Judgment No.4 of 22.04.2013

JUDGEMENT ON CONSTITUTIONAL REVIEW of the Decrees of the President of the Republic of Moldova No. 534-VII of 8 March 2013 on the dismissal of the Government, in the part concerning the staying in office of the Prime Minister dismissed by a motion of no confidence (on suspicion of corruption) of 8 March 2013 until the formation of the new government and No. 584-VII of 10 April 2013 on the nomination of the candidate for the office of Prime Minister


Gazette: Official Gazette № 97-103/9 from 03.05.2013

The subject of complaint: Member of the Parliament

Type of judgment: constitutionality review of the Presidential decrees

Provision: Provisions recognized as unconstitutional

Files:
1.  en-h_04.2013.en.pdf


Complaints:

1.  ( 11.04.2013)



Keywords:   Article 98 Investiture  | Article 100 Termination of Government Membership  | Article 101 The Prime Minister  | Article 103 Termination of Mandate  | Article 106 Motion of No Confidence  | Government competence  | sovereignty  | independence  | rule of law  |

1. The case originated in the complaint lodged with the Constitutional Court on 11 April 2013 under Article 25 para. (1) letter g) of the Law on the Constitutional Court and Article 38 para. (1) letter g) of the Code on Constitutional Jurisdiction by the members of Parliament Mihai Ghimpu, Valeriu Munteanu, Ion Hadârcă, Corina Fusu, Boris Vieru, Gheorghe Brega, Vadim Cojocaru, Oleg Bodrug on the interpretation of Articles 98, 100, 101, 103 and 106 of the Constitution, which regulate the dismissal of the Government as a result of a no confidence vote (the adoption of a no confidence motion) by the Parliament. 2. The authors of the complaint asked the Constitutional Court to interpret Articles 98, 100, 101, 103 and 106 of the Constitution, as to whether: “(1) The Prime Minister of a Government dismissed by a no confidence motion, passed as a result of distrust expressed by the Parliament for accusations of corruption, excess of official authority and of traffic of influence is entitled to continue exercising the mandate of Prime Minister until members of the new Government are sworn in or whether the President is obliged to nominate by a decree another prime minister ad interim, from among the members of the dismissed Government”; (2) When nominating a Prime Minister ad interim from among the members of the dismissed Government, the President of the Republic of Moldova must, as an obligation, consult the parliamentary factions on the candidate to be nominated from among the members of the dismissed Government or whether the nomination, if applicable, of a Prime Minister ad interim, is a discretionary prerogative of the President of the Republic of Moldova.” 3. By the Constitutional Court s decision of 12 April 2013, the complaint was declared admissible, without prejudging the merits of the case. 4. Subsequently, under Article 31 para. (3) of the Code on Constitutional Jurisdiction, the authors of the complaint partially amended the arguments and scope of the complaint, asking the Court to undertake a constitutionality review of the Decrees of the President of the Republic of Moldova No. 534 of 8 March 2013 and No. 584 of 10 April 2013, from the perspective of the rule of law principle, enshrined under Article 1 para. (3) of the Constitution. 5. When preparing the examination of the complaint, the Constitutional Court invited the President of the Republic of Moldova, the Parliament and the Government to submit their opinions. 6. At the public plenary sitting of the Court, the complaint was presented by Messrs Mihai Ghimpu, Valeriu Munteanu and Gheorghe Brega, members of Parliament. The Parliament was represented by Mr Ion Creangă, head of the General Legal Division of the Parliament Secretariat. The President of the Republic of Moldova was represented by Messrs Ion Păduraru, Secretary General and Alexandru Ohotnicov, head of the Law General Division of the President Administration. The Government was represented by Mr Oleg Efrim, Minister of Justice. THE FACTS 7. By its Decision No. 28 of 5 March 2013, the Parliament cast a vote of no confidence to the Government of the Republic of Moldova (motion of no confidence) to the Government led by Prime Minister Vladimir Filat. The loss of confidence in the Government was expressed essentially on suspicion of corruption and other related acts. 8. On 8 March 2013 Prime Minister Vladimir Filat submitted the resignation of the Government to the President of the Republic of Moldova. 9. On the same day the President signed the Decree No. 534-VII accepting the resignation of the Government. By the same act, the head of state decreed that the resigned Government had only prerogatives to administer public affairs until the members of the new Government are sworn in. 10. By the Decree No. 584 of 10 April 2013, the President of the Republic of Moldova nominated Vladimir Filat as candidate for the office of Prime Minister, authorizing him to draw up the programme for government and the list of Government members to be submitted to the Parliament for examination.

A.     Domestic law

 

11. The relevant provisions of the Constitution (Official Journal No. 1/1, 1994) read as follows:

Preamble

"[...] CONSIDERING the rule of law, civic peace, democracy, human dignity, fundamental human rights and freedoms, the free development of human personality, justice and political pluralism as supreme values [...]"

Article 1

State of the Republic of Moldova

(3) The Republic of Moldova is a democratic and governed by the rule of law State, in which human dignity, his/her rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values and shall be guaranteed.

 

Article 7

Constitution - the Supreme Law

The Constitution of the Republic of Moldova shall be the Supreme Law of the State. No law or any other legal act, which contravenes the provisions of the Constitution, shall have legal force.

 

Article 56

Devotedness towards the country

"(2) Citizens holding public offices [...] shall be held responsible for loyal fulfilment of the obligations they are bound to [...]."

 

Article 96

Role

"(1) The Government shall ensure the carrying out of the state internal and external policy and shall exercise the general leadership of the public administration.

