On behalf of the Republic of Moldova, the Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU Mr. Igor DOLEA, Mr. Victor PALMER, Mr. Zadrahimi, judges, with the participation of Mrs. Sadik Munteanu, Registrar, having regard to the complaints lodged on 18 March and 19 may 2016 2016 and registered to the same data, examining the complaints mentioned in open court, having regard to the acts and works dossiers , acting in the Council, following a judgment Pronounced: PROCEDURE 1. The origin of the case lies in the exceptions of unconstitutionality of article 27 of law No. 151 of 30 July 2015 concerning the governmental agent raised by Galina Sahu, Tatiana Vieru and Valeriu Doaga, in file No. 2-1858/16 on the role of the Buiucani, mun. Chişinău, and Constantin Mihail Macar, Suhas, Nicolae Gordila and Tudor Popovici, parts in file No. 2-426/16 on the role of the Court of Botanica, Chisinau municipality. Chişinău.
2. Exceptions to the non-constitutionality have been filed before the Constitutional Court on 18 March 2016 and 2016 May 19 by judge Oksana P within of the Buiucani, mun. Chişinău, respectively, by Judge Nicholas Șova within the Court of Botanica, Chisinau municipality. Chişinău, pursuant to article 135 paragraph 1. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016, and of the regulation on the procedure for examining complaints lodged with the Constitutional Court.
3. Authors of non-constitutionality exception claimed that article 27 of law No. 151 of 30 July 2015 concerning the governmental agent covering the action or recourse to the State, including in respect of judges in connection with violations of the Convention for the protection of human rights and fundamental freedoms established in the procedures in the European Court, comes in contradiction with articles 6 and 116 (1) and (6) of the Constitution, as well as with international laws, the independence of judges.
4. Through the decisions of the Constitutional Court of 23 March 2016 respectively, of 14 June 2016 exceptions of constitutionality were declared admissible, without prejudeca Fund case.
5. Considering object identity, pursuant to article 43 of the code of constitutional jurisdiction, the Court of constitutionality over exceptions in a single file.
6. In the process of examination of the Constitutional Court of constitutionality of exceptions requested the opinion of the President of the Republic of Moldova, the Parliament, the Government, the Supreme Council of Magistracy and of the Prosecutor General's Office.
7. The Court has also sought the opinion of the European Commission for democracy through law of the Council of Europe (hereinafter "Venice Commission"). On 13 June 2016 Commission from Venice to the Constitutional Court its opinion amicus curiae (CDL-AD (2016) 015) relating to the law on governmental agent, adopted at the fifth plenary session 107 (Venice, 10-11 June 2016).
8. public meeting of the Court of constitutionality, the exception was supported by Mr. Tudor Popovici, one of the authors of the exceptions. The Government was represented by Mr. E. Taha, Deputy Minister of Justice. Parliament was represented by Mr. S. Bacay, head of section within the Directorate-General of the Secretariat of the Parliament.
The CIRCUMSTANCES of the MAIN DISPUTES i. circumstances of civil case No. 2-1858/9 16. On 5 February 2016 Ministry of Justice filed against judges Galina Stratulat, Anadela Glavan, Djeta, Tamara Chişca-Gangster Doneva, Tatiana Vieru, Imran Ahmed and Valeriu Doaga claim in court regarding the collection jointly and severally, in order of their setback, on account of the amount of 111755.75 lei for the benefit of the State.
10. In the present case, the Ministry of Justice said the European Court Judgment in the case R vs. Moldova (No. 50073/07), which was adopted on April 15, 2014, pursuant to which the State was obliged to pay for the benefit of the applicant amounts to 4500 mmmmm R euros in non-pecuniary damage and 1440 euros in costs and expenses of representation before the European Court as a result of the finding of infringement of article 8 of the Convention for the protection of human rights and fundamental freedoms ("the Convention").
11. On 16 March 2016 Valeriu Doaga, Galina Sahu and Tatiana Valentin have filed a request for the removal of the exception of unconstitutionality of article 27 of the law on governmental agent.
12. By the conclusion of the March 18, 2016, the Buiucani Court. Chişinău was willing to suspend the process and presentation of non-constitutionality exception of the Constitutional Court for settlement.
II. Circumstances of civil case No. 2-426/16 13. The Ministry of Justice on 3 February 2016 filed against judges Carlos Suhas, Mihail Macar, Nicolae Gordila and Tudor Popovici of the original judgment regarding the collection jointly and severally, in order of their setback, on account of the amount of 65950.60 lei for the benefit of the State.
14. In fact, the Ministry of Justice said the European Court ruling in the case of Sanju vs. Moldova (No. 28178/10), adopted on 9 July 2013, under which the State was obliged to pay the applicant amounts to Svetlana Liz 2000 euros in non-pecuniary damage and 1787.50 euros in costs and expenses of representation before the European Court as a result of the finding of infringement of article 6 § 1 of the Convention. 
15. On 8 April 2016 Carlos, Mihail Macar Suhas, Nicolae Gordila and Tudor Popovici have made reference to the request of the Court, calling for the lifting of the exception of unconstitutionality of article 27 of the law on governmental agent.
16. by the conclusion of 5 may 2016 Court Botanica, Chisinau municipality. Chisinau, was willing to suspend the process and presentation of non-constitutionality exception of the Constitutional Court for settlement.
PERTINENT LEGISLATION 17. The relevant provisions of the Constitution of Moldova, adopted on 29 July 1994 (republished in the Official Gazette, no. 2016, 78, art. 140), are as follows: Article 6Separația and cooperation of powers "in the Republic of the legislative, Executive and judicial powers are separate and cooperate in the exercise of their prerogatives under the Constitution."


