DECISION FOR THE CONTROL OF THE CONSTITUTIONALITY of Law no. 193 of December 20, 2019 for the amendment of some legislative acts and of the Decision of the Parliament regarding the appointment of some members of the Superior Council of Magistracy no. 53 of March 17, 2020

DECIDES

1. The notification submitted by Mr. Sergiu Litvinenco and Ms. Veronica Roșca, Members of the Parliament of the Republic of Moldova, is admitted.

2. Law no. Is declared unconstitutional. 193 of December 20, 2019 for the amendment of some legislative acts and the Parliament Decision no. 53 of March 17, 2020 regarding the appointment of some members of the Superior Council of Magistracy.

3. The provisions of Law no. 947 of July 19, 1996 regarding the Superior Council of Magistracy, in the wording prior to Law no. 193 of December 20, 2019.

4. 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.

DECISION
FOR THE CONTROL OF CONSTITUTIONALITY

Law no. 193 of December 20, 2019 for the amendment of certain acts

legislative and the Decision of the Parliament regarding the appointment of some members of the Superior Council of Magistracy no. 53 of March 17, 2020

(modification of the composition of the Superior Council of Magistracy) (notification no. 163a / 2020)

CHIŞINĂU
June 10, 2021

On behalf of the Republic of Moldova,

The Constitutional Court, judging in its composition:

Mrs Domnica MANOLE, President, Mr Nicolae ROȘCA,

Ms Liuba ȘOVA,

Mr Serghei ȚURCAN,

Mr Vladimir ȚURCAN, Judges,

with the participation of Mr. Dumitru Avornic, legal assistant,

Having regard to the referral registered on 28 October 2020, Having regard to the referral to the public plenary session, Having regard to the records of the case,

Deciding in the Council Chamber, Delivers the following judgment:

PROCEDURE

1. At the origin of the case is the notification submitted to the Constitutional Court on October 28, 2020, based on articles 135 par. (1) lit. a) of the Constitution, 25 let. g) of the Law on the Constitutional Court no. 317 of December 13, 1994 and 38 par. (1) lit. g) of the Code of constitutional jurisdiction no. 502 of June 16, 1995, by Mr. Sergiu Litvinenco and Mrs. Veronica Roșca, deputies in the Parliament of the Republic of Moldova. The authors of the notification also submitted supplements to the notification on January 29, 2021 and on March 10, 2021.

2. The authors of the referral request the Court to verify the constitutionality of some provisions of point 1 of art. I of the Law for the modification of some legislative acts no. 193 of December 20, 2019 and the constitutionality of the Decision of the Parliament regarding the appointment of some members of the Superior Council of Magistracy no. 53 of March 17, 2020. At the same time, during the public plenary session of the Court, Mr. Sergiu Litvinenco, author of the notification, requested the verification of the constitutionality of the entire Law no. 193 of December 20, 2019.

3. By the decision of the Constitutional Court of February 2, 2021, the notification was declared admissible, without prejudice to the merits of the case. With regard to the request of the Parliament's representative to withdraw the complaint, due to the expiry of the six-month period for resolving it, the Court noted that, if it accepted such requests, it would empty the idea of ​​constitutional review. The agenda of the Constitutional Court is particularly loaded with very complex cases, and compliance with the legal deadline of six months for a referral, given that the then organic legislator regulated it, ie in the absence of the institution of the exception of unconstitutionality according to the current procedure, is sometimes unsustainable. present. Moreover, the procedure for removing referrals from proceedings for the reason invoked by the Parliament's representative is not provided for in the Constitution and in the special laws governing the activity of the Court.

4. In the process of examining the referral, the Constitutional Court requested the opinions of the Parliament, the President of the Republic of Moldova, the Government, the Institute of Legal, Political and Sociological Research, the Superior Council of Magistracy, the Association of Judges of Moldova, the Association

"Voice of Justice", the Faculty of Law of the State University of Moldova and the Faculty of Law of the International Free University of Moldova.

5. Mr Sergiu Litvinenco, author of the referral, and Mr Valeriu Kuciuk, Parliament's representative, were present at the public hearing of the Court.

IN FACT

6. On December 4, 2019, the Government adopted Decision no. 611, approving the draft law for amending Law no. 947/1996 on the Superior Council of Magistracy and presented it to the Parliament for examination.

7. On 5 December 2019, the draft law presented by the Government was registered at the Secretariat of the Parliament1.

8. On the same day, Parliament convened a plenary session and examined the draft law at first reading. The draft law was presented by Mr. Radu Foltea, former Secretary of State at the Ministry of Justice, and the deputies asked questions and received answers regarding the draft law examined. Finally, the draft law was voted in first reading by a majority of the Members present at the sitting (see the transcript of Parliament's plenary sitting of 5 December 20192, pp. 125-145).

9. On December 6, 2019, the date of publication in the Official Gazette of the Republic of Moldova no. 360-366 art. 924, the Government Decision no. 611 regarding the approval of the draft law for the amendment of Law no. 947/1996 regarding the Superior Council of Magistracy.

10. On 20 December 2019, Parliament convened a plenary session and examined the draft law, which, as shown in the transcript of the plenary sitting (see transcript 3 of Parliament's plenary sitting of 20 December 2019, pp. 68-69), was voted in the second reading, final. The draft law was voted by 56 deputies, the law being assigned the number 193.

11. Law for amending some legislative acts no. 193 of December 20, 2019 entered into force on the date of publication in the Official Gazette of the Republic of Moldova no. 24-34 of January 31, 2020, art. 2. 3.