(2) In the exercise of its prerogatives, the Government shall be guided by its programme of activity endorsed by the Parliament.

 

Article 97

Structure

"The Government shall consist of a Prime Minister, a First Deputy Minister, Deputy Ministers, Ministers and other members established by organic law."

 

 

Article 98

Investiture

(1) The President of the Republic of Moldova shall designate a candidate for the office of Prime Minister after hearing of the parliamentary fractions.

(2) The candidate for the office of Prime Minister shall request, within 15 days following the designation, the vote of confidence of the Parliament over the programme of activity and the entire list of the Government members.

(3) The Parliament shall debate in session upon both the programme of activity and the list of Government members and shall grant confidence to the Government with the vote of majority of the elected Parliament members.

(4) On the basis of the vote of confidence granted by the Parliament, the President of the Republic of Moldova shall appoint the Government.

(5) The Government shall enter into the exercise of its powers on the very day of taking the oath by its members before the President of the Republic of Moldova.

(6) In the event of the governmental reshuffle or the vacancy of office, the President of the Republic of Moldova shall revoke and appoint, upon the proposal of the Prime Minister, some Government members.

 

Article 100

Termination of office of the Government member

The office of the Government member shall cease in case of resignation, revocation, incompatibility or demise.

 

Article 101

Prime Minister

(1) The Prime Minister shall exercise the leadership of the Government and shall coordinate the activity of its members, abiding by the powers delegated to them.

(2) In case of impossibility for the Prime Minister to discharge his/her functional duties or in case of his/her demise, the President of the Republic of Moldova shall designate another Government member to fulfil the interim office of Prime Minister until the formation of the new Government.

The interim office, during the period of impossibility to perform the functional duties, shall cease once the Prime Minister resumes his/her activity within the Government.

(3) In the event of the Prime Minister s resignation, the whole Cabinet shall leave the office.

 

Article 103

Termination of mandate

(1) The Government shall exercise its mandate up to the date of validation of the new parliamentary elections.

(2) The Government, in case of expression by the Parliament of the vote of no confidence, the Prime Minister resignation or pursuant to the terms under paragraph (1), shall perform only the functions of administration of public affairs, until the new Government is sworn in.

 

Article 106

Vote of no confidence

 

(1) The Parliament, upon proposal of at least a quarter of its members, may carry on a motion of no confidence to the Government, based on the majority vote of the Parliament members.

(2) The initiative to express a vote of no confidence shall be examined within 3 days from the date of its submission to Parliament."

B. Acts of international organisations that the Republic of Moldova is party to and acts of the European Union (a member of which it strives to become)

 

12. The relevant provisions of the Statute of the Council of Europe, signed in London on 5 May 1949 and ratified by the Republic of Moldova by Parliament Decision No.  522 of 12 July 1995 (Official Journal No. 041, 1995) read as follows:

"[...] their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy [...]"

13. The relevant provisions of the European Convention on Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, amended by its Protocols and ratified by the Republic of Moldova by Parliament Decision No. 1298-XIII of 24 July 1997 (Official Journal No. 54/502, 1997) hereinafter "European Convention", read as follows:

"[editor s note - Preamble] governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law [...]".

14. The relevant provisions of the UN Commission on Human Rights Resolution No. 2005/32: Democracy and Rule of Law, read as follows:

"[The Commission on Human Rights]

8. Recalls that the interdependence between a functioning democracy, strong and accountable institutions and effective rule of law is essential for a legitimate and effective Government" [...]

11. Recalls that democratization can be a fragile process and that the rule of law and the respect of human rights are essential for the stability of democratic societies;

12. Also recalls that States are guarantors of democracy, human rights and the rule of law and bear responsibility for their full implementation; [...]

 14. Calls upon States to make continuous efforts to strengthen the rule of law and promote democracy by: [...]

 (b) Guaranteeing that no individual or public or private institution is above the law, by ensuring that: [...] 

 (iii) All government agents, irrespective of their positions, are promptly held fully accountable for any violation of the law that they commit; [...]

(vi) Comprehensive anti-corruption strategies and measures are adequately developed and applied in order to maintain the independence and impartiality of the judiciary, and to ensure the accountability of the members of the judiciary, legislative and executive systems [...]."

15. The relevant provisions of the Council of Europe Parliamentary Assembly Resolution No. 1594 (2007) on the principle of the rule of law read as follows:

"1. the [...] "rule of law", conceived by European nations as a common value and fundamental principle [...]".

16. The relevant provisions of the OSCE Ministerial Council Decision No. 7/08 on strengthening rule of law in the OSCE space, read as follows:

"[...] Reaffirming the OSCE participating States commitments to the rule of law [...], 

[...] affirming, inter alia, the need for universal adherence to and implementation of the rule of law at both the national and international levels [...],

Underlining the importance we attach to human rights, the rule of law and democracy, which are inter-linked and mutually reinforcing [...],

Underlining also the importance of the rule of law as a cross-dimensional issue for ensuring the respect for human rights and democracy, security and stability, good governance, mutual economic and trade relations, investment security and a favourable business climate as well as its role in the fight against corruption [...], thus serving as a basis for political, economic, social and environmental development in the participating States   [...]  

1. Calls on the OSCE participating States to honour their obligations under international law and to observe their OSCE commitments regarding the rule of law at both international and national levels, including in all aspects of their legislation, administration and judiciary; [...]  

4. Encourages participating States [...] to continue and to enhance their efforts [...] to strengthen the rule of law, inter alia in the following areas: [...]  

 [...] accountability of state institutions and officials, respect for the rule of law in public administration, [...]    

