Inadmissibility Of Referral No. 51A/2016 On Notification Constitutionality Control Law. 3 Of 25 February 2016 On Prosecutor

Original Language Title: de inadmisibilitate a sesizării nr. 51a/2016 privind controlul constituționalității  Legii nr. 3 din 25 februarie 2016 cu privire la procuratură

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    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. Eugenia Mîța, Registrar, taking into account the appeal lodged on April 27, 2016, recorded at the same time, examining the admissibility of the referral, taking into account the laws and proceedings, Acting on 29 April 2016 in the Chamber Council Pronounce the following decision : in fact 1. April 27, 2016, Deputy Vladimir Turcan Vasile and Bae have addressed a complaint to the Constitutional Court, requesting notification constitutionality control law. 3 of 25 February 2016 on Prosecutor's Office.
A. reasons for referral 2. Reasons for referral, as exhibited by the author referral, can be summarized as follows.
3. On 25 February 2016, the Moldovan Parliament adopted the law No. 3 with regard to prosecution, which was published on 25 March 2016.
4. the law includes a new approach to the structure of the Prosecutor's Office, the appointment of the Attorney General, the selection of career prosecutors, as well as the composition and competence of the Superior Council of the prosecutors.
5. Article 98 of the law nr. 3 of 25 February 2016 establishes that the law shall enter into force on 1 august 2016, with the exception of the provisions of article 17 paragraph 2. (10) to (12), in part related to the appointment of the Attorney General by the President of the Republic, which will enter into force after the amendment of the Constitution of the Republic of Moldova. 
6. The authors argue that the new law referral regarding prosecution is contrary to the provisions of articles 7, 76, 111, 124 and 125 of the Constitution.
B. relevant Legislation 7. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 7Constituţia, Supreme Law "the Constitution is the Supreme law. No law and no legal act that violates the Constitution has no legal power. "


Article 76Intrarea into force of the law "the law shall be published in the Official Gazette of the Republic of Moldova and shall enter into force on the date of publication or the date specified in its text. The failure of the law draws its existence. "


Article 111Unitatea of Gagauzia (1) Gagauzia is an autonomous territorial unit with special status, as a form of special forms of, is an integral and inalienable part of Moldova and decide independently within the limits of its competence under the provisions of the Constitution of the Republic of Moldova, in the interests of the entire population, the issues of political, economic and cultural.
(2) the territory of the autonomous territorial unit Gagauzia are guaranteed all the rights and freedoms stipulated by the Constitution and legislation of the Republic of Moldova.
(3) in the Gagauz autonomous territorial unit of the representative and executive bodies and they should work according to the law.
(4) land, subsoil, waters, the vegetable Kingdom and the animal, other natural resources on the territory of the autonomous territorial unit Gagauzia, are the property of the people of the Republic of Moldova and constitutes at the same time economic basis of Gagauzia.
(5) the budget of the autonomous territorial unit Gagauzia is formed in accordance with the rules laid down in the law governing the special status of Gagauzia.
(6) the control over the observance of legislation in the autonomous territorial unit of Gagauzia shall be exercised by the Government, in accordance with the law.
(7) the organic law governing the special status of the autonomous territorial unit Gagauzia may be amended if three-fifths of lawmakers in Parliament.


Article 124Atribuţiile and structure [the Prosecutor] (1) the Prosecutor represents the general interests of the society and defends legal order, as well as the rights and freedoms of citizens, and exercise their prosecution, represents prosecution in courts according to the law.
(2) the public prosecution System, territorial prosecution offices and specialised prosecution offices.
(3) the Organization, competence and conduct the activity of the Prosecutor's Office shall be established by law.


Article 125Mandatul of prosecutors (1) the Attorney General is appointed by Parliament, at the proposal of its President.
(2) public prosecutors shall be appointed by the Attorney General and are subordinates.
(3) the term of Office is five years prosecutors.
(4) the Office of public prosecutor is incompatible with any other public or private office, except for didactic and scientific activity.
(5) in exercising their powers public prosecutors are subject to the law only.
8. The relevant provisions of law No. 3 of 25 February 2016 on Prosecutor's Office (Official Gazette, no. 2016, 69-77, art. 113) are as follows: Article 1Procuratura, "the Prosecutor's Office is a public institution under the authority of the autonomous Court that, in criminal proceedings and other procedures provided for by law, shall contribute to the observance of the rule of law, justice, protection of rights and legitimate interests of the person and of society."


