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Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of March 4, 2016 No. 7

About control of constitutionality of some provisions of the Law No. 1115-XIV of July 5, 2000 on modification and amendments in the Constitution of the Republic of Moldova (procedure for election of the President) (the Address No. 48b/2015)

Constitutional court in structure:

To Alexander Tenase, chairman,

Auryl to Beesh,

Igor Dolya,

Victor of Pop, judges,

with the assistance of the secretary of meeting Lyudmila Kikhay,

in view of the address provided and registered on November 12, 2015

having considered the specified address in open plenary meeting,

considering acts and case papers,

having carried out discussion in the consultative room,

issues the following decree.

Points of order

1. The address brought into the Constitutional court on November 12, 2015 by 18 deputies of parliamentary fraction of Liberal democratic party of Moldova as a part of Valery Giletsky, Tudor Deliu, Liliana Palichowitsch, Angela Agake, Maria Ciobanu, Vladimir Hotinyanu, Kirill Luchinsky, Grigory Kobzak, Vadim Pistrinchuk, Yury Tsap, Jonah Balan, Nai-Semyon Plieshka, Stefan Krjange, Octavian Gram, Georgy Mokana, Mikhayela Spatar, Alyona Gotsa, Victor Roshk according to provisions of Art. 25 of the item h) the Law on the Constitutional court and Art. 38 of the h formed the basis for consideration of the case. (1) the item h) the Code of the constitutional jurisdiction, about control of constitutionality of Item 2 in general and syntagmas "except for the case provided by part (5) Article 78" Item 5 of article I of the Law No. 1115-XIV of July 5, 2000 on modification and amendments in the Constitution of the Republic of Moldova to which the procedure for election of the President of the Republic of Moldova was changed.

2. Authors of the address, in particular, require check of some provisions of the Law No. 1115-XIV on introduction of amendments to articles 78 and 85 part (4) Constitutions, meaning the procedure of their acceptance, regarding compliance to Articles 135 of the h. (1) item c) and 142 h. (1) Constitutions, and also to the constitutional principle of the constitutional state established by preamble of the Constitution and Art. 1 of the h. (3) Constitutions.

3. In open session the author concretized subject of the address, requesting implementation of the constitutional control only of the changes concerning the mechanism of election of the President of the Republic of Moldova 3/5 from total number of deputies. The author of the address does not dispute other changes which do not differ significantly from the original project approved by the Constitutional court and which do not influence unity and balance of the constitutional matter.

4. With respect thereto authors of the address ask that the Constitutional court, by interpretation of Art. 135 of the h. (1) the item c) in combination with provisions of Art. 141 of the h. (2) Constitutions, explained:

"Whether 1) the repeated conclusion of the Constitutional court under the amendments made by deputies and accepted by Parliament in the second reading of the bill of introduction of amendments to the Constitution after submission to Parliament of the project on which the Constitutional court drew the conclusion Is necessary and/or obligatory?

Whether 2) the procedure of adoption of the draft of the constitutional law which was significantly Was violated and it is conceptually changed by deputies in the second reading, without the repeated conclusion of the Constitutional court?

3) If the Constitutional court drew the repeated conclusion under the bill of review of the Constitution significantly changed by Parliament in the second reading whether this project shall undergo all procedure provided by Art. 143 of the h. (1) Constitutions?"

5. Determination of the Constitutional court of December 7, 2015, without decision in essence, the address was acknowledged acceptable.

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

7. In open plenary meeting of the Constitutional court the address was supported by the author of the address deputy Valery Giletski. The government was represented by Eduard Serbenko, the deputy minister of justice. The parliament provided to the Constitutional court the written opinion, but did not direct the representative for participation in meeting.

Actual circumstances

8. Of May 23, 1999 participated in republican advisory referendum 58, % of voters, from them 55,33 of % was answered in the affirmative on question: Whether "You support change of the Constitution for the purpose of introduction of presidential system of board in the Republic of Moldova in case of which the President of the republic will be responsible for forming of the Government and management of the Government, and also for results of government of the country?" On the same question 30,85 of % of voters answered in the negative.

9. The Constitutional court confirmed with the resolution No. 32 of June 15, 1999 results of republican advisory referendum, but decided that it "has advisory character and its results do not attract legal effects".

10. Contrary to the choice made by participants of republican advisory referendum the Law No. 1115-XIV of July 5, 2000 the Parliament made amendments to the Constitution of the Republic of Moldova, having changed, among other, and Article 78. Thus, if before the President was elected citizens by direct vote, after introduction of the constitutional amendments the Parliament was given the right to elect the President of the Republic of Moldova 3/5 from total number of deputies (61 deputies).

