For The Constitutionality Of Certain Provisions Of Article 32 Para. (1) Of Law No 544-Xiii Of 20 July 1995 On The Status Of Judges (Judges ' Pension Provision With Constitutional Court) (Referral No. 25A/2015)

Original Language Title: pentru controlul constituţionalităţii unor prevederi din articolul 32 alin.(1) al Legii nr.544-XIII din 20 iulie 1995 cu privire la statutul judecătorului (asigurarea cu pensie a judecătorilor Curții Constituționale) (Sesizarea nr. 25a/2015)

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for the constitutionality of certain provisions of article 32 para. (1) of law No 544-XIII of 20 July 1995 on the status of judges (judges ' pension provision with Constitutional Court) (Referral No. 25a/2015)



Published: 11.12.2015 in Official Gazette No. 332-339 art no: 34 date of entry into force: 23.06.2015 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. Ludmila Chihai, Registrar, having regard to the appeal, filed on 12 June 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 session closed, Pronounce the following judgment: 1. The origin of the case lies the appeal lodged with the Constitutional Court on 12 June 2015, by virtue of article 25 lit. I) of the law on the Constitutional Court, articles 38 para. (1) (a). I) and 39 of the constitutional jurisdiction of the Ombudsman Nuala, Mr. Mikhail for constitutionality phrase "12 years and 6 months" in article 32 para. (1) of law No 544-XIII of 20 July 1995 on the status of the judge.
2. The author of the referral alleged that the phrase "12 years and 6 months" in article 32 para. (1) of the law on the status of the judge, in part as it relates to the judges of the Constitutional Court, contrary to the provisions of articles 134 and 137 of the Constitution of the Republic of Moldova.
3. By decision of the Constitutional Court of 16 June 2015 referral has been declared admissible, without prejudeca Fund case.
4. In the process of examination referral, the Constitutional Court requested the opinion of the Parliament, President and Government.
5. In the plenary session of the Court the appeal was supported by the representative of the Ombudsman, Ms. Olga V, Senior Adviser in the Office of the Ombudsman. Parliament was represented by Mr Valeriu Kuchuk, Senior Adviser in the Directorate-General of the Secretariat. The Government was represented by Ms. Laura Gamble, Deputy Minister of labour, social protection and family.
In FACT 6. According to article 21, paragraph 2. (2) and (3) of law No. 317-XIII from 13 December 1994 regarding the Constitutional Court, the President of the Court shall be assimilated with the President of the Supreme Court of Justice, pension and allowances and judges are assimilated with the Vice-President of the Supreme Court of Justice.
7. In paragraph 6 of that article stipulates that pension insurance mode of the judge of the Constitutional Court shall be established in accordance with the law.
8. In this context, article 32 para. (1) of law No 544-XIII on the status of the judge establishes that the judge has reached the age of 50 years and has a seniority of at least 20 years, of which at least 12 years and 6 months, he served in the Office of judge shall be entitled to the pension at the rate of 55 per cent of the average monthly wage and, for each full year of employment over the age of 20 years-3%, but in total not more than 80% of the average monthly wage. Judge's pension shall be recalculated taking into account the size of the monthly salary of the incumbent judge.
PERTINENT LEGISLATION 9. The relevant provisions of the Constitution (Official Gazette, no. 1, 1994) are as follows: "Article 134 (1) of the Statute of the Constitutional Court is the sole authority of constitutional jurisdiction in the Republic of Moldova.
(2) the Constitutional Court shall be independent of any other public authority and is subject only to the Constitution.
(3) the Constitutional Court shall guarantee the supremacy of the Constitution, ensure implementation of the principle of separation of State power into legislative, Executive and judicial power and guarantee the responsibility of the State towards the citizen and of the citizen towards the State. "


