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Inadmissibility Of Referral No. 17A/2016 On Notification Constitutionality Control Decree Of The President Of The Republic Of Moldova Nr. 1906-Live From 12 January 2016 (Termination Of Duties Of A Judge)

Original Language Title: de inadmisibilitate a sesizării nr. 17a/2016 privind controlul constituționalității Decretului Președintelui Republicii Moldova nr. 1906-VII din 12 ianuarie 2016 (eliberarea din funcție a unui judecător)

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inadmissibility of referral No. 17A/2016 on notification constitutionality control Decree of the President of the Republic of Moldova nr. 1906-LIVE from 12 January 2016 (termination of duties of a judge)



Published: 07.10.2016 in Official Gazette No. 347-352 art no: 75 date of entry into force: 29.04.2016 Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Mr. Talal Igor DOLEA, GEOGRAPHIC LOCATION, Mr. Victor POPA, judges, with the participation of Mrs. Sadik Munteanu, Registrar, considering the appeal filed on March 15, 2016, recorded at the same time, examining the admissibility of the referral, taking into account the acts and proceedings of the dossier , Acting on 29 April 2016 in Council Pronounce the following decision: in fact 1. The origin of the case lies the appeal lodged with the Constitutional Court on 15 March 2016 by the deputies in Parliament Artur Reșetnicov and Igor Vremea, under articles 135 para. (1) (a). of the Constitution, 25) lit. g) of the law on the Constitutional Court, 38 para. (1) (a). g) and 39 of the code of constitutional jurisdiction, the Decree of the President of constituţionalității for control of the Republic of Moldova nr. 1906-LIVE from 12 January 2016 on the issue of Mr. Ivan Basil as judge of the Court of Justice, Chisinau Center.
A. reasons for referral 2. Reasons for referral, as were exposed by the authors of the referral, can be summarized as follows.
3. In the present case, by way of the No. 989/32 of 9 December 2014, the Superior Council of Magistracy (SCM) has proposed the President ousted the judge Ivan Basil based application for resignation, submitted on 5 December 2014 in accordance with article 25, paragraph 2. (1) (a). the law) of the status of the judge.
4. On March 18, 2010 President has rejected the request of the Superior Council of magistrates regarding the dismissal of the judge on the basis of the request for his resignation, stating that in respect thereof was given a sentence of conviction in connection with the Commission of an offence from recklessness, maintained without modification by the appellate court of Chișinău on 11 March 2015.
5. By decision No. 267/12 of 7 April 2015, the Superior Council of Magistracy (SCM) has repeated the President's proposed termination of duties of judge Basil in demand his resignation.
6. On 3 December, 2010 the President of the Superior Council of magistrates sent a demarche, which called for revision of Judgement No. 989/32 of 9 December 2014, on the grounds that the sentence against Judge Basil became final on November 19, 2015.
7. By decision No. 943/38 of 8 December 2015, the Superior Council of Magistracy (SCM) has rejected the request of the President of the Republic, stating that at the time the application is submitted the resignation of the judge, there was another reason for his release from his Office.
8. On 12 January 2016 President issued Decree No. 1906-VII on the release of Mr. Ivan Basil as judge of the District Court Center, mun. Chisinau, in connection with the final pronouncement of judgment, pursuant to article 25, paragraph 2. (1) (a). g) of the law on the status of the judge.
9. In the circumstances set out above, the authors claim that the Decree of the President of the referral to the Republic of Moldova nr. 1906-LIVE from 12 January 2016 was issued in breach of articles 88 lit. 116 d), para. (2) and para. 123 (1) of the Constitution of the Republic of Moldova.
B. relevant Legislation 10. 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 6 and Separation 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 88Alte powers "Moldovan President meets the following prerogatives: [...]
d) called public officials under the law;
     […]”


Article 116Statutul "[...]
(2) the judges of the courts are called by the President of the Republic of Moldova, at the proposal of the higher magistrates Council in accordance with the law.
[…]” 


Article 123Atribuţiile "(1) the Superior Council of Magistracy ensures the appointment, transfer, promotion, posting and disciplinary measures against judges.
(2) the mode of organisation and functioning of the Superior Council of Magistracy shall be established by organic law. "
11. The relevant provisions of law No. 947-XIII of July 19, 1996 with respect to the Superior Council of Magistracy (republished in the Official Gazette, no. 13, 15-17, art. 65) are as follows: Article 1Consiliul of the judicial self-administration body-"(1) the Superior Council of Magistracy is an independent body, formed for the purpose of organizing and functioning of the judicial system, and is the guarantor of the independence of the judicial authority.
(2) the Superior Council of Magistracy shall exercise judicial self-government. "


Article 4Competenţa the Superior Council of Magistracy "(1) in order to exercise its functions, the Superior Council of Magistracy (SCM) has the following skills regarding career judges: a) make proposals to the President or the Parliament nomination, promotion to a higher court, transfer to a Court of the same level or a lower court, appointing as Chairman or Vice-Chairman of the instance times function of magistrates Presidents, Vice Presidents, and the courts; […]”