12. Until the adoption of this Law, the Superior Council of Magistracy consisted of 12 members: six judges elected by the General Assembly of Judges, three full professors of law, selected by the Legal Commission, appointments and immunities of the Parliament after a public competition and elected by the vote of the majority of the elected Members, the President of the Supreme Court of Justice, the Minister of Justice and the Prosecutor General.

1 http://www.parlament.md/LegislationDocument.aspx?Id=df671b38-bf6f-4f35-be29- 458dadbe3483
2 http://www.parlament.md/LinkClick.aspx?fileticket=OEE6e%2byb%2ffw%3d&tabid=128&mid=506&language=ro-RO

3 http://parlament.md/LinkClick.aspx?fileticket=4Ins08a3S%2b0%3d&tabid=128&mid= 506&language=ro-RO 

13. După adoptarea Legii, numărul membrilor Consiliului Superior al Magistraturii a fost majorat până la 15: șapte judecători aleși de Adunarea Generală a Judecătorilor, cinci profesori de drept titulari numiți de Parlament,  cu  votul  majorității  deputaților  aleși,  în  baza  propunerilor Comisiei juridice, numiri și imunități a Parlamentului, Președintele Curții Supreme de Justiție, ministrul Justiției și Procurorul general.

14. Prin Hotărârea Parlamentului nr. 53 din 17 martie 2020, au fost numiți în calitate de membri ai Consiliului Superior al Magistraturii, pentru un mandat de patru ani, următorii profesori de drept titulari: dna Elena Belei, dna Carolina Ciugureanu-Mihailuță, dna Valentina Coptileț și dl Ion Crețu.

LEGISLAŢIA PERTINENTĂ

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

Article 1

State of the Republic of Moldova

„[…]

(3) The Republic of Moldova is a rule of law, democratic, in which human dignity, his rights and freedoms, the free development of the human personality, justice and political pluralism represent supreme values ​​and are guaranteed. "

Article 6

Separation and collaboration of powers

"In the Republic of Moldova, the legislative, executive and judicial powers are separated and collaborate in the exercise of their prerogatives, according to the provisions of the Constitution."

Article 74

Adoption of laws and decisions

"(1) The organic laws are adopted with the vote of the majority of the elected deputies, after at least two readings.

[…]. ”

Article 102

Government acts

"[...]

(4) The decisions and ordinances adopted by the Government shall be signed by the Prime Minister, countersigned by the ministers who have the obligation to implement them and shall be published in the Official Gazette of the Republic of Moldova. Non-publication entails the non-existence of the decision or ordinance.

[...]. ”

Article 122

Structure

„(1) The Superior Council of Magistracy is composed of judges and full professors elected for a term of 4 years.

(2) The Superior Council of Magistracy includes by right: the President of the Supreme Court of Justice, the Minister of Justice and the General Prosecutor. ”

Article 123

Powers

„(1) The Superior Council of Magistracy ensures the appointment, transfer, secondment, promotion and application of disciplinary measures against judges.

(2) The manner of organization and functioning of the Superior Council of Magistracy shall be established by organic law. ”

16. The relevant provisions of Law no. 193 of December 20, 2019 for the amendment of some legislative acts are the following:

"Parliament adopts this organic law.

Article I. - Law no. 947/1996 on the Superior Council of Magistracy (republished in the Official Gazette of the Republic of Moldova, 2013, no. 15–17, art. 65), with subsequent amendments, is amended as follows:

1. Article 3:

in paragraph 1, the figures "12" are replaced by the figures "15"; paragraphs 3 and 4 shall read as follows:

"(3) Five members of the Superior Council of Magistracy from among the tenured law professors are appointed by the Parliament, with the vote of the majority of the elected deputies, based on the proposals of the Legal Commission, appointments and immunities of the Parliament. The Legal, Appointments and Immunities Commission shall hold a public competition until the expiry of the term of office of the appointed members or within 30 days of the date of the vacancy. The public competition includes at least the examination of the files and the hearing of the candidates. The Committee on Legal Affairs, Appointments and Immunities draws up reasoned opinions for each selected candidate and proposes their appointment to Parliament.

(4) Seven members of the judges, as well as seven alternate members, are elected in the Superior Council of Magistracy by secret ballot by the General Assembly of Judges, as follows: four from the courts, two from the courts of appeal and one from within the Supreme Court of Justice. Candidate judges who have accumulated more than half of the votes of those present at the meeting of the General Assembly of Judges are considered elected as members and alternate members of the Superior Council of Magistracy, according to the descending order of the number of votes obtained. The alternate members shall fill the vacancies of members of the Superior Council of Magistracy from among the judges corresponding to the level of the courts for which they were elected, in descending order of the number of votes obtained. "

- the article is supplemented by paragraph 41 with the following content:

"(41) The Superior Council of Magistracy announces the date of the meeting of the General Assembly of Judges at which its members are to be elected at least 60 days before the date of the meeting, but not later than 30 days from the expiration of the membership. of the Superior Council of Magistracy. Candidates for the position of member of the Superior Council of Magistracy submit the participation files to the Council at least 30 days before the date of the meeting of the General Assembly of Judges. The list of candidates and the submitted files are published on the official website of the Superior Council of Magistracy on the first day after the deadline for the submission of files. Candidates for the position of member of the Superior Council of Magistracy have the right to carry out a promotion campaign among the judges, in the manner established by the Superior Council of Magistracy. ”

in paragraph 7, the text “suspension of administrative activity during the term of office of a member of the Superior Council of Magistracy” shall be replaced by the text “resignation from the administrative position”.

