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Alexandru Tanase: As for judges’ immunity, we will ask the opinion of the Venice Commission


Alexandru Tănase: As for judges' immunity, we will ask the opinion of the Venice Commission

Published in Actualitate on September 24, 2012, 07:35

TIMPUL: The Constitutional Court released the first comment to the Constitution of the Republic of Moldova. How timely is this release, since AIE declared its intention to adopt a new Constitution?

Alexandru Tănase: Developing a comment to the Basic Law is a memorable moment for the legal and political community. Studies and research on the Constitution help not only develop a better understanding of the Constitution, but also develop the legal theory in general. In our case, the Constitution has been fully commented for the first time since its adoption in 1994. I believe that this comment, as the most recent of all that have been made, will serve as an important support in preparing amendments to the current Constitution and developing the text of the new Constitution.

T: Is this comment the official position of the Constitutional Court?

A. T.: The only interpretations of the Constitution that have legal force are those resulting from the rulings of the Constitutional Court. A research, however good it may be, cannot replace the official position of the Constitutional Court. But the fact that this comment is not an official interpretation of the Constitution in no way reduces its importance. A particular value of this comment derives from the fact that it is the result of the work of practitioners and theorists. This synergy between science and practice has allowed a much broader and deeper approach to the constitutional text. Therefore, it will not be an exaggeration if I say that this research is in itself a new building block in the foundation of national law research capacity. In this context, I want to mention that the development of this work was made possible due to the financial support provided by the German "Hanns Seidel" Foundation.

T: What is the agenda of the Constitutional Court for the judicial year 2012-2013?

A. T.:

This year, the Constitutional Court had to settle important issues such as observing the secrecy of vote in the election of the President of the Republic of Moldova, validating elections for the Presidency of the Republic of Moldova, interpreting Articles 68 para. (1), (2) and 69 para. (2) of the Constitution on the Status of Members of the Parliament, the constitutionality of certain provisions of the Law on allowances for temporary work incapacity.

The Court's agenda will be equally busy in the judicial year 2012-2013 as well. So far, the Court has been asked to establish the constitutionality of certain provisions of the law on the status of servicemen, of the Civil Procedure Code, Criminal Procedure, Enforcement Code and of the Broadcasting Code. Certain provisions of the Administrative Litigation Law, the Law on State Supervision of Public Health, Rules of the Parliament, Citizenship Law, the Law on Freedom of Expression, Regulation on citizens' enrolment in the military service have been challenged.

For the first time we are faced with an avalanche of complaints concerning several laws regulating the activity of financial institutions. It is the Law on the National Commission of Financial Market, the Law on licensing of entrepreneurial activity, the Law on Financial Institutions, Government Decision no. 78 of 02.02.1999 for confirmation of the state assets of Banca de Economii.

An important complaint was lodged by the Supreme Court, requesting constitutionality review of excluding the immunity of judges for crimes of corruption and influence peddling.


T: Why are there so many complaints? Is the quality of adopted laws so poor? 

A. T.: 
I don't think so. The complaints concern rules that have been in force for many years. A large part of them were passed by previous governments. Regardless of the reasons underlying these complaints, the Constitutional Court will review them, of course if it deems that they fall under its competence. At the same time, the number of complaints is an indicator of confidence the applicants have in a court.

T: It has been rumored in the press that the outcome of the complaint on judges' immunity is predictable because dog does not eat dog...

A. T.:
 I've also seen that some media outlets have addressed the issue in this way. I would suggest to all not to rush to conclusions. This issue is too complicated to be treated in such a simplistic way. Undoubtedly, it is an obligation of the state to fight corruption in the judiciary and for that, the state requires some tools. In this context, the Parliament felt that judges should not enjoy immunity in case they have committed acts of corruption. The Constitutional Court has a complicated task to check through constitutional norms and European regulations if limiting judges' immunity diminishes the independence of judges. To avoid any speculations on this complaint, especially since its author is the Supreme Court, we will consult the opinion of the Venice Commission. Moreover, according to the Council of Europe commitments, Moldova has to submit all bills on the functioning of democratic institutions, the independence and effectiveness of the judiciary to the Council of Europe for expertise, prior to passing such laws. It is unfortunate that the opinion of the Venice Commission was not required during the development of this bill.

T: How then should the state fight corruption in justice, if the judges have immunity? 

A. T.: That is why we have to establish a balance between the state's obligation to fight corruption and ensure the independence of judges. In this context, I recall an interesting statistic that I found when I was the Minister of Justice. During the last 10 years, no request of the Prosecutor General to waive the immunity of judges has been rejected. However, no case has reached the court. Moreover, although there is much talk about the danger of syndication of the judiciary, on July 5, 2012, the Parliament amended the Law on the Superior Council of Magistracy, by increasing the number of judges in the SCM, while reducing the number of civil society representatives. Moreover, these were appointed by the Parliament...

T: What was the reason for this amendment?

A. T.:
 I do not know.
The government program's spirit is different concerning this issue, and the justice reform strategy sets no intention to reduce the number of civil society representatives in the SCM. Moreover, no member of the Parliament who has voted and with whom I discussed this issue could explain to me the rationale for this amendment in the context of the Government's announced intention to require more transparency in the judiciary.

This change is all the more curious as the Venice Commission itself, respecting the variety of legal systems, recommends states that the Council should have a pluralistic composition in all cases. In this respect, according to the Venice Commission, to meet the requirements inherent to independence of the judiciary, it is sufficient that a substantial part, if not most, of SCM members are judges. In the previous text, before the amendment, this requirement was fully met, or judges accounted for six of the 12 members of the SCM, thus even more than the minimum required by the Venice Commission

T: There have been a lot of discussions recently about AIE's initiative to adopt a new Constitution. How realistic are these plans? 

A. T.: 
I do not think I can express my opinion on the chances of success in adopting a new supreme law. The chances of this project are strictly dependant on the capacity of parliamentary parties to reach a consensus. If this consensus is reached, the text of the new draft Constitution may be shaped. We must be realistic and accept that the supreme law depends on certain realities. Therefore, if these realities evolve in a way that the text of the Constitution does not address them adequately, sufficiently and totally any more, of course certain changes have to be made.

T: Are you not worried about the perspective of adopting a new Constitution in the current political situation?

A. T.:
 We must not be afraid of the prospect of having a new Constitution. What is important in this respect is the way in which such a project will be promoted. A country must have a constitution challenged by its own citizens. The Basic Law should not be the exclusive product of the parliamentary majority, since it will regulate the life of the entire society, including of those who do not support the current majority. Therefore, ideally, the Constitution must be the result of honest discussion and debate throughout the society. Only in this case we can obtain the citizens' commitment and respect for the fundamental law.

Interview by Silviu Tanase 





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