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DECIDES:
1. In respect to article 70 of the Constitution in corroboration with articles 1 para. (3) and 7 of the Constitution, the Parliament cannot establish other decisional quorums than the ones expressly provided in the Constitution.
2. In respect to article 68 of the Constitution in corroboration with articles 2, 34, 39 and 65 of the Constitution, to ensure the constitutional principle of transparency and responsibility, the vote of every Member of Parliament is open, except for the cases expressly and exhaustively provided in the Constitution and of the exceptional situations related to protection of citizens or national security.
3. The para. (6) and (7), as well as the word „secret” in para. (8) of article 97 of the Regulation of the Parliament, adopted via the Law No. 797- XIII of 2 April 1996, and para. (5) of art. 10 of the Law No. 39-XIII of 7 April 1994 on the Status of Members of Parliament are declared unconstitutional.
4. The constitutional provisions shall be applied directly until the revision by the Parliament of the legislative provisions which enshrine the decisional quorums and secrecy of voting, other than the ones provided in the Constitution.
5. The complaint of the group of MPs from the parliamentary faction of the Liberal Democratic Party of Moldova on constitutional review of the Parliament Decision No. 172 of 15 October 2015 on approval of lifting the immunity of the Member of Parliament, Vladimir Filat is rejected as being ungrounded.
6. The Parliament Decision No. 172 of 15 October 2015 on approval of lifting on the parliamentary immunity of the Member of Parliament, Vladimir Filat is recognized as constitutional.
7. The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Gazette of the Republic of Moldova.
JUDGMENT
ON CONSTITUTIONAL REVIEW
of the Parliament Decision No. 172 of 15 October 2015 on approval the lifting parliamentary immunity
of the Member of Parliament, Vladimir Filat
(Complaint No. 39a/2015)
CHISINAU
17 November 2015
In the name of the Republic of Moldova, the Constitutional Court composed of:
Mr. Igor DOLEA, President,
Mr. Aurel BĂIEŞU, Mr. Tudor PANȚÎRU,
Mr. Victor POPA, judges,
With the participation of Mr. Maxim Iurcu, registrar,
given the complaint lodged on 19 October 2015 and registered on the same date,
having examined the complaint referred to in a plenary public sitting, given the file documents and proceedings,
Delivers the following Judgement:
PROCEEDINGS
1. The case originates in the complaint lodged with the Constitutional Court on 19 October 2015, according to art. 25 let. g) of the Law on Constitutional Court and art. 38 para. (1) let. g) of the Constitutional Jurisdiction Code, by 18 MPs from the parliamentary faction of the Liberal Democrat Party of Moldova, for constitutional review of the Parliament Decision No. 172 of 15 October 2015 on approval of the lifting of the parliamentary immunity of the Member of Parliament, Vladimir Filat.
2. The authors of the complaint claimed that the contested act was adopted by violating the procedures provided in the law and of the presumption of innocence, hence being contrary to articles 1 para. (3), 21 and 66 let. a) and j) of Constitution.
3. On 19 October 2015, the Court rejected the request for suspending the action of the contested act in favor of its review in emergency regime. At the same time, the Court decided to interconnect the admissibility with examination of the merits of the complaint, without prejudicing the merits of the case.
4. In the public plenary sitting of the Court, the authors of the complaint were represented by Tudor Deliu, Angel Agache, Nae-Simion Pleșca, Grigore Cobzac, Members in Parliament. The Parliament was represented by Mr. Iurie Cojocaru, Main Consultant in the Public Law Unit under the General Legal Division of the Parliament’s Secretariat.
IN FACT
5. On 15 October 2015 the General Prosecutor informed the Parliament that a criminal investigational started on 13 October 2015 based on reasonable suspicions that the Member of Parliament, Vladimir Filat, committed the offences provided in articles 324 para. (3) let. a) and b) and 326 para. (3) let. a) of the Criminal Code and requested for lifting his parliamentary immunity.
6. On the same day, with the vote of 79 MPs, the Parliament of the Republic of Moldova adopted the decision approving the lifting of the parliamentary immunity for apprehending, arresting, searching, and suing at law the MP Vladimir Filat.
RELEVANT LEGISLATION
7. The relevant provisions of the Constitution (M.O., 1994, No. 1) are as follows:
Article 1
The State of the Republic of Moldova
“(3) Governed by the rule of law, the Republic of Moldova is a democratic State in which the dignity of people, their rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values that shall be guaranteed.”
Article 7
Constitution – the Supreme Law
“The Constitution of the Republic of Moldova shall be the Supreme Law of the State. No law or other legal act which contravenes the provisions of the Constitution shall have legal force.”
Article 21
Presumption of Innocence
“Any person accused to have committed an offence shall be presumed innocent until found guilty on legal grounds, brought forward in a public trial, safeguarding all the necessary guarantees for his/her defense.”
Article 34
Right of Access to Information
“(1) The right of a person to have access to any kind of information of public interest shall not be curtailed.
