inadmissibility of referral No. 49B/2015 concerning the interpretation of articles 137 and 138 from the Moldovan Constitution (freedom of expression of judges)



Published: 29.04.2016 in Official Gazette No. 114-122 art no: 32 date of entry into force: 23.03.2016 Constitutional Court, acting as part of Mr. Talbot: GEOGRAPHIC LOCATION, President of the meeting, Mr. Aurel BĂIEȘU, Mr. Igor DOLEA, Mr. Victor POPA, judges, with the participation of Mrs. Ludmila Chihai, Registrar, considering the appeal filed on 17 November 2015, recorded at the same time, examining preliminary referral referred to, taking into account the acts and proceedings of the dossier , Acting on 23 March 2016 in Council Pronounce the following decision: in fact 1. November 17, 2010, deputies in Parliament Vlad Batrîncea and Vasile Bae asked the Constitutional Court to interpret the referral provisions of articles 137 and 138 of the Constitution, which guarantees the independence of the judges of the Constitutional Court and establishing the conditions for appointing them.
A. reasons for referral 2. The authors have requested the interpretation provisions of the referral of articles 137 and 138 of the Constitution through the freedom of expression of the judge of the Constitutional Court.
3. Citing some statements by the President of the Constitutional Court, made in television shows and radio programs, referral believes they violate constitutional rules specified limits.
B. relevant Legislation 4. The relevant provisions of the Constitution (Official Gazette, no. 1, 1994) are as follows: Article 32 the freedom of opinion and expression "(1) any citizen shall be guaranteed freedom of thought, opinion, and freedom of expression in public through Word, image or any other means possible.
(2) the freedom of expression may not harm the honour, dignity or rights of other people to express their own opinions.
(3) it is forbidden and punishable by law and defamation to challenge State and people, the urge to war of aggression, hatred or national, racial and religious incitement to discrimination, territorial separatism, public violence, and other manifestations encroaching upon the constitutional regime. "


Article 134 "Status (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. "


Article 136 structure "(1) the Constitutional Court is composed of six judges, appointed for a term of 6 years.
(2) two judges appointed by the Parliament, the Government and two of the Superior Council of Magistracy.
(3) the judges of the Constitutional Court shall elect, 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 138Condiţiile 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."
5. The relevant provisions of the European Convention for the protection of human rights and fundamental freedoms, as amended by the additional protocols to that Convention (done at Rome on 4 November 1950 and ratified by decision of Parliament of the Republic of Moldova No. 1298-XIII of 24 July 1997) are the following: "Article 1 10Libertatea of expression. Everyone has the right to freedom of expression. This right includes freedom of opinion and freedom to receive or impart information ideas without interference of public authorities and regardless of frontiers. This article shall not prevent States from subjecting undertakings broadcasting, cinematography or television system of authorisation.
2. The exercise of these freedoms involving the duties and responsibilities may be subject to certain formalities, conditions, restrictions or penalties as are prescribed by law, in a democratic society, are necessary for national security, territorial integrity or public safety, order and prevention of crime, protection of the health, morals, reputation or rights of others, for preventing disclosure of confidential information or to ensure the authority and impartiality of the judiciary. "
In the authors ' Arguments AS a. referral 6. According to the authors of the referral, the judges of the Constitutional Court, in the exercise of their mandate, have a number of obligations, including to secrecy and of voting and not to take a public position or give consultations on issues related to the competence of the Constitutional Court, not to use the position held for purposes of propaganda.
7. In this connection, the authors argue that the referral interviews and public statements, made by the judges of the Constitutional Court for the media, it violates the provisions of articles 137 and 138 of the Constitution and articles 17, 18 and 19 of the law on the Constitutional Court.
B. Assessment Of The Court 8. Examining the admissibility of the referral, please note the following.
9. The Constitutional Court exercises the constitutional jurisdiction referral subjects specified in article 25 of the law on the Constitutional Court and article 38 of the code of constitutional jurisdiction. According to legal provisions, members of the Parliament are subject to referral to the Constitutional Court.
10. Similarly, article 135 paragraph 1. (1) letter b) of the Constitution, article 4 para. (1) letter b) of the law on the Constitutional Court and article 4 para. (1) letter b) of the Code empowers the Constitutional Court jurisdiction with responsibility for the interpretation of the Constitution.
11. In its jurisprudence, the Court noted that the prerogative vested in it by article 135 paragraph 1. (1) letter b) of the Constitution requires the authentic meaning and of constitutional norms, which can be done through textual interpretation or functioning, insofar as they can be inferred from the text of the Constitution, taking into account the generic nature of the rule, the concrete situations that the legislature did not provide them at the time of drafting the rule, the regulations adopted pursuant thereto, the complex situations in which rule should be applied.
12. Given the importance of the interpretation of the provisions of the Constitutional Court deals with complaints of this nature with a particular requirement. They can be accepted for the examination only if the constitutional disposition, whose interpretation is sought, is uncertain, ambiguous or incomplete, and if the Court has not been called previously.
13. the Court observes that the authors have submitted for consideration of referral to some statements made by the President of the Constitutional Court within the framework of the radio-TV, requesting their appreciation in the light of the provisions of articles 137 and 138 of the Constitution.
14. Of all the questions raised by the authors of the referral, the court deduced that the appeal deals with matters pertaining to the limits of freedom of expression of the judge of the Constitutional Court.
15. In this regard, the Court observes that the provisions of article 138 of the Constitution, establishing the conditions for the appointment of judges of the Constitutional Court, this did not affect the question.
16. the court notice that, according to article 137 of the Constitution, judges of the Constitutional Court are irremovable for the duration of their mandate, independent and subject only to the Constitution. Constitutional provisions are reflected in article 13, paragraph 1, and. (1) of the law on the Constitutional Court.
17. With reference to the independence of the judges of the Constitutional Court, in its judgement No. 18 of 2 June 2014, the Court said the following: "42. The independence of judges is one of the constitutional principles of Justice. According to this principle, in his work the judge obeys only to law and his conscience. The judge in disputes may not receive any kind of orders, instructions, directions, suggestions or other such impulses concerning the solution must give.
[…]
56. Both the Constitution and the law on the Constitutional Court regulates important principles and guarantees of the independence and neutrality of the judges of the Constitutional Court, such as to enable them to exercise objective judgement, the Court itself under article 134, paragraph 1. (2) of the Constitution, "independent of any other public authority ' and obeying only the Constitution. […].”

