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DECIDES:
1. The provisions of Article 5 (6), Article 6 (2), (3) and (4) and Article 10 (3) of Law No 1234-XIV of 22.09.2000 on the procedure for election of the President of the Republic of Moldova.
2. The phrase “as well as in the case of other impediments that make it impossible to hold elections for the position of President of the Republic of Moldova” of Article 9 (7) of Law no. 1234-XIV of 22.09.2000 on the election procedure is declared unconstitutional. of the President of the Republic of Moldova.
3. The process for controlling the constitutionality of Article 9 paragraph (1) of Law no. 1234-XIV of 22.09.2000 on the procedure for electing the President of the Republic of Moldova shall be suspended.
4. This Decision shall be final, shall 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".
JUDGMENT
FOR THE CONTROL OF CONSTITUTIONALITY
of some provisions of the Law no.1234-XIV of 22.09.2000 regarding the procedure for electing the President of the Republic of Moldova
(Referral 1/2012)
Chisinau
May 24, 2012
On behalf of the Republic of Moldova,
The Constitutional Court, ruling on:
Mr Alexandru TĂNASE, President,
Mr Victor PUŞCAŞ, Judge-Rapporteur,
Mr Petru RAILEAN,
Mrs. Elena SAFALERU,
Ms Valeria ŞTERBEŢ, Judges,
with the participation of Mrs. Dina Musteaţă, clerk,
Having regard to the notification lodged and registered on 27 January 2012,
Having considered the above-mentioned referral in plenary,
Considering the documents and works of the file,
Make the following decision:
PROCEDURE
1. At the origin of the case is the notification of the deputy in the Parliament Mihai Godea for the control of the constitutionality of some provisions of Law no. 1234-XIV of 22.09.2000 "On the procedure for electing the President of the Republic of Moldova" , pursuant to articles 135 par. (1) letter a) of the Constitution, 25 para. (1) lit. g) of the Law on the Constitutional Court and 38 para. (1) lit. g) of the Code of Constitutional Jurisdiction, and accepted for substantive examination by the decision of February 6, 2012.
2. The author of the complaint claimed, in particular, that the provisions of Article 5 paragraph (6), Article 6 paragraph (2), (3) and (4), Article 9 paragraph (1) and (7) and art.10 paragraph (3) of Law no.1234 are contrary to the provisions established by art.1 paragraph (3), art.2 par. (2), art.7, art.15, art.68 paragraph (1), art.72, art.78, art.135 paragraph (1) letter b) and art.140 of the Constitution of the Republic of Moldova.
3. In the process of examining the notification, the Constitutional Court had the opinions of the Parliament, the President of the Republic of Moldova, the Government, the Ministry of Justice, the Department of Constitutional Law and Administrative Law of the State University of Moldova.
4. The public plenary session of the Court was attended by the author of the notification, Mr. Mihai Godea, Member of Parliament. The Parliament was represented by Mr Victor Morgoci, Deputy Head of the Legal Department of the Parliament Secretariat. The Government was represented by Mr Vladimir Grosu, Deputy Minister of Justice.
5. In the public plenary session of May 17, 2012, the author of the notification requested the cessation of the process for the control of the constitutionality of the provisions of art. 9 paragraph (1) of Law no. 1234, withdrawing his allegations of unconstitutionality.
RELEVANT LEGISLATION
6. The relevant provisions of the Constitution (M.O. no. 1/1, 1994) 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 2
Sovereignty and state power
"[...] (2) No private person, no part of the people, no social group, no political party or other public formation may exercise state power in its own name. The usurpation of state power is the most serious crime against the people. "
Article 7
The Constitution, the Supreme Law
"The Constitution of the Republic of Moldova is its Supreme Law. No law or other legal act contrary to the provisions of the Constitution has legal force. "
Article 15
Universality
"The citizens of the Republic of Moldova enjoy the rights and freedoms enshrined in the Constitution and other laws and have the obligations provided by them."
Article 68
Representative mandate
"(1) In the exercise of the mandate, the deputies are in the service of the people. [...] ”
Article 72
Categories of laws
"(1) The Parliament adopts constitutional laws, organic laws and ordinary laws.
(2) The constitutional laws are those of revision of the Constitution.
(3) The organic law regulates:
a) the electoral system;
b) organizing and conducting the referendum;
c) the organization and functioning of the Parliament;
d) the organization and functioning of the Government;
e) the organization and functioning of the Constitutional Court, of the Superior Council of Magistracy, of the courts, of the administrative contentious;
f) the organization of the local administration, of the territory, as well as the general regime regarding the local autonomy;
g) organization and functioning of political parties;
h) the manner of establishing the exclusive economic zone;
i) the general legal regime of property and inheritance;
j) the general regime regarding labor relations, trade unions and social protection;
k) general organization of education;
l) the general regime of religious cults;
m) the regime of state of emergency, siege and war;
n) the offenses, the punishments and the regime of their execution;
o) granting amnesty and pardon;
p) the other fields for which, in the Constitution, the adoption of organic laws is provided;
r) other areas for which Parliament considers it necessary to adopt organic laws. "
Article 78
Election of the President
"(1) The President of the Republic of Moldova is elected by the Parliament by secret ballot.