(2) Public authorities, according to their assigned competence, shall be committed to ensure that citizens are correctly informed both on public affairs and issues of personal interest.
(3) The right of access to information shall not prejudice neither the measures taken to protect the citizens nor the national security.”
Article 65
Openness of Sessions
“(1) The sessions of the Parliament are public.
(2) Parliament may decide to hold certain sessions behind closed doors.”
Article 66
Basic Powers
“The Parliament shall be vested with the following basic powers:
a) adopts laws, decisions and motions; […]”
Article 70
Incompatibilities and Immunities
“(3) The Member of Parliament may not be apprehended, arrested, searched, except for the cases of flagrant misdemeanor, or sued at law without the prior consent of the Parliament and upon hearing of the member in question.”
Article 74
Passing of Laws and Decisions
“(1) Organic laws shall be adopted by the vote of the majority of the elected members of Parliament, following at least two readings.
(2) Ordinary laws and decisions are adopted by vote of the majority of present members of Parliament.
[…]”
8. The relevant provisions of the Law No. 39-XIII of 7 April 1994 on the Status of Members of Parliament (republished in the Official Gazette of the Republic of Moldova, 2005, No. 59–61, art. 201) are as follows:
“Art.10. - (1) The Member of Parliament cannot be apprehended, arrested, searched, except for the cases of flagrant misdemeanor, or sued at law for criminal or contravention cases without the prior consent of the Parliament and upon hearing of the member in question.
(2) The request for apprehending, arresting, searching and suing in criminal or administrative law shall be addressed to the President of the Parliament by the General Prosecutor. The President of the Parliament shall inform the MPs in public sitting in at most 7 days since the submission of such a request and shall send it immediately to be reviewed by the Legal Committee for Appointments and Immunities, which, in at most 15 days, shall establish the existence of certain reasonable grounds for approving the request. The decision of the Commission shall be adopted via secret vote of at least half plus one of its members.
(3) The General Prosecutor will submit to the Commission all the documents requested by it. In case of refusal, the Commission will call on the Parliament.
(4) The report of the Commission shall be reviewed and approved in the Parliament immediately, in at most 7 days since its submission.
(5) The Parliament shall decide upon the request of the General Prosecutor with the secret vote of the majority of elected MPs.
(6) The criminal proceedings against a Member of Parliament may be initiated only by the General Prosecutor.
9. The relevant procedures of the Regulation of the Parliament, adopted via the Law No. 797-XIII of 2 April 1996 (republished in the Official Gazette of the Republic of Moldova, 2007, No. 50, art. 237), are as follows:
Article 94
Parliamentary immunity
“(2) A Member of the Parliament shall not be arrested, detained, subjected to search, except for the cases when caught in flagrante delicto, or sent to court without a prior authorization of the Parliament, after a hearing.”
Article 95
Request to withdraw parliamentary immunity
“(1) In the situation when a Member of the Parliament committed a crime or an administrative offence, the General Prosecutor can request the Parliament to withdraw his/her immunity in order to perform an apprehension, search, detention or issue a subpoena to appear before a judge.
(2) The request for withdrawal of immunity of a Member of the Parliament is addressed to the Chairman of the Parliament.
(3) The Chairman of the Parliament informs the MPs about the request in the plenary session of the Parliament following the date of its presentation and sends it for examination immediately to the Legal Committee for appointments and immunities.
(4) If the request of the General Prosecutor as stipulated in par. (2) has been registered in the Parliament between the sessions, it shall be brought to the knowledge of the MPs in the first plenary hearing during the next sessions.
(5) The request to withdraw the immunity of the MP shall be filed for each crime or misdemeanor separate. […]”
Article 96
Procedure of examining the request of the General Prosecutor by the Legal Committee for Appointments and Immunities
“(1) The Legal Committee for appointments and immunities shall examine the request of the General Prosecutor within maximum 15 days after bringing it to the attention of the MPs by the Chairman of the Parliament and shall decide upon the existence or non-existence of any solid grounds for accepting or rejecting the request.
(2) General Prosecutor shall present to the Legal Committee for appointments and immunities the documents regarding the case, upon request.
(3) The date and place of holding of the session of the Legal Committee for appointments and immunities shall be communicated to the General Prosecutor and to the MP regarding whom the request to withdraw the immunity has been filed. Ungrounded absence of any of them is not an obstacle to further examination of the request.
(4) After the hearing of the General Prosecutor’s request and of the MP against whom the request to withdraw the immunity has been filed, the Legal Committee for appointments and immunities shall adopt a decision with a majority vote of its members.
(5) Following the examination of the request of the General prosecutor, the Legal Committee for appointments and immunities shall elaborate a report for the Standing Bureau.
(6) The report of the Legal Committee for appointments and immunities shall be introduced on the agenda as a matter of priority.”
Article 97
Procedure of withdrawal of the parliamentary immunity
“(1) The report of the Legal Committee for appointments and immunities shall be examined and adopted by the Parliament within maximum 7 days from its presentation to the Standing Bureau.