[...] role of constitutional courts or comparable institutions of the participating States as an instrument to ensure that the principles of the rule of law, democracy and human rights are observed in all state institutions [...]." 

17. The relevant provisions of the Preamble of the consolidated version of the Treaty on European Union, read as follows:

"[...] CONFIRMING their States attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law [...]."

18. The relevant provisions of the United Nations Convention against corruption, adopted in New York on 31 October 2003 and ratified by the Republic of Moldova by the Law No. 158-XVI of 6 July 2007 (Official Journal No. 103-106/451, 2007), read as follows:

"[Preamble] Concerned about the seriousness of problems and threats posed by corruption to the stability and security of societies, undermining the institutions and values of democracy, ethical values and justice and jeopardizing sustainable development and the rule of law, [...]

Bearing also in mind the principles of proper management of public affairs and public property, fairness, responsibility and equality before the law and the need to safeguard integrity and to foster a culture of rejection of corruption [...]."

19. The relevant provisions of the Criminal Law Convention on Corruption, adopted in Strasbourg on 27 January 1999 and ratified by the Republic of Moldova by the Law No. 428 of 30 October 2003 (Official Journal No. 229/918, 2003), read as follows:

"[Preamble] corruption threatens the rule of law, democracy and human rights, undermines good governance, fairness and social justice, distorts competition, hinders economic development and endangers the stability of democratic institutions and the moral foundations of society [...]."

20. The relevant provisions of the Civil Law Convention on Corruption, adopted in Strasbourg on 4 November 1999 and ratified by the Republic of Moldova by the Law No. 542 of 19 December 2003 (Official Journal No. 006/64, 2003), read as follows:

"[Preamble] corruption represents a major threat to the rule of law, democracy and human rights, fairness and social justice, hinders economic development and endangers the proper and fair functioning of market economies [...]".

 

 

For these reasons, in accordance with Article 140 of the Constitution, Article 26 of the Law on the Constitutional Court, Articles 6, 61, 62 letter a) and 68 of the Code on Constitutional Jurisdiction, the Constitutional Court unanimously,

 

DECIDES:

 

  1. To confirm as constitutional the Presidential Decree No. 534-VII on the dismissal of the Government of 8 March 2013;

 

  1. To declare unconstitutional the Presidential Decree No. 584-VII on the nomination of the candidate for the position of Prime Minister of 10 April 2013;

 

  1. Within the meaning of Article 1 para. (3), Article 101 (2) and of Article 103 para. (2) of the Constitution:

-          The Prime Minister of a Government dismissed by a motion of no confidence on suspicion of corruption is incapacitated to exercise his/her duties;

-          In case of a Government dismissed by a motion of no confidence on suspicion of corruption, the President of the Republic of Moldova is under the constitutional obligation to nominate a Prime Minister ad interim from among the members of the Government whose integrity was not affected;

-          The President of the Republic of Moldova is not obliged to consult the parliamentary factions for the nomination of a Prime Minister ad interim;

 

    4. The present judgment is final, is not subject to any appeal, enters in force on the date of its adoption and is published in the Official Journal of the Republic of Moldova.

         President                                                                                                                                                                                                                                             Alexandru TĂNASE

 

 

Chișinău, 22 April 2013

CCJ No. 4

Case No. 10a/2013 

 

 

THE LAW

21. From the content of the complaint, the Court notes that it refers essentially to whether a person who was leading a Government dismissed on suspicion of corruption may continue exercising the mandate as Prime Minister once the reasons for which the Parliament cast a vote of no confidence were imputable to this person. . It is also necessary to review the constitutionality of designating as candidate for Prime Minister a person who led a Government dismissed by a motion of no confidence based on suspicion of corruption and other related acts.

22. Therefore, the complaint raises a number of issues and principles of interconnected constitutional value, such as the rule of law, the proper operation of the Government, the mandate, the integrity, the compatibility and the accountability of its members, the relationship President - Parliament-Government in the context of the imperative of fighting corruption.

A. COMPETENCE OF THE COURT

1. The matter of the complaint

23. In compliance with its decision of 12 April 2013 (see §3 above), the Court notes that under Article 135, para. 1 (b) of the Constitution, Article 4 para. 1 (b) of the Law on the Constitutional Court and Article 4 para. 1 (b) of the Code on Constitutional Jurisdiction, the complaint on the interpretation of the Constitution is within the Constitutional Courts competence.

24. The Court also notes that under Article 135, para. 1 (a) of Constitution, Article 4 para. 1 (a) of the Law on the Constitutional Court and Article 4 para. 1 (a) of the Code on Constitutional Jurisdiction, the complaint on the constitutional review of the Presidential Decrees falls within the Constitutional Courts competence.

25. Article 25 para. 1 (g) of the Law on the Constitutional Court and Article 38 para. 1 (g) of the Code on Constitutional Jurisdiction, grants members of Parliament the right to submit complaints to the Constitutional Court.

26. The Court notes that it has previously interpreted Articles 98, 100 and 101 of Constitution by its Judgment No. 18 of 27 April 1999 on the interpretation of some provisions of Article 101 of the Constitution and Judgment No. 16 of 24 April 2000 on the interpretation of some provisions of Articles 73, 82, 86, 94, 98, 100 and 101 of the Constitution of the Republic of Moldova.

27. However, the Court observes that the issues raised by the authors of the complaint have not been previously subject to interpretation by the constitutional jurisdiction.

28. The Court also notes that by the Law No. 1115-XIV of 5 July 2000, the Parliament reviewed the Constitution, modifying, among others, Articles 98, 100 and 101.

