Inadmissibility Of Referral No. 71A/2016 On The Control Constituţionalității Some Provisions Of Law No. 192-Xiv Of 12 November 1998 On The National Commission On Financial Markets And The Judgment Of The Parliament. 43 Of 24 March 2015 Relating To C...

Original Language Title: de inadmisibilitate a sesizării nr. 71a/2016 privind controlul constituţionalității unor prevederi din Legea nr. 192-XIV din 12 noiembrie 1998 privind Comisia Națională a Pieței Financiare și Hotărârea Parlamentului nr. 43 din 24 martie 2015 privind revoc

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    The Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Mr. Victor POPA, judges, with the participation of Mrs. Abdul Fahim, Registrar, considering the appeal filed on 17 June 2016, recorded at the same time, examining the admissibility of the referral, taking into account the laws and proceedings, Acting on 8 July 2016 in the Chamber Council Pronounce the following decision : in fact 1. On 17 June 2016, deputies Angel Aaa, Iurie, Shyam, Gregory John and Victor Roșca addressed the Constitutional Court a complaint, requesting notification constitutionality control. 15 para. (1) (a). the Act No.) 192-XIV of 12 November 1998 on the National Commission on financial markets and the decision of the Parliament. 43 of 24 March 2015 concerning revocation of the Chairman of the Board of Directors of the National Commission of Financial Market.
A. reasons for referral 2. Reasons for referral, as were exposed by the authors of the referral, can be summarized as follows.
3. On 8 July 2011, by decision No. 132, Parliament appointed Mr Artur Gainey as a member and Vice-Chairman of the Board of Directors of the National Commission of Financial Market (NCFM hereinafter) for a period of 5 years.
4. July 12, 2013, by decision No. 178, Parliament appointed Mr Artur Gherman in as Chairman of the Board of Trustees of the CNPF, the same duration of the mandate assigned to July 8, 2011.
5. On 24 March 2015, Parliament passed the judgement No. 43, through which decided the revocation of Mr. Artur Herman of as Chairman of the Board of Trustees and member of the CNPF pursuant to art. 15 para. (1) (a). the Act No.) 192-XIV of 12 November 1998 on the National Commission of Financial Market.
6. In the opinion of the authors article referral 15 para. (1) (a). the Commission Act) National Financial Market run counter to the provisions of articles 1 (1). (3), 4, 7, 8 and 66 lit. (j)) of the Constitution.
7. neconstituționalitatea Invoking art. 15 para. (1) (a). the Commission Act) National financial markets, the authors argue that the judgment of the Parliament. 43 of 24 March 2015 concerning the revocation of Mr. Artur Gherman, adopted pursuant to the same provision, contrary to constitutional norms referred to supra.
B. relevant Legislation 8. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 1Statul "[...]
(3) the Republic of Moldova is a democratic State of law, in which human dignity, rights and freedoms, the open development of human personality, justice and political pluralism represent supreme values and are guaranteed. "


Article 4Drepturile and human freedoms "(1) constitutional provisions for human rights and freedoms shall be interpreted and applied in accordance with the Universal Declaration of human rights, and with other conventions and treaties endorsed by the Republic of Moldova is a party.
(2) If there are inconsistencies between covenants and treaties regarding fundamental human rights to which Moldova is a party and its internal laws, international regulations have priority. "


Article 7Constituția the Supreme Law, "Moldova's Constitution is the Supreme law. No law and no legal act that violates the Constitution has no legal power. "


Article 8Respectarea of international law and international treaties "(1) the Republic of Moldova pledges to respect the Charter of the United Nations and the treaties to which it is a party, to base its relations with other States the unanimously recognized principles and norms of international law.
(2) the entry into force of an international treaty containing provisions contrary to the Constitution shall be preceded by a review of it. "


Article 66Atribuțiile "Parliament has the following duties: [...]
j) chooses and appoints State officials where provided by law;
[…]”
9. The relevant provisions of law No. 192-XIV of 12 November 1998 on the National Commission of Financial Market (republished in the Official Gazette, 2007, nr. 117-126 BIS) are as follows: "Article 11 Board members are appointed by the Parliament for a term of five years, upon the proposal of the President of Parliament, with the consent of the Parliamentary Commission of positive profile. Each Member of the Board of Directors shall be entitled to two consecutive terms. "


Article 15 (1) revocation of Board members is done by Parliament where decorator:) following the exercise of his powers or having committed illegal acts have occurred, the effects of non-banking financial market crisis;
[…].”
10. The relevant provisions of law No. 780-XV of 27 December 2001 on the legislative acts (Official Gazette, 2002, No 36-38, art. 210) are as follows: Article 3Trăsăturile and quality of legislative "[...] (2) Legislative Act must comply with the conditions, accessibility, accuracy and, once entered into force, is enforceable and applicable to all subjects of law. "