(2) The presence at the plenary sitting of the MP against whom the withdrawal of the immunity is requested is mandatory. His motivated absence shall result in postponing of the examination of the request. Unmotivated absence of the MP doesn’t hinder the carrying out of the examination in his absence.
(3) The Chairman of the Legal Committee for appointments and immunities or another member shall present the report to the committee regarding the examination of the request filed by the Prosecutor General.
(4) The Prosecutor General shall motivate his request to withdraw the immunity of the MP and shall provide answers to the MPs, afterwards the MP against whom the request to withdraw immunity has been filed shall be heard and he shall answer the questions.
(5) Prior to voting, the MPs are entitled to express their opinion regarding the request to withdraw the immunity of the MP.
(6) The Parliament shall decide upon the request of the Prosecutor General with the majority vote of the elected MPs, expressed secretly.
(7) At the secret voting the provisions of the art. 8 shall apply respectively.
(8) The results of the secret voting shall be validated through a Decision of the Parliament, which shall either authorize the withdrawal of immunity or reject the request of the Prosecutor General.
(9) The Decision of the Parliament shall be communicated to the Prosecutor General within 3 days from its adoption.”
IN LAW
10. Having examined the content of the complaint, the Court notes that it refers in the essence to the lifting of the MP’s parliamentary immunity.
11. Hence, the complaint refers to a set of interconnected elements and principles of constitutional value, such as rule of law state, MP inviolability, and presumption of innocence.
A. ADMISSIBILITY
12. The Court holds that based on art. 135 para. (1) let. a) of the Constitution, art. 4 para. (1) let. a) of the Law on Constitutional Court and art. 4 para. (1) let. a) of the Constitutional Jurisdiction Code, the Constitutional Court is competent to examine a complaint on constitutional review of laws and decisions of the Parliament.
13. Art. 25 let. h) of the Law on Constitutional Court and art. 38 para. (1) let. h) of the Constitutional Jurisdiction Code empower the parliamentary faction with the right to submit applications to the Constitutional Court.
14. The Court holds that the decision subject to constitutional review belongs to the Plenary of the Parliament, the complaint being formulated by a parliamentary faction, which, according to the legal provisions, is entitled with the right to submit applications.
15. The Court recalls that in line with its previous case-law, through art.135 para. (1) let. a), the Constitution of the Republic of Moldova empowers the Constitutional Court with the duty of constitutional review of all the acts adopted by the Parliament, without making a distinction between the normative and individual acts (JCC No. 10 of 16 April 2010).
16. At the same time, the Court holds that an admissibility condition for the complaints on unconstitutionality of parliamentary decisions is the constitutional relevance of the complaint’s object. In line with the constant case-law of the Court, the constitutional review may be carried out in relation to the decisions of the Parliament which affect the constitutional values, rules, and principles or, the organization and operation of authorities and institutions of constitutional level (see Judgements No. 8 of 20 May 2013, No. 27 of 20 September 2013).
17. The Court holds that the constituent legislator considered it necessary to introduce in the text of the Fundamental Law guarantees that should be observed in case of lifting the parliamentary immunity, as a condition for carrying out some restrictive procedural measures and actions (apprehension, arrest, and search) and suing in the criminal or administrative court the MPs. This procedure aims to prevent the risk of its enforcement with bad will, abusively or with chicanery, as a tool for pressure or constraint on MPs.
In the same respect, the Constitutional Court stated via JCC No. 2 of 20 January 2015 that according to the conditions set in article 70 para. (3) of the Constitution, the parliamentary inviolability in the Republic of Moldova provides to MPs protection against judicial proceedings for facts which are not related to the parliamentary position, which may affect the operation of the Parliament and disturb the objectivity of parliamentary works (§§ 72-73). Hence, the approval of the Parliament aims to prevent such possible abuses.
18. Based on these reasons, the Court holds that the object of the Parliament Decision No. 172 of 15 October 2015, respectively the settlement of the complaint on approval of the apprehension, arrest and sue in law of the Member of Parliament, Vladimir Filat is indubitably a constitutional matter, the request of the General Prosecutor being formulated and settled based on art. 70 para. (3) of the Constitution.
19. As well, the Court holds that the object of the decision is directly related to the rules enshrined in article 74 of the Constitution, which sets forth the decisional quorum with which the Parliament’s acts are adopted, and this is related to the constitutional values, principles and rules.
20. Based on the above-mentioned, the Court establishes the constitutional relevance of the object of the criticized decision, this admissibility condition being, thus, met.
21. In line with article 6 para. (2) of the Constitutional Jurisdiction Code, the Constitutional Court sets forth, itself, the limits of its competence.
22. Based on article 6 para. (3) of the Constitutional Jurisdictional Code, reviewing the constitutionality of the contested act, the Constitutional Court may also deliver a judgement in relation to other norms, the constitutionality of which depends fully or partially the constitutionality of the contested act.
