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DECIDES:
1. In the meaning of Articles 69 para. (1) and 70 para. (1) and (2) of the Constitution, the incompatibility of people elected as Members of Parliament arises, as the case may be:
- for newly elected persons: from the moment of validation of their mandate by the Constitutional Court;
- for the Members of Parliament holding their positions: from the moment of accepting another remunerated position or occurrence of other situations of incompatibility, in accordance with the law.
2. In the meaning of Articles 69 para. (2) and 70 para. (1) and (2) of the Constitution:
- The right to choose between the MP mandate and the incompatible position by resigning should be exercised before the legal period expires. If a letter of resignation from the position of Member of Parliament is submitted by the MP who is in the incompatibility situation, the mandate will be terminated upon lodging the letter.
- If the incompatibility still persists after the expiration of the legal period, the Member of Parliament shall be considered resigned de jure from the MP position. The MP mandate shall be terminated de jure when the legal term to remove the incompatibility expires.
- The resignation shall be submitted to the Parliament, which declares the vacancy of the mandate.
3. In the meaning of Articles 70 para. (1), 99, 100 and 103 of the Constitution, when a new Parliament is formed, in case of electing members acting in the resigned Government as Members of the Parliament, they may hold the positions until the new members of the Government are sworn in.
4. To declare as unconstitutional paragraph (2) of Article 5 of the Law no. 39-XIII of 7 April 1994 on the Status of a Member of Parliament.
5. This judgment is final, cannot be subject to any appeal, enters into force on the date of its adoption and is published in the Official Gazette of the Republic of Moldova.
JUDGMENT
ON THE INTERPRETATION
of Articles 69 para.(2), 70 para.(1), 99 and 100 of the Constitution of the Republic of Moldova (situations of incompatibility of MPs)
(Complaint no. 1b/2015)
CHISINAU 24 June 2015
In the name of the Republic of Moldova, The Constitutional Court composed of:
Mr Alexandru TĂNASE, President, Mr Aurel BĂIEŞU,
Mr Igor DOLEA,
Mr Victor POPA, judges,
With the participation of Mrs Aliona Balaban, registrar,
given the application lodged on 26 January 2015 and registered on the same date,
having examined the application referred to in a plenary public sitting, given the file documents and proceeding,
deliberating in the council room, Delivers the following Judgment:
PROCEEDINGS
1. The case originated with the complaint submitted to the Constitutional Court on 26 January 2015, according to Article 135 para.(1) p.b) of the Constitution, Article 25 p. g) of the Law on the Constitutional Court and Article 38 para. (1) p. g) of the Code of Constitutional Jurisdiction, by Igor Dodon, Zinaida Greceanîi, Vladimir Ţurcan, Vasile Bolea şi Grigore Novac, members of Parliament, on the interpretation of Articles 69 para.(2), 70 para.(1), 99 and 100 of the Constitution of the Republic of Moldova.
2. The authors of the complaint requested the Constitutional Court to interpret the aforementioned Constitutional provisions under the following aspects:
"- What is the moment when there arises the situation of incompatibility for persons elected as MPs and when does the capacity of MP cease legally (by law)?
- Can the MP hold cumulatively two positions: being an MP and at the same time member of the Government, local elected representative, or other incompatible position, after expiration of 30 days from the date of validation of the mandate?
- Is the MP holding cumulatively two incompatible positions entitled to attend plenary sessions of the Parliament, after the submission of the mandate and after expiration of 30 days period provided to reject the mandate of MP, and what are the legal effects of the legislation adopted by the Parliament, with his/her participation (vote)?
Is the member of Government holding cumulatively the position of MP entitled to attend Government sessions and/or Parliament sessions and what are the legal effects of the legislation adopted by the Government, with his/her participation (vote)?"
3. By the Court decision of 2 February 2015 the complaint was declared admissible, without prejudicing the merits of the case.
4. In the process of examination of the complaint, the Constitutional Court requested the opinions of the Parliament, President of the Republic of Moldova and of the Government.
5. In the public hearing of the Court the authors of the complaint were represented by Mr. Vasile Bolea, Member of Parliament. The Parliament was represented by Mr. Valeriu Kuciuk, senior adviser within the General Legal Department of the Secretariat of the Parliament; the Government was represented by Mr. Sergiu Gurduza, Deputy Minister of Justice.
RELEVANT LEGISLATION
15. Relevant provisions of the Constitution of the Republic of Moldova (M.O., 1994, no.1) are as follows:
Article 6
Separation and Cooperation of Powers
“The legislative, the executive and the judicial powers are separate and cooperate in the exercise of the assigned prerogatives pursuant to the provisions of the Constitution.”
Article 60
Parliament – the Supreme Representative and Legislative Authority
(1) Parliament is the supreme representative body of the people of the Republic of Moldova and the sole legislative authority of the State.
(2) Parliament is composed of 101 members.
Article 69
Mandate of the Members of Parliament
"(1) The members of Parliament start exercising their mandate under the condition of prior validation.
(2) The powers ascribed to any Member of Parliament cease with the lawful assembly of the newly-elected Parliament, on resignation on the part of that member, on withdrawal of the mandate, in cases of incompatibility or death."
Article 70
Incompatibilities and Immunities
"(1) The office of the Member of Parliament is incompatible with the holding of any other remunerated position, except for didactic and scientific activities.
(2) Other incompatibilities shall be established by organic law.
(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 99
Incompatibilities
"(1) The office of the member of Government shall be incompatible with the holding of any other remunerated position.
(2) Other incompatibilities shall be specified by organic law."
Article 100
Termination of Office of the Member of Government
"The office of the member of Government shall cease in the event of resignation, revocation, incompatibility or death."
Article 103
Termination of Office
"(1) The Government shall exercise its mandate up to the date of validation of the election of the new Parliament.
(2) In cases where Parliament has passed a vote of no confidence in the current Government, or the Prime Minister has been removed from office, or as provided for by para. (1) above, the Government shall only control the administration of the public affaire until the new Government has been sworn in."