2. Article 5:

in paragraph 1, after the words "elected by secret ballot", the words "from among the Judging Members of the Council" shall be inserted;

the article is supplemented by paragraph 4 with the following content:

"(4) In the case of the vacancy of the position of president of the Superior Council of Magistracy, until the election of a new president, the interim position is ensured by the dean of age from among the members of the judge."

3. Article 81:

paragraph (6) is finally completed with the text “and on the official website of the Superior Council of Magistracy”;

the article is supplemented by paragraph 8, with the following content:

"(8) The elaboration of the normative acts of the Superior Council of Magistracy is carried out in compliance with the legislation on transparency in the decision-making process."

4. Chapter II is supplemented by Article 82 with the following content:

“Article 82. Conditions for being able to be elected a member of the Superior Council of Magistracy from among the judges

(1) The candidate who meets the following conditions may be elected to the position of member of the Superior Council of Magistracy from among the judges:

a) has a seniority as a judge of at least 3 years actually worked;

b) has not been disciplined in the last 3 years.

(2) The candidate's file contains the following:

a) curriculum vitae;

b) letter of motivation;

c) the project regarding the main objectives that it will pursue in case of election as a member of the Superior Council of Magistracy.

(3) If the candidate does not meet the conditions provided in par. (1) or his file is not complete, the Superior Council of Magistracy excludes from the contest the respective candidate. ”

5. In Article 20 (2), the words "Article 20" are replaced by the words "Article 201".

6. Article 24:

in paragraph 3, the text ", following deliberation," shall be deleted;

in paragraph 5, the words "in deliberation" shall be replaced by the words "in taking the decision".

7. Article 25 shall read as follows:

“Article 25. Contestation of the decisions of the Superior Council of Magistracy The decisions of the Superior Council of Magistracy may be challenged at the Court of Appeal

Chisinau by any interested person, within 30 days from the date of its communication. "

Article II. - In Article 232 (4) of Law no. 514/1995 on the organization of the judiciary (republished in the Official Gazette of the Republic of Moldova, 2013, no. 15–17, art. 62), with subsequent amendments, the words “at least one month” shall be replaced by the text “at least 60 months days ”.

Article III. - (1) This law enters into force on the date of publication in the Official Gazette of the Republic of Moldova.

(2) The election of the new members of the Superior Council of Magistracy from among the judges is carried out in accordance with the provisions of the present law, regardless of the date of announcing the meeting of the General Assembly of Judges.

(3) Within 30 days from the date of entry into force of this law:

a) The Legal, Appointments and Immunities Commission of the Parliament will organize, in the manner established by the legislation, the competition for the selection of members in the Superior Council of Magistracy from among the tenured law professors for a term of 4 years;

b) The Superior Council of Magistracy:

- will announce the date of the meeting of the General Assembly of Judges for the election of the member of the Superior Council of Magistracy from among the judges of the level of courts;

- will bring its normative acts in accordance with this law.

(4) The General Assembly of Judges shall elect a member of the Superior Council of Magistracy from among the judges of the level of courts. Pending the election by the General Assembly of Judges of the new members of the Superior Council of Magistracy from among the judges, the alternate members previously elected by the General Assembly of Judges shall fill the vacant positions of members of the Superior Council of Magistracy. "

17. The provisions of the Parliament Decision no. 53 of March 17, 2020 regarding the appointment of some members of the Superior Council of Magistracy are the following:

„Pursuant to art. 3 para. (3) of Law no. 947/1996 on the Superior Council of Magistracy,

Parliament shall adopt this decision.

Article 1. - The following full professors of law are appointed as members of the Superior Council of Magistracy, for a term of 4 years:

BELEI Elena,

CIUGUREANU-MIHAILUȚĂ Carolina,

COPTILEȚ Valentina, CREȚU Ion.

Article 2. This Decision shall enter into force on the date of its adoption. "

IN LAW

A. ADMISSIBILITY

18. By its decision of 2 February 2021, the Court upheld compliance with the conditions for the admissibility of a referral in the present case-law.

19. The Court held that Article 1 (1) of Law no. 193 of December 20, 2019 for the amendment of some legislative acts and the Parliament Decision no. 53 of March 17, 2020 regarding the appointment of some members of the Superior Council of Magistracy.

20. In accordance with Article 135 para. (1) lit. a) of the Constitution, the control of the constitutionality of the laws and of the decisions of the Parliament belongs to the competence of the Constitutional Court. The Court notes that the examination of the constitutionality of the contested judgment of the Parliament, by which full professors have been appointed as members of the Superior Council of Magistracy, falls within its competence, because the members of the Council hold, according to Article 122 of the Constitution, positions of public dignity. (ie, which are expressly provided for in the Constitution or which have a fundamental role for the constitutional legal order) (see JCC No. 13 of 21 May 2020, § 37; JCC No. 13 of 27 April 2021, § 25).

21. In accordance with Articles 25 letter g) of the Law on the Constitutional Court and 38 para. (1) lit. g) of the Code of Constitutional Jurisdiction, the deputies have the prerogative to notify the Constitutional Court.