Article 20

Promotion to a higher court, the transfer to a Court of the same level or a lower instance, posting, suspension, resignation and dismissal of judges "(1) Issues pertaining to the [...] suspension, resignation and dismissal of judges, are examined by the Superior Council of Magistracy.
[…]
(4) Decisions concerning [...] resignation and ousted from Office, accompanied by curriculum vitae showing work and draft decree or judgment, shall be submitted to the President or, where appropriate, to Parliament by the President of the Superior Council of Magistracy.
[…]
(8) the Superior Council of Magistracy (SCM) has suspended the judge's resignation and the termination payment of monthly allowance for life pursuant to article 26 of the law on the status of the judge. "
12. The relevant provisions of law No. 544 of 20 July 1995 on the status of judges (republished in the Official Gazette, 1998, nr. 26-27, art. 170) are as follows: Article 11Numirea of the judge depending on whether (1) the judges of the courts and judges of the courts of appeal shall be appointed, depending on the number of candidates selected on a contest, by the President of the Republic of Moldova, at the proposal of the Supreme Council of Magistracy. […]
(2) the judges of the Supreme Court of justice are appointed by Parliament, on a proposal from the Superior Council of Magistracy.
(3) the President of the Republic of Moldova can be rejected once the proposed bid by the Superior Council of Magistracy for appointment to the position of judge on the 5 years or until reaching the age and only if some compelling evidence of incompatibility of the candidate with this Office, in violation of law or violation of legal procedures for selection and promotion.
(4) Refusal of appointment or reconfirmation according must be reasoned and shall be made within 30 days from the date stipulated. In the event of circumstances that require further examination, the President of the Republic of Moldova announces the Superior Council of Magistracy about the extension shown by 15 days.
(5) The proposal repeated the Superior Council of magistrates, the President issues a decree on the appointment of judges on 5 years or until reaching age within 30 days from the date stipulated for repeated proposal. "


Article 17Asigurarea independence of judges ' independence of judges is ensured by: [...]
(b) the nomination process), suspension, resignation and release from Office; […]”


Article 25Eliberarea of the judge from Office "(1) the judge is dismissed by the body that appointed him in case of: (a) filing of resignation);
[…]
g) final judgment of conviction; […]
(2) the proposal concerning the issue of the judge from Office shall be submitted by the Superior Council of Magistracy of Moldova's President or, where appropriate, to Parliament.
(3) the procedure for the issue of the judge and appeals the judgment of release shall be established by legislation. […]”


Article 26 the resignation of judge "(1) a resignation of the Honorable judge to his departure if, in the exercise of their public and out of service, it has not committed acts that discredit the justice or compromise the honor and dignity of the judge.
[…]

