Dismissal of the Constitutional Court judges by the Parliament is unconstitutional

On 2 June 2014, the Constitutional Court delivered its judgment on the constitutionality of certain provisions regarding the establishment of the possibility to dismiss the Constitutional Court judges by the Parliament for “loss of confidence” and the limitation of competences of the authority of constitutional jurisdiction (Complaint No. 34a/2014).

Circumstances of the case

At the origin of the case lies the application submitted to the Constitutional Court on 20 May 2014 by the MPs, Messrs Mihai Ghimpu, Valeriu Munteanu, Gheorghe Brega and Mrs. Corina Fusu on the constitutionality of the Law No. 109 of 3 May 2013, by which were made changes in the Law on the Constitutional Court and in the Constitutional Jurisdiction Code, in part regarding the status of judges, the jurisdiction and the procedure of the Constitutional Court.

By the challenged law, the Parliament established the possibility of removing from office the judges of the Constitutional Court, in particular for “loss of confidence”. Furthermore, the jurisdiction of the Court was limited and the terms for examining the applications were reduced.

The authors of the application alleged that, by the challenged law, the judges of the Constitutional Court were deprived of irremovability and the competences of the Constitutional Court were reduced, thus being violated the provisions of the Constitution that guarantee the independence of the judges and of the authority of constitutional jurisdiction.

The law No. 109 was adopted on 3 May 2013 and provoked severe critics from behalf of the President of the Venice Commission, the Secretary General of the Council of Europe, the President of the Parliamentary Assembly of the Council of Europe and EU representatives. On 8 May 2013 the law has been returned to Parliament for re-examination, by the President of the Republic of Moldova and, up to the present, it has not been rejected by Parliament.

Therefore, the authors of the application requested the exercise of the a priori constitutional review of the challenged law.

The Constitutional Court ruled on the application in the following composition:

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEŞU,

Mr Igor DOLEA,

Mr Victor POPA,

Mr Petru RĂILEAN, judges

Conclusions of the Court

Hearing the reasoning of the parties and examining the case files, the Court held that by Judgment No. 9 of 14 February 2014 the Court decided that the laws passed by Parliament, both after and prior publication in the Official Gazette of the Republic of Moldova, can be subject to constitutional review, upon the appeal of the President of the Republic of Moldova and of the other subjects with the right to appeal.

The Court held that, under Article 137 of the Constitution, the judges of the Constitutional Court are irremovable, independent, and abide only by the Constitution.

The Court held that the institution of the constitutional litigation court has the task to examine the activity of the Parliament. The submission of the Court judges to the need of “confidence” of the Parliament is obviously contrary to the purpose itself of a constitutional court.

In this context, the Court noted that the liability of the Constitutional Court judges before the Parliament, whose activity they examine, is inadmissible. Such a possibility creates a risk of pressure from the Parliament in certain cases that may appear before the Court, and the liability before the Parliament may put an indirect pressure on a judge, in order for him/her to avoid taking unpopular decisions or to make decisions that will be popular for the legislator, so that he/she would not “lose confidence”. This is likely to create suspicion on the impartiality of the judges, who might be at the discretion of a political organ par excellence, whose activity is carried into politics; being created a danger of subordination to the foreign influences of the Court’s purpose.

Furthermore, the Court found that the removal from office of the Constitutional Court judges by the Parliament is a legal nonsense, since it is not the Parliament that appoints all the judges of the Court. Even if the Court judges take the oath before the Parliament plenary, the President of the Republic and the Superior Council of Magistracy, it does not mean that Parliament intervenes as a deciding factor in their appointment, it just has the nature of a solemn ceremonial investiture procedure and of determining the date when the judges’ tenure begins.

In light of the above, the removal from office of the Constitutional Court judges by the Parliament is an inadmissible interference in the activity of the Constitutional Court, in other words, a violation of the principle of its independence, and it is contrary to the principles of irremovability and independence of its judges [Articles 134, para. (2) and 137 of the Constitution].

The Court also held that the repealed provisions of the Articles 25¹ of the Law and 7¹ of the Code have established a new competence of the Court – suspension of the challenged acts, in order to avoid damages and other imminent negative consequences; competence which is circumscribed, obviously, in the constitutional framework enshrined by Article 135, let. a) of the Constitution.

