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For The Interpretation Of Article 101 Paragraphs 1 And 2. (2) And (3) Of The Constitution (The Prime Minister's Resignation) (Referral No. 26B/2015)

Original Language Title: pentru interpretarea articolului 101 alin. (2) şi (3) din Constituţie(efectele demisiei Prim-ministrului)(Sesizarea nr. 26b/2015)

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    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 POPA, judges, with the participation of Mr. Eugeniu Osipov, Registrar, considering the appeal filed on June 16, 2015 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 appeal lodged with the Constitutional Court on June 16, 2015, under articles 135 para. (1) (a). (b)) of the Constitution, paragraph 1. (1) (a). a) of the law on the Constitutional Court and 38 para. (1) (a). a) of the code of constitutional jurisdiction, by the President of the Republic of Moldova, Mr. Naganur Tadesse, concerning the interpretation of article 101 paragraphs 1 and 2. (2) and (3) of the Constitution.
2. The author of the referral to the constitutional provisions called for interpretation set out in the following aspects: ") in the case of the resignation of the Prime Minister and the entire Government, in accordance with article 5. 101 paragraphs 1 and 2. (3) of the Constitution, which is the entry into force of the Act of resignation and that is Act of resignation in the light of the provisions of article 6 of the law on Government, the resignation of the Prime Minister and the entire Cabinet of the Government shall be submitted to the Parliament? The resignation of the Prime Minister automatically means the resignation of the Government and in the absence of a decision by the Government in this respect?
b) Which is the term in which the Parliament is expected to rule on the request for resignation of the Prime Minister and the entire Cabinet of the Government, taking into account the principle of ensuring the continuity of the exercise of executive power?    c) in the case of approval of the resignation of the Prime Minister and Government, the President has the constitutional obligation to appoint an interim Prime Minister until the formation of the new Government, under art. 101 paragraphs 1 and 2. (2) of the Constitution?    d) situations which could fit into the notion of impossibility to exercise by the Prime Minister, with the exception of death and functional incompatibility of its duties?    e) in the case of resignation of the Prime Minister, pursuant to article. 101 paragraphs 1 and 2. (3) of the Constitution, which is the formation of a new Government? "
3. By decision of the Constitutional Court of 16 June 2015 referral has been declared admissible, without prejudeca Fund case.
4. In the plenary session of the Court the appeal was supported by Mr. Ion Paduraru, Secretary general of the Presidential Apparatus, a representative of the author of the referral. Parliament was represented by Mr. Ion Creanga, head of the General Directorate of the Parliament Secretariat.
In Fact/CONTEXT 5. In June 12, 2015, at a press conference, Prime Minister Chiril Gaburici announced her resignation.
6. At the meeting of 16 June 2015, the Government adopted its judgement No. 370, by which, in accordance with the provisions of article 100, paragraph 1, 101. (3) and 103 of the Constitution of the Republic of Moldova and art. 6 of the law on the Government and the dismissal of the Prime Minister, the Prime Minister and all members of the Government have resigned.
7. According to the governmental decision nr. 370 of 16 June 2015, the resignation of the entire Cabinet of the Government in relation to the Prime Minister's resignation has been submitted to the Parliament "for further consideration".
PERTINENT LEGISLATION 8. The relevant provisions of the Constitution (Official Gazette, no. 1, 1994) are as follows: Article 100Încetarea member function of the Government "as a member of the Government shall be terminated in cases of resignation, revocation, incompatibility or death."


Article 101Prim-Minister "(1) the Prime Minister leads the Government and coordinates the activity of its members, while respecting the powers delegated to them.
(2) in the case of impossibility of the Prime Minister to exercise his powers or upon his death, the President of Moldova shall designate another Government member as interim Prime Minister until the formation of a new Government. In the interim period the impossibility of executing his duties cease, if the Prime Minister resumes work in Government.
(3) In the event of resignation of the Prime Minister, the entire Government resigns. "
9. The relevant provisions of law No. 64-XII from 31 May 1990 on Government (republished in the Official Gazette, 2002, no. 131-132, 1018) are as follows: Article 6Demisia of the Government "the Government has the right to resign of his own volition.
Each Member of the Government has also the right to resign.
Resignation of the Prime Minister leads the Government's resignation in full membership.
The resignation of the Prime Minister and the entire Cabinet of the Government shall be submitted to the Parliament, who stands over them.
Requests the resignation of certain members of the Government shall be submitted to the Prime Minister and it shall inform the President of the Republic of Moldova.
