Appointment of the Prosecutor General and the Interim Prosecutor General

On 21 May 2020, the Constitutional Court ruled on the constitutionality of some provisions of Law no. 3 of 25 February 2016 on the Prosecutor's Office, of Parliament Decision no. 101 of 30 July 2019 regarding the candidacy submission for the position of interim Prosecutor General of the Republic of Moldova and of Decree of the President of the Republic of Moldova no. 1232-VIII of 31 July 2019 regarding the appointment of the interim Prosecutor General (Judgement no. 13 of 21.05.2020).

From the perspective of affecting the constitutional mandate of the Superior Council of Prosecutors, as established by Articles 125 and 125¹ of the Constitution, the Court identified three categories of issues, which it analyzed. They refer to the appointment of the interim Prosecutor General, the pre-selection of the candidates for the position of Prosecutor General and the dismissal of the Prosecutor General.

As regards the appointment of the interim Prosecutor General, the Court reiterated that the interim is a temporary solution, which ensures the exercise of the functions for a period of time by a person other than the incumbent. In its case-law, the Court held that the reason for the interim lies in overcoming the situation created by the impossibility of the mandate holder to exercise his/her powers and in avoiding disruptions in the activity of this institution (JCC no. 9 of 21 May 2013, § 69).

The Court noted that the Constitution does not operate with the notion of “interim Prosecutor General”, nor does it contain provisions regarding the intervention of the vacancy of this position. Thus, as regards the aspects related to the organization and internal functioning of the Prosecutor's Office in respect of which the Constitution has no provisions, the Parliament has the power to regulate them by law, while respecting the constitutional principles.

On the one hand, the Court noted that the Superior Council of Prosecutors is required by the Law on the Prosecutor's Office to propose in a short time an interim Prosecutor General, and on the other hand, if it is not accepted, the proposal may be rejected by the President of the Republic of Moldova. Subsequently, the role of the Superior Council of Prosecutors becomes secondary, the second proposal being made by the Parliament of the Republic of Moldova.

In the event of rejection by the President of the Republic of Moldova of the candidacy proposed by the Superior Council of Prosecutors, the constitutional role of the Council is significantly diminished, considering the fact that, according to para. (2²) of Article 11 of the Law on the Prosecutor's Office, the Parliament, a purely political body, takes over the prerogative of proposing a candidate for the position of interim Prosecutor General, and the Council becomes an approval body.

The Court concluded that the establishment of a time limit and the redistribution of powers regarding the proposal of the interim Prosecutor General, as provided for in Article 11 paras. (2¹) and (2²) of the Law on the Prosecutor's Office, are likely to affect the role of the Superior Council of Prosecutors provided for by Articles 125 and 125¹ of the Constitution.

As regards the pre-selection of the candidates for the position of Prosecutor General, the Court noted that stipulating the procedure for appointing the Prosecutor General in the Constitution is a guarantee of his/her independence and the impartial exercise of his/her duties under the Law on the Prosecutor's Office (JCC no. 8 of 20 May 2013, § 53).

The Court underlined that Article 125 para. (1) of the Constitution provides explicitly the subjects with decision-making powers in the process of appointing the Prosecutor General, i.e. the Superior Council of Prosecutors and the President of the Republic of Moldova. The Court mentioned the Opinion of the Venice Commission, according to which the domestic constitutional framework appears to impose a rather strict rule regulating the powers of the Superior Council of Prosecutors in the process of appointment of the Prosecutor General. Any redistribution of decision-making powers which substantially affects the constitutional mandate of a given body requires a constitutional amendment. Otherwise the purpose of creating such a body at the constitutional level would be compromised (Amicus curiae Opinion no. 972/2019 on the amendments to the Law on the Prosecutor’s Office (CDL-AD(2019)034), §§ 22, 26). 

Substantial changes to the Law on the Prosecutor's Office in terms of pre-selection and proposal of the Prosecutor General have led the Court to conclude that the Commission set up by the Ministry of Justice has more than an advisory role. The Superior Council of Prosecutors is obliged to select a candidate from the list drawn up by the Commission. As long as the Council may not select a candidate from outside the list of candidates pre-selected by the Commission, it can be said that the latter intervenes substantially in the constitutional mandate of the Superior Council of Prosecutors.

In this regard, the Court noted the view of the Venice Commission, according to which the Constitution entitles Parliament to define, in a law, general procedures to be followed by the Superior Council of Prosecutors. On the other hand, the Superior Council of Prosecutors has a role under the Constitution which should not be usurped by the Parliament – this is the role of composing a list and selecting one candidate, to be proposed to the President of the Republic for appointment. The Superior Council of Prosecutors should follow the law, and the legislator should not exceed its law-making power to prevent the Superior Council of Prosecutors from exercising its constitutional mandate (Amicus curiae Opinion no. 972/2019 on the amendments to the Law on the Prosecutor’s Office (CDL-AD(2019)034), §§ 39).

Based on the above, the Court considered that the involvement of the Commission set up by the Ministry of Justice in the process of appointing the Prosecutor General in the manner established by Article 17 of the Law on the Prosecutor's Office is contrary to Article 125 of the Constitution.

At the same time, the Court noted that, according to the provisions of Article 140 para. (1) of the Constitution, the laws or some parts thereof become null and void from the moment of adoption of the corresponding decision of the Constitutional Court. In its case-law, the Court observed that the text “from the moment of adoption of the decision” of the cited constitutional norm refers to the ex nunc effect of the decisions of the Constitutional Court, which presupposes that they produce effects for the future (JCC no. 5 of 25 February 2020, § 141; JCC no. 21 of 1 October 2018, §§ 33 and 41).

Based on the above, the Court noted that the finding of the unconstitutionality of some provisions of Article 17 of the Law on the Prosecutor's Office does not affect the procedures for the appointment of the Prosecutor General already carried out, and does not apply to the ex ante relations at the time of entry into force of the Judgement.

As regards the dismissal of the Prosecutor General, the Court mentioned that Article 125 para. (2) of the Constitution stipulates the authorities with decision-making powers in the process of dismissing the Prosecutor General, i.e. the Superior Council of Prosecutors and the President of the Republic of Moldova.

The Court reiterated, as in the case of the pre-selection of the candidates for the position of Prosecutor General, that the constitutional role of the Superior Council of Prosecutors is affected by the power given to the Commission to evaluate the activity of the Prosecutor General by the introduction of a mechanism capable of endangering the aim pursued by the constituent through Article 125¹ of the Constitution: to guarantee the independence and impartiality of prosecutors.

Stemming from the above, the Court declared Article 11 paras. (2¹) and (2²), Article 17 paras. (2), (3), (5), (6), (7), (8), (9), (9¹) and (11¹) and Article 58 paras. (7), (8) and (9) of Law no. 3 of 25 February 2016 on the Prosecutor's Office.