the initiative to revise Article 70 of the Constitution
(immunity MP)
(Notification no. 38c / 2016)


Posted: 29/04/2016
in the Official Gazette

Nr. 114-122
Article No. 34
Effective Date: 18/04/2016

On behalf of the Republic
Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA,
Mr. Victor POPA, Judges, Sorina Munteanu
with Ms Registrar,
Considering the complaint filed on April 11, 2016
and registered on the same date
examining the notification mentioned in the council chamber acts given
and on file
Adopts the following opinion:
1
PROCEDURE. The case originated notification is submitted to the Constitutional Court on 11 April 2016 by a group of MPs, pursuant to Articles 135 para. (1) c) and 141 para. (1) b) of the Constitution, Article 4 para. (1) c) of the Law on Constitutional Court and Articles 4 para. (1) c) 38 para. (2) and 63 lit. a) the Constitutional Jurisdiction Code, which requires approval of the bill amending Article 70 of the Constitution.
2. MPs signatories of the initiative to revise the Constitution are: Andrian Candu, Marian Lupu, Sergei Sirbu Raisa Apolschii Oleg Sirbu, Valentina Buliga, Marcel Raducan, Corneliu Padnevici, Nicolai Dudoglo, Valentina Stratan, Constantin Tutu, Eugene Nichiforciuc Sergei Chiseliov Lidia Lupu, Valentina Rotaru, Demian Caraseni, Elena Bacalu Cornelius Dudnic Vladimir Andronachi, Lilian Carp, Roman Botan, Mr. Untila. Anatolie Zagorodnii Igor Weather Boris Golovin, Alina Zotea Ion Apostle Peter Ştirbate Stefan Vlas, Peter COSO, Nicholas Juravski, Nae-Simion Plesca Ion Balan Vladimir Hotineanu Valerian Bejan, Iurie Dirdal, Ion Casian, Vladimir Vitiuc and Violeta Ivanov - in total 39 people.
March. The bill to amend the Constitution provides:
"article - Article 70 of the Constitution, adopted on 29 July 1994 (Official Gazette of the Republic of Moldova, 1994, no. 1), as amended, is amended as follows:
title, the words "and immunities" are excluded;
(3) shall be excluded. "

Relevant legislation in April. The relevant provisions of the Moldovan Constitution adopted on 29 July 1994 (republished in the Official Gazette, 2016, no. 78, art. 140), are:
Article 1 Moldova State


"[...] (3) The Republic of Moldova is a democratic law, where human dignity, rights and freedoms, free development of human personality, justice and political pluralism represent supreme values ​​and are guaranteed."

Article 7Constituţia the Supreme Law

"The Constitution is the supreme law. No law or other legal act that contravenes the Constitution has no legal power. "

Article 60Parlamentul supreme representative and legislative

"(1) Parliament is the supreme representative body of the people of Moldova and the sole legislative authority of the state.
(2) Parliament consists of 101 members. "
Article 63Durata mandate


"(1) Parliament is elected for a term of 4 years [...].
(3) The mandate is extended to Parliament legally meets the new structure. During this period the Constitution can not be changed and can not be adopted, amended or repealed organic laws. "
Article 70Incompatibilităţi and immunities


"(1) The membership is incompatible with any other remunerated position, except in education and research.
(2) Other incompatibilities shall be established by organic law.
(3) A deputy may not be detained, arrested, searched, except in cases of flagrant crime, or prosecuted without the consent of parliament after the hearing. "
Article 71Independenţa opinions


"The deputy can not be prosecuted or held legally responsible for their votes or opinions expressed in the exercise of their mandate."
Article 72Categorii laws


"(1) Parliament passes constitutional, organic and ordinary laws.
(2) Constitutional laws are aimed at revising the Constitution.
[...] "

Article 135Atribuţiile [Constitutional Court]

"(1) The Constitutional Court:
[...]
c) on initiatives to revise the Constitution;
[...] "
Article 141Iniţiativa review