23. In this context, the Court holds that in the given case, the constitutionality of the contested decision of the Parliament is in connection with the constitutionality of the invoked legal norm.
24. The Court holds that for performing the constitutional review of the invoked legal norms, it is necessary to interpret the provisions of articles 34, 65, 68 and 74 of the Constitution in the light of the possibility to establish some decisional quorums and secrecy not regulated expressly by the Constitution.
25. In these conditions, the Court holds that in the given case, the constitutional review absorbs the interpretation of the constitutional norms.
26. Hence, the Court finds that the complaint cannot be rejected as inadmissible and there no ground to suspend the process in line with the provisions of article 60 of the Constitutional Jurisdiction Code. The Court notes that it was legally notified and that it is competent to decide on the constitutionality of the Parliament Decision No. 172 of 15 October 2015. Hence, the Court will further examine the merits of the complaint.
27. The two issues for the Court to settle are interdependent. Taking into account the fact that the constitutional review of establishing the decisional quorums and secrecy not regulated expressly by the Constitution influences the rationale regarding the constitutionality of the contested act, the merits of article 97 para. (6) of the Regulation of the Parliament and article 10 para. (5) of the Law on Status of Members of Parliament will be tackled jointly, while examining the problem regarding the form and procedure of adoption (I), and the problem on presumption of innocence to be examined separately (II).
28. The Court holds that article 66 let. j) of the Constitution is not applicable in the case, as the contested decision does not refer to election or appointment of an official person. Moreover, the withdrawal of immunity does not imply the termination of the MP mandate.
29. To elucidate the aspects talked in the complaint, the Court will operate, especially, with the provisions of art. 1 para. (3), 7, 34, 65, 68 and
74 of the Constitution with its previous case-law, as well as with the principles enshrined in the international law, using all the methods of legal interpretation.
B. THE MERITS
I. THE ALLEGED VIOLATION OF ARTICLE 1 PARA. (3) OF THE CONSTITUTION, IN THE PART RELATED TO THE ADOPTION PROCEDURE
30. According to the authors of the complaint, the contested act was adopted by violating article 1 para. (3) of the Constitution, according to which:
“(3) The Republic of Moldova is governed by the rule of law [...].”
31. As well, in the opinion of the authors of the complaint, when adopting the contested act, there was violated art. 66 let. a) of the Constitution, which provides for the powers of the Parliament to adopt decisions.
1. Arguments of complaint’s authors
32. The authors of the complaint note that the contested decision contravenes the constitutional provisions of art. 1 para. (3) regarding the principle of legality and art. 66 let. a) regarding the powers of the Parliament to adopt decisions.
33. According to the complaint’s authors, being proposed by the President of the Parliament, after the submission of the request, contrary to the legal norms, by the General Prosecutor, and voted by the Parliament via an open vote, the contested act was adopted with violation of the procedure provided in the law, and namely of art. 10 para. (2) and (5) of the Law on the Status of Members of Parliament and art. 89 para. (4), 95 para. (2)-(3) and 97 para. (6)-(8) of the Regulation of the Parliament.
2. Arguments of the Parliament
34. During the public sitting of the Court, the representative of the Parliament recognized that under the conditions of article 74 of the Constitution, the decisions of the Parliament are adopted by vote of the majority of the Members of Parliament present in the meeting. At the same time, he mentioned that in the session of the Parliament, the absolute majority of the MPs (79 votes) voted ad hoc for the open vote instead of the secret one, provided by the Regulation of the Parliament for the procedure to approve the lifting of immunity, this being the political will of the legislator, which fits the constitutional provisions.
3. Findings of the Court
3.1. Fundamental principles
3.1.1. Parliamentary autonomy
35. Based on the principles of regulatory autonomy, provided by art. 64 para. (1) of the Constitution, the Parliament is entitled to decide regarding its own organization and the procedures for carrying out the parliamentary works.
36. Regulatory autonomy represents the expression of the rule of law state, of the democratic principles, but it can operate exclusively within the limits set by the Fundamental Law.
37. Thus, the regulatory autonomy cannot be exercised discretionary, abusively, with violation of Parliament’s constitutional powers or of the imperative norms regarding the parliamentary procedure.
38. In this context, the regulatory norms represent the legal tools that allow carrying out parliamentary activities for the purpose of fulfilling the constitutional powers of the legislative forum and should be interpreted and applied with good will and in the spirit of loyalty to the Fundamental Law (see JCC No. 9 of 21 May 2013).
3.1.2. Transparency of parliamentary works
39. The right to information is one of the fundamental human rights, being guaranteed by art. 34 para. (1) of the Constitution: “The right of a person to have access to any kind of information of public interest shall not be curtailed”.
40. This right obliges the public authorities to ensure the correct information of citizens regarding the public matters and problems of personal interest. The right of access to information may be ensured only through an adequate level of transparency of public authorities.
41. Decision-making transparency, according to the pursued objective, should ensure citizens’ exercise of the right to administration, stated via art.
