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Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of November 11, 2014 No. 26

About control of constitutionality of some provisions concerning immunity of the judge (2) (the Address No. 51a/2014)

Constitutional court in structure:

To Alexander Tenase, chairman,

Auryl to Beesh,

Igor Dolya,

Victor of Pop,

Tudor Pantsyru, judges,

with the assistance of the secretary of meeting Maxim Yurka,

in view of the address provided and registered on September 29, 2014

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 29, 2014 according to provisions of Art. 135 of the h formed the basis for consideration of the case. (1) item and) Constitutions, Art. 25 of the item d) Law on the Constitutional court and Art. 38 of the h. (1) the item d) the Code of the constitutional jurisdiction, about control of constitutionality of the words "243", "and 330-2" from the h. (4), h (5-1) and h (5-2), and also syntagmas "and creation of the protocol by the stating subject" from h (5-3) Laws No. 544-XIII of July 20, 1995 on the status of the judge, in edition of the Law 177 of July 25, 2014 on modification and amendments in some legal acts.

2. The author of the address believes, in particular, that the changes made to Art. 19 of the Law on the status of the judge which exclude the requirement about the consent of the Supreme council of magistracy in case of initiation of criminal prosecution concerning the judges committing the crimes provided by Art. 243 and Art. 330-2 of the Criminal code and establish procedure and the procedure of involvement of judges to the administrative responsibility, restrain independence of judicial system and represent inadmissible intervention in implementation of the procedural guarantees providing independence and impartiality of magistrates in administration of law.

3. The author of the address considers that the challenged provisions contradict the Art. 6, of Art. 20 and Art. 116 of the h. (1) and h. (6) to the Constitution and some international acts on perspective of judicial independence.

4. Determination of the Constitutional court of October 20, 2014, without decision in essence, the address was acknowledged acceptable.

5. During consideration of the address the Constitutional court requested opinions of the President of the Republic of Moldova, Parliament, the Government and the Prosecutor General's Office.

6. From the Highest trial chamber were present the vice-chairman of Board on civil, commercial and administrative cases at open plenary meeting of the Constitutional court Yuli Syrka and the chief of the Secretariat of the Highest trial chamber Valentin Lastavetsky. The parliament was provided by the chief of service of General legal management of the Secretariat of Parliament by the legislation in the field of law and order and law enforcement agencies Serdzhiu Sidor. The government was provided by the deputy minister of justice to Nicolae Eshan.

Actual circumstances

7. On July 25, 2014 the Parliament of the Republic of Moldova adopted the Law No. 177 on modification and amendments in some legal acts.

8. This law made changes in Art. 19 of the Law No. 544-XIII of July 20, 1995 on the status of the judge. So, h. (4) this Article initiation of criminal prosecution concerning judges without the consent of the Supreme council of magistracy not only in case of making of crimes of passive tampering and extraction of benefit from influence, but also in case of money laundering and illegal enrichment provides.

9. Provisions of h (5-1) provide that after the beginning of criminal procedure and prior to criminal prosecution the judge can be detained, subjected to the drive, search with the permission of the Attorney-General or the First Deputy Attorney-General, and in case of its absence – one of deputies appointed based on the order issued by the Attorney-General without informing the Supreme council of magistracy.

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