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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of February 9, 2023 No. 4

About exceptional case of illegality of Article 24 of h (1-1) items b) the Law No. 544 of July 20, 1995 on the status of the judge (suspension by the right of powers of the judge if the disciplinary board offered its dismissal) (the address No. 150g/2022 of year)

Name of the Republic of Moldova

Constitutional court in structure:

Domnika Manole, chairman,

Nikolay Roshka,

Liouba Shova,

Sergey Tsurkan,

Vladimir Tsurkan, judges

with the assistance of the assistant judge Christina Kikhay,

in view of the address,

registered on September 22, 2022,

having considered this address in open plenary meeting,

considering acts and case papers,

having carried out discussion in the consultative room,

issues the following decree.

Procedure questions

1. The address about exceptional case of illegality of Article 24 of h (1-1) items b) the Law No. 544 of July 20, 1995 on the status of the judge declared by the judge Mikhail Kozhokaru, the claimant in the matter of No. 3-330/2022, being in production of Appeal chamber Chisinau formed the basis for consideration of the case.

2. The address about exceptional case of illegality was brought into the Constitutional court by the judicial structure of Appeal chamber Chisinau consisting of judges - Anatoly Minchuna, Ekaterina Palanchuk and Veronika Negru, based on Article 135 of h (1) the item and) and the item g) Constitutions.

3. Determination of the Constitutional court of January 12, 2023, without decision in essence, the address was acknowledged acceptable.

4. During consideration of the address the Constitutional court requested opinions of Parliament, the President of the Republic of Moldova and the Government.

5. Were present at open session of the Constitutional court: author of the address judge Mikhail Kozhokaru, representative of the author of the address lawyer Ioann Streystyanu's Doina, representative of Parliament Rada Rada and representative of the Government Eduard Serbenko.

Actual circumstances

A. Circumstances of the main dispute

6. The judge Mikhail Kozhokaru submitted on July 6, 2022 the action for declaration against the Supreme council of magistracy with the requirement to state illegality of the decision of disciplinary board of April 22, 2022 and to cancel this decision, and also to establish the fact of prosecution, discrimination on the basis of disability, oppression, intimidation and squaring of accounts from bodies of judicial self-government.

7. During trial the judge Mikhail Kozhokaru declared on August 1, 2022 exceptional case of illegality of the item b) h (1-1) articles 24 of the Law on the status of the judge.

8. The Appeal chamber Chisinau satisfied with determination of September 14, 2022 the petition and sent the appeal about exceptional case of illegality to the Constitutional court for its permission.

B. Applicable legislation

9. Applicable provisions of the Constitution:

Article 1 State Republic of Moldova

"[…]

(3) the Republic of Moldova - the democratic constitutional state in which advantage of the person, its rights and freedom, free development of the human person, justice and political pluralism are the supreme values and are guaranteed".

Article 16 Equality

"(1) the Respect and protection of the personality constitute paramount obligation of the state.

(2) All citizens of the Republic of Moldova are equal before the law and the authorities irrespective of race, nationality, ethnic origin, language, religion, floor, views, political affiliation, property status or social origin".

Article 20 Open entry to justice

"(1) Any person has the right to effective recovery in the rights by competent courts in case of violation of its rights, freedoms and legitimate interests.

(2) Any law cannot limit access to justice".

Article 116 Status of Judges

"(1) Judges of degrees of jurisdiction are independent, impartial and irremovable according to the law.

[…]".

Article 123 of Power [The Supreme council of magistracy]

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