DECIDES:

1. For the purposes of the provisions of paragraph 5 of Article 78 of the Constitution, the Head of State shall be obliged to dissolve the Parliament whenever the President of the Republic of Moldova is not elected under the conditions provided by the Constitution.

2. The provisions of Article 78 of the Constitution shall also apply in full to the Parliament invested in the early elections, if the previous Parliament has been dissolved in connection with the non-election of the Head of State.

3. For the purposes of the provisions of paragraph 6 of Article 78 of the Constitution, the Parliament has the right to develop in the Law on the procedure for electing the President of the Republic of Moldova an appropriate mechanism for repeated elections, provided that constitutional principles are observed.

Given the principle of the supremacy of the Constitution, the Parliament cannot establish by organic law another majority for the election of the President of the Republic of Moldova in case of multiple dissolution of the Parliament caused by the failure of the election of the President. Constitution.

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".

JUDGEMENT
for the interpretation of the provisions of art.78 of the Constitution of the Republic of Moldova

On behalf of the Republic of Moldova,

The Constitutional Court composed:

Dumitru PULBERE - president, judge-rapporteur

Victor PUŞCAŞ - judge

Petru RAILEAN - judge

Elena SAFALERU - judge

Valeria ŞTERBEŢ - judge

Alexandru TĂNASE - judge

clerk - Dina Musteaţa, with the participation of the authors of the notification, Mihai Ghimpu, Tudor Deliu, deputies in Parliament, the permanent representative of the Parliament at the Constitutional Court, Ion Creangă, the representative of the Parliament, Victor Popa, the permanent representative of the Government at the Constitutional Court, the provisions of art.135 paragraph (1) letter b) of the Constitution, art.4 paragraph (1) letter b) of the Law on the Constitutional Court, art.4 paragraph (1) letter b) and art.16 paragraph (1) of the Code of Constitutional Jurisdiction, examined in open plenary session the file on the interpretation of art.78 of the Constitution of the Republic of Moldova.

The basis for examining the case was the notification of the deputies in Parliament Mihai Ghimpu, Tudor Deliu and Raisa Apolschii, submitted on April 6, 2011, in accordance with the provisions of art.24 and art.25 of the Law on the Constitutional Court, art.38 and art .39 of the Code of Constitutional Jurisdiction.

By the decision of the Constitutional Court of June 6, 2011, the notification was accepted for substantive examination and included in the agenda.

Examining the materials of the file, hearing the information presented by the judge-rapporteur, the arguments presented by the participants in the trial,

Constitutional Court

found:

1. In the notification submitted on April 6, 2011, the interpretation of the provisions contained in art. 78 of the Constitution is requested by elucidating the following aspects:

- can the repeated Parliament be dissolved for the same reason: the non-election of the President of the Republic of Moldova?

- is the procedure for electing the President of the Republic of Moldova provided in article 78 of the Constitution repeatedly applied after the early election of the new Parliament, the previous one being dissolved in connection with the impossibility of electing the head of state?

- can the Parliament develop by organic law a mechanism that would institutionalize a procedure that would ensure the election of the head of state and would not allow the repeated dissolution of the Parliament?

As the ground for notification, as it results from its content, served the impossibility of electing the President of the Republic of Moldova under the conditions stipulated by art.78 of the Constitution, with the vote of 3/5 of the number of elected deputies. The authors consider that the solution of this problem, which is of a political-legal nature, can be identified by interpreting the constitutional provisions of art.78.

The authors request that in the process of interpreting the constitutional provisions of art. 78 the following be taken into account:

The circumstances on which the notification is based are generated by the amendments operated in art.78 of the Constitution by Law no.1115 of July 5, 2000, the draft of which, endorsed by the Constitutional Court, provided for the election of the President of the Republic of Moldova by a majority of elected deputies. but the threshold was raised to 3/5.

The impossibility of forming the parliamentary majority necessary for the election of the President of the Republic has created a situation when the function of interim President can be exercised indefinitely, making possible the repeated dissolution of the Parliament.

2. Art. 134 of the Constitution enshrines the statute of the Constitutional Court, designating it as the only authority of constitutional jurisdiction, independent of any other public authority, which submits only to the Constitution, having the obligation to guarantee its supremacy through the attributions established in art. (1) of the Constitution.

According to art.135 paragraph (1) letter b) of the Fundamental Law, the attribution of interpretation of the Constitution belongs exclusively to the authority of constitutional jurisdiction and resides in establishing the authentic will of the legislator, the exact and full meaning of the constitutional norms and their correct application. in space and time.

