Criminal liability of constitutional judges

On 26 March 2019, the Constitutional Court delivered a judgement on the interpretation of Article 137 of the Constitution (Judgement no. 9 of 26.03.2020), which provides that the judges of the Constitutional Court are irremovable for the tenure of their mandate, independent and abide only by the Constitution. The questions asked by the author of the application concerned:

(1) can constitutional judges be held legally liable for the votes and opinions expressed in the exercise of their functions;

(2) can constitutional judges be held criminally liable for committing offences not related to the exercise of their functions;

(3) what is the procedure for holding constitutional judges criminally liable;

(4) can constitutional judges benefit from functional immunity for the votes and opinions expressed in the exercise of their functions following the end of their term of office.

The Court noted that an important component of the State is constitutional justice, administered by the Constitutional Court, a public political and jurisdictional authority that falls outside the scope of legislative, executive or judicial power, its role being to ensure the supremacy of the Constitution as a fundamental law of a law-governed State. Within the good organization of the State authority, the role of the constitutional courts is an essential and defining one, representing a true pillar of support for the State and democracy, guaranteeing equality before the law, fundamental freedoms and human rights.

The Court reiterated that the exercise of any kind of pressure upon Constitutional Court judges, before the adoption of a decision, as well as an act of revenge for the solutions adopted, is inadmissible, being incompatible with the respect for the rule of law, the authority of the Court and the supremacy of the Constitution.

Failure to respect the principle of independence of the Constitutional Court is not only a source of internal political and legal instability. It can lead to the international condemnations of the State. In this respect, the European Court of Human Rights does not hesitate to suggest that judicial proceedings may fall within the scope of Article 6 § 1 of the European Convention on Human Rights, Article that requires independence of the tribunal adjudicating a dispute, even when the dispute takes place before a Constitutional Court.

The Court emphasized that, aside from the task of protecting the fundamental rights guaranteed by the Constitution, it must ensure that public authorities in various branches of State power remain within the limits prescribed by the Constitution and it is, sometimes, required to resolve conflicts that arise between them. The Court's task was, in this respect, a special one for maintaining the democratic regime. The Venice Commission recalls the importance of the constitutional courts in the practical implementation of democracy, the rule of law and the protection of human rights. Therefore, Constitutional Court judges need strong guarantees for their independence.

The Court noted that the independence of the Constitutional Court is one of the core values ​​of the democratic system, and its existence is essential for the realization of all other values ​​of the system. The foundation of its independence consists in objectivity and neutrality, which are the first principles of the ruling of the Constitutional Court. Constitutional judges resolve cases before the Court according to the Constitution, they must be free in their thinking and conscience, without fear and without prejudice, they must act impartially, with a sense of justice and conscience, without any pressure or incentive.

The independence of constitutional judges is strengthened by granting immunity from criminal liability for their opinions and votes in the exercise of their term of office. The concept of judicial immunity is of particular importance, especially where constitutional justice and justice in general may face the effects of political and social change.

Immunity should always be connected to the role and activities carried out by the institution in which the individual is working, is a member of or represents. This type of immunity is functional, not general. There must be no exemption from liability not connected to the person's role and professional activity.

Therefore, functional immunity intends to protect a judge from the criminalization of his or her legal opinion. The beneficiary is not the person him or herself, but the independence of the court. It is an important requirement that derives from the very nature and quality of judicial independence, impartiality and transparency. Functional immunity does not provide a judge with impunity for a crime he or she has committed. Immunity protects independent judicial decision-making, which means that a judge cannot be punished for a legal opinion or the conclusion reached in the decision-making process. However, a judge may be punished if it is proven that he or she committed an offence, e.g. by ruling in favor of a person from whom he or she had taken a bribe (this is the crime of bribery).

It is important to separate a judge’s criminal activity resulting in a court decision from the court decision itself, as a judge’s criminal activity may consist only in an act other than the expression of a legal opinion. A judge should be punished for corruption if he or she accepts a bribe to decide a case in a certain way (i.e. receiving something of value in exchange for an official act, be it a judgment or judicial decision or other). In this situation, the judge is not punished for his or her legal opinion expressed in the form of a judicial decision, but for having accepted a bribe and then made a judicial decision in compliance with that bribe.

As for any other person – a criminal accusation can lead to permanent damage to the reputation of a judge and an arrest can completely ruin the reputation. A criminal accusation or even the simple threat of it could be used to by the prosecutor’s office to exert pressure on a judge. Given that in Eastern Europe the position of judges is often weak as compared to that of prosecutors, false charges or even the threat of charges of passive corruption or trafficking of influence could be used as a tool to make judges compliant with the wishes of other authorities.

