Exclusion from Judicial Review of the Appointment and Revocation of Heads of State Chancellery’s Territorial Offices – Unconstitutional

On 22 July 2016, the Constitutional Court of Moldova delivered its judgement on the exception of unconstitutionality of certain provisions of the Annex to the Law No. 793 of 10 February 2000 on administrative litigation.

Circumstances of the case

The case originated in the exception of unconstitutionality of the phrase „and his deputy" provided for by the item 15 of the Annex to the Law No. 793 of 10 February 2000 on administrative litigation, raised by the lawyer Valeriu Stănescu, in case No. 3-74/15 pending before the Cimișlia Court.

According to item 15 of the Annex to the Law on administrative litigation, the head of the territorial office of the State Chancellery and his deputy are included in the list of public officials who represent a political or special public interest, which excludes them from filing cases before the administrative court.

The author of the complaint noted that according to Article 4 of the Law on administrative litigation, only acts of Parliament, of the President of Moldova and of the Government – concerning the election, appointment and dismissal from public office of public officials, who represent a political or special public interest – are excluded from judicial review.

In this case, the deputy head of the territorial office of the State Chancellery was dismissed from office by an order of the Deputy Secretary General of State Chancellery.

The author claimed that, in essence, by including the deputy head of the territorial office of the State Chancellery in item 15 of the Annex to the Law on administrative litigation, which also determines the exclusion from judicial review of the order of dismissal from office, there are infringed Articles 1.3, 20 and 54 of the Constitution.

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

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN, judges

Conclusions of the Court 

Hearing the reasoning of the parties and examining the casefiles, the Court held that Article 20 of the Constitution guarantees the right of an individual to take court action. Meanwhile, in its caselaw the Court noted that access to justice is not an absolute right and may be restricted only to the extent this does not affect its substance.

The Court noted that pursuant to Article 4 of the Law on administrative litigation, there cannot be challenged in administrative courts individual administrative acts issued by Parliament, the President of Moldova and the Government concerning the election, appointment and dismissal from public office of public officials, who represent a political or special public interest. The list of public officials, representatives of a political or special public interest, who are excluded from filing actions before the administrative court, is provided in the Annex to this Law.

Concerning officials that represent a special public interest, the Court held in its caselaw that they shall enjoy the guarantees of a fair trial. However, their functional duties do not involve direct engagement in the political activity of the State.

In this regard, the Court ruled that the individual acts, issued by the Parliament, the President of Moldova and the Government, with reference to officials representing a special public interest, elected or appointed during the mandate may be subject to constitutional review of the form and adopting procedure (JCC No. 10 of 16.04.2010, JCC No. 29 of 21.12.2010).

The Court found that the head and deputy head of the territorial office of the State Chancellery are included in the list of officials who are excluded from filing cases before the administrative court.

The Court noted that according to item 15 of the Regulation on the organization and functioning of territorial offices of the State Chancellery, prior to the amendments made by the Government Decision No. 333 of 23 March 2016, the deputy of the Territorial Office was appointed and dismissed by the Secretary General of the Government (currently - State Chancellery).

In this respect, the Court found that the Annex to the Law on administrative litigation filing cases before the court the individuals that were appointed and dismissed from office by departmental administrative acts, contrary to other legal provisions.

The Court held that although following the amendments made by the Government Decision No. 333 of 23 March 2016 to the Regulation on the organization and functioning of territorial offices of State Chancellery, similarly to the head of the Office, the deputy is also appointed and dismissed by government decision, the Court shall determine whether the exclusion from judicial review of the acts on the appointment and dismissal of the head and deputy of the territorial office of the State Chancellery comply with constitutional provisions, taking into account the status of this office and the reasoning from constitutional caselaw.

The Court found that pursuant to the Law No. 199 of 16 July 2010 on the status of individuals holding offices of public dignity, the head and deputy head of the territorial office of State Chancellery are persons of public dignity. At the same time, the regulatory framework does not provide criteria for appointment or dismissal of individuals holding these offices.

The Court noted that the territorial offices of State Chancellery are subdivisions of State Chancellery which aim at carrying out, in the country, the administrative review of the legality of acts of local public administration authorities.

Pursuant to the Law on local public administration, the activity of first and second level local public administration authorities is subject to administrative review, which includes the review of legality and appropriateness, conducted by State Chancellery through its territorial offices.

The Court noted that the concerned individuals are involved in special employment relationships. As a result, they benefit from special employment rights and guarantees, stemming from the general rules of the labour legislation and taking into account the peculiarities of administrative contracts.

The Court held that unlike the acts on the appointment and dismissal of other state officials, the Government Decision concerning the head and deputy head of the territorial office of the State Chancellery may not be subject to constitutional review. In other words, in its caselaw the Court noted that there will be submitted to constitutional review the acts on the appointment or revocation of individuals representing a special public interest designated in office during a mandate, in respect of whom the law sets out clear criteria for appointment and dismissal. Also, the Court underscored that this office is not provided at constitutional level.

Considering the abovementioned, the Court held that the exemption of the acts on the appointment and revocation of the head and deputy head of the territorial office of the State Chancellery from being challenged in the administrative court, deprives these individuals of their right of access to justice and finally of their right to a fair trial, contrary to Article 20 of the Constitution.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court admitted the exception of unconstitutionality and declared unconstitutional item 15 of the Annex to the Law No. 793 of 10 February 2000 on administrative litigation.

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 Moldova.

This press-release is also available in its original version, in Romanian language.