7. The relevant provisions of the Law no. 39-XIII of 7 April 1994 on the statute of the member of Parliament (MO., 2005, no. 59-61, Art. 201) are as follows:
"Art. 2 - (4) Members of Parliament shall start exercise their mandate from the moment of election, under the condition of subsequent validation.
[…]
(6) The capacity of member of Parliament ceases on the date of lawful assembly of the newly-elected Parliament, in the event of resignation or death.
(7) In case of resignation or death the position shall be declared vacant.
(8) The request for resignation shall be submitted to the Speaker of the Parliament. The Parliament, by a decision, shall take note of the application for resignation of the member of Parliament and shall declare the position vacant.
(9) In case of death, the Parliamentary Legal Committee on appointments and immunities shall prepare a report. The Parliament, by a decision, shall take note of the Committee report and shall declare the mandate vacant.
(10) The vacant mandate will be awarded to the immediately next candidate on the list of the party, socio-political organization or electoral bloc for which the Member of Parliament whose mandate was declared vacant. If the mandate gained by a member of Parliament who ran as an independent candidate is declared vacant, this vacancy shall be fulfilled by restoring the decreasing range, excluding the number corresponding to that candidate and including the next number in the range. Following the declaration by the Parliament of the vacancy of the MP mandate, the Central Election Commission, within 10 days, shall examine the immediately next alternate person on the list of the candidate whose mandate became vacant and shall submit it to the Constitutional Court for the validation of the mandate.
(11) The Constitutional Court within 30 days following the declaration of vacancy of the MP mandate shall validate the next mandate."
" Article 3 - The mandate of the member of Parliament shall be incompatible with:
a) the position of President of the Republic of Moldova;
b) the position of member of the Government;
c) the position of Parliamentary Advocate; c1) the position of a local elected official;
d) the exercise of any other remunerated position, including the position offered by a foreign state or international organization, except for didactical and scientific activity carried out outside the time frame established by the Rules of the Parliament."
"Article 5. - (1) A member of Parliament who is found in one of the situations of incompatibility listed in Article 3 will resign within 30 days from the date of validation of his/her mandate from the position which is incompatible with the MP mandate. The member of Parliament will follow the same procedure in the case of incompatibility provided in Article 4.
(2) If the Member of Parliament is found in one of the situations of incompatibility and failed to submit within the period specified in para. (1) the application for resignation from the position which is incompatible with the MP mandate, following the expiry of this period he/she will be suspended by law from the incompatible position."
8. Relevant provisions of the Law no. 64-XII of 31 May 1990 on the Government (reprinted, MO., 2002, no. 131-133, Art. 1081) are as follows:
Article 29
Members of the Government
"The Members of the Government:
- are responsible for the fields of activity that have been entrusted to them and for the Government activities, as a whole;
- participate at the examination of issues during the sittings of the Government and of its Presidium;
- may submit proposals to the Government regarding the examination of matters within their competence, may initiate the development of certain decisions and ordinances of the Government;
The Minister is not entitled:
1) to hold any other position within central and local public authorities;
2) to enrol in the managing bodies of commercial enterprises;
3) to perform entrepreneurial activity personally or through third parties;
4) to hold other remunerated positions except for scientific-educational activity.
The conditions for the remuneration of their work and financial and social security of the members of the Government are provided by the legislation.
The position of the member of the Government and the empowerment of the Government shall cease in case of resignation, withdrawal, incompatibility of position or death."
9. Relevant provisions of the Law no. 199 of 16 July 2010 on the status of persons holding public dignity functions (M.O., 2010, no. 194-196, Art. 637) are as follows:
Article 12
Incompatibilities
"(1) The Person holding dignitary position is not entitled to carry out any other remunerated activity, except for pedagogical and scientific activities.
(1¹) Notwithstanding the provisions of para. (1), the person holding the position of Deputy Minister is entitled to exercise a remunerated position within the Board of Directors of a state enterprise and within the Board of a joint stock company where the state holds a share within the share capital.
(2) The Provisions of para. (1) does not apply if the Constitution or the special law regulating the activity of the dignitary contains provisions referring to the situation of particular incompatibility of that dignitary or provisions regarding a similar situation.
(3) The situation of incompatibility shall end within one month following its appearance, unless the special law regulating the activity of this dignitary provides otherwise. If the dignitary fails to take any action in order to eliminate the situation of incompatibility, its mandate shall terminate before the term, under Article 22.
(4) In case the cessation of the situation of incompatibility within the period specified in para. (3) does not depend on the will of dignitary, he/she shall present evidence that he/she undertook actions in good faith to eliminate this situation."
Article 22
Termination of the mandate
"(1) The exercise of the mandate shall terminate upon the expiry of the term, unless the mandate is extended in the manner provided by the law, or before that term.
(2) If case of an elected dignitary, early termination of the mandate shall take place under the special legislation regulating the activity of that particular dignitary.
(3) If case of an appointed dignitary, early termination of the mandate shall take place by withdrawal of the mandate or, where appropriate, by dismissal of the dignitary from office based on the administrative act of the authority having appointed that dignitary.
(4) The provisions of para. (3) shall not apply to the dignitaries in respect of which the special law regulating their activity provides a different procedure for early termination of the mandate."
10. Relevant provisions of the Law no. 768-XIV of 2 February 2000 on the status of the local elected representative (M.O., 2000, no. 34, Art. 231) are as follows:
Article 7
"(1) The mandate of the local elected representative is incompatible with:
a) the capacity of a person holding public dignity functions;
b) the position of public servant in the territorial offices of the State Chancellery;
c) the position of public servant, employee within the subdivisions of local public authorities (apparatus of the head of rayon, city hall, Chisinau Town Hall and the district halls, directions, departments and other sub-units), including the People's Assembly of Găgăuzia and the Executive Committee of Găgăuzia;
d) the position of head, deputy head (including the interim office of these positions) within the structures subordinated to the local public authorities (public institutions, services, municipal enterprises);
e) in other cases provided by the law, including those referred to in Article 84 of the Law no.436-XVI of 28 December 2006 on the local public administration.
