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DECIDES:
1. The Decision of the Constitutional Court no. 83 of June 7, 2019, the Decision of the Constitutional Court no. 13 of June 8, 2019, the Decision of the Constitutional Court no. 14 of June 8, 2019, the Decision of the Constitutional Court no. 15 of June 8, 2019, the Opinion of the Constitutional Court no. 1 of June 9, 2019 and the Opinion of the Constitutional Court no. 2 of June 9, 2019.
2. This Decision is final, may 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.
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JUDGEMENT
FOR REVIEW
Decision of the Constitutional Court no. 83 of June 7, 2019, of the Decision of the Constitutional Court no. 13 of June 8, 2019, of the Decision of the Constitutional Court no. 14 of June 8, 2019, of the Decision of the Constitutional Court no. 15 of June 8, 2019, of the Opinion of the Constitutional Court no. 1 of June 9, 2019 and of the Opinion of the Constitutional Court no. 2 of June 9, 2019
https://www.constcourt.md/ccdocview.php?tip=hotariri&docid=700&l=en
CHIŞINĂU
15 june 2019
On behalf of the Republic of Moldova,
The Constitutional Court, judging in its composition:
Mr. Mihai POALELUNGI, President
Mrs. Raisa APOLSCHII,
Mr. Aurel BĂIEŞU,
Mr Corneliu GURIN,
Mr Artur Resetnikov,
Mr Veaceslav ZAPOROJAN, Judges,
with the participation of Mr. Vasili Oprea, Clerk,
Considering the approach of the judges of the Constitutional Court
of 15 June 2019, registered on the same date,
Having regard to the Decision of the Plenum of the Constitutional Court of 15
June 2019 by which the revision of the acts of the Court was admitted
delivered on 7-9 June 2019,
Taking into account the documents and works of the file,
Deliberating in the Council Chamber,
Make the following decision:
PROCEDURE
1. At the origin of the case is the request of the judges of the Constitutional Court regarding the revision of the Decision of the Constitutional Court no. 83 of June 7, 2019, of the Decision of the Constitutional Court no. 13 of June 8, 2019, of the Decision of the Constitutional Court no. 14 of June 8, 2019, of the Decision of the Constitutional Court no. 15 of June 8, 2019, of the Opinion of the Constitutional Court no. 1 of June 9, 2019 and of the Opinion of the Constitutional Court no. 2 of June 9, 2019.
2. The approach is based on the factual situation in the Republic of Moldova, in particular the announcement of the transfer of power to the Government of Prime Minister Maia Sandu and the coalition formed in the Parliament of the Republic of Moldova.
3. Based on article 72 of the Code of Constitutional Jurisdiction, by the Decision of the Plenum of the Constitutional Court of June 15, 2019, it was ordered the revision of the Decision of the Constitutional Court no. 83 of June 7, 2019, of the Decision of the Constitutional Court no. 13 of June 8, 2019, of the Decision of the Constitutional Court no. 14 of June 8, 2019, of the Decision of the Constitutional Court no. 15 of June 8, 2019, of the Opinion of the Constitutional Court no. 1 of June 9, 2019 and of the Opinion of the Constitutional Court no. 2 of June 9, 2019.
CONTEXT (FACTS)
4. 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.
On June 7, 2019, the Court declared inadmissible the referral to the President of the Republic of Moldova, by Decision no.83, mentioning that the answer to the question addressed by him, in connection with the mentioned articles of the Constitution, derives from the text of the Constitution and from the previous interpretations of the Court.
5. On 7 June 2019, two Members of the Parliament of the Republic of Moldova asked the Court to interpret Articles 63 and 85 of the Constitution of the Republic of Moldova, asking it whether
(1) the legal status and scope of powers in the case of a Parliament with expired term and of a dissolved Parliament? and whether (2) the Parliament of the Republic of Moldova may resume its legislative activity and fulfill its duties under Article 66 of the Constitution if circumstances of compulsory dissolution of the Parliament have arisen as a result of the legislative deadlock and / or the impossibility of forming a Government for three months, a fact duly ascertained by the Constitutional Court?
By Decision no. 13 of 8 June 2019, the Court held that the Parliament to be dissolved under Article 85 of the Constitution does not have the same status and powers as the Parliament whose term of office has expired in accordance with the provisions of Article 63 of the Constitution.
The Court also emphasized that in the event of the circumstances of compulsory dissolution of Parliament as a result of the legislative deadlock and / or the impossibility of forming the Government for 3 months (90 days), Parliament is not entitled to carry out legislative activity and to perform the duties provided for in Article 66 of the Constitution, as well as to constitute governing bodies of Parliament.
