the draft law for amending and supplementing the Constitution of the Republic of Moldova (the judicial system) (Referral No. 41 c/2016)



Published in Official Gazette: 13.05.2016 Nr. 128-133 art no: 39 date of entry into force: 19.04.2016 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, taking into account the appeal lodged on April 12, 2016 and recorded at the same time, examining the appeal referred to in Council considering the acts and proceedings of the dossier, has adopted the following opinion: PROCEDURE 1. The origin of the case lies the appeal lodged with the Constitutional Court on 12 April 2016 by Government, pursuant to the provisions of articles 135 para. (1) (a). (c)) and 141 para. (1) (a). c) of the Constitution of the Republic of Moldova, article 4 para. (1) (a). c) of the law on the Constitutional Court and of articles 4 paragraph 2. (1) (a). 38 c), para. 63 (2) and subparagraph (c). the constitutional jurisdiction of the code), which requires the approval of the draft law for amending and supplementing the Constitution of the Republic of Moldova.
2. Draft law on modification and completion of the Constitution is exposed in the following editorial board: "unique article. -The Constitution of Moldova, adopted on 29 July 1994 (republished in the Official Gazette of the Republic of Moldova, 2016, no. 78, art. 139) is amended and shall be completed as follows: 1. Article 116: (2) shall read as follows: "(2) the judges of the courts shall be appointed according to the law, until reaching the age, by the President of the Republic of Moldova, at the proposal of the Supreme Council of Magistracy. The President of the Republic of Moldova can be rejected once the proposed candidacy of the Superior Council of Magistracy (SCM). ";
(4) shall be repealed;
paragraph (5) shall read as follows: "decisions on the appointment of judges and their career must be adopted on the basis of objective criteria, merit-based and transparent procedures, in accordance with the law. The promotion and transfer of judges shall be made only with their agreement. ";
to be completed with (5/1) with the following contents: "(5/1) Judges have only functional immunity under the law."
2. Article 121 shall be completed (1/1 and 1/2) with the following contents: (1) consultation of the Superior Council of Magistracy shall be binding in the process of drafting, examination, approval and amendment of the State budget in part pertaining to the allocation of funds for the courts.
(1/2) The Superior Council of Magistracy shall be entitled to submit to the Parliament proposals concerning the financial resources necessary for the proper functioning of the courts. "
3. Section 2 of chapter IX shall be added to article 121/1 with the following content: "Article 121/1 role of the Superior Council of Magistracy is the guarantor of the independence of the judicial authority."
4. Article 122 shall read as follows: "Article 122Componenţa (1) the Superior Council of Magistracy is composed of judges elected by the general meeting of judges representing all levels of the courts, and civil society representatives with expertise in the field of law. The Minister of Justice is a member of the Superior Council of Magistracy.
(2) a significant proportion of the members of the Superior Council of Magistracy shall be judges. The method and procedure of electing or appointing members of the Superior Council of Magistracy shall be determined by law.
(3) the members of the Superior Council of Magistracy shall be elected or appointed for a term of six years, without the possibility of holding two consecutive mandates. "5. Article 123, paragraph 1 shall be supplemented by the following sentence:" the Superior Council of Magistracy shall exercise their powers either directly or through its specialized organs. "
3. Draft law on modification and completion of the Constitution of the Republic of Moldova was approved by Government decision No. 430 of 11 April 2016.
PERTINENT LEGISLATION 4. The relevant provisions of the Constitution (Republished in the Official Gazette, 2016, 78, no. 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 72Categorii of the law "(1) Parliament shall adopt constitutional laws, organic laws and ordinary laws.
(2) constitutional laws are aimed at revising the Constitution.
[...]”