(2) In addition to the incompatibilities provided in para. (1) of this Article, the mandate of the local council is incompatible with the position of counsellor within a board of the same level or counsellor within the board of any level of another administrative-territorial unit of the second level."
Article 8
"(1) A local elected representative who is found in one of the cases of incompatibility laid down in Article 7 of this Law shall resign from the position which is incompatible with the mandate within 30 days from the occurrence of the situation of incompatibility.
(2) If the Head or the deputy head of the rayon, the deputy mayor fail to comply with the provisions regarding the cessation of the situation of incompatibility, the council having elected them will decide at their next sitting on the withdrawal of the mandate of that local elected representative, and in case of non-adoption of such a decision, the withdrawal of the mandate of the local elected representative will be decided by the court of law upon a motion by the territorial office of the State Chancellery or upon referral by the National Integrity Commission.
(2¹) At the request of the interested persons, the Central Election Commission shall decide on the withdrawal of the mandate of the local counsellor in case this counsellor fails to comply with the legal provisions on the cessation of the situation of incompatibility within the period provided in para. (1) of this Article.
(3) If the mayor is found in a state of incompatibility provided by the law, he/she is removed from office in the absence of a local referendum, based on the final judgment delivered by a court. The withdrawal procedure shall be initiated by the territorial office of the State Chancellery, ex officio or at the request of interested persons, including upon referral by the National Integrity Commission."
11. Relevant provisions of the Law no. 16-XVI of 15 February 2008 on the conflict of interests (reprinted, M.O., 2012, no. 72-75, Art. 231) are as follows:
Article 19
General provisions on incompatibility
"Incompatibilities related to the public positions are those provided in the Constitution of the Republic of Moldova, in the laws regulating the activity of public authorities where persons holding public dignity positions or public functions activate, in this Law, in the legislation regulating public service, in the laws regulating the status of local elected representatives, public administration, fighting corruption and protectionism, as well as in other laws."
IN LAW
12. Having examined the contents of the present complaint the Court notes that it refers to the situation of incompatibility of the MP mandate with the position of the member of Government as with other offices.
13. In this context the Court holds that this complaint refers to a number of interconnected elements and principles of constitutional nature such as MP mandate and situations of incompatibility, cases of termination of the MP mandate, all having to be examined in light of the separation of powers.
A. ADMISSIBILITY
14. According to its Decision of 19 March 2014 (see § 3 above), the Court held that, based on Article 135 para.(1) p.b) of the Constitution, Article 4 para.(1) p. b) of the Law on the Constitutional Court and Article 4 para. (1) p. b) of the Code of Constitutional Jurisdiction, the Constitutional Court is competent to examine a complaint relating to the interpretation of the Constitution.
15. Article 25 p. g) of the Law on the Constitutional Court and Article 38 para. (1) p. g) of the Code of Constitutional Jurisdiction empowers the members of the Parliament to lodge complaints to the Constitutional Court.
16. The Court notes that the issues challenged by the author of the complaint have never been subject of interpretation by the constitutional control institution.
17. The Court mentions that it had previously give official interpretation of Article 69 para.(2) of the Constitution by the Judgment no. 8 of 19 June 2012 and Judgment no.2 of 20 January 2015, in other respects, different from those challenged in this complaint.
18. The Court appreciates that the complaint cannot be dismissed as inadmissible and there are no other grounds to discontinue the proceedings under Article 60 of the Code of Constitutional Jurisdiction. The Court holds that the complaint was lodged legally and it is competent to decide on the interpretation of Articles 69 para.(2), 70 para.(1), 99 and 100 of the Constitution of the Republic of Moldova.
19. Moreover, according to Article 6 para.(2) of the Code of Constitutional Jurisdiction, the Constitutional Court sets up its own limits of competence.
20. The Court thus notes that, in the context the object of the complaint regarding the interpretation of Articles 69 para. (2), 70 para. (1), 99 and 100 of the Constitution of the Republic of Moldova, will perform the control of constitutionality of the provisions of Article 5 para.(2) of Law No. 39-XIII of 7 April 1994 on the status of the member of Parliament, which are related to the case under examination.
21. The Court recalls that the prerogative it has been granted with by the Article 135 para. (1) p.b) of the Constitution implies the determination of the authentic and full meaning of the constitutional norms, which can be undertaken by the textual or functional interpretation, to the extent it can be deduced from the text of the Constitution, considering the generic nature of the norm, concrete situations which the legislator could have not foreseen when drafting the norm.
22. The author of the complaint submitted to the Constitutional Court for examination the issue of incompatibility of MP position with other offices stemmed from a single case approach.
23. The issue raised before the Court for settlement requires the analysis of the regime of incompatibilities for the persons elected as members of Parliament with previously held positions (member of the Government, locally elected representative), as well as the incompatibilities of the MPs that are already exerting their mandate.
24. The Court notes that the issues under consideration will be assessed in the context of the circumstances that are specific to the case under examination, particularly taking into account the fact that at the time of referral, some MPs were simultaneously members of a resigning Government, as the new Government has not yet been appointed.
25. Therefore, the Court shall examine: 1) the legal regime of incompatibilities of the position of MP; 2) the effects of the situation of incompatibility of the position of Member of Parliament with other offices; 3) the effects of the situation of incompatibility of the position of Member of Parliament with the position of member of the resigning Government.
26. In this context, in order to elucidate the authentic content of the provisions of Articles 69 para. (2), 70 para.(1), 99 and 100 of the Constitution, the Court will operate, in particular, with the constitutional text, taking into account the aspects related the legal regime of incompatibilities, termination of the MP mandate in case of incompatibility with other positions, the forms in which this incompatibility are provide in the constitutions of other states, as well as in the case law of the European Court of Human Rights (hereinafter - "the European Court") using all methods of legal interpretation.
