DECIDES:

1. In case of ascertaining the circumstances that justify the interim position of President of the Republic of Moldova in connection with the resignation, the opinion of the Constitutional Court shall be of a consultative nature.

2. If in the resignation request the President of the Republic of Moldova indicates the date and time of cessation of his duties, the opinion of the Constitutional Court shall have an a priori consultative character and shall be pronounced before the Parliament declares the vacancy of the President of the Republic of Moldova. If in the resignation request the President of the Republic of Moldova does not specify the date and time of cessation of his duties, after the declaration by the Parliament of the vacancy of President, the Constitutional Court, through a subsequent advisory opinion, will find the absence or presence of defects in the procedure for establishing the interim position.

3. In order to ensure the continuity of power in the state, the interim position of President of the Republic of Moldova occurs from the moment of declaring the vacancy of the position and is exercised by the President of the Parliament or, in order, by the Prime Minister.

4. The position of Interim President of the Republic of Moldova (exercised by the President of the Parliament or the Prime Minister) is a temporary position and it is not necessary for the Interim President to meet the special requirements for the candidate for President of the Republic of Moldova.

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

JUDGEMENT
on the interpretation of the provisions of art.90 paragraph (1) and paragraph (2), art.91 and art.135 paragraph (1) letter f) of the Constitution of the Republic of Moldova

no. 18 from 27.10.2009

Official Gazette no. 160-161 / 20 of 06.11.2009

On behalf of the Republic of Moldova, the Constitutional Court composed:

Elena SAFALERU - judge, chairman of the hearing Alina IANUCENCO - judge

Victor PUŞCAŞ - judge-rapporteur

Petru RAILEAN - judge

Valeria ŞTERBEŢ - judge

clerk - Aliona Balaban, with the participation of the representative of the author of the notification, Serghei Sîrbu, guided by art.135 paragraph (1) letter b) of the Constitution, art.4 paragraph (1) letter b) of the Law on The Constitutional Court and art.16 para. (1) of the Code of Constitutional Jurisdiction, examined in open plenary session the file regarding the interpretation of art.90 para. (1) and para. (2), art.91 and art.135 para. 1) letter f) of the Constitution of the Republic of Moldova.

The notification of the parliamentary faction of the Party of Communists of the Republic of Moldova, filed on September 15, 2009, in accordance with art. 24 and art. 25 of the Law on the Constitutional Court, art. 38 and art. 39 of the Code, served as a basis for examining the file. constitutional jurisdiction.

By the decision of the Constitutional Court of September 17, 2009, the notification was accepted for substantive examination and included in the agenda.

In the process of preliminary examination of the referral, the Court requested the views of the Department of Constitutional Law and Administrative Law of USM, the Institute of History, State and Law of the Academy of Sciences of the Republic of Moldova, the Scientific-Advisory Council of the Constitutional Court.

Examining the materials of the file, hearing the information presented by the judge-rapporteur, the arguments of the representative of the author of the notification, the Constitutional Court

NOTED:

1. On September 11, 2009, the President of the Republic of Moldova submitted his resignation to the Parliament. At the same time, the Parliament took note of the resignation request, declared vacant the position of President of the Republic of Moldova and adopted the decision on the interim assurance of this position by the President of the Parliament.

In the notification submitted to the Constitutional Court, the parliamentary faction of the Party of Communists of the Republic of Moldova requested the interpretation of Article 90 paragraph (1) and paragraph (2), Article 91 and Article 135 paragraph (1) letter f) of the Constitution to elucidate the following issues:

1. Is the opinion of the Constitutional Court on the finding of the circumstances that justify the interim position of President of the Republic of Moldova in case of resignation mandatory or consultative?

2. What is the consequence of the actions of the Parliament and of the Constitutional Court in case of the resignation of the President of the Republic of Moldova and the occurrence of the interim position of President?

3. From what moment does the interim of the position of President of the Republic of Moldova arise and who must exercise the attributions of the head of state after declaring the vacancy of the position until the establishment of the interim?

4. Does the interim president have to comply with the requirements of Article 78 paragraph (2) of the Constitution?

During the notification, the faction expressed its point of view on the provisions regarding the resignation of the President of the Republic of Moldova, the appearance of the vacancy and the provision of the interim position, reporting them to the concrete case of September 11, 2009.

