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02.07
2013

Finding of constitutionality on certain provisions regarding the challenge procedure on the acts of the Superior Council of Magistracy and the transfer of judges (Complaint No. 36a/2012)

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(Complaint No. 36a/2012)

 

On 2 July 2013 the Constitutional Court of Moldova delivered the judgment on the constitutional review of certain provisions regarding the challenge procedure on the acts of the Superior Council of Magistracy and the transfer of judges (Complaint No. 36a/2012).

 

 

Circumstances of the case

 

The case originated in the complaint lodged with the Constitutional Court on 15 November 2012 by a group of MPs - Maria Postoico, Artur Reşetnicov, Anatolie Zagorodnîi, Serghei Sîrbu and Igor Vremea, on the constitutional review of some provisions of the Article 25 of the Law No. 947-XIII of 19 July 1996 regarding the Superior Council of Magistracy, in version of the Law No. 153 of 5 July 2012 for the change and amendment of certain legislative acts and of the Article VIII, para. (6) of the Law No. 153 of 5 July 2012 for the change and amendment of certain legislative acts.

 

The authors of the complaint alleged, in particular, that the challenged provisions create prejudices for the free access to justice and contravene to the Articles 20, 54, 7, 60 para. (1), 72 para. (3) let. e), 116 para. (1) and 123 of the Constitution.

 

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

 

Mr Tudor PANŢÎRU, Chairman of the public sitting,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mr Petru RĂILEAN, judges

 

Conclusions of the Court

 

Hearing the reasoning of the parties, the Court noted that the magistrates and other persons mentioned in the challenged provisions have the right to the free access to justice, provided by the Article 20 combined with the Article 54 of the Constitution.

 

Contrary to the allegations of the authors of the complaint, the Constitutional Court, taking in consideration it’s own case-law, as well as the case-law of the European Court of Human Rights, does not consider that the right to free access to justice, provided by the Article 20 of the Constitution of the Republic of Moldova, is an absolute right.

 

The Constitutional Court held that the right to access to justice can be restricted by the legislator on condition that the essence of this right is not eliminated.

 

The Court noted that the Article 25 of the challenged Law does not exclude the right of the magistrates to challenge the decisions of the Superior Council of Magistracy to the Supreme Court of Justice and it only restricts this right at “the part which refers to the procedure of issuing/passing”, namely at the legal part, which means the control of the compliance, by the Superior Council of Magistracy, of the procedural guarantees pertaining to a fair trial.

 

Also, the Constitutional Court declared constitutional the delegation, by the legislator to the Superior Council of Magistracy, of the right to establish by an internal Regulation the criteria of selecting the judges that shall be transferred, with their consent, to other courts.

 

 

Judgment of the Court

 

Starting from the reasoning invoked above, the Constitutional Court declared constitutional the expression “the part which refers to the procedure of issuing/passing” from the Article 25 of the Law No. 947-XIII of 19 July 1996 on the Superior Council of Magistracy, in version of the Law No. 153 of 5 July 2012 for the change and amendment of certain legislative acts and the expression “under the criteria adopted by the Superior Council of Magistracy” of the Article VIII, para. (6) of the Law No. 153 of 5 July 2012 for the change and amendment of certain legislative acts.

 

 

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.

 
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