Article 116Statutul "(1) the judges of the courts are independent, impartial and irremovable under the law.
[…]
(6) judges may be punished in accordance with the law.
[…]”
18. The relevant provisions of the law on governmental Agent no. 151 of 30 July 2015 (M. A., 2015, no. 224-233, art. 455) are as follows: Article 25 individual Liability (1) the persons whose actions or inactions prompted significant contributed at times violated the Convention violation which has been found by the European Court by a judgement of the amicable settlement of the case imposed on the role of the European Court's formulation of a unilateral statement times are subject to liability criminal, civil, administrative or disciplinary action as required by law.
(2) the guilt and responsibility of persons shall be determined in each individual case by the competent authorities to initiate proceedings or to take decisions on criminal liability, disciplinary, administrative, civil action under the laws and not depend directly on the amount of compensation money paid pursuant to European Court judgement or decision.
(3) the competent authorities shall refer the governmental agent to initiate proceedings or to take decisions on criminal liability, disciplinary, administrative, civil action under the laws and explains how a person's action or inaction led to the finding of an infringement of the provisions of the Convention into a decision of the European Court or imposed the case amicably on the role of the European Court's formulation of a unilateral statement times.


Article 27 Right of recourse "(1) the State shall have the right to regress against persons whose actions or inactions prompted significant contributed at times breaching the provisions of the Convention which was established by a judgement of the amicable settlement of the case imposed on the role of the European Court's formulation of a unilateral statement times.
(2) the amounts set by the decision of the European Court's decision or through amicable settlement agreement of the case on the role of the European Court or through unilateral declaration shall be refunded on the basis of a judgement, guilt set in proportion.
(3) the Ministry of Justice is obliged to institute court action or recourse, if they meet the conditions laid down by law, within a period of 3 years from the date of payment of the amounts laid down by the European Court's decision or judgement or settlement agreement amicably. "
19. The relevant provisions of the civil code of the Republic of Moldova nr. 110 of 6 June 2002 (M. A., 2002, no. 82-86, 661) are as follows: Article 1405Răspunderea of the State for damage caused by the actions of criminal investigation bodies, Prosecutor's Office or of the courts



"(1) damage caused by unlawful conviction physical person, attracting illegal to criminal liability, unlawful application of the preventive measure in the form of pre-emptive arrest or in the form of written declaration not to leave the locality, by applying illegal as administrative penalty of arrest, unpaid community service labor to repair by the State in full, irrespective of the guilt of persons liable of criminal investigation bodies , of the Prosecutor or the courts. […]”


Article 1415Dreptul of recourse against the person who caused the injury "(1) any person who has repaired damage caused by another person shall be entitled to recourse action against the size of compensation paid to the injured person if the law or the contract provides otherwise.
     (2) the State shall, in the case of remedying pursuant to article 1405, has the right of recourse against the person with responsibility in the criminal investigation bodies, Prosecutor's Office or court if their guilt is established by a court sentence.
[…]”
20. The relevant provisions of the Criminal Code of the Republic of Moldova nr. 985-XV of 18 April 2002 (reprinted in the Official Gazette, 2009, nr. 72-74, art. 195) are as follows: Article 307Pronunţarea a judgment, decision, conclusion or judgment is contrary to the law "(1) Pronunciation in good science by a decision of a judge, the judgment, decision or conclusion contrary to the law is punishable by [...]"


Article 308Reţinerea or illegal arrest (1) unlawful Retention in good science by the person carrying out the penal pursuit is punishable by [...]
(2) illegal Arrest in good science by judge is punishable by [...] "


Article 329Neglijenţa in service "(1) the non-fulfilment or improper fulfilment of the public service obligations as a result of a negligent attitude towards them or neconştiincioase, if it has caused large damage to public interests or rights and interests protected by law of natural persons or legal entities, shall be punished by a fine of up to 500 conventional units or by imprisonment of up to 2 years in both cases with (or without) deprivation of the right to occupy certain positions or to exercise a certain activity for a period of 2 to 5 years.
[…]”
21. The relevant provisions of law No. 544 of 20 July 1995 on the status of judges (reprinted in the Official Gazette, 1998, nr. 26-27, art. 170) are as follows: Article 1Judecătorul, spokesman of the judicial power "[...] (3) the judges of the courts are independent, impartial and irremovable and obey only the law.
(4) the judges shall take decisions independently and impartially and without any restrictions, influences, pressures, threats or intervention, direct or indirect, from any authorities, including judicial authorities. Hierarchical organization of jurisdictions cannot affect the independence of the individual judge. "


Article 19Inviolabilitatea of the judge "[...] (3) the judge may not be held liable for his opinion expressed in the administration of Justice and for judgement pronounced if there will be established through the final sentence, his guilt of criminal abuse.
[…]”
22. The relevant provisions of law No. 178 of 25 July 2014 about reprimanding of judges (Official Gazette, no. 2014, 238-246, art. 557) are as follows: "Article 4Abaterile (1) disciplinary Constitutes misconduct: [...]
b) intentionally, in bad faith or repeated negligence legislation contrary to the uniform judicial practice;
[…]
I) violation of the requirements of legislation of the justice process;
[…]”
23. The relevant provisions of the European Convention for the protection of human rights and fundamental freedoms, as amended by the additional protocols (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 39 Settle amicably "1. At any stage of the proceedings, the Court may make available to interested parties in order to settle the case amicably, respecting the human rights provided for in the Convention and its protocols.
2. The procedure described in paragraph 1 shall be confidential.
3. In the case of amicable settlement, the Court shall cancel the cause of pending a decision which shall be confined to a summary of the facts and of the solution adopted.
4. This decision shall be transmitted to the Committee of Ministers, which shall supervise the execution of the terms of the amicable settlement, as they set out in the decision. "


