for three circumstances in which Parliament adopts decisions by secret ballot, namely in cases involving: Parliament election and revocation-art. 64 para. (2) the election of the President of Moldova-art. 78 para. (5). 57. According to article 54 paragraph 1. (2) of the Constitution, the exercise of rights and freedoms may not be subject to restrictions other than those prescribed by law and which correspond to the widely recognized norms of international law and are necessary in the interests of national security, territorial integrity, economic well-being of the country, public order, in order to prevent mass unrest and crime, protection of rights, freedoms and dignity of other persons, preventing the disclosure of confidential information or to ensure the authority and impartiality of the judiciary.
58. With reference to the possibility of restricting the right to information, in its judgement No. 19 of 22.06.2015 concerning the interpretation of article 34 paragraph 2. (3) of the Constitution, the Constitutional Court ruled the conditions under which a person's right of access to information may be restricted: "-restriction to information can take place only when it is based on a real and justified for the protection of a legitimate interest for the protection of the citizen or national security, and the public interest for the information does not prevail;
-any restrictions on access to information, including specific categories of information, and the limited, which cannot be disclosed for the protection of the citizen or national safety, must be prescribed by law and necessary in a democratic society to protect a legitimate interest;
-justification of legitimate interest is based on the severity of the damage in case of publication of information, the public authorities to demonstrate that disclosure of the information would seriously threaten the protection of the citizen or national security ".
59. the constitutional provisions mentioned analysis shows that all decisions of the Parliament, except for those relating to the cases referred to above (see paragraph 57 supra), as well as the exceptional situaților of the protection of the citizen or national security shall be taken by open vote.
60. Owing to their stated rationales, please note that the provisions of article 97 para. (6) of the Regulation, which States that Parliament decide on lifting the immunity of Deputy shall be adopted "[...] the majority of the elected deputies, secret "are unconstitutional by reference to article 65 thereof in conjunction with article 34 of the Constitution and the provisions of article 74 para. (2) of the Constitution. For the same reasoning, are unconstitutional provisions of paragraph (7), and the word "secret" in paragraph (8) of article 97 of regulation, Parliament adopted Law No. 797-XIII of 2 April 1996, and paragraph 5 of article 10 of law No. 39-XIII of April 7, 1994 on status of parliamentarian, which devotes the same unconstitutional legislative solution.
61. Therefore, the legal status of the constitutional, legal and regulatory framework requires that, in accordance with article 1 para. (3) and 7 of the Constitution, the rules covering the detention, arrest enforceability, a search or sending deputies to court to be interpreted and applied in accordance with the principles of the hierarchy of acts and the supremacy of the Constitution.
62. the Court shall retain that decision-making and quorum requirements for the open vote constitutes the constitutional rank requirements, while procedural rules are established by the Parliament's regulation, pursuant to the principle of autonomy regulations as provided for by articles 64 para. (1) paragraphs 1 and 2 and 72. (3) (a). c) of the Constitution, not likely constitutionality.
63. With regard to the authors ' arguments aimed at making arrangements for referral, the Court considers that it is useful to point out that parliamentary immunity means responsibility, and not a privilege, and the mechanism of implementing parliamentary accountability is related to the exercise of autonomy.
64. However, the vehicle's autonomy cannot be exercised in a manner which, in its discretion, in violation of the mandatory rules relating to parliamentary procedure, mentioned above.
65. Moreover, the Court note that Parliament does not have the option to choose between the application of laws (organic, in the present case) and the Constitution since article 7 expressly recognises, supremacy of the Constitution, and its observance, and art. 74, para. (2) of the Constitution is clear about the majority vote needed to be met for the adoption of parliamentary decisions other than those concerning exceptional assumptions governed the Constitution (see paragraph 55 supra).
