Judgment No.2 of 20.01.2015
Judgment on the interpretation of Article 1 para.(3) combined with Art. 69 and 70 of the Constitution of the Republic of Moldova (immunity and termination of mandate of the member of Parliament) (Complaint no. 6b/2014)
The subject of complaint: Member of the Parliament
Type of judgment: interpretation of the Republic of MoldovaConstitution
Provision: Interpretation of the Constitution
1. The case originated with the complaint submitted to the Constitutional Court on 6 February 2014, according to Article 135 para.(1) p.b) of the Constitution, Article 25 p. g) of the Law on the Constitutional Court and Article 38 para. (1) p. g) of the Code of Constitutional Jurisdiction, by Grigore Petrenco, member of Parliament, on the interpretation of articles 1, 69 and 70 of the Constitution of the Republic of Moldova.
2. The author of the complaint requested the Constitutional Court to interpret Article 69 ("Cessation of the MP mandate") and Article 70 ("Incompatibilities and immunities") in conjunction with Article 1 ("Rule of Law") of the Constitution, and to explain:
”1) Is the Member of the Parliament of the Republic of Moldova, who has been convicted for acts of corruption and/or for influence peddling with deprivation of freedom, which is to be actually enforced, and who is internationally wanted, in a situation of political and moral incompatibility with the office of MP and in definite impossibility to continue exercising this mandate?
2) Is the immunity of the MP considered as consumed de jure following a final and enforceable sentence, in this case the Parliament of the Republic of Moldova being compelled to act ex officio with regard to the withdrawal the mandate of the MP aiming at ensuring the enforcement of a prison sentence?
3) In case of conviction of a person while holding the office of Member of the Parliament of the Republic of Moldova by a final judgment delivered by a court from a foreign state for acts of corruption and/or influence peddling with deprivation of freedom, which is to be actually enforced, being internationally wanted, in light of the United Nations Charter and treaties to which the Republic of Moldova is a party, in conjunction with the Constitution, is the immunity of the MP considered consumed de jure, and shall the competent authorities be compelled to execute the provisions of domestic legislation and international/regional/bilateral treaties in the field, with the purpose of providing international legal assistance, requested by the foreign state which citizen the convicted MP is, aiming at enforcing the judgment?"
3. By the Court decision of 19 March 2014 the complaint was declared admissible, without prejudicing the merits of the case.
4. In the process of examination of the complaint, the Constitutional Court requested the opinions of the Parliament, President of the Republic of Moldova, of the Government and of the Prosecutor General’s Office
5. In the public hearing of the Court the author of the complaint was not present. The Parliament was represented by Mr. Ion Creangă, Head of the General Legal Department of the Secretariat of the Parliament, the Government was represented by Mr. Nicolae Eșanu, Deputy Minister of Justice. The President of the Republic of Moldova has appointed no representative.
15. Relevant provisions of the Constitution of the Republic of Moldova (MO., 1994, no.1) are as follows:
The State of the Republic of Moldova
(3) Governed by the rule of law, the Republic of Moldova is a democratic State in which the dignity of people, their rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values that shall be guaranteed."
Right to Vote and Right to Stand for Election
(3) The right to stand for election is guaranteed to all citizens of the Republic of Moldova enjoying the right to vote, according to the law."
Mandate of the Members of Parliament
"(1) The members of Parliament start exercising their mandate under the condition of prior validation.
(2) The powers ascribed to any Member of Parliament cease with the lawful assembly of the newly-elected Parliament, on resignation on the part of that member, on withdrawal of the mandate, in cases of incompatibility or death."
Incompatibilities and Immunities
"(1) The office of the Member of Parliament is incompatible with the holding of any other remunerated position, except for didactic and scientific activities.
(2) Other incompatibilities shall be established by organic law.
(3) The Member of Parliament may not be apprehended, arrested, searched, except for the cases of flagrant misdemeanor, or sued at law without the prior consent of the Parliament and upon hearing of the member in question."
16. Relevant provisions of the Law no. 39-XIII of 7 April 1994 on the statute of the member of Parliament (MO, 2005, no. 59-61, Art. 201) are as follows:
"The mandate of the member of Parliament shall be incompatible with:
a) the position of President of the Republic of Moldova;
b) the position of member of the Government;
c) the position of Parliamentary Advocate;
c1) the position of a local elected official;
d) the exercise of any other remunerated position, including the position offered by a foreign state or international organization, except for didactical and scientific activity carried out outside the time frame established by the Rules of the Parliament."
"(1) Parliamentary immunity is intended to protect the member of the Parliament against judicial proceedings and to guarantee the freedom of thought and actions of the latter.
(2) The member of Parliament cannot be prosecuted and held legally liable under any form for the political opinions or votes cast in the exercise of its mandate."
