For Interpretation Of Articles 69 Para. (2), 70 (1),99 And 100 Of The Constitution Of The Republic Of Moldova (Incompatibilities Of Deputies) (Referral No. 1B/2015)

Original Language Title: pentru interpretarea articolelor 69 alin. (2), 70 alin (1),99 şi 100 din Constituţia Republicii Moldova (incompatibilităţile deputaţilor) (Sesizarea nr. 1b/2015)

Read the untranslated law here: http://lex.justice.md/index.php?action=view&view=doc&lang=1&id=362320

for interpretation of articles 69 para. (2), 70 (1), 99 and 100 of the Constitution of the Republic of Moldova (incompatibilities of Deputies) (Referral No. 1b/2015)



Published: 18.12.2015 in Official Gazette No. 340-346 art no: 39 date of entry into force: 24.06.2015 In the name of the Republic of Moldova, the 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 Abdow Balaban, Registrar, considering the appeal filed on 26 January 2015 and recorded at the same time, examining the appeal referred to in public plenary considering the acts and proceedings of the dossier, acting in plenary sitting, Pronounce the following judgment: 1. The origin of the case lies the appeal lodged with the Constitutional Court on 26 January 2015, pursuant to art. 135 para. (1) (a). (b)) of the Constitution, art. 25 lit. g) of the law on the Constitutional Court and the 38 para. (1) (a). g) of the code of constitutional jurisdiction, by the members of the Parliament, Igor Dodon, Zinaida greceanii, Vladimir Turcan, Grigore Vasile, Bae and for interpretation of articles 69 para. (2), 70 (1), 99 and 100 of the Constitution of the Republic of Moldova.
2. The authors have requested the interpretation provisions of the referral to the constitutional principles set out under the following items: "-from that moment appears the situation of incompatibility for persons who are chosen as a Deputy in Parliament and from that time cease membership in legally (rightfully)?
-Deputy in Parliament can hold 2 cumulative functions: Member of the Chamber of Deputies and the Government, elected municipal or other incompatible functions after the expiry of 30 days from the date of validation of their mandate?
-Is it in law Deputy who owns 2 cumulative functions incompatible to attend plenary sessions of the Parliament after submitting the mandate and after the expiry of 30 days granted for waiving the mandate of lawmaker and what are the legal effects of acts adopted by the Parliament with the participation of (the vote)?
-Is it in as a member of the Government that owns the cumulative and member of Parliament (within 30 days after the validation of mandate of lawmaker has not renounced membership of the Government) to participate in the meetings of the Government and/or Parliament meetings and what are the legal effects of acts adopted by the Government with the participation of (the vote)? "
3. By decision of the Constitutional Court of 2 February 2015 referral has been declared admissible, without prejudeca Fund case.
4. In the process of examination referral, the Constitutional Court requested the views of the President, Parliament, Government.
5. In the plenary session of the Court the authors were represented by referral to Mr. Vasile Bae, Member of Parliament. Parliament was represented by Mr Valeriu Kuchuk, lead counsel in the General Legal Division of the Parliament and the Government Secretariat was represented by Mr. S. Jennifer, Deputy Minister of Justice.
PERTINENT LEGISLATION 6. The relevant provisions of the Constitution (Official Gazette, no. 1, 1994) are as follows: Article 6Separaţia and cooperation of powers "in the Republic of the legislative, Executive and judicial powers are separate and cooperate in the exercise of their prerogatives under the Constitution."


Article 60Parlamentul, the Supreme representative and legislative "(1) Parliament is the Supreme representative body of the people of the Republic of Moldova and the sole authority of the laws of the State.
(2) Parliament consists of 101 members. "


Article 69Mandatul of Deputies "(1) Deputies shall enter into the exercise of their mandate under condition of validation.
(2) the Office of a deputy shall terminate on the date of the meeting of the newly elected Parliament in the event of resignation, mandate withdrawal, incompatibility or death. "


Article 70Incompatibilităţi and immunities "(1) the Office of a Deputy is incompatible with any other remunerated position, except teaching and scientific activity.
(2) Other incompatibilities shall be established by organic law.
(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 99 Incompatibilities "(1) the Office of Government member is incompatible with any other remunerated.
(2) other incompatibilities shall be established by an organic law. "


Article 100Încetarea member function of the Government "as a member of the Government shall be terminated in cases of resignation, revocation, incompatibility or death."