22. The contested provisions have not previously been subject to constitutional review.

23. The authors of the complaint argued that the contested provisions are contrary to Articles 1 para. (3) [preeminence of law], 6 [separation and cooperation of powers], 8 [observance of international law and international treaties], 20 [free access to justice], 23 [quality of law], 74 para.

(1) [adoption of laws and decisions of the Parliament], 116 par. (1) [statute of judges], 122 [composition of the Superior Council of Magistracy] and 123 para. (1) [attributions of the Superior Council of Magistracy] of the Constitution.

24. As regards the applicability in the present case of the constitutional provisions relied on by the authors of the complaint, the Court has established in its case-law that Articles 1 para. (3), 4, 8 and 23 para. (2) of the Constitution do not have an independent applicability. They may be invoked, in particular, if their applicability is established together with other provisions of the Constitution (see JCC No. 12 of 7 May 2020, § 43; JCC No. 25 of 29 October 2020, § 29; HCC no. 2 of 12 January 2021, § 20; HCC No. 3 of 14 January 2021, § 22).

25. As regards the scope of Articles 20, 23 and 116 of the Constitution, articles relied on in connection with the Superior Council of Magistracy, the right to a fair trial, guaranteed by Article 6 of the European Convention on Human Rights, appeals against judgments adopted by the College for the Selection and Career of Judges, the College for the Evaluation of the Performance of Judges and the Disciplinary Board shall be examined by the Council [see Article 39 para. (1) of Law no. 178 of July 25, 2014 and article 22 par. (1) of Law no. 947 of 19 July 1996].

Such disputes of public law may involve the civil side of the right to a fair trial, if the aspects of private law predominate over those of public law, given the direct consequences for a patrimonial or non-patrimonial civil law. Moreover, there is a general presumption that in ordinary labor disputes involving members of public office, including judges, there are such direct consequences for civil rights (see Denisov v. Ukraine [MC], 25 September). 2018, § 53).

26. However, according to the case-law of the European Court, even where a court ruling in disputes concerning civil rights and obligations does not meet certain conditions of Article 6 § 1, there can be no violation of the European Convention if the proceedings before it they are “subject to subsequent scrutiny by a judicial body with full jurisdiction and which provides the guarantees of Article 6 § 1” (see Denisov v. Ukraine [MC], 25 September 2018, § 65). In this regard, the Court noted that, according to Article 25 of the Law on the Superior Council of Magistracy, the decisions of the Superior Council of Magistracy can be challenged at the Chisinau Court of Appeal by any interested person, within 30 days from the date of communication. .

According to the Decision of the Constitutional Court no. 13 of May 14, 2018, the appellate court must carry out a factual and legal control regarding the decisions of the Superior Council of Magistracy that have been challenged before it. Thus, the Court of Appeal is a fully competent judicial body which provides, in theory, the guarantees of Article 6 § 1. For this reason, the Court has held that Articles 20, 23 and 116 of the Constitution are not incidental.

27. The complainants request the Court to examine the procedural aspect of the contested law in the light of the shortcomings admitted by the Parliament in its adoption, which consist, inter alia, in the lack of decision-making transparency caused by the lack of prior public consultations and opinions. The authors argued that although the decision of the Parliament concerns the composition of the Superior Council of Magistracy, which is a central element of the authority in question, and although this decision concerns a fundamental authority of the judiciary (see JCC No. 23 of 9 November 2011 , § 33), the contested law was examined and voted on by Parliament without consulting the Council.

28. In this context, according to the Venice Commission, parliamentary debates should not only be inclusive (in the sense of involving all political groups in Parliament), but sometimes require meetings with external participants, such as experts, relevant professionals and the parties. interested, for example, those representing ethnic, professional, religious groups, etc., affected by the policy in question (see Parameters on the relationship between the parliamentary majority and the opposition in a democracy: the checklist, adopted at the 119th plenary session (Venice, 21-22 June 2019), CDL-AD (2019) 015-e, § 77).

29. Also, with reference to the involvement of the judiciary in the process of judicial reform that directly affects its activity, in Opinion no. 18 (2015), the Consultative Council of European Judges emphasized the importance of judges' participation in debates on national judicial policy. The Council mentioned the need to consult representatives of the judiciary and to take an active part in drafting normative acts on the status of judges and the functioning of the judiciary (see Opinion cited, § 31).

30. In order to determine whether, in the context of the adoption of the contested law, the failure to consult the Superior Council of Magistracy affects the independence of the authority in question, the Court considered it necessary to examine the substance of the case under Articles 1 para. (3), 6 and 123 para. (1) of the Constitution.

31. Having regard to the arguments of Mr Sergiu Litvinenco, author of the complaint, who argued in the public plenary session of the Court that Government Decision no. 611 of December 4, 2019 regarding the approval of the draft law entered into force after its adoption in the first reading by the Parliament, the Court noted the incidence of article 74 par. (1) of the Constitution.

32. Regarding the contestation of the Parliament Decision no. 53 of 17 March 2020 regarding the appointment of the four full professors of the Council, the authors of the notification consider that the Parliament violated the procedure for adopting this Decision. In order to see whether the constitutional requirements were complied with when adopting the contested judgment of the Parliament, the Court considered it necessary to examine the judgment under appeal in the light of Articles 1 para. (3) and 122 para. (1) of the Constitution.