66. the Court retains supremacy; 74 para. (2) of the Constitution over any legal rules and regulations with lower legal force against it. Parliamentary activity should be guided by the same rules, in the sense of the Constitution and shall report to the jurisprudence of the Constitutional Court, which is tantamount to removal from a legal regulation that puts the same issues of constitutionality, as discussed in the cause. In this context, the Court will issue an address to Parliament, with a view to eliminating legal provisions at variance with the provisions of the Constitution regarding quorum decision-making and openness of the vote.
67. Parliamentary Immunity should not be used as a shield, which would create a privileged status of deputies to justice and the rule of law, beyond the strictly parliamentary activity. Lawmakers cannot substitute justice and parliamentary colleagues around firewall by hiding and remained there through secret voting, non-transparent. Lawmakers must take responsibility for political positions cast, the vote being opened.
68. Thus, the Parliament should decide on the request for waiver of immunity by the vote of a majority of lawmakers present and voting opened, in open court, in accordance with the provisions of art. 74 of the Constitution. Only if respect for constitutional procedure, Parliament has complete freedom to decide on the request for lifting immunity of enforceability, by decision of the plenary meeting adopted in exercising the right to approve or reject the application with such an object.
69. Therefore, in this case the open voting does not constitute a violation of the Constitution, on the contrary, secret voting, as they are not a requirement of express constitutional rank for the waiver of immunity is contrary to the provisions of the Constitution.
70. According to the Parliament's request the transcript relating to detention, arrest enforceability, percheziționării and sending the Deputy Vladimir Filat was approved with 79 votes. Therefore, the adoption of the decision of the Parliament for approval of arrest, detention, percheziționării and sending in the Court was satisfied the requirement for a quorum decision-making at the majority of the deputies present, provided for in article 74 para. (2) of the Constitution.
71. In view of the above findings, the court notice that since the adoption of the contested judgment were satisfied the requirements laid down in the Constitution and for the adoption of decisions and Parliament is not competent to adjudicate with regard to its compatibility with the provisions of the Regulation.
II. Alleged violation of article 21 of the Constitution, to the presumption of nevinovăției 72. According to the authors of the referral, the Act in question was adopted in breach of article 21 of the Constitution, according to which: "any person charged with an offence is presumed innocent until his guilt is going to be proven legally, during a public trial in which he was assured all the guarantees necessary for his defence."
1. Arguments of the authors referral 73. The authors argue that the contested the referral to violate the presumption nevinovăției by indicating the content of the text "[...] and reference in prosecution. "
2.74 Parliament's arguments. During the meeting, the representative of the public Court said Parliament Deputy Vladimir Filat has been presented at the plenary sitting of Parliament and offered explanations on the edge of the allegations which have been made. It also was invited to the session of the legal Committee, appointments and immunity, but has not been presented. Thus, Deputy Vladimir Filat has not been deprived of the right to present explanations, the exercise of which is at the discretion of the holder.
3. Assessment of the Court
75. in the image of the alleged infringement of article 21 of the Constitution, the Court reveals that the presumption has no incidence in nevinovăției the procedure for lifting the immunity, as it relates to the possibility of procedural actions and measures, to be applied by the competent authority, not to guilt times Deputy innocence.
76. Moreover, Parliament's vote did not in any way oblige the competent organ to order the measure or the respective procedural action. However, detention, arrest, detaining or sending in the judgment ordering the competent court only, and not by Parliament.
77. The Parliamentary Commission empowered to draw up the opinion and report, and Parliament are not jurisdictional organs and are not competent to review the lawfulness of the correctness or legal qualification of the facts to establish the guilt or innocence of a person having exclusive powers of the judiciary.
78. In this context, note that Court approval of Parliament is not a criminal act. Decisions taken in this respect of Parliament's political structures, by definition, such decisions are political in nature, and not a judicial one, therefore it is not necessary for them to meet the same criteria as justification for acts of judicial proceedings (judgment of Kart c. Turkey from 3 December 2009 Grand Chamber of the ECHR, § 101).