"(1) The member of Parliament cannot be detained, arrested or searched, except for the cases of flagrant offences, nor can he/she be sent to trial for criminal or minor offences without the prior consent of the Parliament following his hearing. […]"
17. Relevant provisions of the Rules of the Parliament, adopted by the Law no. 797-XIII of 2 April 1996 (MO 2007, no.50, Art.237), are as follows:
"(1) According to the constitutional provisions, parliamentary immunity is aimed at protecting the member of Parliament against judicial prosecution and at guaranteeing the freedom of expression of the latter.
(2) The member of Parliament cannot be detained, arrested or searched, except for the cases of flagrant offences, nor can he/she be sent to trial for criminal or minor offences without the prior consent of the Parliament following his hearing.[…]"
18. Relevant provisions of the Code of Criminal Procedure no.122-XV of 14 march 2003 (MO 2003, no.104-110, Art.447) are the following:
Cases and Condition of Acknowledging Criminal Judgments
"(1) The final criminal judgments pronounced by foreign courts and those of a nature to produce legal effects in line with the criminal law of the Republic of Moldova may be acknowledged by the national court upon a motion of the Minister of Justice or the Prosecutor General based on an international treaty or a reciprocity agreement.
(2) The criminal judgment of a foreign state may be acknowledged only if the following conditions are met:
1) the judgment was pronounced by a competent court;
2) the judgment does not contradict the public order of the Republic of Moldova;
3) the judgment can produce legal effects in the country in line with national criminal law."
19. The relevant provisions of the Law no. 371-XVI of 1 December 2006 on international legal assistance in criminal matters (MO 2007, no.14-17, Art.42) are the following:
"(1) criminal judgments delivered by foreign countries that become final may be enforced in the Republic of Moldova under the provisions of the Criminal Procedure Code and this Section.
(2) The provisions referred to in para. (1) do not apply to the procedure of transfer of the sentenced persons which is regulated by the Code of Criminal Procedure, Special Party, Title III, Chapter IX, Section 3, as well as by this law, Chapter V."
Special conditions of admissibility
(1) On the territory of the Republic of Moldova, a foreign judgment may be enforced following a request for recognition and enforcement made by the competent authorities of the state where sentencing took place.
(2) The request for recognition and enforcement shall be admissible when, in addition to the general conditions provided in the Code of Criminal Procedure in art.558 para. (2), the following special conditions are met:
a) the convicted person is a citizen of the Republic of Moldova or is permanent resident on its territory, or is a foreign citizen or a stateless person holding a residence permit in its territory;
b) the offense in respect of which the sentence was delivered there is no criminal prosecution initiated in the Republic of Moldova;
c) the execution of the judgment in the Republic of Moldova may favor the social reintegration of the convicted person;
d) the execution of the judgment in the Republic of Moldova may favor the repair of damage caused by the offense;
e) the term of the punishment or security measures ordered by this decision is longer than one year.
(3) The foreign judgment may also be enforced if the convicted person is serving a sentence in the Republic of Moldova for an offense other than the one established by the judgment which enforcement was required.
(4) The enforcement of foreign judgments by which there had been ordered a punishment or security measure is possible and when the authorities of the Republic of Moldovan refuse extradition of the convicted person, even if the conditions referred to in para. (2) p.c) - e) are not respected."
20. Relevant provisions of the Election Code no. 1381-XIII of 21 November 1997 (MO no. 81, Art. 667) are the following:
(1) The following individuals cannot vote:
a) those who do not meet the requirements specified in Article 11;
b) those declared incapable by a final decision of a court of law. Such case shall be notified to the Central Electoral Commission by the mayor, and following the implementation of the State Register of Voters, by the Ministry of Justice.
(2) The following individuals cannot be elected:
a) active duty military personnel;
b) persons mentioned in paragraph 1;
c) individuals who are sentenced to prison (deprivation of liberty) by a final court decision and who serve their sentence in penitentiary institutions, as well as individuals who are under court jurisdiction or have active criminal records for the crimes committed deliberately. The electoral bodies are informed about the existence of criminal records by the Ministry of Internal Affairs;
d) persons deprived of the right to hold decision-taking positions by a final decision of a court of law. Electoral bodies are notified on the existence of such interdictions by the Ministry of Justice and/or the Ministry of Internal Affairs.
Candidates for Parliamentary Elections
"Citizens of the Republic of Moldova, eligible to vote, who have reached the age of 18 years before or on Election Day, have permanent residence in the country and meet the requirements provided herein, may be candidates for members of Parliament."
1. In the meaning of Article 70 para. (3) of the Constitution, the parliamentary immunity does not have incidence on the MP convicted by a final and irrevocable court judgment; the inviolability protection ends at the moment of "referral to the court".
2. In the meaning of Article 70 para. (3) of the Constitution, the parliamentary immunity does not have incidence on the MP when a final foreign criminal conviction is recognized by the national courts.
3. In the meaning of Articles 1 para. (3), 38 para. (2), 69 para. (1) and 70 para. (2) of the Constitution, in case of conviction for crimes committed intentionally and/or imprisonment (deprivation of freedom) by final and irrevocable judgment, irrespective of the fact if it occurred before or after the validation of the mandate, the member of the Parliament is not eligible for the position of the MP, being incompatible with the capacity of member of Parliament.