2. Examining the issues addressed in the referral, the Court notes that the determination of the exact meaning of the constitutional provisions falls within the exclusive competence of the authority of constitutional jurisdiction, the decision of which is binding on the entire territory of the Republic of Moldova. with the perception and application of the norms of the Constitution, using all the methods of legal interpretation: grammatical, logical, historical, teleological and systematic as a whole.

In order to provide a solution to the issues addressed, the Court will analyze the constitutional norms notified in conjunction with art. 77, 80, 81, 86, 87, 88, 89 and 92 of the Constitution, as well as with its previous decisions1.

1. M.O., 1996, no.4, art.56
M.O., 2000, no.53, art.19 M.O.,
2000, no.163-165, art.47 M.O.,
2009, no.149, art.17

According to Article 90 of the Constitution, in case of resignation of the President of the Republic of Moldova, the vacancy occurs. The Parliament decides on the resignation request, announces the vacancy of the position and, as provided by art. 91 of the Constitution, ensures the interim position of President.

In interpreting these provisions, the Court considers it necessary to elucidate the meaning of notions applicable to the institute of the President of the Republic of Moldova, such as resignation, vacancy, interim position, etc.

The resignation of the President of the Republic of Moldova is a written request, submitted to the Parliament, by which the President withdraws from his position. The resignation of the head of state qualifies as voluntary and subjective circumstances, arising on his own initiative.

Regarding the resignation, the legislation of the Republic of Moldova2 stipulates in some cases that after submitting the resignation request the employee is obliged to fulfill his obligations until the resignation is accepted by the employer or until the expiration of the term provided by law, in other cases the termination of employment is established by achieving a compromise between employer and employee.

2. M.O., 2003, nr.159-162, art.648
M.O., 2008, nr.230-232, art.840
M.O., 2009, nr.55-56, art.155

The resignation of the President of the Republic of Moldova is a special case and involves triangular relations: President, Parliament and the Constitutional Court. These reports are dictated by several circumstances.

a) The first circumstance. Content of the resignation request. The resignation request must ensure the continuity of the exercise of the attributions. For this reason, the request indicates the date of cessation of the exercise of the attributions of President and their transmission to another official person provided by the Constitution.

b) The second circumstance. The resignation request must be submitted within such deadlines, so that the Constitutional Court can issue the opinion until the vacancy is declared. It would be unacceptable for the state not to be led by any official until the election of the new President.

c) The third circumstance. Ensuring continuity of power. In order to elucidate this aspect, it is important to analyze the attributions of the President. The president is the head of state and performs a number of functions: representation, guarantor of the Constitution and mediation. The attributions of the President can be divided into current and extraordinary attributions, the last ones related to the declaration of the partial or general mobilization, of the state of war, etc. Being the supreme commander of the armed forces, the President applies in his activity the legal framework of national defense consisting of the Constitution of the Republic of Moldova, the Concept of National Security, the Military Doctrine of the Republic of Moldova and a number of organic laws. According to the Military Doctrine of the Republic of Moldova, the main purpose of the military policy of the Republic of Moldova is to ensure the military security of the people and the state, the prevention of wars and military conflicts by means of international law. The activity of ensuring the military security of the people is a continuous activity, which does not allow intermittencies. Thus, considering the multitude of attributions of the President of the Republic of Moldova, the political power, which, according to the concept of national sovereignty, belongs to the people, is exercised permanently, without interruption, because power has a unitary, inalienable and indivisible character. Based on this reasoning, the state leadership is an uninterrupted activity, even if in some situations the duties of ensuring the normal functioning of state mechanisms may pass from the President of the State to other officials: the President of Parliament or the Prime Minister.

The vacation of the position of President of the Republic of Moldova is the period of time that begins from the moment of termination of the President's term until the election of the new President.

Regarding the concrete case, which determined the referral, the Court notes that the President of the Republic of Moldova submitted the resignation request on September 11, 2009, on the last working day of the week. The presentation of the resignation from the position of President without specifying the term of termination of the attributions has as consequence the declaration of the vacancy of the position.

