On behalf of the Republic of Moldova, the Constitutional Court, acting in the composition: Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Mr. Talal Igor DOLEA, GEOGRAPHIC LOCATION, Mr. Victor POPA, judges, with the participation of Mr. Theodore Slipper, Registrar, considering the appeal filed on 12 March 2016 and recorded at the same time, examining the appeal referred to in public plenary, taking into account the laws and proceedings, Acting in the Council Chamber following the judgment, a decision: 1. The origin of the case lies the referral to the Supreme Court of Justice, lodged at the Constitutional Court on 12 March 2016, under articles 135 para. (1) (a). (b)) of the Constitution, 25 lit. d) of the law on the Constitutional Court, 38 para. (1) (a). d) and 39 of the code of constitutional jurisdiction for interpretation of articles 116, para. (2) and (4) and 136 para. (1) of the Constitution.
2. The author of the referral asks that articles 116 interpretation para. (2) and (4) and 136 para. (1) of the Constitution, in the light of the following questions: 1. Are in law the judges of the Supreme Court of Justice, Courts of appeal and courts, and judges of the Constitutional Court to exercise its mandate up to the civil service employment by the successors of jurisdiction, where the legal term for the exercise of their mandates expired, and the successors of competence have not been appointed or have not begun to exercise their mandates?
2. What is the competent authority to decide whether to pursue the mandates of the judges until their civil service employment by the successors of competence? "
3. By decision of the Constitutional Court of 23 March 2016, referral has been declared admissible, without prejudeca Fund case.
4. In the process of examination referral, the Constitutional Court of the Republic of Moldova requested the views of the President, the Parliament and the Government.
5. The public tender to the Court in which the judgment has been pronounced the device, was attended by Mr. Valentin Lastaveţchi, head of the Secretariat of the Supreme Court of Justice, Mr. S. Bacay, head of section within the Directorate-General of the Secretariat of the Parliament, and Mr. E. Taha, Deputy Minister of Justice, the Government's representative at the Constitutional Court.
In FACT 6. Judges of the Supreme Court of Justice shall be appointed according to the Parliament, on a proposal from the Superior Council of Magistracy. The judges of the other courts shall be appointed according to the President of the Republic of Moldova, at the proposal of the Supreme Council of Magistracy.
7. common law Judges can exercise their mandate, except as required by law, until reaching the age of 65 years.
8. Judges of the Constitutional Court shall be appointed, the two houses of Parliament, Government and the Superior Council of Magistracy, for a term of 6 years.
PERTINENT LEGISLATION 9. The relevant provisions of the Constitution (republished in d. o., 2016, nr. 69-77) 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 shall be guaranteed. "


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. The judges who supported the competition shall be appointed according to first for a period of 5 years. After expiry of the period of 5 years, the judges will be appointed in Office until reaching the age established in accordance with the law.
[...]
(4) the President, Vice-Presidents and justices of the Supreme Court of justice are appointed by Parliament upon a proposal from the Superior Council of Magistracy. They must have a length in judicial office for at least 10 years. "


Article 136Structura "[Constitutional Court] (1) the Constitutional Court is composed of six judges, appointed for a term of 6 years.
(2) two judges appointed by the Parliament, the Government and two of the Superior Council of Magistracy.
[...]”
10. The relevant provisions of law No. 544 of 20 July 1995 on the status of judges (Official Gazette, 2002, nr. 117-119, art. 946) are as follows: judge on the basis of article 11Numirea "(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. Selected candidates that meet the conditions specified in article 6, shall be appointed in the Office of judge initially for a period of 5 years. After expiry of the period of 5 years, the judges are appointed in Office until reaching the age of 65 years.
(2) the judges of the Supreme Court of justice are appointed by Parliament, on a proposal from the Superior Council of Magistracy.
[...]”
11. The relevant provisions of law No. 789 of 26 March 1996 concerning the Supreme Court of Justice (Official Gazette, 2003, no. 196-199, 764) are as follows: Article 10Durata the mandate of the judges of the Supreme Court of Justice, "the judges of the Supreme Court of justice are appointed in Office until reaching the age-65 years old."
In LAW 12. From the contents of the referral, the Court observes that it raises the question of whether the judge Court of common law and the contentious Constitutional Court whose term has expired may exercise their activity until the appointment of a new judge.
