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 Mr. Marcel Lupu, Registrar, considering the appeal filed on 28 November 2016 and recorded at the same time, examining the appeal referred to in the Council Chamber, having regard to the acts and proceedings of the dossier, has adopted the following opinion PROCEDURE: 1. The origin of the case lies the appeal lodged with the Constitutional Court on 28 November 2016 by the Government of the Republic of Moldova, in accordance with article 11. 135 para. (1) (a). (c)) and art. 141 para. (1) (a). c) of the Constitution of the Republic of Moldova, article. "". (1) (a). c) of the law on the Constitutional Court and the "". (1) (a). c), art. 38 para. (2), art. 63 lit. the constitutional jurisdiction of the code), which requires the approval of the draft law on the amendment of the Constitution of the Republic of Moldova.
2. Draft law on modification of the Constitution reads as follows: "Article I-the Constitution of Moldova, adopted on 29 July 1994 (republished in the Official Gazette of the Republic of Moldova, by 2016. 78, art. 139) is amended as follows: 1. Article 135 (1) g), the words "Supreme Court" shall be replaced with the words "the courts".
2. Article 136: under paragraph (1), the words "6" shall be replaced with judges ' 7 judges, "and the text" 6 years "shall be replaced with the words ' 9-year-old, who cannot be renewed";
(2) shall read as follows: "(2) the judges shall be appointed by the Parliament, two-by the Government, two-by the Superior Council of Magistracy, and a judge is appointed by the President of the Republic of Moldova."
Article II. -The term of Office of judges of the Constitutional Court in the exercise of the function from the date of entry into force of this Act shall be extended by three years. "
3. The draft Constitutional Bill was approved by Government decision No. 1265 21 November 2016.
PERTINENT LEGISLATION 4. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 1 the State of the Republic of Moldova "[...]
(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 7Constituţia, "Constitution Supreme Law of the Republic of Moldova is the Supreme law. No law and no legal act that violates the Constitution has no legal power. "


Article 72Categorii of the law "(1) Parliament shall adopt constitutional laws, organic laws and ordinary laws.
(2) constitutional laws are aimed at revising the Constitution.
[...]”


Article 135Atribuţiile of the Constitutional Court "(1) the Constitutional Court: [...]
c) to pronounce on initiatives aimed at revising the Constitution;
[...]
solves exceptional cases) of unconstitutionality of the judicial acts of the Supreme Court of Justice;
[...]”


Article 136Structura "[Constitutional Court] (1) the Constitutional Court is composed of six judges, appointed for a term of 6 years.
(2) two judges shall be appointed by the Parliament, the Government and two of the Superior Council of the judiciary. "


Article 141Iniţiativa revision "(1) revision of the Constitution may be initiated by: [...]
(c)).
(2) constitutional bills will be presented to Parliament only together with the opinion of the Constitutional Court, adopted with a vote of at least four judges. "


Article 142Limitele revision "(1) the provisions concerning the character of the sovereign, independent State and the unit, as well as those relating to the permanent neutrality of the State may be revised only with the approval by referendum, the majority of citizens registered in the electoral roll.
(2) no revision shall be made, if it results in the Suppression of the fundamental rights and freedoms of citizens or of their guarantees.
(3) the Constitution cannot be revised during the State of emergency, martial law and war. "