39 of the Constitution. Hence, alongside the right to access a public position, the citizens of the Republic of Moldova are guaranteed the right to participate in administration of public matters directly, as well as through their representatives.
42. Taking into account the role and the weight of the Parliament in the institutional architecture of the State, it is necessary to guarantee the fact that the Parliament represents the interests of the citizens in a completely open and transparent manner.
43. According to article 65 para. (1) of the Constitution, the sessions of the Parliament are public.
44. The importance of transparency in the parliamentary activity is determined by the unique role of the Legislative body in a democracy and namely to represent the voters and to be guided in its activity by the needs, interests and aspirations of the citizens.
45. The principle of transparency derives from the representative mandate, enshrined in article 68 of the Constitution, which sets forth that in the exercise of their mandate, the Members of Parliament are in the service of the people. Hence, the citizen entrusts the MP a mandate of representation. Thus, during the mandate, the MPs should be always under the supervision and control of the public opinion.
The representative mandate guarantees the fact that the entire activity of the MPs is under electoral control through meetings with voters, interviews or press conferences, participation of voters in the Parliament’s sessions and following the conduct of the elected people, open voting in the Parliament, TV broadcasting of some parliamentary sessions, public nature of parliamentary debates, publication of adopted acts.
46. Thus, the citizens are entitled to follow closely the activities of the MPs they have elected, getting sure that they observe the strict principles of conduct and that the maintain balanced relations with the representatives of the groups of interest.
The citizens also have the right to have the highest expectations in relation to the conduct and efficiency standards of the MPs. And last, but not least, the citizens should be also granted the right to access the documents of the Parliament in the corresponding limits described by law. In essence, all the transparency tools aim to allow the citizens to supervise activities, and especially, the legislative work of the Parliament.
47. The principle of transparency is fundamental in a democracy and it is adequately transposed in the legal systems of the countries with old democratic traditions, being inconceivable for the position and the vote of a Member of Parliament in relation to a certain subject to be not known by the voters. Transparency should be the main rule, the exceptions being defined only in a limited and exhaustive way, in exceptional situations related to the national safety or state secret.
48. In this context, the constitutional principle of the transparency of parliamentary work implies the right of access to information to any citizen regarding the activity of all the Members of Parliament. Hence, it is necessary to prove transparency in the parliamentary activity, including in relation to the votes expressed by every MP separately.
49. Without the open, transparent and traceable vote, the citizen cannot follow the activity of the MP representing him/her and, as a consequence, cannot assess correctly the way in which he/she is represented in the Parliament. The MPs should assume the responsibility of the political positions express, first of all, via an open vote.
3.2. Application of principles stated in the given case
50. In relation to the legal appreciation of the problem of compatibility with the provisions of the Constitution of the Parliament Decision No. 172 of 15 October 2015 under the aspect of the form and procedure of adoption, the Constitutional Court considers necessary to elucidate the requirements of constitutional level.
51. The Court holds that in the exercise of the constitutional powers, according to art. 66 of the Constitution regarding the categories of legal acts, the Parliament adopts laws, decisions, and motions.
52. In this case, the form does not represent an object of dispute, taking into account the constitutional norms, the Court concludes that lifting parliamentary immunity is related to the area of the Parliament Decisions. Thus, the contested act meets the form-related requirements set forth in art. 66 let. a) of the Constitution.
53. The Court holds that according to art. 74 of the Constitution, the Parliament adopts laws and decisions, in the presence of majority of MPs. The mentioned constitutional provisions set forth the categories of legal act which are adopted by the Parliament, as well as the necessary legal quorum for carrying out the sessions and adopting laws. Thus, according to para. (1) of art. 74, organic laws are adopted by the vote of the majority of the elected Members of Parliament, while according to para. (2) of the same article, the ordinary laws and decisions are adopted by the vote of the majority of present Members of Parliament.
54. Hence, according to the constitutional provisions, the rule which governs the adoption of Parliament decisions is to meet the minimum decisional quorum of the simple majority of votes, respectively the half plus one of the number of MPs present at the session, the exceptions from this rule being expressly provided in the Fundamental Law.
Hence, the Constitution provides for four situations in which the Parliament adopts decisions by the vote of the absolute majority of MPs, respectively half plus one of the number of elected MPs, and namely, in the cases related to: election of the President of the Parliament – art. 64 para. (2), granting confidence to the Government – art. 98 para. (3), adoption of the vote of no confidence to the Government – art. 106 para. (1) or adoption of the motion of censure in the procedure of assumption of responsibility by the Government – art.106/1 para. (2).
As well, the Constitution provides for meeting a majority of qualified votes, respectively two thirds of the number of MPs, in case when the President of the Parliament is revoked – art. 64 para. (2) – and when the President of the Republic of Moldova is indicted – art. 81 para. (3). In one single case, the Constitution requests for meeting the majority of three fifths: election of the President of the Republic of Moldova – art.78 para. (3).