"(1) Revision of the Constitution may be initiated by:
[...]
b) of at least one third of MPs;
[...]
(2) Constitutional draft laws will be submitted to Parliament together with the Constitutional Court, adopted by a vote of at least 4 judges. "
Article 142Limitele review


"(1) The provisions regarding the sovereignty, independence and unity of the state and those regarding the permanent neutrality of the State may be revised only by referendum by a majority of voters included in the electoral lists.
(2) No revision may be made, if it implies the rights and freedoms of citizens or their guarantees.
(3) The Constitution shall not be revised during a state of emergency, siege and war. "
Article 143Legea on amending the Constitution


"(1) Parliament has the right to pass a law on amending the Constitution at least 6 months after the initiative was submitted. Law shall be passed by a two-thirds majority vote.
(2) If, after the submission of the initiative on amending the Constitution, Parliament has not passed the appropriate constitutional law one year, the proposal shall be considered void. "
May. The relevant provisions of Law no. 39 April 7, 1994 MP status (republished in the Official Gazette, 2005, no. 59-61, art. 201) are:
"Art.10. - (1) A deputy may not be detained, arrested, searched except in cases of flagrant crime, or prosecuted on criminal case or minor without prior approval of Parliament after the hearing. [...] "THE LAW

June. From the content of the notification, the Court observes that it essentially aims to exclude the possibility of revising the Constitution parliamentary inviolability.
July. According to the applicable provisions of Article 70 of the Constitution, the deputy can not be detained, arrested, searched, except in cases of flagrant crime, or prosecuted without the consent of parliament after the hearing.
August. The draft law submitted proposed repeal of paragraph (3) of Article 70 of the Constitution and the exclusion of the phrase "and immunities" in the title.
September. Constitutional Court's jurisdiction to resolve the present case is referred to the provisions of Article 135 para. (1) c) of the Constitution, according to which the Constitutional Court decides on initiatives to revise the Constitution.
I. General on amending the Constitution
10. Constitution is the fundamental legal framework in terms of content regulation, but also the supreme legal, as legally, for the organization and functioning of the state and society, it is the source of all legal regulations.
11. Opinion No. 1 of 22 September 2014, the Constitutional Court stated:
"21. Protection of the Constitution of Moldova expresses both within the review provided for in Article 142 of the Constitution and the rigidity of procedures provided for the adoption of the review. "
12. Referring to the issue of constitutional revision, the Decision no. 57 of 3 November 1999 on the interpretation of art. 75, art. 141 and 143 of the Constitution, the Court stated:
"3. In the opinion of the Constitutional Court, the constitutional revision is to change its redrafting repeal certain rules or adding new text. "
13. Regarding protection guarantees of the Moldovan Constitution, in the same Decision no. 57 of 3 November 1999, the Constitutional Court stated that:
"[I] n its quality of writing and systematic establishment of normative supreme law in the legal system, the Constitution is relatively rigid in the sense that it admits the revision, but only for an initiative aimed at revising technical default (141), limits the review (Article 142) and its procedure (Article 143). "