Article 103Încetarea of the mandate "(1) the Government shall exercise its mandate up to the date of validation of the elections for a new Parliament.
(2) the Government, if the expression of no confidence vote by the Parliament, resignation of the Prime Minister or in the conditions of paragraph (1), meets only management functions public affairs until the oath of the members of the new Government. "
7. The relevant provisions of law No. 39-XIII of April 7, 1994 on status of parliamentarian (republished: M.O., 2005, nr. 59-61, art. 201) are as follows: "Art. 2-4. in the exercise of Lawmakers entering from the time of selection, provided his subsequent validation.
[] (6) the Office of a deputy shall terminate on the date of the meeting of the newly elected Parliament in the event of resignation or death.
(7) in the event of resignation or death, the term of Office of a Deputy recess intervenes.
(8) the resignation shall be submitted to the President of Parliament. Parliament, in its judgment, will take note of the resignation of Deputy and will declare a vacancy.
(9) in case of death, the legal Commission for appointments and immunities of Parliament will draft a report. Parliament, in its judgment, will take note of the report of the Commission and shall declare the vacancy.
(10) vacancy will be assigned to the next immediately announces the list of the party of social-political organisation, or electoral bloc for the candidate Deputy whose term was declared vacant. Where it becomes vacant Deputy obtained an independent candidate, filling the holiday in question is carried out by restoring the declining, excluding the number corresponding to the respective candidate and including the next number in the string. After the Declaration by Parliament of their holidays, the Central Electoral Commission, within 10 days, will examine the candidate's candidacy immediately next on the alternate list for the competitor whose electoral mandate and a vacancy shall submit to the Constitutional Court for validation of their mandate.
(11) the Constitutional Court, within 30 days after the Declaration of the vacancy of lawmaker's mandate, will validate the next term. "
"Art. 3-term lawmaker is incompatible with the Chairman) of the Republic of Moldova;
b) as member of the Government;
c) Ombudsman function;
C1) elected municipal function;
d) holding any other remunerated functions, including the function provided by a foreign State or international organization, except for didactic and scientific activity undertaken outside established by regulation; "
"Article 5-(1) which is located in one of the cases of incompatibility laid down in article 3 will resign within 30 days from the date of validation of their mandate, as incompatible with the mandate of lawmaker. As will proceed and the occurrence of the situation of incompatibility pursuant to article 4.
(2) if the Deputy is in one of the cases of incompatibility and not filed, within the time limit mentioned in paragraph 1. (1) the request for resignation from the post incompatible with the mandate of lawmaker, after the expiry of that period is suspended by operation of law as incompatible. "
8. The relevant provisions of law no 64-XII from 31 May 1990 on Government (republished: M. A., 2002, nr. 131-132, 1018) are as follows: Article 29Membrii Government "Cabinet members: bear responsibility spheres of activity with which they have been entrusted with and for Government as a whole;
participates in the examination of the issues during the sessions of the Government and of its Presidium;
may submit to the Government proposals with regard to the consideration of questions relating to their jurisdiction, may initiate the drafting of resolutions and ordinances of the Government;
The Minister is not in law: 1) hold any other Office in the bodies of Central and local public authorities;
2) is within the governing bodies of the units;
3) to practice entrepreneurial activity personally or through third parties;
4) to hold other Office remunerated, except in the scientific and pedagogical activity.
Conditions of work and staffing, material and social insurance of members of the Government shall be determined by law.
Function of Government and the prerogatives of the Member of the Government shall cease in the event of resignation, revocation, incompatibility of the function or death. "
9. The relevant provisions of law No. 199 of 15 July 2010 on the status of persons with dignity (M. A., 2010, nr. 194-196, article 637) are as follows:



Article 12Incompatibilităţi "(1) is not entitled Dignitary to conduct any other paid activity, except for didactic and scientific activities.
(11) by way of derogation from paragraph 1. (1) the person who holds the Office of Deputy Minister has the right to pursue part-time within the Board of Directors of State-owned enterprise and the joint-stock company in which the State owns a share of the share capital.
(2) the provisions of paragraphs 1 and 2. (1) does not apply where the Constitution or the law regulating special request contains provisions concerning the situation of incompatibility of the Minister concerned provisions on a fold similar situation.
(3) the situation of incompatibility to cease within one month from the moment of its occurrence, if a special law regulating this term does not establish another dignitary. If the dignitary will not take action to eliminate the incompatibility, its mandate will be terminated ahead of schedule, pursuant to article 22.
(4) where the termination situation of incompatibility in the term specified in paragraph 2. (3) does not depend on the will of the Minister, it is due to submit evidence concerning the undertaking in good faith the measures to eliminate this situation. "


Article 22Încetarea of the mandate "(1) the mandate shall lapse on expiry, if the mandate is not extended in the manner established by law, or ahead of schedule.
(2) if the Minister chose, the cessation of the mandate takes place under special legislation governing the work of the Minister concerned.
(3) if the Minister called the termination before term mandate is occurring through revocation or, if necessary, dismissal of the Minister pursuant to the Act of the authority that appointed him in Office.
(4) the provisions of paragraphs 1 and 2. (3) does not apply to officials for special law regulating their work provides another procedure for termination before term. "
10. The relevant provisions of law No. 768-XIV of 2 February 2000 on the status of local public servant (M. A., 2000, nr. 34, art. 231) are as follows: Article 7 (1) of the local election official Mandate is inconsistent with: (a)) person with a function of public dignitaries;
b) public servant in the territorial offices of the State Chancellery;
c) public servant, an employee in the subdivisions of local public administration authorities (mayoralties from rayon, presidential, House and the prices of the Chisinau municipality, directions, sections and other divisions), including those of the people's Assembly of Gagauzia and the Executive Committee of Gagauzia;
d) Chief, Deputy head (including the interim such functions) in the underlying structures of local public authorities (public institutions, services, municipal enterprises);
e) other cases stipulated by law, including those referred to in article 83 of law No 436-XVI dated December 28, 2006 on local public administration.
(2) in addition to the incompatibilities provided for in paragraph 1. (1) of this article, the terms of reference of the hearing is incompatible with membership of a Board Advisor at the same level or counselor of any level from other administrative-territorial units of the second level. "


