Mechanism for selecting and determining investigating judges in the event there are no candidates

On 24 March 2020, the Constitutional Court ruled on the constitutionality of Article 15¹ para. (5) of Law no. 514 of 6 July 1995 on the Organization of the Judiciary (Judgement no. 7 of 24.03.2020).

In this case, on the basis of a request by the President of the Chișinău Court, the Superior Council of Magistracy decided, by a decision of March 2019, to transfer the judge, who is the applicant of the exception of unconstitutionality, from the Centru District to the Ciocana District of the Chișinău Court.

The applicant claimed before the Court that the impugned norm of Article 15¹ para. (5) of Law no. 514 of 6 July 1995 on the Organization of the Judiciary contravenes the principles of independence and irremovability of the judge, safeguarded by Article 116 paras. (1) and (5) of the Constitution.

The Court examined the constitutionality of the contested provision in the light of the following issues:

(i) whether the mechanism for selecting and determining the investigating judge complies with the judge's consent to the transfer requirement, and

(ii) whether the mechanism for selecting and determining the investigating judge by the president of the court is clear and able to ensure a fair balance between, on the one hand, the need to ensure the independence of the judge and, on the other hand, the need to administer justice efficiently.

As regards the first issue, the Court noted that the constituent used rigid wording in the text of Article 116 para. (5) of the Constitution, emphasizing that the irremovability of the judge is a fundamental principle. As this principle is not absolute, the Court noted that the judge may be transferred without his/her consent, if it occurs:

(a) in connection with the application of a disciplinary sanction;

(b) in connection with judicial reorganization; or

(c) in connection with the supporting of a neighboring court.

The provisions of Article 15¹ para. (2) of the Law on the Organization of the Judiciary establish the fact that the investigating judge is appointed by the Superior Council of Magistracy with his/her consent, at the proposal of the president of the court. At the same time, the Law establishes in Article 15¹ para. (5) a derogation from the consent rule if no judge expresses his/her agreement to exercise the powers of the investigating judge or if several judges express their agreement. In this situation, the judge's candidacy is determined by the president of the court. The Court noted that a judge may be appointed as investigating judge even if he/she does not consent to this. This situation represents a derogation from the general rule established by Article 116 para. (5) of the Constitution, which provides that the transfer of judges is made only with their consent.

Thus, the Court observed that the impugned rule falls within the third exception to the general principle of irremovability of the judge, because “the transfer is temporary and aims to support a neighboring court”. The Court held that the contested rule is constitutional, in terms of Article 116 para. (5) of the Constitution.

As regards the second issue, the Court had to examine whether the mechanism for selecting and determining the investigating judge by the president of the court is capable of striking the right balance between, on the one hand, the need to ensure the independence of the judge and, on the other hand, the need to administer justice efficiently.

The Court noted that the text “the judge's candidacy will be determined by the president of the court” of the contested rule does not expressly provide in what manner and according to which criteria the president of the court determines the investigating judge's candidacy. Prima facie, the legislator granted the president of the court a margin of discretion regarding the choice of the method for determining the candidacy of the investigating judge. However, given that the applicant challenges only the proportionality of the measure, the Court acknowledged that the contested rule is clear.

On the proportionality of the impugned measure, the Court held that both the need to ensure the independence of the judge and the need to administer justice effectively are values protected by Article 116 of the Constitution. None of them is an absolute value and, therefore, both may be limited by optimizing them. Also, there is no hierarchy between the independence of the judge and the administration of justice effectively, but rather a collaboration between these two values to achieve a common goal, such as ensuring the participants’ right to a fair trial.

First, the Court has found that neither the law nor the provisions of the Rules of Procedure on the conditions for the appointment of investigating judges establish the obligation of the president of the court to take into account, during the procedure for selecting and determining the candidacy, the particular situation of a judge, a situation that could exclude the transfer (e.g. pregnancy; raising a minor alone; caring for a family member, etc.). The impugned rule is insensitive to the objective situations in which some judges may find themselves.

Second, the Court observed that the law does not oblige the president of the court to provide reasons for his/her proposal made to the Superior Council of Magistracy on the appointment of a judge as investigating judge. In this situation the selected judge may be left without an answer to the question of why he/she was selected and not another judge. Moreover, this situation may give the selected judge suspicion of ill-intention on the part of the court president.

Third, the Court noted that if no judge wishes to exercise the powers of investigating judge, the selection and discretionary determination by the president of the court of the candidacy is problematic. Thus, in its original wording, the contested Law provided that, if no judge expresses his/her consent to exercise the powers of investigating judge, the candidacy of the judge will be determined by the president of the court by drawing lots, in the presence of all judges working in the court, with the reflection of this fact in a record.

Fourth, the Court noted that, although the law limits the term of office to three years, it does not limit the number of terms. In its original wording, the Law provided that the investigating judge is appointed for a term of three years, without the possibility of serving two consecutive terms. Thus, the contested rule allows the repeated selection and determination without consent of the same judge to exercise the powers of investigating judge.

Fifth, the Court found that the law requires the president of the court to select only one candidate for the position of investigating judge. For the selected judge, this fact represents an uncertainty as to the reason for his/her selection by the president of the court. From the president of the court’s point of view, this fact allows him/her to select and determine a candidate he/she prefers for subjective reasons. From the role of the Superior Council of Magistracy’s point of view, the selection and determination of a single candidate by the president of the court limits the Council's margin of discretion in this process. Moreover, the law does not regulate the cases in which the Superior Council of Magistracy may reject the candidacy proposed by the president of the court. In this situation, the role of the president of the court becomes dominant.

The Court noted that the legislator regulated a mechanism for selecting and appointing investigating judges in a way that favors the efficient administration of justice. The mechanism in question can ensure a quick selection and appointment of investigating judges. At the same time, this speed sets a lower weight for the independence of judges, which is also an equally important value in a law-governed State.

The Court recalled that the efficient administration of justice is not an end in itself. Both the administration of justice and the independence of judges aim to ensure the right to a fair trial. In this respect, the legislator had to optimize the two values, ensuring a correct balance between, on the one hand, the need to ensure the independence of the judge and, on the other hand, the need to administer justice efficiently, as the existence of guarantees against arbitrariness would achieve.

Therefore, the provisions of Article 15¹ para. (5) of the Law on the Organization of the Judiciary are likely to affect the principle of independence of the judge established by Article 116 para. (1) of the Constitution.

Thus, based on its case-law, the Court held that until the amendment of the Law by the Parliament, the mechanism for selecting and determining the investigating judges will take place on the basis of the drawing lots procedure, as regulated by Article 15¹ para. (5) of the Law on the Organization of the Judiciary in its previous wording.