Article 135 Powers "(1) the Constitutional Court: a) enforces, constitutionality of laws and decisions of the Parliament, Presidential decrees, Government decisions and ordinances, as well as international treaties to which Moldova is a party;
b) interprets the Constitution;
c) to pronounce on initiatives aimed at revising the Constitution;
d) confirms the results of Republican referendums;
e) confirms results of elections of the Parliament and the President of the Republic of Moldova;
(f) the circumstances that justify) finds the dissolution of Parliament or dismissing the President or the interim office of the President, as well as the impossibility of the President to exercise his powers for more than 60 days;
solves exceptional cases) of unconstitutionality of the judicial acts of the Supreme Court of Justice;
h) decides over matters dealing with the constitutionality of a political party.
(2) the Constitutional Court carries out its activity on the initiative of the subjects covered by the law on the Constitutional Court. "


Article 136 structure "(1) the Constitutional Court is composed of six judges, appointed for a term of 6 years.
(2) two judges shall be appointed by the Parliament, the Government and two of the Superior Council of Magistracy.
(3) the judges of the Constitutional Court shall select, by secret ballot, the President. "


Article 137 Independence "Judges of the Constitutional Court are irremovable for the duration of their mandate, independent and subject only to the Constitution."


Article 138 the conditions for appointing "Judges of the Constitutional Court shall have a Judicature, high professional competence and a length of at least 15 years in the business, legal, or legal education in scientific research."


Article 139 Incompatibilities "post of judge of the Constitutional Court is incompatible with any other remunerated public or private office, except in the area of teaching or scientific research."


Decisions of the Constitutional Court of article 140 (1) laws and other normative acts or some parts thereof become null and void from the moment of adoption of the corresponding decision of the Constitutional Court.
(2) decisions of the Constitutional Court are final and cannot be appealed. "
10. The relevant provisions of law No. 317-XIII of December 13, 1994 in respect of the Constitutional Court (Official Gazette, 1995, nr. 8, art. 86) are as follows: Article 11Numirea "(1) the judge of the Constitutional Court may be the person who holds the citizenship of the Republic of Moldova, domiciled in the country, has the Judicature, high professional competence and a length of at least 15 years of legal activity in legal education or in scientific activity.
(2) the age limit for appointment to the position of judge of the Constitutional Court is 70 years.
(3) the appointment can only be made with prior consent expressed in writing, of the candidate. If the candidate has a function which is incompatible with that of judge of the Constitutional Court, or is a member of a political party or other political organisations, the agreement must include the candidate's pledge to resign, the oath, as which it occupies and to suspend activity in the party or in another organization. "


Article 13Independenţa "(1) the judges of the Constitutional Court shall be independent in the performance of his duties and obey only the Constitution.
(2) the judges of the Constitutional Court cannot be held accountable for their votes or opinions expressed in the exercise of their mandate. "


Article 15Incompatibilităţi "the post of judge of the Constitutional Court is incompatible with any other remunerated public or private office, except in the area of teaching or scientific research."


Article 17Obligaţii of the Constitutional Court judge shall be obliged: a) to carry out their duties with impartiality and respect for the Constitution;
b) secrecy and of record and not to take a public position or give advice in matters within the competence of the Constitutional Court;
c) Constitutional Court the adoption of laws to express an affirmative or negative vote;
d) communicate to the President of the Constitutional Court activity incompatible with the duties which they perform;
(e) to allow the use of) its function for the purpose of propaganda of any kind;
f) to refrain from any action contrary to the status of a judge;
g) to submit, in accordance with the law, the statement on income and property. "


Article 21Gradul qualifications, salary, allowances, pensions "(1) the judges of the Constitutional Court, with a Judicature and a high professional competence, shall enjoy, for life, from the time of appointment in this capacity, the higher qualification of judges.
(2) the President of the Constitutional Court shall be assimilated with the President of the Supreme Court of Justice in pension benefits.
(3) the judges of the Constitutional Court shall be assimilated with the Vice-President of the Supreme Court of Justice in pension benefits.
[…]

(5) the judge of the Constitutional Court which withdrew from them after reaching the age limit for this function or due to the inability of our long and uninterrupted (more than 4 months) for health reasons to exercise his powers shall be entitled to an indemnity equal to dismissal with an annual salary of function. The Constitutional Court has the right to give the judge who quit a dismissal indemnity equal to up to 3 monthly salaries of the tool.
(6) the pension insurance of the judge of the Constitutional Court shall be established in accordance with the law. "


Article 21 1Organele which performs establishment and payment of pensions "(1) pensions and allowances monthly for life shall be determined and paid by the social insurance.
(2) the social security Bodies have a right of control over the authenticity of documents which confirm the probationary employment and income of the insured person issued by competent bodies.