Article 8 (1) the one that is located in one of the cases of incompatibility laid down in article 7 of this law will resign as incompatible with its mandate or the lodge held its mandate within 30 days after the occurrence of the incompatibility.
(2) where the President, Vice-President, Deputy Mayor of the district into compliance and determine whether terminations, the Council that elected him will decide at the meeting immediately following the lifting of the respective local public servant's tenure, and in case of neadoptare of the decision in question, raising the local public servant's term of Office will be decided by judicial process, on the initiative of the territorial Office of the State Chancellery or the referral to the National Commission of integrity.
(21) at the request of the persons concerned, the Central Election Commission shall decide on the lifting of his Adviser if the hearing does not comply with the provisions relating to the termination of the incompatibility within the period specified in paragraph 1. (1) of this article.
(3) the Mayor, if is in a State of incompatibility provided for in law, is removed from Office without conducting a local referendum, on the basis of a final judgement. Revocation procedure is initiated by the territorial Office of the State Chancellery, on its own initiative or at the request of the parties concerned, including the referral to the National Commission of integrity. "
11. The relevant provisions of law No. 16-XVI dated 15 February 2008 with regard to the conflict of interests (republished: M. A., nr. 72-74, art. 231) are as follows: Article 19Dispoziţii General incompatibility "public functions regarding Incompatibilities are those established by the Constitution of the Republic of Moldova, through laws that regulate the activity of the public authorities in which the persons holding public office or functions public offices operates, by this law through legislation, through public service laws on local public servant status, on local public administration, aimed at combating corruption and protectionism, as well as through other laws. "
In LAW 12. From the contents of the referral, the Court observes that it is aimed at situations of incompatibility with the mandate for Parliament as a member of the Government and other functions.
13. In this regard, note that the Appeal Court refers to a set of elements and principles with constitutional value interconexe as well as the mandate of lawmaker and expressed concern about cases of termination of the term of Office of a Deputy, all examined in terms of separation of powers in the State. The ADMISSIBILITY 14. In accordance with its decision of 2 February 2015, the Court noted that, under article 135 paragraph 1. (1) (a). (b)) of the Constitution, article 4 para. (1) (a). b) of the law on the Constitutional Court and to article 4 para. (1) (a). (b) constitutional jurisdiction) of the Code concerning the interpretation of the Constitution, to refer to the competence of the Constitutional Court.
15. Articles 25, paragraph 2. (1) (a). g) of the law on the Constitutional Court and 38 para. (1) (a). g) of the code of constitutional jurisdiction granted to deputies the right to refer the matter to the Constitutional Court.
16. the Court notes that the issues addressed by the authors of the report I have not previously been the object of interpretation in the Court's constitutional jurisdiction.
17. the Court retains that he has interpreted article 69 para. (2) of the Constitution, through Decisions No. 8 of 19 June 2012 and no 2 of 20 January 2015, under other matters, other than those cited in the complaint.
18. the Court considers that the appeal cannot be rejected as inadmissible and there is no other reason to interruption of 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 interpretation of articles 69 para. (2), 70 (1), 99 and 100 of the Constitution of the Republic of Moldova.
19. Furthermore, in accordance with article 6 para. (2) the jurisdiction of the Constitutional Court shall adopt its single competence limits.
20. Thus, the Court notes that, in the context of interpreting referral object to articles 69 para. (2), 70 (1), 99 and 100 of the Constitution of the Republic of Moldova, will exercise and constitutionality of provisions of article 5 paragraph 1. (2) of law No. 39-XIII of April 7, 1994 on status of parliamentarian, who are speței related.
21. the Court retains that power was vested in it by article 135 paragraph 1. (1) (a). (b)) of the Constitution requires the genuine meaning and of constitutional norms, which can be done through textual interpretation or functioning, insofar as they can be inferred from the text of the Constitution, taking into account the generic nature of the rule, the concrete situations that the legislature did not provide them at the time of preparation of the norm.
22. The authors have submitted for review the referral to the Constitutional Court the question of the incompatibility of the function member with other functions, relying on a wide range of work.
23. Thus, the question addressed to the Court to impose regime analysis for selected persons in incompatibilities for Parliament with the functions previously held (Government member, elected municipal), and expressed concern about the deputies already dependent function.
24. the Court reveals that the issues examined will be addressed in the context of the circumstances of the speţei concerned, in particular, taking into account the fact that, at the time of referral, some members of Parliament were members of a government simultaneously resigning, new Government disagreeing appointment yet.
25. Therefore, the Court will examine: 1) the legal regime of incompatibilities of function; 2) effects of the situation of incompatibility of the function member with other functions; effects of 3) incompatibility of the function member with membership of the Government resigning.

