Judgment No.2 of 31.01.2013
Judgment No. 2 of 31 January 2013 on the approval of the Report on the exercise of the constitutional jurisdiction in 2012
Gazette: Official Gazetta 42-47/4, 01 March 2013
The subject of complaint: general
Type of judgment: general
REPORT on constitutional jurisdiction in 2012
on constitutional jurisdiction in 2012
CONSTITUTIONAL SYSTEM OF THE REPUBLIC OF MOLDOVA
A. Constantly Evolving System
In a genuine democracy constitutional control is a fundamental guarantee of the Constitution supremacy. The Constitutional Court of the Republic of Moldova, as the sole authority of constitutional jurisdiction, solves constitutional issues it faces and which it shall address by making uniform its own practice that determines the settlement of constitutional conflicts reflecting at the same time a reality and necessity of the time.
The Constitutional Court jurisprudence in 2012 largely reflects the solution to the challenges faced by the legislative, executive and judicial powers.
In 2012 the Court s agenda included referrals about the judiciary system, deputy s term, method of election of the President, exercise of right to ownership, right to social security, etc.
That year the Court has reformed its activity system by implementing more elements of the European Court in the examination of referrals of violations of fundamental human and citizen s rights and freedoms.
To optimize the method of complaint to the Court by subjects of such right, new forms of complaints were developed accompanied by explanatory notes for people filling in them. At the same time, the Court also wishes to warn the large public that it does not consider complaints of citizens, because they do not have the right of complaint to the Court.
The Constitutional Court carries out an organizational, surveillance activity, focusing on alerting public authorities, the act of which is subject to control, elimination of norms that contravene the Constitution. In this context, the Constitutional Court stands for a supreme "arbitrator" in terms of "exclusive examination of legal issues."
In the light of the above mentioned, the Court sent a number of addresses to the Parliament and the Government of the Republic of Moldova proposing to amend the regulatory framework that would provide clarity, predictability and functionality of regulatory acts in the democratic system of rule of law.
B. Court Procedure
The Constitutional Court exercises its powers under the provisions of Article 135 of the Constitution, Article 4 of the Law on the Constitutional Court and Article 4 of the Code of Constitutional Jurisdiction:
a) exercises, upon complaint, the control of constitutionality of laws, regulations and Judgments of the Parliament, decrees of the President of the Republic of Moldova, decisions and orders of the Government and of international treaties, which the Republic of Moldova is party to;
b) interprets the Constitution;
c) makes remarks on initiatives to revise the Constitution;
d) confirms the results of republican referenda;
e) confirms the elections of the Parliament and the President of the Republic of Moldova,
validates the terms of deputies and of the President of the Republic of Moldova;
f) establishes the circumstances justifying the dissolution of the Parliament, dismissal of the President, presidential interim, inability of the President of the Republic of Moldova to exercise his/her powers for over 60 days;
g) solves exceptions of unconstitutionality of legal documents, referred by the Supreme Court;
h) decides on matters dealing with the constitutionality of a party.
In order to exercise the constitutional powers, the Court needs to be notified by subjects with the right of complaint that, according to Article 25 of the Law on the Constitutional Court are:
a) the President of the Republic of Moldova;
b) the Government;
c) the Minister of Justice;
d) the Supreme Court;
f) the Prosecutor General;
g) the ombudsman;
h) a parliamentary faction;
i) the ombudsman;
j) the People s Assembly of Gagauzia (Gagauz-Yeri)
The term of complaint examination is 6 months from the date of receipt of materials. If the complaint meets the requirements of form and content set out in Article 39 of the Code of Constitutional Jurisdiction, the President of the Court shall appoint a judge-rapporteur and set the term for the examination of the complaint and submission of its opinion on its admissibility, which cannot be more than 60 days from the date of registration of complaint. If a large amount of inquiries is required to be made, this term may be extended by 30 days.
In the recent practice the Court focuses mainly on the complex and reasoned examination of the complaint admissibility, procedure that comes to facilitate the preparation of case materials and to liquidate cases of interruption of the process because the subject of the complaint is beyond the jurisdiction of the Court.
After preparing the case for review, at least 10 days before the sitting of the Court, the judge-rapporteur shall: inform the judges and participants to the process about the place, date and time of the sitting; issue to judges and parties the copy of the complaint; provide the parties to the process, at their request, the case materials. In cases of settlement of exceptions of unconstitutionality of legal documents referred by the Supreme Court of Justice resulting from concrete criminal or civil cases, the parties are entitled to be informed of all case materials. At the Judgment of the Constitutional Court, the case materials may be sent to other participants to the process, as well as to the President of the Republic of Moldova, the Chairman of Parliament, the Prime Minister, the President of the Supreme Court of Justice, the Prosecutor General.
The proceeding is deliberative if being attended by at least two thirds of constitutional judges. The Constitutional Court judge cannot participate in the examination of the case and is to be challenged if he/she:
a) acted as a decision maker in the adoption of the act notified, except for the development and adoption of the Constitution;
b) made public his/her opinion about the constitutionality of the challenged act.