13. Thus, the appeal relates essentially to the principle of preeminenței law, and to ensure efficient and effective justiții.
A. ADMISSIBILITY Of 14. In accordance with its decision of March 23, 2016, the Court noted that, under article 135 paragraph 1. (1) (a). (b)) of the Constitution, article 4 para. (1) (a). b) of the law on the Constitutional Court and to article 4 para. (1) (a). (b) constitutional jurisdiction) of the Code concerning the interpretation of the Constitution, to refer to the competence of the Constitutional Court.
15. Articles 25 lit. d) of the law on the Constitutional Court and 38 para. (1) (a). (d) constitutional jurisdiction) of the Code confers on the Supreme Court of Justice (hereinafter the COURT) the right to have recourse to the Constitutional Court.

16. the Court retains that power was vested in it by article 135 paragraph 1. (1) (a). (b)) of the Constitution requires the genuine meaning and of constitutional norms, which can be done through textual interpretation or functioning, insofar as they can be inferred from the text of the Constitution, taking into account the generic nature of the standard and complex situations in which rule should be applied.
17. the Court noted that the matters raised in the complaint refers to the extension of the term of Office of the judges of the common law and the monarchists, judges have been replaced.
18. the Court has previously interpreted the note that some provisions of article 116 of the Constitution, both separately and in the process on notification constitutionality control laws aimed at the judiciary. However, issues raised by the authors of the referral were not the subject of the interpretation of the Constitutional Court.
19. the Court notes that the referral cannot be rejected as inadmissible and there is no reason to suspend the process, in accordance with the provisions of article 60 of the code of constitutional jurisdiction.
20. Therefore, the Court will interpret the rules invoked in relation to the principle of preeminenței law.
B. FUND CASE 1. The arguments of the author of the referral. The COURT holds that the situations in which appointment is delayed in relation to common law judges and judges monarchists can generate serious dysfunctions in the work of the judiciary and of the Constitutional Court.
22. the need for the continuation of the mandate of The judges ' rationale until the civil service employment by their successors, the COURT makes the analogy with the constitutional regulations which mandate of members of Parliament shall be postponed until the meeting of the new Parliament, and the term of Office of the President Republic of Moldova up to oath-taking by newly-elected President.
23. The COURT also noted that the Government exercises his mandate until the date of validation of the elections for a new Parliament, just meeting the management functions of public affairs until the oath of the members of the new Executive.
24. The COURT points out that the basic law does not provide for a similar rule concerning an extension of the mandates of the judges of the Constitutional Court and the judges of the common law. This would undermine the principles of separation of powers, independence of the judiciary and the right of access to justice.
2. Arguments of the authorities. The President of the Republic of Moldova, in his opinion, believes that to ensure the thorough and legal concept of "tribunal established by law" judicial organisation must be covered by a law that emanates from Parliament. Participation in the settlement of a case of a judge whose term of Office has expired do not fit into the concept mentioned above.
26. In the opinion of the Government, by virtue of the principles of independence and inamovibilității judges, each judge shall exercise their own mandate. No judge may be appointed to complete the term of Office of another judge ceased before the term nor a judge cannot be forced to work in a law court until another judge will be appointed in his place. Such an interpretation would constitute a serious breach of the principle of the independence of the judiciary in general and in particular the independence of the judge. Maintain "artificial" in the position of judge of a person who does not meet the requirements for this feature, on the ground that it has not yet appointed another judge for that Court would severely jeopardize the image of Justice and would create doubts concerning the correctness of the legal proceedings.
27. With reference to the judges, the Government considers monarchists welcomed the continuation of the mandates expired thereof until the appointment of his successors in Office, but this has to be regulated by law, not by constitutional interpretation of the text.
28. The Parliament communicated no opinion.
3. Assessment of the Court 29. The Court observes that the provisions of article 116 of the Constitution, whose interpretation is requested, must require that the judges of the courts may serve in Office until reaching the age established in compliance with the law.
30. Unlike regulation depending on the duration of the work of the judges of the common law, the text of article 136 from the basic law regarding the structure of the Constitutional Court does not establish an age limit up to which judges can turn on, but only the monarchists establishes the duration of the presidential mandate of 6 years.
3.1. General principles 31. One of the conditions is that the value of preeminenței to the right of the State authorities to provide effective protection of individuals ' rights. In this sense, means shall be provided for bona fide dispute resolution the parties cannot resolve by themselves, without any cost or prohibitoriu. Those who generally achieves this aim are the judges, and the way in which it regulates the activity of judges has direct repercussions upon their individual interests and rights.