29. The Court notes that the authors of the complaint have requested the interpretation of certain constitutional provisions and the constitutional review of two Presidential Decrees, in the light of the principle of the rule of law (Article 1 para. 3 of the Constitution).

30. The Court holds that, each time there is a simultaneous request for constitutionality review of certain legal acts and for the interpretation of certain constitutional provisions, the constitutional review shall include implicitly the interpretation of those constitutional provisions.

31. Under these circumstances and under Article 6 para. 2 of the Code on Constitutional Jurisdiction, the Court considers that, in the present case, the complaint regarding the constitutional review absorbs the complaint on the interpretation of constitutional provisions.

2. The matter of constitutional review

32. The Court notes that Article 135, para. 1 (a) of the Constitution of the Republic of Moldova authorizes the Constitutional Court to review the constitutionality of every act adopted by the President, with no distinction between normative and individual acts.

33. In order to clarify the issues raised by the complaint, the Court must rely particularly on the provisions of the Preamble, on Articles 1 para. 3, 100, 101 para. 2 and 106 of the Constitution, on its previous case-law, as well as on the generally accepted principles of international law, making use of all methods of legal interpretation.

34. The two matters subject to the Constitutional Courts examination are interdependent. Taking into consideration that the constitutionality review on the staying in office of Prime Minister of the person dismissed by a motion of no confidence on suspicion of corruption is influencing the reasoning on the constitutionality of the act of nominating the candidate for the office of Prime Minister, a number of issues shall be considered jointly.

3. Conclusions

35. The Court considers that there is no reason to dismiss the complaint as inadmissible and that there is no ground to terminate the proceedings under the provisions of Article 60 of the Code on Constitutional Jurisdiction. The Court notes that the complaint was lodged according to the law and that it is within its competence to rule on the constitutionality of the Decrees of the President of the Republic of Moldova No. 534 of 8 March 2013 and No. 584 of 10 April 2013. Consequently, the Court will immediately examine the merits of the complaint.

B. MERITS

I. Alleged violation of Article 1 para. (3) of the Constitution read in conjunction with Articles 100, 101 para. (2) and 106 of the Constitution upon the adoption of the Decree on the dismissal of the Government, in the part concerning the staying  in office of the Prime Minister dismissed by a motion of no confidence (on suspicion of corruption) of 8 march 2013 until the formation of the new government

36. According to the authors of the complaint, the Decree of the President of the Republic of Moldova No. 534 of 8 March 2013 was adopted in breach of Article 1 para. 3 of the Constitution, which reads as follows:

"The Republic of Moldova is a democratic and governed by the rule of law State, in which human dignity, his/her rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values and shall be guaranteed."

37. Also, according to the authors of the complaint, the adoption of the contested act violated Articles 100, 101 para. 2 and 106 of the Constitution.

 

1.     Reasoning of the authors of the complaint

 

38. According to the authors of the complaint, from the entire constitutional framework transpires the fact that the Government is constituted intuitu personae in regard to the person holding the office of Prime Minister. In this context, the Prime Minister is personally accountable for the operation of the entire Government.

39. In their view, the withdrawal of Parliament confidence for reasons associated to  corruption places the dismissed Prime Minister in a situation of political and moral incompatibility and, therefore, makes it impossible for him to continue exercising his mandate, reason for which the President of the Republic of Moldova shall nominate a Prime Minister ad interim from among the members of the Government.

40. In this context, the authors of the complaint consider that the staying in office of the  Prime Minister of a Government dismissed by a vote of no confidence for reasons of corruption is contrary to the rule of law.

41. In the same context and for the same reasons, the authors of the complaint consider that it is incompatible with the rule of law to nominate such a person for Prime Minister to form a new Government.

 

2.     Reasoning of the authorities

 

42. According to the President of the Republic of Moldova, in the light of legal logic and of certain moral requirements, once the Parliament has expressed a vote of no confidence for the entire Government, it is unacceptable for the President of the Republic of Moldova to nominate for Prime Minister another member of the dismissed Government.

43. According to the written opinion of the President of the Republic of Moldova, the accusations brought by the motion of no confidence to the Government in general and to certain members in particular do not compromise the status of a member of the dismissed Government.

 

3.     The Courts assessment

 

3.1.  Fundamental principles

 

3.1.1.      Rule of law

 

44. The European Court of Human Rights considers that the principle of the rule of law, mentioned in the Preamble of the European Convention, is part of the "common heritage" of Council of Europe member states and that it refers to the Convention as a whole. The rule of law principle has underpinned in particular the requirement established by the Court for adequate protection against the arbitrary interference of public authorities (see, inter alia, the Judgments of ECHR Engel and Others v. the Netherlands of 8 June 1976, Klass and Others v. Germany of 6 September 1978, Malone v. the United Kingdom of 2 August 1984 etc.).

45. The "rule of law" is also a term established in a series of international human rights instruments and in other documents establishing standards in this field.

46. Accordingly, the values of the state governed by the rule of law are enshrined in the Preamble of the Universal Declaration of Human Rights. The UN Commission on Human Rights Resolution No. 2005/32: Democracy and Rule of Law refers to the separation of powers, the supremacy of law and the equality of everyone before the law. This document, inter alia:

„8. Recalls that the interdependence between a functioning democracy, strong and accountable institutions and effective rule of law is essential for a legitimate and effective Government [...]

11. Recalls that democratization can be a fragile process and that the rule of law and the respect of human rights are essential for the stability of democratic societies; [...]