4. In the meaning of Articles 1 para. (3), 38 para. (2), 69 and 70 para. (2) of the Constitution, persons whose ineligibility is proved after the validation of elections results and expiry of appeal period, or which during the mandate faces one of the ineligibility cases stipulated in the Election Code shall be incompatible with the capacity of member of Parliament, his/her mandate being terminated de jure.
5. This judgment is definite, cannot be subject to any appeal, enters into force on the date of its adoption and is published in the Official Gazette of the Republic of Moldova.
40. The position of a member of Parliament is characterized by a "status", involving numerous benefits and tasks, aiming at guaranteeing the freedom of the exercise and independence of the MP mandate, with a view to protect it against pressures that might compromise his/her independence. The guarantees regarding remuneration and social protection, as well as incompatibilities and immunities, are a part thereof.
41. Under Article 70 para. (3) of the Constitution of the Republic of Moldova, a member of Parliament may not be apprehended, arrested, searched, except for the cases of flagrant misdemeanor, or sued at law without the prior consent of the Parliament and upon hearing of the member in question.
42. However, Article 71 of the Supreme Law provides that a member of Parliament may not be prosecuted or held legally liable for their votes or opinions expressed in the exercise of their mandate.
43. The Constitutional provisions regarding immunity are further detailed by the Law on the status of the member of Parliament and by the Rules of the Parliament.
44. First, the Court notes that although the constitutional order in the Republic of Moldova concurrently guarantees both irresponsibility and inviolability of members of Parliament, in the present case the Court’s findings will have an effect only on this last aspect of parliamentary immunity. While examining this issue, the Court considers it necessary to clarify that it will decide in abstracto on the functioning of the institution of parliamentary inviolability in the Republic of Moldova as well as on the incidence of applying constitutional provisions with regard to a member of Parliament convicted by a final judgment for committing criminal offences upon intention.
3.1. The extent of parliamentary inviolability in other states
45. The concept of parliamentary immunity is not homogeneous. Despite a wide variety of concepts and definitions used by the national legislation and given the extent of protection in different states, the majority of the European states acknowledge two categories of immunities for members of parliaments:
- on the one hand there is “parliamentary irresponsibility” or “freedom of speech” against judicial prosecution for opinions and votes cast in the exercise of their functions;
- on the other hand, “parliamentary inviolability” or “immunity in a strict sense”, which protects against any arrest, detention or judiciary prosecution in the absence of a consent from the chamber he/she belongs to.
[Report on the regime of parliamentary immunity (CDL-INF (96)7), Venice Commission, approved at its 27th Plenary Session of 17-18 May 1996]
46. The guarantees provided by these two aspects of parliamentary immunity (irresponsibility/inviolability, “freedom of speech”/”freedom from arrest”) are complementary [Report on the regime of parliamentary immunity, citied above, § 27].
47. Referring to the scope of inviolability, the Venice Commission stated the following:
“184. The Venice Commission considers that rules on parliamentary inviolability are not a necessary part of modern democracy. In a well-functioning political system, members of parliament enjoy adequate protection through other mechanisms, and do not need special immunity of this kind.
185. The Venice Commission however recognizes that rules on inviolability may in some countries fulfil the democratic function of protecting parliament as an institution, and in particular the parliamentary opposition, from undue pressure or harassment from the executive, the courts or from other political opponents. Rules on parliamentary inviolability may therefore be justifiable where other means of protection of members of parliamentary are not adequate. But they should always be construed and applied in a restrictive manner. Such rules should be subject to limitations and conditions, and there should always be the possibility of lifting immunity, following clear and impartial procedures.”
[Report on the scope and lifting of parliamentary immunities (CDL-AD(2014)011), approved at its 98th Plenary Session of 21-22 March 2014]
48. There are differences regarding the nature and the degree of protection offered to parliamentarians by use of inviolability. Based on the political and historical experience inherent to each state, these differences attest the needs on which it is grounded. While inviolability is seen, as a matter of fact, as non-severable from the separation of powers, preserving parliamentary autonomy or protecting the opposition within the Parliament, the extent of this privilege seems to be defined, in each country, depending on the degree of autonomy required in order to enable the Parliament to perform its functions.
49. The degree of extension of this inviolability varies greatly among the countries. The very nature of this aspect of immunity makes possible its application in a variety of legal regimes. In some states this institution does not even exist (the Netherlands, San Marino). In other countries, such as United Kingdom, the extent is very limited: inviolability applies only for civil matters, while in criminal aspects the member of the Parliament fails to enjoy any particular protection and is treated equally with other citizens. In Ireland and Norway parliamentary inviolability prevents the parliamentarian from arrested during the parliamentary session or on his/her way to or from the location of the session, thus offering a quite limited protection.