Article 21 2Sursa financing expenses for the payment of pensions and allowances monthly for life shall be borne as follows: 50% of fixed size-from the State social insurance budget and 50 percent to the State budget. "


Article 22Garanţiile of the execution of the mandate "(1) during the execution of the mandate of the judge of the Constitutional Court the terms of employment in the service shall be suspended.
(2) after the expiry of the term, the judge of the Constitutional Court i backup the previous function, and if it is wound up is a function equivalent to the same unit or to another.
(3) the person who is to exercise the function of judge shall be concluded a contract of employment for a term certain, that the judge shall terminate upon returning. This will proceed and if the previous function of the judge is occupied by choice or competition.
(4) the duration of the mandate of the enforcement judge shall be included in the total length and uninterrupted in the specialty.
(5) the judge on the date of expiry of term of Office has reached the limit of age and has the necessary length of service retirement is retired from the post of judge, in accordance with the law.
(6) the judge shall be entitled to paid annual leave of a duration of 36 working days (taking as a basis the work week 6 days), unpaid leave for personal interests. "
11. The relevant provisions of law No 544-XIII of 20 July 1995 on the status of judges (Official Gazette, no. 13, 15-17, art. 63) are as follows: "Article 32Asigurarea with (1) a judge who has reached the age of 50 years and has a seniority of at least 20 years, of which at least 12 years and 6 months, he served in the Office of judge entitled to the pension at the rate of 55 per cent of the average monthly salary for each full year of employment over the age of 20 years-3%, but in total not more than 80% of the average monthly wage. Judge's pension shall be recalculated taking into account the size of the monthly salary of the incumbent judge.
(2) the provisions of paragraphs 1 and 2. (1) also applies to judges who have worked in international courts, taking into account the average salary of a judge of the Supreme Court of Justice.
(3) the conditions laid down in paragraph 1. (1) shall be calculated and paid only demisionaţi judges and judges dismissed in connection with the age limit.
(4) if the justices are nominated again in demisionaţi judge, payment of the pension is suspended. "


Article 32/1Organele which performs establishment and payment of pensions "(1) a pension shall be determined and paid by the social insurance.
(2) the social security Bodies have a right of control over the authenticity of documents which confirm the probationary employment and income of the insured person issued by competent bodies. "