Government resigns in case: 1) Parliament expressed distrust in Government under article 109 and 106/1 of the Constitution;
2) Prime Minister has resigned or died;
3) was elected a new Parliament (the first session). "
LAW 10. From the contents of the referral, the Court observes that it is aimed at essentially the effects of the resignation of the Prime Minister, specifically the time of the occurrence of the resignation of the Prime Minister, the conditions of form and procedure, as well as its effects on the functioning of the entire Government.
11. Thus, the appeal relates to a set of elements and principles with constitutional value interconexe as well as the continuity of public service, excluding the power vacuum, the full functionality of the State institutions, legal certainty and the collective responsibility of the constitutional Government policy.
A. ADMISSIBILITY Of 12. In accordance with its decision of 16 June 2015, 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, the appeal presented to the competence of the Constitutional Court.
13. Articles 25 lit. a) of the law on the Constitutional Court and 38 para. (1) (a). the constitutional jurisdiction code) empowers the President of the Republic of Moldova the right to refer the matter to the Constitutional Court.
14. the court notice that the provisions of article 101 of the Constitution have been previously interpreted by decision No. 18 of 27 April 1999, but by law No. 1115-XIV of 5 July 2000 Editor: this article has been amended.
15. the Court notes that the issues addressed by the author of referral have not been previously subject to court interpretation of constitutional law.
16. the Court considers that the appeal cannot be rejected as inadmissible and there is no other reason to interruption of the process in accordance with the provisions of article 60 of the code of constitutional jurisdiction. Note that the Court has been seised is competent and legally competent to decide on the interpretation of article 101 paragraphs 1 and 2. (2) and (3) of the Constitution. Therefore, the Court will examine further referral to the Fund.
17. 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 rule, the concrete situations that the legislature did not provide them at the time of drafting the rule, subsequent rules (related or even contradictory), complex situations in which the rule must be applied, etc. To elucidate the issues addressed in the referral, the Court will operate, in particular, with the provisions of article 101 of the Constitution in conjunction with articles 98, 99, 100 and 103 of the Constitution, using all methods of legal interpretation, the previous jurisprudence and constitutional principles which functions in full balance to democratic institutions.
B. FUND CASE 1. The arguments of the author of the referral. In the opinion of the author of the referral, the provisions of article 101 paragraphs 1 and 2. (2) and (3) of the Constitution are ambiguous, which creates difficulties in the application thereof.
20. According to the author of the referral, the resignation is a unilateral legal act of will of the holder of the function which is not susceptible of control or approval. About resignation take note, it only produces legal effects without the need for approval. On the other hand, article 6 of the law on the Government stipulates that the resignation of the Prime Minister shall be submitted to the Parliament, who stands over them. Thus, in the author's vision of the referral, a moment of uncertainty with regard to the entry into force of the Act of resignation to the Prime Minister and the entire Government, not being clear whether their Government's resignation take effect at the time of its announcement or at the time of adoption of the decision of the Parliament concerning the resignation of the Government.
21. In the ECE definition inability final tenure as Prime Minister, according to the author of the referral, it refers to any circumstance which is incompatible with the continuation of tenure other than death.
2. Parliament's arguments

22. At the hearing the public Constitutional Court, Parliament's representative mentioned that, in the event of resignation of the Prime Minister, Parliament merely to take note of this.
23. At the same time, the President of the Republic of Moldova cannot oblige the Prime Minister resigning to exercise its powers until the investiture of the new Government. Thus, after the resignation of the Prime Minister, the President shall appoint an interim Prime Minister.
3. Assessment of the Court 3.1. General principles. Essentially, the rules of the Constitution forms a unified whole in a logical and legal liaison. The Constitution devotes a tripartite division of the functions of the State, which is a fundamental principle of the Organization of the State. Constitutional text reflects the image of the State as a structure of organs, including the Government, headed by a Prime Minister. Owing to the spirit of the Constitution, must ensure the functionality of all State institutions.
25. the rules and spirit of the Constitution to ensure the perpetuation of the exercise of power by the State institutions, constituted in accordance with the provisions of the Constitution, and situations, such as interim or provisional extension of the mandate until the entry of the successors function, designed to avoid creating a vacuum of power, must be removed as soon as possible.
26. Articles 98 paragraph 3. (5) and para. 103 (1) of the Constitution establish the duration of the mandate of the General Government, i.e. on the day of the oath by members in front of the President until such time as a new validation of elections for Parliament.