(2) 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 may be elected President of the Republic of Moldova.
(3) The candidate who obtained the vote of three fifths of the number of elected deputies shall be elected. If no candidate has obtained the required number of votes, a second ballot shall be held between the first two candidates established in the order of the decreasing number of votes obtained in the first round.
(4) If in the second round no candidate will meet the required number of votes, repeated elections shall be held.
(5) If even after the repeated elections the President of the Republic of Moldova will not be elected, the President in office dissolves the Parliament and establishes the date of elections in the new Parliament.
(6) The procedure for electing the President of the Republic of Moldova is established by organic law. "
Article 85
Dissolution of Parliament
„(1) In case of impossibility to form the Government or to block the procedure of adopting the laws for 3 months, the President of the Republic of Moldova, after consulting the parliamentary factions, may dissolve the Parliament.
(2) The Parliament may be dissolved if it has not accepted the vote of confidence for the formation of the Government within 45 days from the first request and only after the rejection of at least two requests for investiture.
(3) Parliament may be dissolved only once in a year.
(4) The Parliament may not be dissolved during the last 6 months of the term of office of the President of the Republic of Moldova, except in the case provided for in Article 78 (5), nor during a state of emergency, siege or war. "
Article 90
Job vacancy
"[...] (4) Within 2 months from the date of the vacation of the position of President of the Republic of Moldova, elections for a new President shall be organized in accordance with the law."
Article 135
Powers
"(1) The Constitutional Court: [...]
b) interprets the Constitution; [...] ”
Article 140
Decisions of the Constitutional Court
„(1) The laws and other normative acts or some parts of them become null from the moment of adopting the corresponding decision of the Constitutional Court.
(2) The decisions of the Constitutional Court are final and cannot be appealed. "
7. The relevant provisions of Law no. 1234-XIV of September 22, 2000 on the procedure for electing the President of the Republic of Moldova (M.O. no. 139-140 / 996, 2000) are the following:
Article 5
Nomination of candidates for the position of President of the Republic of Moldova
„(1) The candidacy for the position of President of the Republic of Moldova may be proposed, starting with the date of fixing the election date, by:
a) the person submitting his / her own candidacy supported by at least 15 deputies;
b) a group of at least 15 deputies.
(2) The nomination for the position of President of the Republic of Moldova, signed by all deputies who support it, shall be submitted to the special commission no later than 3 days before the election day and shall be accompanied by:
a) the written consent of the candidate and his / her health certificate, issued by the authorized medical institution;
b) the statement about all the candidate's income from the previous year and from the election year;
c) biographical data of the candidate (curriculum vitae).
(3) The deputies who signed the nomination proposal for the position of President of the Republic of Moldova are not entitled to sign another one, under the sanction of the nullity of any subsequent signature.
(4) It is not allowed to withdraw the signature from the nomination proposal for the position of President of the Republic of Moldova.
(5) The candidate for the position of President of the Republic of Moldova may withdraw his candidacy at any time until the declaration of the beginning of the voting.
(6) If the special commission has not registered within the established terms any candidate for the position of President of the Republic of Moldova, it is considered that the elections cannot take place and the decision of the Parliament regarding the date of the respective elections is abrogated. At the proposal of the parliamentary factions, the Parliament shall establish, within 30 days, a new date for the ordinary elections of the President of the Republic of Moldova. "
Article 6
Ordinary choices for the position of President of the Republic of Moldova
„(1) The ordinary elections for the position of President of the Republic of Moldova shall be held in a special public sitting of the Parliament on the date established under the conditions of art.2.
(2) The special public sitting of the Parliament for the election of the President of the Republic of Moldova, as well as the actual presidential elections shall be considered valid if at least three-fifths of the elected deputies (61 deputies) participated in them.
(3) For the purposes of this law, by presidential elections proper is meant the registration of the presence of the deputies at the special public meeting, the receipt of the ballot paper, the voting in the manner established by the special commission.
(4) If less than three-fifths of the elected deputies participated in the election of the President of the Republic of Moldova, it shall be considered that the elections have not taken place and the Parliament shall establish, within 30 days, a new election date. "
Article 9
Special provisions on ordinary elections
„(1) One or more candidates may participate in the ordinary elections for the position of President of the Republic of Moldova.
(2) The candidate who obtained the vote of three fifths of the number of elected deputies shall be elected.
(3) If more than two candidates participated in the first ballot and after the voting none of them accumulated the vote of three fifths of the number of elected deputies, a second one shall be organized within a maximum of 10 days. ballot between the first two candidates established in descending order of the number of votes obtained in the first round.
(4) If one or two candidates participated in the first round and none of them accumulated the vote of three fifths of the number of elected deputies, repeated elections shall be organized.
