inadmissibility of referral No. 152a/2016 regarding constitutionality Ruling Parliament. 273 of 15 December 2016 declaring a mandate of lawmaker vacation



Published: 24.02.2017 in Official Gazette No. 60-66 art no: 27 date of entry into force: 19.12.2016 Constitutional Court, acting as part of Mr. Victor PALMER, Chairman of the meeting, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Zadrahimi, judges, with the participation of Mrs. Abdul Fahim, Registrar, considering the appeal filed on 19 December 2016, recorded at the same time, examining the admissibility of the referral, taking into account the acts and proceedings of the dossier , Acting on 19 December 2016 in the Chamber Council Pronounce the following decision: in fact 1. On December 19, 2016, Tudor Deliu, Maria Ciobanu, Shyam Lal, Victor Roșca, Angel Agache, the Parliament, the deputies asked the Constitutional Court a complaint, asking for constitutionality Ruling Parliament. 273 of 15 December 2016 declaring a mandate for Parliament during the holiday.
A. reasons for referral 2. Reasons for referral, as exhibited by its author, may be summarized as follows.
3. On 15 December 2016 Parliament passed Judgement No. 273, which found the cessation of the status of the Lord Deputy Vladimir Filat and declared vacant a lawmaker belonging to the Liberal Democratic Party of Moldova.
4. on the basis of this ruling by the State Attorney General, interim approach through which it has notified Parliament about the results of the examination of the cause for which has been lifted parliamentary immunity of Deputy Vladimir Filat, namely the existence of a decision of the Court of appeal, by which Vladimir Filat was recognized guilty of committing an offence of passive corruption and influence peddling.
5. The authors contend that the decision mentioned referral has been granted contrary to articles 1 para. (3) paragraphs 1 and 2, 20. (1), 21, 38, 68, 69 para. (2), 119 of the Constitution.
B. relevant Legislation 6. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are the following: 120Caracterul binding of sentences and other final judgments "compliance is mandatory sentences and other final rulings of the courts, as well as co-operate in the process of execution of sentences and other final judgments."
7. The relevant provisions of the code of criminal procedure of the Republic of Moldova n. 122-XV of 14 March 2003 (Official Gazette, no. 13, 248-251, art. 699) are as follows: 466Rămânerea final hotărâriiinstanţei Article and putting them into execution "(1) a judgment of the Court in a criminal case becomes enforceable at the time when he stayed definitively.
[…]
(3) the decisions of the Court of final appeal remain from the date of pronouncement of the decision in the appeal.
[…].”


Article 467Caracterul binding of judgments and final orders of Prosecutor concerning the termination of the prosecution "(1)-Court final and ordinances relating to the termination of the criminal proceedings the public prosecutor are mandatory for all natural and legal persons in the country and have power enforceable throughout the country.
[…].”
In the authors ' Arguments AS a. referral 8. According to the authors of the referral, the lifting of the term of Office of Mr. Vladimir Filat until exhaustion of all remedies constitute a breach of the principle of inculpability and principle the use of remedies in the process of the realization of Justice.
9. According to the authors, the concept of final judgment provided for in art. 120 of the Constitution, concerns and decisions that subsequently become irrevocable. In this respect, the introduction of compulsory execution of a judicial decision after it becomes irrevocable not contrary to constitutional norms.
10. in addition, the authors invoke the Constitutional Court Judgement of referral No. 2 of 20 January 2015 for the interpretation of article 1 para. (3) combined with articles 69 and 70 of the Constitution, in which the Court held that, in the event of conviction for offences committed with intent and/or conviction to imprisonment (privațiune of freedom) by final and irrevocable judgment, the Deputy is ineligibilitate, being incompatible with the status of Deputy, his term of ceasing.
11. At the same time, the referral shall be stated and the judgment of the Constitutional Court No. 32 of 17 November 2016, in which the Court found that, under art. 120 of the Constitution, compliance with judgment and other final rulings of courts is mandatory.
12. Finally, the authors argue that by adopting the referral decision of the contested Parliament acted as a Court of the superior court, which affects the rule of law and the principle of separation of powers. B. assessment of Court 13. Examining the admissibility of the referral, the Court retains the following.
14. Articles 25 lit. 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.
15. the Court noted that the subject of the referral is the judgment of the Parliament. 273 of 15 December 2016 declaring a mandate for Parliament during the holiday.
16. In essence, the Court observes that the authors assert that the referral in the event of conviction, the mandate of lawmaker to be declared vacant only after the judgment of conviction has remained irrevocable and not final.
17. the Court noted that, under article 120 of the Constitution, compliance with sentences and other final rulings of courts is mandatory.
18. In accordance with the constitutional provisions, art. 466 of the code of criminal procedure establishes that the judgment of the Court in a criminal case becomes enforceable at the time when he stayed definitively. According to paragraph 1. (3) of that article, the Court of appeal judgments remain definitive pronouncement from the date of that decision.
19. Under art. 467 of the code of criminal procedure, a final court decisions and ordinances relating to the termination of the criminal proceedings the public prosecutor are mandatory for all natural and legal persons in the country and have power enforceable throughout the country.

20. In the present case, the Court finds that as the basis for the Declaration by Parliament of vacation an mp he served a final decision of the Court of appeal that Mr. Vladimir Filat was recognized guilty of committing an offence of passive corruption and influence peddling.
21. in Judgement No. 32 of 17 November 2016, the Court noted that compliance with judgments is expressed through the requirement of their execution. Thus, although in that judgment were subject to notification constitutionality control some provisions of law No. 87 of 21 April 2011, the Court concluded, as a matter of principle, that the restriction of the scope of the execution of judgments to the definitive and irrevocable is contrary to the express provisions of article 120 of the Constitution.
22. At the same time, the Court noted that, even with the immediate execution of a final judgment (after examining the call, for example) do not preclude the formulation of the appeal, and the right to a fair trial cannot guarantee by itself the right to automatic suspension of enforcement of a judgment.
23. With reference to the allegation by the authors of the referral decision of the Constitutional Court No. 2 of 20 January 2015, the Court emphasizes that its object was, in essence, the extent of parliamentary immunity and can hold office without the consent of the State, in the case of conviction by definitive sentence, including a Court of a foreign State (section 21). Thus, by that judgment the Court has not examined the definitive or final character of judicial decisions and their execution phase.
24. Concluding the Court finds that the referral is unfounded and, therefore, cannot be accepted for examination.
For these reasons, in accordance with the provisions of article 26 para. (1) of the law on the Constitutional Court, articles 61 para. (3) and 64 of the code of constitutional jurisdiction, the Constitutional Court DECIDES: 1. To be declared inadmissible the appeal of deputies in Parliament and Tudor Deliu, Maria Ciobanu, Shyam Lal, Victor Roșca, Angel Aaa for constitutionality Ruling Parliament. 273 of 15 December 2016 declaring a mandate for Parliament during the holiday.
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.

Viktor PALI