The repealing of this provision had the meaning to exclude the direct reference in the legal norms to the constitutionality of the individual acts issued by Parliament, President and Government.

The Court held that the provisions of the Article 135 of the Constitution do not establish any difference between decisions that may be subject to its control, in terms of the field in which they were adopted or under the normative or individual character, which means that all these decisions are susceptible of being subject to constitutional review.

Establishing the competence for exercising such a constitutional review represents the expression of diversifying and strengthening the jurisdiction of the Constitutional Court, the sole authority of constitutional jurisdiction of the Republic of Moldova, and an accomplishment in the efforts of achieving a rule of law and democratic state, and of ensuring the separation and balance of powers in the state.

The Court held that the meaning of the rule enshrined in Article 72, para. (3), lett. c) of the Constitution, of regulating the organization and functioning of the Constitutional Court, is to allow the legislator to increase and expand the functionality and mechanisms of the Constitutional Court.

Therefore, the provisions of the Constitution do not allow the legislator to limit, eliminate or reduce the powers conferred to the Constitutional Court, since that would be equal with depleting its content, respectively with giving up to the purpose of improving the constitutional democracy, – sought by the constituent legislator himself in establishing the competence of constitutional review, – which is absolutely unacceptable.

The Court reiterated that any legal norm or legislative amendment, adopted under Article 72, para. (3), lett. c) of the Constitution, which would result in blocking, in any form, the functionality of the Court is deemed unconstitutional ab initio. Therefore, no change can be made to the powers of the Constitutional Court under Article 72 para. (3), lett. c) of the Constitution ​​if it would result in suppressing one of these competences, in any circumstances and by violating the fundamental norms.

In this regard, even if the competence on suspending the action of the challenged acts within the constitutional review has been granted to the Constitutional Court by its organic law, it has obtained constitutional feature under the provisions of the Article 135, lett. a) of the Constitution.

Removal of the Constitutional Court competence regarding the suspension of the action of the challenged acts, including those relating to human rights and fundamental freedoms, under constitutional review is unconstitutional. That is because protection of freedom and human dignity, against any form of abuse committed by public authorities, represents one of the main principles of the rule of law state.

Moreover, regarding the establishment of more limited periods of time for examining the applications, the Court held that the effectiveness of the Court’s action, exercised according to the competence enshrined under Article 135 of the Constitution, as in the case of any litigations or lawsuits, is inseparable from respecting certain reasonable terms. Otherwise, the constitutional jurisdiction might become an illusory one.

The reasonableness of the terms is determined by several factors: the complexity of the case, the conduct of the court, the parties' behaviour, the attitude of other authorities concerned.

In this context, the Court noted that para. (6) of the Articles 25¹ of the Law and 7¹ of the Code lay out that, in case of suspending the action of the challenged normative act, the Constitutional Court will examine, on the merits, the application within a reasonable time, which shall not exceed 15 days from registration. If necessary, the Constitutional Court may decide, in a reasoned manner, to extend the term of 15 days for at most another 15 days.

Therefore, although enshrines the notion of “reasonable time”, the same rule indicates that this term refers to a maximum of 15 days. In this regard, the rule establishes a legal nonsense, showing a deficient and imprecise wording.

The Court held that these norms might jeopardize the activity of the Constitutional Court, especially given that Parliament has not provided the necessary resources to support the activity of the Constitutional Court in this regard and their enforcement was made without consulting the Court and the society or any relevant national and international institution.

The Court held, as a principle, that setting the time limits for examination and for procedures of the Constitutional Court, by laws issued by the Parliament, is contrary to the principle of independence of the Court. In the practice of other states, normality consists in statutory autonomy of the Court, which has the right to approve its own rules of procedure. Similarly, the European Court of Human Rights adopts its rules of procedure.

In this context, setting extremely reduced time limits affects a fortiori the independence of the Court and may compromise the full examination of the cases and, respectively, may deplete of content the Court’s role as guarantor of the Constitution.

Judgment of the Court

Starting from the reasoning invoked above, the Constitutional Court declared admissible the application and declared unconstitutional the Law No. 109 of 3 May 2013 on changing and amending certain legislative acts.

Furthermore, the Court declared unconstitutional the provisions regarding the establishment of certain reduced time limits for examining the applications.

The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Gazette of the Republic of Moldova.