Based on the analysis of these constitutional provisions, it may be concluded that all the decisions adopted by the Parliament, except for those related to the above-mentioned cases, observe the rule set by provisions of art. 74 para. (2) of the Constitution, respectively are adopted by the vote of the present MPs. The Constitution does not make a distinction between the adopted decisions depending on their object, and according to the principle “ubi lex non distinguit, nec nos distinguere debemus” – where the law does not make a distinction, its interpreter cannot do it either.
55. On the other hand, the Constitution does not regulate special requirements regarding the nature of the vote (open or secret) for lifting the MP immunity.
56. The Court notes that according to article 65 of the Constitution, the sessions of the Parliament are public. In corroboration with the provisions of article 34 (the right of citizens to access information) and article 68 (representative mandate), to ensure the constitutional principle of transparency, the vote of every MP is open. The exceptions to this rule are provided expressly and exhaustively in the Constitution.
Thus, the Constitution provides for three situations when the Parliament adopts decisions via secret vote and namely in the cases related to: election and revocation of the President of the Parliament – art. 64 para. (2), election of the President of the Republic of Moldova – art. 78 para. (5).
57. According to article 54 para. (2) of the Constitution, the exercise of rights and freedoms can be subject only to the restraints provided by law, which meet the norms that are unanimously recognized by the internal law and are necessary in the interests of the national security, territorial integrity, economic wellbeing of the country, public order, for preventing the mass disorders and crimes, protecting the rights, freedoms and dignity of other persons, impeding the disclosure of confidential information or guaranteeing the authority and impartiality of justice.
58. In relation to the possibility to restrain the right of access to information, in its Judgment No. 19 of 22.06.2015 on interpretation of art.
34 para. (3) of the Constitution, the Constitutional Court stated the conditions in which the right of the person to have access to information may be restricted:
“- restriction of the right to information may take place only if there is real and justified purpose for the protection of a legitimate interest regarding the protection of citizens or national security, and the public interest for such information does not prevail;
- any restriction of the access to information, including specific and limited categories of information that cannot be disclosed in order to protect the citizens or national security must be envisaged by law and must be necessary in a democratic society to protect a legitimate interest;
- justification of the legitimate interest shall be based on the gravity of its harm, if such information is published, and the public authority should demonstrate that information disclosure would threat severely the protection of citizens or national security”.
59. Based on the above-mentioned constitutional provisions, it results that all the Parliament Decisions, except for the ones referring to the listed-above cases (see para. 57 above), as well as for the exceptional situations related to the protection of citizens or national security, are adopted by open vote.
60. Based on the listed reasonings, The Court holds that the provisions of art. 97 para. (6) of the Parliament Regulation, which provides that the decision regarding the MP’s immunity lifting is adopted “[...] by the vote of the majority of elected MPs, expressed secretly”, are unconstitutional through correlation with the provisions of art. 65 corroborated with art. 34 of the Constitution, as well as the provisions of art. 74 para. (2) of the Constitution.
Based on the same rationale, the provisions of para. (7), and the word “secret” from para. (8) of art. 97 of the Parliament Regulation, adopted via Law No. 797-XIII of 2 April 1996, and para. (5) of art. 10 of the Law No. 39-XIII of 7 April 1994 on the Status of Members of Parliament, which enshrines the same unconstitutional legislative solutions are unconstitutional.
61. Hence, the constitutional, legal, and regulatory judicial regime imposed that based on art. 1 para. (3) and 7 of the Constitution, the norms regarding the approval of apprehension, arrest, search or sue in law of MPs to be interpreted and applied observing the principles of hierarchy of normative acts and supremacy of the Constitution.
62. The Court holds that the requirements regarding the decisional quorum and open vote represent requirements of constitutional level, while the rules of procedural order are set via the Regulation of the Parliament, based on the principle of regulatory autonomy, provided in articles 64 para. (1) and 72 para. (3) let. c) of the Constitution, not being liable to constitutional review.
63. As for the arguments of the complaint’s authors regarding the modalities of the decisional process, the Court considers that it is useful to underline that parliamentary immunity means responsibility and not privilege, and the mechanism for enforcing the parliamentary responsibility refers to the exercise of the parliamentary autonomy.
64. Nevertheless, the regulatory autonomy cannot be exercised in a discretionary way, with violation of imperative norms regarding the above- mentioned parliamentary procedure.
65. Moreover, the Court holds that the Parliament does not have the option to choose between enforcement of a law (in this case – organic) and the Constitution, as art.7 enshrines expressly the supremacy of the Constitution and its observance, and art.74 para. (2) of the Constitution is unequivocal regarding the majority of votes to be met for adopting the parliamentary decisions, others that those related to the hypotheses of exception regulated through Constitution (see the para. 55 above).
66. The Court holds the supremacy of the provisions of art.74 para. (2) of the Constitution in relation to any legal and regulatory norms with a judicial force which is lower than that of the fundamental law. The parliamentary activity should be guided by the same rules, meaning that it has to relate to the Constitution and case-law of the Constitutional Court, and this equates with getting away from the legal regulation which places the same problems of constitutionality, as the one analyzed in the given case.