79. In this context, the Court reiterates that the extension useless and without criticism of parliamentary immunity to issues which have nothing in common with public function does not only affect the degree of confidence in the company's system of parliamentary democracy. The higher the conduct of "coverage" is the earliest of the respective tasks of the civil service, with both to be justified in a way more solid authorization application to benefit from immunity and, by extension, it becomes imperative to justify the refusal to lift parliamentary immunity. When the immunity operates in such a way that persons are protected from criminal courts should be established, clearly and convincingly, the motivation of the refusal of the waiver of immunity (HCC No. 2 of 20 January 2015, referred to above, § 75).
80. Moreover, the Commission from Venice in the laying and lifting of parliamentary immunities accorded (CDL-AD (2014) 011) of 14 may 2014 stated that: "38. The main argument invoked against parliamentary immunity is the principle of equality before the law, which is also an element of the rule of law. Any form of parliamentary immunity by definition assumes that deputies in Parliament are given special legal protection in relation to other citizens who do not have it. In order for democracy to function is particularly important for the members of Parliament themselves to observe strictly the laws enacted for the others, and that they are accountable both legally and politically for their actions. The regulations concerning parliamentary immunity represents an obstacle in this respect, as they are likely to be poorly applied can obstruct justice. The very existence of these rules contributes to undermining public confidence in the legislature, and also creates contempt towards politicians and against the democratic system as such.
39. For these reasons, the position of the normative base of the Venice Commission is that national regulations concerning parliamentary immunity must be regarded as legitimate only to the extent that these can be justified in relation to the requirements of the public. They must not exceed the limits of proportionality and the need in a democratic society. […]”
81. Moreover, in the report referred to the Venice Commission has established the following criteria for lifting parliamentary 189: against tampering. Criteria for lifting against tampering:-request for lifting against tampering is based on serious grounds, open and fair;
-endorsed Deputy was caught in flagrante delicto;
-making it a particularly serious is brought;
-the request relates to a criminal behavior that is not linked directly with parliamentary duties, but relates to acts committed in connection with other personal or professional organisation;
-It is necessary to allow the continuation of the proceedings in order not to obstruct justice;
-It is necessary to allow the continuation of the proceedings in order to protect the authority and legitimacy of the Parliament;
-targeted lawmaker calls for waiver of immunity.
190. In each of these cases the appropriate reasons must be balanced between them. Where the request is based on serious grounds, open and fair, and if there are grounds for suspecting fumus persecutionis, in this case there must be a high probability in favour of removal against tampering. Basic appreciation to confine that inviolability should be maintained only in cases where it is justified in relation to certain considerations and is proportionate and necessary to ensure the effective and democratic functioning of Parliament or the rights of any group of members.
82. Following this logic, the decision taken by Parliament with regard to the request made in this sense not only to assess whether the request is made in good faith, in a spirit of loyalty, and if it targets the facts such as to justify the measures brought in by tapping mentioned-the status of mp.
A contrary conduct would violate the exclusive powers of the judiciary and the separation of powers principle.
83. In the same context, the Court notes that the Constitution does not distinguish between decisions adopted according to the action or measure authorised: arrest, detention, percheziționare or reference. Thus, these actions or procedural steps can be încuviinţate by the Parliament in a single act. At the same time, sending the person to court and the recognition of the quality of the defendant does not have the meaning of guilt of the person who holds the exclusive competence of the Court. Sending trial consists of referring the dossier of the Criminal Court is the competent court, it, based on the evidence presented, having the opportunity to condemn or to pay the person.
84. From this perspective, in this case the request submitted to Parliament contains the minimum required for informing deputies and does not lead to substitution by Parliament in specific attributes of the judiciary, so that it can sustain the violation of inculpability.
Conclusions 85. Considering the arguments, the Court note that since the adoption of the contested judgment were satisfied the requirements laid down in the Constitution and for the adoption of decisions of the Parliament, for the purposes of quorum adoption and how to vote. Regarding the rest of the procedures established by Regulation of the Parliament, the Court is not competent to adjudicate. Thus, the Court finds no violation of any constitutional provisions concerning enforceability of detention, arrest, and prosecute percheziționării sending deputies in Parliament.
