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The Bill For Amending The Constitution Of The Republic Of Moldova (Prosecutorial) (Notification No. 40C / 2016)

Original Language Title: la proiectul de lege pentru modificarea și completarea Constituției Republicii Moldova (instituția procuraturii) (Sesizarea nr. 40c/2016)

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On behalf of the Republic
Constitutional Court, sitting as the composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA,
Mr. Victor POPA, judges
with Ms Eugenia bribes, Registrar,
Considering the complaint filed on April 12, 2016
and registered on the same date
examining the notification mentioned in the council chamber
Considering documents and materials ,
Adopts the following opinion:
1
PROCEDURE. The case originated notification is submitted to the Constitutional Court on 12 April 2016 by the Government, pursuant to Art. 135 par. (1) c) and art. 141 par. (1) c) of the Constitution, art. 4 para. (1) c) of the Law on the Constitutional Court and art. 4 para. (1) c) art. 38 para. (2) art. 63 lit. a) the Constitutional Jurisdiction Code, which requires approval of the bill for amending the Constitution of the Republic of Moldova.
2. The bill for amending the Constitution is set forth in the following wording:
"Article I - Constitution, adopted on 29 July 1994 (Official Gazette of the Republic of Moldova, 1994, no. 1), amended and supplemented as follows:
1. Articles 124 and 125 read as follows:

"Article 124Procuratura

(1) is an independent public prosecutor within the judiciary, contributing to the administration of justice, rights, freedoms and legitimate interests of individuals, society and the state through criminal proceedings and other procedures required by law.
(2) Prosecutor exercises its powers through prosecutors.
(3) The powers, organization and functioning of the Prosecutor shall be determined by law.
Article 125Procurorul


(1) The Prosecutor General is appointed by the President of Moldova on the proposal of the Superior Council of Prosecutors for a term of seven years which may be renewed.
(2) The Attorney General is dismissed by the President of Moldova on the proposal of the Superior Council of Prosecutors under the law, for objective reasons and under a transparent procedure.
(3) The appointment, transfer, promotion and dismissal line prosecutors is carried out by the Prosecutor General at the proposal of the Superior Council of Prosecutors. "
2. Is supplemented by Article 1251 as follows:

"Article 1251Consiliul of prosecutors

"(1) The Superior Council of Prosecutors shall guarantee the independence and impartiality of prosecutors.
(2) The Superior Council of Prosecutors is constituted under the law of the prosecutor prosecutors elected from all levels and representatives of other authorities, public institutions or civil society. The prosecutors within the Superior Council of Prosecutors is an important part.
(3) The Superior Council of Prosecutors ensure the appointment, transfer, promotion and disciplinary action according to prosecutors.
(4) The organization and functioning of the Superior Council of Prosecutors is established by law. "Article II
. - (1) The Prosecutor General based on the entry into force of this law hold office until the time limit for which it was named.
(2) The Government, within three months from the date of publication of this law to the Parliament proposals for harmonizing the legislation with this law. "
March. The constitutional draft law was approved by Government Decision no. 431 of 11 April 2016. The relevant legislation

4. The relevant provisions of the Constitution (republished in the Official Gazette, 2016, no. 78, Article 140) are as follows:

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 72Categorii laws


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

Article 124Atribuţiile and structure [Prosecutor]

(1) prosecutor represents the general interests of society and protects the rule of law and the rights and freedoms of citizens, conducts and carries out criminal charges in the courts under the law.
(2) The public prosecution system comprises Prosecutor General's Office, territorial prosecution and specialized prosecution.

(3) organization, competence and conduct of the work of prosecution are established by law.
Article 125Mandatul prosecutors


(1) The Prosecutor General is appointed by Parliament on a proposal from its President.
(2) Lower level prosecutors are appointed by the Attorney General and are his subordinates.
(3) The mandate of prosecutors is 5 years.
(4) The office of public prosecutor is incompatible with any other public or private office, except for teaching and scientific.
(5) In exercising their powers subject to the law prosecutors.