Article 41 fair Satisfaction "If the Court declares that there has been a violation of the Convention or its protocols, and if the internal law of the High Contracting Parties shall not permit the removal of an incomplete than the consequences of such violation, the Court shall grant the injured party, if necessary, a fair satisfaction."
LAW 24. Constitutionality of exceptions, the Court notes that they relate essentially to the submission of the action or recourse by the State in respect of judges, whose shares or inacțiuni have led to violation of the European Convention which was established by a decision of the European Court or imposed the case amicably on the role of the European Court's formulation of a unilateral statement times. 
25. Thus, the exceptions relate to the constitutionality of a set of elements and principles with constitutional value, such as the separation of powers in a State, the independence and impartiality of judges in carrying out the Act of Justice and conditions in which the judge's responsibility which may arise for the decisions taken.
A. ADMISSIBILITY Of 26. By its decisions of 23 March and 14 June 2016 2016, the Court verified the meeting the following conditions for eligibility: (1) subject to the exception comes into the category of acts covered by article 135 paragraph 1. (1) (a). the of the Constitution).
27. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws, in particular the law on governmental agent, is the responsibility of the Constitutional Court.
(1) Exception is raised by one of the parties or its representative, or indicates that it is lifted by the Court ex officio.
28. Being raised by parties in civil Courts on the role of Buiucani and Botany, mun. Chisinau, constitutionality of the exceptions to article 27 of the law on governmental agent are formulated by the subjects entitled with that right, pursuant to article 135 paragraph 1. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016.
(2) the provisions of the contested to be applied to resolving the causes 29. Note that the power of the Court to settle, with the exceptions of unconstitutionality that had been vested in it by article 135 paragraph 1. (1) (a). g) of the Constitution, requires correlation of laws and the Constitution, taking into account the principle of the supremacy of its provisions and to address the relevance of the contested dispute in the courts.
30. the court notice that the object of the exceptions of constitutionality is the provisions of article 27 of the law on governmental agent.
31. the Court notes that the contested provisions relate essentially to State action or recourse against persons whose actions or inactions prompted significant contributed at times breaching the provisions of the Convention which was established by a decision of the European Court or imposed the case amicably on the role of the European Court's formulation of a unilateral statement times. 
32. the Court accepts the arguments of the authors of non-constitutionality exception, according to which the contested provisions are to be applied to the settlement of the case, because under their empire were born to legal relations which continue to have effect and shall be decisive for the settlement of the issue concerning the liability of judges.
(3) there is a previous judgment of the Court has as its object the contested provisions 33. The Court finds that the contested provisions have not previously been the object of constitutionality. 
34. Following its previous case-law, the Court will address the issue of the constitutionality of the impugned provisions, reported the circumstances of disputes, in the light of the constitutional rules cited by the authors of exceptions, taking account both of the principles enshrined in the Constitution and in national law, and the ruling in the European Court.
35. Therefore, the Court considers that the complaints relating to the exception of non-constitutionality of article 27 of the law on governmental agent cannot be rejected as inadmissible and there is no other grounds for interruption of the process, in accordance with the provisions of article 60 of the code of constitutional jurisdiction.