Article 32/2Sursa funding of pensions Expenditure for the payment of pensions shall be borne as follows: 50% of the size of his pension from the State social insurance budget and 50% of the State budget. "
In LAW 12. From the contents of the referral, the Court observes that it is aimed at essentially social guarantees for judges of the Constitutional Court in the part relating to pensions.
13. Thus, the referral relate to the elements and principles with constitutional value interconexe as well as the status of judges of the Constitutional Court the judges ' independence, monarchists and guarantees the independence of the Court in relation to the other authorities of the State.
ADMISSIBILITY 14. In accordance with its decision of 16 June 2015 (see § 3 supra), the Court noted that, under article 135 paragraph 1. (1) (a). the article of the Constitution). (1) (a). a) of the law on the Constitutional Court and to article 4 para. (1) (a). the constitutional jurisdiction of the code), the appeal presented to the competence of the Constitutional Court.
15. Articles 25 lit. I) of the law on the Constitutional Court, 38 para. (1) (a). I) of the code of constitutional jurisdiction and 16 lit. f), 26 of Act No. 52 of 3 April 2009 regarding the Ombudsman (Ombudsman) empowers the Ombudsman to refer the matter to the Constitutional Court.
16. the Court finds that the object on notification constitutionality control is the phrase "12 years and 6 months" in article 32 para. (1) of the law on the status of the judge, in part as it relates to the judges of the Constitutional Court.
17. Note that the contested provisions of the Court have not previously been the object of notification constitutionality control as addressed in the referral.
18. Consequently, 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.
19. the Court notes that the prerogative which was granted to it under paragraph 1 of article 135. (1) (a). of the Constitution requires) a correlation between the laws and the Constitution, challenged in the light of the principle of the supremacy of the latter.
20. Therefore, the Court will examine the rules contested in relation to articles 134 and 137 of the Constitution.
A. CASE FUND alleged infringement of articles 134, 136 para. (1) and 137 of the Constitution. The author of the referral alleges, in particular, that the contested provisions infringe the provisions of article 134 of the Constitution, according to which: "(1) the Constitutional Court is the sole authority of constitutional jurisdiction in the Republic of Moldova.
(2) the Constitutional Court shall be independent of any other public authority and is subject only to the Constitution.
(3) the Constitutional Court shall guarantee the supremacy of the Constitution, ensure implementation of the principle of separation of State power into legislative, Executive and judicial power and guarantee the responsibility of the State towards the citizen and of the citizen towards the State. "
22. Equally, the author of the referral of the disputed rule noted that contrary to the provisions of article 136 para. (1) of the Constitution, according to which: "(1) the Constitutional Court is composed of six judges, appointed for a term of six years."
23. At the same time, the author of the referral alleges that the contested provisions infringe and article 137 of the Constitution, according to which: "Judges of the Constitutional Court are irremovable for the duration of their mandate, independent and subject only to the Constitution."
1. Arguments of the author of the referral. The author of the referral stated that the phrase subject to the criticism of constitutionality, i.e. establishing special internship contribution of 12 years and 6 months in order to obtain the benefit of the pension of the judges of the Constitutional Court, is applicable, taking into account the fact that the judges of the Constitutional Court are appointed for a term of 6 years, according to article 136 para. (1) of the Constitution.
25. Thus, the author of the referral argues that the social guarantees of Constitutional Court judges to rule in force that establishes a contribution period of 12 years and 6 months for constitutional judges eligible for retirement, infringe the principle of the independence of the constitutional provisions, enshrined in articles 134 and 137.
26. In the opinion of the Ombudsman, the independence of judges must exercise both in functional and material standpoints.
2. Arguments of the authorities. In the opinion of Parliament, believes that the qualifying period of contribution of "12 years and 6 months ' means a guarantee, but it's not a limitation of the right to pension. However, the conditions of entitlement to a pension meeting within the system of State social insurance (the age limit for retirement, the amount of the contribution or switching off of the amount of the pension) are not regulated by the Constitution, and the legislature is free to decide on the granting of them depending on budgetary possibilities of the State. Article 72 paragraph 1. (3) (a). e) and (j)) of the Constitution regulate the right of the legislature to establish a uniform system of State social insurance, with the unique conditions of the insured in this retirement system based on the principles of organisation and operation of the public social insurance system, specifically stated in article 3 of law No. 489-XIV of 8 July 1999 concerning public social insurance system.