The plenary session of the Court is headed by the President of the Court. The instructions of the chairman of the session are mandatory for participants to the process and other people present in the room. The chairman of the session eliminates from the process everything unrelated to the examination of the case and exercise of the powers of the Constitutional Court. He/she may interrupt, after summoning, any participant in the process, exclude any question and explanation, which does not refer to the case, the process or the Court s competence; may deny the right to speak of the participant who breaches the order of debates, shows lack of discipline, breaches other rules of procedure of constitutional jurisdiction; may remove any person from the room who breaches the order and disregards his/her directives.
The case examination begins with information provided by the judge-rapporteur on the essence of the case, the basis on which the Court will examine it, the materials and preparation of the case for examination.
The constitutional judges deliberate in the room of the council. The deliberations are secret, so the judges are not allowed to disclose the content of the deliberations.
The Court proceedings are concluded with the adoption of the act whether opinion, judgment or decision.
2. Role of the Secretariat
The complaints submitted by subjects with the right of complaint are made by the Service of Registry, Record and Archive to the President of the Court, who, by a resolution, decides to pass them for prior review to the Secretariat of the Court.
The General Secretary assigns the complaint to the Section of Legal Expertise and coordinates the entire prior examination of the complaint. In prior review of the complaint, the Section of Legal Expertise draws up an analytical form, which is an internal document. The analytical sheet consists of the following items: subject of the complaint, essence of norms challenged, invoked constitutional provisions, arguments of the author of complaint, conclusions on the subject of complaint, relevant international references, jurisprudence of the Constitutional Court, substantive and procedural conclusions.
The analytical sheet is submitted together with the complaint to the President of the Court. Receiving the complaint with the analytical sheet, the President of the Court shall appoint a judge-rapporteur examining the complaint.
The Secretariat assists the Court s judges throughout the whole process of management and processing of cases.
COMPOSITION OF THE CONSTITUTIONAL COURT
A. Organizational Chart
In order to improve the activity of the Constitutional Court, in 2012 its organizational chart was modified. Thus, by the Plenum decision of 05 June 2012 a new organizational and functional chart of the Court was approved.
B. Constitutional Judges
According to Article 136 of the Constitution, the Constitutional Court has six judges appointed for a term of six years.
The constitutional judges may hold the same office during two terms. The system of appointment of judges involves identification of the authority competent to appoint constitutional judges and its decision making act. These actions are taken to ensure the highest possible qualifications of proposed candidates for judicial office and their compliance with the criteria of impartiality and independence. The competent authorities to appoint constitutional judges are the Parliament, the Government and the Superior Council of Magistracy, each of them designates two judges. Should an office be vacant following the expiration or revocation of the term, dismissal or death of the judge, the President of the Court notifies the competent authority within 3 days of that date, asking it to appoint a new judge. The competent authority appoints the judge within 15 days of the request from the President of the Constitutional Court.
To become a judge of the Constitutional Court, the candidate must have higher legal education, high professional competence and a professional experience of at least 15 years of legal activity, legal education or scientific activity, must be citizen of the Republic of Moldova residing in the country, the age limit for appointment as judge of the Constitutional Court is 70 years old. The appointment can be made only with the prior written consent of the candidate. The judge takes his/her office since making the oath.
The office of judge of the Constitutional Court is incompatible with any other payable public or private position, except for teaching and scientific activity.
The constitutional judge is granted immunity. He/she may not be detained, arrested, searched, except for cases of flagrant offense, prosecuted for contravention or criminally prosecuted without prior approval of the Constitutional Court. The judge of Constitutional Court, whose identity was not known at the time of detention, is set free immediately after identification. The decision maker who detained the judge of the Constitutional Court caught in the act shall immediately communicate the fact to the Constitutional Court.
Besides warranties granted to the judge, he/she must fulfil his/her duties impartially and in respect of the Constitution; keep the secrecy of deliberations and votes and must not take a public stand or consult on matters related to the competence of the Constitutional Court; the adoption of acts of the Constitutional Court to express an affirmative or negative vote; to communicate to the President of the Constitutional Court the activity incompatible with the duties he/she perform; not to allow the use his/her office for the purpose of propaganda of any kind; refrain from any action contrary to the status of judge; submit under law a statement of income and property.
The current membership of the Plenum of the Constitutional Court is as follows:
1. President of the Constitutional Court - Alexandru TANASE
2. Judge - Valeria STERBET
3. Judge - Dumitru PULBERE
4. Judge - Victor PUSCAS
5. Judge - Petru RAILEAN
6. Judge - Elena SAFALERU
C. Assistant Judges
The President and the judges of the Constitutional Court are assisted in their work by 6 assistant judges.
To run for the assistant judge position, the persons interested shall prove a legal education and a professional experience of at least 10 years of legal activity or higher legal education; be citizen of the Republic of Moldova; be resident of the country.
The assistant judge is assimilated with the judge of the Court of Appeal.
The functional duties of the assistant judge are as follows:
• assists judges in exercising jurisdiction on complaints made by subjects established under law under the Code of Constitutional Jurisdiction;
• proposes to the judge-rapporteur, the plenum and the President of the Court measures necessary for the proper exercise of jurisdiction;
• prepares opinions at the request of the judge-rapporteur, the plenum and the President of the Court;
• studies the possible written objections of the other party on the complaint;
• takes appropriate actions necessary to settle the case according to the instructions of the judge-rapporteur, the plenum and the President of the Court;
• fulfils any other duties ordered by the President or by the Plenum of the Constitutional Court.