27. The Court shall also construe the constitutional norms taking into account the principle of separation of powers enshrined in Article 6 of the Constitution.
I. THE LEGAL REGIME OF INCOMPATIBILITIES OF THE POSITION OF MEMBER OF PARLIAMENT
1. Arguments of the author of the complaint
28. The authors of the complaint argue that at the time of validation of the mandates assigned to the MPs elected based on the electoral lists following the elections of 30 November 2014, several people were in a situation of incompatibility.
29. According to the authors of the complaint, following the expiry of the 30 days term from the moment of validation of their mandates, some MPs have not resigned from the previously held positions, contrary to the provisions of article 6 of the Constitution, the norms of the Law on the status of the member of Parliament, the Law on the Government and Law on the status of local elected representatives.
2. Arguments of the authorities
30. In its opinion the Parliament noted that, according to Article 70 of the Constitution, in case of occurrence of a situation of incompatibility the MP mandate shall terminate either by resignation (renouncing the mandate, upon request), or by law, in case of election or appointment by the Parliament into another position (minister, prosecutor, ombudsman, judge of the Constitutional Court).
31. In the written opinion of the President of the Republic of Moldova it is noted that the law clearly provides that the Member of Parliament who is found in one of the situations of incompatibility shall resign within 30 days from the date of validation of the mandate from the position which is incompatible with the MP mandate.
32. The Government, in its opinion, reiterated that, under the Constitution, the capacity of Member of Parliament is incompatible with any other remunerated position, except for educational and scientific activity, and shall cease in the cases clearly provided by Article 69 para. (2) and 70 para. (1) of the Constitution.
3. Court Assessment
3.1. General aspects on the incompatibilities of members of Parliament
33. The Court notes that normal functioning of the entire political and legal system imposes efficient protection of parliamentary mandate and institution of protection measures, such as incompatibilities, immunities.
34. The significance of the notion of ‘incompatibility’ consists of interdiction stipulated by law to cumulate two positions, to ensure the independence of a person who holds public office, to avoid the concentration of excessive prerogative on the same person, as well as to protect his/her moral and professional integrity.
35. The Court held that the incompatibility is instituted at the moment of acquiring the position and envisages a period of time during which the holder of position should choose between the main and the new position.
36. The incompatibility does not represent a protection measure only for the established position, but also for the positions that become incompatible with the public office, limiting the possibility to combine them.
37. In this sense, the Court noted that express provision of incompatibilities for the MP position is based on the rationale that the Member of Parliament should not be only independent from any influences, but should also abstain from holding positions or carrying out activities that by their nature would contradict his/her representative mandate or which would impede him/her to exercise the mandate.
38. The incompatibilities, besides the fact that these protect the independence of the Parliament, represent an interest from the perspective of conflict of interest. Or, by combining the MP mandate with another position, the Member of Parliament has a conflict of interest with the prerogatives and obligations set forth by his/her status, a fact that may create a material dependency on the cumulated position and may determine the possible attempt to settle some issues of particular interest with the assistance of the mandate.
39. Also, the Member of Parliament requires an increased concentration of efforts, a fact that makes this position incompatible with another public or private position.
40. The incompatibility concept of the Member of Parliament position is based on the principle of separation of powers in the state, enshrined in Article 6 of the Constitution, which represents a principle of state legal order.
41. According to this principle, the state authorities have the duty to exercise their competence within the limits imposed by the Constitution and law, without involving other authorities in their duties.
42. In its Judgment No.9 of 8 April 2010, the Court held:
"The functional incompatibilities imposed by public authorities, established by constitutional and legislative provisions under the Supreme Law are matters of law designed to ensure the effective functioning of the rule of law and democracy in Moldova under the conditions of political pluralism.
Article 6 of the Constitution stipulates expressly the separation of legislative, executive and judiciary powers and their collaboration in the exercise of their duties under the Constitution. According to this principle, all branches of state power must operate in strict compliance with constitutional provisions, none has the right to commit interference or to arrogate powers to other powers.
The establishment by Constitution of incompatibilities related to the exercise of office of the Member of Parliament, of the President of the Republic of Moldova or member of the Government, of the positions of a judge, prosecutor, etc. is a guarantee of the exercise by the legislative, executive and judicial authorities of their duties provided by the Constitution.
The implementation of the general principle of separation and collaboration of powers aims to ensure the functionality of the state in a strictly constitutional framework, exclude any attempts to establish dictatorship and a totalitarian regime."
43. The Court mentioned that the constitutional principle of separation of powers in the state, as well as ensuring the independence of the MP mandate, imposed the regulation of incompatibilities as a legal instrument for protection of MP mandate.
44. The Court held that the institution of incompatibilities represents a guarantee of objectivity and credibility, which should characterize a public position held in a democratic society, in a rule of law.
3.2. The regime of incompatibilities of members of Parliament in other states and in the case law of the European Court
45. The Court notes that following an observation of the experience of other countries there is no uniform approach regarding the regime of incompatibilities of the position of MP with other public offices, either elected or not, as well as with private position.
46. The analysis of relevant legal texts demonstrates that the establishment of the regimes of incompatibilities is based on the following grounds: the principle of separation of powers and independence of the parliamentary mandate, avoiding conflicts of interest, the demands related to the exercise of the MP mandate.
47. The Court notes that in a number of countries such incompatibilities are treated based on the principle of separation of powers. Thus, in such countries as Austria, Belgium, Spain, Estonia, Finland, France, Luxembourg, Macedonia, Netherlands, Portugal either the Constitution or other laws prohibit any possibility to combine the MP mandate with the holding of executive position (head of the state, Prime Minister, minister or Secretary of State) or within the magistracy (Member of the Constitutional Court or of the Supreme Court, of the State Council or in a high specialized court, i.e. the Court of Auditors).
48. Other states allow certain derogations from the principle of incompatibility of the MP mandate with other functions in the executive. In Italy, Hungary, Spain, Poland, Romania, Albania there exist an exception to the rule on incompatibilities of the MP position regarding the capacity of the member of the Government.