In this context, the Court will issue an address to the Parliament for eliminating some legal provisions contrary to the provisions of the Constitution regarding the decisional quorum and open nature of the vote.
67. The parliamentary immunity should be used as a shield, which would create for MPs a privileged status in front of justice and law, beyond the strictly parliamentary activity. The MPs cannot substitute themselves to justice and make a cover around the parliamentary colleagues, hiding their position through secret, nontransparent vote. The MPs should assume themselves the responsibility of the expressed political positions, open voting being compulsory.
68. Thus, the Parliament should decide about the request on lifting immunity by open vote of the majority of MPs present in the public session, by observing the provisions of art. 74 of the Constitution. Only in conditions of observance of the constitutional procedure, the Parliament has the full freedom to decide about the request to approve the lifting of immunity, based on a decision adopted in the plenary session by exercising the right to approve or to reject the requests with such an object.
69. Thus, in this case, open voting does not represent a violation of the Constitution, on the contrary, the secret voting, not being an express requirement of constitutional level for lifting immunity, contradicts the provisions of the Constitution.
70. According to the stenograph of the Parliament, the request for approving the apprehension, arrest, search and sue in law of the MP Vladimir Filat was approved with 79 votes. Hence, when adopting the Parliament Decision to approve the apprehension, arrest, search and sue in law, there was met the requirement for decision quorum of the majority of present MPs, provided by art. 74 para. (2) of the Constitution.
71. Taking into account the above-mentioned conclusions, the Court holds that the adoption of the contested decisions met the requirements provided by the Constitution for adoption of Parliament Decisions and is not competent to pronounce itself regarding its compliance with the provisions provided by the Regulation of the Parliament.
II. THE ALLEGED VIOLATION OF ARTICLE 21 OF THE CONSTITUTION, IN THE PART RELATED TO THE PRESUMPTION OF INNOCENCE
72. According to the authors of the complaint, the contested act was adopted with the violation of article 21 of the Constitution, according to which:
“Any person accused to have committed an offence shall be presumed innocent until found guilty on legal grounds, brought forward in a public trial, safeguarding all the necessary guarantees for his/her defense.”
1. Arguments of the complaint’s authors
73. The authors of the complaint state that the contested decision violates the presumption of innocence, by indicating in its text “[…] and suing in criminal law court”.
2. Arguments of the Parliament
74. During the public sitting of the Court, the representative of the Parliament mentioned that the MP Vladimir Filat came to the plenary session of the Parliament and provided explanations regarding the brought accusations. As well, he was invited to the meeting of the Legal Committee for Appointments and Immunities, but he did not show up. Hence, the MP Vladimir Filat was not deprived of the right to provide explanations, the exercise of which is at owner's discretion.
3. Findings of the Court
75. In the part related to the alleged violation of article 21 of the Constitution, the Court reveals that presumption of innocence does not have incidence in the procedure of lifting immunity, as it refers to the procedural possibility, measures and actions to be applied by the competent authority, and not to the MP’s guilt or lack of guilt.
76. Moreover, the vote of the Parliament does not oblige in any way the body competent to take the respective procedural measure or action. The apprehension, arrest, search or sue in law is ordered only by the competent court and not by the Parliament.
77. The parliamentary committee empowered to conclude the endorsement and the report, as well as the plenary of the Parliament are not jurisdiction bodies and are not competent to analyze the correctness or legality of the legal qualification of the facts or to establish the person’s guilt or lack of guilt – these are the exclusive duties of the judicial power.
78. In this context, the Court holds that the approval of the Parliament does not represent a criminal procedural act. The decisions taken in this respect by the Parliament’s structures, which are political bodies by definition, are decisions of political nature and not judicial, thus it is not necessary for them to meet the same motivation criteria as in the case of the procedural acts of the judiciary bodies (Judgement Kart v. Turkey of 3 December 2009 of the Grand Chamber of the ECtHR, §101).
79. In this context, the Court reiterates that the useless extension of the parliamentary immunity without critical spirit to cover matters that have nothing in common with the respective public position only affects the level of society’s confidence for parliamentary democracy system. The more the “coverage” conduct is away from the tasks of the respective public position, the more solid should be the justification of the authorization of applying the benefit of immunity and, by extension, it becomes imperious to justify the refusal to lift the parliamentary immunity.
When immunity operates in a manner in which the persons are protected against the action of the criminal tribunals, it is important to establish clearly and convincing the motivation of the refusal to lift immunity (JCC No. 2 of 20 January 2015, mentioned above, §75).
80. Actually, the Venice Commission sets forth in its Report on extension and lifting of the parliamentary immunity (CDL-AD(2014)011) of 14 May 2014 that:
“38. The main argument against parliamentary immunity is the principle of equality before the law, which is also element of the rule of law. Any form of parliamentary immunity per definition means that members of parliament are given a special legal protection that other citizens do not have. For democracy to function it is particularly important that the members of the legislature themselves stick strictly to the laws that they make for others and that they can be held both politically and legally accountable for their actions. Rules on parliamentary immunity are an obstacle to this, and they are open to misuse and the obstruction of justice. By their very existence they may also contribute to undermining public confidence in parliament and to create contempt for politicians and for the democratic system as such.