General Secretary - the head of the Secretariat of the Court prepares, organizes and coordinates the works within the competence of the Secretariat s structures; ensures control over the compliance with the deadline for the examination of complaints, preparation of the draft plan of complaint examination, submission of the plan approved to judges, assistant judges, subunits of the Secretariat and the control over its fulfilment, distribution of the agenda of the Court sittings among judges and subunits of the Secretariat; oversees the communication of acts of the Constitutional Court to public authorities under law; signs the solutions adopted by the Plenum of the Constitutional Court in administrative matters; coordinates the settlement of requests for access to public information under the law; makes recommendations and consults the President on issues related to the exercise of the constitutional jurisdiction and general management of the Court; organizes the working agenda, meetings and sittings of the President of the Court; performs any other duties ordered by the President or by the Plenum of the Constitutional Court.
1. Legal Directorate-Registry - a structural subdivision of the Secretariat of the Court ensuring the execution and preparation of the acts necessary for the preparation of the case for review; coordinates sand finalizes the acts to be adopted by the Plenum of the Court or to be approved by the President of the Court; monitors the compliance with the deadlines for the preparation of files and examination of complaints.
The Directorate consists of:
1.1. Section of Legal Expertise - develops draft judgements, opinions and decisions and maintains the correspondence between the Court, authors of complaints and competent authorities; performs the summons or communication procedures of files; checks from time to time the update of the file of jurisprudence; provides the necessary documentation to the judge-rapporteur on the solutions of national and foreign jurisprudence and doctrine and prepares the draft report; draws up the addresses necessary to obtain the opinions; develops the summaries of judgments, decisions and opinions on judicial records; performs other duties.
1.2. Section of Research and Analysis - analyzes the practice of other constitutional courts, regularly informs about the solutions delivered by the European Court of Human Rights and the Venice Commission recommendations on a certain part of research; provides the necessary documentation to the judge-rapporteur on solutions of national and foreign jurisprudence and doctrine; verifies the international jurisprudence sheets prepared at the request of judges and assistant assigned in the file; generalizes and analyzes statistical information concerning the jurisdictional activity of the Constitutional Court and makes recommendations; prepares the annual report of the Constitutional Court on the exercise of jurisdiction and other publications of the Court; performs other legal duties related to the research and documentation at the request of the judges and the President of the Constitutional Court.
1.3. Editorial Section - prepares the acts adopted by the Court, verifies the accuracy of the legal content, provides a precise and appropriate language of the act adopted, use of accurate terms, ensures complete consistency between the translation and the original text of the document adopted. The Section finalizes linguistically the Court s documents; coordinates and analyzes texts, at the request of the Constitutional Court s judges, assistants or the General Secretary; provides reporting in short land of public sittings of the Court, typing, formation and storage of regulatory acts, their archiving and storage electronically.
1.4. Service of Registry, Records and Archive - submits to the President the complaints received from the Court for the appointment of the judge-rapporteur and assistant and establishment of the period of review, as appropriate; considers requests, letters and petitions of citizens, according to the resolution of the President of the Court; coordinates the settlement of requests for access to public information under law; ensures the organization and conduct of proceedings, taking appropriate measures for the proper registration and creation of files for the preparation and transmission of subpoenas; receives and registers letters, petitions and official addresses and distributes them according the resolution of the President of the Constitutional Court; prepares statistical information on the jurisdictional activity of the Court; ensures archiving, issuance and integrity of the materials submitted to the archive.
2. Section of External Relationships - a subdivision of the Secretariat of the Court, preparing materials necessary for the Constitutional Court delegations participating in activities organized at home or abroad, ensures sending of correspondence on external relations; ensures the translation of the jurisdictional acts of the Court; ensures the translation in Romanian of decisions of the European Court of Human Rights, the Court of Justice of the European Union, other constitutional courts, recommendations of the Venice Commission, reports from international organizations, as well as any materials of interest for the work of the Constitutional Court; organizes protocol actions of the Court; cooperates with the institutions empowered to organize ceremonial actions in events involving constitutional judges; ensures reception and accompanying of foreign delegations in the country; promotes the Court s interests in international cooperation with other international bodies, participates in the organization and conduction of international conferences, receipt of foreign official delegations, coordinates the development and execution of international cooperation agreements, plans, provides and coordinates visits in the country and abroad of delegations.
3. Section of Finance and Logistics - a subdivision of the Secretariat of the Court, which manages the financial and economic activities of the Court; provides the substantiation and development of the draft budget of the Constitutional Court; performs the regular financial control; ensures the use of financial resources within the approved budget; ensures the administration of the Court s property; makes ordered payments, fulfils all obligations assumed by the Court in relation to third parties; draws up payment instruments and submits them within the legal deadlines for payment; prepares balance sheet, annual and monthly reports on major financial and economic indicators according to the legal provisions in force; keeps rigorous records of accounting documents on budget execution, classifies, endorses and keeps under law all proofing documents on payments performed; cooperates with the delegated financial controller and internal auditor for timely settlement of financial transactions with increased difficulty. The section includes:
3.1. Finance and Accounting Service - prepares and draws up annual budget planning forecasts; keeps strict records of income and expenses; continuously improves budget planning; ensures the movement of funds; makes within the term and the amount specified under law payments to the state budget and the state social insurance budget; prepares annual and quarter public procurement plans; prepares documentation for the initiation of procurement; ensures keeping records, monitoring and coordination of economic operations of the Court.