49. Some incompatibilities are meant to protect the independence of the MP mandate against any influences of administrative nature and thus refer to such positions as judge, prosecutor, police officer, armed forces, diplomatic and consular representative, member of institutions and public enterprises (France, Spain, Ireland, Italy, Malta, United Kingdom, Bosnia and Herzegovina, Slovakia, Belgium, Estonia, Czech Republic, Portugal).
50. Other regimes of incompatibilities are related to the existence of conflicts of interest and refer to the heads of enterprises, companies, public or private institutions which are interested in the activities of the state, including those benefiting from state aid or subsidies, chairmen and members of board of directors of enterprises in the field of public works, real estate and credit activity (Bulgaria, France, Spain, Italy, etc.).
51. In some states, with a view to ensure full time activity of the member of Parliament, the law prohibits, for the entire term of office, the exercise of any profession or paid work, except for educational activity (Spain, Lithuania, the Russian Federation).
52. The Court notes that according to the case law of the European Court, setting particular incompatibilities for public elective positions is not contrary to the European Convention.
53. By judgment of 15 June 2006 in case Lykourezos vs. Greece, the European Court, in paragraph 51, stated that, in terms of the obligation for the High Contracting Party to hold elections which ensure the free expression of the opinion of the people, the rights guaranteed under Article
3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law. Nonetheless, those rights are not absolute and the Contracting States must be given a margin of appreciation in providing “implied limitations”, depending on in historical development, cultural diversity, political thought and opinion with regard to democracy (Matthews vs United Kingdom § 63, Labita vs. Italy § 201; Podkolzina vs. Latvia, § 33).
3.3. The regime of incompatibilities in the Constitution and in the laws of the Republic of Moldova
54. The Court notes that the status of Member of Parliament is enshrined in the Constitution and in the legislation regulating this domain.
55. The Constitution provides the conditions for accession in the exercise of the MP mandate, cases of termination of the capacity of MP, incompatibilities and the exceptions relating to the mandate of Member of Parliament.
56. The Court notes that Article 69 para. (2) of the Constitution stipulates cases of termination of the capacity of MP, and provides that this position ceases on the date of lawful assembly of the newly-elected Parliament, in case of resignation, withdrawal of the mandate, incompatibility or death.
57. According to Article 70 para. (1) of the Constitution, the capacity of the MP is incompatible with any other remunerated position, except for educational and scientific activity, while para. (2) provides that other incompatibilities shall be established by organic law.
58. The Court notes that with a view to detail the constitutional provisions of Art. 70 para. (2) of the Constitution, art. 3 of Law no. 39-XIII of 7 April 1994 or the status of the member of Parliament stipulates the cases of incompatibility of the position of MP with the following functions:
a) the position of President of the Republic of Moldova; b) the position of member of the Government; c) the position of Ombudsman; c1) the position of a local elected representative; d) the exercise of any other remunerated position, including the position offered by a foreign state or international organization, except for didactical and scientific activity carried out outside the time frame established by the Rules of the Parliament."
II. THE EFFECTS OF THE SITUATION OF INCOMPATIBILITY OF THE POSITION OF MEMBER OF PARLIAMENT WITH OTHER OFFICES
1. Arguments of the author of the complaint
59. The authors of the complaint consider that, if the MP holds a position which is incompatible with the MP mandate, the MP mandate shall terminate. In this regard, the authors refer to Article 69 para. (2) of the Constitution which provides, among the situations of termination of the capacity of MP, the state of incompatibility.
60. According to the authors of the complaint, the cases of incompatibility stipulated in Article 69 para. (2) of the Constitution shall be settled according to the procedure and within the time limits specified in Article 5 para. (1) of the Law no. 39-XIII of 7 April 1994 on the status of the Member of Parliament.
2. Arguments of the authorities
61. According to the written opinion to the President of the Republic of Moldova, in terms of the incompatibility of the capacity of MP with other offices the provisions of Article 69 para. (2) of the Constitution shall apply, and under these conditions the capacity of MP shall terminate.
62. In the written opinion of the Parliament it is stated that if the member of Parliament is found in one of the cases of incompatibility provided by the law and submitted within the time limit prescribed by law an application to resign from the position of MP, his/her capacity shall terminate, according to Article 2 para. (8) of Law no. 39-XIII of 7 April 1994 on the date when the Parliament takes note of this resignation.
63. The Government in its opinion noted that the cases of incompatibility of the MP mandate with the position of local elected representative or with other positions provided for in art. 3 of Law no. 39-XIII of 7 April 1994 on the status of the Member of Parliament should be resolved in the manner provided in Art. 5 of that Law. Thus, the MP who is found in one of the cases of incompatibility laid down in Article 3 of the Law no. 39-XIII of 7 April 1994 shall resign within 30 days from the date of validation of the mandate from the position which is incompatible with the MP mandate.
3. Court Assessment
64. The Court notes that according to Article 69 para. (2) of the Constitution, the capacity of MP ceases on the date of lawful assembly of the newly-elected Parliament; in case of resignation, withdrawal of the mandate, incompatibility or death.
65. In the Judgment no. 2 of 20 January 2015 the Court noted that legal regulation of cases of forced termination of the MP mandate is the exclusive prerogative of the Parliament, including the withdrawal of the MP mandate or ascertaining of incompatibility.
66. However, the Court shall take into account the fact that, to date, the Parliament failed to enact legislation that would provide legal coverage for the cases of withdrawal or termination of the MP mandate (the hypothesis upheld by the Constitution which is different from 'lifting' of the mandate). Thus, constitutional provisions are still not implemented.
67. The Court builds its arguments on the premise that a rule must be construed in the meaning that allows its application and not in the meaning that excludes its application (actus interpretandus est potius ut valeat quam ut pereat).
68. Therefore, the rules that are inherent to such an activity, in the absence of clear provisions, shall be deduced as well from the constitutional text, following the application of the principle of "minimum effectiveness."