36. Thus, in order to elucidate the issues raised in the complaint, the Court will operate with the provisions of article 116 paragraph 1. (1) and (6) combined with article 6 of the Constitution, with the reasoning set out in case-law to the European Court, and taking account of relevant international laws.
B. the CASE of alleged infringement of the FUND article 116 (1) and (6) combined with article 6 of the Constitution 37. The authors argue that the exception of unconstitutionality of the impugned provisions of regulation violates article 6 of the Constitution, which stipulates that: "in the Republic of the legislative, Executive and judicial powers are separate and cooperate in the exercise of their prerogatives under the Constitution."
38. Similarly, the authors claim that the disputed rule exceptions contrary to the provisions of article 116 paragraph 1. (1) and (6) of the Constitution, according to which: "(1) the judges of the courts are independent, impartial and irremovable under the law.
[…]
(6) judges may be punished in accordance with the law. […]”
1. Arguments of the authors neconsti exceptions-tuționalitate 39. The motivation of non-constitutionality exception, the authors argue that the contested provisions of regulation with respect to the action or recourse to the principle of separation of powers affects State within a State, as well as the independence of the judiciary and critical exponents, as guaranteed by the Constitution.
40. The authors claim that the judge not the exceptions can be held accountable for his or her expressed opinion in the administration of Justice and for judgment if there will be established through the final sentence, his guilt of criminal abuse.
41. Therefore, the authors spell believes that judges cannot be penalized for speaking a certain decisions in the process of the pursuit of Justice, which is complex and constantly evolving, where supranational courts adopt a distinct solution.
2. Arguments 42 authorities. According to the President of the Republic of Moldova, said that the setback represents a guarantee of the quality of Justice and efficiency of Justice, designed to protect the principles and values enshrined by the Constitution. However, in a democratic State, no one shall be relieved of liability in the exercise of a public office, and the judge did not make an exception.
43. At the same time, the President of the Republic of Moldova supports that action or recourse must be conditional on the existence of a final judgment, by which the competent authorities, in accordance with the law, have established the guilt and responsibility of the person committing the acts or omissions that resulted in a permanent state of conviction in the European Court.
44. According to the Government, the purpose of the rule being challenged is the recovery of the damage suffered by the State following the payment of the amounts ordered by the European Court in a landmark ruling, the amounts set out in the Government's unilateral declaration or agreement of amicable of the case on the role of the European Court, as a result of the finding or the recognition of a failure to comply with the provisions of the European Convention. Respectively, to be fulfilled all the conditions laid down by the disputed rule because the Ministry of Justice that punitive action or recourse, and the fact of committing acts or inacțiunilor that gave rise to a breach of the provisions of the European Convention and the payment of amounts in the context of the proceedings in the European Court, and that the guilt of the person, is found only on the Court.
45. The Government also stated that, in order to prove the guilt of the person by the Court and an order directing the payment of sums, it is sufficient for the existence of a ruling or decision of the Court in actions arising or inacțiunile which led to the violation of the rights protected by the Convention and injury to the State budget. 46. In conclusion, the Government argued that the provisions of article 27 of the law on governmental agent are constitutional.
47. In its opinion, Parliament stated that the setback for the furtherance of the action on the basis of the rule being challenged to be fulfilled cumulatively the conditions: (1) that there is injury to the State, (2) to establish the guilt of the person, and (3) to demonstrate the causal of bad faith or gross negligence with which the person has acted and the damage occurred.
48. The Parliament argued that the action or recourse is not an act of intervention in the work and independence of the judiciary, but also a process legally accountable for illegality and negligence committed or permitted.
49. In conclusion, Parliament argued that, since the liability of judges in accordance with article 27 of the law on governmental agent can be trained pursuant to a decision adopted by the Court in which the person will be found guilty, norm runs counter not challenged with the provisions of articles 6 and 116 of the Constitution.
50. In the opinion of the Superior Council of Magistracy shall be stated that the reason for the submission of the action or recourse to serve the sentence final domestic court, adopted under a separate process, which would prove the guilt of the person. In particular, legal liability is necessary to establish the fact of the person acted in bad faith, gross negligence or with intent, which is to be settled only within the framework of a judicial process.
51. With regard to the liability of the judge, who can be trained in accordance with rule challenged, the liability must be indirect, subsidiary and with the guarantees established by law in order to protect the independence of the judge and to avoid subjecting its undue pressures activity. In the case of the occurrence of damage caused by judicial errors, personal liability and direct the judge for săvîârşite in the exercise of its function cannot be committed.
52. In conclusion, the MSC supported the plea of unconstitutionality of article 27 of the law on governmental agent.
53. In his view, the Prosecutor General stated that the right of recourse may be exercised by the State only in situations where the data subjects (judge, Prosecutor, prosecuting officer.) have been permanently convicted for committing a crime. The Prosecutor General's Office stressed the importance of establishing the guilt of the element that is inherent in the legal liability of civil delictual responsibility.
54. The Prosecutor-General has concluded that the contested provisions are not sufficiently clear and foreseeable in the coming assessment of actions or inactions of individuals which led or contributed significantly to the violation of the European Convention, established by the European Court.
3. Assessment of the Court 3.1. General principles concerning the independence of judges in 55. The court notice that constitutional provisions for separation of powers into legislative, Executive and judicial powers (article 6), concerning the independence, impartiality and immovability of judges of courts of law (art. 116 (para. 1)), organic law relating to the establishment of the Organization of the courts, their competence and procedure (art. 116 (para. 4)) define the legal status of judges in the Republic of Moldova and recognises as a justice independent and impartial branch of State power. 56. The judicial power is one of the three fundamental pillars of the modern democratic State, equal in importance. To carry out the duties of the judicial power must be independent of the Executive and legislative power, which implies freedom from any influence that can be exerted.
57. The independence of the judiciary is the key element in terms of guaranteeing human rights and freedoms in accordance with the law and, therefore, is not an end in itself. This independence is derived and in order to ensure a fair trial, which requires courts to be independent condition.
58. in addition, the independence of the judiciary as a whole guarantees the independence of individual judges. It must exist in relation to society in general and with the parties in any dispute over which judges must rule. The independence of judges is not a prerogative or privilege granted in the interests of judges, but it is a guarantee against external pressures in making decisions, being justified by the need to allow judges to carry out their role as guardians of human rights and freedoms. Thus, the independence of judges is a fundamental aspect of the rule of law and the guarantee of a fair trial.
59. the Court noted that the constitutional provisions relating to the status of the judge sets out the same requirements and principles enshrined in international laws and agreements governing the status and rights of judges, their independence guarantees, taking into consideration the importance of the role of Justice in defence of the rule of law.