(5) If in the second round no candidate has accumulated the vote of three fifths of the number of elected deputies, repeated elections shall be held.
(6) In the case of parity of votes after the first ballot, the special commission shall establish by drawing lots the candidates who will participate in the second round.
(7) In case of objective circumstances, such as death, illness, objective impossibility to participate in the special public sitting of any of the candidates or deputies, if the conduct of elections becomes impossible in their absence, as well as in case of other impediments It is impossible to hold elections for the position of President of the Republic of Moldova, the Parliament, at the proposal of the special commission, may postpone the special public meeting, setting a new date for its conduct.
(8) If elections do not take place in the new special public sitting of the Parliament, repeated elections shall be held. "
Article 10
Repeated elections
"(1) The repeated elections take place within 30 days from the last ordinary elections in which the President of the Republic of Moldova was not elected, under the conditions of the present law.
(2) If even after the repeated elections the President of the Republic of Moldova is not elected, the President-in-Office dissolves the Parliament and establishes the date for the elections in the new Parliament.
(3)Parliament may be dissolved only once in a year. The next dissolution of Parliament shall take place within a reasonable time, after the expiry of one year from the date of the last dissolution. "
IN LAW
8. As a result of the revision of art.78 of the Constitution, operated by Law no.1115 of 05.07.2000 “On amending and supplementing the Constitution of the Republic of Moldova”, in accordance with its discretionary right, enshrined in paragraph (6) art. 78 of the Constitution, on September 22, 2000, the Parliament adopted Law no. 1234-XIV "On the procedure for electing the President of the Republic of Moldova". In connection with the multiple divergences that arose along the way, Law no. 1234 of September 22, 2000 was amended by six laws.
9. In the opinion of the author of the notification, the provisions of art.5 paragraph (6), art.6 paragraph (2), (3) and (4), art.9 paragraph (7) and art.10 paragraph (3) ) of Law no. 1234 offers the Parliament the possibility to avoid the constitutional obligation to elect the President, which in fact infringes the constitutional norms and principles, especially those applicable to the procedure for electing the President, contained in art. 1 para. 3), art.2 par. (2), art.7, art.15, art.68 paragraph (1), art.72, art.78, art.135 paragraph (1) letter b) and art.140 of the Constitution of the Republic of Moldova.
10. The Court notes that the prerogative with which it was vested by Article 135 para. (1) lit. a) of the Constitution implies the establishment of the correlation between the legislative norms and the text of the Constitution, taking into account the principle of its supremacy.
11. The Constitutional Court deduces that the object of the notification is some provisions of Law no. 1234-XIV of 22.09.2000 on the procedure for electing the President of the Republic of Moldova. These provisions will be examined by the Constitutional Court in the light of the constitutional provisions contained in art.1 paragraph (3), art.2 paragraph (2), art.15, art.23, art.68 paragraph (1), art. 72, art.78 and art.135 paragraph (1) letter b) of the Constitution of the Republic of Moldova.
12. Considering that the author of the notification withdrew his objections of unconstitutionality regarding art.9 paragraph (1) of Law no.1234, the Constitutional Court terminates the process for the control of constitutionality in this part.
13. Article 140 of the Constitution, relied on by the author of the referral, the Court considers irrelevant to the present case, all the more so as no specific arguments are put forward in this regard.
14. The Court also reports on the constitutional provisions invoked unjustifiably invoked in the notification, the principle of supremacy of the Constitution, guaranteed by art. 7 of the Constitution, which represents the quintessence of any procedures for controlling constitutionality and has no autonomous significance.
ALLEGED VIOLATION OF ARTICLES 1 paragraph (3), 2 paragraphs. (2), 72, 78, 135 paragraph (1) letter b) COMBINED WITH ARTICLES 15 AND 68 PARAGRAPH (1) OF THE CONSTITUTION
15. In the opinion of the author of the notification, the legal provisions claimed to be unconstitutional because they do not contain precise terms regarding the initiation of the procedure for electing the President do not correspond to the principles of the rule of law, enshrined in art. 1 paragraph (3) of the Constitution:
"[...] (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."
16. According to the author of the notification, the contested norms do not correspond to the restriction imposed by Article 2 paragraph (2) of the Constitution regarding the inadmissibility of the usurpation of state power by the public authority, the only bearer of national sovereignty being the people:
"[...] (2) No private person, no part of the people, no social group, no political party or other public formation may exercise state power in its own name. The usurpation of state power is the most serious crime against the people. "
17. The notification alleges non-compliance with the contested legal provisions and with the rigors of the representative mandate held by the deputy, who must be in the service of the people, having the obligation to comply with constitutional procedures in the light of Article 68 paragraph (1) of the Constitution:
"In the exercise of the mandate, the deputies are in the service of the people."
18. Art.72 of the Constitution, which stipulates the categories of laws and their areas of regulation, was invoked in the notification to illustrate the abusive character of the contested provisions, the author considering that they are the object of a constitutional law.