69. Reiterating the provision of Art. 70 para. (1) of the Constitution, the Court notes the incompatibility of the position of MP with any other remunerated office, except for educational and scientific activity. Moreover, according to para. (2), other incompatibilities shall be provided by the law.
70. The Court notes that Article 3 of Law no. 39-XIII of 7 April 1994 on the status of Member of Parliament indicates the positions that are incompatible with the MP mandate.
71. Article 5 para. (1) of Law no. 39-XIII of 7April 1994 regulates the procedure for the resignation of the MP who is found in one of the situations of incompatibility provided in Article 3 of the Law. Thus, the MP who is in one of the cases of incompatibility shall resign within 30 days from the date of the validation of the mandate from the position which is incompatible with the mandate of Member of Parliament.
72. In this regard, the Court also recalls Art. 12 para. (3) of Law No. 199 of 16 July 2010 on the status of persons holding high dignity positions which provides that any incompatibility shall end within one month from the moment of occurrence, and if the public dignitary fails to take actions in order to eliminate the incompatibility, his/her mandate shall terminate before the term.
73. The Court mentions that the incompatibility effect represents termination of MP mandate, either legally when an incompatibility arises, or by dismissing the parliamentarian, if he/she renounces to hold the mandate.
74. The Court holds that the legislature stipulated in Art.5 para.(1) of Law No.39-XIII of 7 April 1994 the dismissal of a Member of Parliament who faces one of incompatibility cases in a 30-day period from the validation of the mandate.
75. Hence, the Court states that setting the 30-day term from the date of validation of the mandates by the legislature for actions to remove the incompatibility is a transitory period, during which the Member of Parliament should choose one of the positions that cannot be held at the same time and act accordingly.
76. In these circumstances, the Court holds that the incompatibility of newly-appointed Members of Parliament appears at the moment of MP mandate validation.
77. At the same time, the Court distinguishes the appearance of an incompatibility situation for current Members of Parliament. Hence, the Court establishes that for current Member of Parliament who will choose another position, the incompatibility will arise when he/she starts exercising the other position.
78. The Court holds that the person who was elected as Member of Parliament and who is facing an incompatibility will have to choose between the MP mandate and his/her current position that generates the incompatibility until the legally stipulated term expires, resigning from one of the positions.
79. The Member of Parliament shall resign from the position incompatible with the MP mandate within 30 days from the date when incompatibility appeared, and vice versa, if the MP decides to keep current position, he/she should quit the MP position by submitting a letter of resignation.
80. The Court holds that if a letter of resignation from MP position is submitted by the MP in an incompatible situation, the MP mandate shall be terminated on the date the letter of resignation is submitted.
81. At the same time, the Court mentions that when a letter of resignation from the MP position is submitted, the Parliament should act promptly to observe the legal provisions.
82. The Court holds that the resignation represents an externalized manifestation of will, a legal act by which a dignitary withdraws from a position.
83. The resignation of a Member of Parliament generates a number of procedures consisting of few consecutive phases that imply a set of actions undertaken by both the Member of Parliament in incompatible situation, and the Parliament (Speaker of the Parliament, Standing Bureau, Standing Committees, Plenum of the Parliament), Central Electoral Commission, Constitutional Court, and is regulated by legal acts in the field.
84. The Court notes that according to Art. 2 para.(8) of the Law no. 39- XIII of 7 April 1994 the application on resignation shall be submitted to the Speaker of the Parliament. The Parliament, by a decision, shall take note of the resignation of the MP and shall declare the vacancy of the mandate.
85. Subsequently, according to art. 2 para.(10) of the same Law, the Central Electoral Commission, within 10 days, shall examine the immediately next alternate person on the list of the candidate whose mandate became vacant and shall submit it to the Constitutional Court for the validation of the mandate.
86. At the same time, the Court holds that if the incompatibility continues at the expiry of the validity term set forth by law in the case of the Member of Parliament in incompatible situation, he/she shall be considered legally dismissed from the MP position.
87. In this sense, the MP mandate is ceased de jure upon the expiry of the 30-day term, in accordance with Art. 5 para. (1) of Law No. 39-XIII of 7 April 1994 on the Status of a Member of Parliament.
88. Hence, the Court mentions that all legal procedures related to the incompatibility of parliamentarians should be finalized in a 30-day term set forth by law, when the incompatibility arises, otherwise, after the 30-day term expires, the MP mandate is ceased de jure without being necessary to satisfy other conditions.
89. In the light of what has been said above, the Court held that based on Art.69 para. (2) of the Constitution, the incompatibility is one of the causes to terminate the MP mandate, either by resignation of the parliamentarian or ceased de jure.
90. In this context, the Court holds that the law cannot contradict the constitutional provision that provides clear regulation on the termination of the capacity of the MP on grounds of incompatibility.
91. The Court notes that the consequences of the situation of incompatibility that occurred due to the performance of two positions that cannot be exercised concurrently by the same person, depend on whether the MP who is found in this situation managed or not to submit his/her resignation.
92. The situation where the MP failed to submit his/her resignation is regulated in para. (2) of Article 5 of Law no. 39-XIII of 7 April 1994 which provides that if the MP is found in one of the situations of incompatibility and has failed within the period specified in para. (1) to submit the resignation from the position which is incompatible with the MP mandate, upon the expiry of this period is suspended by law from the position that is incompatible.
93. Thus, according to those provisions, when the MP has not yet expressed his/her will to correct the incompatibility, he/she shall be lawfully suspended from the position which is incompatible with the mandate of Member of Parliament.
94. The Court finds that the legal norm, according to which the MP is suspended from the position which is incompatible with the mandate, unless he carries out the necessary actions in order to eliminate the situation of incompatibility, is contrary to the constitutional provisions of art. 69 para. (2), which clearly provide that the effect of this situation is the termination of the capacity of the MP, not vice versa.
95. In view of the above para. (2) of Article 5 of the Law No. 39-XIII of 7 April 1994 on the status of the Member of Parliament is contrary to the constitutional norms.