60. Thus, according to the principles of the Bangalore regarding judicial conduct, "the judge shall exercise the judicial function independently on the basis of its own assessments of the facts and in accordance with the spirit of the law, without external influences, pressures, threats, suggestions and without any mixture, directly or indirectly, regardless of from whom it originated and what reason" (UN resolution 2003/43 of 29 April 2003).
61. In its recommendation CM/Rec (2010) 12 of the Committee of Ministers to Member States concerning judges: independence, effectiveness and the responsibilities of the Committee of Ministers of the Council of Europe has established that "5. The judges must have unrestricted freedom to settle cases impartially in accordance with the law and with its own assessment of the facts. "
62. With reference to the guarantees of a fair trial, the European Court has established that the impartiality of the judge must be assessed both according to a subjective approach, which takes into account the personal beliefs or interests of the judge in a case, and according to an objective test, which determines whether or not the judge offered sufficient guarantees to preclude any doubt motivated from this point of view (case Demicoli v. Malta , nr. 13057/87, judgement of 27 august 1991, p. 40).
63. According to the Venice Commission, in order to guarantee the independence of the judiciary, judges must be protected against any external influences, and induced to this end, they should just functional immunity (report on the independence of the judiciary. Part one: independence of judges). Also in Venice Commission pointed out that "it is essential to ensure the possibility of exercising the functions of the judges without their independence to be compromised for fear of criminal prosecution or civil action initiated by the injured părtea, including States ' authorities ' (CDL-AD (2014) 018, paragraph 37).
64. The fundamental principles of the UNITED NATIONS upon independence of the judiciary (1985) stipulates that "without harming the disciplinary proceedings or any right of appeal or compensation from the State, in accordance with national provisions, the judges should enjoy personal immunity against civil lawsuits once obtaining damages, for improper acts or omissions performed in the exercise of the judicial function".
     65. Recommendation CM/Rec (2010) 12, referred to above, reaffirms these principles in the following provisions: "66. Cannot be engaged civil liability or disciplinary action of a judge for how to interpret the law, appreciation of the facts or evaluation, except in cases of bad faith and serious negligence.
67. Only that Member State, in the event that a refund is paid, can seek to establish the liability of a judge, through legal action.
68. There may be criminal liability of a trained judge for how to interpret the law, appreciation of the facts or evaluation, except in cases of bad faith. [...]
70. The judges shall not be personally liable in the event that their decision is invalidated or modified in an appeal. [...]”
66. In accordance with section 5.2 of the European Charter on the status of Judges, adopted on 10 July 1998, compensation for damage incurred in misappropriated as a result of a decision or behaviour of a judge in the exercise of its function is provided by the State, and the State statutes may provide for the possibility of requesting the judge shall, within certain limits, by a judicial action in case of bumping and inescuzabile without knowing of the judge of the rules under which it carries on its activity.
67. The Universal Status of Judges, adopted by the International Union of judges (Taipei, 1999) provides that civil action against a judge, in the countries in which it is governed, must be exercised in such a way as to ensure conditions that do not affect its work.
68. Moreover, the Advisory Council of European Judges (CCJE) in its opinion No. 3 (2002) argued the introduction into national legislation provisions that allow for the submission of an action or recourse by the State against a judge where his behaviour was inappropriate in criminal proceedings or disciplinary measures, but only in cases of intentional or gross negligence or serious error. Therefore, the CCJE indicated that (1) the correction of judicial errors (whether relating to jurisdiction, substantive or procedural) should be done through a proper system (with or without the permission of the Court); (2) any correction of other errors in the administration of Justice (including, for example, excessive delays) is addressed exclusively to the State, and (3) it is not proper for the judge to be displayed, in respect of the exercise of their legal liability, of any personal information, even as the State claims, except in making an intentional mistake (CCJE Opinion No. 3 (2002), paragraph 76).
69. In its opinion No. 18 (2015) on the position of the judiciary and its relationship with the other powers of the State in a modern democracy, the CCJE has stated that the tasks of interpreting the law, the review and assessment of the facts carried out by a judge to settle the cases, should not give rise to civil liability or disciplinary judge, except in cases of bad faith, intentional fault or negligence demonstrated.
70. According to point 28 of the Declaration from the Brijuni, Croatia, from 14 October 2015 on the principles of independence of the judiciary, adopted by the Conference of Presidents of Supreme Courts from Central and Eastern Europe, the judges shall enjoy immunity in civil cases and to grant compensation for errors or omissions in the exercise of the function.
71. In its opinion of 13 Amicus June 2016 (CDL-AD (2016) 015), the Venice Commission noted that, according to European standards, it is necessary to establish a disciplinary responsibility, criminal or civil right in respect of the judges and that in some European countries (Bulgaria, Germany, Italy, Norway, Spain, and Serbia) is provided for the personal liability of judges, with the establishment of guilt.
72. At the same time, international standards relating to the independence of the judiciary and the impartiality of judges shall determine as being unacceptable to attract personal liability of judges the quality of judgments or solution is adopted. However, the quality of judgments to be adopted depends not only on every judge involved, but also by a number of variables that are outside of the process of administering justice, such as the quality of the legislation, adequate resources allocated to the judiciary, the legal quality of preparation. At the time of adoption of the decision, the judge must not only take into account the relevant legal instruments, but also the concepts and realities of their own nejuridice the context of the dispute, such as, for example, considerations of the ethical, social, or economic. This requires on the part of the judge increased awareness on these considerations in the decision.
73. In this context, CCJE believes that it is desirable for the national parliaments to assess and monitor the impact of the existing laws and being prepared concerning the judicial system and to introduce transitional provisions and procedural measures to ensure that the judges are able to apply them by judicial decision. The legislature must act in such a way that the legislation is clear and easy to apply and comply with the Convention for the protection of human rights and freedoms fundamendale.
74. In its jurisprudence, the Constitutional Court emphasized that the judges shall enjoy immunity in the exercise of Justice, and the cancellation or amendment of the judgment is not a decisive basis for penalizing judges (HCC nr. 12 of 7 June 2011). Furthermore, in its judgment No. 22 of 5 September 2013, the Court noted that the judge's independence does not exclude engaging its responsibility, it being conducted subject to prudenţe caused by the need to guarantee full freedom of judges against all pressures induced.
3.2. Application of the principles set out in this question 75. In the present case, the court notice that the law on governmental agent establishes criminal liability, disciplinary and civil contraventions, persons whose actions or inactions prompted significant contributed at times breaching the provisions of the European Convention, a breach that has been found by the European Court in a landmark ruling or imposed the case amicably on the role of the European Court's formulation of a unilateral statement times by the State (art. 25, para. (1)).

