Criminal Liability of Judges Arising from a Wilful Rendering of an Illegal Decision – Constitutional

On 28 March 2017, the Constitutional Court of Moldova delivered a judgment on the exception of unconstitutionality of Article 307 of the Criminal Code of Moldova.

Circumstances of the case

The case originated in an exception of unconstitutionality of Article 307 of the Criminal Code of Moldova, raised ex-officio by the panel of the Supreme Court of Justice, when examining the contested decisions of Superior Council of Magistrates, in case no. 3-10/16.

On the ground of Article 307 of the Criminal Code, the judge may be held criminally liable for wilfully rendering a judgment, sentence, decision or ruling in breach of the law.

The authors of the exception of unconstitutionality alleged, mainly, that Article 307 of the Criminal Code affects the principle of checks and balance and the principle of independence of the judges, which violates Articles 6 and 116.1 of the Constitution.

By the Decision of 27 December 2016 of the Constitutional Court of Moldova, the application was declared admissible, with no prejudice to the merits of the case.

When examining the application, the Court requested the opinions of Parliament, President of the Republic of Moldova and of the Government.

The Court also requested an opinion from the Venice Commission. On 13 March 2017, the Venice Commission communicated to the Constitutional Court of Moldova its amicus curiae brief, adopted within the 110^th plenary session.

The application was examined by the Constitutional Court of Moldova in the following composition:

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEŞU,

Mr Igor DOLEA,

Mr Tudor PANȚÎRU,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN,  judges.

Conclusions of the Court

General principles

Hearing the reasoning of the parties and examining the casefiles, the Court mentioned that in line with Articles 116 of the Constitution, judges of law-courts are independent, impartial and immovable, according to the law.

The Court noted that under international standards, as a rule, the immunity is granted to judges in order to ensure the fulfilment of their work duties. Independence of the judiciary is not a prerogative or a privilege granted for the judge's own interest, it however being a fundamental principle, an essential element of any democratic state, a preliminary condition of the rule of law and a fundamental guarantee of a fair trial. The independence of judges shall be considered a guarantee of freedom, of the respect of human rights and of impartial application of the law. Judiciary shall be independent in order to fulfil its role in relation to other powers of the state and of the society in general, and in relation with litigants, in particular.

At the same time, the Court underlined that the independence of the judge does not preclude his liability, it being subject to prudence that would be determined by the need to guarantee full liberty of a judge against undue pressure.

The Court mentioned that given in a democratic society the judge may not enjoy an absolute immunity, there emerges the issue of conditions and ways for a judge to be held liable. Therefore, there shall be noted that although European standards allow for judges' criminal liability in performing their judicial duties, the threshold is quite high.

In this regard, under international standards on independence of judges, the duty performed by a judge in interpreting the law, examining evidence and assessing facts when solving cases, shall not give rise to civil, criminal or disciplinary liability of the judge, save for cases involving bad faith, intentional guilt or proved gross negligence.

The Court noted that judicial independence imposes the condition of protection of judges against influences of other powers of the state and that each judge shall enjoy professional liberty in interpreting the law, in assessing facts and evidence, in each case individually. Therefore, it shall be possible for erroneous decisions to be corrected by way of appeal and cannot have as a consequence individual accountability of the judges. As exceptions may only serve cases where, upon taking the decision, the judge acted in bad faith or his actions led to a serious omission. This opinion is also shared by the Venice Commission.

Further, the Court held that the Parliament is free to decide on criminal liability of the state, in line with provisions of Article 60.1 of the Constitution, as the sole lawmaking authority of the country. Concurrently, the Court held that it [the Court - TN] is not granted the competence to involve itself in the field of lawmaking and in the criminal policy of the state, any contrary attitude constituting an interference in the competence of this constitutional authority.

Therefore, the Court recognised that, in this field, the lawmaker enjoys a wide margin of appreciation, considering it is in the position to assess, depending on a number of criteria, the need for a certain criminal policy. However, the Court held that although, as a matter of principle, the Parliament is granted the exclusive competence in regulating issues relating to state's criminal policy, this competence is not absolute as to preclude constitutional review of the adopted measures.

The Court found that the criminalisation/decriminalisation of acts or reconfiguration of constitutive elements of an offence fall into the margin of appreciation of the lawmaker - this margin being not absolute, as it is limited by constitutional principles, values and exigencies.

In this regard, the Court held that the lawmaker shall seek to use criminal measures depending upon the protected social value, the Court enjoying the competence to censure options of the lawmaker in case it infringes upon principles and exigencies of constitutional order.

