of September 5, 2013 No. 22
About control of constitutionality of some provisions concerning immunity of the judge (the Address No. 32a/2012)
Name of the Republic of Moldova
Constitutional court in structure:
To Alexander TENASE, chairman,
Petra RAJLJAN, judges,
with the assistance of the secretary of meeting Corinna of Pop,
in view of the address provided and registered on September 7, 2012, having considered the specified address in open plenary meeting, considering acts and case papers, having held meeting behind closed doors, issues the following decree:
POINTS OF ORDER
1. The appeal of the Highest trial chamber brought into the Constitutional court on September 7, 2012 according to provisions of Art. 135 of h (1) the item and) formed the basis for consideration of the case to the Constitution, Art. 25 of the item d) the Law on the Constitutional court and Art. 38 of h (1) the item d) the Code of the constitutional jurisdiction, about control of constitutionality of some provisions of h (4) and (5) Art. 19 Law No. 544-XIII of July 20, 1995 about the status of the judge and the third paragraph of item 13 of the Art. II of the Law No. 153 of July 5, 2012 on modification and amendments in some legal acts.
2. The challenged provisions exclude need of receipt of consent of the Supreme council of magistracy to start criminal prosecution concerning the judge and for his detention, the forced drive, arrest and search in case of making of the crimes provided Art. 324 (passive tampering) and Art. 326 (extraction of benefit from influence) the Criminal code, and also for involvement of the judge to the administrative responsibility.
3. The author of the address believes, in particular, that the changes made by the Law No. 153/2012 to Art. 19 of the Law on the status of the judge cause damage to independence of judicial system as deprivation of the Supreme council of magistracy of the right to establish "availability" or "lack" of the bases for initiation of criminal prosecution or for application of administrative punishment concerning the judge is inadmissible intervention in implementation of procedural guarantees on ensuring independence and impartiality of magistrates in case of administration of law.
4. The author of the address considers that the challenged provisions contradict provisions of Art. 6 and Art. 116 of the h. (1) and (6) to the Constitution, and also international acts of independence of judges.
5. Determination of the Constitutional court of October 4, 2012, without decision in essence, the address was acknowledged acceptable.
6. During consideration of the address the Constitutional court requested opinions of Parliament, the President of the Republic of Moldova, the Government, the Ministry of Justice, the Supreme council of magistracy.
7. The constitutional court requested also opinion of the European commission for democracy through the right of the Council of Europe (further - the Venetian commission). On March 11, 2013 the Venetian commission provided to the Constitutional court the Conclusion of Amicus Curiae, concerning compatibility of the provisions of the Law on the status of the judge providing immunity of the judge with the European standards which was adopted at the 94th plenary session which took place on March 8-9, 2013.
8. The representative of the Highest trial chamber, the vice-chairman of Board on civil, commercial and administrative cases the judge Yuli Syrka and the representative of Parliament, the main consultant of general legal management of the Secretariat of Parliament Serdzhiu Kirike participated in open plenary meeting of the Constitutional court.
9. On July 5, 2012 the Parliament of the Republic of Moldova adopted the Law No. 153 on modification and amendments in some legal acts.
"(4) Criminal prosecution concerning the judge can be begun only by the Attorney-General with the consent of the Supreme council of magistracy according to the procedure, provided by the Code of penal procedure. In case of making by the judge of the crimes provided by articles 324 and 326 of the Criminal code of the Republic of Moldova, the consent of the Supreme council of magistracy to start criminal prosecution is not required.
(5) the Judge cannot be detained, subjected to the drive, it is arrested, subjected to search without the consent of the Supreme council of magistracy. The consent of the Supreme council of magistracy is not required in case of the making of obvious crime and crimes provided by articles 324 and 326 of the Criminal code of the Republic of Moldova."
11. Also provisions of the third paragraph of item 13 of the Art. II it is recognized as the invalid p. (6) Art. 19 of the Law on the status of the judge which provided the following:
"Involvement of the judge to the administrative responsibility can be performed only by degree of jurisdiction with the consent of the Supreme council of magistracy. The judge detained on suspicion of making of administrative offense shall be exempted immediately after establishment of his personality".
12. Applicable provisions of the Constitution (M.O., 1994, No. 1):
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 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 70 Incompatibility and immunity
(3) the Deputy cannot be detained, arrested, subjected to search, except detention cases on site of crime, or it is brought to judicial responsibility without the consent of the Parliament this after hearing of the deputy."
Article 81 Incompatibility and immunity
(3) the Parliament can make the decision on initiation of accusation against the President of the Republic of Moldova in case of making of crime by it two thirds of voices of the elected deputies. According to the law legal proceedings are included into competence of the Highest trial chamber. The president is discharged of position by right from the date of the introduction in legal force of conviction."
Article 116 Status of Judges
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