12. Also recalls that States are guarantors of democracy, human rights and the rule of law and bear responsibility for their full implementation; [...]

14. Calls upon States to make continuous efforts to strengthen the rule of law and promote democracy by: [...]

b) Guaranteeing that no individual or public or private institution is above the law, by ensuring that: [...]

iii) All government agents, irrespective of their positions, are promptly held fully accountable for any violation of the law that they commit; [...]

vi) Comprehensive anti-corruption strategies and measures are adequately developed and applied in order to maintain the independence and impartiality of the judiciary, and to ensure the accountability of the members of the judiciary, legislative and executive systems; [...]".

47. The concept of the "rule of law" is endorsed in the Preamble to the European Convention and along with democracy and human rights, makes up the three pillars of the Council of Europe, an international organization which the Republic of Moldova is party to.

48. The Resolution of the Parliamentary Assembly of the Council of Europe No. 1594 (2007) on the principle of the rule of law states that this concept is conceived by European nations as a common value and a fundamental principle for a larger unity.

49. The European Union, the Organization for Security and Co-operation in Europe (OSCE) and their member states also expressed their commitment to the "rule of law", to democracy and to human rights.

50. The OSCE Ministerial Council Decision No. 7/08 on strengthening rule of law in the OSCE space calls upon OSCE participating States to honour their obligations regarding the rule of law at both international and national levels, including in all aspects of their legislation, administration and judiciary. The same document encourages participating States to enhance their efforts to strengthen the rule of law, inter alia in the following areas: accountability of state institutions and officials, respect for the rule of law in public administration, as well as the role of constitutional courts as an instrument to ensure that the principles of the rule of law, democracy and human rights are observed in all state institutions. 

51. In the European Union, the concept of the rule of law is enshrined in the Preamble and in Article 2 of the Treaty on European Union, which reads:

"The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights [...]."

52. This principle is the basis for the external action of the European Union and it is also enshrined in the Preamble to the Charter of Fundamental Rights of the European Union. Explicit references to the "rule of law are found, among others, in the case-law of the Court of Justice of the European Union, in the treaties of the European Union, as well as among 1993 Copenhagen criteria for accession to the European Union.

53. Although the Republic of Moldova is not a member of the European Union, the EU integration was acknowledged under the Programme for Government "Liberty, Democracy, Welfare 2011-2014" as national priority and, therefore, the Republic of Moldova is to assimilate the principles and the fundamental values of the European Union.

54. The requirements of the rule of law presuppose insuring legality, legal certainty, prohibition of arbitrariness, access to justice before independent and impartial courts, including the judicial review of administrative acts, respect for human rights, non-discrimination and equality before the law (Report of the Venice Commission on the rule of law, CDL-AD (2011)003rev, Strasbourg, 4 April 2011, para. 41).

55. In its Preamble, the Constitution of the Republic of Moldova refers to the rule of law as a supreme value.

56. The Court notes that the principle of the rule of law, enshrined in the Preamble of the Constitution, refers to the Constitution in its entirety. This principle underpins the exigency of an adequate protection against the arbitrariness of public authorities.

57. Deriving from the text of the Preamble to the Constitution, the principle of the rule of law is resumed in Article 1, para. 3 of the Constitution.

58. In his context, the Court holds that the Preamble has a key-role in understanding and applying the Constitution and can be invoked as a source of law.

59. The Preamble, which is at the origin of the constitutional text, is that part of the Constitution which accurately reflects the spirit of the Supreme Law. Accordingly, the Preamble lays out certain imperative constitutional principles that can serve as an independent source for provisions which are not necessarily reflected directly in the text of the Constitution. Any interpretation of the Constitution must be done starting from the original aims of the Constitution, which are provided in its Preamble and from which derives the text of the Constitution itself. In conclusion, when there are several interpretations, shall prevail the one in line with the Preamble.

 

3.1.2. The rule of law and the fight against corruption

 

60. According to the Corruption Perceptions Index (CPI), monitored by Transparency International, in 2012 Republic of Moldova ranked 94 out of 176 countries in the ranking of perceived levels of corruption.

61. The Court notes that the fight against corruption was declared a national goal in different international undertakings and in national documents, such as the National Anticorruption Strategy for 2011-2015 (approved by the Decision of Parliament No. 154/2011) and the 2012-2013 Action Plan for its implementation (approved by the Decision of Parliament No. 12/2012), the 2011-2016 Strategy for judicial reform (approved by the Law No. 231/2011) and the Action Plan for its implementation (approved by the Decision of Parliament No. 6/2012), the Law No. 90/2008 on preventing and fighting corruption, the Strategy for institutional consolidation of the National Anticorruption Centre (approved by the Decision of Parliament No. 232/2012).

62. The Court holds the following: corruption undermines democracy and rule of law, leads to the violation of human rights, undermines the economy and diminishes the quality of life. Consequently, the fight against corruption is an integral part of assuring the respect for the rule of law.

 

3.1.3.      Public trust in fundamental institutions of the state

63. The trust in institutions, in general, in political and public figures, represents the expectation of the citizens that those persons or institutions act in their benefit.

64. The trust in institutions is part of the "social capital", along with the generalized trust (in fellowmen) and with the associative networks in which the individuals are involved.

65. The bond called "trust in state institutions" makes citizens get more involved in public life. The level of public trust in institutions also has an impact on the economic development of society.

66. Although it is highly relativistic, trust in certain institutions is significantly influenced by its representatives.

67. The consolidation of trust in Parliament, President and Government, as fundamental institutions of the state that symbolizes democracy, is in direct connection with the effective respect for the principle of the rule law.