Article 143Legea concerning the amendment of the Constitution "(1) Parliament is entitled to enact a law on amendments to the Constitution after at least 6 months from the date on which the appropriate initiative. The law shall be adopted by a two-thirds vote of the members.
(2) If, at the presentation of the initiative with regard to the amendment of the Constitution, the Parliament failed to adopt for a year the corresponding constitutional law, the proposal shall be deemed null and void. "
In LAW 5. From the contents of the referral, the Court observes that it is aimed at revising the Constitution, by amending articles 135 (the powers of the Constitutional Court) and 136 (structure of the Constitutional Court).
6. The competence of the Constitutional Court to settle this question is provided by the provisions of paragraph 1 of article 135. (1) (a). c) of the Constitution, according to which the Constitutional Court to pronounce on initiatives to revise the Constitution.
I. with regard to the legislative proposal 7. Through the Bill tabled proposing constitutional amendments regarding the operation: (1) the powers of the Constitutional Court in part settlement of non-constitutionality exception; (2) the structure of the Constitutional Court and judges ' term of monarchists.
8. Thus, the draft law regulates the right of courts of all levels to have recourse to the Constitutional Court to resolve exceptions of constitutionality. The proposal is based on the jurisprudence of the Constitutional Court (Judgement No. 2 of February 9, 2016), which noted that the provisions of subparagraph (a). g) of paragraph 1. (1) of article 1. 135 of the Constitution cannot be interpreted in the sense of restricting the right of other ordinary court judgments to seize the Court of constitutional jurisdiction.
9. Also according to the draft law, the number of judges of constitutional monarchists to be changed from 6 to 7, the seventh judge appointed by the President of the Republic of Moldova.
10. With reference to the term of Office of the judges, the appointment of judges for a single term of nine years.
11. Similarly, according to the final provisions of the draft, the term of Office of judges of the Constitutional Court (appointed for a term of 6 years) in the exercise of the function from the date of entry into force of this Act shall be extended by three years.

II. Specific rules for revision of the Constitution 1. The initiative to revise the Constitution 12. According to article 141 of the Constitution: "the revision of the Constitution may be initiated by: a) a number of at least 200 000 Moldovan citizens with the right to vote [...];
b) a number of at least one third of the members of Parliament;
c) Government. "
13. in this question, the legislative proposal to revise the Constitution is submitted to the Constitutional Court for an opinion by the Government, being approved by Judgment No. 1265 21 November 2016. Therefore, the right of legislative initiative concerning the revision of the Constitution has been exercised with due regard for the provisions of article 141 para. (1) (a). c) of the Constitution.
2. the revision of the Constitution Limits 14. With regard to the revision of limits, article 142 of the Constitution stipulates the following: "(1) the provisions concerning the character of the sovereign, independent State and the unit, as well as those relating to the permanent neutrality of the State may be revised only with the approval by referendum, the majority of citizens registered in the electoral roll.
(2) no revision shall be made, if it results in the Suppression of the fundamental rights and freedoms of citizens or of their guarantees.
(3) the Constitution cannot be revised during the State of emergency, martial law and war. "
15. The text of the cited conditions regulate the constitutionality review initiative ([para. 1) and (2) of article 142] and extrinsic to its constitutionality [para. ( 3) article 142].
Constitutionality of extrinsic) (time limits) 16. The constitutionality of extrinsic circumstances, with regard to the revision of the Constitution, paragraph 1 the text of article 142. (3) of the basic law, which prohibits the Constitution revision during the State of emergency, martial law and war, the provision of article 63 para. (3) second sentence of the Constitution, according to which Parliament cannot revise the Constitution during the term of Office shall be postponed until the meeting of the new Cabinet.
