The Court delivered a positive Opinion on the constitutional amendments to the judiciary

On 5 December 2017, the Constitutional Court delivered an Opinion on the draft law amending and supplementing the Constitution of the Republic of Moldova (Application no.149c/2017).

Circumstances of the case

The case originated in the application lodged with Constitutional Court on 16 November 2017 by the Government.

The draft law proposes the operation of a series of constitutional amendments related to the judiciary, which essentially concerns (1) the status, appointment and immunity of judges, 2) the financing of the judiciary, and 3) the role, composition and competencies of the Superior Council of the Magistracy.

The complaint was examined by the Constitutional Court in the following composition:

Mr Tudor PANȚÎRU, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mrs Victoria IFTODI,

Mr Veaceslav ZAPOROJAN, justices

Conclusions of the Court

The Court held that the initiative on the review of the Constitution, advanced by the Government is submitted by an authorized subject (Article 141.1.c of the Constitution).

Thus, examining the draft law, the Court ascertained that by excluding the initial 5-year term for the appointment of judges under Article 116.2 of the Constitution, it is intended to ensure the stability of the mandate of judges until reaching the age limit.

The Court noted that, according to international standards, the security of the mandate is a key element of judges' independence.

The Court also held that the draft law proposes that judges of the Supreme Court of Justice shall be appointed to the position, similarly to the judges in courts of appeal and first instance courts, by the President of the Republic of Moldova on a proposal by the Superior Council of Magistracy. In the opinion of the author, this will reduce the influence of political factors on the procedure of appointing judges, and will standardize the appointment procedure in all courts of law in the country.

With regard to the immunity of judges, the Court noted that since in a democratic society the judge cannot be sheltered by an absolute immunity, the issue of requirements and ways of assuming the judge's liability stands out.

In this regard, the Court ascertained that the draft law establishes a distinct provision on the immunity of judges. Under the proposed provision, judges may only have functional immunity under the law.

The Court has underlined that the functional immunity of judges is not an end in itself but serves his/her independence, the judge being able to examine the cases without fear of civil or criminal liability for examining the cases in good faith and in accordance with the law.

Referring to the proposals for mandatory consultation of the Superior Council of Magistracy in the process of drafting, examining, approving and amending the state budget in respect of the allocation of financial resources to the courts of law, the Court underlined that the funding of the courts of law is closely related with the independence of judges, in that it determines the requirements under which the courts of law perform their duties.

In this respect, international standards in the field also provide for that decisions on assigning budgetary funds to courts of law should be made in strict compliance with the principle of judicial independence, and that the judiciary should have the opportunity to express its views on the proposed budget.

Also, with regard to changes in the structure and duration of the mandate of the members of the Superior Council of Magistracy, the Court noted that the operated amendments will strengthen the role of this institution as a guarantor of the independence of the judiciary.

Judgment of the Court

For these reasons, the Court ascertained that the initiative to revise the Constitution of the Republic of Moldova, advanced by the Government, is submitted by the authorized subject and, in this respect, complies with the provisions of Article 141.1.c of the Constitution.

The draft law amending and supplementing the Constitution does not infringe upon the limits of the review imposed by Article 142.2 of the Constitution and can be submitted to the Parliament for examination.

At the same time, under Article 143.1 of the Constitution, the draft constitutional law can be adopted following at least 6 months after the date of submission of the initiative to amend the Constitution.

The opinion of the Court is final, cannot be appealed, shall enter into force on the date of delivery, and shall be published in the Official Gazette of the Republic of Moldova.

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