 

3.1.4. The integrity of persons holding high office 

68. According to the fundamental principle of the rule law, individuals holding high office must demonstrate that they fulfil the high standards in matter of integrity. Moreover, if a failure to meet these requirements is found, ignoring such finding and appointing/staying in high office of persons with doubts about their integrity hovering over them represent contempt for the rule of law. In other words, the rule of law is a constitutional value and this value should be fully respected.

69. In the same context, Article 56 of Constitution reads that:

„[...] Citizens holding public offices [...] shall be held responsible for loyal fulfilment of the obligations they are bound to [...]"

70. Accordingly, accountability represents a value enshrined in the Constitution.

71. The Court holds that political accountability is based on a democratic state governed by the rule of law and that it refers to the accountability of those holding  a political mandate. The presumption of innocence, provided under Article 21 of the Constitution as a principle of criminal proceedings, is inapplicable to political accountability.

72. The Court holds, as a matter of principle, that every political mandate has to be based on the trust of citizens and of their representatives.

73. In a genuine democracy, normality resides in the immediate resignation of officials who lost the trust of the public, with no need for formal dismissal.

74. For instance, France has developed a special practice for such cases, known as Bérégovoy-Balladur, according to which accusations brought to a minister (or even the Prime Minister) of having committed certain reprehensible acts, even in the absence  of judicial documents, entail the minister s resignation or his immediate removal from office (the Fifth Republic accounts for 11 such cases). Following a similar logic, in Germany, the President resigned for having obtained a loan under preferential terms, while the Minister of Education and the Minister of Defence resigned on suspicion of plagiarism. Similarly, the President of Hungary resigned following accusations of plagiarism.

75. In the same context, the Court observes the position of the European Commission in regard to similar situations in Romania, where the state officials suspected of corruption were not removed from office:

"[...]The new government reiterated its goal of tackling corruption, but amongst the new Ministers are two confirmed cases under criminal investigation for corruption. In its [...] recommendations, the Commission set out its expectation that Ministers set an example in respect of integrity issues: the same should be expected in respect of corruption charges. It is essential for the credibility of a government that those in charge of ministerial functions enjoy the confidence of the public, for example by stepping down when there is an integrity report [...] against them." (European Commission Report to the European Parliament and Council on progress in Romania under the Co-operation and Verification Mechanism, COM (2013) 47, Brussels, 30 January  2013)

76. The Court holds, mutatis mutandis, reasoning a contrario, that situations, in which the persons dismissed from office for reasons of corruption are re-appointed in high office shortly after their dismissal and  without proving the reasons or dismissal to be unsubstantiated,   are inadmissible, not only reprehensible. In this context, it is contrary to the principle of the rule of law to nominate for high office persons having doubts about their integrity hovering upon them or who were dismissed for reasons of corruption.

 

     3.2. The effects of a motion of no confidence

 

77. The motions of no confidence produce both legal and political effects (withdrawing confidence to the executive has such consequences) and are therefore legal acts. If a motion of no confidence is passed, the Prime Minister shall immediately submit the resignation of the Government to the Head of State.

78. In some countries, such as Spain, Germany, Belgium, Poland and Israel, the initiators of the motion are required to propose a candidate of their own whom they want to be appointed as successor by the respective head of state (constructive motion of no confidence).

79. When Parliament passes a motion of no confidence, the mandate of confidence granted by the Parliament ceases and the Executive is dismissed. It follows that the mandate of confidence is not a prerequisite only for the investiture of the executive, but it also requires that the executive enjoy, for its entire duration, the support of the parliamentary majority, by the vote of which it was appointed. When this support and implied confidence cease to exist, the adoption of a motion of no confidence allows, by means of forming  a new executive, to restore the balance between the legislative and executive powers. Consequently, the motion of no confidence is the legal instrument by which the Parliament may withdraw the confidence granted to the government.

 

    3.3. General conclusions

 

80. In light of the above mentioned, the Court holds with the value of principle that the rule of law is not a purely declaratory fiction. The functioning of a state governed by the rule of law must manifest in practical actions.

81. The Court considers that for the purpose of  complying with the constitutional principle of the rule of law and of considering  the citizens general interest, it is imperative to take the necessary measures in order to ensure the speedy suspension or resignation of ministers and other high ranking officials which face reasonable suspicion about their integrity.

 

   3.4. Application of the above principles in the present case

 

82. The vote of no confidence on 5 March 2013, dismissing the Government,, was passed on the background of an outbreak of resonant corruption scandals involving Government members and other state officials.

83. The Court observes that the reasoning provided in the motion of no confidence reads, inter alia,:

"Lately, the Government of the Republic of Moldova became the centre of corruption scandals. [...]

Many members of the Executive are involved in criminal and corruption schemes, which damaged the state budget. [...]

Certain members of the Executive already have the status of suspect or charges were brought against them in the course of initiated criminal proceedings. [...]

Corruption schemes have been implemented in  most areas managed by the Government. One may cite the fields of health, public finance, tax and customs administration, public procurement, state property management, culture, transport and roads infrastructure etc. [...]

The acts of corruption, criminal cases investigating excess of official authority, the content of telephone conversations of Government officials etc. have demonstrated clearly and evidently to the entire society that the current Government has become corrupt, captive, prone to blackmail, and is acting contrary to the interests of the country. [...]

The Government corrupt decisions and actions have  undermined the economic and social stability of the country and have substituted democracy and legality with the "phone order" and personal interests. [...]

The Government is assimilated with corruption. [...]

All the internal and external goals have been missed. [...]