The Court observes that the provisions of art.78 of the Constitution have been interpreted under various aspects in its previous jurisprudence established by decisions no.39 of 04.12.2000, no.43 of 14.12.2000, no.45 of 18.12.2000, no.4 of 26.12.2000, no.5 from 16.03.2010.

For these reasons, the Court will only refer to the issues that were not clarified in its previous judgments in relation to the questions raised in the referral.

3. The interpretation of the Constitution is one of the means by which the Constitutional Court guarantees the supremacy of the Supreme Law, ensuring the unity between its letter and its spirit.

By the provisions of Article 1 paragraph (3) the Constitution establishes that the Republic of Moldova is a rule of law, democratic, in which human dignity, rights and freedoms, free development of human personality, justice and political pluralism are supreme values ​​and are guaranteed.

Article 5 paragraph (1) of the Constitution states that democracy in the Republic of Moldova is exercised in the conditions of political pluralism, which is incompatible with dictatorship and totalitarianism.

According to art.7, 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.

The provisions of the Constitution are in a close logical-legal connection, the interpretation of the exact meaning of the constitutional provisions and of their applicability is to be exercised with the observance of the principle of unity of the constitutional matter.

The Court considers that the issues addressed in the notification are to be elucidated in the light of the basic principles of the Fundamental Law, of the constitutional provisions contained in art.72 paragraph (2), art.85 paragraph (3) and paragraph (4), art .90, as well as the previous jurisprudence regarding the interpretation of art.78 of the Constitution.

4. Article 2 of the Constitution states that national sovereignty belongs to the people of the Republic of Moldova, who exercise it directly and through its representative bodies, in the forms established by the Constitution. According to Article 60 of the Constitution, the Parliament is the supreme representative body of the people of the Republic of Moldova.

With its investiture, the Parliament has the obligation to form state bodies in order to ensure the principle of separation of powers, enshrined in Article 6 of the Constitution. One of the fundamental obligations of the Parliament is the election of the President of the Republic of Moldova.

The institution of the President of the Republic of Moldova is regulated in Chapter V of the Constitution, the election of the President is subject to Article 78 of the Constitution, which the chapter includes.

The Court reveals that the Supreme Law stipulates several circumstances that may trigger the conduct of presidential elections (paragraphs (1) - (3) art. 90).

According to paragraph (3) of art.78, the candidate who obtained the vote of three-fifths of the number of elected deputies is elected as President.

The following provisions of paragraphs (3) - (4) art.78 describe the circumstances that condition the organization and conduct of the second round of elections and repeated elections: "If no candidate has met the required number of votes, the second round shall be organized. between the first two candidates established in the order of the decreasing number of votes obtained in the first round. If in the second round no candidate obtains the required number of votes, repeated elections shall be held. "

In this context, the Court notes that, regardless of the circumstances that led to the parliamentary elections (expiration of the mandate or dissolution), the Parliament, entering the exercise of its function, has the obligation to submit to the Constitution and, to ensure the continuity of presidential power, the state in accordance with the provisions of art.78 of the Constitution.

Therefore, the provisions of art. 78 of the Constitution also apply in full in the case of the Parliament invested in the early elections, if the previous Parliament was dissolved in connection with the non-election of the head of state.

In case of failure of the election of the President of the Republic of Moldova, the dissolution of the Parliament is imminent, as the provisions of paragraph (5) of art. 78 are imperative.

Earlier, in the same sense, the Court ruled that Article 78 paragraph (5) of the Constitution expressly provides that the President-in-Office dissolves the Parliament if the President of the Republic of Moldova has not been elected after repeated elections. The Court recognized as circumstances that justify the dissolution of the Parliament the non-participation in the election of the head of state of the parliamentary majority, which constitutes 61 deputies according to the Constitution (Opinion no. 4 of 26.12.2010).

In Decision no.45 of 18.12.2000 for the interpretation of the provisions of paragraph (3) and paragraph (5) of art.78 of the Constitution, the Constitutional Court showed that art.78 paragraph (5) provides for the dissolution of the Parliament and the establishment of the date for the election the new Parliament in case of non-election of the head of state after the repeated elections.

Referring to the dissolution of the Parliament, in the Decision no.5 of 16.03.2010 the Court held that art.78 paragraph (5) of the Constitution stipulates that, if and after the repeated elections the President of the Republic of Moldova will not be elected, the President in office dissolves Parliament and sets the date for the elections in the new Parliament. This constitutional provision was taken over in Article 10 paragraph (2) of the Organic Law on the procedure for electing the President of the Republic of Moldova.