14. In Decision no. 7 of March 4, 2016 on reviewing the constitutionality of some provisions of Law no. 1115-XIV of 5 July 2000 on amending the Constitution of the Republic of Moldova, the Court noted that the constitutional provisions relating to revision of the Constitution shall be determined by the concept, nature and purpose of the Constitution itself. In this respect, any review must not be operated in compliance with the principles of supremacy of the Constitution, its stability, unity of matter and balance values ​​established by the Supreme Law and the task of the Constitutional Court to decide on initiatives to revise the Constitution in the exercise of shared Parliament and the Court in the process of amending the Constitution. There can be no amendment to the Constitution adopted that would affect harmony with the Constitution or the harmony of values ​​enshrined in them. However, the nature of the act legally Constitution supreme and constitutional idea implies that there is neither internal contradictions there may be gaps or the Constitution.
15. Meanwhile, in the judgment, the Court pointed out that under Article 135 para. (1) c) in conjunction with Article 141 para. (2) of the Constitution, after delivery of the notice by the Constitutional Court, are not allowed intervention in the text of the draft law on amending the Constitution and ignoring or overcoming it may serve as grounds for invalidity of such alteration .
16. Therefore, to be constitutional, any revision of the Constitution, regardless of the reasons and the process used must be within the existing constitutional order and follow the procedure of Title VI of the Supreme Law.
II. On the legislative proposal to amend the Constitution 1. The provisions and scope of the project
17. The constitutional draft law was developed to remit the institution of parliamentary immunity guaranteed by the Constitution.
18. According to the authors of the project, excluding parliamentary immunity does not affect the independence of Members. Or, they will continue to enjoy the protection guaranteed by Article 71 of the Constitution ( "Freedom of opinions"), which is absolute and perpetual. Thus, the MP can not be held criminally liable, civil or contravention for their votes or opinions expressed in the mandate implementation.
2. The initiative to revise the Constitution
19. Under Article 141 of the Constitution:
"Revision of the Constitution may be initiated by:
a) of at least 200 000 Moldovan citizens with voting rights [...];
B) of at least one third of MPs;
C) Government. "
20. In this case, the legislative proposal to revise the Constitution shall be submitted for approval to the Constitutional Court by a group of 39 deputies, number exceeding one third of MPs.
21. The right of legislative initiative to revise the Constitution has been exercised in compliance with article 141 para. (1) b) of the Constitution.
March. 22
limits constitutional revision. Regarding the limits of revising Article 142 of the Constitution provides:
"(1) The provisions regarding the sovereignty, independence and unity of the state and those regarding the permanent neutrality of the State may be revised only by their referendum by a majority of voters included in the electoral lists.
(2) No revision may be made, if it implies the rights and freedoms of citizens or their guarantees.
(3) The Constitution shall not be revised during a state of emergency, siege and war. "
23. Text cited conditions governing constitutional review intrinsic initiative [para. (1) and (2) of article 142] and extrinsic its constitutionality [para. (3) 142].
A) The constitutionality of extrinsic (time limits)
24. In terms of constitutionality extrinsic circumstances on constitutional revision, the text of Article 142 para. (3) of the Basic Law, which prohibits revise the Constitution during a state of emergency, siege and war, corroborated by that of Article 63 para. (3) the second sentence of the Constitution, according to which Parliament can not revise the Constitution during the term of office extends until the meeting structure of the new.
25. Also include time limits for its adoption of the initiative to revise the Constitution.