Corruption within Government has replaced democracy, legality, European integration and has endangered the future of the country and of the people of the Republic of Moldova. [...]

The Government has lost all moral right to carry out state s domestic and foreign policy and to remain in charge of the general public administration. [...]"

84. In its previous judgments (Judgment No. 16 of 24 April 2000 on the interpretation of certain provisions of Articles 73, 82, 86, 94, 98, 100, 101 of the Constitution and Judgment No. 18 of 27 April 1999 on the interpretation of certain provisions of Article 101 of the Constitution), referring to the Prime Minister s personal accountability for the Government he leads, the Court stated:

"[...] while the vote of confidence is granted to the entire Government list and while the investiture is carried out en bloc, and not separately for each member of the government, the granted confidence has a special implication for the Prime Minister, as he is the one who, as a candidate for this position, has requested the vote of confidence for the Government and has succeeded in obtaining it in accordance with constitutional provisions. Ultimately, the composition of the Government is the expression of confidence granted by the Parliament to the candidate for Prime Minister."

85. The Court notes that although the Government has declared its goal to fight corruption, according to the motion of no confidence passed by Parliament, amongst the ministers and other officials are confirmed cases under criminal investigation for corruption.

86. The Court holds that the facts described in the motion of no confidence, passed by Parliament decision, are confirmed by information publicly available and leaked/published in the media, as well as by information obtained from criminal investigation authorities.

87. The Court relies on the presumption that the Parliament passing the motion of no confidence, has acted with a high degree of responsibility, as it is appropriate for the supreme representative body of the people.

88. At the same time, it is a known fact that the allegations of corruption were not followed by the resignation or by the Prime Minister s initiative to suspend/dismiss the concerned ministers and officials. On the contrary, the Court and the entire society have witnessed attempts to obstruct the activity of the criminal investigation authorities, such as requesting the resignation of the Director of the National Anticorruption Centre or prohibiting him to attend Government meetings.

89. In the light of the above stated, the Court considers that the staying in office of a Prime Minister dismissed for reprehensible acts defies the rule of law and the principles of integrity, and threatens the stability of democratic institutions. The Court finds it  unacceptable to disregard and ignore a Parliament decision passing on acts of corruption a vote of  no confidence to a government and to  its Prime Minister, at least as long as no counterevidence was brought and the allegations were not proved unsubstantiated.

 90. In view of the above stated, the Court reiterates, as a matter of principle, the findings of the European Commission (see § 75 above), according to which, it is essential for the credibility of a Government that those in charge of ministerial functions enjoy the confidence of the public, for example, by stepping down when there are suspicions about their integrity.

91. The Court holds that a Prime Minister who tolerated, within the Government, ministers suspected of corruption and under criminal investigation for corruption, is defiant of the rule of law and designates a self-evident lack of integrity, which render him incompatible with the held position.

92. The Court notes that the staying in office of Prime Minister of a person, who lead a Government dismissed on suspicion of corruption, causes irreversible harm to the oversight function of the Parliament, as the supreme body of state power.

93. At the same time, having in mind that the Government carries out the state domestic and foreign policies and applies general control over the work of public administration (Article 96 para. (1) of the Constitution), the staying in government positions of persons with serious integrity issues undermines the credibility of the government in general, both domestically and abroad, and the government s capacity to implement its programme and to dialogue with its foreign counterparts.

94. According to Article 101 para. (2) of the Constitution:

"In case of impossibility of the Prime Minister to discharge his/her functional duties or in case of his/her demise, the President of the Republic of Moldova shall designate another Government member to fulfil the interim office of Prime Minister until the formation of the new Government

The interim office, during the period of impossibility to perform the functional duties shall cease, once the Prime Minister resumes his/her activity within the Government."

95. The Constitution provides rules for temporary or definitive impossibility to discharge a mandate or a high office. In constitutional law the cases of impossibility to discharge a mandate relate, in a broad sense, to the Head of State, to candidates running for President, to the members of Parliament and to the Government.

96. The Constitution does not list the circumstances when such impossibility may intervene.

97. It follows from the content of Article 101 para. (2) of the Constitution that the Supreme Law distinguishes two different situations of impossibility to discharge a mandate of Prime Minister:

(a) temporary impossibility, where the Prime Minister may resume the Government activity;

(b) definitive impossibility (other than demise), where the dismissed Prime Minister may not resume Government activity "until the formation of the new Government".

98. Logically, the definitive impossibility to discharge a mandate of Prime Minister is generated by any circumstance incompatible with continuation of the discharge of duties, other than demise.

99. Having regard to the findings in §§ 85-93 above, the Court considers that the Prime Minister of a Government dismissed by a vote of no confidence on suspicion of corruption is incompatible with the discharge of his duties and is in a definitive incompatibility to continue exercising his mandate.

100. Consequently, once a Government was dismissed by a motion of no confidence on suspicion of corruption, the President of the Republic of Moldova, in accordance with Article 101 para. (2) of the Constitution, is under a constitutional obligation to nominate, simultaneously with the acceptance of the Government resignation, a Prime Minister ad interim from among the members of the Government, whose integrity was not affected.

101. In light of the above, the Court considers that the staying in office of Prime Minister of a person dismissed after the expression of distrust on acts of corruption within the Government is contrary to the principle of the rule of law set out in Article 1 para. (3) of the Constitution and in Article 101 para. (2) of the Constitution.