Article 17Numirea to the Office of the Prosecutor General "(1) For the Office of the Prosecutor General may run for a person who meets the following conditions: a) has a professional experience of at least 10 years in the field, of which at least 5 years in the Office of the Prosecutor;
b) fulfils the conditions laid down in article 21. 20 paragraph 1. (1) (a). a), b), c), (d)), f), g) and (h));
c) managerial qualities;
d) in last 3 years until the announcement of the competition has not been a member and/or has not held political activities within a political party or socio-political organization;
e) in the last 6 months there he held membership of the Council of prosecutors.
(2) the candidate to the position of Attorney General is selected on the basis of a public competition, organized by the Higher Council of Prosecutors, which comprises the following stages: a) preselecția on the basis of the candidates ' dossiers;
b interview in front of) the Superior Council of prosecutors.
(3) the procedure for the Organization and conduct of the contest shall be established by a regulation approved by the Superior Council of prosecutors. The interview stage is transmitted on-line in real time. Superior Council of Prosecutors provides access media representatives at the meeting in which the interview takes place.
(4) the process for the selection of the candidate for the post of Attorney General is carried out according to objective criteria, based on merit, taking into account training, integrity and its capabilities.
(5) the information relating to the taking-up and pursuit of the competition will be published on the official web pages of the Prosecutor General's Office and the Superior Council of public prosecutors, with at least one month before the deadline for the submission of dossiers.
(6) the participation in the competition, including acts specified in article 1. 22 paragraph 1. (2) (a). a), b), c), (e)), f) and (g)), letter of motivation and concept of management and institutional development, the Superior Council of Prosecutors and recorded as provided by law. Incomplete or submitted after expiry of the time-limit shall be examined.
(7) when submitting documents, candidates for Attorney General are informed of the initiation of the verification in accordance with the law. 271-XVI dated 18 December 2008 concerning the examination of applicants and holders of public and law No. 269-XVI dated 12 December 2008 on the application of the test to the simulated behavior detector (polygraph). The applicant shall sign the Declaration of verification and shall present its written consent to a polygraph test.
(8) within 20 working days after the deadline for the submission of dossiers, the Superior Council of public prosecutors shall draw up the list of candidates who satisfy the conditions for participation in the contest, and displays on its website, indicating the date on which the interview will take place.
(9) the candidates ' Interviewing takes place in open court.
(10) the Applicants are assessed by each Member of the Superior Council of Prosecutors on the basis of the criteria approved by the Council. Final score represents the average score given by all members of the Superior Council of the prosecutors. The candidate who received the highest score is proposed by the Board of Senior Prosecutors, President of the Republic to be appointed Attorney General.
Note: the provisions of article 17, paragraph 2. (10) in part that concerns the appointment of the Attorney general by the President of the Republic shall enter into force after the amendment of the Constitution (11) the President of the Republic can be rejected once the proposed candidacy of the Superior Council of the prosecutors for the post of Attorney General if some compelling evidence of incompatibility with the candidate function concerned, infringement by the candidate of the legislation or of violation of legal procedures for the selection of the latter. Refusal of appointment shall be reasoned and shall be made within 15 working days from the date of receipt of the proposal.
Note: the provisions of article 17, paragraph 2. (11) in the image refers to the appointment of the Attorney general by the President of the Republic shall enter into force after the amendment of the Constitution

(12) upon the proposal of the same candidate, repeatedly made with a vote of 2/3 of the members of the Superior Council of public prosecutors, the President of the Republic shall issue, within five working days, a decree on the appointment of the candidate to the Office of Attorney General.
Note: the provisions of article 17, paragraph 2. (12) in the image refers to the appointment of the Attorney general by the President of the Republic shall enter into force after the Constitution Amendment (13) the Attorney General is called as a function for a term of seven years, without the right to be called again in that position.
(14) following the end of the exercise of his duties, the Attorney General may continue working in any function of the Attorney chosen by the holiday he, being appointed without competition. "