17. in addition, the term temporal boundaries include adopting the initiative to revise the Constitution.
18. In accordance with article 143 of the Constitution governing amendment of the Constitution, the law on amendments to the Constitution can be adopted after at least 6 months from the date on which the appropriate initiative.
19. the Court finds that, at the time of the initiation of the revision of the Constitution in this question, it appears that not any of the situations referred to in the constitutional texts, being fulfilled the conditions of the constitutionality of the initiative review extrinsic.
b) the constitutionality of the intrinsic (limits) 1.1. General considerations 20. Pronouncement regarding the constitutionality of the intrinsic (limits) requires analysis of proposed changes by reference to the provisions of article 141 para. (1) and paragraphs 1 and 2. (2) of the Constitution, in order to determine whether the object of the review is independent and sovereign nature, unitary State, as well as those relating to the permanent neutrality of the State, and whether the proposed changes result in the Suppression of the fundamental rights and freedoms of citizens or of their guarantees.
21. Moreover, the Court will consider whether the proposed constitutional amendments do not contravene other provisions constitutional and whether they will ensure their enforceability in whole without recourse.
22. In this regard, in its judgement No. 7 on 4 March 2016, concerning constitutionality of some provisions of the law. 1115-XIV of 5 July 2000 on the modification and completion of the Constitution of the Republic of Moldova, the Court mentioned that the constitutional provisions relating to the revision of the Constitution, is determined by the nature and purpose of the concept of the Constitution itself. In this sense, any revision may be made only in compliance with the principles of the supremacy of the Constitution, its stability, unity of matter and equilibrium values enshrined by the Supreme Law, and abolition of the Constitutional Court to rule in terms of initiatives to revise the Constitution in the context of shared competence of the Parliament and by the Court in the process of amending the Constitution. There can be no change to the adopted Constitution, which would affect the harmony of the Constitution or the harmony of values enshrined by them. However, the nature of the Constitution of the Supreme legal force and constitutionality idea implies that there can be no gaps or contradictions of the Constitution.
1.2. With reference to the responsibility of the Constitutional Court to resolve the exceptions of constitutionality. In order to ensure respect for fundamental rights and freedoms guaranteed by the Constitution in the process of the settlement of disputes by the courts of common law, constituent legislator, in article 135 paragraph 1. (1) (a). g) of the Constitution stated that the Constitutional Court resolved the cases of unconstitutionality windfall.
24. The exception of constitutionality means a procedural action, through which the Constitutional Court is seised on the mismatch with the provisions of the applicable legal provisions in case the court deduced.
25. The prerogative to resolve exceptions with unconstitutionality, which was vested in the Constitutional Court 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.
26. The rationale for the imposition of this control is based on the Constitutional Court's intervention and censorship has been in the process of applying to the Court of ordinary rules respecting which there is uncertainty of the constitutionalism.
27. the Court noted that at present, according to 135 para. (1) (a). g) of the Constitution, the Constitutional Court "resolves the exceptional cases of unconstitutionality of the judicial acts of the Supreme Court of Justice".
28. According to the draft Bill, it is proposed to substitute the words "Supreme Court" "courts".

