Home   |  Media   |  News | Finding of unconstitutionality on the removal from office of the Prosecutor General
20.05
2013

Finding of unconstitutionality on the removal from office of the Prosecutor General

20174 Views    
  print

 

On 20 May 2013 the Constitutional Court of Moldova ruled on the constitutionality of certain Decisions of the Parliament regarding the appointment and removal from office of the Prosecutor General (Complaint No. 15a/2013).

 

Circumstances of the case

 

At the origin of the case was the complaint lodged at the Constitutional Court on 8 May 2013 by the MP Serghei Sîrbu on constitutionality review of the Parliament Decisions No. 103 and No. 104 of 3 May 2013 and No. 98 of 25 April 2013 on the appointment and the removal from office of the Prosecutor General.

 

Subsequently, on the ground of the Article 31 para. (3) of the Code of Constitutional Jurisdiction, the author of the complaint supplemented the matter of the complaint, requesting the Court to carry out the constitutionality review on the Parliament Decision No. 81 of 18 April 2013 on the appointment of the Prosecutor General.

 

The author of the complaint claimed, particularly, that passing the of the Parliament Decisions No. 103 and No. 104 of 3 May 2013 and No. 98 of 25 April 2013, which have finally resulted with the abrogation of the Decision No. 81 of 18 April 2013 regarding the appointment of the Prosecutor General, is contrary to the provisions of the Articles 1, 2, 6, 7, 39, 64, 65 para. (1) let. c) and j), 74 para. (2), 76, 124 para. (3), 125 para. (1) and (3) of the Constitution.

 

Given the fact that, in the Report of the special Committee on examining the circumstances of passing the Parliament Decision No. 81, it is ascertained that “the candidate for Prosecutor General was proposed obviating the provisions of the Article 125 para. (1) of the Constitution”, the author of the complaint requested a constitutionality review on the Decision No. 81 as well.

 

The author of the complaint requested the suspension of (juridical) action of the challenged acts and the urgent examination of the complaint. Examining these matters, the Court rejected the claim for suspension of action of the challenged acts in favour of urgent examination of the complaint.

 

The Constitutional Court ruled on the complaint in the following composition:

 

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEȘU,

Mr Victor POPA,

Mr Petru RĂILEAN, judges

Conclusions of the Court

 

Hearing the reasoning of the parties concerned, the Court reaffirmed that the Article 135, para. (1), let. (a) of the Constitution empowers the Court with the competence of constitutional review on all the acts passed by the Parliament, without making difference between the normative acts and the individual ones.

 

The Court carried out the legal appreciation of the legal circumstances, within the limits of the constitutional provisions, of the legal principles generally recognized and of the reasons laid out in its previous jurisprudence.

 

The Court held that the principle of legality lies at the foundation of a rule of law state, principle enshrined in the Article 1 para. (3) of the Constitution, is. No law or any other legal act, which contravenes the provisions of the Constitution, shall have legal force (Article 7 of the Constitution).

 

In this context, the Court mentioned that legality, as a basic principle of the rule of law state, has to be seen as being the compliance of the norm or of the legal act with the superior norms which are establishing the procedural conditions regarding the proclamation of the legal norms. The legal action refers both to the enactment activity of the Parliament and the establishment of the internal norms of organization and functioning, which are directly connected to the process of enactment.

 

Under its previous case-law (the cases of Muruianu, Urecheanu etc.), the Court reviews the constitutionality of acts of individual nature, regarding the officials who are exponents of a special public interest, elected or appointed, during their mandate, under the aspect of competent authority to enact the respective act and the passing procedure.

 

 

 

  1. The competence of the authority to pass the Decision No. 81:

 

Under the Article 66, let. j) of the Constitution (basic powers of the Parliament), the Parliament elects and appoints State’s officials, as foreseen by law.

 

In line with the provisions of the Article 125 of the Constitution, the Prosecutor General is appointed by the Parliament following the proposal submitted by its Speaker, for a term of 5 years.

