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Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of May 12, 2016 No. 12

About interpretation of provisions of Art. 116 of the h. (2) and h. (4) and Art. 136 of the h. (1) Constitutions (prolongation of term of office of judges before appointment of successors to position) (the Address No. 15b/2016)

Constitutional court in structure:

To Alexander Tenase, chairman,

Auryl to Beesh,

Igor Dolya,

Tudor Pantsyru,

Victor of Pop, judges,

with the assistance of the secretary of meeting Theodor Papuk,

in view of the address provided and registered on March 12, 2016

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 appeal of the Highest trial chamber brought into the Constitutional court on March 12, 2016 according to provisions of Art. 135 of the h formed the basis for consideration of the case. (1) item b) 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 interpretation of Art. 116 of the h. (2) and h. (4) and Art. 136 of the h. (1) Constitutions.

2. The author of the address asks to give interpretation of Art. 116 of the h. (2) and h. (4) and Art. 136 of the h. (1) Constitutions in the following aspects:

"1. Whether judges of the Highest trial chamber, appeal chambers and courts have the right, and also judges of the Constitutional court to fulfill the service duties before position assignment of successors in case the term of their powers established by the law expired, and new judges were not appointed or did not enter position?

2. What competent authority makes the decision on continuation of the mandate to the introduction of successors in position?"

3. Determination of the Constitutional court of March 23, 2016, without decision in essence, the address was acknowledged acceptable.

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

5. At open plenary meeting at which the substantive provisions of the resolution were announced there was Valentin Lastavetsky, the chief of the secretariat of the Highest trial chamber, Sergey Bivol, the chief of general legal management of the Secretariat of Parliament, and Eduard Serbenko, the deputy minister of justice, the representative of the Government in the Constitutional court.

Actual circumstances

6. Judges of the Highest trial chamber are appointed to position by Parliament according to the offer of the Supreme council of magistracy. Judges of other degrees of jurisdiction are appointed to position by the President of the Republic of Moldova according to the offer of the Supreme council of magistracy.

7. Judges of degrees of jurisdiction of the general jurisdiction perform the powers before age achievement of limit – 65 years, except the cases provided by the law.

8. Judges of the Constitutional court are appointed to position for six-year term, two judges are appointed by Parliament, two – the Government and two – the Supreme council of magistracy.

Applicable legislation

9. Applicable provisions of the Constitution (repeated publication in M.O., 2016, No. 69-77):

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 116 Status of Judges

"[…]

(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.

[…]

(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 136 Structure of [Constitutional Court]

"(1) the Constitutional court consists of six judges appointed to six-year term.

(2) Two judges are appointed by Parliament, two – the Government and two – the Supreme council of magistracy.

[…]".

10. Applicable provisions of the Law No. 544 of July 20, 1995 on the status of the judge (M.O., 2002, No. 117-119, Art. 946):

Article 11 Appointment of the Judge to Position

"(1) Judges of courts and judges of appeal chambers are appointed to position from among the candidates selected by results of tender, the President of the Republic of Moldova on representation of the Supreme council of magistracy. The selected candidates who conform to requirements of Article 6, are appointed to judgeship originally for five-year term. After the five-year term of the judge are appointed to position before age achievement of limit – 65 years.

(2) Judges of the Highest trial chamber are appointed by Parliament on representation of the Supreme council of magistracy.

[…]".

11. Applicable provisions of the Law No. 789 of March 26, 1996 on the Highest trial chamber (M.O., 2003, No. 196-199, Art. 764):

Article 10 Term of Office of Judges of the Highest trial chamber

"Judges of the Highest trial chamber are appointed to position before age achievement of limit – 65 years".

Points of law

12. From contents of the address the Constitutional court concludes that in it the question of possibility of the judge of court of law or body of the constitutional jurisdiction which term of office expired is brought up, to perform the activities before appointment of the new judge.

13. So, the address belongs to the principle of supremacy of law and ensuring real and effective justice.

A. Address acceptability

14. According to the determination of March 23, 2016 the Constitutional court notes that based on the item b) h. (1) Art. 135 of the Constitution, item b) h. (1) Art. 4 of the Law on the Constitutional court and item b) h. (1) Art. 4 of the Code of the constitutional jurisdiction the address about interpretation of the Constitution is within the competence of the Constitutional court.

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