19. Article 78 of the Constitution was cited by the author of the full notification, in order to demonstrate that Law no. 1234 exceeds the constitutional limits stipulated by this article.
20. Considering that the Parliament exceeded its powers, the author of the notification also invoked the exclusive attribution of the Constitutional Court to officially interpret the Constitution, established by art.135 paragraph (1) letter b) of the Constitution.
21. The author considers that the deputies in the Parliament have the obligation to elect the President, otherwise they can be sanctioned constitutionally. In this sense, he invoked art. 15 of the Constitution, according to which:
"The citizens of the Republic of Moldova enjoy the rights and freedoms enshrined in the Constitution and other laws and have the obligations provided by them."
A. Arguments of the author of the notification
22. In the view of the author of the notification, art.5 paragraph (6) of Law no.1234-XIV of 22.09.2000 allows not to be registered any candidate for the position of President of the Republic of Moldova and, as a consequence, not to be executed constitutional provisions, despite the fact that the election of the President is a prerogative and an obligation of Parliament. This situation contradicts art. 2 paragraph (2), art. 68 paragraph (1) and art. 78 par. (1) of the Constitution
23. He emphasizes that, according to Article 15 of the Constitution, the citizens of the Republic of Moldova enjoy the rights and freedoms enshrined in the Constitution and other laws and have the obligations provided by them. The deputies in the Parliament are also citizens, having the constitutional obligation to elect the President of the Republic of Moldova, and the non-execution of this obligation must attract the constitutional responsibility - the lack of mandate by dissolving the Parliament.
24. At the same time, the author considers that, according to art.78 paragraph (3) and paragraph (4) of the Constitution and the jurisprudence of the Constitutional Court, the elections for the position of President may be ordinary (with one or two rounds) and repeated (also with one or two rounds). The Constitution does not provide for other possibilities, so the constitutional text cannot be interpreted extensively by Parliament.
Contrary to this fact, through art.6 paragraphs (2), (3) and (4) of Law no.1234, the Parliament unfoundedly extended these constitutional provisions, including new notions, which are not provided by the Constitution: presidential elections „proper "," valid "elections, elections that" did not take place "," a new date "of the elections. Thus, in the opinion of the author of the notification, the Parliament evaded the imperative constitutional norm from art.78 paragraph (5), which provides for the dissolution of the Parliament in case if even after the repeated elections the President of the Republic of Moldova is not elected.
25. The author mentions that art.9 paragraph (7) of Law no.1234-XIV of 22.09.2000 provides, in addition to the objective circumstances (death, illness, the impossible impossibility of any of the candidates or deputies to participate in the meeting special public hearing), and other cases not expressly specified by the Constitution and the case law of the Court, in which the Parliament may postpone the special public sitting, setting a new date for its holding.
In this context, the author emphasizes that the assessment of the objective nature of the circumstances that would make it possible to postpone the meeting is left entirely to the discretion of those who create these circumstances and, thus, the constitutional norm, implicitly, the obligation to elect the President, may be violated. or the deputies will want this, actions that contravene the provisions of art.68 paragraph (l) and art.78 paragraph (3), (4), (5) and (6) of the Constitution.
26. The author of the notification considers that through the respective regulations the Parliament has exceeded the provisions of art.78 paragraph (6) of the Constitution, which grants the Parliament the right to establish by organic law only the procedure for electing the President of the Republic of Moldova, but not the possibility of postponing the elections due to unclear circumstances.
27. Finally, the author observes that the notion of “reasonable term” in art. 10 paragraph (3) of Law no. 1234-XIV is not defined by the constitutional framework and is not adequate for procedural and electoral regulations. Also, the mentioned norm violates one of the fundamental principles of the rule of law - the predictability of legal norms and the prevalence of constitutional norms over the norms included in organic laws, actions contrary to the constitutional provisions of Article 1 paragraph (3).
B. Arguments of the authorities
28. In his view, the President of the Republic of Moldova noted that the contested provisions did not contravene the constitutional provisions. The legislator is entitled to develop by organic law the procedure and stages of conducting repeated elections, the manner of appointing candidates, the resumption of repeated elections. In objective circumstances the special public meeting may be postponed, setting a new date for it to take place.
29. In the opinion of the President of the Parliament, the contested provisions of the Law on the procedure for electing the President of the Republic of Moldova do not affect the constitutional norms invoked in the referral, because the Parliament, after its investiture, has the obligation to form state bodies to ensure separation of powers. .
The Parliament has the right to postpone the special sitting, with the establishment of a new date, also in case of other impediments, except for the objective circumstances mentioned in art. 9 paragraph (7) of the law. The Supreme Law does not stipulate all possible cases of regulation, using the term "other". Regarding Article 10 paragraph (3), according to which during a year the Parliament can be dissolved only once, and the next dissolution of the Parliament will take place within a reasonable time, he noted that this term is left to the discretion of the Parliament , which took that decision on the basis of the contested rule.