96. At the same time, the Court notes that, in order to eliminate the ambiguities in the law in case of occurrence of situations of incompatibilities for elective public persons, it shall issue an address to the Parliament with a view to regulate such situations in the spirit of this Judgment.
97. The Court reiterates the conclusion presented in its Address to the Judgment no. 2 of 20 January 2015, according to which the legislator has to regulate by the law the conditions for the termination of the capacity of MP, including the situation of incompatibility.
Conclusion
98. Based on the aforementioned arguments, the situation of incompatibility for newly elected members of Parliament arises from the moment of validation of the mandate by the Constitutional Court, and for the MPs holding their positions - from the moment of commencing the exercise of another remunerated position or from the occurrence of other situations of incompatibility under the law.
99. Starting with the moment of occurrence of the situation of incompatibility the MP shall, within the time limit established by the law, choose between parliamentary mandate and other position, being entitled to resign from one of these positions.
100. In case of submission of the application on resignation the MP mandate ceases upon submission thereof. If the MP fails to take any action within the time limit provided by the law, his/her mandate will cease by law at the date of expiry of the legal deadline established in order to eliminate the situation of incompatibility. The resignation shall be communicated to the Speaker of the Parliament who shall declare the vacancy of the mandate.
III. THE EFFECTS OF THE SITUATION OF INCOMPATIBILITY OF THE POSITION OF MEMBER OF PARLIAMENT WITH THE POSITION OF MEMBER OF THE RESIGNING GOVERNMENT
1. Arguments of the author of the complaint
101. The authors of the complaint argued that starting with 9 January 2015, 11 MPs who combined the position of Member of Parliament and member of the Government have not resigned from their position of member of the Government within the deadline provided in para. (1) Article 5 of Law no. 39-XIII of 7 April 1994.
102. According to the authors of the complaints, these MPs continued to attend the sittings of the Government and to exercise de facto the functions of members of the Government, contrary to constitutional and legal provisions in this field.
2. Arguments of the authorities
103. In its written opinion the Parliament stated that in order to ensure the continuity of current activity of the Government, Art. 103 of the Constitution imposes on the resigning Government the obligation only to exercise control of the administration of the public affaire until the new Government has been sworn in. Thus, while delivering the interpretation, the constitutional provisions related to incompatibility shall be read in conjunction with Article 103 of the Constitution, given that the temporary activity to control the administration of public affairs, being an obligation of the former Government, is incompatible with the position of MP.
104. In the written opinion of the President of the Republic of Moldova it is stated that the Government, according to Article 103 of the Constitution, shall exercise its mandate up to the date of validation of the election of the new Parliament. In order to ensure the principle of continuity in exercising the executive power and the continuity of activity of the Government, the members of the Government, who are also MPs are obliged by law to exercise their duties until taking the oath in front of the President of the Republic of Moldova by the new Government.
105. The Government in its opinion mentioned that following the date of validation of parliamentary elections and until the moment of taking the oath by the members of the new Government, the previous Government is no longer plenipotentiary, it is rather a resigned Government. During this period of time the Government continues its activity and performs, according to Article 103 para. (2) of the Constitution, only the control of administration of public affairs which are necessary in order to ensure the continuity of core public services.
3. The Court's assessment
106. The Court notes that according to Article 99 para. (1) of the Constitution, the office of the member of Government is incompatible with the holding of any other remunerated position, while under para. (2) any other incompatibilities shall be established by organic law.
107. Article 100 of the Constitution stipulates the cases of termination of the office of the member of Government. Thus, the position of member of Government shall terminate upon resignation, withdrawal, incompatibility or death.
108. The constitutional provisions are further detailed in Article 29 of Law no. No. 64-XII of 31 May 1990 on the Government providing that the minister is not entitled: to hold any other position within central and local public authorities; to enrol in the managing bodies of commercial enterprises; to perform entrepreneurial activity personally or through third parties; to hold other remunerated positions except for scientific-educational activity.
109. The Court also reiterates that according to art. 12 of Law no. 199 of 16 July 2010 on the status of persons holding public dignity positions, the situation of incompatibility shall terminate within one month from the moment of its occurrence.
110. On the other hand, the Court notes that according to Article 103 para. (1) of the Constitution, the Government shall exercise its mandate up to the date of validation of the election of the new Parliament.
111. The aforementioned provision is grounded on the idea that each Parliament must appoint its own Government due to the fact that the composition of the Government and its activity program shall correspond to the political configuration following the election results.
112. Furthermore, para. (2) of Article 103 of the Constitution provides that in case of resignation, the Government shall only control the administration of public affairs, until the new Government is sworn in.
113. Referring to the powers exercised by the resigning Government, in its Judgment no.7 of 18 May 2013 the Court held that:
"111. [...] an outgoing government continues to administer public affairs until a new, plenipotentiary government is formed. This means that the outgoing government exercises only a limited amount of power, it “administers”, not “governs”.
112. The administration of public affairs refers to the daily, current decisions of the Government, which are necessary for the uninterrupted functioning of the public service. This activity is reduced to avoiding the complete lack of executive power, which is an operational power and is vital for the vital needs of the society
[...]
114. The Government administering public affairs a fortiori may not take major policy initiatives on issues that have caused problems before its dismissal or have ultimately caused this dismissal. In particular, decisions that could subsequently sustainably employ the policy line of the future Government policy line are excluded. [...]
115. One of the rationales limiting the powers of a resigning Government is that a resigning Government is not likely to be sanctioned by the Parliament. It is obvious that a resigning Government cannot be overthrown. Therefore granting to a resigning Government such important tasks would be a danger for the idea of parliamentarism."
114. Referring to the present case, the Court notes that on 10 December 2014, following the validation of the parliamentary elections of 30 November 2014, the Government has resigned (Government Decision no.992 of 10 December 2014). The new Government was sworn in on 18 February 2015. On the same day the Parliament issued Decision no.11, by which the activity program approved and the vote of confidence to the Government was granted. Moreover, the Decree of the President of the Republic of Moldova no.1455-VII on the appointment of the Government was issued on the same day and the members of the new Government were sworn in.