50. Most European states grant their MPs during their term of office, extra-functional immunity for criminal cases (Albania, Germany, Austria - if the act in itself is related to political issues – Cyprus, Spain, Greece, Hungary, Lithuania, Poland, Russia, Serbia, Switzerland), and/or protection against coercion and measures of deprivation of liberty (arrest or detention in all countries which provide immunity against criminal prosecution, including Belgium, France, Georgia, Italy, Portugal and Romania). These prosecutions or criminal measures may be implemented only following the consent of the legislature, except Cyprus.
51. In many states, the extent of inviolability was limited as a result of constitutional reforms. Thus, in France following the constitutional reform of 1995, the consent of the Chamber is no more required for the initiation of criminal proceedings, it is necessary only in case of detention, arrest and other measures of judicial control. A similar evolution took place in Italy, where the Constitutional Law no. 3 of 29 October 1993 excluded the need for prior authorization by the chamber with the view to start criminal proceedings against parliamentarians. In Romania, following the constitutional reform of 2003, a member of Parliament may be subjected to criminal investigation or may be criminally prosecuted for the acts that are not connected with votes cast or political opinions expressed during the term of his/her parliamentary mandate.
52. In Germany, the Bundestag has a practice, as a general proceeding at the beginning of the new legislature, of lifting the parliamentary immunity for all types of offenses (except for those that are defamatory from the political point of view). This measure is designed to protect all members of Parliament to avoid any attention from media whenever any proceedings against them are carried out.
53. In relation to what is called ratione materiae extent of parliamentary inviolability, i.e. the acts that fall under parliamentary immunity, in most European countries there is a tendency to exclude cases of flagrante delicto from the natural range of immunity. In this case, the consent cy the chamber is not necessary, however this does not prevent it to rule later on the lawfulness of the prosecutions or arrest in order to ask for suspension or lifting thereof (among others, Georgia and Romania). Some legislations exclude from the scope of inviolability certain acts due to the nature or severity of the punishment provided (the Constitution of Portugal excludes, under certain circumstances, the offenses which may be punished by a sentence of imprisonment exceeding three years).
54. The duration of parliamentary immunity also varies from state to state. Some parliamentary regimes provide the extension of this privilege to criminal proceedings initiated against the member of Parliament prior to his/her election (Germany, Belgium, Spain, Hungary, Italy, Portugal). In other countries, despite the fact that the consent of the Parliament is not necessary for the continuation of criminal proceedings already started, the chamber may, either of its own motion or at the request of the interested party, ask for the suspension of criminal proceedings or lifting of coercive measures during the term of the parliamentary mandate (France, Poland, Switzerland).
3.2. Case Law of the European Court for Human Rights
55. In the cases A. v. United Kingdom (no. 35373/1997, CEDH-2002-X), Cordova v. Italy (no. 45649/1999, CEDH 2003-I), C.G.IL v. Italy (no. 46967/2007 of 24 February 2009) and Tsalkitzis v. Greece (no. 11801/2004 of 16 November 2006), the Court had affirmed the principle of reviewing the compatibility of immunity from prosecution with the right to a court enshrined in Article 6 § 1, which was developed in the Judgment Kart v. Turkey of 3 December 2009 (par. 58).
56. In these judgments, particularly in those from 2009 (C.G.IL v. Italy of 24 February 2009 and Kart of 3 December 2009), the Court tempered the effects of the immunity from legal proceedings enjoyed by MPs by establishing the principle that it would not be consistent with the rule of law in a democratic society if a State could remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons.
57. The Court recognized that the States grant a more or less extended parliamentary immunity and that this is a long term practice and that it pursued the legitimate aims of protecting free speech in Parliament and maintaining the separation of powers between the legislature and the judiciary (A v. United Kingdom, §§ 75-78, Cordova (no. 1), § 55, Cordova (no. 2), § 56 and De Jorio, § 49, cited above). Different forms of parliamentary immunity may indeed serve to protect the effective political democracy that constitutes one of the cornerstones of the Convention system, particularly where they protect the autonomy of the legislature and the parliamentary opposition.
58. From the point of view of its compatibility with the Convention, the broader an immunity, the more compelling must be its justification (A v. United Kingdom, § 78). Indeed, the lack of any clear connection with parliamentary activity requires the Court to adopt a narrow interpretation of the concept of proportionality between the aim sought to be achieved and the means employed. This is particularly so where the restrictions on the right of access stem from the resolution of a political body (see Tsalkitzis, cited above, § 49). Thus, where a personal quarrel was involved it would not be right to deny someone access to a court purely on the basis that the quarrel might be political in nature or connected with political activities (see Cordova (no. 1), § 62; Cordova (no. 2), § 63; and De Jorio, § 53, cited above).
3.3 The extent of parliamentary immunity in the Republic of Moldova
59. The scope of parliamentary inviolability may be analyzed under four essential aspects: ratione personae (beneficiaries of protection), ratione temporis (beginning and end of protection), ratione loci (space limits of protection) and ratione materiae (acts covered by the inviolability).
i. Ratione personae
60. Inviolability is intuitu personae and is applied exclusively to persons who are members of Parliament.
ii. Ratione temporis
61. MPs benefit of parliamentary inviolability from the moment of election but under a cancelation condition of the invalidity of their election [Art. 69 para.(1) of the Constitution].