26. In this context, in order to elucidate the content authentic the provisions of articles 69 para. (2), 70 (1), 99 and 100 of the Constitution, the Court will operate, in particular, the constitutional text, taking into account aspects relating to the legal regime of incompatibilities, be terminated in the event of incompatibility with other functions, forms of its implementation in the constitutions of other States, as well as the jurisprudence of the European Court of human rights (hereinafter "Echr"), using all methods of legal interpretation.
27. Moreover, the Court will interpret constitutional provisions taking account of the principle of separation of powers, enshrined in article 6 of the Constitution.
I. the legal regime of incompatibilities of function 1. The authors ' arguments on which that 28. The authors argue that the referral time validation of mandates assigned to deputies elected on the electoral lists following the elections of 30 November 2014, several people were elected in conditions of incompatibility.
29. According to the authors of the referral, after the expiry of 30 days from the date of validation of mandates, some deputies have not renounced the duties previously held, contrary to the provisions of article 6 of the Constitution, the law on status of parliamentarian, the law on the Government, and the law on local public servant status.
2. Arguments of the authorities 30. According to the presented, Parliament noted that, according to the provisions of article 70 of the Constitution, in the event of incompatibility situation follows terminated by a Deputy, which occurs by resignation (giving up the warrant, upon request), as in the case of election or appointment by Parliament in another function (Minister, Prosecutor, Ombudsman, Constitutional Court judge).
31. In the opinion of the President noted that the law stipulates that the lawmaker who is in one of the cases of incompatibility will resign within 30 days from the date of validation of their mandate, as incompatible with the mandate of lawmaker.
32. The Government, in his opinion, reiterated that according to the Constitution, the status of MEP is incompatible with any other remunerated activity, except scientific, teaching and and lapses in the cases expressly provided for in article 69 paragraph 3. (2) and 70 para. (1) of the Constitution.
3. Assessment of the Court 3.1. General issues concerning incompatibilities 33 deputies. The Court noted that the normal operation of the entire legal and political system requires efficient parliamentary tenure protection and protective measures, such as incompatibilities, immunities.
34. The significance of the notion of incompatibility lies in the prohibition laid down by law, to combine two functions, in order to ensure independence of action of the person occupying a public office, avoiding concentration by one and the same person has some excessive privileges and the protection of the moral and professional integrity.
35. the Court note that incompatibility shall be established from the moment of acquiring the tool and requires a period of time during which the holder of the function is required to choose between the premium and the new function.
36. The incompatibility does not constitute only a protection measure of the function, the consideration of which has been established, but also those with whom this function becomes inconsistent, preventing their aggregation.
37. In this respect, the Court indicates that the establishment of the incompatibilities for as a member of the foundation that has rationale Deputy must be not only independent of any influence, but also to refrain from exercising certain functions or activities which, by their nature, would be inconsistent with the mandate of his representative or that it would hamper the exercise thereof.
38. Incompatibilities, but it also protects the independence of the parliamentarian, and interest from the perspective of conflict of interest. Or, by aggregating parliamentary mandate with another function, then conflict with the powers and duties established by its statutes, which could create a material cumulative function dependency and may lead to possible attempts to resolve issues through the influence of the mandate of particular interest.
39. in addition, the quality of parliamentary calls for a greater concentration of efforts, which makes this function to be incompatible with any other State or private function.
40. The concept of incompatibility of the function of Deputy has the foundation principle of separation of powers, enshrined in article 6 of the Constitution, representing a principle of State legal order.
41. According to this principle, the State authorities have a duty to exercise their powers within the limits imposed by the Constitution and by law, without the involvement of other authorities.
42. In Judgement No. 9 of April 8, 2010, the Court held: "public authorities imposed functional Incompatibilities, devoted to constitutional provisions and legislative acts in accordance with the law, constitutes the Supreme law measures designed to ensure the real functioning of the rule of law, democracy in the Republic of Moldova under conditions of political pluralism.
Article 6 of the Constitution expressly stipulates the separation of powers, legislative, Executive, and judicial, and cooperation in the exercise of their prerogatives under the Constitution. According to this principle, all branches of State power must operate strictly in accordance with the constitutional, none has the right to commit interference or to arrogate powers the other.
Constitutional consecration incompatibilities regarding the mandate of the Chamber of Deputies, the President of the Republic of Moldova or the Member of the Government, the functions of judge, Prosecutor, etc. constitute a guarantee of the fulfilment of the legislative, Executive and judicial authority to their prerogatives under the Constitution.
Implementation of the principle of the separation of general and cooperation of powers aimed at ensuring the functionality of the State in a strictly constitutional, exclude any attempts at establishing a dictatorship and totalitarian regime ".
43. the Court noted that the principle of the separation of powers regarding the constitutional State, and independence in the exercise of the parliamentary term, imposed to regulate incompatibilities as a legal instrument to protect the mandate of lawmaker.
44. the Court shall retain that represents a guarantee of incompatibilities objectivity and credibility, which must characterize the exercise of a public function in a democratic society in a State of law.
3.2. the incompatibilities of deputies in other States and in the jurisprudence of the European Court 45. Note that court practice of other countries demonstrates that there is no uniform approach with regard to parliamentary regime of incompatibilities with other public office, elective or neelective, as well as private functions.
46. From the analysis of the content of the legal texts in the matter, it appears that the basis for the establishment of the following grounds: incompatibilities are sitting the principle of separation of powers and the independence of the parliamentary mandate, avoidance of conflicts of interests, the requirements relating to the exercise of their parliamentary seat.
47. the Court notes that in a number of States are treated in the incompatibilities of the principle of separation of powers. Thus, in such countries such as Austria, Belgium, Spain, Estonia, Finland, France, Luxembourg, Macedonia, Netherlands, Portugal is prohibited by the Constitution or by law, the parliamentary mandate of cumulation with exercise executive functions (head of State, Prime Minister, Minister or Secretary of State), or within the judiciary (a member of the Constitutional Court or the Supreme Court, the Council of State, or in a high specialized jurisdictional court for example, the Court of Auditors).
48. Other States allowed derogation from the principle of incompatibility with other parliamentary function of the executive functions. In Italy, Hungary, Spain, Poland, Romania, Albania is an exception to the rule of incompatibility with the exercise of the parliamentary function of the Member of the Government.
49. Some incompatibilities are meant to protect the independence of the mandate exercise parliamentary administrative influences and refers to the functions of judge, Prosecutor, police officer in the armed forces, diplomatic representative and consular establishments and public undertakings (France, Spain, Ireland, Italy, Malta, United Kingdom, Bosnia and Herzegovina, Slovakia, Belgium, Estonia, the Czech Republic, Portugal).
50. Other schemes are related to incompatibilities the existence of conflicts of interests and aimed at the directors of enterprises, companies, public or private institutions that have interests related to the activity of the State, including receiving State subsidies, or Presidents and members of the Board of Directors of the undertakings in the field of public works, property or credit (Bulgaria, France, Spain, Italy etc.).