B. BOTTOM OF THE CASE

A. Arguments of the authors of the notification

33. Regarding the procedure for adopting Law no. 193 of December 20, 2019 for the amendment of some legislative acts, the author of the notification, present in the public plenary session, mentioned that the contested Law was adopted based on the draft law submitted by the Government by Decision no. 611 of December 4, 2019. The author stated that the Government Decision in question entered into force on December 6, 2019, and the bill presented by the Government was voted in the first reading by Parliament on December 5, 2019, ie until the entry into force of Government Decision.

Thus, when voting in the first reading of the draft law presented by the Government, the Parliament voted a non-existent act, because, according to article 102 par. (4) of the Constitution, the decisions of the Government are published in the Official Gazette of the Republic of Moldova, and their non-publication attracts their non-existence. Also, the authors of the notification consider that the draft of the contested Law was approved by the Government without organizing prior public consultations on it, contrary to the provisions of Law no. 239 of 13 November 2008 on transparency in the decision-making process.

Also, after being approved by the Government on December 4, 2019, the bill was voted in the first reading on December 5, 2019. Two weeks later, the bill was voted in the second reading, without the Parliament waiting for the Opinion Commission of Venice, which was requested by the Minister of Justice. Moreover, the draft law was adopted without the approval of the relevant institutions and without the anti-corruption expertise.

34. The complainants claim that the contested amendment of the Law on the Superior Council of Magistracy and the adoption of the Parliament's decision to appoint the new members of the Superior Council of Magistracy lead to the politicization and political control of the Council by the majority. Thus, there would be an unacceptable interference of the legislative power in the activity of the judiciary, calling into question the role of the Superior Council of Magistracy as a guarantor of the independence of the judiciary. This would have negative consequences for the work of the entire judiciary.

35. According to the complainants, the situation is that the full members of the Council have acquired an important role in the field of disciplinary liability of judges, which is an interference with political justice. The authors of the complaint also state that the protection of the judiciary from political pressure or interference is the essential premise of an independent judiciary.

36. The authors of the complaint claim that the role of law professors is that of whistleblowers of integrity, of people who sound the alarm in society when the members of the judiciary or the law members of the Council do not respect the basic principles of the functioning of the institutions. Through the contested changes, the role of full-time professors in the Council became crucial for the career of judges, establishing total political control over the judiciary and violating the constitutional principle of cooperation of the judiciary with the other two branches of power.

37. Regarding the Decision of the Parliament no. 53 of 17 March 2020 on the appointment of members of the Superior Council of Magistracy, the author of the referral, present at the Court hearing, mentioned that the defect of the procedure for adopting the contested Law affects the validity of the relevant Decision of the Parliament. The authors of the complaint also consider that the full professors of the Superior Council of Magistracy do not meet the independence requirements of a tribunal, as provided for in Article 20 of the Constitution.

In this sense, the authors of the notification note that after the amendment of the Law on the Superior Council of Magistracy, by Law no. 193 of December 20, 2019 for the amendment of some legislative acts, the Legal, Appointments and Immunities Commission of the Parliament announced a competition for the selection of four candidates for the positions of member of the Superior Council of Magistracy from the Parliament. Subsequently, on March 10, 2020, the Parliament adopted Decision no. 43 for the amendment of the Parliament Decision no. 151/2019 on the approval of the nominal composition of Parliament's standing committees, which, inter alia, replaced a representative of the parliamentary opposition with a member of the Democratic Party, which made the majority of members of the Legal Affairs Committee members) to represent the parliamentary majority.

Subsequently, members of the Commission outside the parliamentary majority refused to participate in the competition procedure organized for the selection of four candidates for the position of member of the Superior Council of Magistracy from the Parliament. The authors note that the full professors were selected by Parliament's Committee on Legal Affairs, Appointments and Immunities in the absence of criteria or a selection procedure, which would exclude Parliament's promotion of political interests and the risk of selecting candidates on political grounds.

Also, the new full professors of the Council were elected by the vote of the deputies of the governing coalition, not ensuring a sufficiently broad consensus, and on the basis of a non-transparent and non-objective selection process.

38. The authors of the complaint mention that the full professors of the Superior Council of Magistracy were proposed for appointment by a political commission and the Parliament appointed them by 55 votes, although in the Urgent Joint Opinion no. 976/2019 of January 22, 2020 regarding the draft law amending Law no. 947/1996 on the Superior Council of Magistracy, the Venice Commission recommended that non-judge members be appointed by a qualified majority and that the authority proposing candidates be an independent and apolitical commission (§§ 26 and 35 of the Cited Opinion).

39. The complainants argued that the contested provisions were contrary to Articles 1 para. (3) [preeminence of law], 6 [separation and cooperation of powers], 8 [observance of international law and international treaties], 20 [free access to justice], 23 [quality of law], 74 para. (1) [adoption of laws and decisions of the Parliament], 116 par. (1) [statute of judges], 122 [composition of the Superior Council of Magistracy] and 123 para. (1) [attributions of the Superior Council of Magistracy] of the Constitution.

B. Arguments of the authorities and organizations requested and giving their views

40. The President of the Republic of Moldova mentions that in Opinion no. 983/2020 of 20 March 2020 The Venice Commission noted that:

(i) the mechanism for appointing members of the Superior Council of Magistracy from full professors of law could include the formation of an apolitical commission in place of the current Committee on Legal Affairs, appointments and immunities of Parliament;

(ii) other authorities may be involved in the nomination process, such as the Bar Association or the law schools of universities;

(iii) the vote of the majority of Members for the appointment of members of the Council by full professors shall not be sufficient, and their appointment shall be required on the basis of a broad political consensus, providing for a qualified majority (2/3 of the votes ) in the Parliament, with the establishment of some provisions to avoid blocking the appointment of these members.