62. Limited in time and regulated by specific rules regarding especially the suspension of prescription term, the immunity can be only a temporary procedural obstacle in criminal proceedings, an impediment that does not cancel, however, for the interested party the possibility of final resolution of the litigation.
63. The effect of parliamentary inviolability on criminal prosecution is temporary, but at the same time, parliamentary structures cannot intervene as a matter of principle on the course of justice as it is. Having examined the motion to lift parliamentary immunity, it should assess only if the inviolability as having the quality to temporarily interrupt the justice procedure should be lifted immediately or if it is preferable to wait before the MP mandate expires. Thus, the Parliament may only suspend the course of justice, without intervening or participating in it.
64. As for the procedures launched before the mandate, these should continue in accordance with the general legal conditions, if a certain phase of the procedure was reached. Thus, the following differences are operated:
1) if the person was already sued for a criminal offence before the day of his/her elections, the procedure will continue as for any citizen, without being necessary to lift the immunity;
2) if the person was not sued before the elections day, the person enjoys inviolability, thus, it is necessary to lift the immunity. In this sense, suspending case examination and requesting to lift the immunity in the case of sued person before the elections day is contrary to the constitutional provisions.
65. In this respect, the suspension of case examination and the request of lifting the immunity in the case of the person "brought to trial" prior to the day of his election is contrary to constitutional provisions.
iii. Ratione loci
66. The place of crime committed by the member of Parliament has no influence on the application of parliamentary inviolability.
iv. Ratione materiae
67. The scope of parliamentary inviolability in the Republic of Moldova is limited to criminal (and contravention, by assimilation) cases. The Constitution does not operate any difference depending on the nature and gravity of the action.
68. The inviolability is not applicable to as regards any prosecution. According to Art. 70 para.(3) of the Constitution of the Republic of Moldova, in the absence of a consent by the Parliament the member of Parliament may be:
(1) kept in custody
(2) arrested except for the cases of flagrant offences
(4) referred to court
69. Thus the protection of the inviolability operates only for certain procedural measures which are restrictive and exhaustively enumerated in the Constitution: detention, arrest, and search. There is an exception in the case of "flagrant offence".
70. Thereby, only under these reservations, the criminal prosecution of the MP can be launched and exercised with no need to lift the immunity.
71. At the same time, at the end of criminal prosecution, sending the case to trial by the prosecutor who concluded the indictment may be done only after the immunity is lifted under the conditions laid down in the Rules of the Parliament.
72. The Court admits that criminal prosecution of a Member of Parliament, as well as associated coercive measures, may affect even the functionality of the Parliament and may disrupt the work of the Parliament. The Court recognizes, in this sense, the institutional finality of this prerogative that refers to normal functionality and integrity of the parliamentary institution. In these circumstances, the derogation from common law has legitimate purposes.
73. Under Article 70 para. (3) of the Constitution, the parliamentary inviolability in the Republic of Moldova protects the MPs from judiciary prosecution for actions that do not have anything to do with parliamentary activity.
74. However, the requirements of the rule of law impose that parliamentary immunity may not function unless by reporting to the legitimacy of addressed purposes and namely, by maintaining the integrity of the Parliament and protection of opposition.
75. Taking into account the rationale to exist, the useless extension of parliamentary immunity and with no criticism towards issues that have nothing in common with the respective public position does nothing but affecting the public confidence in the parliamentary democracy itself. The more the ‘covering’ behavior goes further from the tasks of respective public function, the more justified the authorization of immunity application should be, and by extension, the refusal to lift the parliamentary immunity becomes imperative. When the immunity operates in such a manner that the persons are protected against the action of criminal tribunals, then the reason for the refusal to lift the immunity should be clear and convincing.
76. In the Judgment Urechean and Pavlicenco v. Moldova, with reference to the immunity of the President the Court stated that, in so far as his opinions are concerned, the immunity is not absolute: it extends only to opinions expressed in the exercise of his mandate. The application of the rule of immunity in this manner, without any further enquiry into the existence of competing interest considerations, serves to confer blanket immunity. The Court considered that blanket inviolability and immunity are to be avoided.
77. In the part referring to the imperative of fight against corruption the Court holds that Resolution (97)94 of the Committee of Ministers of the Council of Europe (adopted on 6 November 1997) on the twenty guiding principles for the fight against corruption provides that the states shall “limit immunity from investigation, prosecution or adjudication of corruption offences to the degree necessary in a democratic society” (p.6) and shall “encourage research on corruption” (p.18).
78. Moreover, Article 30 of the United Nations Convention Against Corruption (31 October 2003) provides that “Each State Party shall take such measures as may be necessary to establish or maintain, in accordance with its legal system and constitutional principles, an appropriate balance between any immunities or jurisdictional privileges accorded to its public officials for the performance of their functions and the possibility, when necessary, of effectively investigating, prosecuting and adjudicating offences established in accordance with this Convention”.