51. In some States, in order to ensure the activity of the parliamentarian at the time, the law prohibits, for the duration of their mandate, exercising any remunerated work or profession except teaching (Spain, Lithuania, Russia).
52. the Court noted that, according to the case-law of the European Court, the introduction of incompatibilities for public office does not contravene the provisions of elective Convention.
53. by Judgment of 15 June 2006, pronounced in the case of Greece, Lykourezos vs. European Court, at paragraph 51, held that, by virtue of the obligation of the Contracting States to hold elections under such conditions as to ensure freedom of expression of people's opinion, the rights guaranteed by article 3 of Protocol No. 1 to the Convention are crucial to the establishment and maintenance of databases of a genuine democracy governed by the rule of law. However, these rights are not absolute, States having a wide margin of discretion in the imposition of "implied limitations", depending on the historical evolution, cultural diversity, political thought and visions on the democracy (Matthews v. United Kingdom, § 63 Labita vs. Italy § 201; Podkolzina v. Latvia, § 33).
3.3. the Constitution and legislation of the incompatibilities of the Republic of Moldova 54. The Court stated that the status of Member of Parliament is enshrined by the Constitution and legislative acts in this field.
55. The Constitution stipulates the conditions for entry in the Deputy's mandate, in cases of termination of membership, as well as addressed by the exceptions relating to the mandate of lawmaker.
56. the Court note that article 69 para. (2) of the Constitution stipulates the cases of cessation of membership, namely that it ceases from the date of the meeting of the newly-elected Parliament in the event of resignation, mandate withdrawal, incompatibility or death.
57. In accordance with article 70 para. (1) of the Constitution, the status of MEP is incompatible with any other remunerated position, except teaching and scientific activity, and para. (2) provides that other incompatibilities shall be established by organic law.
58. the court notice that, in the development of constitutional provisions of art. 70 paragraph 1. (2) of the Constitution, art. 3 of law No. 39-XIII of April 7, 1994 on status of parliamentarian determines the situations of incompatibility of the mandate of a Deputy with the following functions: a) the President of the Republic of Moldova; b) as member of the Government; c) Ombudsman function; C1) elected municipal function; d) holding any other remunerated functions, including the function provided by a foreign State or international organization, except for didactic and scientific activity undertaken outside established by regulation.


II. The effects of incompatibility of the function member with other funcții1. The authors ' arguments on which that 59. The authors of the referral considers that, where the legislator is in a function which is incompatible with the status of Deputy, the mandate of lawmaker must cease. In this sense, the authors refer to the referral article 69 para. (2) of the Constitution, which stipulates, among cases of cessation of the Chamber of Deputies, and the situation of incompatibility.
60. According to the authors of the referral of cases of incompatibility, stipulated in article 69 paragraph 3. (2) of the Constitution, should be solved according to the procedure and within the time limits specified in paragraph 1. (1) article 5 of law No. 39-XIII of April 7, 1994 on status of parliamentarian.


2. Arguments of the authorities 61. The opinion by the President of Moldova, in terms of quality incompatibility with other functions, the rule applies to article 69 para. (2) of the Constitution, and under these circumstances the quality of mp must cease.
62. In the opinion of the Parliament stated that if the lawmaker is in one of the cases of incompatibility stipulated by law and filed within the period prescribed by law, the resignation from the post of Deputy, quality lapses, in accordance with article 2 (2). (8) of law No. 39-XIII of April 7, 1994, the date when the Parliament takes note of the resignation.
63. The Government, in his opinion, noted that situations of incompatibility with the mandate of lawmaker elected municipal or function with other functions. 3 of law No. 39-XIII of April 7, 1994 on status of parliamentarian, will be resolved in the manner established by art. 5 of the Act. Thus, the legislator who is in one of the cases of incompatibility, under article 3 of law No. 39-XIII of April 7, 1994, will resign within 30 days from the date of validation of their mandate, as incompatible with the mandate of lawmaker.