29. In this regard, in its judgement No. 2 of 9 February 2016 for interpretation of article 135 paragraph 1. (1) letter a) and g) of the Constitution of the Republic of Moldova, the Court found that the appeal concerning the constitutionality of rules to be applied to the settlement of a case shall be submitted directly to the Constitutional Court by both the Supreme Court of Justice, and the Courts of appeal and courts of law.
30. Owing to their non-constitutionality exception essence of the institution, in its judgement No. 2 of 9 February 2016, the Court noted that, while the right to raise the exception of constitutionality belongs to judges within the courts of all levels, as well as considering the formal character of the role of the Supreme Court of Justice and its lack of jurisdiction to decide upon the constitutionality of exceptions raised hierarchically inferior courts, the provisions of subparagraph g) of paragraph 1. (1) article 135 of the Constitution cannot be interpreted in the sense of restricting the right of other ordinary court judgments to seize the Court of constitutional jurisdiction.
31. Furthermore, the Court noted that, since the adoption of the Constitution, in article 135 paragraph 1. (1) (a). g) was used the phrase "solves exceptional cases of unconstitutionality," but currently is operating with the universally accepted notion of "plea of non-constitutionality". Thus, for the purposes of this redacționale text adjustment, since the adoption of the draft constitutional law by the Parliament, "solves exceptional cases of unconstitutionality" from paragraph 1 of article 135. (1) (a). g) of the Constitution are to be substituted with the words "resolve exceptions of unconstitutionality." The Court emphasises that these adjustments do not involve modification of the redacționale concept of that institution.
1.3. With reference to the Constitutional Court structure 32. In its case law the Court pointed out that, under the proper organisation of the State authority, the role of the constitutional courts is one essential and defining, representing a true pillar of support of the State and democracy, guaranteeing equality before the law, fundamental freedoms and human rights.
33. According to the current provisions of art. 136 of the Constitution, the Constitutional Court is composed of 6 judges. Two judges shall be appointed by the Parliament, the Government and two of the Superior Council of Magistracy.
34. The Constitutional Court has noted that the procedure for the nomination of judges "is likely monarchists to ensure a composition more representative and democratic alike, as it expresses the Government's options from all three branches of Government: legislative, Executive, and judicial. Separation of powers confer significant safeguards for the impartiality and independence of the judges of the Constitutional Court institutional "(Judgement No. 6/2013).
35. At the same time, according to the draft of the constitutional law, the Constitutional Court is to be composed of seven judges, the seventh judge appointed by the President of the Republic of Moldova.
36. In this respect, the Court noted that, in accordance with best practices, the number of judges monarchists to be odd for the purpose of exclusion of blockages in the decision-making process, i.e. to avoid the situation of a tied vote.
37. With reference to the establishment of the mandate for a period of 9 years without the possibility of being renewed, note that this Court of a constitutional amendment aims at guaranteeing the independence of judges in the constitutional mandate. Thus, in its jurisprudence, the Court noted that judges should have unrestricted freedom to address the causes of their convictions, impartially and according to their own way of interpreting the facts and in accordance with the legal provisions in force.
38. As regards the term of Office is renewed, and judges of the Constitutional Court, the Venice Commission opinion on the structure of the Constitutional Court (CDL-STD (1997) 020) pointed out: "2.6. The judge's term of Office, in combination with the constitutional aspect concerning the re-election of judge, it is very important to the structure of the Court. These criteria may affect such aspects such as efficiency, possibility of political changes within the Court, the judges ' independence and institutional stability. […]”
4.4. The possibility of renewed can greatly undermine the independence of the judge. To avoid this risk, may be recommended option of a longer term of mandate or appointment until reaching the age of retirement. [...]”.
39. At the same time, the Court finds that, according to the draft law, the term of Office of judges of the Constitutional Court in the exercise of the function from the date of entry into force of this law shall be extended, by agreement with them, with 3 years. The Court points out that the judges who were appointed function for a term of 6 years. Thus, if the judge later he continued his judicial activity, the term of Office of 6 years, for which he was appointed shall be deemed to be fully exercised.
1.4. conclusions 40. Analyzing the Bill that has been presented, the Court not noted discrepancies with the Constitution or legal inaccuracies. This Bill is in compliance with the limits imposed by paragraph 1 of article 142. (2) of the Constitution, in the sense that it does not result in the Suppression of the fundamental rights and freedoms of citizens or of their guarantees. The Court points out that the proposed additions have the objective of strengthening the work of the Constitutional Court, as the sole authority of constitutional jurisdiction in the Republic of Moldova.
41. At the same time, the Court noted that, for the purposes of paragraph 1 of article 135. (1) (a). c) in conjunction with article 141 para. (2) of the Constitution, after the delivery of the opinion of the Constitutional Court, neither the interventions in the text of the draft law on revision of the Constitution.
For the reasons stated in paragraph 1 of article 135. (1) (a)), article 141 para. (2) of the Constitution, article 26 para. (1) of the law on the Constitutional Court, article 61 para. (1) and article 63 letter a) of the code of constitutional jurisdiction, the Constitutional Court has adopted the following opinion:



1. The initiative to amend the Constitution, the Government shall be submitted by the authorized subject and, in this regard, is determined the provisions of article 141 para. (1) (a). c) of the Constitution.
2. Draft law on modification of the Constitution do not violate the limits imposed by the constitutional revision of the provisions of paragraph 1 of article 142. (2) and may be submitted to the Parliament for examination.
3. Draft law on modification of the Constitution could be adopted after at least 6 months from the date of the presentation of the initiative to amend the Constitution.
4. This opinion is definitive, may not 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