79. Taking into account that the immunity of the MP is lifted because of the case being referred to court, serving a criminal sentence against the Member of Parliament does not require separated lifting of immunity or this is an integrated part of the judiciary process, because the MP does not benefit anymore from the inviolability protection.
80. In the meaning of Article 70 para. (3) of the Constitution, the parliamentary immunity has no incidence on the Member of Parliament convicted by a final judgement, because the protection of inviolability ends when the case is “referred to court”.
II. WHETHER PARLIAMENTARY IMMUNITY HAS AN IMPACT ON THE PROCEEDINGS FOR RECOGNITION AND ENFORCEMENT OF THE FINAL JUDGMENT DELIVERED BY A COURT OF A FOREIGN STATE, BY WHICH AN MP HAS BEEN CONVICTED FOR INTENTIONAL CRIMES
89. First the Court emphasizes that the fact that a person holds the citizenship of the state having delivered condemnation is not relevant on the interpretation which the Court is going to deliver to the constitutional norms, as this procedure lacks any arbitrary or discriminatory connotation. In this context the Court recalls Article 17 of the European Convention on Nationality and the undertaking of the Republic of Moldova under this article to ensure that the nationals of the Republic of Moldova in possession of another nationality have the same rights and duties as other nationals of the Republic of Moldova (see ECtHR Judgment Tănase v. Moldova of27 April 2010, §§ 85, 177).
90. The Court notes that, according to Article 558 para. (1) of the Code of Criminal Procedure, "the final criminal judgments delivered by foreign courts and those that might produce legal effects under the criminal legislation of the Republic of Moldova may be recognized by the national court upon a motion filed by the Minister of Justice or the Prosecutor General, on the basis of an international treaty or agreements of reciprocity".
91. In this respect, the Attorney General or the Minister of Justice cannot address ex officio to a national court asking for recognition and enforcement of a foreign criminal judgment. According to Article 109 para. (1) of the Law no. 371-XVI of 1 December 2006 on international legal assistance in criminal matters "on the territory of the Republic of Moldova, a foreign judgment may be enforced only following a request for recognition and enforcement initiated by the competent authorities of the sentencing state".
92. Under Article 111 para. (3) of the Law on international legal assistance in criminal matters, "the Ministry of Justice, through its specialized subdivision, shall verify the compliance of the application on recognition and enforcement and of the documents attached with the provisions of international treaties, according to Art. 559 para. (1) of the Criminal Procedure Code, which it will further forward to the competent court or refer to the Prosecutor General’s Office according to jurisdiction".
93. According to Article 558 of the Code of Criminal Procedure, within the proceedings related to the recognition of a criminal judgment delivered by a foreign state the national court shall verify if the following conditions are met:
1) the judgment was delivered by a competent court;
2) the judgment does not contradict the public order of the Republic of Moldova;
3) the judgment can entail legal effects in the country according to national criminal law.
94. Moreover, Article 534 of the Code of Criminal procedure provides that international legal assistance may be rejected if:
1) the request refers to crimes considered in the Republic of Moldova political crimes or offences related to such crimes. The rejection shall not be admitted if a person is suspected, accused or was convicted for the commission of certain acts provided for in Art. 5–8 of the Rome Statute of the International Criminal Court;
2) the request refers to an act constituting exclusively a violation of military discipline;
3) the criminal prosecution body or the court to which the request on legal assistance was addressed considers that its enforcement is of a nature to affect the sovereignty, security or public order of the state;
4) there are reasonable grounds to believe that the suspect is being criminally prosecuted or punished due to his/her race, religion, citizenship, association with a certain group or certain political beliefs, or if his/her situation will be exacerbated for the aforementioned reasons;
5) it has been proven that the person will not have access to a fair trial in the requesting state;
6) the respective act is sentenced with death as per the legislation of the requesting state and the requesting state provides no guarantee in view of not applying or not executing capital punishment;
7) the act or acts invoked in the request, under the Criminal Code of the Republic of Moldova, do not constitute a crime;
8) according to the national legislation, the person may not be subject to criminal liability.
95. Following the analysis of the case-law, the Court holds that none of the grounds to decline the recognition of a criminal judgment delivered by a court of a foreign state refers to the immunity of the convicted person.
96. At the same time, the Court emphasizes that, according to the national legislation, international legal assistance is granted on the basis of an international treaty or through diplomatic channels based on the principle of reciprocity. Thus, according to the Vienna Convention on the law of treaties (1969), international treaties shall be enforced in good faith, under the principle pacta sunt servanda. The Republic of Moldova cannot invoke the provisions of its internal legislation as justification for the failure to enforce a treaty to which it is a party.
97. The Court recalls that, according to constitutional provisions, the immunity of the member of Parliament shall be withdrawn only in situations when certain procedural coercive measures have to be applied to him/her (detention in custody, arrest, search), except for the case of of flagrante delicto, as well as when referring a case to the court of law.
