Parliament’s Decision on the incident in the "Pădurea Domnească" – constitutional, insofar it is not contrary to the principle of judicial independence

(Complaint No. 5a/2013)

On 23 September 2013 the Constitutional Court delivered its judgment on the constitutionality of certain provisions of the Parliament’s Decision No. 3 of 15 February 2013 on the Report of the Investigating Committee on the elucidation of the administration mode by competent bodies of the incident of 23 December 2012, which was held in the reservation "Pădurea Domnească", of the Report of the Investigating Committee, approved by the mentioned Decision, as well as of the Parliament’s Regulation (Complaint No. 5a/2013).

Circumstances of the case

At the origin of the case lies the complaint of the Ombudsman, Mr. Tudor Lazăr, submitted to the Constitutional Court on 21 March 2013, for the constitutional review of certain provisions of the Parliament’s Decision and of the Report of the Investigating Committee on the elucidation of the administration mode by competent bodies of the incident of 23 December 2012 which was held in the reservation "Pădurea Domnească".

The author of the complaint considers that the challenged provisions are contrary to the Articles 1 para. (3), 6, 21, 23 para. (2), 34 paragraphs (1) and (2), 104 para. (1), 115 para. (3), 116 para. (1), 123 para. (1) and 125 para. (5) of the Constitution.

Under Article 6 para. (3) of the Constitutional Jurisdiction Code, finding that examination of constitutionality of the challenged act depends on the constitutionality of the paragraphs (1) and (2) of Article 36 of Parliament's Regulation, which establishes the formation and operation of investigation committees of the Parliament, the Constitutional Court ruled on these legal provisions.

The Constitutional Court ruled on the complaint in the following composition:

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEŞU,

Mr Igor DOLEA,

Mr Petru RĂILEAN, judges

Conclusions of the Court

Hearing the reasoning of the parties and examining the case file, the Court held that Parliament, as the supreme representative body of the people, is empowered with control and information regarding to  the accomplishment of prerogatives of the powers delegated by the people.

The Court also noted that before the parliamentary committees are compulsory to appear the subjects of law that have specific constitutional relations with the Parliament.

Therefore, under Article 66 lett. (f) of the Constitution, the Parliament exercises parliamentary control over the executive power in the manners and within the limits provided for by the Constitution.

Simultaneously, the Court noted that any statutory provision which would imply the possibility of citation a judge, a prosecutor before a parliamentary investigation committee obviously violates the constitutional provisions that establish the separation of powers, the independence of judges and prosecutors and their obedience only to the law.

The Court held that it is inadmissible to cite persons suspected or accused in criminal cases and to hear them in the investigation committee on the circumstances underlying criminal charge. Otherwise, there is the risk of affecting the right to silence, protected by the Article 6 of the European Convention on Human Rights and Fundamental Freedoms and, therefore, of affecting the presumption of innocence enshrined in Article 21 of the Constitution.

The Court found that submitting statements to the investigation committee is a discretionary right of the representatives of the judiciary power. However, the investigation committees can not examine substantive or procedural aspects that are matter of investigation in criminal cases.

In this context, the Court submitted an Address to the Parliament, in order to exclude gaps in the Parliament Regulation on the competences of the investigation committees.

Furthermore, the Court concluded that the Report of the investigation committee does not contain rules of law, does not produce legal effects and, for these reasons, can not be subject of constitutional review.

Judgment of the Court

Starting from the reasoning invoked above, the Constitutional Court dismissed the complaint of the ombudsman. Therefore, the Constitutional Court has recognized as constitutional:

-       paragraphs (1) and (2) of the Article 36 of the Law No. 797-XIII of 2 April 1996 on the adoption of the Parliament’s Regulation, insofar it does not apply to the representatives of the judiciary authority and the parliamentary investigation committees are not ruling on the guilt or innocence of a person;

-       Articles 4 and 5 of Parliament’s Decision No. 3 of 15 February 2013 on the Report of the Investigating Committee on the elucidation of the administration mode by competent bodies of the incident of 23 December 2012, which was held in the reservation "Pădurea Domnească", insofar the provisions of criminal procedure and disciplinary nature are not compulsory for the Office of the Prosecutor General, Superior Council of Magistracy and the Superior Council of Prosecutors.

-       Moreover, the Court ceased the constitutional review of the items 3.1.1, 3.1.4 - 3.1.9, 3.1.11, 3.1.20 and 3.2 lett. (c) and (d) of the Report of the Investigating Committee on the elucidation of the administration mode by competent bodies of the incident of 23 December 2012, which was held in the reservation "Pădurea Domnească".

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.