Article 116 the status of judges "(1) the judges of the courts are independent, impartial and irremovable under the law.
(2) the judges of the courts are called by the President of the Republic of Moldova, at the proposal of the higher magistrates Council in accordance with the law. The judges who supported the competition shall be appointed according to first for a period of 5 years. After expiry of the period of 5 years, the judges will be appointed in Office until reaching the age established in accordance with the law.
(3) the Presidents and Vice-Presidents of courts are appointed by the President of the Republic of Moldova, at the proposal of the higher magistrates Council, for a term of 4 years.
(4) the President, Vice-Presidents and justices of the Supreme Court of justice are appointed by Parliament upon a proposal from the Superior Council of Magistracy. They must have a length in judicial office for at least 10 years.
(5) the promotion and transfer of judges shall be made only with their consent.
(6) judges may be punished in accordance with the law.
(7) the Office of judge is incompatible with holding any other remunerated position, except in the area of teaching or scientific research. "


Article 121 budget of instanţelorjudecătoreşti, allowance and other entitlements "(1) the financial resources of the courts are approved by Parliament and are included in the State budget.
(2) allowances and other entitlements of judges are determined by law.
(3) the courts have put into their police service. "


Article 122 Composition [Superior Council of Magistracy (SCM)] "(1) the Superior Council of Magistracy consists of professors and judges elected for a term of 4 years.
(2) the Superior Council of Magistracy shall form part of the law: the President of the Supreme Court of Justice, the Minister of Justice and Attorney General. "


Article 123 Powers [the higher magistrates Council] "(1) the Superior Council of Magistracy ensures the appointment, transfer, promotion, posting and disciplinary measures against judges.
(2) the mode of organisation and functioning of the Superior Council of Magistracy shall be established by organic law. "


Article 135Atribuţiile "[Constitutional Court] (1) the Constitutional Court: [...]
c) to pronounce on initiatives aimed at revising the Constitution;
[...]”


Article 141Iniţiativa revision "(1) revision of the Constitution may be initiated by: [...]
(c)).
(2) constitutional bills will be presented to Parliament only together with the opinion of the Constitutional Court, adopted with a vote of at least four judges. "


Article 142Limitele revision "(1) the provisions concerning the character of the sovereign, independent State and the unit, as well as those relating to the permanent neutrality of the State may be revised only with the approval by referendum, the majority of citizens registered in the electoral roll.
(2) no revision shall be made, if it results in the Suppression of the fundamental rights and freedoms of citizens or of their guarantees.
(3) the Constitution cannot be revised during the State of emergency, martial law and war. "


Article 143Legea concerning the amendment of the Constitution "(1) Parliament is entitled to enact a law on amendments to the Constitution after at least 6 months from the date on which the appropriate initiative. The law shall be adopted by a two-thirds vote of the members.
(2) If, at the presentation of the initiative with regard to the amendment of the Constitution, the Parliament failed to adopt for a year the corresponding constitutional law, the proposal shall be deemed null and void. "
In LAW 5. From the contents of the referral, the Court observes that it is aimed at essentially a revision of the Constitution in part what shall: 1) status, mode of appointment and immunities of judges, the judiciary funding 2) as well as 3) role, composition and powers of the Superior Council of Magistracy.
6. The competence of the Constitutional Court to settle this question is provided by the provisions of article 137 para. (1) (a). c) of the Constitution, according to which the Constitutional Court to pronounce on initiatives to revise the Constitution.
I. with regard to the legislative proposal amending the Constitution 1. The provisions and purpose of the project 7. Through the Bill submitted to the proposed operation of a series of constitutional amendments relating to the judicial system.