98. The Court held that the procedure for recognition of a foreign criminal judgment by the national courts does not involve judicial debates on the merits and administration of evidence, the case being examined on the merits by the courts of the respective foreign state. In this context, the procedure related to the recognition of a foreign criminal judgment is of a non-contentious nature, being limited to verification by national courts of the compliance with the procedural guarantees of the courts of the foreign state. Thereby, the procedure for recognition of a foreign criminal judgment does not equal to "referring the case to court".
99. Therefore, the situation of the person being under the procedure for recognition of a foreign criminal judgment does not qualify as one of the cases provided by Article 70 para. (3) of the Constitution, which requires lifting of parliamentary immunity. Thus, in the case of recognition and enforcement of a final criminal judgment delivered by the courts of a foreign state, lifting of the MP’s immunity is not necessary.
III. THE FATE OF THE MANDATE OF THE MEMBER OF PARLIAMENT CONVICTED BY A FINAL JUDGMENT FOR INTENTIONAL CRIMES.
113. First, the Court holds that according to article 31 para.(3) of the Law on the Constitutional Court, the Constitutional Court examines exclusively issues of law. Thus the Court shall assess the issue of incompatibility of the member of Parliament as a legal category.
114. Article 69 para. (2) of the Constitution provides the following situations when the mandate of the member of Parliament ceases:
a) on the date of lawful assembly of the newly-elected Parliament;
b) in case of resignation;
c) upon withdrawal of the mandate;
d) in cases of incompatibility;
115. Thus, from the constitutional provisions it results that the mandate of the member of Parliament ceases prior to termination in 4 cases: resignation, withdrawal of the mandate, incompatibility, death.
116. From the contents of Article 69 para.(2) of the Constitution it clearly results that the Supreme Law makes a distinction between two different situations when the mandate of the member of Parliament ceases:
(a) withdrawal of the mandate, when the intervention of an authority is required;
(b) incompatibility (other than death or situations of withdrawal of the mandate), where the "withdrawal of the mandate" is not necessary.
117. The Court holds that, as follows from constitutional provisions, the regulation of cases of forced termination of the MP mandate is the prerogative of the Parliament, including withdrawal of MP mandate or incompatibility, taking into account constitutional principles and acting in the spirit of the Constitution, democratic norms and standards, and given the experience of other countries in the field. However the Court shall take into account that, to date, the Parliament has failed to adopt regulations relating to cases of withdrawal or de jure cessation of the MP mandate (hypothesis admitted by the Constitution, different from "withdrawal" of the mandate). Thereby, the constitutional provisions are not fulfilled.
118.In this context, the Court started from the premise that a provision must be interpreted within the meaning that would permit its implementation, and not within the meaning of excluding its implementation.
119. Therefore, the rules inherent to such an exercise, in the absence of express provisions, would be deduced from the Constitution, by applying the principle of "minimal useful effect".
120. Thus, the Court holds that in the absence of clear regulations, the rules governing the forced termination of the MP mandate shall be deduced from those applied in the case of election to office, taking into account the particularity that, by free logical representation, the mandate of the MP is irrevocable, so that the voters do not have the opportunity to prematurely bring it to an end.
121. Article 70 para. (1) of the Constitution provides, as a principle, the incompatible of the position of member of Parliament with the exercise of any other remunerated position, except educational and research activities. This is a non-exhaustive list as paragraph (2) of the same Article states that other incompatibilities shall be established by organic law.
122. As a development of the constitutional provisions of Article 70, Article 3 of Law no. 39-XIII of 7 April 1994 or the status of the member of Parliament clarifies the positions that are incompatible with the MP mandate, however it is silent in respect of other cases of incompatibility.
123. On the other hand, Article 69 para. (1) of the Constitution provides that the members of Parliament start exercising their mandate under the condition of prior validation.
124. In this regard, according to Article 62 of the Constitution, the Constitutional Court, at the proposal of the Central Election Commission, adopts the following solutions:
(1) validation of the mandate of the member of Parliament;
(2) non-validation of the mandate in case of violation of the election law.
125.Therefore, meeting the conditions on validity is an imperative requirement for exercising the MP mandate. At the same time, the text of the Constitution does provide any time limitations for the possibility to "invalidate" the mandate "for breaching the election law."
126. Article 38 para.(3) of the Constitution provides that:
"The right to stand for election is guaranteed to all citizens of the Republic of Moldova enjoying the right to vote, according to the law."
127. related to this aspect, according to the provisions of article 13 para.(2) of the Election Code, which is an organic law, The following individuals cannot be elected:
a) active duty military personnel;
b) persons deprived of the right to vote: persons who by the day of the elections have reached the age of 18; the persons deprived of this right by the law; persons declared incapacitated by a final decision of a court of law;
c) individuals who are sentenced to prison (deprivation of liberty) by a final court decision and who serve their sentence in penitentiary institutions, as well as individuals who have pending criminal records for committing intentional crimes;
d) persons deprived of the right to take high-ranking positions by a final decision of a court of law.