The protection of Constitutional Court judges against the criminalization of the judicial decision-making process is particularly important because these judges often render decisions in politically sensitive cases. If this type of protection were not available to them and, for example, a political change was to occur in a given country, Constitutional Court judges in that country could easily find themselves criminally liable for their decisions if the newly established government were to disagree with them or if a legislative measure of importance for the new government were to be challenged before the Constitutional Court. If this type of liability for Constitutional Court judges is admitted, it could easily be used to pressurize them in their decision-making process by threatening to criminalize it.

With regard to the matters referred to in the application, the Court held that:

(1) Within the meaning of Article 137 of the Constitution, constitutional judges must be protected by functional immunity. Constitutional judges shall not be held liable for the votes and opinions expressed and for the legal actions taken in the exercise of their function. This solution is, in the socio-political conditions of the Republic of Moldova, a balanced approach on the tension between the principle of independence of constitutional judges and the principle of their liability. Legal liability may be incidental only in respect of violations not related to the exercise of the function of constitutional judge.

From the perspective of Article 137 of the Constitution, which excludes the liability of constitutional judges for the votes or opinions expressed in the exercise of their duties, the Court reiterates the conclusions of Judgement no. 12 of 28 March 2017, where it was retained that Article 307 of the Criminal Code is applicable only in the case of ordinary judges: judges of tribunals, judges of the Courts of Appeal and judges of the Supreme Court of Justice. The status of constitutional judges differs from the status of ordinary judges by the specific nature of constitutional jurisdiction. The acts of the Constitutional Court cannot be subject to any control carried out by a hierarchically superior court that could verify their constitutional character, given the fact that there is no such authority in the constitutional order.

If a public authority were to be given the power to review the constitutionality or legality of an act of the Constitutional Court, especially regarding the investigation of Constitutional Court judges for offences carried out in their functions (not for ordinary crimes), the independence of the Constitutional Court would be compromised.

(2) Constitutional judges remain, of course, liable for any offence committed outside the decision-making process. For example, they can be held liable for bribery (material or political) in order to resolve a case in a certain way. However, in such situations, constitutional judges may only be punished for the actual crime of bribery. Functional immunity does not exclude criminal prosecution in cases not related to adjudication, because criminal offences may be committed by anyone, including Constitutional Court judges. Functional immunity does not cover ordinary offences and that the constitutional judge can, therefore, be criminally liable for committing them.

(3) Just as the Constitution does not establish an authority to express its consent for the initiation of criminal proceedings against constitutional judges and given the constitutional status of the Constitutional Court as an authority independent of any other public authority, that abides only by the Constitution, it is necessary that the consent to initiate criminal proceedings against a constitutional judge be expressed by the plenum of the Constitutional Court.       The Court noted that the prior approval procedure is an instrument that ensures the prevention of possible abuses of constitutional judges and their independence. In this sense, in order to start a criminal proceeding, the prior approval of the plenary of the Court at the request of the General Prosecutor is necessary. Court noted that constitutional judges may be searched, in case of flagrant offence, without the prior approval of the Constitutional Court, however detention, arrest and referral to contraventional or criminal trial may be done only with the prior approval of the plenum of the Constitutional Court.

(4) The Constitution, as well as the Law on the Constitutional Court regulates important principles and guarantees of independence and neutrality of Constitutional Court judges, capable to allow them to adjudicate objectively. In this respect, Constitutional Court judges cannot be held liable for the votes and opinions expressed in the exercise of their functions, including after the end of their term of office. The Court emphasized that his solution stems from the need to allow the judge to make his or her reasoned decision without fear of prosecution after the end of his or her term of office. The beneficiary is not the person him or herself, but the independence of the court. This is an important requirement that derives from the very nature and quality of judicial independence, impartiality and transparency.

In the light of its interpretation, the Court held that:

1. Under Article 137 of the Constitution, Constitutional Court judges enjoy functional immunity, which means that constitutional judges cannot be legally liable for the votes and opinions expressed in the exercise of their functions.
2. Constitutional Court judges cannot be criminally liable for offences committed in cases not related to the realization of constitutional justice.
3. Under Article 137 of the Constitution, for the initiation of criminal proceedings against a Constitutional Court judge, the prior consent of the plenum of the Constitutional Court is necessary.
4. Under Article 137 of the Constitution, the Constitutional Court judge cannot not be searched, with the exception of flagrant offences, detained, arrested, referred to criminal or contraventional trial without the prior consent of the plenum of the Constitutional Court.
5. Under Article 137 of the Constitution, Constitutional Court judges also benefit from functional immunity for the votes and opinions expressed after the end of their term of office.