Article 26Procedura for the selection of the candidate to the post of Chief Prosecutor of the Prosecutor's Office of Gagauzia "(1) the candidate to the position of Chief Prosecutor of the Prosecutor Atu is selected by the people's Assembly of Gagauzia on the basis of the conditions and criteria laid down in this law and the regulations approved by the Supreme Council of the prosecutors. The candidate shall be selected following a public competition organized and conducted in accordance with the procedure established by the local law adopted by the Assembly.
(2) The assessment of participants in the contest for the post of Chief Prosecutor of the Prosecutor's Office, the people's Assembly of Gagauzia shall apply in accordance with regulation scoring approved by Superior Council of prosecutors.
(3) the people's Assembly nominate selected Superior Council of Prosecutors for inspection.
(4) based on the data submitted by the people's Assembly, the Superior Council of public prosecutors, within one month, verify compliance with procedure and compliance of the candidate conditions and criteria laid down in this law and the regulations approved by the Superior Council of public prosecutors and the Attorney General his appointment.
(5) where the infringement procedure identifies the selection of candidate or it does not meet the conditions or criteria, the Superior Council of Prosecutors will dismiss the proposed candidacy of motivated people's Assembly.
6. the people's Assembly may propose the same candidacy with a vote of 2/3 of its members. If it finds repeatedly breaches of procedure or nonconformance of the candidate conditions times criteria, the Superior Council of Prosecutors will reject motivated candidacy. The same candidate rejected a second time because of discrepancies between the conditions or criteria may be proposed to the position of Chief Prosecutor of the Prosecutor's Office of Gagauz ATU, a new competition be held. "