115. The Court notes that in this case, some members of the resigning Government, which, according to Art. 103 of the Constitution had to exercise their functions until the new Government is sworn in, were newly elected MPs in the Parliament, and concurrently were exercising both positions following the expiry of 30 days period provided by the law.
116. In this context, the Court holds that the constitutional provisions are presented in a close logical and legal sequence and the exact meaning of constitutional provisions and their applicability shall be interpreted paying particular attention to the compliance with the constitutional principle of unity of matter and the principle of "minimum effectiveness".
117. The Court points out that, although apparently there exists a situation of incompatibility, the norms and the spirit of the Constitution aim at ensuring the continuity in exercising the state power by public institutions which were formed based on the Constitution.
118. The Court notes that under the given circumstances no government reshuffles could be made. The Court reiterates its conclusion outlined in the Judgment no. 7 of 18 May 2013 (p.152) that within a resigning Government any reshuffles may occur only in case of objective impossibility of people to exercise their mandate (illness, death), so that the status quo of the state administration is preserved.
119. At the same time, the Court reiterates that temporary situations, such as holding of interim positions, aimed at avoiding the creation of a vacuum of power and ensuring the organization of mechanisms with a view to establish plenipotentiary functional institutions, must be removed as soon as possible.
120. Based on the constitutional norms, the Court underlined that when a new Parliament is formed, if the members in office of the outgoing Government are elected as Members of the Parliament, they can hold both positions until the date the new members of the Government are sworn in.
121. The Court reiterates that the incompatibilities provided in the Supreme Law represent guarantees with a view to achieve the realization of the principle of separation of powers aimed at ensuring the rule of law.
Based on these reasons, according to Article 140 of the Constitution, Article 26 of the Law on the Constitutional Court, Articles 6, 61, 62 p. b) of the Code of Constitutional Jurisdiction, the Constitutional Court
DECIDES:
1. In the meaning of Articles 69 para. (1) and 70 para. (1) and (2) of the Constitution, the incompatibility of people elected as Members of Parliament arises, as the case may be:
- for newly elected persons: from the moment of validation of their mandate by the Constitutional Court;
- for the Members of Parliament holding their positions: from the moment of accepting another remunerated position or occurrence of other situations of incompatibility, in accordance with the law.
2. In the meaning of Articles 69 para. (2) and 70 para. (1) and (2) of the Constitution:
- The right to choose between the MP mandate and the incompatible position by resigning should be exercised before the legal period expires. If a letter of resignation from the position of Member of Parliament is submitted by the MP who is in the incompatibility situation, the mandate will be terminated upon lodging the letter.
- If the incompatibility still persists after the expiration of the legal period, the Member of Parliament shall be considered resigned de jure from the MP position. The MP mandate shall be terminated de jure when the legal term to remove the incompatibility expires.
- The resignation shall be submitted to the Parliament, which declares the vacancy of the mandate.
3. In the meaning of Articles 70 para. (1), 99, 100 and 103 of the Constitution, when a new Parliament is formed, in case of electing members acting in the resigned Government as Members of the Parliament, they may hold the positions until the new members of the Government are sworn in.
4. To declare as unconstitutional paragraph (2) of Article 5 of the Law no. 39-XIII of 7 April 1994 on the Status of a Member of Parliament.
5. This judgment is final, cannot be subject to any appeal, enters into force on the date of its adoption and is published in the Official Gazette of the Republic of Moldova.
President Alexandru TĂNASE
Chisinau, 24 June 2015
JCC nr. 21
Case file no. 1b/2015
PCC-01/1b Chisinau, 24 June 2015
To: Parliament of the Republic of Moldova
ADDRESS
On 24 June 2015 the Constitutional Court delivered Judgment no. 24 on the interpretation of articles 69 para.(2), 70 para.(1), 99 and 100 of the Constitution of the Republic of Moldova.
By this judgment, the Court explained certain aspects related to the circumstances when appear the cases of incompatibility of the position of MPs with other offices, the moment then the capacity of MP terminates and the modalities to eliminate the situations of incompatibility.
The Court mentioned that the incompatibility of people elected as Members of Parliament arises, as the case may be, for newly elected persons from the moment of validation of their mandate by the Constitutional Court; and for the Members of Parliament holding their positions from the moment of accepting another remunerated position or occurrence of other situations of incompatibility, in accordance with the law.
The Court held that the right to choose between the MP mandate and the incompatible position by resigning should be exercised before the legal period expires. If a letter of resignation from the position of Member of Parliament is submitted by the MP who is in the incompatibility situation, the mandate will be terminated upon lodging the letter.
Concurrently the Court noted that if the incompatibility still persists after the expiration of the legal period, the Member of Parliament shall be considered resigned de jure from the MP position. The MP mandate shall be terminated de jure when the legal term to remove the incompatibility expires. The resignation shall be submitted to the Parliament, which declares the vacancy of the mandate.
The Court also emphasized that the legislator has regulated differently the termination of the mandate for elected public officials (head, deputy head of the rayon, deputy mayor) in the situations of incompatibility.
Therefore, with a view to ensure the unity of the legal regulations in this area, the Court considers it necessary to review all legal provisions that regulate the incompatibilities of the elected public officials, taking account the arguments presented in this Judgment.
The Court also reiterates the findings presented in the Address to the Judgment no.2 of 20 January 2015, where it highlighted necessity to clearly regulate the grounds and the rules governing the forced termination of the MP mandate or the incompatibility of the member of Parliament taking into account the principles and the spirit of the Constitution, democratic norms and standards and paying attention to the experience of other states in this regard.
The Court requests the Parliament to consider this Address in accordance with Article 281 of the Law on the Constitutional Court, and to be informed on the results of such examination within the time limit prescribed by the law.
Presiden Alexandru TĂNASE