The President of the Republic also mentions that the process of appointing full members of the Council did not comply with the recommendations of the Venice Commission as regards the selection mechanism, in particular by the fact that they were selected and proposed to Parliament by the Committee on Legal Affairs. and immunities of Parliament, which is a political body.

At the same time, the parliamentary opposition had no influence on the choice of the composition of the Council in order to ensure the independence of the authority in question. The selection of candidates for the position of full professor of the Council places the members in question in a report of subordination to the legislature. The President of the Republic notes that the adoption of the contested law was vitiated because the draft law was not subject to public consultation, was not examined by the National Anticorruption Center, was not endorsed by the competent authorities or by the standing committees of Parliament.

Regarding the Parliament Decision no. 53/2020, the President of the Republic mentions that this is contrary to Articles 6, 116 and 123 of the Constitution, because the full professors of the Council were appointed on the basis of a law, considered by the President unconstitutional.

41. The opinion presented by the Parliament states that the recommendations of the international authorities for the Parliament of the Republic of Moldova cannot have the legal status of binding directives, because they would seriously affect parliamentary autonomy and national sovereignty.

42. In the opinion presented by the Government it is mentioned that the provisions of Law no. 193/2019 consolidates, in fact, the principle of separation of powers in the state provided by Article 6 of the Constitution, by expanding the number of members of the Superior Council of Magistracy and by establishing a way of selecting its members. Corroborating the provisions of article 3 par. (3) of the Law on the Superior Council of Magistracy with the provisions of article 66 of the Constitution, the appointment of the members of the Superior Council of Magistracy from among the tenured law professors does not exceed the attributions of the Parliament.

Therefore, the regulation by the Parliament of certain aspects regarding the organization and activity of the judicial system cannot be qualified, per se, an attempt of subordination and control of the judiciary by the Parliament. Regarding the violation of the legislative stages, the Government mentions that the announcement on the initiation of the drafting of the law was placed on October 7, 2019, and the Government Decision on the approval of the draft law was adopted in December 2019.

As for the performance of the anti-corruption expertise of the draft law, it was carried out according to the provisions of Law no. 100/2017 and the Integrity Law no. 82/2017. Moreover, a possible non-compliance with the stages of legislation established by Law no. 100/2017 does not violate the constitutional provisions, based on the reasoning of the Court mentioned in Decision no. 45 of May 18, 2020. The Parliament adopted Law no. 193/2019, which is an organic law, according to article 72 par. (3) lit. e) of the Constitution.

In this law, the Parliament regulated the number of members of the Superior Council of Magistracy and the way of selecting the members of the Superior Council of Magistracy from the tenured law professors. This method of selection falls within the provisions of article 123 par. (2) of the Constitution.

Therefore, the provisions of the Law do not extend, contrary to the constitutional provisions, the categories of persons who can become members of the Superior Council of Magistracy. The Government emphasizes that Article 12 of Law no. 947/1996 expressly establishes the reasons for termination of the term of office of the member of the Superior Council of Magistracy, not being provided as a reason for dismissal of a member by the authority that appointed him.

Also, article 3 par. (3) of Law no. 947/1996 maintains the obligation to organize a public competition for the selection of a member of the Superior Council of Magistracy. Considering that Law no. 193/2019 does not present constitutional deficiencies, Parliament Decision no. 53/2020, which implements the provisions of this Law, is also constitutional. Moreover, the Decision of the Parliament no. 53/2020 was consumed at the time of the appointment of the members of the Superior Council of Magistracy and, therefore, cannot be subject to constitutional review.

43. The opinion presented by the judges of the Superior Council of Magistracy underlines the procedural shortcomings existing in the adoption of the contested Law. Moreover, the adoption of that law infringed the principle of the independence of judges and the principle of the separation of powers.

44. In the opinion presented by the Institute for Legal, Political and Sociological Research, it is mentioned that determining the number of tenured law professors who are part of the Superior Council of Magistracy is within the competence of the legislature and is not a matter of constitutionality.

45. According to the opinion presented by the State University of Moldova, there are no legal premises to consider that the current procedure for appointing the members of the Superior Council of Magistracy among tenured law professors places them under the control of political forces.

C. Findings of the Court

46. ​​The Court notes that the following legal issues can be inferred from the arguments of the complainants: (a) the observance of the legislative procedure by the Parliament when the adoption of Law no. 193 of December 20, 2019; (b) compliance with the Constitution of Parliament's Decision no. 53 of March 17, 2020

I. Regarding the observance of the legislative procedure by the Parliament at the adoption of Law no. 193 of December 20, 2019

47. As a preliminary point, the Court notes that, under Article 60 para. (1) of the Constitution, the Parliament is the supreme representative body of the people of the Republic of Moldova and the sole legislative authority of the state.

48. In its case-law, the Court has held that Parliament is sovereign in regulating the procedure for the adoption of laws. However, Parliament's sovereignty is not absolute, as it is limited by constitutional principles in this area. In this sense, both in the regulation of parliamentary procedures and in their application, i.e. when adopting normative acts, Parliament must ensure the right balance between the principle of parliamentary autonomy and other principles incidental to parliamentary procedures, which are expressly established or which can be clearly deduced from the Constitution (see JCC no. 14 of 27 April 2021, § 53).

