None

D E C I D E:

1. The notification of the President of the Republic of Moldova, Mr. Igor Dodon, regarding the interpretation of article 85 par. (1) in conjunction with Articles 63 (2) and (3), 69 (1). (2) and 103 of the Constitution of the Republic of Moldova.

2. This Decision shall be final, shall not be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.

This text has been taken from the courts homepage itself!

https://www.constcourt.md/ccdocview.php?tip=hotariri&docid=700&l=en

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Non-official translation,
which may be subject to editorial review

JUDGEMENT

OF INADMISSIBILITY

of notification no. 102b / 2019

regarding the interpretation of article 85 par. (1) in conjunction with Articles 63 (2) and (3), 69 (1). (2) and 103of the Constitution of the Republic of Moldova

(date from which the three-month period of inactivity of Parliament is calculated with a view to its dissolution)

https://www.constcourt.md/ccdocview.php?tip=decizii&docid=663&l=ro

Chisinau

June 7, 2019

The Constitutional Court, judging in its composition:

Mr Mihai POALELUNGI, President,

Mrs. Raisa APOLSCHII,

Mr. Aurel BĂIEȘU,

Mr Corneliu GURIN,

Mr Artur Resetnikov,

Mr Veaceslav ZAPOROJAN, Judges,

with the participation of Mrs. Ludmila Chihai, Clerk,

Having regard to the notification lodged on 22 May 2019,

Registered on the same date,

Examining the admissibility of that complaint,

Having regard to the documents and works of the file,

Deciding on 7 June 2019 in the Council Chamber,

Make the following decision:

IN FACT

1. On 22 May 2019, Mr Igor Dodon, President of the Republic of Moldova, addressed a complaint to the Constitutional Court regarding the interpretation of Article 85 para. (1) in conjunction with Articles 63 (2) and (3), 69 (1). (2) and 103 of the Constitution of the Republic of Moldova, raising the following issue:

„If the three-month term provided by article 85 par. (1) of the Constitution, the term in which the newly elected Parliament is unable to form the Government or the procedure for adopting laws is blocked, is it calculated from the date of validation of the parliamentary elections or from the date of the constitution / legal assembly of the Parliament? "

A. Relevant legislation

2. The relevant provisions of the Constitution are the following:

Article 63

Term of office [Parliament]

"[...]

(2) The Parliament shall meet, at the convocation of the President of the Republic of Moldova, within 30 days from the elections.

(3) The mandate of the Parliament is extended until the legal assembly of the new composition. During this period, the Constitution cannot be amended and organic laws cannot be adopted, amended or repealed.

[...] "

Article 69

The mandate of the deputies

"1. Members shall hold office for the purpose of validation.

(2) The quality of deputy ceases on the date of the legal meeting of the newly elected Parliament, in case of resignation, termination of office, incompatibility or death. "

Article 85

Dissolution of Parliament

„(1) In case of impossibility to form the Government or to block the procedure of adopting the laws for 3 months, the President of the Republic of Moldova, after consulting the parliamentary factions, may dissolve the Parliament.

(2) The Parliament may be dissolved, if it has not accepted the vote of confidence for the formation of the Government, within 45 days from the first request and only after the rejection of at least two requests for investiture.

[...] "

Article 103

Termination of [Government's] mandate

"(1) The Government shall exercise its mandate until the date of validation of the elections for a new Parliament.

2. The Government, in the event of a vote of no confidence by Parliament, of the resignation of the Prime Minister or under the conditions of paragraph 1, shall perform only the functions of administration of public affairs, until the oath is taken by the members of the new Government.

[...] "

IN LAW

A. Arguments of the author of the notification

3. The author of the notification mentioned that, according to the jurisprudence of the Constitutional Court, the term of three months provided by article 85 par. (1) of the Constitution is applicable to both grounds justifying the dissolution of the legislature, i.e. the impossibility of forming the Government and blocking the procedure for adopting laws.

4. In the motivation of the notification, the President of the Republic of Moldova argued that, in the event of the impossibility of forming the Government, the mentioned term runs from the date of occurrence of the circumstances that determine the formation of a new Government. One of these circumstances is the expiration of the mandate of the Government, which, according to article 103 par. (1) of the Constitution, takes place on the date of validation of the elections for a new Parliament. However, according to Article 63 para. (3) of the Constitution, the mandate of the Parliament is extended until the legal assembly of the new composition, and according to article 69 par. (2), the quality of deputy ceases on the date of the legal meeting of the newly elected Parliament.

5. Therefore, in view of these constitutional provisions, in the event that a newly elected Parliament is unable to form a Government, it is not clear whether the three-month period expiring which gives the President the power to dissolve that Parliament is calculated from validation of the elections or from the date of the meeting of the Parliament in the first sitting. Also, in the opinion of the complainant, the method of calculating the term in question is uncertain if the newly elected Parliament is unable to adopt laws.

B. Findings of the Court

6. Examining the admissibility of the referral, the Court finds the following.

7. In accordance with Article 135 para. (1) lit. b) of the Constitution, the interpretation of the Constitution falls within the competence of the Constitutional Court.

8. The Court notes that Article 25 (a) a) of the Law on the Constitutional Court confers on the President of the Republic of Moldova the competence to refer the matter to the Constitutional Court.