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:
[...]
c) Government.
(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. "

THE LAW 5. From the content of the notification, the Court notes that it aims at revising the Constitution by amending Articles 124 (Powers and Structure [Prosecutor]) and 125 (Mandate prosecutors) and completion by a new Article 1251, on the Superior Council of Prosecutors.
June. Constitutional Court's jurisdiction to resolve the present case is provided by Article 135 para. (1) c) of the Constitution, according to which the Constitutional Court decides on initiatives to revise the Constitution.
I.
On the legislative proposal in July. The draft law submitted proposed constitutional amendments aimed at institution operation Prosecutor and prosecutors status.
August. Thus, the draft law regulates the institution of the Prosecutor as an autonomous public institution within the judiciary, contributing to the administration of justice, rights, freedoms and legitimate interests of individual, society and state through criminal proceedings and other procedures required by law.
September. Also, according to the draft constitutional law, the Attorney General shall be appointed by the President of Moldova, at the proposal of the Superior Council of Prosecutors, for a term of seven years which may be renewed. Similarly, it will be dismissed by the President of Moldova, at the proposal of the Superior Council of Prosecutors, under the law, for objective reasons and under a transparent procedure.
10. Appointment, transfer, promotion and dismissal line prosecutors is carried out by the Prosecutor General at the proposal of the Superior Council of Prosecutors.
11. At the same time, the bill proposes supplementing the Constitution submitted by provisions concerning the Superior Council of Prosecutors.
12. According to the bill, the Superior Council of Prosecutors is constituted under the law of the prosecutor prosecutors elected from all levels and representatives of other authorities, public institutions or civil society. The Superior Council of Prosecutors Prosecutors are an important part.
13. The Superior Council of Prosecutors ensure the appointment, transfer, promotion and disciplinary action according to prosecutors.
III. Specific rules revision of the Constitution
1. The initiative to revise the Constitution
14. 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. "
15. In this case, the legislative proposal to revise the Constitution shall be submitted for approval to the Constitutional Court by the Government, was approved by Decision no. 431 of 11 April 2016. The right of legislative initiative to revise the Constitution has been exercised in compliance with article 141 para. (1) c) of the Constitution. 2. Limits constitutional revision
16. 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. "
17. 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)
18. In terms of constitutionality extrinsic the circumstances revision of the Constitution, the 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 ) 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.
19. Also include time limits for its adoption of the initiative to revise the Constitution.
20. 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.
21. 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)
22. The Court notes the important role of the Prosecutor in system state authorities and the protection of personal freedom. Prosecutor plays an important role in ensuring the functioning of the criminal justice independently and impartially.
23. Prosecution is a public institution that, in criminal proceedings and other procedures required by law, contribute to the rule of law, protection of rights and legitimate interests of individual, society and state.
24. Recommendations of the Committee of Ministers of the Council of Europe (Rec (2000) 19 on the role of prosecution in the criminal justice system, Rec (2012) 11 on the role of prosecutors outside the criminal justice system) and Recommendation 1604 (2003) of the Parliamentary Assembly of the Council of Europe on the role of prosecutor in a democratic society based on the rule of law recognize the importance of the institution Prosecutor as an authority empowered to oversee, on behalf of and in the public interest, law enforcement, taking into account, on the one hand, the rights of individuals and, on the other hand, the effectiveness of the criminal justice system need.
25. The Court notes that prosecutorial be found in the constitutions of several European countries. Regarding prosecutor place in the legal system, there are systems where prosecutors enjoy complete independence from parliament and government and the prosecutors are subordinated to one of them, still benefiting from a certain degree of independence of action. Regardless of the model adopted by the state prosecutor's office must be protected from interference or undue influence, including influences from the legislature and executive.
26. The Court notes that the bill modifications are essential in terms of how the appointment and dismissal of the Prosecutor General. Accordingly, it is to be appointed and dismissed by the President of Moldova, at the proposal of the Superior Council of Prosecutors.