28. The Parliament argues that the impugned provisions are in accordance with the principle of social solidarity, uniqueness and expressly referred to. a) and subparagraph (c). с) article 3 of the law on the public social insurance system, and does not violate the principle of the independence of the judges of the Constitutional Court.
29. The President, in a written opinion, noted that the status of the judge of the Constitutional Court, which contain rights and obligations, including safeguards and incompatibilities of function, differs from the status of other judges through specific nature of constitutional jurisdiction. At the same time, the independence of the Court and its judges independence implies. One of the main components of the judge's independence is that remuneration consists of any material or social insurance, representing, in this sense, a contrabalanţă restrictions, prohibitions and responsibilities imposed on judges by the company. Remuneration of judges must be as their role and responsibilities and have a level sufficient to make them immune to any pressure designed to influence the decisions.
30. The President of the Republic of Moldova considers that the assessment of the constitutionality of the provisions which are the subject of the referral pertains to the exclusive competence of the Constitutional Court.
31. In the opinion of the Government, by referral is unjustified, because the present legislation contains rules laying down the conditions for establishing the pension to judges, and the judges of the Constitutional Court shall be assimilated with the President and Vice-Presidents of the Supreme Court of Justice.
32. The Government considers that the establishment of the Constitutional Court judges for the special contribution of internship during a single term (which is currently 6 years old) constitute an unjustified and discriminatory treatment in relation to judges from courts, for that particular stage of contribution is at least 12 years and 6 months, judges have a unique status and are distinguished among themselves only by powers and competence.
33. In the same vein, the Government stated that an amendment to the special contribution of the traineeship for the judges of the Constitutional Court would be contrary to the principle of uniqueness, according to which the State organizes and guarantees the same public system based on the rule of law, and the principle of equality, which ensures that all participants in the public system, contributors and beneficiaries, are in the same legal situation, a non-discriminatory treatment as regards the rights and obligations stipulated by law.
3. Assessment of the Court 3.1. General principles 34. The Constitutional Court reiterated that constitutes an important part of the State, being performed by the Constitutional Court, the political-judicial public authority, outside the powers of the legislative, Executive or judicial, its role being ensuring the supremacy of the Constitution as the fundamental Law of the rule of law. Thus, in accordance with article 136 para. (3) of the Constitution: "the Constitutional Court is the guarantor of the supremacy of the Constitution".
35. In Judgement No. 6 of 16 may 2013, the Court noted: "63. [...] The fundamental rule of law thus keeps the essence of the requirements of the rule of law, representing at the same time a reality implies the legal consequences and safeguards. Among the consequences include differences between the Constitution and laws, and, last but not least, the compatibility of the whole law with the Constitution, and guarantees the constitutionality. "
36. According to article 134 paragraph 1. (2) of the Constitution, the Constitutional Court, being the sole authority of constitutional jurisdiction in the Republic of Moldova, which is independent of any other public authority and is subject only to the Constitution.
37. The Constitutional Court shall guarantee the supremacy of the Constitution, ensure implementation of the principle of separation of State power into legislative, Executive and judicial power and guarantee the responsibility of the State towards the citizen and of the citizen towards the State. 38. Within the proper organisation of the State authority, the role of the constitutional courts is one essential and defining, representing a true pillar of support of the State and democracy, guaranteeing equality before the law, fundamental freedoms and human rights. Furthermore, the constitutional courts contribute to the proper functioning of public authorities within the constitutional separation ratios, balance, control and collaboration of State powers.
39. The Court Structure is established in article 136 para. (1) of the Constitution, such Court shall consist of six judges, appointed for a term of 6 years.
40. Under art. 137 of the Constitution, judges of the Constitutional Court are irremovable for the duration of their mandate, independent and subject only to the Constitution.
41. The independence of judges is one of the constitutional principles of Justice. In its judgment No. 6 of 16 may 2013, the Court noted: "39. [...] the independence of the judiciary is not an end in itself. This is not a personal privilege of the judges, but is justified by the need to allow judges to fulfil their role as protectors of citizens ' rights and freedoms (§ 6 of the report of the Venice Commission concerning the independence of the judiciary. Part one: independence of judges). "
42. The principle of the independence of the judge involve two issues: independence functional and personal independence.
43. Functional independence implies, on the one hand, that judges should not be influenced by the Executive or legislative, and, on the other hand, that the courts should not be subjected to on the part of successive legislative power, executive power or litigants.
44. the personal independence of the judge, who shall endorse the status must be provided by law. Basically, the criteria for assessing personal independence are: the recruitment of magistrates; the duration of the appointment; irremovability; fixing the salary of judges by law; freedom of expression of judges and the right to form professional organizations to defend their interests; the incompatibilities; prohibitions; preparation continues; the liability of judges.
45. The independence of judges, as well as the need to ensure predictable and clear guarantees, constitutes one of the basic requirements for the Member States of the UN. This conclusion follows from UN General Assembly resolution No. 40/32 of 29 November 1985, according to which: "[...] considering that the judges are only with the final decision over the lives, freedoms, rights, duties and the property of citizens, [...] The term of Office of judges, their independence function, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law. "
46. similar Provisions are included in the relevant standards, drawn up under the aegis of the Council of Europe, as well as the European Charter on the status of the judge: "[...] the level of remuneration shall be fixed in such a way as to make the shelter's magistrates pressures aimed to influence the meaning of decisions and judicial behaviour generally, altering their independence and impartiality.
[…] the amount of the pension of a judge should be as close as possible to the level of his last salary.
[…] Member States of the Council of Europe should tend to increase social guarantees of judges and in no case shall not be allowed a reduction in social guarantees already admitted by law. "
47. Opinion No. 1 (2001) of the Consultative Council of European Judges regarding the standards for the independence of the judiciary and the irremovability of judges provides, in its conclusions, that the remuneration of judges must be appropriate to the role and responsibilities and should provide an adequate payment of medical and pension holidays. She should be protected through specific legal provisions against decreases and provision should be made regarding the increase of wages and salaries in relation to the increase in prices.
48. Although the Constitutional Court is not part of the judicial system and the status of its powers to make judicial independence applicable principles.
49. In this regard, point 1 of Recommendation CM/Rec (2010) 12 of the Committee of Ministers to Member States on the independence of judges: the efficiency and responsibility "determines that this recommendation is applicable to all persons exercising judicial functions, including those dealing with constitutional issues.
-Application of the principles in this question. Note that materials guarantees Court judges is one of the basic components of his independence, being a contrabalanţă to restrictions, prohibitions and responsibilities imposed on them by society.
51. The legal provisions concerning social guarantees for judges of the Constitutional Court are contained in law No. 312-XIII of 13 December 1994 regarding the Constitutional Court.