30. In its view, the Government stated that the objections of unconstitutionality were unfounded, with constitutional provisions irrelevant to the case under consideration. The dissolution of the Parliament takes place in accordance with the express provisions of the Constitution, the respective norm being an expression of the principle established in art. 6 of the Constitution.
The arguments of the author of the notification regarding the unconstitutionality of Article 6 paragraphs (2) - (4) are unjustified, because this article does not exceed the limits of the provisions of Article 78 paragraph (3) of the Constitution, according to which the candidate fifths of the number of elected deputies. The Government also noted that the setting of the reasonable time falls exclusively within the competence of the Parliament, which is why it used that notion in law.
C. Findings of the Court
1. General principles
31. The Court notes that the rule of law, to which the complainant alleges, presupposes that the social and state order is based on the fundamental rules and principles of law. An essential feature of the rule of law is the rigid subordination of all, including state institutions, clear, predictable and pre-established rules of law.
32. In this regard, referring to the rule of law, in Decision no. 2 of 19.01.1998 the Constitutional Court noted that: “[…] one of the constitutional characteristics of the rule of law is the obligation of the state, of its public authorities , of the institutions, of the official persons to act within the limits of their attributions, established by the Constitution and laws. ”
33. The stated rigors can be achieved in a state governed by the rule of law only through the hierarchical structuring and rigid subordination of all legal and state institutions, by the establishment of an authentic democracy and the protection of all human values. In this sense, the Constitution of the Republic of Moldova enshrines in Article 1 paragraph (3) that in a state governed by the rule of law, democracy, human dignity, rights and freedoms, free development of human personality, justice and political pluralism are supreme values and are guaranteed. .
34. Among the supreme institutions of state power is the President of the Republic of Moldova, who, according to Article 77 of the Constitution, is the head of state, represents the state and is the guarantor of sovereignty, national independence, unity and territorial integrity of the country.
35. The norms of Article 78 of the Constitution, subject to revision by Law no. 115 of 5 July 2000, entrust the Parliament, the supreme representative body of the people of the Republic of Moldova, with the election of the President of the Republic of Moldova and draw the lines of procedural guidelines.
36. In accordance with the principles governing the rule of law and the provisions of Article 78 (6) of the Constitution, the Parliament was to regulate by organic law the procedures applicable to the election of the President of the Republic of Moldova, without exceeding the framework established by Article 78 (1). ) - (5) of the Constitution. As a consequence, on September 22, 2000, the Parliament adopted Law no. 1234, which regulated the procedure for electing the President of the Republic of Moldova and the rules of conduct of deputies in its conduct.
37. The Constitutional Court notes in this context that the provisions describing the procedure for electing the President of the country by the Parliament served as the object of multiple dissensions and controversies between parliamentary political groups, generating constitutional disputes and complaints regarding the provisions of art.78 of Constitution, the Court subjecting them to casual or official interpretation under various aspects in judgments no. 39 of 04.12.2000, no. 43 of 14.12.2000, no. 45 of 18.12.2000, no. 5 of 16.03.2010, no. 17 from 20.09.2011, as well as in the approvals no.4 from 26.12.2000, no.2 from 12.06.2009, no.4 from 17.09.2009, no.1 from 29.04.2010, no.2 from 04.05.2010, no .3 of 06.07.2010 etc.
38. The multiple notifications for the casual and official interpretation of art. 78 of the Constitution The Constitutional Court considers them as a natural tendency of the parliamentarians to improve the legislation in the field and as a logical reaction to the application of these constitutional norms in the legislative creation. The tendency in question is certainly part of the desideratum of ensuring the supremacy of the Constitution and the rule of law.
39. In examining the present case, the Constitutional Court will rely on the concept that any inferior normative act is, in essence, an "extension" of the superior act, without exceeding its limits. Thus, the Constitutional Court finds that the organic laws adopted by the Parliament, as acts directly subordinated to the Constitution, are meant to develop the constitutional provisions and principles, strictly respecting the rigors of the Constitution.
And only in case of non-compliance with the Constitution of the legislative regulations adopted within these procedures is recourse to the control of constitutionality. In this order of ideas, the regulations contained in Law no. 1234 detail the Parliament's vision on the electoral procedures established by the constitutional norms, a legislative operation that represents the quintessence of the organic law.
40. The Constitutional Court finds that the provisions of the organic law develop the norms of the Constitution. However, the development of constitutional norms should not be confused with the official interpretation of the Constitution, provided as an exclusive attribution of the Constitutional Court of art.135 paragraph (1) letter (b) of the Constitution, which is carried out in situations when it is necessary to the provisions of the Constitution applicable to concrete legal situations, not regulated by the organic law.