32. Appointment and dismissal of judges should be based on the principle of legality. In its case-law the Court has stressed that the President will not proceed to the appointment or dismissal of judges without having submitted, in this regard, a proposal from the Superior Council of Magistracy. Also, the appointment of judges must be legal, and authorities involved in the appointment process must respect this deadline precisely (HCC nr. 9 of 27 May 2003).
33. the constituent Legislator has set clear tasks for each authority involved in the appointment and dismissal of judges, in order to exercise certain options.
34. In Judgement No. 23 of 9 November 2011 on the interpretation of article 116 paragraph 1. (4) of the Constitution, the Court held that in determining the relationship between the powers the Constitution organises their cooperation, according to their powers, so as to strike a balance so as to avoid discretionary decisions and abuse. All participants in the process of appointment of judges are subject to constitutional provisions and must comply with the legal norms pertaining to their interaction.

35. With reference to international standards relating to the term of Office of the judges, the Court recalled its recommendation No 22. (2010) 12 of the Committee of Ministers to Member States concerning judges: independence, effectiveness and responsibility (adopted by the Committee of Ministers on 17 November 2010, at the 1098-Rd meeting of the Ministers deputies), which reads: "49. Security of tenure and irremovability are key elements of the independence of judges. Accordingly, the judges should have guaranteed until a mandatory retirement age, where such exists.
50. the conditions for the exercise of the judicial function must be established by law. A permanent appointment may end only in cases of serious breaches of the rules of disciplinary or criminal nature as determined by law, or where the judge may not exercise judicial powers. An early retirement may be possible only at the request of the judge in question or only on medical grounds. "
36. Opinion No. 1 (2001) on standards concerning the independence of the judiciarului of the Consultative Council of European judges, mentioned in paragraph 48, that: "the European practice consists in appointing [the judges] throughout the period up to the age of retirement. This approach is the least problematic from the perspective of independence. "
37. The same reasoning include and in the report of the Venice of independence of the judiciary (CDL-AD (2010) 004) report adopted on the 82-plenary session (Venice, 12-13 March 2010).
38. At the same time, according to the case-law of the European Court of human rights, the organ that ensures access to justice under the conditions of a fair trial must be not only a court established by law, but an independent and impartial tribunal. In assessing these criteria of fair process, the European Court held that the purpose of the requirement "imposed by law" in article 6 of the Convention for the protection of human rights and fundamental freedoms is to ensure that "the judicial organization within a democratic society does not depend on the discretion of the Executive, it is enshrined in law by the Parliament" (Zand v. Austria, application No. 7549/76 The report of 12 October 1978). In this sense, the expression "established by law" in article 6 of the Convention refers not only to the legal basis for the existence of "Court", but also the composition sitting in each question (Posokhov v. Russia, judgment of 4 March 2003, § 39). The establishment clause law a court must satisfy a number of conditions such as the independence of its members and their term of Office, impartiality and procedural guarantees (Coëme and others v. Belgium, judgment of 20 June 2000, § 99). Thus, referring to the term of Office of the judges of the common law, the European Court held in the case of Gurov v. Moldova that it could not be regarded as ' Court established by law "Panel of judges of a Court of appeal judged the cause at national level because there has been no legal grounds for examining the causes of a judge whose term of Office has expired (judgment of 11 July 2006 , § 34).
39. Therefore, in order to comply with the requirements of the European Convention on the exercise of the function of judge after expiry of the period to be determined by law.
3.2. Application of the principles in this question 40. The Court will distinguish the situation of common law judges the situation of judges from monarchists viewpoint the continuation of their mandate, and for this reason distinct problems will put forward by the author of the referral.
3.2.1. With regard to the possibility of the extension of the mandate of the common law judges have been replaced 41. The text of article 116 paragraph 1. (2) of the Constitution expressly lays down that judges shall be appointed to hold office until the age limit established under the law. In this regard, under article 11 of the law on the status of judges, are appointed in Office until reaching the age of 65 years.
42. According to the limits of its powers in finding neconstituționalității on notification constitutionality or of a regulatory action, the Court must take into account all the circumstances of fact and of law of case judgement be deducted. In this respect, the Court must allow the transfer institution of judges to other courts.