27. Thus, the expiry of the Government may intervene either in a situation typical of the termination, which Parliament has granted the investiture vote through parliamentary elections for the new Parliament, or in the following circumstances, namely atypical 1) withdrawal of confidence granted to the Government by introducing a motion of censure (article 106 of the Constitution) or if the commitment to the responsibility of the Government (article 106/1 of the Constitution) If we have introduced a motion of no confidence and that has been approved;
2) Prime Minister is in a position of being unable to exercise its powers in the case of resignation or in case of death (article 101 of the Constitution).
3.2. Application of the principles set out in this question 3.2.1. About the time of the effects of the resignation of the Prime Minister) the entry into force 28. According to article 100 of the Constitution, as a member of the Executive ceases, among other cases, and in his resignation.
29. the court notice that his resignation is a unilateral legal act of will of the holder, the function act whereby the person through his free consent and on the basis of their own beliefs, shall notify the termination. Resignation is not susceptible of control or approval, it shall take only act.
30. At the same time, the court notice that Prime Minister constitute a high public dignitaries, the latter being trained in a specific legal relationship governed by public law, which cannot be applied in full to the rules inherent in employment relationships, including those relating to the resignation.
31. In case of resignation of the Prime Minister's resignation Act does not involve any wrapping toward the legal nature of the Act of resignation, so that it may be communicated by means of a public notice or by written request addressed to the Parliament. 
32. The Constitution does not provide for a period within which limits the resignation becomes final and no law No. 64/1990 on Government does not stipulate a deadline in this regard.
33. Where it considers it necessary to impose a time-limit within which limits the author cannot return, retreating and resignation, it appears that such a resolution exclusively belongs to the Parliament.
34. In the absence of express legislative regulations, in the case of the Prime Minister's resignation is announced publicly or made in writing to Parliament and becomes irrevocable at the time of submission of advertising/them. We saw her character means that the author no longer return, retreating and resignation.
b) effect the Government 35. In its jurisprudence, the Court noted that, although the vote of confidence shall be granted to the entire list of Government and although this investiture is done in bulk, and not for each Member of the Government in part for the Prime Minister to grant trust involves a special character, since he is the one who as a candidate for this position has asked for Government a vote of confidence and was able to obtain it according to the constitutional provisions. Or, as a last resort, the composition of the Government is an expression of confidence that Parliament attaches to the candidate to the post of Prime Minister (Judgement No. 16 of 24.04.2000 on the interpretation of certain provisions of article 73, 82, 86, 94, 98, 100 and 101 of the Constitution of the Republic of Moldova and case No. 18 of 27.04.1999 concerning the interpretation of certain provisions of article 9 of the Constitution of the Republic of Moldova 101din).
36. For these reasons, the Prime Minister's resignation draws the entire Government resign [art. 101 paragraphs 1 and 2. (3) of the Constitution]. In this respect, the Government's resignation, but operates as necessary to the fulfilment of any other conditions of form or procedure, because it is an automatic and irreversible process, no Parliament the discretion to accept or reject the resignation of the Government whose Prime Minister has resigned.
37. In this regard, the resignation of the Prime Minister and the whole Government comes into force at the time of communication:-in the case of the request by the Parliament asked-in submission;
-in the case of ad-in moment.
38. From this moment on and until the oath of the members of the new Government, Government Finance management functions it performs only public affairs, as defined in articles 101 paragraphs 1 and 2. (3) paragraphs 1 and 2 and 103. (2) of the Constitution, as had been explained by the decision of the Constitutional Court No. 7 of 18 may 2013.
39. Also at the same time begin on the deadline for the formation of the Government, within the meaning of article 85 of the Constitution, as interpreted by the decision No. 30 of October 1, 2013: "48. In the light of articles 101, 103, 106, 107/1 of the Constitution, the need for the formation of a new Government intervenes in the case of: 1) the expiration of the mandate of the Government; 2) speech by vote of no confidence by Parliament; 3) Prime Minister's inability to exercise his powers; 4) the death or resignation of the Prime Minister.
[…]
53. [...] the period of three months provided for in paragraph 1. (1) of article 85, it is a deadline for the dissolution of Parliament, common for both cases, there is a situation of crisis or conflict, namely the impossibility of Government formation or blocking of passing laws.
[…]
64. Thus, the term of 3 months is a general term for the formation of the Government, begin to run from the date of the occurrence of the circumstances that have caused the need for the formation of a new Government, triggering flows regardless of the procedures for the formation of a new Government or/and carrying out the procedures provided for in paragraph 2 of article 85 of the Constitution, includes periods of consultation of the parliamentary factions and other legal procedures, and the deadline for the formation of a new Government ". The Constitution does not provide for a period within the limits to which Parliament must exercise responsibility in taking note of resignation and to initiate the formation of a new Government nor law No. 64/1990 on Government or Parliament's regulation does not provide for a deadline in this regard.