41. The Court notes that, in the sense set out above, its case-law is consistent. Thus, in the Decision of 04.12.2006 on the notification for the interpretation of art.99 of the Constitution of the Republic of Moldova, the Court underlined:
"In several of its decisions, the Constitutional Court has revealed that the purpose of any interpretation of constitutional norms is to ensure the unity and correct understanding of their content and authentic meaning. The official interpretation is imperative in cases where the uncertainty of the constitutional norms is determined by a concrete situation and this uncertainty cannot be solved by another jurisdictional procedure. The need for interpretation must be confirmed by the essence of the question of law resulting from the non-uniform nature of the constitutional provisions. "
42. Law no. 1234, adopted in accordance with paragraph (6) of art. 78 of the Constitution, is an organic law, by which the Parliament was entitled to develop the provisions of art. 78 of the Constitution, within its limits. Thus, the Court rejects any allegation regarding the non-compliance of the contested norms of Law no. 1234 with art. 135 paragraph (1) letter (b) of the Constitution.
43. On the basis of these deductions, the Court concludes that the contested rules of Law no. 1234 also comply with the provisions of paragraphs 1 to 3 of Article 72 of the Constitution, invoked by the author. The provisions of art.72 paragraph (3) of the Constitution stipulate the fields that are the object of regulation of the organic law. In addition to the areas set out in letters a) to o), Article 72 of the Constitution gives Parliament the right to adopt organic laws in "p) the other areas for which the Constitution provides for the adoption of organic laws" and in "r) other areas for which Parliament considers it necessary to adopt organic laws ”. Thus, the field of organic law is both the one expressly stipulated by the constitutional norms, and the one that the Parliament decided to regulate.
44. On the basis of the above, the Constitutional Court will analyze the contested provisions of Law no. 1234 in terms of compliance with the limits imposed by Article 78 and other rules of the Supreme Law, in the context of the general principles set out in this chapter. meaning the author of the notification submitted objections of unconstitutionality.
2. Observance of the limits imposed by art. 78 and other norms of the Supreme Law invoked in the notification
a) the consequences of the lack of candidates for the position of President
45. The author of the notification challenged the constitutionality of the provisions of art. 5 paragraph (6) of Law no. 1234, which regulates the consequences of the lack of candidates for the position of President of the Republic of Moldova:
"If the special commission did not register any candidate for the position of President of the Republic of Moldova within the established deadlines, it is considered that the elections cannot take place, and the decision of the Parliament regarding the date of those elections is abrogated. At the proposal of the parliamentary factions, the Parliament shall establish, within 30 days, a new date for the ordinary elections of the President of the Republic of Moldova. "
46. The provisions of art. 5 paragraph (6) of Law no. 1234, in general, provide for the postponement of the presidential elections by 30 days in case no candidate registered in the electoral race.
47. In the opinion of the Court, the factors that cause the lack of candidates constitute: 1) the non-expression of the will to run by the citizens who meet the eligibility conditions, provided by paragraph (2) art.78 of the Constitution and by art.3 of Law no. .1234, and 2) the non-support of the person who manifested this will by at least 15 deputies, a condition provided by paragraph (1) art.5 of Law no.1234.
48. The Court agrees with the complainant that Members have a constitutional obligation to elect the President of the country, but considers the idea of dissolving Parliament to be disproportionate if Members have not submitted or supported any person who has expressed a will to run. . In cases where none of the candidates for President repeatedly obtains the support of at least 15 Members, Parliament may, in the exercise of its discretion, reduce the required number of supporters.
49. The Court notes that the period of 30 days, established by law for fixing for a new date the ordinary elections for the position of President of the Republic of Moldova, falls within the general term of two months, provided by paragraph (4) art.90 of the Constitution for the election of the President.
50. The stated conclusions allow the Constitutional Court to find that the postponement of the term for electing the President by 30 days does not contradict the obligation of parliamentarians to elect the President, resulting from art.78 of the Constitution combined with art.15 of the Constitution. Also, the legal norm, being adopted in compliance with the term stipulated by art. 90 paragraph (4) of the Constitution, is an expression of the will of the deputies, who hold the representative mandate of the people, by which fact corresponds to the provisions of art. 2 combined with art. 68 of the Constitution.
51. Thus, the provisions of Article 5 paragraph (6) of Law no. 1234 are in conformity with Articles 2, 78 combined with Articles 15 and 68 of the Constitution.
b) conducting ordinary elections for the position of President
52. The notification challenges the constitutionality of the provisions of art. 6 paragraph (2) - (4) of Law no. 1234, which regulates:
"(2) The special public sitting of the Parliament for the election of the President of the Republic of Moldova, as well as the actual presidential elections shall be considered valid if at least three-fifths of the elected deputies (61 deputies) participated in them.
(3) For the purposes of this law, by presidential elections proper is meant the registration of the presence of the deputies at the special public meeting, the receipt of the ballot paper, the voting in the manner established by the special commission.
