Verification of judges by the Security and Intelligence Service – unconstitutional

On 5 December 2017, the Constitutional Court delivered the Judgment on the exception of unconstitutionality of certain provisions of the Law no. 271-XVI of 18 December 2008 on the verification of holders and candidates for the public offices (complaint no 115g/2017).

Circumstances of the case

The case originated in the complaint on the exception of the unconstitutionality of Articles 5 pt. (a), 14 and 15 paras. (2), (4) and (5) of the Law no. 271-XVI of 18 December 2008 on the verification of holders and candidates for public offices, in the part referring to the verification of judges by the Security and Intelligence Service, raised by Mrs. Domnica Manole and the lawyer Viorica Grecu, within the case file no.3-26/17, pending before the Supreme Court of Justice.

According to Article 5 let. a) of Law no. 271-XVI of 18 December 2008, "subject to verification are the holders and candidates: to the positions of public dignity which are occupied by a mandate obtained directly following elections, except for parliamentary or local elections, or indirectly by appointment, as specified in the Law no.199 of 16 July 2010 on the status of persons holding offices of public dignity".

According to Article 15 paras.(2), (4) and (5) of the Law no. 271-XVI of 18 December 2008, "the holder, the candidate for the public office is deemed compatible with the interests of the civil service if he/she meets the requirements and the restrictions established by the law in respect of civil service and if no risk factors were found. In the event of a decision on incompatibility with the interests of the civil service, the candidate cannot occupy the corresponding public office. The decision on the incompatibility of the holder with the interests of the civil service serves as ground for the dismissal of the candidate/holder".

The author of the exception of unconstitutionality invoked, in essence, that the verification of judges by the Security and Intelligence Service and the obligatory nature of the opinion issued thereby for the Superior Council of Magistracy violates the principle of independence of the judge and the principle of separation of powers in the state, contrary to Article 1 para.(3), Articles 6, 20 and 116 para.(1) of the Constitution.

The exception of unconstitutionality was examined by the Court in the following composition:

Mr Tudor PANȚÎRU, Chairman,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mrs Victoria IFTODI,

Mr Veaceslav ZAPOROJAN, justices

Conclusions of the Court

Having examined the materials of the case file and having heard the arguments of the parties, the Court held that the Basic Law enshrines the principle of independence and irremovability of judges.

In its case law the Court stated that independence of judges is a guarantee against pressure from the outside in decision-making process, and is justified by the need to allow judges to fulfil their functions as guardians of human rights and freedoms (JCC No. 23 of 25 July 2016, §58).

Moreover, the Court noted that independence of the judiciary is ensured by the Superior Council of Magistracy, a body which plays a decisive role in the part related to the career of judges.

In the case under examination the Court observed that the opinion issued by the Security and Intelligence Service, under the Law no. 271-XVI of 18 December 2008 on the verification of holders and candidates for public offices, serves as a sine qua non condition for: 1) admission to the office of judge; 2) maintenance in this office; 3) transfer to another court.

The Court notes that the verification of judges by the Security and Intelligence Service interferes with the independence of the judiciary.

Under such conditions, the Court has examined whether the interference is prescribed by law in the meaning the conditions regarding the quality of law are respected, whether it pursues a legitimate aim and whether it is proportionate to the goal pursued.

- Whether the interference is prescribed by law

The Court found that the authors of the exception of unconstitutionality invoked that the term "factors of risk" used in Article 15 para. (2) of the Law fails to meet the requirements of predictability and clarity of law.

The Court noted that the term "factors of risk" is clearly explained in Article 4 of the Law. The Court found that despite the fact that the legislator made use of rather general phrases to describe the factors of risk within the meaning of Law no. 271/2008, such as "activities contrary to the interests of the public office"; "the exercise of activities [...] to the detriment of the Republic of Moldova, public authorities, society, human rights and fundamental freedoms", however, the level of exactness of legal provisions depends to a large extent the field it covers, as well as the extent and the quality of the recipients thereof.

The Court noted that the requirement of predictability could not be the same in all areas. Thus, a number of laws use, by the force of things, more or less vague phrases, the interpretation and application of which depend on practical issues. Irrespective of how clearly a legal rule is formulated, in any system of law there exist an inevitable element of judicial interpretation.

However, it is undoubtful that in the process of "discovering" the factors of risk, the Security and Intelligence Service cannot analyse and appreciate the quality of judicial acts. As a matter of fact, the verification body is not a superior judicial instance.

Given the identity of reasons, the Court did not accept the argument advanced by the Security and Intelligence Service that it was empowered, by virtue of the Law no. 271/2008 "to examine the context, circumstances and available information regarding the delivery of judgments which indicate towards suspicions about the judge's biasedness when examining the case files". As a matter of fact, in order to guarantee the constitutional principle of impartiality of judges, procedural rules regulate the situations of incompatibility of judges when examining the cases. By instituting legal provisions on incompatibility not only the protection of the interests of litigants is pursued, rather the achievement of an optimal administration of justice, by delivering judgments based on truth and complete impartiality of judges.