43. Thus, paragraph 1 of article 201. (1) of law No. 544 of 20 July 1995 on the status of the judge determined that, where courts cannot function normally because of inability for health reasons of the judges to exercise his powers for a period of 6 months, due to the existence of vacancies, due to the high volume of activity of the Court or from other causes, the President of the Court may apply to the Superior Council of Magistracy limited term transfer of judges from other courts.
44. The circumstances of fact concerning the possibility of transfer of judges from one court to another, until the appointment of a new judge, constitutes a reason for which the Court will distinguish between the judges of the courts and courts of appeal, on the one hand, and judges of the SUPREME COURT of JUSTICE, on the other hand.
45. Under article 116 paragraph 1. (4) of the Constitution, the SUPREME COURT justices shall be appointed according to the Parliament at the proposal of the higher magistrates Council. These judges must have a length of service as a judge for at least 10 years.
46. Having regard to the Statute of the COURT of the Supreme Court, the only court of this degree, the transfer does not affect the judges of the SUPREME COURT. If there is a function for holiday, judge of the SUPREME COURT of JUSTICE, cannot be filled by transfer of a judge from another court. The causes could be taken only by another judge of the COURT or a judge appointed by the new Parliament for this function.
47. In situations in which it would be decided at a holiday function for judges within the courts and appellate courts, resolving the causes with which they have been assigned will not be injured than when there is an insufficient number of judges to other courts, where they could be transferred to other judges.

48. Given the reasons expressed above, the Court does not consider it necessary to extend the expired mandate of the judges of the lower courts.
49. With regard to judges of the SUPREME COURT, the Court must take into account the circumstances of fact cannot transfer other judges from the SUPREME COURT and delayed parliamentary action regarding appointment of judges in certain cases, reality revealed and the author of the referral. In this respect, the Court finds that the net situation different judges of the supreme court are located, in comparison with the other judges of the common law.
50. The role of the SUPREME COURT of JUSTICE of the Supreme Court, pursuant to article 1 para. (2) of law No. 789 of 26 March 1996 concerning the Supreme Court of Justice, by ensuring the correct and uniform application of legislation by all other courts, through the settlement of disputes arising in the context of the application of the laws and by guaranteeing State responsibility towards the citizen and of the citizen towards the State.
51. Any inaction or delayed action of the Parliament in the procedure for appointment of judges of the Supreme Court of Justice is contrary to the principle of loyalty to the constitutional order that threaten one of the fundamental values of the Constitution: the right of preeminence. Conclusion relates and the authorities involved in the procedure of appointment of judges to the lower courts.
52. Consequently, the Court must give a solution which does not affect the value of preeminenței to the right.
53. the Court points out that, in this case, the solution that salvgardează this value implies the absence of any obstacles in the work of the supreme court and therefore a fair character of nealterare processes. Therefore, different procedure for the appointment of judges of the SUPREME COURT determines the possibility of extending the mandate and the holiday function is involved, until their replacement, in order not to create impediments to the efficient operation of such authority.
54. Furthermore, the Court noted that, if the vacation function is involved for several SUPREME COURT judges, their successors, appointed by the Parliament, will deal with the functions in the order they occurred in Croatia.
3.2.2. With regard to the possibility of the extension of the mandate of the Constitutional Court judges have been replaced 55. For the good of work of the State authorities, the role of the constitutional courts is one essential and definitive and constitutes a pillar of support to democracy, guaranteeing equality before the law, human rights and fundamental freedoms.
56. The control of constitutionality means a competence conferred by the Constitutional Court in order to ensure efficient including the separation and balance of powers in a democratic State. In this respect, in its judgment No. 6 of 16 may 2013, the Court stated: "the Constitutional Court eo ipso cannot be inoperable".
57. According to article 136 of the Constitution, the Constitutional Court is composed of a number of six judges, appointed for a term of 6 years. Two judges shall be appointed by the Parliament, the Government and two by the Superior Council of Magistracy.
58. In its jurisprudence, the Court noted that the constituent legislator has established a theoretical equilibrium within the institution of the Constitutional Court, manifested through the appointment of judges by three State authorities, representatives of the three powers: Parliament, as the representative of the Government, the legislature, as a representative of the executive power, and the Superior Council of Magistracy, as guarantor of the independence of the judiciary (see Judgement No. 6 of 16 may 2013 on notification constitutionality control of paragraph 4 of article 23 of law No. 317 of 13 December 1994 regarding the Constitutional Court).
