MP immunity may be limited, but by clear provisions (Application no. 14c/2016)

On 16 March 2016 the Constitutional Court of Moldova delivered its Opinion on the initiative of revising Article 70.3 of the Constitution (Application No. 14c/2016).

Circumstances of the case

The case originated in an application lodged with the Constitutional Court on 1 March 2016 by the Government.

The proposed revision of the Constitution is set forth in the following wording:

„(3) The Member of Parliament may not be subdued to a body search or at home and/or residence, may not be apprehended or arrested, without the prior consent of the Parliament, except if there is a final judgment of conviction or in the cases of flagrant misdemeanour.”

The submitted draft law concerns the possibility of revising the Constitution for the purpose of limiting the immunity of the MP.

Under the current provisions of Article 70 of the Constitution, the Member of Parliament may not be apprehended, arrested, searched, except for the cases of flagrant misdemeanour, or sued at law without the prior consent of the Parliament and upon hearing of the member in question.

The draft law proposes to exclude parliamentary immunity not only in cases of flagrant misdemeanour, but additionally (1) at the stage of referring the case to court and (2) in case there is a final judgment of conviction.

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

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mr Victor POPA, judges

Conclusions of the Court

Examining the casefiles, the Court held that the initiative to revise Article 70.3 of the Constitution has been submitted by the Government, which is an authorized subject (Article 141.1.c of the Constitution).

The Court noted that it previously ruled on the revision of constitutional provisions on parliamentary immunity by Opinions No. 1 of 25 January 2001, No. 1 of 25 November 2011, No.2 of 10 November 2015.

In all these cases, the Court approved the submitted constitutional draft laws, which also provided for the exclusion of parliamentary immunity. Thus, in principle, parliamentary immunity may be limited.

At the same time, in the present case, the Court held that the proposed amendment creates confusion concerning the scope of the MP’s immunity in case there is a final judgment of conviction likely to generate uncertainties and difficulties of interpretation and application.

Moreover, in this part, the legislative proposal is contrary to the caselaw of the Court. Thus, in the Judgment No. 2 of 20 January 2015, the Court held the immunity is rendered inapplicable in case of a convicted MP, and his mandate ceases de jure.

Opinion of the Court

Stemming from the above reasoning, the Court found that the legislative proposal to amend the Constitution infringes upon the limits of revision provided for in Article 142 of the Constitution, since it generates confusion concerning the correlation between the MP’s immunity and the existence of a final judgment of conviction.

For these reasons, the Court ruled that, in the proposed wording, the draft law on the revision of the Constitution cannot be submitted for examination before the Parliament.

This shall not preclude the subsequent submission of the draft law, following the removal of the noted deficiencies.

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

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