(4) If less than three-fifths of the elected deputies participated in the election of the President of the Republic of Moldova, it shall be considered that the elections have not taken place and the Parliament shall establish, within 30 days, a new election date. "
53. The Constitutional Court finds that the provisions of art. 6 paragraphs (2) - (4) of Law no. 1234 derive from the provisions of art. 78 of the Constitution and the Decision of the Constitutional Court no. 45 of 18.12.2000 on the interpretation of paragraph (3) and paragraph (5) art.78 of the Constitution, in which the following were underlined:
„The logical-grammatical analysis of the text of art.78 par. (3) of the Constitution allows to conclude that the number (quorum) of deputies who must participate in the special public sitting for the election of the head of state and in the actual elections may not be less than the minimum number of votes set for the election of the President of Moldova. Otherwise, such a situation would lead to the invalidity of the special public sitting of the Parliament with the respective consequences for the presidential elections. It should be noted that this constitutional clause is also mandatory in the case of repeated presidential elections. "
54. Developing through the organic law the provisions of art.78 of the Constitution, the Parliament used terms from the decision of the Court, such as “actual elections”, “valid elections”. The terms in question, which served for the complainant as allegations of unconstitutionality, are used in electoral procedures. In this context, taking into account the conclusions set out in §§38 - 42, the Court finds that the seat of detailed procedures, applied to the election of the President, can only be the organic law.
55. Reiterating its previous practice, the Court notes that the legal rule, which requires the participation in the presidential election of at least 3/5 of the number of elected deputies, has as its reason the exclusion of service of the people, to respect the procedural norms provided by art.78 of the Constitution.
56. The Court notes that the contested provisions of Article 6 paragraph (2) of Law no. no. 45 of 18.12.2000 regarding the interpretation of paragraph (3) and paragraph (5) of art.78 of the Constitution.
57. For the reasons set out above, the Court considers that the provisions of Article 6 para. (2) - (4) of Law no. 1234 do not exceed the limits imposed by art. 78 of the Constitution, especially by paragraph (6).
58. With reference to the right of the Parliament to develop by constitutional law the constitutional norm, the Court reiterates the conclusions set out in §§38 - 42 and finds that the provisions of art.6 par. (2) - (4) of Law no. 1234 are in accordance with art. 135 paragraph (1) letter (b) of the Constitution.
c) postponement of the special public meeting
59. In the notification, the provisions of art.9 paragraph (7) of Law no.1234 are partially contested:
"In case of objective circumstances, such as death, illness, objective impossibility to participate in the special public meeting of any of the candidates or deputies, if the election becomes impossible in their absence, as well as in case of other impediments that make it impossible elections to the position of President of the Republic of Moldova, the Parliament, at the proposal of the special commission, may postpone the special public meeting, establishing a new date for its conduct ”.
60. Article 9 paragraph (7) of Law no. 1234 provides for the objective circumstances in which the Parliament may postpone the special public sitting for the election of the President, these being: in a meeting. The series of these circumstances is not exhaustive, the law additionally stipulating "as well as in the case of other impediments that make it impossible to hold elections for the position of President of the Republic of Moldova".
61. The Court notes that the determination of the circumstances in which the special sitting for the election of the President may be postponed is the discretion of the legislator. At the same time, the Court notes that the exhaustive non-regulation of these circumstances (impediments) makes it possible for the deputies to avoid fulfilling their obligation, to obstruct and postpone the procedure for electing the head of state for an indefinite period.
The Court considers that the Parliament must specify the impediments that make it impossible for the presidential election to take place. In the current wording, the contested norm contradicts the quality requirements of the legal norm, thus violating art. 23 of the Constitution.
62. Referring to the quality of the legal norm, in the Decision no.26 of 23.11.2010 the Court ruled:
"In order to meet the three criteria of quality - accessibility, predictability and clarity - the rule of law must be formulated with sufficient precision to allow the person to decide on his conduct and to provide, reasonably, according to the circumstances of the case , the consequences of this conduct. Otherwise, although the law contains a rule of law that apparently describes the person's conduct in the given situation, the person may claim that he does not know his rights and obligations. In such an interpretation, the norm that does not correspond to the criteria of clarity is contrary to art. 23 of the Constitution. "
63. Considering that it concerns especially procedures related to the governance technique, the contested norm does not correspond not only to article 23 of the Constitution, but also to the principles of the rule of law, enshrined in art. 1 paragraph (3) of the Constitution.
64. Thus, the Court considers that the phrase “as well as in the case of other impediments that make it impossible to hold elections for the office of President of the Republic of Moldova” violates the principle of clarity of law, as it allows Members to interpret the legal norm at will and delay the procedure. election of the President.
65. The jurisprudence of the ECtHR is also eloquent in this respect, according to which “the law must be accessible to the person concerned and be predictable in terms of its consequences” (see also Amann v. Switzerland, paragraph 50). For the purposes of the Convention, a legal norm must meet two additional conditions: it must be accessible to any person, which is usually done by publication; to be clearly stated, so that any person can reasonably comply with his conduct knowing the legal consequences of his actions.
This last condition is not fulfilled, for example, when the legal norm does not provide with sufficient clarity the conditions under which the state authorities can take a certain measure, as well as the means of verifying the fulfillment of the conditions. In the absence of procedural guarantees, the mere physical existence of the legal norm is not sufficient to qualify it as law, within the meaning of the Convention.
