Mandate of the judges of the Supreme Court of Justice and the Constitutional Court extends until the appointment of their successors

On 12 May 2016, the Constitutional Court delivered its judgment on the interpretation of Articles 116.2, 116.4 and 136.1 of the Constitution.

Circumstances of the case

The case originated in the complaint of the Supreme Court of Justice, lodged with the Constitutional Court on 12 March 2016.

The Supreme Court of Justice questioned the possibility of ordinary court judges and constitutional judges to continue their expired mandates until they are replaced. In this regard, the Constitutional Court was requested to interpret Articles 116.2, 116.4 and 136.1 of the Constitution.

The judges of the Supreme Court of Justice argued the necessity to extend the mandates of ordinary court judges and constitutional judges in order to not jeopardize the smooth running of the activities of ordinary courts and the Constitutional Court.

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

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mr Tudor PANȚÎRU,

Mr Victor POPA, judges

Conclusions of the Court

Examining the casefiles, the Court held that one of the requirements of the value of the rule of law is that the State authorities provide an effective protection of individuals' rights. The judges are those who, generally, carry out this goal. Thus, the means of settling litigations must be ensured, without any prohibitive cost or undue delay.

Under Article 116.2 of the Constitution, judges exercise their activity until reaching the age limit fixed by the law. In terms of extending their mandate, the Court distinguished the situation of district court judges and court of appeal judges from the situation of the judges of the Supreme Court of Justice.

The Court took notice that in the case of district court judges and court of appeal judges, there operates the institution of judges' transfer from other courts, established by Law no.544 of 20 July 1995 on the status of judges.

In relation to the judges of the Supreme Court of Justice, the Court took into account the factual circumstances of the impossibility of other judges to be transferred in this court and in certain cases the Parliaments' delayed proceedings of judges' appointment, reality highlighted by the author of the complaint. Therefore, the Court ascertained the totally different situation in which are the judges of the Supreme Court of Justice, in comparison with the other ordinary court judges, that determines the possibility of continuing the mandate of the judge also following the office vacancy, until their replacement, in order not to create impediments in the effective functioning of this authority.

Referring to the constitutional judges, according to Article 136 of the Constitution, the Constitutional Court consists of 6 judges appointed for a 6-year term of office. Two judges shall be appointed by the Parliament, two - by the Government and two - by the Superior Council of Magistracy.

The Court underscored that despite the legal provisions which expressly establishes deadlines for competent authorities to appoint constitutional judges, the practice shows that the judges of the Constitutional Court are appointed after a considerable period passed following the expiry of predecessors' mandate.

In these circumstances, the Court held that the Constitution does not admit any malfunctions in exercising constitutional jurisdiction due to the inaction of authorities which appoint or nominate the judges of the Constitutional Court. Or, the delays in the appointment of a new judge following the expiry of the mandate of a Constitutional Court judge jeopardize the activity of this authority, which guarantees the supremacy of the Constitution, the implementation of the principle of separation of powers and the responsibility of the State towards the citizen and of the citizen towards the State.

In its case law the Court noted that: "The Constitutional Court eo ipso cannot be inoperative".

Judgment of the Court

Starting from the above arguments, the Constitutional Court stated that:

- the judge of the Supreme Court of Justice, whose mandate expired when the age limit fixed by the law is reached, exercises its duties until the appointment of a new judge;

- the judge of the Constitutional Court, whose term expired, exercises its duties until the newly appointed judge takes its oath.

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 Gazette of the Republic of Moldova.