52. Under art. 21. (2) and (3) of the law on the Constitutional Court, the President of the Constitutional Court shall be assimilated with the President of the Supreme Court of Justice, pension and allowances and judges of the Constitutional Court shall be assimilated with the Vice-President of the Supreme Court of Justice in pension benefits.
53. At the same time. (6) of the same article provides that the pension insurance of the judge of the Constitutional Court shall be established in accordance with the law.
54. Thus, with regard to the manner of his retirement, the Court noted that the law on Constitutional Court judges only assimilated with monarchists Supreme Court justices, without including provisions that would regulate the conditions under which they retire, existing rules being rules for reference.
55. In this connection, the Court noted that common law for judges with a pension are found in law No. 544-XIII of 20 July 1995 on the status of the judge.
56. in accordance with paragraph 1. (1) of article 1. 32 of the Act stated: "the judge has reached the age of 50 years and has a seniority of at least 20 years, of which at least 12 years and 6 months, he served in the Office of judge shall be entitled to the pension at the rate of 55 per cent of the average monthly salary for each full year of employment over the age of 20 years-3% but in total not more than 80% of the average monthly wage. Judge's pension shall be recalculated taking into account the size of the monthly salary of the incumbent judge. "
57. Coroborând provisions of law relating to the Constitutional Court with the provisions of the law on the status of judges, the Court finds that the special stage of contribution for the judges of the Constitutional Court is 12 years and 6 months. That is to say, the judge who has attained age constitutional for 50 years and has a seniority of at least 20 calendar years shall be entitled to a retirement pension only if they work at least 12 years and 6 months he held the position of judge.
58. the court notice that, unlike the judges of the courts, the judges of the Constitutional Court shall be appointed for a term of 6 years. At the same time, in accordance with art. 5 of the law on the Constitutional Court, the position can be held for two terms.
59. At the same time, even in the wake of the possession of two constitutional mandates, the judge may not benefit from special retirement pension under the conditions in which the law establishes special stage of contribution of 12 years and 6 months. However, according to a simple calculation, a person can holds the position of judge at the Constitutional Court for 12 years.
60. Thus, the Court noted that rule contained in art. 32 of the law on the status of the judge lacks strategy in relation to judges monarchists.
61. A norm to be edictată for the purposes thereof. The impossibility of applying rule makes non-existent.
62. the Court starts from the premise that the rights have to be guaranteed in a concrete and real, but not illusory and theoretical.
63. the Court noted that, under current regulations, special retirement pension can only benefit the Constitutional Court judges who have previously served as judges in the courts of common law.
64. the Court points out that, according to article 138 of the Constitution, which lays down the conditions for appointment, the judges of the Constitutional Court shall have a Judicature, high professional competence and a length of at least 15 years of legal activity in legal education or in scientific activity.
65. In developing the constitutional rules comes to article 11 of the law on the Constitutional Court, that the judge of the Constitutional Court may be the person who holds the citizenship of the Republic of Moldova, domiciled in the country, has a Judicature, high professional competence and a length of at least 15 years of legal activity in higher legal education or in scientific activity.
66. Thus, the Court points out that the Court may become judges persons who satisfy the requirements (age, studies, etc.), without any obligation of possession of the previous judge in the courts.