102. The Court holds that the Articles of the Presidential Decree No. 534 of 8 March 2013 do not appear to contravene to the provisions of Article 103 para. (2) of the Constitution. At the same time, the absence in the Decree No. 534 of 8 March 2013 of provisions on the appointment of a Prime Minister ad interim constitutes an omission. The Court finds that this omission occurred due to the application of Article 103 para. (2) of the Constitution, without correlation with the provisions of Articles 1 para. (3) and 101 para. (2) of the Constitution. Given the Decree No. 534 was issued prior to the present interpretation of the constitutional norms in question, the Court does not consider necessary to invalidate the decree on the ground of the found omission. Consequently, in order to correct this omission, the President should nominate a Prime Minister ad interim, in accordance with Article 1 para. (3), Article 101 (2) and Article 103 para. (2) of the Constitution, as interpreted by the Court in the present case.

103. In the part concerning the nomination of the Prime Minister ad interim, the Court notes that the interim is a transitory situation meant to promptly secure the continuity of Government administration of public affairs. Taking into account the prerogatives of the President in the field of executive power, and that the Government is the result of a Parliament s investiture vote, the President is not obliged to consult the parliamentary factions for the nomination of a Prime Minister ad interim.

104. On the other hand, nothing forbids the President to consult their opinion about the choice for one or another member of the Government to be nominated as Prime Minister ad interim.

105. The Court notes that, within the Government, the Prime Minister is positioned as Primus inter pares, as in line with Article 101 para. (1) of the Constitution, he leads  the Government and coordinates the activity of its members, respecting the duties entrusted to him. In this context, the Court notes that while Article 101 para. (2) of the Constitution does not specify who are the members of the dismissed Government to be nominated by the President as a Prime Minister ad interim, Article 97 of the Constitution provides for the following structure of Government:

"The Government shall consist of a Prime Minister, a First Deputy Prime Minister, Deputy Prime Ministers, Ministers and other members established by organic law."

106. The Government structure, provided by the Constitution, reflects the hierarchical order of the political accountability carried by the members of the Government. Therefore, the President of the Republic of Moldova should take into account this hierarchical order of political accountability when nominating a Prime Minister ad interim.

II.  Alleged violation of Article 1 para. (3) of the Constitution on the adoption of the Decree on the nomination of the candidate for the office of Prime Minister

107. According to the authors of the complaint, the Presidential Decree No. 584 of 10 April 2013 was adopted in breach of Article 1 para. (3) of the Constitution, which reads:

"The Republic of Moldova is a democratic and governed by the rule of law State, in which human dignity, his/her rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values and shall be guaranteed."

 

1. Reasoning of the authors of the complaint 

108. In the same context and for the same reasons (see §§ 38-41 above), the  authors of the complaint consider that  the nomination of such a person as Prime Minister for the formation of a new Government is incompatible with the principle of the rule of law.

 

 2. Reasoning of the authorities

109. According to the President, Parliament and Government representatives, only a person under judicial prohibition, adopted in the course of criminal proceedings, may be prevented from taking office.

 

3. The Court s assessment

110. In light of its findings in §§ 85-93 above, the Court holds that the nomination for the office of Prime Minister of a person who lead a Government dismissed on suspicion  of corruption causes irreversible harm to the oversight function of the Parliament, as the supreme body of state power.

111. It also undermines public confidence in the state s capacity for effectively fighting corruption.

112. At the same time, having in mind that the Government shall ensure the carrying out of of the state domestic and foreign policy and shall exercise the general leadership of  the public administration (Article 96 para. (1) of the Constitution), the nomination of a person with serious integrity issues undermines the credibility of the government in general, both domestically and abroad, and the government s capacity to implement its programme and to dialogue with its foreign counterparts.

113. In light of the above and taking into account the findings in §§ 85-93 above, the Court reiterates that the Prime Minister of a Government dismissed by a motion of no confidence on suspicion of corruption, , thus, defying the rule of law and demonstrating lack of integrity, has thus become incompatible with the exercise of a high office.

114. Consequently, the nomination of such a person for the office of Prime Minister is contrary to the principle of the rule of law (Article 1, para. (3) of the Constitution). Therefore, the Presidential Decree No. 584 of 10 April 2013 is unconstitutional.

115. At the same time, establishing a high degree of accountability for senior officials, the Court stresses that, on several occasions, the European Court of Human Rights concluded about the use of criminal investigation authorities and of the media in order to settle accounts for political or economic purposes (see, inter alia, Şarban v. Moldova of 4 October 2005; Becciev v. Moldova of 4 October 2005; Cebotari v. Moldova of 13 November 2007; Muşuc v. Moldova of 6 November 2007; Megadat.com v. Moldova of 8 April 2008; Dacia v. Moldova of 18 March 2008; Petrenco v. Moldova of 30 March 2010). In this respect, it is relevant to cite similar findings in the Declaration of the Parliament of the Republic of Moldova on the state of affairs in the judiciary of the Republic of Moldova and on the actions required to redress the situation in the justice sector, adopted by Parliament Decision No. 53 of 30 October 2009, which has similar findings.

116. Having in mind these aspects and the devastating impact that criminal investigation and media attacks executed on command may have on reputation and public image, the Court cautions about the inadmissibility of illegal use of legal institutions and of media for political purposes. For these reasons, the Court reserves the right to examine as a court of last resort and with great caution all acts within its jurisdiction under Article 135 of the Constitution, referring to  the removal from/nomination for office of persons under suspicion  of  corruption.

117. Reiterating that the presumption of innocence, provided in Article 21 of the Constitution as a principle of criminal proceedings, is inapplicable to political accountability, the Court stresses that none of its findings above may have any impact on any criminal proceedings.

 

 

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