Article 4Principiile of the basic objective of legalising (1) Legislative Act must comply with the provisions of international treaties to which Moldova is a party, unanimously recognized principles and norms of international law, including Community law.
[…]
(3) The preparation, adoption and application of the legislative act shall comply with the principles of timeliness, coherence), consistency and balance between competing rules;
b) sequence predictability, stability and legal norms;
c) transparency, publicity and accessibility. "
In the authors ' Arguments AS a. referral 11. The authors of the referral considers that the provisions of art. 15 para. (1) (a). the Commission Act) National financial markets, under which Mr. Artur Gherman was removed from Office as President of the Board of Trustees and a member of the CNPF, are deprived of predictability and precision, which is why they would contravene the law on legislative acts no. 780-XV of 27 December 2001.
12. The authors argue that breaking the Law on the legislative acts in breach of the principles of legality and the default legal certainty, as enshrined in the light of the requirements of the rule of law, as referred to in paragraph 1. (3) of article 1 of the Constitution.

13. According to the argument, put forward by the authors of the referral, the lack of clarity of the provisions in question contrary to the case-law of the European Court of Justice and of human rights, therefore breaching articles 4 and 8 of the Constitution.
14. In addition to those listed, the authors claim that the adoption referral Judgment No. 43 of 24 March 2015, the Parliament has not respected the procedure for revocation, corresponding to art. 11 of the Act on the National Commission of Financial Market, in violation of both articles 7 and 66 lit. (j)) of the Constitution. In addition, the authors assert that the referral during the meeting of 24 March 2015 discussions focused on the situation in the banking sector, and not the nebancar. However, under the law as the basis for revocation of the effects constitute the production crisis non-banking financial market, resulting from the improper exercise of duties or committing other illegal acts.
Appreciation Of The Court 15. Examining the admissibility of the referral, the Court notes the following.
16. Note that the Court, pursuant to article 135 paragraph 1. (1) (a). the article of the Constitution). (1) (a). a) of the law on the Constitutional Court and to article 4 para. (1) (a). the constitutional jurisdiction of the code), the Court enforces, the constitutionality of laws and decisions of the Parliament.
17. the Court notes that articles 25 para. (1) (a). g) of the law on the Constitutional Court and 38 para. (1) (a). g) of the code of constitutional jurisdiction authorizing Deputy in Parliament with the right to refer the matter to the Constitutional Court.
18. the Court reiterates that the power which has been granted under article 135 paragraph 1. (1) (a). the Constitution requires) of the correlation between the rules and the Constitution, challenged in the light of the principle of the supremacy of the latter.
19. the Court shall retain that object on notification constitutionality control is the art. 15 para. (1) (a). the Commission Act) National financial markets and judgment of the Parliament. 43 of 24 March 2015 concerning revocation of the Chairman of the Board of Trustees of the CNPF.
20. With reference to the revocation of the Management Board President of the CNPF, the Court reveals the following.
21. According to article 66 lit. (j)) of the Constitution, it is for Parliament to elect and nominate State officials in cases stipulated by law. In this context, the Court noted that, according to constitutional rule cited supra, it is necessary to understand that revoking of duties of these persons to be carried out by Parliament under the conditions laid down by law.
22. Developing constitutional norms, article 11(2). (2) (a). c) of the law on legislative acts provides that decisions of the Parliament shall be adopted for the selection, appointment, revocation, suspension and dismissal from public office.
23. In its jurisprudence, the Court noted that the laws issued by the Parliament, the President of the Republic of Moldova and the Government relating to officials of a public interest representatives, chosen or named for the duration of the mandate assigned, may be the object of constitutionality only in terms of form and procedure for adopting (HCC No. 10 of 16 April 2010). Therefore, the Court only verifies if the person is released from Office in accordance with legal provisions and whether the adoption act of liberation gathered the required number of votes. The Court does not verify that the grounds on which it relies, that caused termination of duties of Minister for a specific legal basis, this competence belongs to the authorized body with the right of appointment and dismissal.
24. In the present case, the Court notes that on 8 July 2011, by decision of the Parliament. 132, Mr. Artur Gherman was appointed as a member and Vice-Chairman of the Board of the GENERAL PROSECUTOR for a period of five years, and on July 12, 2013, by the decision of the Parliament. 178, it was appointed as Chairman of the Board of Trustees of the CNPF.
25. On 24 March 2015, in accordance with article 9(1). 15 para. (1) (a). the Commission Act) National financial markets, Parliament passed the judgement No. 43, by which it decided to revoke Mr. Artur Herman of as Chairman of the Board of Trustees and member of the CNPF.
26. Article 22, paragraph 2. (3) of law No. 199 from July 16, 2010 on the status of persons with dignity publishes stipulates that in the case of termination before the dignitary called term mandate is occurring through revocation or, if necessary, dismissal of the Minister pursuant to the Act of the authority that appointed him in Office. And according to paragraph 1. (4) of the same article, paragraph 1. (3) does not apply to officials for special law regulating their work provides another procedure for termination before term.
27. In this connection, the Court noted that the grounds for revocation of the members of the Board of Directors of NCFM are laid down in each Member State in article 15 of the law on the National Commission of Financial Market.
28. the Court notes that the Chairman of the Management Board of the GENERAL PROSECUTOR was removed from Office in accordance with article 10. 15 para. (1) (a). a) of law. According to this provision, the revocation of members of the Board of Directors shall be made by the Parliament where "as a result of the exercise of his powers or having committed illegal acts, there have been effects from non-banking financial market crisis."
29. the court notice that, according to art. 11 of the Act, the Board members are appointed by the Parliament for a term of five years, upon the proposal of the President of Parliament, with the consent of the Parliamentary Commission of positive profile.
30. Thus, with regard to the authors ' claims about referral, according to which the dismissal from Office of the Chairman of the Board of Trustees of the CNPF has not been presented to the Parliamentary Commission, please note the following Court.
31. the Court finds that the proposed revocation of duties of the Chairman of the Board of Trustees of the CNPF was presented by the President of the Parliament and was passed with the number of votes necessary for adoption of decisions. In these circumstances, although the lack of profile parliamentary committees ' reports constitutes an omission and a parliamentary procedures are concerned, note that this Court is not in a position to affect the vote in Parliament.
32. At the same time, bearing in mind that the term of Office of the President of the CNPF has expired on 8 July 2016, keep in mind that the effect of the Act of revocation is already consumed.