8. Thus, with regard to the status of the judge, according to the draft, the judge will be appointed to hold office until the age limit, to the exclusion of the initial 5-year term.
9. Furthermore, the Supreme Court justices to be appointed according to the President of the Republic of Moldova, similar to judges within the courts and Courts of appeal.
10. At the same time, it aims to regulate the Constitution's express only the functional immunity of judges.
11. in the image of the judiciary funding are proposed several additions to the article 121 of the Constitution relating to the compulsory consultation of the Superior Council of Magistracy in drafting and amending the State budget in the financial resources allocated to the judiciary, and the right the higher magistrates Council to submit to the Parliament proposals concerning the financial resources necessary for the judicial system.
12. With the amendments to articles is involved which regulates the activity of the Superior Council of Magistracy. Essentially, these amendments aimed at changing the composition of the MSC structural, to the exclusion of the Attorney General and the President of the Supreme Court of Justice in its composition and the establishment of the mandate of the members for a period of 6 years, which cannot be renewed.
13. According to the Government, the constitutional Bill was drafted action in furtherance of nr. 3 of art. 4 of the National Action Plan for the implementation of the association agreement EU-Moldova during the period 2014-2016. The project also aims at the execution of legislative measures under pillar I "of the Judicial System" in the action plan for the implementation of the strategy for reform of the justice sector for the years 2011-2016, approved by decision of the Parliament. 6 of February 16, 2012.
2. The initiative to revise the Constitution 14. According to article 141 of the Constitution: "the revision of the Constitution may be initiated by: a) a number of at least 200 000 Moldovan citizens with the right to vote [...];
b) a number of at least one third of the members of Parliament;
c) Government. "
15. in this question, the legislative proposal to revise the Constitution is submitted to the Constitutional Court for an opinion by the Government, being approved by Judgment No. 430 of 11 April 2016. Therefore, the right of legislative initiative concerning the revision of the Constitution has been exercised with due regard for the provisions of article 141 para. (1) (a). c) of the Constitution.
3. revision of the Limits of the Constitution. With regard to the revision of limits, article 142 of the Constitution stipulates the following: "(1) the provisions concerning the character of the sovereign, independent State and the unit, as well as those relating to the permanent neutrality of the State may be revised only with the approval by referendum, the majority of citizens registered in the electoral roll.
(2) no revision shall be made, if it results in the Suppression of the fundamental rights and freedoms of citizens or of their guarantees.
(3) the Constitution cannot be revised during the State of emergency, martial law and war. "
17. Quoted text governs the terms of the constitutionality of the initiative review [para. ( 1) and (2) of article 142] and extrinsic to its constitutionality [para. ( 3) article 142].
Constitutionality of extrinsic) (time limits) 18. The constitutionality of extrinsic circumstances, with regard to the revision of the Constitution, paragraph 1 the text of article 142. (3) of the basic law, which prohibits the Constitution revision during the State of emergency, martial law and war, the provision of article 63 para. (3) second sentence of the Constitution, according to which Parliament cannot revise the Constitution during the term of Office shall be postponed until the meeting of the new Cabinet.
19. in addition, the term temporal boundaries include the adoption of the initiative to revise the Constitution.
20. In accordance with article 143 of the Constitution governing amendment of the Constitution, the law on amendments to the Constitution can be adopted after at least 6 months from the date on which the appropriate initiative.
21. the Court finds that, at the time of the initiation of the revision of the Constitution in this question, it appears that not any of the situations referred to in the constitutional texts, being fulfilled the conditions of the constitutionality of the initiative review extrinsic.