3.2. Logistics Service - prepares, changes and updates the annual public procurement program, based on reasonable requests of using compartments; ensures the implementation of equipotent program in informational field for the Court s services; provides logistical support necessary for the realization of external relationships, relationships with press and protocol activities; provides technical and operational records of goods purchased for the Court; ensures the realization of all administrative benefits necessary for the proper functioning of the Court divisions; ensures regular maintenance and current repairs of all equipment categories; ensures the maintenance of order during the sittings of the Court; coordinates the supply of the Court and property administration of property.
4. Section of Human Resources - a subdivision of the Secretariat of the Court, its work regards the positions and staff of the Constitutional Court; ensures the organization and conduct of staffing contests; prepares formalities on the employment, change, suspension and termination of employment relationships, where appropriate; manages employee professional records of the Court; receives, registers and transmits, under law, income and interest statements filed by judges of the Court and the Court staff, and issues proofs of filing.
5. Internal Audit Service - a subdivision of the Secretariat of the Court, whose competence is to develop methodological rules of internal audit activities of the Constitutional Court; development of the draft annual internal audit plan; carries out public internal audit activities to assess transparency and compliance of financial management and control systems of the Constitutional Court with the legal, regularity, economy, efficiency and effectiveness norms; prepares the annual report of the public internal audit activity, which includes key findings, conclusions and recommendations resulting from the audit and any irregularities or damages found; fulfils other duties prescribed under law and performs other work ordered by the President of the Constitutional Court.
A. Court s Assessment
I. Collaboration of State Powers
1.1. State of the Republic of Moldova. Sovereignty and State Power
The Court held that, under the rule of law, the political power belongs to people. If the first two state defining elements - territory and population - have an objective and material nature, the third essential element - national sovereignty - has a subjective and volitional feature and means that the right of command belongs to people (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 17).
As stated in Article 2 para. (1) of the Constitution, national sovereignty belongs to people of the Republic of Moldova that exercise it directly and through their representative bodies in the forms established by the Constitution (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 18).
In the event of referendum we face a form of direct government by people, in case of the exercise of national sovereignty through representative bodies we can speak about an indirect or representative government of people, which means that people transmit the right of command to some delegated powers, which are legislative, executive and judicial powers (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 19).
The Court held that the rule of law implies that the state and social system is based on fundamental norms and principles of law. An essential feature of the rule of law is rigid subordination of all, including state institutions, predictable, pre-established and clear norms of law (Judgment of the Constitutional Court No. 7 of 24 May 2012, § 31).
The Court noted that the rule of law is based on the principle of legality arising from the provisions of Article 1 para. (3) of the Constitution, which stipulates that the Republic of Moldova is a democratic state and rule of law and the basis of the organization and functioning of the state institutional mechanism is the principle of state power separation, as expressly provided in Article 6 of the Supreme Law (Judgment of the Constitutional Court No. 3 of 09 February 2012, § 31).
In this context the Court stated that the observance of the principle of legality ensures at the same time the compliance with the other principles as legality is the condition of existence and the means of implementation of all constitutional principles. Or, the practical realization of the principle of state power separation is, in turn, a prerequisite for building and functioning of the rule of law (Judgment of the Constitutional Court No. 3 of 09 February 2012, § 30).
1.2. Separation and Cooperation of Powers
The Court held that the functioning of any democratic society involves continuously as an essential prerequisite in achieving the rule of law the need for an institutionalized control system able to "censor" the work of public authorities at all levels, so that the power held does not become a privilege at the discretion of those that exercise it (Judgment of the Constitutional Court No. 18 of 11 December 2012, § 43).
The content and meaning of the power separation theory presumes a balance of powers and their relative independence, a brake system, a system of balances and counterbalances that would affect mutually authorities, interdicting them to exceed the limits set by the Constitution in the exercise of duties. In this respect, the judiciary power, in the system of state bodies, has a distinct place and has a part of power, which can neither be limited, nor replaced (Judgment of the Constitutional Court No. 3 of 09 February 2012,§ 32).
Thus, the principle of state power separation in the legislature, executive and judicial powers implicitly establishes the principle of their independence (Judgment of the Constitutional Court No. 3 of 09 February 2012, § 33).
1.3. Deputy s Term in the Parliament
1.3.1. Content of the Term
The Court held that the parliamentary term defines a public dignitary obtained by means of election of deputy by electorate, to represent it in the realization of the Parliament s powers (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 21).
The Court held that in the exercise of their term, the deputies perform several multiple functions: representation, enactment and monitoring and control (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 23).
At the same time, limiting the role of a deputy to work just to attend the voting sitting is too reductive. The work of the MP in enactment is difficult to quantify. It is not enough to be able to measure the absence of MPs from voting, the number of questions that they formulate or proposed draft laws (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 26).
Given that they are representatives of people appointed by means of elections that is of voters as a whole, within the representative function deputies must interpret the public opinion and communicate the views of voters (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 27).