39. For these reasons the basic normative position of the Venice Commission is that national rules on parliamentary immunity should be seen as legitimate only in so far as they can be justified with reference to overriding public requirements. They should not extend beyond what is proportional and necessary in a democratic society. […]”
81. As well, the mentioned Report, the Venice Commission established the following criteria for lifting the parliamentary inviolability:
189. Criteria for lifting inviolability:
- when the request for lifting is based on sincere, serious and fair grounds
- when the member concerned is caught in flagrante delicto
- when the alleged offence is of a particularly serious nature
- when the request concerns a criminal conduct which is not strictly related to the performance of parliamentary functions but concerns acts committed in relation to other personal or professional functions
- when proceedings should be allowed in order not to obstruct justice
- when proceedings should be allowed in order to safeguard the authority and legitimacy of parliament
- when the member concerned requests that immunity be lifted.
190. In any given case the relevant considerations should be weighed against each other. If the request is based on sincere and serious grounds, and if there is no reason to suspect fumus persecutionis, then there should be a strong presumption in favor of lifting inviolability. The basic test should be that inviolability should only be maintained in cases where this is justified with reference to specific considerations and proportionate and necessary in order to safeguard the effective democratic workings of parliament or the rights of any member or group of members.
82. Following this logics, the decision the Parliament takes regarding the request formulated in this respect only evaluates if the request is made with good-will, in the spirit of institutional loyalty, and if relates to facts of a nature that can justify the impairment brought – through the mentioned measures to – the stats of Member of Parliament. A contrary conduct would violate the exclusive duties of the judiciary power and the principle of separation of powers in the state.
83. In the same context, the Court mentions that the Constitution does not make distinction between the adopted decisions depending on the approved action or measure: apprehension, arrest, search or sue in law. Hence, these procedural actions or measures may be approved by the Parliament in a single act.
At the same time, the suing the person in law and recognition of the quality of defendant does not have the significance to recognize the guilt of the person, which is the exclusive competence of the court. The suing in law includes the submitting of the criminal investigation casefile to the competent court, and the last one, based on the submitted evidence, has the possibility to condemn or to acquit the person.
84. From this perspective, the request submitted to the Parliament contains the minimum necessary for informing the MPs and does not lead to substitution by the Parliament of the specific duties of the judicial power, hence the violation of the presumption of innocence cannot be supported.
Conclusions
85. Taking into account the expressed arguments, the Court holds that the requirements set in the Constitution for adoption of Parliament Decisions were met when adopting the contested decision, in relation of the adoption quorum and the modality of voting. As for the remaining procedures set forth in the Regulation of the Parliament, the Court is not competent to pronounce itself. Thus, the Court does not find any violation of the constitutional provisions on approval of apprehension, arrest, search or sue in law of the Members of Parliament.
Due to these reasons, based on articles 140 of the Constitution, 26 of the Law on Constitutional Court, 6, 61, 62 let. a) and 68 of the Constitutional Jurisdiction Code, the Constitutional Court
DECIDES:
1. In respect to article 70 of the Constitution in corroboration with articles 1 para. (3) and 7 of the Constitution, the Parliament cannot establish other decisional quorums than the ones expressly provided in the Constitution.
2. In respect to article 68 of the Constitution in corroboration with articles 2, 34, 39 and 65 of the Constitution, to ensure the constitutional principle of transparency and responsibility, the vote of every Member of Parliament is open, except for the cases expressly and exhaustively provided in the Constitution and of the exceptional situations related to protection of citizens or national security.
3. The para. (6) and (7), as well as the word „secret” in para. (8) of article 97 of the Regulation of the Parliament, adopted via the Law No. 797- XIII of 2 April 1996, and para. (5) of art. 10 of the Law No. 39-XIII of 7 April 1994 on the Status of Members of Parliament are declared unconstitutional.
4. The constitutional provisions shall be applied directly until the revision by the Parliament of the legislative provisions which enshrine the decisional quorums and secrecy of voting, other than the ones provided in the Constitution.
5. The complaint of the group of MPs from the parliamentary faction of the Liberal Democratic Party of Moldova on constitutional review of the Parliament Decision No. 172 of 15 October 2015 on approval of lifting the immunity of the Member of Parliament, Vladimir Filat is rejected as being ungrounded.
6. The Parliament Decision No. 172 of 15 October 2015 on approval of lifting on the parliamentary immunity of the Member of Parliament, Vladimir Filat is recognized as constitutional.
7. The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Gazette of the Republic of Moldova.
President of the sitting Igor DOLEA
Chisinau, 17 November 2015
JCC No. 27
Casefile No. 39a/2015