Article 69Componența Council of Prosecutors ' (1) the Superior Council of public prosecutors is composed of 12 members.
(2) the Superior Council of public prosecutors belong by right to the Attorney General, the Chief Prosecutor of the Prosecutor, the President of ATU Gagauzia higher magistrates Council and the Minister of Justice.
(3) five members of the Superior Council of Prosecutors are elected by the general meeting of Prosecutors from among the prosecutors, by secret ballot, direct, and free suffrage, as follows: a) a member from among the prosecutors of the Prosecutor General;
b) four members from among the prosecutors of the prosecution offices and specialized ones.
(4) three members of the Superior Council of Prosecutors are elected by competition among civil society, as follows: one by the President of the Republic, one Parliament and one by the Academy of Sciences of Moldova. Candidates to the post of Member of the Superior Council of Prosecutors on the part of civil society must have university degree and experience in the legal field for at least three years.
(5) are considered to be elected as members of the Superior Council of prosecutors and prosecutors who have accumulated the highest number of votes at the general meeting of prosecutors. Next on the list of candidates for prosecutors who have accumulated the highest number of votes to compensate in descending order vacations functions by number of votes garnered.
(6) Applicants to the position of Member of the Superior Council of the prosecutors should enjoy a reputation unimpaired and shall be a recognized authority in their respective areas of activity.
(7) cannot be members of the Superior Council of prosecutors and prosecutors who have effective disciplinary and persons who have been declared guilty of an offence.
(8) the Prosecutors elected as members of the Superior Council of Prosecutors from his Office detach during the exercise of their mandate.
(9) the members of the Superior Council of public prosecutors, with the exception of members of law cannot exercise a gainful activity, apart from the academic, creative, athletic, scientific or public associations. "
In the authors ' Arguments 9. referral. The motivation of the referral, the authors argue that certain rules of the law on Prosecutor's Office contradict the Constitution.
10. Thus, the authors state that, according to art. 1 of the law on Prosecutor's Office, "Prosecutor [...] contribute to the observance of the rule of law, justice, protection of rights and legitimate interests of the person and of society ", while the Constitution, in article 19. 124 para. (1) provides that "the Prosecutor [...] defends legal order, as well as the rights and freedoms of citizens, and exercise their prosecution, represents prosecution in courts according to the law ". In this regard, the complaint alleged that those rules constitute a restriction on the powers of the Prosecutor.
11. in addition, the authors invoke the disparity. 17 of the law on Prosecutor's Office, which regulates a new mechanism for the appointment of the Attorney General, with art. 125 of the Constitution.
12. Similarly, the authors noted that article 9 referral. 26 of the law on Prosecutor's Office, in what is the procedure for the selection of the candidate to the position of Chief Prosecutor of the Prosecutor Atu, coming into conflict with the provisions of art. 21 of law No. 344 of 23 December 1994 on the special legal status of Gagauzia, establishing another way of appointment. In this sense, the authors argue that the law on which that regulates the status of Gagauzia, which, under art. 111 of the Constitution shall be amended by the vote of three fifths of the deputies elected, is a special law in relation to the law on Prosecutor's Office and apply with priority.
13. At the same time, the authors of the referral contest art. 69 para. (9) of the law on Prosecutor's Office, according to which members of the Superior Council of public prosecutors, with the exception of members of law cannot exercise a gainful activity, apart from the academic, creative, athletic, scientific or public associations. At the same time, art. 125 para. (4) of the Constitution lays down that the Office of public prosecutor is incompatible with any other public or private office, except for didactic and scientific activity.
14. Finally, the authors claim that the referral provisions of art. 17 para. (10) to (12) of the law on Prosecutor's Office will not enter into force on the date indicated in the text of the law, but after changing the Constitution, "a future event whose realization is uncertain", and therefore in violation of-it art. 76 of the Constitution, according to which the law comes into force on the date of its publication in the Official Gazette or on the date provided for in the text of the law.
B. Assessment Of The Court 15. Examining the admissibility of the referral, please note the following.
16. pursuant to paragraph 1 of article 135. (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), referral to the constitutionality of laws concerning the competence of the Constitutional Court.
17. Articles 25 lit. g) of the law on the Constitutional Court and 38 para. (1) (a). g) of the Code empowers the constitutional jurisdiction of Parliament in Parliament with the right to refer the matter to the Constitutional Court.
18. In the present case, the authors note that referral alleging in essence that law No. 3 of 25 February 2016 on Prosecutor provisions of articles 76, 111, 124 and 125 of the Constitution.
19. Note that the prerogative Court was vested in it by article 135 paragraph 1. (1) (a). of the Constitution requires) correlation of the rules/laws, Constitution and challenged the text taking into account the principle of the supremacy of the latter.
20. the Court finds that, although the authors requesting referral of law in full control. 3 of 25 February 2016 on Prosecutor's Office, primarily in support of the referral is only neconstituționalitatea articles 1, paragraphs 1 and 17. (10) to (13), paragraph 1, 26 and 69. (9) of the Act.