In the Court s view, the MP s term expresses the relationship of the MP with the whole population, whom he/she serves, not only with voters who voted him/her, although they benefit from the presence of the MP by virtue of his/her obligation to keep in touch with voters. Thus, the phrase "serves people" in Article 68 para. (1) of the Constitution means that since the election and before the end of the term, each deputy becomes representative of all people and has the mission to serve the common interest of people, and not just of the party, where his/her comes from. In exercising the term, the MP obeys only the Constitution, laws and must have attitudes that conscientiously serve the public good (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 34).
In defining these interests, the MP s option is free, though he/she is part of a party he/she represents in the Parliament. In accordance with Article 2 para. (2) of the Constitution, no private individual, a part of people, social group, political party or another public organization may exercise state power on his/her own behalf. In this sense, the fundamental principles of the rule of law must be observed scrupulously to hinder the temptation that one or more political parties might have, becoming majority in the Parliament, to transform its "elected deputies" in "activists of the party" or central or local government structures in central or local "bodies of party" (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 35).
In conclusion, the Court held that the exercise of the deputy s term covers the entire deputy s political activity, both the parliamentary and extra-parliamentary one, as well the adoption of laws in the Parliament s plenary sittings, participation in the sittings of specialized commissions of the Parliament, other activities directly related to the lawmaking process or government monitoring, participation within parliamentary delegations and meetings with voters (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 36).
1.3.2. Irrevocability of Term
Thus, since they are not representatives of a part of the population, the MPs cannot be defenders of particular interests, they are absolutely free to exercise their term and are not required to meet the commitments they could undertake before the election or the eventual instructions of voters made throughout the term. The elected deputies do not have the legal obligation to support their party or group decisions in the Parliament. Moreover, if a deputy, by his/her conduct, causes damage to the party or the group to which he/she belongs, it may exclude him/her, but this exclusion does not imply the loss of the parliamentary term. This obviously does not prevent the deputy, once elected, to fulfil his/her commitments and to comply with the voting discipline of the parliamentary group, which he/she belongs to (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 43).
Consequently, the Court held that by the logic of the free representation, the parliamentary term is irrevocable: voters cannot suspend it prematurely and blank resignations are prohibited. Voters cannot, therefore, express their dissatisfaction with the way an elected deputy fulfilled his/her mission by refusing to grant their votes when he/she requests re-election (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 44).
The fact that the parliamentary term is representative does not mean that, once the election took place, any link between the MP and voters disappears. The MP is continuously subject to influence of the public opinion, which, in turn, he/she influences. The independence of the term does not presume that the MPs can lose their interest in the overall aspirations of people, because, per a contrario, the principle of representation could be a simple fiction. Thus, the Parliament functions under elective control, since voters at the next elections may change their options (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 45).
The Court noted that the civil term invoked by the authors of the complaint is of private law, with a content resulting from express or presumed agreement of will with imperative feature, correlated only with the will of the term holder. By contrast, the parliamentary term is of public law, which is the result of parliamentary elections (elective basis) with an established content and representative feature of al votes (people) (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 46).
These features give the deputy a special protection against pressures of voters and of the party with the support of which he/she came in the Parliament. Thus, once elected, the deputy becomes representative of the whole people, and his/her term is determined by the interests of people he/she represents and elected him/her as well, the deputy being free to adopt attitudes, which, according to his/her conscientiously, serve the public good, the irrevocability of the term being a means protecting the freedom and independence of the deputy (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 47).
In the light of the above, according to the Court, the nullity of the imperative term and the representativeness of the deputy s term, enshrined in Article 68 of the Constitution, imply the impossibility of revocation by voters (or party) of the term entrusted to the deputy to represent them in the Parliament, even if he/she dodges, under various pretexts, the exercise of the legislative power (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 49).
1.3.3. Parliamentary Protest
The Court held that, unlike ungrounded absences, the parliamentary protest is, essentially, a politically motivated absence, being a method of political fight, an action of a deputy or group of deputies, a response to a particular action of the majority, through which a manifestation is expressed without acts of violence, opposition against some acts or decisions that are considered illegal or contrary to the common interest, in order to obtain concessions (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 61).
Thus, the Court held that the phrase "revocation of term" is not applicable to the parliamentary protests in the deputy s political activity that is not directly linked to the legislative creation, unless physical or mental violence is applied (Judgment of the Constitutional Court No. 8 of 19 June 2012,§ 62).
In this context and taking into account the principles of democracy and political pluralism enshrined in Article 1 para. (3) of the Constitution, the Court considered that it would be contrary to the spirit of the Constitution if there would be a possibility of revocation of deputy s term for the use of some forms of parliamentary protest, an instrument of political fight related to the essence of parliamentarism, since through it the diversity of opinions is expressed, even if these rights can be used in an obstructionist manner to prevent or delay a decision (Judgment of the Constitutional Court No. 8 19 June 2012, § 64).
The Court noted that the parliamentary protest tool is used, in particular, by minority parliamentary groups. In the event of sanctions of term revocation, there is a risk that the political freedom of opposition could be obstructed by the parliamentary majority, contrary to democracy standards and political pluralism that require protection of opposition against pressures of majority (see PACE Recommendation 1601 (2008) "Procedural guidelines on the rights and responsibilities of the opposition in a democratic parliament" and the Report of the Venice Commission CDL-AD (2010) 025 on the role of opposition in a democratic parliament) (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 65).