b) the constitutionality of the intrinsic (limits) 1.1. General considerations 22. Pronouncement regarding the constitutionality of the intrinsic (limits) requires analysis of proposed changes by reference to the provisions of article 141 para. (1) and paragraphs 1 and 2. (2) of the Constitution, in order to determine whether the object of the review is independent and sovereign nature, unitary State, as well as those relating to the permanent neutrality of the State, and whether the proposed changes result in the Suppression of the fundamental rights and freedoms of citizens or of their guarantees.
23. Moreover, the Court will consider whether the proposed constitutional amendments do not contravene other provisions constitutional and whether they will ensure their enforceability in whole without recourse.
24. In this connection, in its judgement No. 7 on 4 March 2016 concerning constitutionality of some provisions of the law. 1115-XIV of 5 July 2000 on the modification and completion of the Constitution of the Republic of Moldova, the Court mentioned that the constitutional provisions relating to the revision of the Constitution, is determined by the nature and purpose of the concept of the Constitution itself. In this sense, any revision may be made only in compliance with the principles of the supremacy of the Constitution, its stability, unity of matter and equilibrium values enshrined by the Supreme Law, and abolition of the Constitutional Court to rule in terms of initiatives to revise the Constitution in the context of shared competence of the Parliament and by the Court in the process of amending the Constitution. There can be no change to the adopted Constitution, which would affect the harmony of the Constitution or the harmony of values enshrined by them. However, the nature of the Constitution of the Supreme legal force and constitutionality idea implies that there can be no gaps or contradictions of the Constitution.
1.2. With reference to the appointment of judges. The provisions of articles 114 and 116 paragraphs 1 and 2. (1) of the Constitution enshrines the principle of judges ' independence, without which there can be no talk of a genuine activity of the justice. Implementation of the principle of the independence of the judge, put at the base of the autonomy of the judiciary, through the procedure of the justice, as well as the appointment, suspension, resignation and release from Office of a judge.
26. The independence of the judiciary is a basic requirement of the rule of law, which derives from the principle of the separation of powers. This requirement imposes on both the structural independence of the system of Justice and the independence of individual judges.
27. In examining the Bill, the Court finds that the exclusion of the initial 5-year term of appointment of judges at para. (2) of article 116 of the Constitution aims to ensure the stability of the mandate of the judges until the age of mandatory retirement.
28. the Court noted that, according to international standards, judges should be ensured during the period of exercising the tool until the mandatory retirement age or, if they are appointed for a specified period before the end of his mandate.
29. Judges appointed on a permanent basis may not be cancel without a just reason as long as they have not reached the age of mandatory retirement, these reasons must be precisely defined by law.
30. insurance Measures effective independence and impartiality of judges are set out in the basic principles of the independence of the judiciary (act adopted at the 7th Congress of the United Nations relating to the prevention of crime and the treatment of offenders, held at Milan from 26 august to 6 September 1985, approved by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985). According to p. 12: "judges, whether appointed or elected, shall have guaranteed mandate until a mandatory retirement age or prior to the expiry of their own, where there is such a term.
31. According to Recommendation CM/Rec (2010) 12 of the Committee of Ministers to Member States concerning judges: independence, effectiveness and responsibility (adopted November 17, 2010): "49. Security of tenure and irremovability are key elements of the independence of judges. Accordingly, the judges should have guaranteed until a mandatory retirement age, where it exists. "