49. Given Parliament's sovereignty in matters of legislation, the Court held that its power to review the constitutionality of parliamentary proceedings was limited. In this area, the Court must show judicial deference to Parliament's role as an autonomous legislator. In this respect, the Court can verify the constitutionality of a law from a procedural point of view only if the Parliament has adopted any essential element of the legislative process, which is expressly enshrined in the Constitution or which can be clearly deduced from a constitutional principle (see § 54 of the cited Decision).

50. In this case, the Court finds that on 4 December 2019 the Government adopted, on the basis of the right to legislative initiative, Decision no. 611 approving the draft of the contested law and presenting it to the Parliament for examination. The Court notes that Government Decision no. 611 entered into force on December 6, 2019, on the date of publication in the Official Gazette of the Republic of Moldova (see above §§ 6-9).

The entry into force of the Government decisions is regulated by article 102 par. (4) of the Constitution, which stipulates that the decisions and ordinances adopted by the Government shall be signed by the Prime Minister, countersigned by the ministers who have the obligation to implement them and shall be published in the Official Gazette of the Republic of Moldova. Non-publication entails the non-existence of the decision or ordinance.

51. The Court notes that, under Article 74 para. (1) of the Constitution, the organic laws are adopted with the vote of the majority of the elected deputies, after at least two readings. In its recent case law, the Court has interpreted the meaning of the text "after at least two readings" of Article 74 para. (1) of the Constitution and established that it contains both a procedural element and a substantial element. The procedural element assumes that the Parliament must vote in two readings on the draft organic law. The main point is that before the vote, Parliament must debate the content of the draft organic law (see JCC No. 14 of 27 April 2021, § 35).

52. Interpreting the text "after at least two readings" of Article 74 para. (1) of the Constitution, the Court will develop the procedural element of this article, previously established by Decision no. 14 of 27 April 2021. Thus, the Court notes that compliance with the procedural requirements relating to the adoption of laws is as important as compliance with the requirements applicable to the content of laws. The former protect parliamentary democracy, which must be respected throughout the legislative process and which assures citizens that laws have not been passed through abuse. The latter prevent the disproportionate restriction of citizens' rights and freedoms.

53. The Court notes that the Basic Law establishes the procedural requirements of the legislative process applicable both at the stage of verifying the content of draft laws (eg the existence of parliamentary debates, the right to table amendments, the right to ask questions, the right to speak, etc.), as well as at the stage of verifying the fulfillment of the preliminary procedural conditions in order to be able to start the examination of the acts in question.

54. Thus, for example, at the stage of verifying compliance with the preliminary procedural conditions in order to start examining draft laws, Parliament must determine whether the draft in question was sent by one of the authorities authorized by Article 73 of the Constitution to take legislative initiatives and whether , in the case of the Government, the decision approving the draft law entered into force, according to article 102 par. (4) of the Constitution.

The Court notes that the issues in question are part of the essential elements of the legislative process, within the meaning of the Decision of the Constitutional Court no. 14 of April 27, 2021, § 54. The Constitution does not authorize Parliament to initiate the examination of the content of draft laws as long as the draft law does not meet the conditions for initiating the legislative procedure.

55. The Court notes that the Law on the Superior Council of Magistracy is, according to Articles 72 para. (3) lit. e) and 123 para. (2) of the Constitution, an organic law. Therefore, the normative acts of the Parliament amending or supplementing this law can only be organic laws, adopted after at least two readings, as provided by Article 74 para. (1) of the Constitution.

56. In this case, the Court finds that although Government Decision no. 611, approving the draft law challenged and submitted to Parliament for consideration, entered into force on 6 December 2019, this did not prevent Parliament from examining the draft in question and voting on it at first reading on 5 December 2019 (a see §§ 6-8).

Thus, the Parliament did not comply with one of the constitutional conditions applicable in cases where the Government initiates a draft law, namely that the draft in question can be debated and voted only after the entry into force of the Government Decision approving the draft in question. [see Article 102 para. (4) of the Constitution]. The Court therefore notes that in examining the draft law at first reading, Parliament voted on a non-existent act.

57. The Court cannot ignore this procedural defect and finds that the validity of the vote on the contested law at first reading is affected. In view of the above, the Court finds that the contested law was adopted by the Parliament in a single reading, on December 20, 2019. The adoption of an organic law by the Parliament in a single reading violates Article 74 para. (1) of the Constitution, according to which the organic law is adopted after at least two readings. The Court therefore notes that the contested law must be declared unconstitutional.

58. For those reasons, the Court is exempted from examining the constitutionality of the contested law in the light of the other criticisms raised by the complainants.

59. In the context of declaring the law in question unconstitutional, the Court will order the revocation of the provisions of Law no. 947/1996 regarding the Superior Council of Magistracy in the wording prior to Law no. 193 of December 20, 2019.

60. The Court notes that this solution is based on the constitutional provisions of Article 134 para. (3) on the role of the Constitutional Court as guarantor of the supremacy of the Constitution and of article 140 of the Constitution, which establishes that the decisions of the Constitutional Court are generally binding. Moreover, in its jurisprudence, the Court proceeded in a similar manner in other cases aimed at checking the constitutionality of normative provisions of repeal, establishing that the solution of unconstitutionality leads to the revival of legal provisions in the wording prior to their repeal (see JCC no. 27 of October 31, 2019).