In this context, the Court held that in fulfilling its legislative competence in criminal matters, the lawmaker shall consider the principle which provides that the incrimination of an act as an offence shall come into play as a last resort in safeguarding a social value, guided by the principle of "ultima ratio," which means that the criminal law is the sole measure to achieve the pursued goal, other than [measures] of civil, administrative, disciplinary nature which may be inefficient in achieving the desired goal.

In this vein of ideas, the Court stressed that from the perspective of the "ultima ratio" principle in criminal matters, it is not sufficient for the incriminated offences to be found as affecting the protected social values, but this damage shall present a certain degree of intensity and seriousness, that would justify criminal sanctioning.

The Court mentioned, as a matter of principle, that responsibility to refrain from unjustified application of Article 307 of Criminal Code against judges and to avoid a labelling effect in their regard, does not apply only to the Prosecutor General and courts of law, but especially to the Superior Council of Magistrates, as a guarantor of independence of the judiciary. Subsequently, the Superior Council of Magistrates, when authorising the launch of criminal prosecution under Article 307 of the Criminal Code, is under the duty to consider the fact that criminal liability shall always be a measure which is to be applied as a last resort. Subsequently, an analysis must be undertaken each time on whether other measures than that of criminal nature, for instance disciplinary sanctions, may be more appropriate.

The Court underscored that judges may not be constrained to perform their duties under the threat of a sanction, which may adversely affect the decision to be rendered. In other words, in performing their duties, judges shall enjoy unfettered freedom to solve cases impartially, in line with legal provisions in force and with his own assessment, without it being affected by bad faith. It is for these reasons, the arguments of a judge which determined the rendering of a decision on a case, this judicial decision being overturned or reversed, may not serve as a determining ground in sanctioning a judge.

The Court mentioned that judicial independence implies a special status enjoyed by judges, who shall be protected against the subjectivism of criminal prosecution bodies, which would jeopardize the former. It is precisely for these reasons that the lawmaker provided for a distinct and rigorous procedure in cases judges may incur criminal liability, a crucial role in this process being reserved to the Superior Council of Magistrates, as a guarantor of independence of the judiciary.

Application of the principles in the present case

The Court noted that according to Article 307 of the Criminal Code, a judge may incur criminal liability resulting from a wilful rendering of a judgment, sentence, decision or ruling in breach of the law.

The Court found that by inserting into Article 307 of the Criminal Code the phrase "wilful rendering," the lawmaker has expressly provided for the judges to be held criminally liable for this criminal component, exclusively in case there is proved his intention to deliver the judgment, sentence, decision of the ruling in breach of the law.

The main remedy in correcting judicial errors is to exercise the means of appeal, and the quashing of a court judgment, sentence, decision or conclusion by the higher courts is not in itself a ground for initiating criminal proceedings against the judge.

The Court held that the criminal liability of the judge under Article 307 of the Criminal Code may be compatible with the principle of independence of the judge only following a strict interpretation and only on the basis of indisputable evidence that would prove the intention of the judge in issuing a judicial act in breach of the law.

In this context, the Court recalled that in the ECtHR's case-law was shaped the standard of „beyond a reasonable doubt," meaning that, for a sentence of conviction to be delivered, the charge must be proven beyond a reasonable doubt.

The existence of evidence beyond a reasonable doubt is an essential component of the right to a fair trial and imposes on the prosecution the burden of proving all the elements of guilt in a manner that would remove the doubt, including, in the case of Article 307 of the Criminal Code, the intent of the judges of courts of law, Courts of Appeal and of the Supreme Court of Justice in delivering a judgment, sentence, decision or ruling in breach of the law.

In this respect, the Court noted that, according to legal principles of criminal procedure, the burden of proof lies with the prosecution, and the situation of doubt is interpreted in favour of the accused (in dubio pro reo).

Judgment of the Court

Stemming from the above reasoning, Constitutional Court of Moldova dismissed the exception of unconstitutionality and declared as constitutional Article 307 of the Criminal Code of the Republic of Moldova no. 985-XV of 18 April 2002, to the extent that judges of the courts of law, Courts of Appeal and of the Supreme Court of Justice may incur criminal liability only for wilfully rendering a judgment, a sentence, a decision or a ruling in breach of the law.

The Judgment of the Constitutional Court of Moldova is final, cannot be subject to any appeal, enters into force upon its delivery and is published in the Official Journal of Moldova.

This press-release is a non-official translation of the Romanian version.