21. Thus, as regards the criticism of non-constitutionality of art. 1 of the law on Prosecutor's Office, according to which the Prosecutor contribute to respect for the rule of law, while the Constitution, in article 19. 124 para. (1) provides that the Prosecutor defends legal order, the Court reveals that the abovementioned textual difference is not likely to change the substance of the powers of the Prosecutor, according to the analysis of systemic regulatory, prosecution is not the only public authority which ensures public order, but also contributes to its insurance along with other public authorities entrusted with such tasks.
22. Furthermore, the Court noted that, being adopted in the context of the reform of the justice system, the new law on Prosecutor's Office includes a number of important changes in activity and the functioning of the Prosecutor's Office, which involves both a legislative intervention in the constitutional rules and other laws.
23. In this connection, the Court notes that, according to the new law on Prosecutor's Office, the Attorney General is to be appointed and removed from Office by the President of the Republic of Moldova, on a proposal from the Superior Council of public prosecutors, and will exercise its activities on a term of 7 years, which cannot be renewed. At the same time, according to the existing constitutional provision (article 125 of the Constitution), the Attorney General is named according to the Parliament, at the proposal of its President.
24. the court notice that legal provisions pertaining to the appointment of Attorney General cannot be implemented without being amended constitutional norms. In the light of these circumstances, the legislature, the final provisions of the law on Prosecutor's Office (art. 98) determined that the law enters into force on 1 august 2016, with some exceptions. Respectively, the provisions of art. 17 para. (10) to (12), in part related to the appointment of the Attorney General by the President of the Republic will come into effect after the amendment of the Constitution of the Republic of Moldova.
25. the Court noted that the entry into force of the law marks the time it acquires the force required. In its case-law the Court has noted that: "1. The entry into force of the law according to art. 76 of the Constitution means: [...] b) law published in the Official Gazette of the Republic of Moldova shall take effect:-the date of publication, including where this date is not provided for expressly in the text of the law;
-the date referred to in the text, but which may not precede the date of the publication of the law;
[…]
d) the entry into force of the law relate to the Bill in its entirety, as well as parts of its components. "
[HCC No. 32 of 29 October 1998] 26. Note that setting the Court Law on Prosecutor's Office that some provisions will enter into force following the change to the Constitution cannot be qualified as the absence of data on the implementation of the rules.
27. Furthermore, the Court notes that in art. 98 para. (1) of law No. 3 of 25 February 2016 on Prosecutor's legislature determined that until the entry into force of the amendments to the Constitution shall apply to the provisions of art. 40 para. (1) of law No. 294-XVI dated 25 December 2008 with regard to the Prosecutor's Office in the body to appoint the Attorney General. Thus, some provisions of the law on Prosecutor's Office in the old Editorial Board were assigned to ultraactiv effect.
28. Therefore, the court notice that, in the image of the entry into force of the law on Prosecutor's Office, its rules are written in a sufficiently precise manner that any person able to predict effects and to conform their conduct accordingly, making it compatible with the requirements of article 76 of the Constitution.
29. In addition, the Court recalls that on 19 April 2016 okayed the Bill for amendment of the articles of the Constitution relating to the institution of prosecution (Opinion No. 5).
30. in addition, the Court may not withhold criticism relating to the disparity between article 69 para. (9) of the law on Prosecutor's Office and article 125 para. (4) of the Constitution, in part what keep incompatibilities, whereas constitutional rule invoked refers to incompatibilities of function of a Prosecutor, and norma said regulating legal incompatibility function of a member of the Superior Council of public prosecutors, three of whom, incidentally, are chosen through a contest among civil society. In what part of the incompatibility of the function of Prosecutor, art. 14. (1) of the Act states that it is incompatible with any other public or private function, as well as other activity remunerated or not. Paragraph 2 of that article provides that the Prosecutor may pursue the teaching and scientific activities.
31. in the authors ' claims about what is the referral concerning the special character of law. 344 of 23 December 1994 on the special legal status of Gagauzia and for this purpose the application with priority. 21 of this law, which governs the designation of Chief Prosecutor Prosecutor UTA Gagauzia, in relation to the new provisions of the Law on Prosecutor's Office, the Court shall indicate the following.
32. the court notice that, according to art. 111 para. (7) of the Constitution, the law that regulates the special status of the autonomous territorial unit Gagauzia may be amended if three-fifths of lawmakers in Parliament. At the same time, the constitutional norm assigns to disclosed the law governing the legal status of Gagauzia to the category of organic laws.
33. the Court points out that, according to art. 72 para. (1) of the Constitution, the Parliament adopted the constitutional laws, organic laws and ordinary laws. In its case-law the Court has noted that no organic law may not be made in terms of superiority over other organic laws adopted by the Parliament (HCC nr. 9 of 18 February 1999, HCC nr. 12 of 11 March 1999).
34. Thus, the Court made note that both laws in question are organic laws having the same legal force and in case of divergences between them to be used the General principles of law enforcement over time.
35. In the light of the above, the Court noted that the appeal is unfounded and cannot be accepted for examination.
For these reasons, in accordance with the provisions of article 26 para. (1) of the law on the Constitutional Court, articles 61 para. (3) and 64 of the code of constitutional jurisdiction, the Constitutional Court D E C I D E: 1. It is hereby declared inadmissible the appeal of Deputies and Vladimir Turcan Vasile on notification constitutionality control Bae law. 3 of 25 February 2016 on Prosecutor's Office.
2. this decision is final, cannot be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the "Official Gazette of the Republic of Moldova".

The PRESIDENT Of The CONSTITUTIONAL COURT Of JUSTICE Alexandru Tanase