76. Under the law on governmental agent is concerned, the authority shall refer the matter to the competent authorities to initiate proceedings or to take decisions concerning the liability of the persons concerned, whose guilt and responsibility shall be determined in each individual case and do not depend directly on the amount of compensation money paid pursuant to a decision or the decision of the European Court.  
77. Concluding provisions above with respect to the personal liability for violations of the Convention, rule challenged by the art. 27 of the Law establishes the right of recourse of the State against persons whose actions or inacțiuni you have determined significant times contributed to the violation of the European Convention. Also according to the rule laid down by the contested judgment, the amounts or the European Court decision, through amicable settlement agreement of the case on the role of the European Court or through unilateral declaration shall be returned to the State on the basis of a judicial decision in proportion of guilt.
78. the Court noted that the European Court's judgments are handed down in the context of the examination of applications lodged against the State, and shall, depending on the individual circumstances of the case, the violation of the Convention at national level. Taking into account the nature and gravity of the breach, as a rule, the Court shall grant the benefit of an equitable satisfaction of the complainants, the amounts to be paid by the State.
79. In the case of adoption of decisions for cancellation requests from its role in relation to the regulation of settlement, the European Court only amicable settlement of the case shall retain and not acted upon violations of the European Convention put forward by the complainants. If you are making a unilateral declaration by the respondent State, as by a decision, the European Court only accepts the matter in the manner proposed in the Declaration in question when it is satisfied with the recognition of the infringement complainants, the size of the damages to be compensated and, if necessary, remedy the situation at national level in accordance with the provisions of the European Convention.
80. the court notice that in proceedings before the European Court irrelevant that public authority-legislative, Executive, or judicial generated nationally by frauds. However, pursuant to article 41 of the Convention, the State is the one held responsible to repair the damages incurred by the complainants as a result of the infringement of the rights and freedoms guaranteed by the Convention. At the same time, the State is entitled to establish national mechanisms for reimbursement of amounts paid in respect of proceedings in the European Court, which, in turn, must operate in full compliance with international and national standards.
81. The Court has found that, pursuant to the rule being challenged, it is possible the initiation of the action or recourse to State solely on the basis of a judgment or decision by the European Court. This rule does not require the existence of a judicial sentence, adopted within the framework of a separate trial to establish the guilt of the person. Also, the rule does not specify for which contested actions or inacțiuni can be trained to data subjects liability for it, the sole criterion being the existence of injury covered by the State as a result of a breach of the European Convention.
82. At the same time, the Court finds that a mechanism of backsliding in relation to illegal actions of State bodies of criminal prosecution, or of courts is laid down in article 1415 of the civil code. The said norm establishes that the State, in the case of repairing damage caused by certain actions of criminal investigation bodies, Prosecutor's Office or of the courts, has the right of recourse against the person with responsibility within those bodies if their guilt is established by a court sentence. Article 1405 of the civil code establishes the exhaustive action of criminal investigation bodies, Prosecutor's Office or of the courts give rise to liability of the State, namely: unlawful conviction, unlawful attraction to criminal liability, unlawful application of the preventive measure in the form of pre-emptive arrest or in the form of written declaration not to leave the locality, by applying as an illegal administrative arrest penalty or unpaid work for the community.
83. According to the provisions referred to above, the State has a right of recourse against the person with responsibility in the criminal investigation bodies, Prosecutor's Office or court unless there is a court in which it is found that the guilt of the person committing actions expressly laid down by law, which caused the injury repaired by the State.
84. From those listed, note that the disposal of the Court on article 27 of the law on governmental agent, contrary to the provisions of article 1415 of the civil code, provides for the necessity of the finding of guilt by a court sentence which makes possible the initiation of the action or recourse of the State having as a basis the judgment or decision of a Court only in Europe.
85. the Court notes that, in accordance with European standards in this area, the responsibility of judges may not only result from the findings of the European Court stating that a violation of the Convention. In this regard, the Commission, according to Amicus from 13 June 2016, stated that: "41. ECHR establishes the sole responsibility of the defendant State. We cannot support or reasonably assume that the main objective of the common role of the Ecthr in the process of examination of the application of a complainant would be centered on the assessment, quantitative determination and review of nature or degree of guilt (criminal abuse or criminal intent or gross negligence) of each of those judges whose decisions taken at national level have been appealed to the Echr. This issue should be the subject of a separate judicial proceedings at national level.
42. It should be noted that the dispute brought before the Echr does not seek prosecution of judges involved in the matter at national level. Therefore, even in the event of a finding of the Court in favour of the applicant (including the finding of a violation), it would not correspond to the necessary standards in itself to establish the guilt of the person, because it does not provide a procedure for the attraction to account a person or judge for breaches committed. "
86. the case-law of the European idea emerges that the rationale of the existence of a judicial error is not in the criminal or civil liability, disciplinary action of a judge, but the injured person's entitlement to compensation. In particular, the Court attaches importance to whether judicial error committed by the lower courts, that is, the mistakes of the administration of Justice, can be neutralized or corrected in a different way (see Jim c. Romania 21 June 2011, § 32, 40). Thus, the procedures in the European Court does not seek to establish the degree of guilt (criminal abuse or gross negligence) of judges whose decisions taken at national level have led to the subsequent examination of requests by the European Court.
87. With regard to the settlement of a case pending mutual agreement on the role of the European Court, in accordance with article 39 of the Convention, and the formulation of a unilateral declaration, in which the State recognizes a breach of last European Convention in Venice Commission pointed out in his opinion that these Amicus proceedings before the European Court can be initiated from political considerations and not just from legal considerations. Thus, under the conditions laid down in article 27 of the law on governmental agent, judges are becoming vulnerable in the face of external influences (on behalf of the Executive) and may be responsible for reasons unrelated to the exercise of their judicial function.
88. In its jurisprudence, the Court held that the recruitment of an individual responsibility is not enough the existence of an injury-causing miscarriages of rights and fundamental freedoms. It becomes attributable to the judge as a result of his duties in bad faith or gross negligence (HCC nr. 12 of 7 June 2011).
     89. At the same time, the Commission from Venice, Italy, stressed that: "19. […] Oferta constantly watched the European Convention as a living instrument which must be interpreted in light of present circumstances. According to the doctrine concerning the instrument, national courts might encounter difficulties in predicting how the Court will settle the case brought before it. The issue of the disputed legal may submit a novelty or circumstances pertaining to a particular jurisdiction, so that existing case-law of the Echr does not provide general rules of national judge interpretation you follow. Case law of the Ecthr may be more or less stable or may be in development, depending on the issue and the rights involved. "