3. Assessment of the Court 64. The court notice that, according to article 69 para. (2) of the Constitution, membership shall cease on the date of the meeting Deputy of the newly-elected Parliament in the event of resignation, mandate withdrawal, incompatibility or death.
65. In Judgement No. 2 of 20 January 2015, the Court noted that the settlement of the cases of forced termination of the mandate of lawmaker is the preserve of the Parliament, including lifting the parliamentarian's mandate or incompatible.
66. However, the Court will take into account the fact that, to date, Parliament has not adopted regulations concerning cases of lifting or termination of the mandate of the Deputy (assumption of the Constitution, other than the "lifting" of the mandate). Thus, constitutional provisions are not enforced.
67. the Court starts from the premise that a rule should be interpreted in the sense that they permit application, and not in the sense in which its application is excluded (actus interpretandus potius quam est ut ut valeat pereat).
68. Consequently, the rules inherent in such an exercise, in the absence of explicit rules, are to be deduced from the text of the Constitution, through the application of the principle "useful effect."
69. Reiterating the norm art. 70 paragraph 1. (1) of the Constitution, the Court shall specify quality of incompatibility with holding any other remunerated position, except teaching and scientific activity. At the same time, according to paragraph 1. (2) of the same article, other incompatibilities shall be established by law.
70. the court notice that article 3 of law No. 39-XIII of April 7, 1994 on status of parliamentarian specifies functions incompatible with the mandate of lawmaker.
71. Article 5 paragraph 1. (1) of law No. 39-XIII of April 7, 1994, regulates the procedure for the head coach to the lawmaker who is in one of the cases of incompatibility laid down in article 3 of the said law. Thus, the legislator who is in one of the cases of incompatibility will resign within 30 days from the date of validation of their mandate, as incompatible with the mandate of lawmaker.
72. In this regard, the Court mentions and article 12 paragraph 1. (3) of law No. 199 of 15 July 2010 on the status of persons with functions of public dignitaries, which States that the situation of incompatibility to cease within one month from the moment of its occurrence, and if you won't take action dignitary to eliminate incompatibility, his term will end ahead of schedule.
73. the Court noted that the effect of incompatibility of ceasing to constitute either right by the emergence of the cause of incompatibility or by resignation of parliamentarian, where discards the mandate.
74. Belt note that the legislature has provided for in article 5(2). (1) of law No. 39-XIII from 7 April 1994 resignation of lawmaker who is in one of the cases of incompatibility, within 30 days from the date of validation of their mandate.
75. Thus, the Court finds that the legislator of the period of 30 days after the validation of mandates for actions with a view to elimination of the incompatibility condition constitutes a transitional period during which the parliamentarian is to opt for one of the functions that can be performed simultaneously and to act accordingly.
76. In these circumstances, the Court shall retain the situation of incompatibility for people newly elected as member of Parliament from the time of validation of a Deputy's mandate.
77. At the same time, the Court distinguished the occurrence situation of incompatibility and for deputies in the exercise of the function. Thus, the Court finds that the Deputy that lies in the exercise of the function and subsequently opts for another function incompatibility situation will arise from the moment of entry into the exercise of other functions.
78. the court notice that the person who was chosen as a Deputy and is in a situation of incompatibility, until the expiry of the period prescribed by the regulations for the situation of incompatibility, will choose between the mandate of lawmaker and the function that generates the incompatibility, resigning from one of the functions.
79. Thus, within 30 days after the occurrence of the incompatibility, will resign as incompatible with its mandate and, vice versa, if the legislator decides to remain in the post, he is expected to resign from the post of Deputy and to submit the resignation.
80. the court notice that, if the request for resignation from the post of Deputy to the Deputy located in a situation of incompatibility, the Member's term of Office shall be terminated at the time of filing the application.

81. Furthermore, the Court noted that in cases where the request for resignation as a member of Parliament to act promptly to comply with the legal provisions.
82. the Court note that resignation means the manifestation of will expressed, legal act through which a dignitary withdraws from a function.
83. The resignation of a lawmaker set of proceedings, comprised of several consecutive stages, which involve a number of actions taken by both the lawmaker learned of incompatibility and the houses of Parliament (the President of the Parliament, the permanent Bureau, standing committees, Parliament), the Central Election Commission, the Constitutional Court, and is regulated by legislative acts in this field.
84. the Court note that, in accordance with article 2 (2). (8) of law No. 39-XIII of April 7, 1994, the resignation shall be submitted to the President of Parliament. Parliament, in its judgment, will take note of the resignation of Deputy and will declare a vacancy.
85. Subsequently, in accordance with article 2 (2). (10) of the same law, the Central Electoral Commission, within 10 days, will consider the candidacy of the next alternate candidate on the electoral list of the competitor whose mandate became vacant, and will submit to the Constitutional Court for validation of their mandate.
86. At the same time, the court notice that, whether the incompatibility continues to exist after the expiry of prescribed by law, in case of omission of Deputy to the incompatibility is considered Deputy resigned as the Deputy.
87. In this regard, the mandate of a deputy shall cease as from the date of expiry of the 30-day period provided for in art. 5 para. (1) of law No. 39-XIII of April 7, 1994 on status of parliamentarian.
88. Thus, the Court noted that all procedures related to incompatibilities of deputies are expected to be completed within the 30-day time limit provided by law when the incompatibility occurs, otherwise, after the period of 30 days, the lawmaker's mandate is terminated by operation of law, without the need for other formal requirements.
89. In the light of the Court notice that, pursuant to article 69, paragraph 1. (2) of the Constitution, the incompatibility is one of the causes of the termination of the mandate of the Parliament, either by resignation or by the parliamentarian.
90. In this context, the court notice that legal provisions may not come in conflict with the constitutional norm which lays down explicitly terminated by a Deputy on the grounds of incompatibility.
91. the Court shall retain, the consequences of which have occurred due to incompatibility, employment has two functions that cannot be performed concurrently by the same person, depends on whether the lawmaker learned in this situation or not filed the resignation.
92. The situation in which the legislator has not submitted the resignation is covered in paragraph 2. (2) article 5 of law No. 39-XIII of April 7, 1994, which States that, where the legislator is in one of the cases of incompatibility and not filed, within the time limit mentioned in paragraph 1. (1) the request for resignation from the post incompatible with the mandate of lawmaker, after the expiry of that period is suspended by operation of law as incompatible.
93. According to the provisions concerned, where it has not manifested the will to remove the incompatibility, it is suspended by operation of law as incompatible with the mandate of lawmaker.
94. the Court finds that the legal norm, according to which the Deputy is suspended as incompatible with its mandate if it does not meet the necessary actions for the purpose of elimination of incompatibility constitutional provisions in contravention of art. 69 para. (2) establishing that the effect of such cases is the cessation of a Deputy, and not vice versa.
95. In the light of the above, in paragraph 2 of article 5 of law No. 39-XIII of April 7, 1994 on status of parliamentarian contrary to constitutional norms.
96. At the same time, the Court noted that, in order to eliminate the neclarităților of the law in cases where the occurrence of situations of incompatibility for elective public figures, will issue an address to Parliament for regulating such situations in the spirit of the provisions of this decision.
97. in addition, the Court reiterated the conclusion set out in the Judgment Address No. 2 of 20 January 2015, whereby the legislator to regulate by law the conditions for termination of a parliamentarian, including in the event of incompatibility.
Conclusions 98. According to the reasons set out, the situation of incompatibility for people newly elected as member of Parliament from the time of validation of a Deputy's mandate of the Constitutional Court, and for the exercise of the function of Parliament-from the moment of entry in the exercise of any other remunerated or the occurrence of other situations of incompatibility, in compliance with the law.
99. From the date of the occurrence of the situation of incompatibility, within the time limit established by law, the legislator will choose between a parliamentary mandate and other function, having the option to resign from one of the functions.
100. In case of request for his resignation, the mandate of a deputy shall terminate on submission thereof. If the lawmaker did not carry out any action within the time limit established by law, its term of Office shall cease as from the date of expiry of the period established for the purpose of legal situation of incompatibility elimination. The resignation shall be brought to the attention of Parliament, declaring vacancy.