II. Regarding the conformity with the Constitution of the Parliament Decision no. 53 of March 17, 2020

61. The Court notes that Parliament's Decision no. 53 of March 17, 2020 was adopted based on the provisions of the contested Law regarding the members of the Superior Council of Magistracy among the tenured professors. The Court considers that the declaration of the unconstitutionality of the Law (see § 57 above) which was the basis for the adoption of Parliament's Decision no. 53 of March 17, 2020 interferes with the principle of security of the mandate of the members of the Superior Council of Magistracy among tenured professors.

62. In its case-law, the Court has held that the appointment of a law professor as a member of the Superior Council of Magistracy does not entail the consequence of recognition of the status of magistrate (JCC no. 21 of 3 October 2019, § 37). The Court also notes that the term of office of the members of the Superior Council of Magistracy is strictly regulated in the Constitution. Their mandate enjoys constitutional guarantees and can only be interrupted in exceptional cases (see ACC no. 1 of 22 September 2020, § 197).

63. In this context, the Court notes, first of all, that by Law no. 193 of December 20, 2019, the Parliament increased the number of Council members from among the tenured teachers. Thus, by establishing two more mandates, the number of Board members among the tenured professors increased from three to five people.

On the basis of these provisions, the Parliament's Committee on Legal Affairs, Appointments and Immunities organized a competition, selected four candidates for the position of member of the Council from among the tenured professors and proposed to Parliament that they be appointed. Given the fact that in § 57 above he concluded that Law no. 193 of December 20, 2019 contradicts the Constitution, the Court notes that the Decision appointing the members of the Board from among the tenured professors was adopted on the basis of an unconstitutional law.

64. Second, the Court notes that the defect which affected the adoption of Law no. 193/2019, in accordance with which the Decision of the Parliament appointing the four members of the Council was adopted, represents a manifest violation of the legislative procedures established by the Constitution. The adoption of organic laws after at least two readings clearly results from article 74 par. (1) of the Constitution.

65. Thirdly, the Court notes that compliance with the provisions of Article 74 para. (1) of the Constitution is an essential requirement of parliamentary proceedings (see § 54 above).

66. Fourth, the Court notes that its solution of invigorating the earlier provisions of the Law on the Superior Council of Magistracy (see § 59 above) entails a return from the number of 15 to the number of 12 members of the Council, reducing by default, the number of members among the tenured teachers ranges from five to three. This numerical decrease in the composition of the Council makes it impossible to keep in office the four full professors appointed by Parliament Decision no. 53 of March 17, 2020.

67. The Court notes that Parliament's Decision no. 53 of March 17, 2020 implemented Article III of Law no. 193/2019, and the declaration of the unconstitutionality of this law and the implementation of the invigorated norms make the Decision of the Parliament to be contrary to articles 1 par. (3) and 122 of the Constitution. The judgment must therefore be declared unconstitutional. This conclusion exempts the Court from continuing its analysis of the constitutionality of Parliament's Decision no. 53 of March 17, 2020 from the perspective of the other criticisms invoked by the authors of the notification.

68. The Court notes that the revival of the previous rules leads to a reduction in the number of full-time members of the Council (ie from five to three) and, consequently, to the premature termination of the term of office of full-time full members of the Superior Council of Magistracy. designated as a consequence of the increase in the number of members.

69. In its case law, the Court has examined the constitutionality of legal provisions governing the procedure for appointing / appointing dignitaries of constitutional rank, for example the case examined in Decision no. 13 of May 21, 2020 regarding the submission of the candidacy and the appointment of the Prosecutor General of the Republic of Moldova.

In that case, the Court established that the ex nunc effect of its judgments does not affect the procedures for appointing the Prosecutor General and does not apply to legal relations prior to the entry into force of the Judgment. However, that case is different from the current case, because then there was no question of abolishing the position of Attorney General per se. On the contrary, in this case, by declaring the unconstitutionality of the contested Law and by invigorating the previous provisions, two positions of member of the Council among the tenured professors are abolished.

The four members of the Superior Council of Magistracy appointed by Parliament Decision no. 53 of March 17, 2020 filled two vacant positions and two positions established under Law no. 193/2019. This Decision does not identify the members who have filled the vacant positions and who have been appointed to fill the newly established mandates.

70. In the light of the foregoing, the Court notes that the terms of office of the four members of the Council from among the tenured professors appointed by Parliament Decision no. 53 of 17 March 2020 shall cease to have effect from the date of delivery of this judgment.

71. The Court emphasizes that all acts of the Superior Council of Magistracy issued since the adoption of Law no. 193/2019 and the Parliament Decision no. 53 of March 17, 2020 until the pronouncement of this Decision will not be affected by the unconstitutional character of the Law and of the Decision in question.

For these reasons, based on articles 135 par. (1) letters a) and 140 of the Constitution, 26 of the Law on the Constitutional Court, 6, 61, 62 letters a) and 68 of the Code of Constitutional Jurisdiction, Constitutional Court

DECIDES

1. The notification submitted by Mr. Sergiu Litvinenco and Ms. Veronica Roșca, Members of the Parliament of the Republic of Moldova, is admitted.

2. Law no. Is declared unconstitutional. 193 of December 20, 2019 for the amendment of some legislative acts and the Parliament Decision no. 53 of March 17, 2020 regarding the appointment of some members of the Superior Council of Magistracy.

3. The provisions of Law no. 947 of July 19, 1996 regarding the Superior Council of Magistracy, in the wording prior to Law no. 193 of December 20, 2019.

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

President                                                                            Domnica MANOLE

Chisinau, June 10, 2021

HCC no. 17

File no. 163a / 2020