11. Right after adoption of the constitutional amendments the Parliament in two rounds (on December 4 and 6, 2000) did not manage to elect the President of the Republic of Moldova as any of candidates did not receive the poll necessary for election of the head of state. The parliament could not elect the President of the Republic of Moldova and after repeated attempt (on December 21, 2000) because of absence to meeting of necessary number of deputies. As a result, the Decree No. 1843 of December 31, 2000 the President of the Republic of Moldova dismissed Parliament and early parliamentary elections were appointed.

12. The new structure of Parliament voted on April 4, 2001 for the President of the Republic of Moldova, according to article 78 of the Constitution, in the first round.

13. The parliament elected on April 4, 2005 the President of the Republic of Moldova, according to article 78 of the Constitution, in the first round.

14. In the regular elections held by Parliament on May 20, 2009 on post of the President of the Republic of Moldova any of candidates did not receive necessary poll. The parliament did not manage to elect the President of the Republic of Moldova and on repeated elections of June 3, 2009 as any of candidates did not receive necessary number of votes. As a result, the Parliament was dismissed by the Presidential decree of the Republic of Moldova No. 2243 of June 15, 2009 and early parliamentary elections are appointed.

15. After resignation of the incumbent president on September 11, 2009 temporary fulfillment of duties of the head of state was assumed by the Chairman of the parliament.

16. On regular elections on post of the President of the Republic of Moldova of November 10, 2009 only one candidate who, however, did not receive necessary poll was proposed. The same candidacy which did not receive necessary 61 vote again was proposed for post of the President of the Republic of Moldova in repeated elections of December 7, 2009.

17. During the referendum of September 5, 2010 attempt to make changes to the Constitution for election of the President on national vote was made, but because of low turnout of voters its results were not recognized as valid.

18. With respect thereto the Parliament was dismissed by the Decree of the acting president No. 563 of September 28, 2010.

19. Temporary fulfillment of duties of the President was provided with the Chairman of the parliament elected in this quality by the Resolution of Parliament No. 6 of December 30, 2010.

20. During repeated elections of March 16, 2012 the Parliament elected the President of the Republic of Moldova, according to article 78 of the Constitution, having put thereby end to the temporary fulfillment of duties of the President lasting about 3 years.

Applicable legislation

21. Applicable provisions of the Constitution (M.O., 1994, No. 1):

Preamble

"[...] RECOGNIZING the constitutional state, the civil world, democracy, advantage of the person, its right and freedom, free development of the human person, justice and political pluralism as the supreme values [...]"

Article 1. State Republic of Moldova

"[...]

(3) the Republic of Moldova - the democratic constitutional state in which advantage of the person, its rights and freedom, free development of the human person, justice and political pluralism are the supreme values and are guaranteed."

Article 134. Status of [Constitutional court]

"(1) the Constitutional court - the single body of the constitutional jurisdiction in the Republic of Moldova.

[…]

(3) the Constitutional court guarantees rule of the Constitution, provides realization of the principle of separation of the government on legislative, executive and judicial and guarantees responsibility of the state to the citizen and the citizen to the state."

Article 135. Powers

"(1) Constitutional court:

a) exercises on demand control of constitutionality of the laws and resolutions of Parliament, presidential decrees of the Republic of Moldova, resolutions and ordinances of the Government, and also international treaties, one of the parties of which is the Republic of Moldova;

b) gives interpretation of the Constitution;

c) expresses according to offers on review of the Constitution; […]"

Article 140. Solutions of the Constitutional court

"(1) the Laws and other regulations or their parts void from the moment of acceptance by the Constitutional court of the relevant decision.

(2) Solutions of the Constitutional court are final and are not subject to appeal."

Article 141. Review initiative

"(1) the Initiative of review of the Constitution can proceed from:

[…]

b) at least than one third of deputies of Parliament;

[…]

(2) Drafts of the constitutional laws are represented to Parliament only together with the conclusion of the Constitutional court accepted by at least than four judges."

Article 142. Review limits

"(1) Regulations on sovereign, independent and unitary nature of the state, and also on its permanent neutrality can be reviewed only in case of their approval by referendum by most of the citizens included in the electoral lists.

(2) review which consequence abolition of basic rights and freedoms of citizens or those guarantees would be is not allowed.

(3) the Constitution cannot be reviewed during emergency, obsidional and warlike situation."

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