III. incompatibility of function with the function of Member of the Government demisionar1. The authors ' arguments on which that 101. The authors of the referral asserts that, with effect from 9 January 2015, 11 deputies, who pursued their cumulative and as a member and the Member of the Government, have not resigned from the post of Member of the Government within the time limit set by paragraph 1. (1) article 5 of law No. 39-XIII of April 7, 1994.
102. In the authors ' opinion, referral, these deputies continued to participate in meetings of the Government and to exercise the powers of the members of the de facto Government, contrary to the constitutional and legal provisions.


2.103. authorities Arguments In his written opinion, Parliament stated that, in order to ensure continuity of Government, art. 103 of the Constitution obliges the Government of resigning to pursue only powers of administration of public affairs until the appointment of a new Government. Thus, in the interpretation of the constitutional provisions concerning incompatibility, to be combined with the provisions of art. 103 of the Constitution, whereas the temporary exercise of the activity of administering public affairs, being an obligation of the old Government, is not incompatible with a Deputy.
104. In the opinion of the President, the Government, under article 103 of the Constitution, exercises his mandate until the date of validation of the elections for a new Parliament. In order to ensure the exercise of the principle of continuity of the executive power and the continuity of Government, Cabinet members and lawmakers, who are, are bound to exercise their powers until taking the oath in front of the President of the Republic of Moldova by the new Government.
105. The Government, in his opinion, noted that after the date of validation of parliamentary elections and before taking the oath of the members of the new Government, is no longer the Government Plenipotentiary, but one resigning. In this time the Government continues its work, meeting, pursuant to art. 103 para. (2) of the Constitution, only the functions for the administration of public affairs, indispensable to ensure the continuity of public services.


3. Assessment of the Court 106. Note that the Court, in accordance with article 99, paragraphs 1 and 2. (1) of the Constitution, the Office of Government member is incompatible with any other remunerated, and in accordance with paragraph 1. (2) other incompatibilities shall be established by organic law.
107. Article 100 of the Constitution stipulates the cases of cessation of membership of the Government. Thus, the function of Member of the Government shall cease in the event of resignation, revocation, incompatibility or death.
108. In the development of constitutional provisions, article 29 of law No. No. 64-XII of 31 May 1990 concerning the Government provides that the Minister is not entitled to hold a: any other function in the organs of Central and local public authorities; comply with the governing bodies of commercial units; to practice entrepreneurial activity personally or through third parties; to hold other Office remunerated, except in the scientific and pedagogical activity.
109. in addition, the Court reiterated that, under art. 12 of law No. 199 from July 16, 2010 on the status of persons with functions of public dignitaries, incompatibility situation to an end within a month from the moment of its occurrence.
110. In another vein, the court notice that, according to article 103 para. (1) of the Constitution, the Government shall exercise its mandate up to the date of validation of the elections for a new Parliament.
111. Rule referred to is based on the idea that each Parliament must designate their own Government, or Government and its program composition activity must correspond to the political configuration resulting from the election.