26. In accordance with Article 143 of the Constitution, which governs the amendment of the Constitution, a law on amending the Constitution may be approved with at least 6 months after the initiative was submitted.
27. The Court notes that, when initiating constitutional revision in the present case does not subsist any of the situations mentioned constitutional texts that refer, the extrinsic conditions for the constitutional review initiative.
B) The constitutionality of intrinsic (material limits)
1.1. General
28. To rule on the constitutionality of intrinsic (material limits) requires analysis of proposed changes in relation to the provisions of article 142 para. (1) and paragraph. (2) of the Constitution, to determine whether the scope of the review is the sovereignty, independence and unity of the state, as well as those regarding the permanent neutrality of the state and whether proposed changes have resulted in the suppression of fundamental rights and freedoms of citizens or their guarantees.
29. The Court will examine whether the proposed constitutional amendments do not conflict with other constitutional provisions and if they ensure their applicability as a whole without excluding each other.
1.2.
30 parliamentary inviolability exclusion. The Court notes that the proposed revision of the Constitution shall be repealed (3) of Article 70 which provides that "deputy may not be detained, arrested, searched, except in cases of flagrant crime, or prosecuted without the consent of Parliament, after hearing saddle".
31. The Court recalls that parliamentary immunity, in essence, has two components: freedom of expression and deputy inviolability. International practice is noted that states give priority to protection component related to freedom of expression and guarantees the inviolability deputy varies according to the legal traditions of each state.
32. In this context, the Court notes the Venice Commission's findings with respect to parliamentary inviolability as follows:
"184. The Venice Commission considers that the rules governing parliamentary inviolability are not a necessary part of a modern democracy. In a well-functioning political system, MPs enjoy adequate protection through other mechanisms and do not require a special immunity of its kind.
185. The Venice Commission, however, acknowledges that the rules stipulate inviolability may, in some states, to fulfill the democratic function of protection of Parliament as an institution, and in particular the parliamentary opposition, an undue pressure or harassment by the executive power court or from other political opponents. The rules establish parliamentary inviolability may therefore be justified where other measures to protect members of parliament are not appropriate. But they should always be interpreted and applied in a restrictive manner. Such rules shall be subject to limitations and conditions, and must always be the possibility of lifting immunity, following clear procedures and impartial. "
[Report on the limits and lifting parliamentary immunity (CDL-AD (2014) 011 ), approved in the framework of the 98th plenary meeting from 21 to 22 March 2014]
33. In terms of avoiding impunity deputies supported by the authors of the initiative to revise the Constitution, the Court notes the resolution of the Council of Europe (PACE) No. 1490 (2006) concerning the interpretation of Article 15.a of the General Agreement on Privileges and Immunities of the Council of Europe, PACE Resolution no. 1325 (2003) and PACE Recommendation no. 1602 (2003) on immunities of members of the Parliamentary Assembly, which stipulates that immunities are granted to preserve the integrity of the Assembly and to ensure the independence of its members in exercising their European duties.
34. The Court stresses that parliamentary immunity is justified by the need to protect the parliamentary term as a guarantee of accomplishment constitutional prerogatives, parliament aimed at protecting against repressive measures, arbitration, which could be taken by the political power and jeopardize its independence.

35. However, comparative analysis of constitutional and legislative proposal for revision, the Court observes that the provisions on immunity are found on Presidential. From this perspective, the proposed modification only of art. 70 para. (3) relating to the suppression of inviolability of MPs, appears to be discriminatory in nature generate unequal treatment between persons who acquire legal mandate by universal, equal, direct and secret suffrage.
36. However, in its case the Court held that Parliament is the only authority competent to decide on the establishment, exclusion or limitation of immunity of deputies.
37. In accordance with the foregoing, the Court recalls that a positive decision on the issue of inviolability of deputies in Opinions No. exclusion. 1 of 25 January 2001 and No. 1 of 25 November 2011 on the draft law amending and supplementing Articles 70 and 71 of the Constitution and approval no. 2 of November 10, 2015 on civic initiative to revise the Articles 60, 70, 78 and 89 of the Republican Constitution by referendum.
38. Therefore, the constitutional amendments proposed by the authors of the bill to exclude parliamentary inviolability meet the requirements regarding the sovereignty, independence and unity of the state and are not likely to lead to the suppression of fundamental rights and freedoms of citizens or their guarantees.
39. In light of the above, content analysis of the bill shows that it does not exceed constitutional limits under Article 142 para review. (2) of the Constitution.
For these reasons, pursuant to Articles 135 para. (1) c) and 141 para. (2) of the Constitution, Article 26 para. (1) of the Law on Constitutional Court, Articles 61 para. (1) and 63 lit. a) of the Code of constitutional jurisdiction, the Constitutional Court adopted the following

OPINION:

1. The initiative to revise Article 70 of the Constitution, from a group of 39 MPs, is presented by the person authorized and, in this regard complies with the provisions of Article 141 para. (1) b) of the Constitution.
2. The constitutional draft law amending Article 70 of the Constitution does not go beyond the review required under Article 142 para. (2) of the Constitution and it can be submitted to the Parliament.
March. The constitutional draft law amending Article 70 of the Constitution can be adopted by at least 6 months from the date the initiative to amend the Constitution.
4. This opinion is final, can not be subject to any appeal, shall enter into force upon adoption and shall be published in the Official Gazette of the Republic of Moldova.

CONSTITUTIONAL COURT PRESIDENT Alexandru Tanase