 

On 18 April 2013, the Parliament, at the initiative of its President, passed the Decision No. 81, by which Mr Corneliu Gurin was appointed as Prosecutor General for a term of 5 years.

 

The legality and the compliance with of the requirements, established by the law, for the appointment of Mr Corneliu Gurin as Prosecutor General were verified by the Juridical Committee on Appointment and Immunity of the Parliament, which presented a Report at the sitting of the Parliament, in which concluded that this candidate meets all the necessary requirements for the appointment in office.

 

On 18 April 2013 the Parliament passed the Decision No. 81, by which Mr Corneliu Gurin was appointed as Prosecutor General of the Republic of Moldova, with 51 pro votes of the MPs present at the sitting (according to the shorthand report presented to the Court).

 

Drawing from the constitutional and legal norms, the Court concluded that the challenged act, being passed by the Parliament at the proposal of the President of the Parliament, as a decision, corresponds to the requirements provided by the Articles 66, let. j) and 125, para. (1) of the Constitution.

 

 

  1. The passing procedure of the Decision No. 81:

 

Under the Article 74, para. (2) of the Constitution, the Parliament Decisions are passed with the majority vote of the MPs present at the sitting.

 

In order to rule on the compliance with the voting procedure, the Court established that this depends on the conclusions regarding the constitutionality of the Parliament Decisions No. 98, 103 and 104.

 

The Court noted that, on the base of the statements of a number of MPs, as if they did not vote for passing the Decision No. 81, there was created by the Decision No. 98 on 25 April 2013, the special Commission on examining the circumstances of passing by the Parliament the Decision No. 81.

 

The Court found that, under the Articles 32 and 33 of the Regulations of the Parliament, the Legislative Authority is in entitled to establish special committees on examining the draft laws, on laying out certain complex bills or for other purposes, indicated in the decision of creating the respective committee.

 

For that purpose, the Court pointed out that the Parliament had the right to establish a special Committee on examining the circumstances of passing by the Parliament the Decision No. 81.

The special Committee submitted a Report to the Parliament, in which were found, essentially, violations regarding the profile of the candidate and the voting procedure.

 

In the Decision No. 103 on 3 May 2013, the Parliament approved the Report of the special Commission and proposed the abrogation of the Parliament Decision No. 81.

 

The Court noted that, regardless of the violation of certain provisions of legislative technique (the initiative of the members of the special Committee to abrogate the Decision No. 81 was registered a day earlier before adopting the Decision No. 103, in which the Parliament proposed to the same Parliament the abrogation of the Parliament Decision No. 81 on 18 April 2013 on the appointment of Prosecutor General), the decisions on establishing the special Committee and the approval of its Report, in this case are not producing legal effects and, from this perspective, cannot be declared unconstitutional.

 

For this reasons, the Court decided to cease the process of constitutional review of the Parliament Decisions No. 98 and 103, regarding the establishment of the special Commission and its Report.

 

As with regards to the Decision No. 104, by which the Decision No. 81 was abrogated, the Court noted that the vote which already had effect cannot be revised. The reviewing procedure of the vote is not and cannot be foreseen, because it would block the legislative process and it would compromise the legislative authority of the state, it would affect the security of the legal relationship and even the national security, if the possibility of coming-back, after a period of time, would be granted for the votes expressed in passing certain decisions or laws, emerging from momentary political or personal interests.

 

Moreover, the Court noted that the Decision on the appointment of the Prosecutor General shall be passed with the majority vote of the Parliament members present at the sitting. According to the verbatim report, at the sitting of the Parliament was registered the presence of 95 MPs. In this context, the majority of the members present at the sitting constituted 48 MPs. Thus, even in case that two votes, out of those 51, are annulled, it will remain 49 pro votes, which represents more than the majority of the Parliament members present at the sitting, necessary for passing the decision.