112. At the same time. (2) of article 103 of the Constitution provides that, in the event of resignation, the Government meets only the functions for the administration of public affairs, up to the oath of the members of the new Government.
113. With reference to the powers exercised by Government resigning, in Judgement No. 7 of 18 may of 2013, the Court held that: "111. […] a resigning Government continues to administer public affairs in anticipation of a new Government, to be Ambassador. This means that Government only part finance limited power, it "manages" and not "govern".
112. The management of Public Affairs refers to the decisions of the current Government, which are necessary for the operation of the continuous public service. This task boils down to the fact that, pending the completion of negotiations for the formation of a new Government team, to avoid a total lack of executive power, which is one operative and vital to the needs of society.
[…]
114. The Government administering public affairs may not take on major policy initiatives a fortiori in respect to issues which have caused difficulties prior to his dismissal or finally led to this resignation. Are excluded, in particular, decisions which could later hire durable political line of the future Government. […]
115. One of the resigning Government action limiting rationales is that a government resigning is no longer likely to be sanctioned by Parliament. It is obvious that a government finance cannot be overturned. Therefore, to grant a government finance such major powers would represent a danger to the parlamentarism. "
114. With reference to the matter in question, the Court note that on 10 December 2014, following validation of the parliamentary elections of 30 November 2014, the Government has presented his resignation (Government Decree No. 992 of 10 December 2014). The new Government was sworn in on 18 February 2015. On the same day Parliament passed Judgment No. 11, which approved the work programme and has been given a vote of confidence, the Government issued Presidential Decree No. 1455-VII concerning the appointment of the Government, the new Government were sworn in.
115. the Court notes that, in this case, some members of the Government resigning, which, in accordance with the provisions of art. 103 of the Constitution, were to exercise their functions until the oath of the members of the new Government, and the newly-elected Parliament (MEPs), exercising both functions at the same time after the expiry of 30 days established by law.
116. In this context, note that the Constitution Court is housed in a closely related logical-juridical interpretation of the meaning of constitutional provisions and their applicability to be exercised with due regard for the principle of unity and the principle of constitutional matter "minimally useful effect."
117. the Court points out that, although apparently a State of incompatibility persists, the rules and the spirit of the Constitution to ensure the perpetuation of the exercise of power by the State institutions, constituted in accordance with the provisions of the Constitution.
118. the court notice that, in the circumstances stated, could not be carried out Government reshuffle. The Court reiterates its conclusion, set out in Judgment No. 7 of 18 may 2013 (152), that under a Government resigning reshuffles can occur only in the case of inability of the objectives of the mandate (illness, death), so as to preserve the status quo of the State administration.
119. At the same time, the Court reiterated that the provisional interim statements, as well as to avoid creating a vacuum of power and to ensure the Organization's mechanisms of formation of functional institutions Plenipotentiary shall be removed as soon as possible.    
120. In the light of constitutional norms, the Court points out that the establishment of the new Parliament, in the case of the election of the members of the Government resigning in as a member, they may combine its functions until the oath of the members of the new Government.
121. the Court reiterates that the incompatibilities, imposed by the Supreme Law of guarantees, constitutes the principle of separation of powers, to ensure the functioning of the rule of law.
For these reasons, pursuant to articles 140 of the Constitution, 26 of the law on the Constitutional Court, 6, 61, 62 lit. b) and 68 of the code of constitutional jurisdiction, the Constitutional Court decides: 1. For the purposes of articles 69 para. (1) paragraphs 1 and 2 and 70. (1) and (2) of the Constitution, the situation of incompatibility for persons elected as member of Parliament (Mp) appears, as appropriate:-for people newly chosen: from the moment Deputy mandate validation by the Constitutional Court;
-for the exercise of the function of Parliament: from the moment of entry in the exercise of any other remunerated or the occurrence of other situations of incompatibility, in compliance with the law.
2. For the purposes of articles 69 para. (2) and 70 para. (1) and (2) of the Constitution:-until expiry of the regulations for the situation of incompatibility, will choose between the mandate of lawmaker and the function that generates the incompatibility, resigning from one of the functions. In case of request for resignation from the post of Deputy to the Deputy located in a situation of incompatibility, the Member's term of Office shall be terminated at the time of filing the application.
-Whether the incompatibility continues to exist after the expiry of prescribed by law, the legislator is considered resigned from his position as Deputy. The term of Office of a deputy shall cease as from the date of expiry of the period established for the purpose of elimination of legal situation of incompatibility.
-Resignation to Parliament, declaring vacancy.
3. Within the meaning of articles 70 para. (1), 99, 100 and 103 of the Constitution, the Constitution of the new Parliament, in the case of the election of the members of the Government resigning in as a member, they may combine its functions until the oath of the members of the new Government.
4. Declare unconstitutional paragraph (2) of article 5 of law No. 39-XIII of April 7, 1994 on status of parliamentarian.
5. 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 No. 21 Alexandru Tanase. Chisinau, June 24, 2015.

PCC-01/1b, 24 June 2015 Chisinau Moldovan Parliament ADDRESS on 24 June 2015 the Constitutional Court decision No. interpretation of articles 21, paragraph 1, to 69. (2), 70 (1), 99 and 100 of the Constitution of the Republic of Moldova.
By that judgment, the Court explained some aspects of the circumstances in which situations of incompatibility of the function member with other functions, the moment you cease membership in Parliament, as well as ways of elimination of situations of incompatibility.
The Court held that the situation of incompatibility for persons elected as member of Parliament (Mp) appears, as appropriate, for the new people chosen from the time of validation of a Deputy's mandate of the Constitutional Court, and for the exercise of the function of Parliament-from the moment of entry in the exercise of any other remunerated or the occurrence of other situations of incompatibility, in compliance with the law.
The Court found that the expiry law termination situation of incompatibility will choose between Deputy mandate of lawmaker and the function that generates the incompatibility, resigning from one of the functions. In case of request for resignation from the post of Deputy to the Deputy located in a situation of incompatibility, the Member's term of Office shall be terminated at the time of filing the application.
At the same time, the Court noted that whether the incompatibility continues to exist after the expiry of prescribed by law, the legislator is considered resigned from his position as Deputy. The resignation shall be brought to the attention of Parliament, declaring vacancy.
At the same time, the Court observed that the legislator has regulated differently terminated for other prominent public elective (President, Vice-President, Deputy Mayor of the district) in situations of incompatibility.
Therefore, in order to ensure the unity of legal regulations in this area, the Court considers it necessary to review all legal provisions aimed at individuals expressed concern about public elective, taking into account the rationale for granting in judgment.
Also, the Court reiterates its determination to Address findings from No. 2 2015 from 20 January, in which he emphasised the need for regulation in cases of forced termination of the mandate of lawmaker, including raising the mandate of the Deputy or the incompatibility of the lawmaker, taking into account the principles and spirit of the Constitution, democratic norms and standards and taking into account the practice of other States in this field.

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.