With regard to the extent of addressees, the Court held that the challenged provisions are applicable in the present case to judges - persons who, by definition, possess legal education. With respect to professionals the European Court of Human Rights emphasised that this category of employees is required to demonstrate extreme caution in the exercise of their profession, and given this reason they are expected to pay special attention to the assessment of risks which this activity presents.

For these reasons, the Court has acknowledged that the interference is prescribed by law.

- Whether the interference pursues a legitimate goal

The Court noted that the verification of judges on the basis of the Law no. 271/2008 aims to prevent the exercise of the office of judge by persons lacking integrity.

In this regard, the Court considered that there are no doubts that the persons activating in the offices of judges or those aspiring to be appointed in this position must have a faultless reputation, comply with particular requirements of integrity, morality and probity aimed at enhancing people's trust in the judiciary. As a matter of fact, the confidence of people in the fairness of judges and in courts in general is a component part of the "social capital" and constitutes the democratic foundation for the functioning thereof.

The Court has therefore admitted that the verification of judges pursues a legitimate goal.

- Whether the interference is proportionate to the goal pursued

The Court found that the verification results are reflected in an opinion which is deemed "consultative" and which is communicated to the verified person and sent to the public authority having initiated the verification for examination and issuance of a decision on the compatibility or incompatibility of the person with the public office.

At the same time, according to Article 15 para. (2) of the Law no. 271/2008, the holder of or the candidate for the public office shall be considered compatible with the interests of the civil service if he/she meets the requirements and the restrictions established by the law for the given public office and if no factors of risk have been identified. At the same time, paras. (4) and (5) of this Article provide that in the case of a decision of incompatibility, the candidate cannot occupy the corresponding public office. The decision of the public authority on the incompatibility of the holder with the interests of the civil service serves as a ground for dismissal.

The Court found that these provisions fail to grant the public authority which had initiated the verification a margin of appreciation in order to take a take a decision on the compatibility or incompatibility of the holder of or candidate for the public office.

Thus, despite the fact that the decision on the compatibility or incompatibility of the holder with the interests of the public office shall be taken, in the present case, by the Superior Council of Magistracy, in case the opinion of the Security and Intelligence Service establishes that the judge fails to meet the requirements and restrictions provided by law or certain factors of risk have been identified, the judge shall be declared incompatible with the office occupied.

The Court therefore found that the Superior Council of Magistracy is limited and compelled to issue a quasi-automatic declaration of incompatibility of the judge with the interests of the office if the Security and Intelligence Service states in its opinion that the holder fails to meet the requirements and restrictions established by law or that factors of risk have been identified. Correlatively, the decision of incompatibility with the interests of the civil service serves as grounds for de plano dismissal of the judge from the office.

Such a situation clearly leads to the diminution of the constitutional role of the Superior Council of Magistracy as a guarantor of the independence of the judiciary, turning this role into an illusory and inefficient one.

Moreover, the Court noted that the legislator adopted [following the entry into force of the Law no. 271/2008] a number of legislative measures designed to ensure the integrity of persons exercising a public office or aspiring to gain access to such a position.

In particular, the National Integrity Authority was created with the mission to ensure integrity in the exercise of public office or positions of public dignity, and to prevent corruption through the control of wealth and personal interests, as well as to supervise the respect for the legal regime of conflicts of interest.

In this respect, the Court found that the purposes stated in the Law no. 271/2008 overlap with the aims pursued by the new legal framework - namely in the part referring to the insurance of the integrity of the persons holding public offices or aspiring to accede to such positions, the conflicts of interests, incompatibilities, - denoting thus the existence of a legislative parallelism which generates confusion and legal uncertainty.

Having summarized the aforementioned arguments, the Court held that the provisions of Articles 5 pt.(a) and 15 paras. (2), (4) and (5) of the Law no. 271-XVI of 18 December 2008 violate in a substantial manner the principles of independence of judges, and are in contradiction with the requirements of the rule of law thus being contrary to the Constitution.

However, in view of the above, the Court considered that it is not necessary to examine separately the provisions of Article 14 of the Law.

Additionally, the Court will issue an Address to the Parliament in order to exclude legislative parallelism with regard to the verification of integrity of all holders of or candidates for the public offices.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court:

1) admitted the exception of unconstitutionality raised by Mrs. Domnica Manole and lawyer Viorica Grecu within the case file no.3-26/17, pending before the Supreme Court of Justice;

2) declared as unconstitutional Articles 5 pt.(1) and 15 paras. (2), (4) and (5) of the Law no. 271-XVI of 18 December 2008 on the verification of holders and candidates for public offices, in the part referring to the verification of the candidates for the position of judge and of the judges.

The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Journal of the Republic of Moldova.

This is an English language courtesy translation of the original press-release in Romanian language.