RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of November 28, 2023 No. 21

About exceptional case of illegality of Articles 14 of h (1), 55 parts (1), (4) and (6), 62 h (1) the Law No. 3 of February 25, 2016 on Prosecutor's office (legal regime of incompatibility during suspension of powers of the prosecutor in connection with initiation of criminal prosecution concerning person holding this position) (addresses No. 186g/2022 of year and No. 206g/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 Vasily Opr,

in view of the addresses registered on November 14, 2022 and on December 5, 2022

having considered these 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 the exceptional case of illegality of Articles 14, 55 and 62 Laws No. 3 of February 25, 2016 on Prosecutor's office declared by Elena Cherutse, the claimant in the matter of No. 3-140/2022, being in production of Appeal chamber Chisinau, and in the matter of No. 3-1338/2022, being in production the vessels Chisinau, the sector Ryshkan formed the basis for consideration of the case.

2. Appeals about exceptional case of illegality were sent in the Constitutional court, according to the procedure of Article 135 of h (1) by the item and) and the item g) Constitutions, the judicial structure of Appeal chamber Chisinau consisting of judges - Anatoliye Minchuna, Veronika Negru and Ekaterina Palanchuk, and also the judge in court of Chisinau, the sector Ryshkan, Korneliu Guzun.

3. In view of identity of subject of the addresses and motives which are the cornerstone of arguments about illegality, the Constitutional court decided to combine based on article 43 of the Code of the constitutional jurisdiction them in one production, having assigned it number 186g/2022.

4. Determination of the Constitutional court of July 18, 2023, without decision in essence, addresses were recognized as acceptable.

5. During consideration of addresses the Constitutional court requested opinions of Parliament, the President of the Republic of Moldova, the Government, the Supreme council of prosecutors, the Attorney-General, the National lawyer and Associations of prosecutors for procedure and justice.

6. At open session of the Constitutional court there was author of the address, Elena Cherutse. The parliament represented Rada Rada, the main consultant of service of representation in the Constitutional court and law enforcement agencies of general legal management of the Secretariat of Parliament. The government was represented by Eduard Serbenko, the state secretary of the Ministry of Justice.

Actual circumstances

I. Circumstances of the main disputes

Case No. 3-140/2022 (address No. 186g/2022 of)

7. In production of Appeal chamber Chisinau there is action for declaration of Elena Cherutse against the Supreme council of prosecutors with the assistance of the Prosecutor General's Office as the third party on appeal of the decision of the Supreme council of prosecutors No. 1-50/2022 of March 4, 2022 about issue of consent to suspension of powers of the prosecutor.

8. During judicial session of October 3, 2022 Elena Cherutse declared exceptional case of illegality of Articles 14 of h (1) and 55 parts (1), (4) and (6) the Law on Prosecutor's office.

9. The Appeal chamber Chisinau satisfied with determination of October 10, 2022 the petition and sent the appeal about exceptional case of illegality to the Constitutional court for its permission.

Case No. 3-1338/2022 (address No. 206g/2022 of)

10. In production the vessels Chisinau, the sector Ryshkan, there is action for declaration of Elena Cherutse against the Prosecutor General's Office, with the assistance of the Supreme council of prosecutors as the third party, about cancellation of the order of the acting as the Attorney-General No. 412-r from March 10, 2022 about suspension of powers prosecutor Elena Cherutsa since March 10, 2022 to removal of the final decision on criminal case on which she is accused of crime execution.

11. During consideration of the case Elena Cherutse declared exceptional case of illegality of Articles 14, 55 and 62 Laws on Prosecutor's office.

12. Determination of November 29, 2022 the court of Chisinau, the sector Ryshkan, satisfied the petition and sent the appeal about exceptional case of illegality to the Constitutional court for its permission.

II. Applicable legislation

13. Applicable provisions of the Constitution:

Article 23 Right of Each Person to Knowledge of the Rights and Obligations

"(1) Each person has the right to recognition of its legal personality.

(2) the State provides the right of each person to knowledge of the rights and obligations. For this purpose the state publishes all laws and other regulations and provides their availability".

Article 43 Right to work and protection of work

"(1) Each person has right to work, the free choice of work, fair and satisfactory working conditions, and also right of defense from unemployment.

(2) Workers have work right of defense. Measures for protection concern safety and occupational health, the mode of work of women and youth, establishment of minimum wage in the field of economy, weekly rest, paid leave, work under trying conditions, and also other specific situations.

(Duration of business week shall not exceed 3) 40 hours.

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