32. In addition, the Venice Commission recommends that ordinary judges to be appointed with the title permanently until retirement. Imposition of probationary period for judges according to would raise problems in terms of independence (independence of the judiciary report, part i: the independence of judges (CDL-AD (2010) 004), approved in the framework of the 82 session plenary of 12-13 March 2010).
33. In the context of those mentioned, keep in mind that the security of tenure is a fundamental feature of the independence of judges, and the appointment of the judge until a mandatory retirement age represents the guarantee of their mandate.
34. At the same time, keep in mind that the Bill proposes that the judges of the Supreme Court of Justice to be appointed according to the similar appeal courts from judges and justices, by the President of the Republic of Moldova upon proposal of the Superior Council of Magistracy, and not by Parliament as at present.
35. the Court finds that, in the opinion of the author of the draft law, the appointment of all judges by the President of the Republic of Moldova upon proposal of the Superior Council of Magistracy will reduce political influence over the procedure of appointing judges, and will even out the procedure for appointing judges in all courts in the country.
36. Also with reference to the proposal on the right of the President to reject only once as a candidate proposed by the Superior Council of Magistracy, currently this rule is contained in the law on the status of the judge. The Court noted that a constitutional regulation of this issue will be one of the guarantees of judicial authority and will exclude any other interference in the decision-making powers of appointment of judges.
1.3. With reference to the immunity of judges 37. The Court noted that the Supreme law in art. 116 paragraph 1. (1) not expressly "immunity of the judge," acting that the judges of the courts are independent, impartial and irremovable under the law. The term "judicial immunity" is part of the concept of judicial independence.
38. the Court finds that the constituent legislator, acting that "judges of the courts are independent, impartial and irremovable under the law," dedicated to the independence of the judge to ensure the exclusion of any influences from other authorities. This warranty may not be interpreted as such that there is a lack of accountability of the judge. The basic law according to art. 116 paragraph 1. (1) do not confer powers on only, that underlie the concept of "independence" but sets certain limits, and which circumscribes the phrase "according to law".
39. the Court notes that, as in a democratic society the judge cannot be in the middle of an absolute immunity, it outlines the issue of employment conditions and modalities of the liability of the judge.
40. In this respect, the Court notes that the draft law shall establish a separate rule regarding the immunity of the judge (article 116 paragraph 1. (5/1) of the draft). According to the proposed rule, judges to dispose only of functional immunity under the law.
41. In Judgement No. 22 of 5 September 2013 Court stated: ' 84. […] immunity must not obstruct the main functions and powers of the judiciary, nor hinder the functioning of democratic principles in a State of law.
[…]
87. [...] the judge's immunity is not an absolute guarantee, and the legislature, in exercising the functions provided for in article 72 paragraph 1. (3) (a)) of the Constitution, pass laws on organisation and functioning of the courts.
[…]
89. [...] the principle of judges ' independence constitutional principle involves responsibility. Judge's independence does not constitute and may not be construed as a discretionary power or an obstacle in the path of the commitment of the criminal offence or disciplinary measures, in accordance with the law. "
42. also, as regards the immunity of judges, the Venice Commission Opinion amicus No. 698/2012 of 11 March 2013 argues that: "19. […]  the judges must have functional immunity only, i.e. immunity in case of prosecution only for legal acts performed in the exercise of their functions. […]
53. [...] international standards support the principle, according to which "when you are not in the exercise of the function, judges are responsible under civil law and administrative law in the same way as any other citizen" (CM/Rec (2010) 12, para. 71). Indeed, criminal judicial inviolability does not exist in most European countries, all, however, gives a large value of the independence of the judiciary. "
54. While the functional guarantees are necessary to ensure judicial independence against undue foreign influence, immunity is not wide. Independence of the judiciary is independent of the immunity and the judges should be responsible for any alleged crimes, bearing in mind that the actual procedures of Defense, appeals and other elements of the rule of law are at their disposal. "
43. the Court points out that the functional immunity of judges is not an end in itself, but also serves its independence, which should be able to examine cases without fear of civil or criminal liability for good faith examination of the case.
1.4. With reference to the financing of the judiciary 44. The Court noted that, according to art. 121 paragraph 2. (1) of the Constitution, the financial resources of the courts are approved by Parliament and included in the State budget. 45. Through the Bill proposes completion article with two new paragraphs that the Superior Council of Magistracy to be compulsorily consulted in the process of drafting, examination, approval and amendment of the State budget in part pertaining to the allocation of funds for the courts. It will also be entitled to submit to the Parliament proposals concerning the financial resources necessary for the proper functioning of the courts.
46. the Court points out that the funding of the courts is in close connection with the independence of judges, in that it determines the conditions under which courts carry out their duties.
47. According to Opinion No. 2 of 23 November 2001, adopted by the Consultative Council of European Judges, even though the courts funding is part of the national budget in Parliament, supported by the Ministry of finance, it must not be subject to political fluctuations. Although determining the level of funding of the courts that a country can afford it constitutes a political decision, we must always take care that neither the Executive nor the legislative cannot exert pressure on judicial authority at the time of budgeting. Decisions concerning the allocation of funds for the Court should be taken with strict observance of judicial independence.
48. It is therefore important that the process of drafting, examination, approval and amendment of the State budget in part pertaining to the allocation of funds for courts by Parliament to consult mandatory higher magistrates Council, the authority responsible for the administration of the judiciary.
49. In this regard, and the Commission from Venice in the report on European standards relating to the independence of the judiciary, December 2010, part I, CDL-AD (2010) 040, argues: "55. Decisions concerning the allocation of the budgetary funds by the courts to be taken respecting the strictest of the principle of judicial independence, and the judiciary should be given the opportunity to express their views regarding the proposed budget to Parliament, possibly through judicial Council. ".
1.5. With reference to the Superior Council of Magistracy. The Superior Council of Magistracy-authoritative judicial self-administration is the guarantor of judicial independence. The Superior Council of Magistracy aims at the same time the independence of the judiciary and independence of each judge. Under the rule of law, the existence of an independent and impartial judicial powers is a structural requirement of the State.
51. the Court noted that, according to art. 122 of the Constitution, the Superior Council of Magistracy shall consist of judges and professors who are elected for a period of 4 years. The CSM ex officio: the President of the Supreme Court of Justice, the Minister of Justice and Attorney general.
52. the Court notes that the draft law proposes to amend the structural composition of the Superior Council of Magistracy, i.e., the Attorney General and the President of the Supreme Court of Justice will no longer be members ex officio. Ex-officio member remains only the Minister of Justice, taking into account the fact that the Ministry of Justice promotes the policies in the field of the judiciary, as well as exercising certain powers related to the work of the Organization of the courts.