The Court emphasized that the provision contained in paragraph (5) of art.78 of the Constitution seeks to ensure the functionality of the constitutional bodies of the state. Considering the principle of unity of the constitutional matter, the obligation of the incumbent President to dissolve the Parliament, according to the provisions of art.78 paragraph (5) of the Constitution, is necessary to be fulfilled in compliance with the provisions of art.85 paragraph (3) of the Constitution, according whose Parliament can be dissolved only once in a year.

The Court held that from the provisions of Article 78 paragraph (5) of the Constitution, corroborated with the constitutional norm of Article 85 paragraph (3) and with the provision of Article 10 paragraph (3) of the Law on the procedure for electing Of the President of the Republic of Moldova, it is clear that after the expiration of one year from the date of the last dissolution of the Parliament, but not earlier, the President-in-Office, based on the opinion of the Constitutional Court on the circumstances justifying the dissolution of the Parliament, adopted art.135 paragraph (1) letter f) of the Constitution, has the obligation to issue the decree regarding the dissolution of the Parliament and the establishment of the date of the early elections within the terms provided by art. 76 paragraph (3) of the Electoral Code.

The solutions adopted by the Constitutional Court in the decisions enunciated above, as well as the considerations on which they were based, are also valid for the present case.

Thus, the Court emphasizes that, in accordance with the provisions of Article 78 paragraph (5) of the Constitution, the President is obliged to dissolve the Parliament whenever the President of the Republic of Moldova is not elected, including in the case of the Parliament invested in early elections dissolution of the previous Parliament in connection with the non-election of the head of state.

In the context of the content of the notification regarding the unlimited exercise of the interim position of President, the Court reveals that the Supreme Law expressly regulates the term in which the Parliament has the obligation to organize the election of the head of state in case of vacancy. Thus, Article 90 paragraph (4) of the Constitution states that within 2 months from the date on which the vacation of the President of the Republic of Moldova occurred, elections for a new President shall be organized, in accordance with the law.

In the Decision no.2 of 08.02.2011 for the interpretation of art.90 paragraph (4) of the Constitution of the Republic of Moldova the Court mentioned that “the term regarding the conduct of the presidential elections within the period of exercising the interim position of President To the President, the Parliament, in accordance with paragraph (6) art.78 of the Constitution, having full power to regulate this issue by law, respecting the constitutional principles.

"In the context of these statements the Court notes that the non-regulation by Parliament of the deadline presidential elections in the interim exercise of the office of President, including in the successive interim, do not imply the failure by the President of the constitutional provision on the dissolution of Parliament one year after the last dissolution if the head of state is not elected.

Regarding the argument invoked in the referral regarding the impossibility of forming the parliamentary majority necessary for the election of the President of the Republic, which determined the non-conduct of the procedure for electing the head of state, the deputies being aware that the elections will fail. , in which he considered that the non-participation of the deputies in the election of the head of state constitutes not only a violation of art.84 paragraph (1) of the Parliament's Rules of Procedure, but also a violation of art.68 paragraph (1) of the Constitution, which expressly stipulates that in the exercise of the mandate, the deputies in the Parliament must act only in the service of the people.

The Court emphasized that the President's constitutional right to dissolve Parliament in such circumstances was a way of reacting to the obstruction of repeated presidential elections. In this case, the head of state is not only entitled to dissolve Parliament, but, according to the Supreme Law, has the obligation to do so.

Thus, the Court reveals that, within the meaning of the provisions of paragraph (5) of Article 78 of the Constitution, the head of state is obliged to dissolve the Parliament under the conditions provided by the Constitution whenever the President of the Republic of Moldova is not elected.

5. The Constitution has a superior legal value compared to any law and other legal acts (art. 7). The dominant position of the Supreme Law is not relevant only in relation to the other normative acts. In the Constitution, the superior will of the people regarding the objectives and means of exercising political power is expressed.

The Supreme Law establishes the main instruments of government, the authorities that carry out the government and the relations between them, enshrines the fundamental rights, freedoms and duties of the citizen, represents the fundamental basis and the essential guarantee of the rule of law in the state. The activity of state bodies, institutions and organizations, civil servants, citizens, political activity in general and political forces in particular must comply with constitutional provisions.

With regard to the development by organic law of a mechanism for the institutionalization of a procedure that would ensure the election of the head of state and would not allow the repeated dissolution of the Parliament, the Court mentions the following.

The importance and the role of the Constitution, as the supreme establishment of law in the state, impose a rigorous procedure of adoption, implicitly, of revision of the Constitution.