59. the Court retains that setting in Constitution of the procedure for the nomination of judges constitute a guarantee of monarchists independence and impartiality of the exercise with the powers delegated to them under the law. At the same time, the Court notes that this function is one of the senior authorities of the State, its fundamental role deriving from the powers devolved to the Constitutional Court, the sole authority of constitutional jurisdiction in the Republic of Moldova to ensure the supremacy of the Constitution. In accordance with article 137 of the Constitution, during the exercise of the mandate of the judges of the Constitutional Court are irremovable, independent and are subject only to the Constitution.
60. To occupy the Office of constitutional judge, a person must meet certain conditions of Judicature respectively, at least 15 years of service in the legal activity in legal education or in scientific activity and high professional competence.
61. From the analysis of the constitutional and legal provisions it follows that, in exercising its constitutional mandate, the judge exercising judicial powers subject to the rules governing a fair trial. Thus, for the sake of institutional balance, the Court must work in full membership.
62. According to article 20 of the law on the Constitutional Court, in the case of termination of the judge, the President of the Court refer the matter to the competent authority not later than 3 days from the date of vacancy Declaration, urging him to appoint a new judge. The competent authority shall appoint a judge within 15 days from the date of referral to the President of the Constitutional Court.
63. the Court points out that, despite the legal provisions that establish specific deadlines for competent authorities to appoint judges of the monarchists, the practice shows that the judges of the Constitutional Court shall be appointed after a considerable period after the expiry of the mandate of the predecessors.
64. In this context, the court notice that, according to article 23 para. (3) of law No. 317 of 13 December 1994 regarding the Constitutional Court, the plenum of the Constitutional Court quorum is two-thirds of the judges themselves. The phrase "the number of judges of the Court" must be given a value of six, provided for in article 136 para. (1) of the Constitution, given the objective of ensuring the balance of (theoretically) mentioned above.

65. In this regard, the Constitution does not allow for the exercise of constitutional jurisdiction malfunctions due to omission of authorities appoint the judges of the Constitutional Court. Or, delayed the appointment of a new judge after expiry of the term of Office of a judge of the Constitutional Court will jeopardise the work of this authority, which guarantees the supremacy of the Constitution, the realization of the principle of separation of powers and responsibility of the State towards the citizen and of the citizen towards the State. 66. Therefore, the court notice that, in order to avoid obstacles that may interfere with the smooth-functioning of the Constitutional Court, the judge whose term has expired shall exercise its powers until the oath by his successor in Office.
67. In this respect, the Court shall retain and article. 7 para. (3) of law No. 199 of 15 July 2010 on the status of persons with functions of public dignitaries, according to which, where the term regular exercise of the mandate expires or expired, and the successor of jurisdiction does not fall within the mandate, has continued to exercise its mandate up to commanders by the successor of competence.
68. Moreover, the Court considers as relevant provisions article 23 § 3 of the European Convention, which state that "[the European Court] Judges shall remain in Office until they are replaced. […]”. Another benchmark may be the experience of other States, and in particular article 4 para. (4) of the law on the Constitutional Court of the Federal German, according to which the judges of that Court continue to discharge their functions until the appointment of their successors.
69. the court notice that only by applying this mechanism will be taken to avoid injury to the functioning of the Constitutional Court jurisdiction and violating the principle of the independence of the latter.
70. At the same time, the Court indicates that the authorities competent for the appointment of judges monarchists must act in a spirit of loyalty to the constitutional principle of legality, and by appointing new judges in Office within the time limit established by law.
71. the Court points out that until the amendment of the relevant legal framework by the Parliament in the spirit of this ruling will be implemented both the device and its considerations.
For these reasons, pursuant to articles 140 of the Constitution, 26 of the law on the Constitutional Court, 6, 61, 62 lit. b) and 68 of the code of constitutional jurisdiction, the Constitutional Court DECIDES: 1. For the purposes of article 116 paragraph 1. (2) and paragraphs 1 and 2. (4) of the Constitution, Supreme Court judge whose term has expired with the old limit of age exercising their activity until the appointment of a new judge.
2. For the purposes of article 136 para. (1) of the Constitution, Constitutional Court judge whose term has expired shall perform the work until taking the oath by the newly-appointed judge.
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 Alexandru Tanase