9. The Court notes that the complainant seeks an interpretation of Article 85 para. (1) in conjunction with Articles 63 (2) and (3), 69 (1). (2) and 103 of the Constitution of the Republic of Moldova, in the light of the question mentioned in § 1 of this decision.

10. Analyzing the circumstances presented by the President of the Republic of Moldova, the Court considers that the answer to the question raised by him in the referral results from the previous interpretation offered by the Court to the invoked articles and even from the text of the Constitution.

11. The Court noted that the dissolution of Parliament is permitted, in accordance with the procedures provided for in the Constitution, in situations where the supreme legislative and representative body can no longer exercise its functions and thus can no longer express the will of the voters.

For these reasons, by dissolving Parliament and holding early elections, voters are given the opportunity to resolve the conflict between the authorities in a constitutional way. At the same time, the competence of the President of the Republic of Moldova to dissolve the Parliament is a constitutional guarantee, which allows solving and unblocking an institutional crisis (JCC no. 30 of October 1, 2013, §§ 41-42).

12. At the same time, the Court noted that the constitutional mechanism governed by Article 85, designed to prevent the onset of a parliamentary crisis and a conflict between the legislature and the executive, would be ineffective in the absence of a certain deadline, at the end of which Parliament it was to be dissolved.

Thus, the Court held that the three-month period provided for in Article 85 para. (1), represents a deadline for the dissolution of the Parliament, common for both cases in which a crisis or conflict situation occurs, ie: the impossibility of forming the Government or blocking the procedure for adopting laws (JCC no. 30 of 1 October 2013, §§ 52-53).

13. With regard to the impossibility of forming a Government, the Court noted that the three-month period is a general term for the formation of the Government, starting from the date of the circumstances that determined the need to form a new Government, regardless of the initiation of training procedures. of the new Government and / or the conduct of the procedures provided for in paragraph 2 of Article 85 of the Constitution, includes periods of consultation of parliamentary factions and other legal procedures and constitutes the deadline for the formation of the new Government (JCC No. 30 of 1 October 2013 , § 64).

14. According to Articles 101, 103, 106, 1061 of the Constitution, the need to form a new Government arises in the case of: (1) the legal expiration of the mandate of the Government; (2) the expression of the vote of no confidence by Parliament; (3) the impossibility of the Prime Minister to exercise his attributions; (4) the death or resignation of the Prime Minister.

15. Next, Article 103 of the Constitution provides that the Government shall exercise its mandate until the date of validation of the elections for a new Parliament. These constitutional provisions were also transposed in Article 12 of Law no. 136 of 7 July 2017 on the Government, which establishes in paragraph 1 that the mandate of the Government ceases by right on the date of confirmation of the election results for a new Parliament and validation by the Constitutional Court of the mandates of the newly elected deputies.

16. Thus, the date of validation of the elections represents the date of expiration of the mandate of the Government, a circumstance that determines the need to form a new Government. Therefore, from the clear text of article 103 par. (1) of the Constitution shows that the term of three months (90 days) in which the newly elected Parliament must form the Government runs from the date of validation of the elections. The Court observes, in this case, the applicability of the In claris non fit interpretatio rule (clear texts do not need an interpretation).

17. With regard to the dissolution of Parliament in the event of a standstill in the legislative procedure, the Court considers it relevant to reiterate its previous case-law in which it stated that no time interval between the expiry of the previous parliamentary term and the meeting of the newly elected Parliament parliamentary, provided in article 63 par. (1) of the Constitution.

The text of article 63 par. (3) of the Constitution establishes for this period special prohibitions for the basic constitutional attribution of the Parliament, which is the legislative activity, limiting it to the right to amend the Constitution or to regulate legal relations by adopting, amending or repealing organic laws (HCC no. 31 of 10 November 1997). In other words, after the parliamentary elections, it is up to the newly elected Parliament to start the procedure for examining and adopting laws as soon as possible.

18. In its Decision no. 40 of 24 December 1998, the Court held that the notion of "adoption of laws", as provided for in Article 85 (1) of the Constitution, refers to the final stage of the legislative process and consists in voting on the draft law for adoption as In the same judgment, the Court stated that by "blocking the procedure for the adoption of laws for three months", within the meaning of Article 85 para. (1) of the Constitution, means the actions of some deputies or groups of deputies aimed at delaying the procedure for voting on draft laws, which leads to the inability of the Parliament to adopt for three months laws of major importance in the life of the state, laws that regulate social relations of special importance or that establish fundamental principles and norms.

19. The Court therefore notes that the answer to the question referred follows from the wording of the Constitution and from the interpretation previously given to the constitutional provisions in question. Also, considering that, according to article 135 par. (1) lit. f) of the Constitution, the circumstances that justify the dissolution of the Parliament must first be ascertained by the Constitutional Court, which constitutes a guarantee able to ensure the observance of the Constitution, the Court concludes that the referral is unfounded.

For these reasons, based on Article 26 of the Law on the Constitutional Court, Articles 61 para. (3) and 64 of the Code of Constitutional Jurisdiction, Constitutional Court

D E C I D E:

1. The notification of the President of the Republic of Moldova, Mr. Igor Dodon, regarding the interpretation of article 85 par. (1) in conjunction with Articles 63 (2) and (3), 69 (1). (2) and 103 of the Constitution of the Republic of Moldova.

2. This Decision shall be final, shall not be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.

President                                                                                                   Mihai POALELUNGI

Chisinau, June 7, 2019

DCC no. 83

File no. 102b / 2019