Title VI of the Supreme Law expressly regulates the procedure for revising the Constitution, establishing the subjects with the right to initiate the revision, the limits of the revision and the order of adoption of the law on the amendment of the Constitution.

The express regulation of the procedure of revision and completion of the Constitution supposes the avoidance of the interventions in the constitutional norms depending on the situation.

Paragraphs (3) - (4) of art. 78 of the Constitution, subject to a textual analysis, indicate that they contain both provisions of material law (substance) and provisions of procedural law. Thus, paragraph (3) of art.78, according to which "the candidate who obtained the vote of three-fifths of the elected deputies" is elected, establishes the necessary majority for the election of the head of state. According to the content, this provision is substantial, because it stipulates the essential condition for the validation of the head of state, and regardless of the stages involved in the actual voting, regulated by the subsequent provisions, is mandatory for the Parliament.

The constitutional provision that expressly enshrines the majority necessary for the election of the President, being fundamental for the validation of the elections, cannot be ignored in any situation. This observance is also mandatory in the event of a new situation (parliamentary elections following the dissolution of Parliament due to the failure of the election of the President).

The subsequent constitutional provisions contained in paragraphs (3) - (4) of art. 78, being of procedural law, offer the solution in which the previous constitutional provision can be made, without distinguishing between ordinary or early parliamentary elections and the circumstances that they caused.

Therefore, the constitutional requirement regarding the election of the head of state with 3/5 votes is enforceable for any Parliament, regardless of whether he was elected in the ordinary or early election, and does not depend on the number of stages that the Parliament goes through, described in par. (3) - (4), constituting a fundamental criterion in order to validate the elections.

Art.78 paragraph (6) stipulates that the procedure for electing the President of the Republic of Moldova is established by organic law.

The Court reiterates that in order to implement the provisions of Article 78 paragraph (6) of the Constitution, on September 22, 2000, the Parliament adopted Organic Law no. 1234-XIV "On the procedure for electing the President of the Republic of Moldova".

In art.9 of Law no.1234, the legislator regulated the conduct of ordinary elections (first round and second round). According to the provisions of art. 10 of the enunciated law, the repeated elections take place within 30 days at most from the last ordinary elections in which the President of the Republic of Moldova was not elected.

The legislator is entitled to develop by organic law the procedure and stages of conducting repeated elections, the manner of appointing candidates and their number, the possibility of appointing new candidates, the resumption of repeated elections, etc. However, the provisions of the organic law must be in strict accordance with the constitutional principles, not to prejudice the constitutional provision of substance contained in paragraph (3) art.78 of the Constitution, which provides for the election of the head of state with 3/5 of the elected deputies .

Starting from the principle of supremacy of the Constitution, the legislator established a certain hierarchy of normative acts, at the top of which he placed the Supreme Law, followed by constitutional laws, organic laws, ordinary laws (art. 7, art. 72 of the Constitution). Organic laws cannot contradict the Constitution. Therefore, it is inadmissible for an organic law to deviate from the constitutional provision of substance, which enshrines the 3/5 majority required for the election of the President of the Republic of Moldova.

In view of the above statements, the Court notes that the amendment of the majority required for the election of the President of the country can be made only by constitutional law, which must be within the existing constitutional order, following the procedure provided by Title VI of the Supreme Law.

For the reasons set out, pursuant to art.135 paragraph (1) letter b), art.140 of the Constitution, guided by the provisions of art.26 of the Law on the Constitutional Court, art.62 letter b) and art .68 of the Code of Constitutional Jurisdiction,

Constitutional Court

DECIDES:

1. For the purposes of the provisions of paragraph 5 of Article 78 of the Constitution, the Head of State shall be obliged to dissolve the Parliament whenever the President of the Republic of Moldova is not elected under the conditions provided by the Constitution.

2. The provisions of Article 78 of the Constitution shall also apply in full to the Parliament invested in the early elections, if the previous Parliament has been dissolved in connection with the non-election of the Head of State.

3. For the purposes of the provisions of paragraph 6 of Article 78 of the Constitution, the Parliament has the right to develop in the Law on the procedure for electing the President of the Republic of Moldova an appropriate mechanism for repeated elections, provided that constitutional principles are observed.

Given the principle of the supremacy of the Constitution, the Parliament cannot establish by organic law another majority for the election of the President of the Republic of Moldova in case of multiple dissolution of the Parliament caused by the failure of the election of the President. Constitution.

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                                                                                                Dumitru PULBERE

Chisinau,

September 20, 2011, no.17

File no. 9b / 2011