In any case, the collective deprive of a group of deputies of deputy s term is unacceptable, contrary to the significance of the representative term, so that an individual decision is to be made for each deputy individually (Judgment of the Constitutional Court No. 8 of 19 June 2012, § 66).
The Court held that under the Article 16 para. (4) of the Law on the status of deputy in the Parliament, to be deemed substantiated, the absence of a deputy from a Parliament s sitting as protest against a draft included in the agenda is announced only by the chairman of fraction or by independent deputies (Judgment of the Constitutional Court No. 10 of 12 July 2012, § 62).
Therefore, for the purpose of this norm, a deputy of a parliamentary faction, wishing to express his/her protest, to give his/her protest a legal form, must get the agreement of the chairman of the faction, otherwise his/her absence may be considered unreasonable (Judgment of the Constitutional Court No. 10 of 12 July 2012, § 63).
The Court held that this provision is contrary to the principles of the representative term and nullity of the imperative term, enshrined in Article 68 of the Constitution (Judgment of the Constitutional Court No. 10 of 12 July 2012, § 64).
For the purposes of the constitutional norm of Article 68, although they are elected on parties lists according to the proportional system, each deputy has an individual term that requires his/her to serve all people and for whom he/she bears individual responsibility (Judgment Constitutional Court No. 10 of 12 July 2012, § 65).
Therefore, the obligation of the deputy to obtain the consent of the chairman of the fraction to express his/her parliamentary protest is contrary to the principles of the representative term and nullity of imperative term, enshrined in Article 68 of the Constitution and conclusions stated by the Constitutional Court in the Judgment No. 8 of 19 June 2012 on interpretation of Articles 68 para. (1), (2) and 69 para. (2) of the Constitution (Judgment of the Constitutional Court No. 10 of 12 July 2012, § 67).
1.4. Examination of Legislative Initiatives
- Nullity of draft legal acts, which were not examined during a legislature
The Parliament has a dual role and namely to be the supreme representative body of people and be the sole legislative authority of the country (Judgment of the Constitutional Court No. 15 of 04 December 2012, § 40).
The right to legislative initiative marks the beginning of the legislative process, this right, under Article 73 of the Constitution, belongs to the deputies of the Parliament, the President of the Republic of Moldova, the Government, the People s Assembly of the Autonomous Territorial Unit of Gagauzia (Judgment of the Constitutional Court No. 15 of 04 December 2012, § 41).
The Court held that the right to legislative initiative consists in the possibility of subjects indicated in Article 73 of the Constitution to submit proposals of ferenda law, coupled with the Parliament s obligation to examine, discuss and rule on them by adoption or rejection (Judgment of the Court Constitutional no.15 of 04 December 2012, § 43).
The Court also found that any legislative initiative to be materialized in a final adopted act, is to undergo a procedural mechanism, which determines the entire legislative process, where the parliamentary prerogatives come into force. Thus, the parliamentary legislative procedure includes all rules for the preparation of examination, examination and vote of a draft law in the Parliament (Judgment of the Constitutional Court No. 15 of 04 December 2012, § 48).
At the same time, the Court held that, although the norms of Articles 64, 66 and 72 para. (3) let. c) of the Supreme Law authorizes the Parliament to govern the organization and functioning, including to determine the procedural steps of enactment, it is to adopt such regulations within the limit allowed by constitutional norms and in accordance with them (Judgment of the Constitutional Court No. 15 of 04 December 2012, § 51).
The Court held that, according to the Regulation of the Parliament, the legislative procedure is complex, comprising both endorsing the draft legislative act by standing commissions, the Legal Directorate of the Parliament Secretariat and, as appropriate, the Government and interested institutions, as well as the stage of its examination in the Parliament s plenary sitting (Judgment of the Constitutional Court No. 15 of 04 December 2012, § 57).
Given the prerogative of the Parliament to be the sole legislative authority, examination of a draft law means its debate in plenary sittings, during which deputies have the opportunity to rule on the concept of that draft (Judgment of the Constitutional Court No. 15 of 04 December 2012, § 58).
For these reasons and considering the stages of the legislative procedure, the Court held that Article 47 para. (12) of the Regulation of the Parliament, declaring null the draft legal acts, which were not examined during a legislature, is consistent with the Constitution (Judgment of the Constitutional Court No. 15 of 04 December 2012, § 61).
On the other hand, according to Article 63 para. (4) of the Constitution, the draft laws or the legislative proposals entered on the agenda of the previous Parliament shall continue the procedure in the new Parliament (Judgment of the Constitutional Court No. 15 of 04 December 2012, § 62 ).
This constitutional norm expressly requires a new legislative body to submit for debates the draft legislative acts that were included in the agenda (Judgment of the Constitutional Court No. 15 of 04 December 2012, § 63).
The Court held that the constitutional provision contained in Article 63 para. (4) is related to the draft legislative acts included in the agenda of the Parliament s plenum were approved in the first and, if necessary, the second reading, but were not adopted in the final reading. This is the case of constitutional and organic laws for the adoption of which the law provides for two and, if necessary, three readings (Judgment of the Constitutional Court No. 15 of 04 December 2012, § 64).
Also, given that the right to parliamentary initiative is one of the way to use the role of representatives of the nation, the norm stated in the Supreme Law provides the transition between legislatures and the undertaking of drafts that are on an advanced stage of examination in the legislative process (Judgment Constitutional Court No. 15 of 04 December 2012, § 65).