For these reasons, pursuant to articles 140 of the Constitution, 26 of the law on the Constitutional Court, 6, 61, 62 lit. of the 68 of the code) and constitutional jurisdiction, the Constitutional Court DECIDES: 1. Pursuant to article 70 of the Constitution, in conjunction with articles 1 (1). (3) and 7 of the Constitution, Parliament cannot establish decision-making than other express cvorumuri set by the Constitution.
2. In accordance with article 68 of the Constitution, in conjunction with articles 2, 34, 39 and 65 of the Constitution, in order to ensure the constitutional principle of transparency and accountability, the vote of each lawmaker is open, except in cases provided for in the Constitution expressly and exhaustively and exceptional situations pertaining to the protection of citizens or national security.
3. It is hereby declared unconstitutional paragraphs (6) and (7) and the word "secret" in paragraph (8) of article 97 of regulation, Parliament adopted Law No. 797-XIII of 2 April 1996, and paragraph 5 of article 10 of law No. 39-XIII of April 7, 1994 on status of parliamentarian.
4. pending the review by the Parliament of legislative provisions enshrining the decision-making cvorumuri and scrambling the vote other than those stipulated in the Constitution, shall apply directly to the constitutional provisions.
5. dismisses as unfounded the appeal to a group of parliamentary deputies from the Liberal Democratic Party of Moldova to Parliament on notification constitutionality control Judgment. 172 of 15 October 2015 concerning the lifting of the parliamentary immunity of the enforceability of parliamentarian Vladimir Filat.
6. Recognizing the constitutional Judgement No. Parliament 172 of 15 October 2015 concerning the lifting of the parliamentary immunity of the enforceability of parliamentarian Vladimir Filat.
7. 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.
CHAIRMAN of MEETING Igor DOLEA No.27. Chisinau, November 17, 2015.
PCC-01/39a, 17 November 2015 Chisinau Moldovan Parliament ADDRESS on 17 November 2015 the Constitutional Court decision No. 27 on notification constitutionality control of Parliament for the ruling No. 172 of 15 October 2015 concerning the lifting of the parliamentary immunity of the enforceability of parliamentarian Vladimir Filat.
By that judgment, the Court noted that, according to constitutional provisions [art. 74 para. (2)], rule that governs the adoption of decisions decision-making is Parliament a quorum minimum of simple majority votes, half plus one of the votes present at the meeting, exceptions to this rule being expressly provided for in the basic law. Within the meaning of article 70 of the Constitution, in conjunction with articles 1 (1). (3) and 7 of the Constitution, Parliament cannot establish decision-making than other express cvorumuri set by the Constitution.
Also, the Court noted that, in accordance with article 68 of the Constitution, in conjunction with articles 2, 34, 39 and 65 of the Constitution, in order to ensure the constitutional principle of transparency and accountability, the vote of each lawmaker is open, except in cases provided for in the Constitution expressly and exhaustively and exceptional situaților pertaining to protection of citizens or national security.
The basis of the reasoning set out, the Court noted that article 97 para. (6) of the Regulation, which States that Parliament decide on lifting the immunity of Deputy shall be adopted "[...] the majority of the elected deputies, secret "are unconstitutional. For the same reasoning, are unconstitutional and the provisions of paragraph (7), and the word "secret" in paragraph (8) of article 97 of the rules of Parliament, and (5) of article 10 of law No. 39-XIII of April 7, 1994 on status of parliamentarian, which devotes the same unconstitutional legislative solution.
Therefore, in order to ensure the unity of legal regulations in the field, Parliament intended to eliminate all laws contrary to the Constitution aimed at quorum decision-making and openness of the vote.
Court asks Parliament to examine, in accordance with the provisions of article 28/1 of the law on the Constitutional Court, this address to be communicated the results of its examination within the time limits prescribed by law.