On Monday, 14 May 2018, the Constitutional Court of Moldova delivered a judgment on the constitutionality of the phrases “[…] only in the part related to the procedure of issuing/adoption.” of Article 25 (1) of the Law no. 947 of 19 July 1996 on the Superior Council of Magistrates and “b) verifies the legality of the decisions of the Superior Council of Magistrates in cases provided by the law;” of Article 10 (1) of the Law on administrative litigations no. 793 of 10 February 2000. (Application no. 148g/2017)

Circumstances of the case
The exception of unconstitutionality underlying this case was raised by Mr. Gheorghe Muntean – a litigant in a case pending before the Supreme Court of Justice, represented by the attorney Ariadna Suveica. According to him, the review of the decisions of the Superior Council of Magistrates is only limited to verifying the procedure of adoption/issuing thereof, although they could also be illegal based on other reasons.                                                                

Assessment of the Court
The Court analysed this exception of unconstitutionality in light of Article 20 of the Constitution, i.e. the right to effective redress before a competent court against actions infringing upon his rights, freedoms and legitimate interests.

It noted that the provisions of Article 25 of the Law on the Superior Council of Magistrates and of Article 10 of the Law on administrative litigations do not confer upon the Supreme Court of Justice the competence to undertake a re-examination on establishing the facts by the Superior Council of Magistrates in disciplinary cases against judges. Accordingly, the Supreme Court of Justice is impeded to examine issues that may prove to be instrumental for litigations it is called upon to deliver a decision. Thus, the potential plaintiffs do not have – according to the applicable laws – the possibility to re-examine facts decisive with respect to their case, by the Supreme Court of Justice. 

The Court noted that in order for the standards of Article 20 of the Constitution to be met, the Supreme Court of Justice shall have the capacity to resolve issues it is presented with in an effective manner and to apply an equally effective judicial review, including when it comes to challenges against the decisions of the Superior Council of Magistrates.

The above clarifications enabled the Court to observe that the requirements set by the challenged legal provisions do not present sufficient coverage for the review made by the Supreme Court of Justice with regard to the decisions of the Superior Council of Magistrates.

Accordingly, the Court found that the current review applied by the Supreme Court of Justice does not provide for a sufficient coverage and is thus in breach of Article 20 of the Constitution. This judgment of the Court does not imply the revision of the final decisions of the Supreme Court of Justice in cases regarding the contested decisions of the Superior Council of Magistrates.

Conclusions of the Court
Stemming from the above mentioned, the Court partially admitted the exception of unconstitutionality raised by Mr. Gheorghe Muntean, litigant in the case no. 3-19/17, pending before the Supreme Court of Justice, represented by the attorney Ariadna Suveica.

It thus declared unconstitutional the phrases:

-       “[…] only in the part related to the procedure of issuing/adoption.” of Article 25 (1) of the Law no. 947 of 19 July 1996 on the Superior Council of Magistrates;

-       “b) verifies the legality of the decisions of the Superior Council of Magistrates in cases provided by the law;” of Article 10 (1) let. b) of the Law on administrative litigations no. 793 of 10 February 2000.

The Court ruled that till the amendment of the legal texts declared unconstitutional, the Supreme Court of Justice shall apply a full review in fact and in law with respect to decisions of the Superior Council of Magistrates challenged before it.

The Court declared inadmissible the exception of unconstitutionality on the constitutional review of Article 25 (1) let. g) of the Law no. 544 of 20 July 1995 on the status of the judge.

This judgment is final, it cannot be appealed, it shall enter into force on the date of its adoption, and it shall be published in the Official Journal of Moldova.

The full reasoning may be consulted in the Judgment of the Constitutional Court of Moldova, which will be soon available on its web-page.

This is an English language courtesy translation of the original press-release in Romanian language.