41. Where it considers it necessary to impose a time-limit within which limits the Parliament to exercise this responsibility, it is found that such a resolution rests solely on Parliament as the Supreme representative body of the people and the sole legislative authority of the State, in accordance with article 60 of the Constitution. The Constitutional Court has no jurisdiction to appreciate, through interpretation, on a timescale on this and no to censorship laws of motivation of the settlement.
42. Thus the Court note that Parliament's decision to take note of resignation constitutes an activity concerning the validity of non-dispersible conditionings resignation and its effects. Thus, the decision of the Parliament to take note of the resignation of the Prime Minister and the entire Government, does not influence the Act of resignation, the process of forming a new Government, and the constitutional time limits inherent in this process.
3.2.2. with regard to the exercise of temporary work 43. The Court noted that, in order to ensure the continuity of public services, the Government resigning, including Prime Minister resigning, continues to exercise the functions of the administration of public affairs until the oath of the members of the new Government.
44. Moreover, the activities involved in the function from which it can draw the quit function of demisionarului for a reasonable period of time, that State of affairs, the consent of the parties remains.

45. the court notice that, under the provisions of art. 101 paragraphs 1 and 2. (2) of the Constitution, in case of impossibility of the Prime Minister to exercise the powers, or upon his death, the President of the Republic of Moldova shall designate another Government member as interim Prime Minister pending the formation of a new Government.
46. By decision No. 4 of 22 April 2013, the Court explained the impossibility of the Prime Minister to exercise the powers, acting as follows: ' 95. The Constitution contains the rules which provide for temporary or definitive inability to continue exercising a mandate or a function of the highest rank. In constitutional law, cases of impossibility to exercise the mandate envisages, in the broad sense, the Chief of State, presidential candidates, MPs and the Government.
96. The Constitution does not specify what are the assumptions in which failure can occur.
97. paragraphs 6 and 7 of article 101. (2) it follows from the Constitution that the Supreme law distinguish between two distinct situations of impossibility to exercise the mandate of Prime Minister: (a) temporarily incapable, in which case the Prime Minister can return to work in Government; (b) the impossibility (other than death), a situation in which the Prime Minister dismissed no longer can return to work in Government "until a new Government".
98. Logically, the impossibility of permanent tenure of Prime Minister is generated by any circumstance inconsistent with continuing tenure other than death. "
47. Following its previous jurisprudence, the court notice that "the impossibility of permanent tenure of Prime Minister" within the meaning of article 101 paragraphs 1 and 2. (2) of the Constitution, includes the situation generated by any circumstance that prevents the continuation of tenure other than death, including an express refusal situation to Prime Minister who resigned to pursue the interim until the investiture of the new Executive.
Under article 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 paragraphs 1 and 2 of article 101. (3) of the Constitution: a) the resignation of the Prime Minister and the whole Government comes into force at the time of communication:-in the case of the request by the Parliament asked-in submission;
-in the case of ad-in moment.
b) the resignation of the Prime Minister's resignation for the Government as entailing, without carrying out any other conditions of form or procedure.
c) Parliament takes note of the resignation of the Prime Minister and the entire Government. Parliament's decision to take note of the resignation of the Prime Minister and the entire Government, does not influence the Act of resignation, the process of forming a new Government, and the constitutional time limits inherent in this process.
2. For the purposes of paragraphs 1 and 2 of article 101. (2) of the Constitution: the President has the constitutional obligation) to appoint an interim Prime Minister until the formation of a new Government in case of impossibility of definitively the tenure of Prime Minister resigning.
b permanent Impossibility) tenure of Prime Minister signifies the situation generated by any circumstance that prevents the continuation of tenure other than death, including the express refusal of the Prime Minister resigning to continue exercising the function until the formation of a new Government.
3. For the purposes of article 85 of the Constitution, the deadline for the formation of the Government is three months, including in the event of resignation of the Prime Minister under the terms of article 101 paragraphs 1 and 2. (3) of the Constitution, and shall start to run from the time of submission of his resignation to the Prime Minister, pursuant to paragraph 1 of this device.
4. For the purposes of articles 101 paragraphs 1 and 2. (3) paragraphs 1 and 2 and 103. (2) of the Constitution, from the time of submission of his resignation to the Prime Minister, pursuant to paragraph 1 of this device, the Government meets only functions for the administration of public affairs, up to the oath of the members of the new Government.
5. The Constitutional Court 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.