66. The Court concludes that the text “as well as in the case of other impediments that make it impossible to hold elections for the position of President of the Republic of Moldova” of art.9 paragraph (7) of Law no.1234 contravenes art.1 paragraph (3), art.23 and art.78 of the Constitution, exceeding the constitutional limits regarding the procedure for electing the President.
d) the reasonable term for the dissolution of the Parliament
67. According to the contested provisions of Article 10 paragraph (3) of Law no.
"(3) […] The next dissolution of Parliament shall take place within a reasonable time, after the expiry of one year from the date of the last dissolution."
68. The Court notes that, according to Article 10 paragraph (3) of Law no. 1234, the President of the country has not only the right but also the obligation to dissolve the Parliament within a reasonable time, one year after the last dissolution. The phrase "reasonable term", in this context, is used in order not to impose disproportionate limits on public authority for conducting procedures, which a priori, in some concrete situations, are impossible to achieve.
69. The Court notes that the "reasonable time" is an objective period of time required to carry out a procedure (actions). The constituent legislator preferred either to concretize the term for exercising the constitutional procedure (eg, art. 98 of the Constitution), or to leave this right to the discretion of the legislator (art. 86 of the Constitution). Given the diversity of aspects of social life and the multitude of circumstances, the Constitutional Court considers it inappropriate to specify the term in all cases relating to the exercise of constitutional procedures.
The decision-making body must have a certain margin of appreciation and flexibility in setting the deadline for exercising constitutional procedures. Therefore, in situations where several solutions are possible, the Constitutional Court recognizes that the provisions that give public authorities the right to operate in normative acts with a "reasonable time" to perform certain actions are placed in the constitutional field.
70. In this context, the Constitutional Court notes that exceptional situations, such as the danger of war, catastrophes, natural disasters on a national scale, etc., which make it impossible to carry out such procedures, may also have an impact on the establishment of a reasonable time.
71. The Court points out that, when there are differences regarding the reasonable timeframe for carrying out a procedure (actions), the President of the Republic of Moldova (or other public authority covered by the normative act) is obliged to explain the reasons for extending that term. The Constitutional Court, by virtue of its attribution as guarantor of the achievement of the principle of separation of powers in the state and of the responsibility of the state towards the citizen, will decide, in each concrete case, whether the central public authorities have respected the reasonable term.
72. The Court notes that it is for the President-in-Office to set a reasonable time limit for the dissolution of Parliament. For the purposes of paragraph (5) of Article 78 combined with paragraph (3) of Article 85 of the Constitution, the procedure for the dissolution of Parliament, preceded by another dissolution, may be carried out by the President-in-Office provided that: repeated elections and the head of state was not elected and 2) expired one year after the last dissolution.
73. Thus, within the meaning of paragraph (5) art.78 combined with paragraph (3) art.85 of the Constitution, the dissolution procedure of the Parliament, in case of circumstances established by the Constitution, may be initiated by the President in office and before to be one year after the last dissolution, because this procedure requires time, presupposes the obligatory opinion of the Constitutional Court, etc. The main condition, according to the constitutional rigors, is that the dissolution of the Parliament can take place only after the expiration of one year from the last dissolution.
74. Relating the provisions of Article 10 paragraph (3) of Law no. 1234 to the provisions of Article 1 paragraph (3) of the Constitution, the Court finds that the principle of the supremacy of the Constitution and the rule of law does not require the precise establishment by law any human action. In a state governed by the rule of law, any public authority must have, within the limits of the law, a certain margin of appreciation, which would allow it to take into account the objective situations in society for carrying out the procedures provided by the Supreme Law and to exclude any action. in bad faith.
75. Based on the above, the Court finds that the provisions of Article 10 paragraph (3) of Law no. 1234 correspond to Article 1 paragraph (3) of the Constitution and do not exceed the limits imposed by paragraph (5) of Article 78 combined with paragraph (3) art.85 of the Constitution.
For these reasons, under Articles 140 of the Constitution, 26 of the Law on the Constitutional Court, 6, 61, 62 let. a) and 68 of the Code of Constitutional Jurisdiction, Constitutional Court
DECIDES:
1. The provisions of Article 5 (6), Article 6 (2), (3) and (4) and Article 10 (3) of Law No 1234-XIV of 22.09.2000 on the procedure for election of the President of the Republic of Moldova.
2. The phrase “as well as in the case of other impediments that make it impossible to hold elections for the position of President of the Republic of Moldova” of Article 9 (7) of Law no. 1234-XIV of 22.09.2000 on the election procedure is declared unconstitutional. of the President of the Republic of Moldova.
3. The process for controlling the constitutionality of Article 9 paragraph (1) of Law no. 1234-XIV of 22.09.2000 on the procedure for electing the President of the Republic of Moldova shall be suspended.
4. This Decision shall be final, shall 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 Alexandru TĂNASE
Chisinau,
May 24, 2012, HCC no. 7
File no. 1a / 2012