By obliging the new Parliament to examine previous drafts that reached the stage of debates in the previous Parliament s plenum, the constitutional law made a reconciliation between the legislative process efficiency and use of efforts made by the parliamentary commissions and the Parliament s plenum in the previous phases (Judgment of the Constitutional Court No. 15 of 04 December 2012, § 66).
Thus, to the extent that the previous Parliament passed through all necessary phases of previous examination for a draft law or a legislative proposal to be included in the agenda, they were included in the agenda, but for various reasons were not examined in the Parliament s plenary sitting, this is the obligations of the new Parliament (Judgment of the Constitutional Court No. 15 of 04 December 2012, § 67).
In this context, the Court held that the nullity of drafts that were not adopted, which also include the drafts included in the agenda, approved in the first reading and, where appropriate, in the second reading, but that were not adopted in final reading, exceeds the provision of Article 63 para. (4) of the Constitution. However, in such cases, the constituent legislator expressly established that these drafts continue their legislative procedure (Judgment of the Constitutional Court No. 15 of 04 December 2012, § 68).
In the light of the above, the nullity of drafts that were not adopted, although they were included in the agenda of the Parliament s plenum, is contrary to Article 63 para. (4) of the Constitution, the challenged norm would be applied only in respect of drafts laws that were not examined, not being included in the agenda of the Parliament s plenum (Judgment of the Constitutional Court No. 15 of 04 December 2012, § 69).
At the same time, the Court held that the right to legislative initiative is a practical relevance only if the proposed draft law is introduced in the Parliament s agenda for public debates and voting publicly in plenary sittings (Judgment of the Constitutional Court No. 15 of 04 December 2012, § 80).
In this context, the Court held to reiterate the role of opposition for the functioning of democracy outlined in the Judgment No. 8 of 19 June 2012 on the interpretation of Articles 68 para. (1), (2) and 69 para. (2) of the Constitution (Judgment of Constitutional Court 15 of 04 December 2012, § 81).
In this respect, the Court considered necessary to establish by the Parliament some mechanisms that would ensure the examination of draft legal acts submitted by the parliamentary opposition, and the organization of some sittings dedicated to their discussions similarly to the practices of other states in this field, which is a reason why it decided to mention these issues to the address formulated and submitted to the Parliament (Judgment of the Constitutional Court No. 15 of 04 December 2012, § 85).
1.5. Dissolution of the Parliament
The Court held that under Article 10. (3) of the Law No.1234, the President of the country is not just entitled, but also must dissolve the Parliament in a reasonable term, after one year from the last dissolution. The phrase "reasonable term" in this context is used in order not to impose disproportionate limits to public authority for carrying out some procedures that a priori, in some situations, are impossible (Judgment of the Constitutional Court No. 7 of 24 May 2012 , § 68).
The Court noted that the "reasonable term" means a period of time necessary to complete a procedure (action). The constituent legislator chose either to precise the term for the exercise of the constitutional procedure (e.g., Article 98 of the Constitution) or to leave this right up to the legislator (Article 86 of the Constitution). Given the diversity of aspects of social life and many circumstances, the Constitutional Court considered inappropriate to make clear the term in all cases related to the exercise of the constitutional procedures. The decision-making body must have a certain margin of appreciation and flexibility in determining the term of the constitutional procedures. Therefore, in situations where several solutions are possible, the Constitutional Court recognized that the provisions, which give the public authorities the right to use in regulatory actions the phase "reasonable term" to perform some actions are placed in the constitutional field (Judgment of the Constitutional Court No. 7 of 24 May 2012, § 69).
In this context, the Constitutional Court held that an impact on determining the reasonable term may have exceptional situations as well, such as the danger of war, disasters, natural disasters nationwide, etc., which make such procedures impossible (Judgment of the Constitutional Court No. 7 of 24 May 2012, § 70).
The Court emphasized that when there are discrepancies relative to the reasonable term of conduct of proceedings (action), the President of the Republic of Moldova (or other public authority covered by the regulatory act) is required to explain the reasons for the extension of that term. The Constitutional Court, by virtue of its duty of guarantor of the power separation principle and the responsibility of the state to the citizen, will decide in each case whether the central authorities observed the reasonable term of constitutional procedures (Judgment of the Constitutional Court No. 7 of 24 May 2012, § 71).
The Court held that the reasonable term for the dissolution of the Parliament shall be determined by the acting President. For purposes of para. (5) Article 78 combined with the para. (3) Article 85 of the Constitution, the procedure of dissolution of the Parliament, preceded by another dissolution can be made by acting President provided that: 1) repeated elections have been conducted and the President of the state was not elected, and 2) one year elapsed after the last dissolution (Judgment of the Constitutional Court No. 7 of 24 May 2012, § 72).
Thus, for the purposes of para. (5) Article 8 combined with para. (3) Article 85 of the Constitution, the procedure of dissolution of the Parliament, in case of occurrence of circumstances provided for by the Constitution, may be initiated by the acting President and before one year passes after the last dissolution, since this procedure needs time, it requires the approval of the Constitutional Court, etc. The main condition, according to the constitutional provisions, is that the dissolution of the Parliament may occur only one year after the last dissolution (Judgment of the Constitutional Court No. 7 of 24 May 2012, § 73).