Upon the occurrence of the circumstances of dissolution of the Parliament under the conditions of article 85 par. (1) of the Constitution, the President of the country is obliged, without delay, to notify the Constitutional Court to ascertain the circumstances of dissolution, with the subsequent issuance of the decree dissolving the Parliament and establishing the date of early parliamentary elections.
Any action and / or legislative act, which aims at carrying out the activity of the Parliament after the occurrence of the circumstances of compulsory dissolution, constitutes a serious violation of the constitutional provisions and are null ab initio.
6. On June 8, 2019, two deputies from the Parliament of the Republic of Moldova requested the Constitutional Court to review the constitutionality of legislative acts adopted by the Parliament of the Xth Legislature on June 8, 2019, as well as the Decision of the Parliament of the Republic of Moldova to elect the President Of the Court of Decision no. 13 of June 8, 2019.
By Decision no. 14 of June 8, 2019, the Court declared unconstitutional the decision adopted by the deputies of the Parliament of the Republic of Moldova of the 10th legislature of June 8, 2019 for the election of Mrs. Zinaida Greceanii as President of the Parliament and the legislative acts (laws, decisions) adopted by the deputies of the Parliament of the Republic of Moldova of the Xa legislature on June 8, 2019 and beyond.
7. On June 8, 2019, three deputies from the Parliament of the Republic of Moldova asked the Court to verify the constitutionality of the Decrees of the President of the Republic of Moldova no. 1171-VIII and no. 1172-VIII of June 8, 2019 on the appointment of the candidate for the position of Prime Minister of the Republic of Moldova and, respectively, the appointment of the Government of the Republic of Moldova. By Decision no. 15 of June 8, 2019, the Constitutional Court declared these decrees unconstitutional.
8. On 8 June 2019, three Members of the Parliament of the Republic of Moldova requested the Court to establish the circumstances justifying the interim office of the President of the Republic of Moldova to ensure the exercise of constitutional powers for the purposes of (1) ascertaining the circumstances justifying the dissolution of Parliament. (2) the signing of the Decree on the dissolution of the Parliament and the establishment of the date of the early parliamentary elections.
The authors of the notification also requested the Court to establish the interim position of President of the Republic of Moldova for the exercise of some constitutional attributions.
By its Opinion no. 1 of June 9, 2019, the Court found as a circumstance that justifies the interim position of President of the Republic of Moldova in the procedure of dissolving the Parliament the deliberate refusal of the President to fulfill his constitutional obligation to notify the Constitutional Court, to establish the circumstances justifying the dissolution Parliament of the Xth legislature, with the subsequent issuance of the decree dissolving Parliament and setting the date of early parliamentary elections, which is, according to Article 91 of the Constitution, a temporary impossibility to exercise its powers in this regard.
The Court also noted that, according to the interim order, the then incumbent Prime Minister, Mr. Pavel Filip, will have to refer the matter to the Constitutional Court, as interim President of the Republic of Moldova, in order to ascertain the circumstances justifying the dissolution of the Parliament. of the 10th legislature and, as the case may be, to issue the decree on the dissolution of the Parliament and the establishment of the date of the early parliamentary elections.
9. On 9 June 2019, Mr Pavel Filip, Acting President of the Republic of Moldova, requested the Court to establish the circumstances justifying the dissolution of the Parliament of the 10th Parliament due to the impossibility of forming the Government within the period provided by Article 85 para. (1) of the Constitution.
By the Opinion no. 2 of June 9, 2019, the Court found as a circumstance that justifies the dissolution of the Parliament of the Republic of Moldova of the 10th legislature the impossibility of forming the Government within the term provided by article 85 par. (1) of the Constitution.
10. On 14 June 2019, Mr Pavel Filip, Prime Minister of the Republic of Moldova, announced at a press conference the withdrawal from power and the transfer of power to the Government led by Prime Minister Maia Sandu and the coalition formed in the Parliament Republic of Moldova.
RELEVANT NATIONAL LEGISLATION
11. The relevant provisions of the Constitution are the following:
Preamble
"CONSIDERING the rule of law, civil peace, democracy, human dignity, human rights and freedoms, the free development of the human personality, justice and political pluralism, supreme values, […]"
Article 1
State of the Republic of Moldova
„[…]
(3) The Republic of Moldova is a rule of law, democratic, in which human dignity, his rights and freedoms, the free development of the human personality, justice and political pluralism are supreme values and are guaranteed."
Article 7
The Constitution, the Supreme Law
"The Constitution of the Republic of Moldova is its Supreme Law. No law or other legal act contrary to the provisions of the Constitution shall have legal force."
Article 134
Statute of the [Constitutional Court]
„(1) The Constitutional Court is the only authority of constitutional jurisdiction in the Republic of Moldova.
(2) The Constitutional Court is independent of any other public authority and is subject only to the Constitution.