27. In this regard, the Venice Commission, Report on European standards on the independence of the judiciary, December 2010, Part II, CDL-AD (2010) 040, said:
"34. The manner in which the Attorney General is appointed and revoked plays a very important role in the system designed to ensure the proper functioning of prosecution. In the opinion on the concept of the Constitution of the Hungarian regulator, the Venice Commission stated: "It is important that the method of selection of the general prosecutor to be such as to win public confidence and respect of the judiciary and other legal professions. Thus, in this selection process should be considered professional experience and political non-affiliation. However, due to the importance of prosecutorial ensuring order and efficient operation of the state is expected that the Government will want to have some control in the appointment and not want to give a "blank check" for the selection process by another body, whatever it may be. It is therefore recommended considering the case for creating a commission for appointment, to be composed of people who so enjoy public confidence and that of the Government.
35. Where the Attorney General is not subject to government can not be categorically formulated a unique principle and if he should be appointed by the President or Parliament. This issue is resolved in different states varied. Accepting the principle of cooperation between the state seems a good solution that would allow avoiding unilateral political appointments. In such cases, a consensus should be reached. In any case, the right to appoint the candidate should be clearly defined. Should requested an opinion on the candidates' qualifications relevant from persons, such as representatives of the legal community (including prosecutors) and of civil society. "
28. However, to ensure full independence of the Attorney General, it is proposed exercise for a term of seven years which may be renewed. In this regard, the Venice Commission, the abovementioned ratio, highlighted the following:
"37. It is important that the Attorney General can not be reinvested, at least not by the legislative or executive. There is a potential risk that a prosecutor seeking to reinvestment by a political body to conduct themselves such that to obtain favor of that body or at least be perceived in this regard. A Prosecutor General should be appointed permanently or for a relatively large period of time without being able to be reinvested at the end of the term. During the mandate should not coincide with Parliament's mandate. This would ensure greater stability of the prosecutor and would make him independent of political changes. "
29. Additional changes proposed by the bill proposed constitutional regulation of the Superior Council of Prosecutors, independent body with legal entity, formed to participate in the process of building, operating and securing Prosecutor self-administration system.
30. Referring to the institution of the Superior Council of Prosecutors, the Venice Commission found that:
65. If formed in a balanced way, for example, prosecutors, lawyers and representatives of civil society, and are independent of other state bodies such councils have the advantage of providing expertise in the appointment process and discipline and to protect prosecutors from political influence at least. Depending on the procedure for appointing the members, councils can provide democratic legitimacy for the prosecution system. Where there is, in addition to participating in the procedure for appointing prosecutors councils play an important role in the disciplinary proceedings, including the dismissal of prosecutors.
66. [...] Composition Prosecutors Council should include prosecutors from all levels but also other legal practitioners such as lawyers or law professors.

31. Analyzing the bill that was presented, the Court noted inconsistencies with the Constitution or legal inaccuracies. This bill respects the limits imposed by Article 142 para. (2) of the Constitution, meaning that it implies the rights and freedoms of citizens or their guarantees. The Court points out, the proposed additions aimed at strengthening and enhancing mechanisms to protect fundamental human rights and freedoms.
For these reasons, under Article 135 para. (1) c) of Article 141 para. (2) of the Constitution, Article 26 para. (1) of the Law on the Constitutional Court, Article 61 para. (1) and 63 a) of the Code of constitutional constitutional Court adopts the following

OPINION:

1. The initiative to amend the Constitution, from the Government, is presented by the person authorized and, in this regard complies with the provisions of Article 141 para. (1) c) of the Constitution.
2. The bill for amending the Constitution review does not violate the limits imposed by the constitutional provisions of Article 142 para. (2) and can be submitted to the Parliament.
March. The bill for amending 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