1.6. Election of the President of the Republic of Moldova
1.6.1. Secret of Ballot
In accordance with Article 78 para. (1) of the Constitution, the President of the Republic is elected by the Parliament by secret ballot and Article 8 para. (1) of the Law on the election of the President of the Republic of Moldova stipulates that voting for candidates for the President of the Republic of Moldova is carried out in secret (Judgment of the Constitutional Court No. 1 of 12 January 2012, § 42).
The Court held that secret ballot is not only a fundamental right, but also an obligation. Therefore, the waiver of the right to secret ballot does not exempt the deputies from the obligation to ensure the secrecy of the ballot, or, it cannot be waived. In this context, the election officials are required to take measures to avoid any action, which violates the secrecy of the ballot (Judgment of the Constitutional Court No. 1 of 12 January 2012, § 51).
The secret ballot is an election method ensuring the confidentiality of voter s option, aiming for him/her to not be intimidated or influenced (Judgment of the Constitutional Court No. 1 of 12 January 2012, § 37).
Thus, the Court noted that the constitutional text does not imply the possibility of waiving the secrecy of vote in the event of presidential election. A proof of this is that if in other cases the Constitution uses the phrase "with [...] ballot ", without specifying whether it should be open or secret (see Articles 74, 81, 82, 89, 98, 106, 111, 141, 143 of the Constitution), in this case the Constitution uses the indication "is elected" with the precision "by secret ballot" without providing for exceptions or, at least, the possibility for the legislature to regulate conditions for exemption. The wording of Article 78 clearly indicates the will of the constituting legislature to apply this constitutional guarantee in the event of (ordinary, repeated) elections of the President of the Republic of Moldova. This protection extends to the receipt of the ballot until placing it in the sealed ballot box, so that the option expressed could not be identified (Judgment of the Constitutional Court No. 1 of 12 January 2012, § 46).
In the circumstances where the secrecy of ballot is expressly stated in the Constitution, the Court considers that it is a sine qua non for the development and validation of the presidential elections (Judgment of the Constitutional Court No. 1 of 12 January 2012, § 47).
The Court notes that these guarantees will be provided during all elections by secret ballot regardless of the type of ballot (Judgment of the Constitutional Court No. 1 of 12 January 2012, § 49).
In this context, given the constitutional norms and its previous practice, the Court reiterated the impossibility of derogation from the secrecy of ballot for the election of the President, because it derives from an imperative constitutional norm (Judgment of the Constitutional Court No. 1 of 12 January 2012, § 44).
The Court also held that the secret of ballot is not only a fundamental right, but also an obligation. Therefore, the waiver of the right to secret ballot does not exempt deputies from the obligation to ensure the secrecy of ballot, or, it cannot be waived. In this context, the election officials are required to take measures to avoid any action, which violates the secrecy of ballot (Judgment of the Constitutional Court No. 1 of 12 January 2012, § 51).
The Court held that the 30 day term established under law for fixing a new date of ordinary elections of the Presidency of the Republic of Moldova is part of the general term of two months provided for in para. (4) Article 90 of the Constitution for the election of the President (Judgment of the Constitutional Court No. 7 of 24 May 2012, § 49).
The conclusions drawn allowed the Constitutional Court to find that postponing the term for the elections of the President within 30 days does not contradict the obligation of MPs to elect the President, resulting from Article 78 of the Constitution combined with Article 15 of the Constitution. Also, the legal rule being adopted within the term stipulated by Article 90 para. (4) of the Constitution, is an expression of the will of the deputies, who hold the representative term of people, which is consistent with the provisions of Article 2 combined with Article 68 of the Constitution (Judgment of the Constitutional Court No. 7 of 24 May 2012, § 50).
The Court held that the establishment of the circumstances in which the special sitting for the election of the President may be adjourned, is the discretionary right of the legislator. At the same time, the Court noted that the exhaustive evasion from the regulation of these circumstances (impediments) allow the evasion of deputies from fulfilling their obligations, obstruction and delay of the presidential election procedure for an indefinite period. The Court held that the Parliament must specify the impediments that make impossible the presidential elections. In the current wording the challenged norms are in conflict with the quality requirements of the norm of law, thus violating Article 23 of the Constitution (Judgment of the Constitutional Court No. 7 of 24 May 2012, § 61).
Reiterating its previous practice, the Court held that the legal norm, which requires participation in the presidential elections of at least 3/5 of the elected deputies, has as reason the exclusion of the possibility of artificial causing of anticipated elections and requires the deputies, who serve people to follow the norms of procedure laid down by Article 78 of the Constitution (Judgment of the Constitutional Court No. 7 of 24 May 2012, § 55).
The Court held that the challenged provisions of Article 6 para. (2) of the Law No.1234, which stipulates the participation of at least 61 deputies in the sitting for the election of the President of the Republic of Moldova are in compliance with the Constitution and the Judgment of the Constitutional Court No.45 of 18 December 2000 on the interpretation of para. (3) and para. (5) Article 78 of the Constitution (Judgment of the Constitutional Court No. 7 of 24 May 2012, § 56).
1.7. Powers of the President of the Republic of Moldova
- Granting citizenship of the Republic of Moldova
The Provisions of let. c) Article 88 of