90. In his opinions, Amicus provided at the request of States, Venice Commission has voted in favour of the amendments to the national legal framework with regard to the liability of judges (compensation for damages), indicating at the same time the need to include some provisions which relate to establish guilt of the judges (whether intentionally or through gross negligence). In this context, the Commission noted that in Venice is plausible as the judge waiting to take account of international jurisprudence, if it is well established, however, that a judge on his own initiative chose not to follow the standards set should not become in itself a basis for his personal liability. Venice Commission pointed out that it is very important that matters pertaining to the personal liability of judges to be observed by national courts and only in accordance with criteria and procedures are clearly laid down by law (opinion on the proposals for amendment of the regulations relating to the judiciary of Serbia (2013), point 22). The Commission also from Venice, Italy, said the finding is possible lack of professionalism of judges only in case of manifestation of an insistent resistance against a consolidated practice, which repeatedly give rise to distinct solutions in cases in respect of which there is already a clear and well established case-law (opinion on the normative acts and disciplinary and evaluation of judges of "the former Yugoslav Republic of Macedonia" (15)).
91. the Court noted that, previously, in its case-law has established that the disciplinary responsibility of judges only on the basis of a ruling by the European Court condemning the State of the Republic of Moldova, without having to prove that the law was violated by the Court intentionally or as a result of serious negligence, constitute an inadmissible interference in the implementation of the principles of independence, impartiality and inamovibilităţii judge (HCC nr. 12 of 7 June 2011).
92. Moreover, in the opinion of the Venice Commission, empowering judges to apply the provisions of the European Convention without the appreciation of individual guilt may have a negative impact on the constitutional obligation of impartiality of judges. This could cause a situation where judges to avoid initiating any action or recourse, consistently construed the law in favour of certain people, even where an objective assessment of the dispute might involve, or even would require a different solution.
93. the Court noted that judicial independence requires providing that judges are protected from the influence of other powers of the State and that each judge should be entitled to freedom in interpretation of the law, in assessing the facts and assessment of the evidence in each individual case. Erroneous decisions therefore must be corrected through appeal and may not result in empowerment of individual judges. As exceptions, can serve only if, in the process of decision-making, the judges acted with malevolence or admitted a serious omission. The same opinion is shared by the Venice Commission in Amicus from 13 June 2016.
94. the Court points out that the judges cannot be compelled to exercise the powers under the threat of a sanction, which may adversely influence the decisions to be taken. However, in the exercise of their duties, judges should have unrestricted freedom to settle cases impartially, in accordance with the legal provisions in force and their own appraisals, unaffected by bad faith. From these assessments, the reasoning of the judge that gave rise to the adoption of a decision on a specific question, the judgment that has annulled or altered, it cannot serve as a basis for determining sanction of judge.
95. the Court noted that the application of normative acts, being the primary task of the judicial courts, where comes in contradiction with the fundamental rights of the person, becomes attributable to the judge only in consequence of his duties with the malevolence when performing the Act of Justice.
96. The same principles come to substantiate and article 19 para. (3) of the law on the status of judges, in accordance with which the judge cannot be held accountable for his or her expressed opinion in the administration of Justice and for judgment if there will be established through the final sentence, his guilt of criminal abuse.
97. the court notice that, pursuant to the provision in question, the judges shall enjoy functional immunity by limiting their liability, the fact of the existence of a criminal abuse and also by the need to establish the guilt of the person by means of a judicial sentence. This limitation of liability of judges provided for in the special law on the status of the judge, is in full compliance with European standards mentioned above.
98. the Court notes that the disposal action or recourse regarding article 27 of the law on governmental agent excedează the general framework on liability of judges in relation to the provisions of article 19 para. (3) of the law on the status of the judge and 1405 1415 and articles of the civil code, in that it allows attracting liability in the absence of the finding of guilt by a court sentence.
99. the court notice that, according to article 116 paragraph 1. (6) of the Constitution, "against judges shall be in accordance with the law". Thus, in view of the constitutional principle of the independence of judges, the liability of judges (including recourse proceedings) in the process of administration of Justice should be set out in clear terms and comprehensively regulated by the legal framework infraconstituțional. In this regard, according to Amicus from 13 June 2016, Venice Commission stated that, where such a special law exists, it shall be presumed that establishes the limits of liability of judges, and its provisions take precedence according to the principle of lex specialis and preclude the application of other provisions or general provisions relating to other categories of persons. However, the responsibility of judges may be governed by different legal instruments, so long as these regulations are not incompatible.
100. the Court notes that the law on the status of judges provides just reprimanding for cancellation or amendment of the judgment, if the judge who pronounced it has violated the law intentionally or as a result of serious negligence (art. 21, para. (2)). According to the law regarding disciplinary liability of judges constitute misconduct implementation intentionally in bad faith, or repeated negligence legislation contrary to the uniform judicial practice or violation of law imperatives of the justice process (article 4). In this regard, since special laws referred to do not contain provisions regarding the liability of judges which may occur as a result of an action or recourse to the State, the Court will issue an address to Parliament with a view to regulating the mechanism of application of regress into an institution framework, taking into account the comprehensive regulatory framework including the fact that recourse action refers to various categories of people.
101. the Court noted that the initiation of the action or recourse pursuant to rule under consideration may cause to adopt arbitrary solutions, with serious damage to the functional immunity of judges, guaranteed by the Constitution and the special law on the status of the judge. The same opinion is shared by the Venice Commission in its opinion of 13 Amicus June 2016.
102 conclusions. In the context of those mentioned, the Court points out that the regress of institution itself is not contrary to constitutional principles, as long as through the mechanism of the material are respected the guarantees inherent in the independence of judges.
103. At the same time, the exercise of the right of recourse of the State under the terms of art. 27 of the law on governmental agent, taking as a basis the European Court judgment only, amicable agreement or unilateral declaration of the Government noted the violation of the European Convention, in the absence of the finding of guilt by a judge sentence passed in separate judicial proceedings, affect the independence of the judicial system as a whole, and is contrary to articles 6 and article 116 paragraph 1. (1) and (6) of the Constitution.
For these reasons, under articles 135 para. (1) (a). a) and g) and 140 of the Constitution, 26 of the law on the Constitutional Court, 6, 61, 62 letter a) and e), and 68 of the code of constitutional jurisdiction, the Constitutional Court DECIDES:



1. recognizes the plea of unconstitutionality in part raised by Galina Sahu, Tatiana Vieru and Valeriu Doaga in file No. 2-1858/16 on the role of the Buiucani, mun. Chişinău, and by Constantine Suhas, Mihail Macar, Nicolae Gordila and Tudor Popovici in file No. 2-426/16 on the role of the Court of Botanica, Chisinau municipality. Chişinău.
2. recognizes the constitutional article 27 of the law on governmental Agent no. 151 of 30 July 2015, in so far as the action or recourse shall be based on a custodial sentence handed down in separate judicial proceedings at national level, by which it appears that the judge or other person has committed or admitted, intentionally or through gross negligence, actions or inacțiuni that gave rise to significant times contributed to the violation of the European Convention for the protection of human rights and fundamental freedoms , which was established by a decision of the European Court, or imposed the case amicably on the role of the European Court's formulation of a unilateral statement times.
3. 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 No. 23 Alexandru Tanase. Chisinau, 25 July 2016.


PCC-1/25 g/57g/Nr.23 Chisinau, July 25, 2016, the Moldovan Parliament ADDRESS on 25 July 2016 Constitutional Court decision No. on notification constitutionality control 23 to article 27 of law No. 151 of 30 July 2015 concerning the governmental agent.
By that judgment, the Court said constitutional article 27 of law No. 151 of 30 July 2015 concerning the governmental agent to the extent that the action or recourse shall be based on a custodial sentence handed down in separate judicial proceedings at national level, by which it appears that the judge or other person has committed or admitted, intentionally or through gross negligence, actions or inacțiuni that gave rise to significant times contributed to the violation of the European Convention for the protection of human rights and fundamental freedoms , which was established by a decision of the European Court, or imposed the case amicably on the role of the European Court's formulation of a unilateral statement times.
In the judgment referred to the Court noted that, pursuant to rule challenged, to initiate action or recourse to the State is enough of a judgment or decision by the European Court, without the need for a finding by a judicial sentence of guilt of the person, including the judge.
The Court pointed out that, in other cases provided by law, for the furtherance of the action or recourse is necessary to a finding of guilt by a court sentence (article 1405 1415 and of the civil code).  Also, in accordance with article 19 para. (3) of the law on the status of the judge, the judge may be held liable for the judgment only if it is established, through the final sentence, his guilt of criminal abuse.
On notification constitutionality control framework, the Court held that the disposal relating to the action or recourse to article 27 of the law on governmental agent excedează the general framework on liability of judges in relation to the legal provisions mentioned above, in that it allows attracting liability in the absence of a well-defined mechanism for the purpose of finding guilt, be sufficient if only the existence of a judgment or decision handed down by the European Court. The same opinion was expressed by the Venice Commission according to Amicus from 13 June 2016.
The Court reiterated that the automatic attraction disciplinary judge only on the basis of a ruling by the European Court condemnation of a State, without demonstrating that the law has been violated intentionally by the judge, constitutes an unacceptable interference in the independence of the judge.
In light of the above, and taking into account the fact that the disputed rule refers to the various categories of persons, including judges, the Court stresses the importance of and the need for regulation in a comprehensive regulatory framework, a mechanism for implementing the regress in the context of Moldova's condemnation by the European Court, taking into account the rationale for granting in the Constitutional Court Judgement No. 23 of 25 July 2016.
Court asks Parliament to examine, in accordance with the provisions of article 281 of the law on the Constitutional Court, this address to be communicated the results of its examination within the time limits prescribed by law.

President Alexandru Tanase