128. Stemming from the above restrictions as conditions the Court shall consider their rationales. The provisions of Article 13 para. (2) of the Election Code refer to the situations of ineligibility, which are concurrently the conditions of validity of the MP mandate. Therefore, breaching the conditions of eligibility constitutes a reason of absolute nullity, as these vices of validity cannot be covered. The eligibility conditions must be fulfilled both prior to the elections, as well as throughout the exercise of the mandate, or, if such restrictions are imposed on the candidate, they must be satisfied a fortiori by the holder of the position.
129. In the absence of express legal regulations, mutatis mutandis, the breach of the conditions of eligibility following the mandate validation constitutes a reason of absolute incompatibility with the capacity of member of Parliament, the mandate shall cease de jure, for reasons which derive from the fundamental conditions inherent to the constitutional principle of rule of law.
130. Ineligibility is a concept that refers to the requirements that impede the persons to stand for elections.
131. Ascertained or appeared during the validly of the mandate, applied as mutatis mutandis, the ineligibility conditions should be understood as terms of incompatibility with the status of a member of Parliament.
132. Effects produced by the violation of the principle of ineligibility cannot be eliminated during the mandate, because these represent absolute obstacles for the mandate and participation in elections. The legal consequences of the principle of ineligibility is to cancel the election of the person who does not meet the eligibility criteria.
133. Thus the breach / loss of eligibility conditions involves two types of consequences, depending on whether the violation of eligibility conditions was found before or after the validation of elections:
(1) If ineligibility will be proven prior to the validation of the election results and to the expiry of the period when these can be challenged, the mandate of the person shall not be validated;
(2) If ineligibility will be proven following the validation of election results and to the expiry of the period when these can be challenged or if, during the term of the mandate, there will be ascertained one of the cases of ineligibility provided by the Election Code, including conviction by a final judgment for crimes committed with intention, the person is found in absolute incompatibility with the capacity of member of Parliament and his/her mandate shall terminate by law.
134. Moreover, if there is a final and irrevocable court judgment, it will produce ipso jure effects, being inadmissible and contrary to the principle of rule of law giving the possibility to censor it by a decision of the Parliament, which is a highly political body. Thus, the court judgment generates the loss of the mandate of MP – generally called ‘deprivation’. Consequently, the Parliament will declare the MP mandate vacant.
135. Likewise, the Court held that similar provisions are enshrined in Article 81 para. (3) of the Constitution: "The President shall be removed from office de jure at the date of ultimate delivery of the court sentencing".
136. The Court emphasized that an a contrario reasoning would allow to maintain in office persons that don’t meet eligibility requirements, which is in breach of the rule of law principles and of parliamentary democracy, enshrined in the Preamble and Article 1 para. (3) of the Constitution.
137. In this respect the Court recalls the arguments stated in the Judgment no. 4 of 22 April 2013 where, following an assessment of the concept of the rule of law, it noted the following:
"67. The consolidation of trust in Parliament, President and Government, as fundamental institutions of the state that symbolizes democracy, is in direct connection with the effective respect for the principle of the rule law.
68. According to the fundamental principle of the rule law, individuals holding high office must demonstrate that they fulfil the high standards in matter of integrity. Moreover, if a failure to meet these requirements is found, ignoring such finding and appointing/staying in high office of persons with doubts about their integrity hovering over them represent contempt for the rule of law. In other words, the rule of law is a constitutional value and this value should be fully respected."
138. In respect of the imperative of fighting against corruption, the Court noted that in the United Kingdom, the "Representation of the People Act" provides that the commitment of acts of corruption can imply either ineligibility or, ex post, the loss of the mandate.
139. Similar conclusions may be made in the situation of conviction delivered by a court of law from a foreign state, since the foreign judgments recognized and admitted for enforcement in the Republic of Moldova bear the same legal effects as the judgments delivered by the national courts. Thus, the mandate of a member of Parliament convicted for offences committed intentionally by the court of a foreign state shall cease legally on the date the judgment to recognize the conviction becomes final and irrevocable.
140. The Court emphasizes the importance and the necessity of an express regulation of grounds and rules which should govern the cessation of the mandate of an MP, in the forms and within the limits provided by the Constitution, in this context the Court having issued a new Address to the Parliament.
141. Without pretending to be limited, the list of situations for cessation de jure of the mandate of an MP shall include ineligibility cases found subsequently to the validation of elections or while exercising the mandate, as grounds of absolute incompatibility.
142. If a member of Parliament is convicted for crimes committed intentionally and/or is convicted to imprisonment (freedom deprivation) by final and irrevocable judgment, including delivered by a court of a foreign state, his/ her mandate cannot be lifted because it ceases de jure.
143. The Court recalls the interpretation it offers to constitutional provisions has official nature and is binding on all the subjects of legal relations (See Judgment no. 33 of 10 October 2013 on the interpretation of Article 140 of the Constitution).