(3) The Constitutional Court guarantees the supremacy of the Constitution, ensures the realization of the principle of separation of state power into legislative power, executive power and judicial power and guarantees the responsibility of the state towards the citizen and of the citizen towards the state.”
Article 140
Decisions of the Constitutional Court
"(1) The laws and other normative acts or some parts of them become null, from the moment of the adoption of the corresponding decision of the Constitutional Court.
(2) The decisions of the Constitutional Court are final and cannot be challenged."
12. The relevant provisions of the Code of Constitutional Jurisdiction no. 502 of 16 June 1995 are the following:
Article 72
Review of the decision and opinion
"(1) The revision of the decision and the opinion is carried out only at the invitation of the Constitutional Court, by decision, adopted with the vote of the majority of its judges, in case:
a) new circumstances have arisen, unknown at the date of pronouncing the decision and issuing the opinion, if these circumstances are likely to substantially change the decision and the opinion;
b) the provisions of the Constitution, of the laws and of other normative acts are modified, on the basis of which the decision was pronounced and the opinion was issued.
(2) The review of the decision and the opinion shall be carried out in compliance with the procedure of constitutional jurisdiction."
IN LAW
13. From the content of the review decision, the Court notes that it addresses the issue of the proper functioning of the fundamental institutions of the state, given the existing factual situation in the Republic of Moldova, from a governmental perspective.
14. The approach of the judges of the Constitutional Court takes into account the political events that took place on the political scene of the Republic of Moldova after June 9 a.c.
15. The constitutional judges consider that there are new factual circumstances for the revision of the acts of the Constitutional Court pronounced between 7-9 June a.c.
A. ADMISSIBILITY
16. In accordance with its decision of 15 June 2019, the Court held that, under Article 72 of the Code of Constitutional Jurisdiction, it may revise its own judgments in the event of new circumstances.
17. The Court found that the need to revise
- the Decision of the Constitutional Court no. 83 of June 7, 2019,
- the Decision of the Constitutional Court no. 13 of June 8, 2019,
- the Decision of the Constitutional Court no. 14 of June 8, 2019,
- the Decision of the Constitutional Court no. 15 of June 8, 2019,
- the Opinion of the Constitutional Court no. 1 of June 9, 2019 and
- the Opinion of the Constitutional Court no. 2 of June 9, 2019
follows from the announcement of the withdrawal from power and the transfer of power to the Government led by Prime Minister Maia Sandu and the coalition formed in the Parliament of the Republic of Moldova (see § 10 above).
18. The Court noted that the prerogatives with which it was vested in the Constitution include guaranteeing the supremacy of the Constitution, ensuring the principle of separation of state power into legislative power, executive power and the judiciary, and guaranteeing the responsibility of the state to the citizen.
The Court emphasized that, in order to exercise these powers, it must be guided by the principle of the rule of law and democracy and provide solutions that ensure an adequate framework for the protection of human rights, excluding major political instabilities.
19. In this regard, given the recent developments in the political arena in the Republic of Moldova, the Constitutional Court held in its admissibility decision that it is necessary to review the acts of the Constitutional Court issued between 7-9 June a.c.
B. BOTTOM OF THE CASE
A. Findings of the Court
20. The Court notes that, among the effects of the pronouncement of its acts between 7-9 June a.c., is also the dissolution of the Parliament of the Republic of Moldova, followed by the establishment of the date of the early parliamentary elections on 6 September 2019.
21. The Court notes that, in legal terms, the reality was that after June 9, 2019, the Republic of Moldova had a jure government, led by Mr. Pavel Filip, acting on the basis of the decisions of the Constitutional Court, and a de facto government, led by Ms. Maia Sandu, who acted on the basis of a decision of the Parliament and a presidential decree declared unconstitutional.
22. On 14 June 2019, the de jure government, which was also responsible for organizing and conducting the early parliamentary elections, resigned, transferring power to the de jure government, led by Prime Minister Maia Sandu. .
23. The Court notes that the transfer of power from the Government headed by Mr Pavel Filip to the Government headed by Ms Maia Sandu amounted to a deliberate waiver by the latter of the administration of public affairs, including the duties of organizing and conducting early parliamentary elections.
Moreover, according to several provisions of the Electoral Code, adopted by Law no. 1381 of November 12, 1997, the Government and its ministries play an essential role in the organization and conduct of the electoral process (see, e.g., Articles 13 para. (2) letters c) and d), 22 para. (1) lit. d) and g), 26 let. d), 31 para. (3), (4) and (5), 40 para. (2), 54 para. (3) of the Code).
This deliberate renunciation is currently a source of instability in the Republic of Moldova, since the effects of the acts of the Constitutional Court pronounced between June 7-9 a.c. persist, and there is no authority to ensure their full implementation.