 

As with regards to the reasons for not corresponding to the legal requirement on the necessary experience of the person, the Court noted that it cannot be appreciated by the Court if this corresponds or not to the legal requirements as a matter susceptible to the constitutional review. This issue has a nature of opportunity and can be judged by the Supreme Legislative authority, and not by the constitutional jurisdiction authority. Since these are the practical circumstances, the Court cannot analyse them.

 

The Court noted that, under the provisions of the Regulation of the Parliament, only the Juridical Committee on Appointment and Immunity of the Parliament is in charge with reporting to the Parliament whether a candidate to a public office complies with the legal requirements. The Report of the Juridical Committee on Appointment and Immunity was positive; it was neither annulled, nor revised.

 

In this context, the Court notes that the abrogation of the appointment act had the effect of terminating the mandate of the Prosecutor General. Aiming at guaranteeing the independence of the person that exercises a public office, the constitutional and legal norms are imposing respect for the term of the mandate. As a rule, the dismissal represents a more complicated procedure than the appointment or at least an equivalent one. The dismissal procedure is expressly stipulated in the Law on the Prosecutor General.  Therefore, under the Article 66, para. (4) of the Law regarding the Prosecution, the Prosecutor General can be removed from office by the Parliament, prior to the expiration of his/her mandate, in the following circumstances:

1)     “on the proposal of the President of the Parliament”;

2)     In the following cases:

“a) Resigning under the Article 67, para. (2);

b) Applying for resignation from personal initiative;

g) Finding of a final sentence of conviction;

h) Loss of the citizenship of the Republic of Moldova.”

 

This rigidity results from the reasoning of ensuring the independence of the person towards those who voted for his/her election or appointment.

 

The Court noted that Mr Corneliu Gurin was sworn in the office before the Parliament, a fact registered in the shortand report of the sitting of the Parliament on 18 April 2013. Following the swearing in office, Mr Corneliu Gurin officially entered for duty as a Prosecutor General of the Republic of Moldova, and there is assumed the act of his appointment as a Prosecutor General (Parliament Decision No. 81 on 18 April 2013) was exhausted.

 

In this context, the Court found that the removal from office of the Prosecutor General took place obviating the legal norms on this matter, and it was adopted without the proposal of the Speaker of the Parliament and without obeying other legal requirements.

 

In light of the above mentioned, the Court concluded that Parliament Decision No. 104 on 3 May 2013 on the abrogation of the Parliament Decision No. 81 on 18 April 2013 regarding the appointment of the Prosecutor General contravenes to the constitutional regulations enshrined in the Art. 1, para. (2), Art. 2, para. (2), Art. 6, Art. 7, Art. 39, Art. 76 and Art. 125, para. (1) of the Constitution of the Republic of Moldova, as well as the provisions of other legislative acts which aimed at developing constitutional norms.

 

Analysing the mentioned legal framework, as well as analysing the verbatim report of the sitting of the Parliament on 18 April 2013, the Court notes that when passing the Decision No. 81 on the appointment of the Prosecutor General the provisions of the constitutional norms were respected.

 

Judgment of the Court

 

Starting from the reasoning invoked above, the Constitutional Court ceased the process of constitutional review of the Parliament Decision No. 98 on 25 April 2013 regarding the establishment of a special Committee on examining the circumstances of passing by the Parliament the Decision No. 81 on 18 April 2013 on the appointment of the Prosecutor General and the Decision No. 103 on 3 May 2013 on the special Committee’s Report for examining the circumstances of passing by the Parliament the Decision No. 81 on 18 April 2013 on the appointment of the Prosecutor General. At the same time, the Court declared unconstitutional the Parliament Decision No. 104 on 3 May 2013 regarding the abrogation of the Decision No. 81 on 18 April 2013 on the appointment of the Prosecutor General. Simultaneously, the Court found constitutional the Parliament Decision No. 81 on 18 April 2013 on the appointment of the Prosecutor General. The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Journal of the Republic of Moldova.

 

 
Phone.: +373 22 25-37-08
Fax.: +373 22 25-37-46
Total visits: 6810907  //   Visitors yesterday: 2189  //   today: 681  //   Online: 88
Quick access