33. With regard to the alleged non-constitutionality of art. 15 para. (1) (a). the Commission Act) National financial markets, in terms of its quality, in its constant jurisprudence of the Court pointed out that article 23 para. (2) of the Constitution guarantees the right of every person to his or her rights and duties had knowledge thereof, involving the adoption by the legislator of laws accessible, predictable and clear. Thus, to meet the three criteria of quality, the text of the law must be formulated with sufficient precision, so as to enable the person to decide on his behavior and to predict, reasonably, having regard to the circumstances of the case, the consequences of this behaviour.
34. At the same time, taking into account the principle of the applicability of the general laws, the European Court has noted that their wording cannot provide absolute precision. One of the techniques of regulatory standard consists in recourse rather than general categories at the exhaustive list. Thus, numerous laws used by the force of things, more or less vague and whose interpretation and application depend on the practice. No matter how clear would have drawn up a legal norm in any system of law, there is an inescapable element of judicial interpretation, including a rule of criminal law. The need for elucidation of unclear and adapting to changing circumstances will always exist. Although certainty in drafting a law is something desirable, it might result in excessive rigidity, the law must be able to adapt to changes in the situation. Decision-making role conferred on the courts follows the removal of just why there persists on the occasion of the interpretation rules (cause S.W. v. United Kingdom, judgment of 22 November 1995).
35. the Court notes that the contested rule is one of the grounds for revocation of duties, which involves the improper performance of the duties or exercise the Commission of illegal acts that have produced effects of non-banking financial market crisis.
36. the Court noted that the law uses generic terms, however, it may not detail what exactly constitutes an unlawful act in particular situations. Therefore, it is the responsibility of the competent body with the right of appointment and revocation to appraise the legality of the documents drawn up, and the consequences thereof for the non-banking financial market.
37. In conclusion, the Court referred to note that the appeal is unfounded and cannot be accepted for examination.
For these reasons, pursuant to articles 26 and 31 of the law on the Constitutional Court, articles 61 para. (3) and 64 of the code of constitutional jurisdiction and item 28 lit. d) of the regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court DECIDES: 1. To be declared inadmissible the appeal of Deputies Angel Agache, Iurie, Shyam, Gregory John and Victor Roșca on notification constitutionality control article 15 paragraph 1. (1) (a). the Act No.) 192-XIV of 12 November 1998 on the National Commission on financial markets and the decision of the Parliament. 43 of 24 March 2015 concerning revocation of the Chairman of the Board of Directors of the National Commission of Financial Market.
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.

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