24. Moreover, the court notes that, in the situation of political crisis following June 9, some lato sensu officials (civil servants, officials with special status, ambassadors of the Republic Of Moldova, etc.) did not recognize the authority and legitimacy of the de facto government, thereby invoking the relevant acts of the court.
There is also the possibility that some foreign governments may be misled about the government of the Republic of Moldova with which they must correspond.
25. The constitutional review of laws and judgments adopted by Parliament is the cornerstone of democracy, which upholds the rule of law. Constitutional control reflects the idea that all branches of power are subordinate to law.
The Court's powers are vital to a truly democratic society, and those who undermine them risk being responsible for destroying one of the basic pillars of the state. However, a constitutional review that seeks to achieve the ideal of the rule of law often involves balancing the values, principles and interests that exist in a democratic society.
This balancing is a condition for safeguarding fundamental rights and forms the core of any democratic society that advocates for human well-being. It is at the heart of the Court's judicial policy.
26. Therefore, in the current socio-political situation in the Republic of Moldova, the Court must balance the imperatives it set out in its acts delivered on 7-9 June this year, and the public interest of civil peace and effective protection of human rights.
27. Both civil peace and the protection of human rights are supreme values of the Constitution of the Republic of Moldova. The rank of these values is given by the Preamble of the Constitution of the Republic of Moldova: "CONSIDERING the rule of law, civic peace, democracy, human dignity, his rights and freedoms, free development of human personality, justice and political pluralism supreme values, […]".
28. As the Court held in its judgment no. 36 of 5 December 2013, its interpretations must be guided by the objectives set out in the Preamble to the Constitution and in the Declaration of Independence of the Republic of Moldova (§ 122).
29. Once the governmental activity has ceased and by the de jure government renouncing the act of governing, in the Republic of Moldova civil peace and human rights are endangered. Governmental instabilities of such magnitude produce negative consequences for the values stated above and found in the Preamble of the Constitution.
30. The judgment of the Court in this judgment cannot be abstract and absolutist, ignoring the concrete socio-political situation in the Republic of Moldova. The Court emphasizes that abstraction and absolutism, no matter how favorable for a certain moment, may prove to be hostile to fundamental freedoms.
31. The review of constitutionality in the present case seeks to ensure a balance between the need to comply with the Court's considerations set out in its documents delivered on 7-9 June a.c. and the need to maintain civil peace and the effective protection of human rights in practice, now, with the resignation of the de jure government. This balance is an axiom of democracy. It is not static, but changes depending on the concrete situation.
32. Implementation of the Court's recitals from its relevant acts of 7-9 June a.c. it is impossible at present, and the maintenance of these acts could disproportionately affect the foundations of civic peace and the protection of human rights.
33. The Court notes that it cannot replace the discretion of a de jure government which has resigned and does not consider it appropriate to replace the discretion of the new government. This issue goes beyond the scope of constitutional law, being a purely political one. The Court is not the right body to intervene in matters which have now acquired purely political powers. It cannot administer the affairs which must be administered by a de jure government which has resigned or which must be administered by a de facto government which has become de jure.
34. The Court emphasizes that extreme situations sometimes require the application of exceptional solutions. This is the case of this judgment, which will annul, by way of a revision, the effects of the acts of the Court pronounced between 7-9 June this year, in order to eliminate the legal uncertainty that affects, in the current context, given the circumstances, civil peace and human rights. . In this case, the change in jurisprudence made by the Court through the review is motivated by social developments and the greater share of human rights and the desire to achieve civic peace in relation to the principle of legal certainty (i.e. maintaining the effects of acts issued between 7-9 June this).
35. The Court cannot ignore the acts adopted by the Government de jure headed by Mr Pavel Filip. They concern the administration of public affairs and will be considered valid if the new Government does not change them, if it deems it necessary. By this decision of the Court, the Parliament led by Mrs. Zinaida Greceanii acquires, ope constitution is, the quality of Constitutional Parliament, being invigorated the normative acts adopted by it so far, as well as the acts adopted by the Government of the Republic of Moldova led by Mrs. Maia Sandu.
Based on articles 135 par. (1) lit. a) and 140 of the Constitution, 26 of the Law on the Constitutional Court, 62 and 72 of the Code of Constitutional Jurisdiction, the Constitutional Court
DECIDES:
1. The Decision of the Constitutional Court no. 83 of June 7, 2019, the Decision of the Constitutional Court no. 13 of June 8, 2019, the Decision of the Constitutional Court no. 14 of June 8, 2019, the Decision of the Constitutional Court no. 15 of June 8, 2019, the Opinion of the Constitutional Court no. 1 of June 9, 2019 and the Opinion of the Constitutional Court no. 2 of June 9, 2019.
2. This Decision is final, may 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 15, 2019
HCC no. 16
Files no. 102b / 2019, 110b / 2019, 111a / 2019, 112a / 2019, 113f / 2019, 114f / 2019