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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of February 14, 2023 No. 5

About exceptional case of illegality of separate provisions of the Law No. 26 of March 10, 2022 on some measures for candidate screen to position of the member of self-government institutions of judges and prosecutors (power of the Highest trial chamber by consideration of claims to decisions of the commission on assessment) (addresses No. 17g/2023, No. 21g/2023, No. 23g/2023, No. 24g/2023, No. 27g/2023 and No. 31g/2023)

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 addresses registered on January 31 and, respectively, 2, 6, on February 8 and 10, 2023

having considered the specified addresses in open session,

considering acts and case papers,

having carried out discussion in the consultative room,

issues the following decree.

Procedure questions

1. Addresses about exceptional case of illegality of following provisions of the Law No. 26 of March 10, 2022 on some measures for candidate screen to position of the member of self-government institutions of judges and prosecutors formed the basis for consideration of the case:

- concepts "rough", "reprehensible" "are also "inexplicable" in the item and) h (2) Article 8;

- syntagmas "for the last 15 years" in the item b) h (4) Article 8;

- syntagmas "or persons specified in part (2) Article 2" in the item c) h (5) Article 8;

- concepts "does not depend" of h (6) Article 8 and

- the provisions "if establishes availability of circumstances which could lead to passing by the candidate of assessment" in the item b) h (8) Article 14.

2. Addresses about exceptional case of illegality were provided: the lawyer Petra Balan for the benefit of the judge Angela Bostan, party litigants No. 3-1/2023, for the benefit of the judge to Serdzhiu Osoyan, party litigants No. 3-6/2023, and for the benefit of the judge Ekaterina Buzu in the matter of No. 3-7/2023; lawyers Rodion Tokan and Marjan Buketaru for the benefit of the judge Yury Bezhenaru, party litigants No. 3-2/2023; judge Vladislav Holban, party litigant No. 3-4/2023; the lawyer Nikolaym Leshan for the benefit of the judge Vitalia Stratan, party litigants No. 3-3/2023. All cases are in production of the Highest trial chamber and are considered by the special structure of court created for consideration of claims to decisions of the independent commission on assessment of integrity of candidates for position of the member of self-government institutions of judges and prosecutors.

3. Appeals about exceptional case of illegality were sent in the Constitutional court by the above-stated structure of court consisting of judges - Vladimir Timofti, Svetlana Filinkova and Alla Kobenyanu, according to the procedure of Article 135 of h (1) the item and) and the item g) Constitutions.

4. Determination of the Constitutional court of February 7, 2023, without decision in essence, addresses No. 17g/2023 and No. 21g/2023 were recognized as acceptable. Considering identity of subject of the addresses and motives which are the cornerstone of arguments about illegality determination of the Constitutional court of February 13, 2023 addresses No. 23g/2023, No. 24g/2023, No. 27g/2023 and No. 31g/2023 were combined with addresses No. 17g/2023 and No. 21g/2023 to one production, having appropriated it No. 17g/2023.

5. During consideration of the case the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova and the Government.

6. Determination of plenum of the Constitutional court rejected the statement of the judge Domniki Manole for rejection from consideration of this case.

7. Were present at open session of the Constitutional court: the judge Angela Bostan, the lawyer Petra Balan for the benefit of the judge Angela Bostan, the judge to Serdzhiu Osoyan and the judge Ekaterina Buzu, lawyers Rodion Tokan and Marjan Buketaru for the benefit of the judge Yury Bezhenaru, the representative of Parliament Valery Kuchuk, and the representative of the Government Veronika Mikhaylov Moraru.

Actual circumstances

A. Circumstances of the main disputes

I. Circumstances of dispute on which Angela Bostan acts as the claimant (the address No. 17g/2023)

8. Angela Bostan, the judge in Appeal chamber Chisinau, was candidate for position of the high councilor of magistracy. So, its candidate was subjected to assessment procedure for promotion to this position. The procedure was carried out by the independent commission on assessment of integrity of candidates for position of the member of self-government institutions of judges and prosecutors.

9. By results of evaluating the commission passed the decision No. 6 of December 9, 2022 in which stated that the judge Angela Bostan does not meet the requirements for integrity as there were serious doubts concerning the candidate's compliance to criteria to ethical integrity and financial integrity, and did not pass assessment.

10. Angela Bostan in January, 2023 appealed the decision of the commission in special structure of court of the Highest trial chamber. During judicial session of January 30, 2023 the lawyer Petra Balan declared for the benefit of Angela Bostan exceptional case of illegality of concepts "rough", "reprehensible" and "are inexplicable" in the item and) h (2) Articles 8, of syntagma "for the last 15 years" in the item b) h (4) Articles 8, of syntagma "or persons specified in part (2) Article 2" in the item c) h (5) Article 8 and the provision "if establishes availability of circumstances which could lead to passing by the candidate of assessment" in the item b) h (8) article 14 of the Law on some measures for candidate screen to position of the member of self-government institutions of judges and prosecutors.

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