18. At the same time, article 13 para. (2) of the law on the Constitutional Court, which guarantees the independence of judges, the Constitutional Court established that judges cannot be held accountable for their votes or opinions expressed in the exercise of their mandate.
19. the Court note that article 32 of the Constitution guarantees freedom of thought, opinion, and freedom of expression in public through Word, image or any other means possible.
20. The importance and value of the right to freedom of expression is corroborated by article 19 of the Universal Declaration of human rights and article 10 of the European Convention, which state that everyone has the right to freedom of expression.
21. In this regard, the European Court has established in its case law that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for the realization of each person. According to paragraph 2 of article 10, it is applicable not only to ' information ' or ' ideas ' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. These are the demands of pluralism, tolerance and liberalism, without which there can be no "democratic society". As provided for in article 10, this freedom is subject to exceptions, which must, however, be interpreted strictly, and the necessity of such restrictions must be established convincingly (see, inter alia, Jersild v. Denmark, § 31; Hertel v. Switzerland, judgment of 25 august 1998, § 46; Steel and Morris v. the United Kingdom, nr. 68416/01, § 88).
22. Furthermore, in its constant case-law the European Court has held that the protection guaranteed by article 10 extends over civil servants (see Vogt v. Germany, judgment of 26 September 1995, § 53; Wille v. Liechtenstein, judgment of 28 October 1999, § 41; Ahmed and others v. United Kingdom, judgment of 2 September 1998; Fuentes Bobo v. Spain, § 38, judgment of 29 February 2000). At the same time, however, even if such persons shall enjoy the protection of article 10. 10 of the Convention, it is legitimate for the State to submit to them, due to their status, an obligation. Between the obligation and freedom of expression of public servants must be a just balance that satisfies the requirement of necessity of interference in a democratic society.
23. In this connection, the court notice that in the case of Wille v. Liechtenstein, the European Court decided that when it comes to the judiciary, and in particular of high-ranking magistrates, their rights and responsibilities in respect of the financial year freedom of expression have a particular importance. Magistrates must give proof of a certain restraint in exploiting their freedom of expression wherever it is unlikely to be affected by the authority and impartiality of the judiciary (§ 61).
24. At the same time, if the magistrate expressing opinion on the issues of constitutional law, which, by its very nature this branch of law, have obvious and obligatory political implications, this unique item, looked at in isolation, cannot legitimize his prevention to formulate comments on such topics. In such a situation, the magistrate can express their opinion, especially if it's not a totally unsustainable, but on the contrary, one shared by others (Wille v. Liechtenstein, § 67).
25. in addition, the European Court noted that the exclusion of the judiciary as a result of data statements in the press violates the right to freedom of expression as enshrined in article 2 of 10 of the Convention is extremely severe and capable of producing a "chilling" effect on the judges who would have liked to participate in the public debate concerning the effectiveness of judicial institutions (see cause Kudeshkina v. Russia, judgment of 28 February 2009, § 88, § 98).
26. Furthermore, in view of the growing importance given to the separation of powers and the importance to safeguard the independence of the European Court of judiciarului, keep in mind that during his persistent interferences in the free speech of a judge to require a detailed analysis.
27. In the same context, in the report on the freedom of expression of judges, adopted at the 103-plenary session (19-20 June 2015), the Venice Commission pointed out: "41. To remove the constitutional guarantees of freedom of expression, must be evident connection between the opinions expressed and the activities related to the administration of Justice. If the connection is not obvious, courts and supervisory bodies should give priority to freedom of expression of a judge, he was not allowed any act in relation to pressure him. "
28. In the context of those mentioned, the court notice that in this case Mr. Alexandru Tănase was interviewed by journalists as President of the Constitutional Court and of the decisions taken by the Constitutional Court. In fact, it is the obligation of the President of the Court to explain the activity of the Constitutional Court. Thus, the President of the Court and has exhibited mainly opinion, about the administration of Justice constitutional by the Constitutional Court and the ordinary justice and the functioning of democratic institutions in Moldova. In this sense, it is obvious that it cannot be exceeded the limits of the right to freedom of expression.
29. At the same time, the Court finds that the appeal is inadmissible ratione materiae because the interviews and news articles are not likely acts constitutionality.
30. the Court note that referral is manifestly unfounded, abusive and oppressive formulated and proved, therefore, cannot be accepted for examination.
For these reasons, in accordance with the provisions of article 26 para. (1), 31 of the law on the Constitutional Court, articles 61 para. (3) and 64 of the code of constitutional jurisdiction, paragraph 28, subparagraph (c). d) of the regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court D E C I D E: 1. It is hereby declared inadmissible the appeal of Deputies Vlad Batrîncea and Vasile Bae concerning the interpretation of articles 137 and 138 from the Constitution of the Republic of Moldova.
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.