53. in addition, it aims to ensure representativeness of judges of courts of all levels in the Superior Council of Magistracy. The judges will be elected by the general meeting of judges and will be "an important part" of the members of the Superior Council of Magistracy.
54. the Court noted that at present the constitutional rule does not include any warranty relating to the listing of judges, it being found in the infraconstituțional.
55. Thus, under art. 3 of law No. 947 of 19 July 1996 concerning the Superior Council of magistrates, of the 12 members of the SUPREME COUNCIL of MAGISTRACY, 6 members are elected from among the judges of the General Assembly of judges. In question, the Court finds that, together with the President of the Supreme Court of Justice, the judges shall constitute more than half of the members of the SUPREME COUNCIL of MAGISTRACY.
56. the court notice that, according to the relevant international standards, is acceptable in principle and a smaller number, only on condition that it cannot be diminished.
57. In this regard, the Venice Commission (CDL-AD (2007) 028) argues: "50. A substantial portion or a majority of the members of the Judicial Council shall be elected by the judges themselves. In order to ensure the democratic legitimacy of the Judicial Council, other members of Parliament should be elected, from among persons who have adequate legal powers. "
58. Also with reference to the composition of the judiciary self-administration, in Opinion No. 10 of the CCJE concerning the Council of Justice in the service of society is mentioned: "16. The Council of the judiciary may be composed only of judges or may have a mixed composition judges and nejudecători. In both cases, the perception of their own defence interests, self-defense or corporatism must be avoided.
19. A mixed composition can present advantages, on the one hand, to avoid corporatism, on the other hand, to reflect the different views of society, thereby providing judicial power an additional source of legitimacy. However, even within the Council membership, functioning Judiciary must not allow any concession or parliamentary majorities gaming Executive, and pressures to be outside any subordonări against considerations of political parties, to be able to defend the values and the principles of fundamental justice ".
59. the Court shall state that the fulfilment of the constitutional role of the Superior Council of Magistracy, the guarantor of the independence of the judicial authority, as well as the main economic powers relating to career and reprimanding of judges requires that judges have a weight corresponding to the constitutional imperative.
60. Thus, by virtue of the powers of the Superior Council of Magistracy, the composition of this body should reflect the specific nature of this task, the status of magistrates of members-as the title itself requires the Supreme representation of that body, who know directly the implications of the work carried out by this group, being defining for the decisions to be adopted by the Council.
61. Concluding, the court notice that the Bill does not violate the constitutional boundaries of the reviewed revision provided for in article 142 paragraph 2. (2) of the Constitution.
62. At the same time, the Court noted that, for the purposes of paragraph 1 of article 135. (1) (a). c) in conjunction with article 141 para. (2) of the Constitution, after the delivery of the opinion of the Constitutional Court, neither the interventions in the text of the draft law on revision of the Constitution.
For the reasons stated under article 137 para. (1) (a). (c)), article 141 para. (2) of the Constitution, art. 26, para. (1) of the law on the Constitutional Court, art. 61 para. (1) and art. 63 lit. the constitutional jurisdiction of the code), the Constitutional Court has adopted the following opinion: 1. The initiative for the revision of the Constitution, the Government shall be submitted by the authorized subject and, in this regard, is determined the provisions of article 141 para. (1) (a). c) of the Constitution.
2. Draft law on modification and completion of the constitutional Constitution does not exceed the limits of the review required by the provisions of paragraph 1 of article 142. (2) of the Constitution and can be submitted to the Parliament for examination.
3. Draft law on modification and completion of the constitutional Constitution can be adopted after at least 6 months from the date of the presentation of the initiative to amend the Constitution.
4. this opinion is definitive, may not 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