(6) the judge is considered resigned as long as they comply with the provisions of article 362, 8, keeps the Moldovan citizenship and do not commit the facts that discredit the justice or compromise the honor and dignity of the judge.
(7) where it finds that the judge does not satisfy the conditions laid down resigned from this law, the Superior Council of Magistracy judge's resignation, it stops being entitled to attack the judgment not in court within a period of 10 days from the date of receipt of the copy on the judgment.
[…]”
In the authors ' Arguments AS a. referral to the 13. The motivation of the referral, the authors argue that the release of judges from Office are applicable to regulations governing their appointment.
14. Thus, the authors noted that the proposal of referral to the Superior Council of Magistracy (SCM) release from Office of judges on the basis of the request for resignation can be dismissed by the President of the Republic once, and in case of repeated proposal, has an obligation to issue a decree in strict accordance with the request of the Superior Council of Magistracy.
15. The authors noted that referral, although the higher magistrates ' Council proposed the dismissal of judge Ivan Basil in demand his resignation, the President of the Republic, after rejecting repeated proposals of the CSM, in contravention of the legal term of their examination (30 days), has issued a decree on termination of duties of the judge in connection with the adoption of a final judgment of conviction.
16. For these reasons, authors of referral applies to pursue control of constitutionality of the Decree of the President of the Republic of Moldova nr. 1906-LIVE from 12 January 2016, for the purposes of compliance with the provisions of articles 88 lit. 116 d), para. (2) and para. 123 (1) of the Constitution of the Republic of Moldova.
B. Assessment Of Court 17. Examining the admissibility of the referral, the Court reveals the following.
18. In accordance with paragraph 1 of article 135. (1) (a). the Constitution of) of the constitutionality of the President's decrees of the Republic of Moldova is the responsibility of the Constitutional Court.
19. the Court noted that articles 25 lit. g) of the law on the Constitutional Court and 38 para. (1) (a). g) of the Code empowers the constitutional jurisdiction of Parliament in Parliament with the right to refer the matter to the Constitutional Court.
20. In Judgement No. 10 of 16 April 2010 Court held that administrative individual character issued by the President, Parliament and Government in the exercise of the attributions provided for by legislative or constitutional provisions pertaining to the selection, appointment and dismissal of the functions of public officials representatives of a particular public interest, are subject to the control of constitutionality to the referral of subjects empowered with the right to do in terms of shape, and the adoption procedure.
21. In the present case, the Court shall retain that object on notification constitutionality control is the Decree of the President of the Republic of Moldova nr. 1906-LIVE from 12 January 2016 on the release from Office of a judge, in the image of the right of the President to change the basis for the Superior Council of Magistracy for removal from Office.
22. By examining the Act in question as regards the procedure for adopting, please note the following.
23. In its jurisprudence, the Court noted that the appointment and dismissal of judges and the Presidents of the judicial courts is carried out with the participation of at least two authorities: on the one hand, the Superior Council of Magistracy, and, on the other hand, the President or, where appropriate, to Parliament.
24. the Court noted that, on the basis of the principles governing the independence of the judiciary, to the realization of procedures regarding the appointment, promotion, transfer, resignation, or removal from Office of judge, in order to ensure separation of the cooperation between the branches of State power in accordance with article 6 of the Constitution, the authorities concerned are interrelated.
25. Furthermore, the Court held earlier that the Parliament or the President just validates the decision of the Superior Council of magistrates regarding the termination of duties of the judges, which he can neither censorship nor deny, checking the legality which is the exclusive competence of the courts (HCC No. 21 of July 25, 2013).
26. In this context, the Court indicates that, in the present case, the Decree of the President no. 1906-XII from 12 January 2016 has been issued pursuant to article 13. 25 para. (1) (a). g) of the law on the status of the judge, which requires termination of duties of the judge in relation to the delivery of a final judgment of conviction, although the higher magistrates ' Council has submitted a proposal for the release from Office of judges based on the demand for his resignation, according to art. 25 para. (1) (a). the law) of the status of the judge.
27. speței, From the circumstances the Court notes that, at the time of acceptance of the request for dismissal of judges by the SUPREME COUNCIL of MAGISTRATES and the President of referral to the release of the proposal, there is a final judgment of conviction in respect of the judge.
28. the Court finds that the President's Decree was issued only after judgment sentencing the judge became final.
29. In this context, the Court recalled that the term within which the President is expected to rule on the release from Office of a judge, on a proposal from the Superior Council of Magistracy is restrictive (30 days), so that the President has the constitutional obligation to respect (HCC No. 17 of July 2, 2013). Therefore, the President of the Republic must be expeditiously examine proposals for the Superior Council of Magistracy, since it depends on the functionality of the judicial power.
30. Also note that Court according to the legal framework, the right of the President to reject the request of MSC aimed at excluding the proposal for appointment of judges, and not the function. Please note that court proceedings for release from Office of a judge is a codecision on the two authorities, the MSC and the Moldovan President. For these reasons, the decision of the SUPREME COUNCIL of MAGISTRACY is the primary Act, which underlies the presidential decree. Therefore, the basis function are determined by the Superior Council of magistrates, the President having legal jurisdiction to modify them. Where it considers that the termination of duties of the judge violated the law magistrates, the President has the right to appeal against the decision of the SUPREME COUNCIL of MAGISTRATES in the Court, in compliance with the law.
31. in this case, note that the President of the Court had no right to invoke other grounds in presidential decree of termination of function than that established by SCM.
32. without removing the above, the Court finds that, in this case, the process for issuing the Decree of liberation has been a definitive and irrevocable judgement (the decision of the SUPREME COURT of 28 October 2015) condemning the decision of the judge endorsed by CSM No. 989/32 of 9 December 2014.
33. the Court note that article 25 para. (1) (a). g) of the law on the status of the judge shall determine as of the release of "definitive judgment condemning" without making a distinction between offences committed with intent and the committed from recklessness.
34. Moreover, under art. 26 para. (6) of the law on the status of the judge, the judge is considered resigned as long as you don't commit facts that discredit the justice or compromise the honor and dignity of the judge. Under the terms of the provisions contained in art. 26 of the Act, where the judge resigned is doomed, CSM basis for issuing modifies the (resignation of the Honorable), which draws accordingly and amend presidential decree.
35. Therefore, the court notice that, although the Decree nr. 1906-LIVE from 12 January 2016 on the release from Office of judge Ivan Basil was issued in breach of the adoption process, as stated above, currently the procedural defect is covered by an irrevocable judgment of conviction of the judge. The Court finds that, in this case, the existence of this judgment of conviction would have resulted in the same end of the release process.
36. In the light of the circumstances as set out, the Court considers that an eventual invalidation of the contested Decree would be superfluous, the appeal should be dismissed as inadmissible.
For these reasons, pursuant to article 26 of the law on the Constitutional Court, articles 61 and 64 of the code of constitutional jurisdiction, the Constitutional Court DECIDES: 1. To be declared inadmissible the appeal lodged by deputies in Parliament Artur Reșetnicov and Igor Vremea constituţionalității control Decree of the President of the Republic of Moldova nr. 1906-LIVE from 12 January 2016 on the issue of Mr. Ivan Basil as judge of the Court of Justice, Chisinau Center.
2. this decision is final, cannot be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.