Acting President of the Republic of Moldova. The interim position of President of the Republic of Moldova is a situation or a period of time, in which the President of the Parliament or, as the case may be, the Prime Minister provisionally exercises the position of President of the Republic of Moldova, until the election, in accordance with art.78, art. 79 and art. 90 of the Constitution, of the new head of state. Given the fact that there can be no power vacuum, the interim is ensured immediately after the position of President is declared vacant.

Opinion of the Constitutional Court

The notion of opinion is defined as an opinion, a competent assessment given by the Constitutional Court on an issue under debate within the issuing body.

The Constitutional Court observes that in art.135 paragraph (1) letter f) of the Constitution the term is found, unlike letters d) and e) of the same article, in which the word confirms is used. The term "ascertain" means the establishment of the situation or state of a thing, the existence of a fact, a truth, etc. According to art.63 of the Code of Constitutional Jurisdiction, the Constitutional Court rules on the circumstances that justify the interim position of President of the Republic of Moldova by opinion, and not by decision. If the Parliament, in the exercise of its exclusive attribution, declares the vacancy of the position of President of the Republic of Moldova, then the presumption of legality of the interim of this position is applied until proven otherwise, which would mean that only if it finds defects in the interim procedure. The Constitutional Court will mention this fact in its opinion.

Thus, the opinion of the Constitutional Court, regardless of the fact that it is pronounced before the declaration of the vacancy of the position or after the declaration of the vacancy of the position based on the resignation, has a consultative character.

4. The President of the Republic of Moldova is elected by the Parliament for a term of 4 years. According to the Constitution, the President of the Republic of Moldova may be elected the citizen with the right to vote who is 40 years old, has lived or permanently resides on the territory of the Republic of Moldova for not less than 10 years and possesses the state language.

The Court notes that for the President of Parliament or the Prime Minister the Constitution does not provide for such requirements. According to the Constitution, any deputy can be elected as President of the Parliament, with the majority of votes of the elected deputies, which at that time corresponds to the requirements regulated by the electoral legislation and the legislation on the organization and functioning of the Parliament of the Republic of Moldova. The candidacy for the position of Prime Minister is appointed by the President of the Republic of Moldova, after consulting the parliamentary factions.

Given the fact that the position of Interim President of the Republic of Moldova is a provisional position, the requirements for the election of the President of the Republic of Moldova and the provision of the interim position of President of the Republic of Moldova are different. The statement is also supported by the fact that the position of interim President can be held, in order, either by the President of the Parliament or by the Prime Minister. In case of committing serious acts, in violation of the provisions of the Constitution, the Interim President may be dismissed from office.

For the above reasons, guided by art.135 paragraph (1) letter b) of the Constitution, art.26 of the Law on the Constitutional Court and art.62 letter b) and art.70 paragraph (2) of the Code of Constitutional Jurisdiction, the Constitutional Court

DECIDES:

1. In case of ascertaining the circumstances that justify the interim position of President of the Republic of Moldova in connection with the resignation, the opinion of the Constitutional Court shall be of a consultative nature.

2. If in the resignation request the President of the Republic of Moldova indicates the date and time of cessation of his duties, the opinion of the Constitutional Court shall have an a priori consultative character and shall be pronounced before the Parliament declares the vacancy of the President of the Republic of Moldova. If in the resignation request the President of the Republic of Moldova does not specify the date and time of cessation of his duties, after the declaration by the Parliament of the vacancy of President, the Constitutional Court, through a subsequent advisory opinion, will find the absence or presence of defects in the procedure for establishing the interim position.

3. In order to ensure the continuity of power in the state, the interim position of President of the Republic of Moldova occurs from the moment of declaring the vacancy of the position and is exercised by the President of the Parliament or, in order, by the Prime Minister.

4. The position of Interim President of the Republic of Moldova (exercised by the President of the Parliament or the Prime Minister) is a temporary position and it is not necessary for the Interim President to meet the special requirements for the candidate for President of the Republic of Moldova.

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

THE PRESIDENT OF THE MEETING                                                                 Elena SAFALERU

Chisinau, October 27, 2009. No. 18.