67. the Court reiterates that, according to international regulations, those judges who retire have a special financial arrangements. Referring to the judges ' retirement, the European Charter on the status of Judges mentioned: "6.4. Specifically, the Statute guarantees the judge who has reached the legal age for termination from Office, after he exercised as a profession for a set period, the payment of pensions of 16 level must be as close as possible to that of the last received remuneration for work process. "
68. In the same context, article 13 paragraph 2, 3 and 4 of the Statute provides that the Judges universally the judge is allowed to emerge from retirement and receive a pension corresponding to his occupational category. After his retirement, the judge will not be prohibited from exercising any other legal professional activity on the last possession, and in recital, by itself, has the function of judge.
69. The Constitutional Court shall act in accordance with constitutional provisions, of which judges are independent and are subject only to the law, not declarative, but constitute binding rules for Parliament, which has the duty to legislate the establishment of appropriate mechanisms for assurance of independence of judges, without which it is inconceivable the rule of law.
70. the Court points out that the need for the imposition of conditions for obtaining the pension of the judges of the Constitutional Court is not a privilege, it is objectively justified, it being a partial compensation to the disadvantages resulting from the rigors of special statutes, to which they must be complied with.
71. the Court reiterates that a person can be the judge of the Constitutional Court during a single term. Getting the second term cannot be determined by obtaining certain benefits, including materials. This may result in deprivation of strategy of independence in the exercise of their mandate. However, according to those set forth in the Constitution, so, as well as the law on the Constitutional Court regulates important principles and guarantees of the independence of the judges of the Constitutional Court, such as to permit their pursuit of Justice.
72. Thus, under article 137 of the Constitution, in order to ensure the principle of the independence of the judges of the Constitutional Court, nor a guarantee may not be subject to the exercise of the second term.
73. the Court noted that, given the status of judges of the Constitutional Court, which is the sole authority of constitutional jurisdiction in the Republic of Moldova, and the remainder of the term, it is necessary to establish the training camp special contribution for the duration of a single term.
74. Thus, under the conditions stated in terms of social guarantees of Constitutional Court judges, keep in mind that the legal provision criticized, which sets a particular internship contribution of 12 years and 6 months for judges monarchists, creates prerequisites for turning right to pension of the judges monarchists an illusive, which neconstituționalitatea it.
75. In conclusion, the Court shall retain the phrase "12 years and 6 months" from paragraph 1 of article 32 of the law nr. 544-XIII of 20 July 1995 on the status of the judge established the principle of independence, transgress the rules of constitutional articles 134, 136 para. (1) and 137.
For these reasons, pursuant to articles 26 and 140 of the Constitution of the law on the Constitutional Court, articles 6, 62 61, lit. of the 68 of the code) and constitutional jurisdiction, the Constitutional Court h a t â â t e r, and others: 1. It is acceptable to refer to the Ombudsman Nuala on notification constitutionality control Mikhail for certain provisions relating to the pension of the judges of the Constitutional Court.
2. For the purposes of article 137 of the Constitution, in order to ensure the principle of the independence of the judges of the Constitutional Court, nor a guarantee may not be subject to the exercise of the second term.
3. recognizes the constitutional phrase "12 years and 6 months" from paragraph 1 of article 32 of the law nr. 544-XIII of 20 July 1995 on the status of the judge, to the extent that it does not apply to judges of the Constitutional Court.
4. Pending adoption by Parliament of the legal framework for the enforcement of this judgment, the provisions of article 32 (1) of law No. 544-XIII of 20 July 1995 on the status of the judge is to be applied to the judges of the Constitutional Court in the light of the particular stage of contribution made during a term.
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.