of November 23, 2011 No. 23
about interpretation of part (4) article 116 of the Constitution (Address No. 32b/2011)
Name of the Republic of Moldova
Constitutional court in structure:
To Alexander TENASE, chairman, judge-speaker,
Valeria SHTERBETS, judges,
with the assistance of the court clerk Dina Mustyatse,
in view of the address provided on October 10, 2011 and registered by the same number, having considered the specified address in open plenary meeting, considering acts and case papers,
issues the following decree:
POINTS OF ORDER
1. The address brought into the Constitutional court on October 10, 2011 based on Item b) to part (1) article 135 of the Constitution, Item g) formed the basis for consideration of this case to part (1) article 25 of the Law on the Constitutional court and Item g) parts (1) article 38 of the Code of the constitutional jurisdiction the deputy of Parliament Raisa Apolsky about interpretation of part (4) article 116 of the Constitution according to which:
"The chairman, vice-chairmen and judges of the Highest trial chamber are appointed by Parliament on representation of the Supreme council of magistracy."
2. The author of the address appealed to the Constitutional court with request by means of interpretation of part (article 116 of the Constitution to explain 4):
"a) What limits of competence of Parliament in the course of appointment of judges, the chairman and vice-chairmen of the Highest trial chamber; its resolution matters the determining act, or the act which is approving/performing investiture,
b) In what time the Parliament should make the decision on position assignment of judges, the chairman and vice-chairmen of the Highest trial chamber after introduction of the corresponding representation by the Supreme council of magistracy,"
3. The address was accepted determination of the Constitutional court of October 11, 2011 to consideration on the merits.
4. In the course of consideration of the address the Constitutional court requested opinions of Parliament, the President, the Government, the Supreme council of magistracy and the Highest trial chamber.
5. In open plenary meeting of the Constitutional court based on part (3) article 31 of the Code of the constitutional jurisdiction the author of the address added subject of the address, having asked the Constitutional court by means of interpretation of part (article 116 of the Constitution to explain 4): whether in case of submission of the resignation by the judge the labor law to what enough decision of the Supreme council of magistracy is applied or the resolution of Parliament is necessary,
6. The author of the address participated in open plenary meeting of the Constitutional court personally. The parliament was provided by the main consultant of legal management of the secretariat of Parliament Serdzhiu Kirike. The government was provided by the Minister of Justice Oleg Efrim.
7. Applicable provisions of the Constitution (M.O. No. 1/1 1994): Article 6 Separation and interaction of the authorities
"In the Republic of Moldova the legislative executive and judicial authorities are divided and interact when implementing the prerogatives according to Constitution provisions." Article 116 Status of Judges
"(1) Judges of degrees of jurisdiction are independent, impartial and irremovable according to the law.
(2) Judges of degrees of jurisdiction are appointed the President of the Republic of Moldova on representation of the Supreme council of magistracy according to the law. The judges who underwent tender are appointed originally to five-year term. After five years of the judge are appointed before age achievement of the limit established according to the law.
(3) Chairmen and deputy chairmen of degrees of jurisdiction are appointed the President of the Republic of Moldova on representation of the Supreme council of magistracy to four-year term.
(4) the Chairman, vice-chairmen and judges of the Highest trial chamber are appointed by Parliament on representation of the Supreme council of magistracy. They shall have length of service in judgeship at least 10 years. [...]" Article 123 of Power
"(1) the Supreme council of magistracy provides appointment, movement, sending out on business of judges, increase them in positions and application to them disciplinary actions. [...]"
8. Applicable provisions of the Law No. 789-XVI of March 26, 1996 on the Highest trial chamber (M.O. 196-199/764 1996; repeated publication of M.O. No. 26-27/176 1998): Article 9
Appointment of the chairman, vice-chairmen and judges of the Highest trial chamber
"(1) the Chairman of the Highest trial chamber, vice-chairmen are chairmen of boards, deputy chairmen of boards and judges of the Highest trial chamber are appointed to position by Parliament on representation of the Supreme council of magistracy in 30-day time. The chairman of the Highest trial chamber, Predsedatelyapredsedateli's deputies of boards, deputy chairmen of boards of the Highest trial chamber are appointed to position for four-year term. In case of detection of indisputable proofs of incompatibility of the candidate with the corresponding position, violation by it of the legislation or violation of processes at law of its selection and promotion the Supreme council of magistracy is informed on it by the Chairman of the parliament based on the conclusion of the Commission on points of law, appointments and immunity in 30dnevny term from the date of receipt of representation. In case of the circumstances requiring additional consideration or in case of parliamentary recess the Supreme council of magistracy is informed on prolongation of the specified term for 15 days or prior to the session.
(2) the Parliament considers repeated representation of the Supreme council of magistracy and makes the decision on position assignment of the Chairman, the vice-chairman or the judge of the Highest trial chamber in 30-day time from the date of receipt of repeated representation."
9. Applicable provisions of the European convention on human rights protection and fundamental freedoms, with the subsequent changes made by additional protocols (the Republic of Moldova concluded in Rome on November 4, 1950 and ratified by the Resolution of Parliament No. 1298-XIII of July 24, 1997 M.O. No. 54-55/502 1997), further - "The European convention": Article 6 Right to fair legal proceedings
"1. Everyone in case of dispute on its civil laws and obligations or in case of presentation of any criminal charge to it has the right to fair and public trial of case in reasonable time by the independent and just trial created based on the law. The judgment appears publicly, however the press and public can not be allowed on judicial sessions during all process or its part for reasons of morals, public order or homeland security in democratic society and also when that is required by interests of minors or for protection of private life of the parties, or - in that measure in what it according to court is strictly necessary, - in case of special circumstances when publicity would violate the interests of justice. [...]"
POINTS OF LAW
10. The constitutional court notes that prerogative which it is allocated owing to Item
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