Constitutional recognition of the limitation of judges’ immunity
On 5 September 2013 the Constitutional Court delivered its judgment on the constitutionality of provisions of Article 19, para. (4) and (5) of the Law No. 544-XIII of 20 July 1995 on the Status of Judges and Article II, section 13, para. 3 of the Law No. 153 of 5 July 2012 amending and supplementing certain legislative acts, thereby being abolished para. (6) of the Article 19 of the Law on the Status of Judges, on limiting the immunity of judges (Complaint No. 32a/2012).
At the origin of the case was the complaint of the Supreme Court of Justice, lodged at the Constitutional Court on 7 September 2012, for the constitutional review of provisions whereby the judge’s immunity was excluded for offenses of passive corruption (art. 324 of the Criminal Code) and traffic of influence (art. 326 of the Criminal Code) and for committing an administrative offense.
The author considers that the challenged rules are contrary to the provisions of Articles 6 and 116, para. (1) and (6) of the Constitution, as well as to the international provisions on the independence of judges.
Circumstances of the case
The Constitutional Court ruled on the complaint in the following composition:
Mr Alexandru TĂNASE, President,
Mr Aurel BĂIEȘU,
Mr Igor DOLEA,
Mr Petru RĂILEAN, judges
Conclusions of the Court
Hearing the reasoning of the parties and examining the case file, the Court decided to rally partly to the view expressed by the European Commission for Democracy through Law of the Council of Europe (Venice Commission) in Amicus curiae brief sent at 11 March 2013 on the request of the Constitutional Court.
In particular, the Court held that judicial independence is a compulsory condition for the rule of law state and a fundamental guarantee of a fair trial. Therefore, judicial independence is not a privilege or prerogative of the judge, but a guarantee against external pressure in the process of decision making. This independence will be ensured by the state.
At the same time, the Court emphasized that the independence of the judge does not exclude its responsibility, which is carried out with caution due to the need to ensure full freedom of the judge against all induced pressures.
In this context, the Court noted that the amendments of the art. 19, para. (4) of the Law on the Status of Judges removed the need for agreement (consent) of the Superior Council of Magistracy for the Prosecutor General to start the criminal proceedings against judges that have committed offences specified in Articles 324 (passive corruption) and 326 (traffic of influence ) of the Criminal Code.
The Court accepted the argument of the Parliament that the purpose of this law was the fight against corruption within the judiciary system, as well as the increase of confidence in judges.
In this context, the Court reiterated the findings laid down in Judgment No. 4 of 22 April 2013, in which it emphasized that "[...] Corruption undermines democracy and rule of law, leads to human rights violation, undermines the economy and diminishes the quality of life. Consequently, the fight against corruption is an integral part of assuring the respect for the rule of law."
The Court held that the immunity of the judge is not an absolute guarantee. Therefore, it is the legislator’s task and discretion to determine, by law, the guarantees of independence of judges, including those that are ensuring his inviolability and to assure a balance between independence and responsibility of the judges, as well as the society's trust in justice.
The Court noted that the constitutional principle of judicial independence involves the principle of judges’ responsibility. Independence of the judge does not constitute and can not be construed as a discretionary power or an obstacle to his criminal and disciplinary liability established by law.
The Court found that vesting the Prosecutor General with the power to the criminal proceedings on a judge without the prior consent of the Superior Council of Magistracy is justified by the features of investigating corruption cases, which requires promptness and privacy procedural actions.
Simultaneously, the Court noted that from the challenged norms is not clear which procedural subjects can perform procedural actions (detention, the forced, arrest and search) regarding the judge, the manner in which such procedural actions are carried out, if they can be made with or without the participation of the Prosecutor General. Therefore, the Court found that there are shortcomings in the criminal procedure law, which is why it issued an address to Parliament in order to eliminate them.
The Court held that carrying into effect detention, subjection to forced, arrest, search of the judge by the investigator without the consent of the Prosecutor General or of the Supreme Council of Magistracy, could affect judicial independence.
According to the Court, the consent of the Superior Council of Magistracy or the control of the Prosecutor General of the procedural actions performed by the prosecution in cases of detention, subjection to forced, arrest, search of the judge is a certain guarantee that reduces the risk of abuse, arbitrary actions, and false allegations against the judge by the stakeholders.
The Court concluded that the changes are affected by the compulsive quality law, which creates circumstances for reducing the independence of the judge, with the consequence in violating the Article 116 of the Constitution.
In part about the exclusion of the provision regarding the civil sanctions for judges only by the law court with the consent of the Superior Council of Magistrates, the Court concluded that it allows the civil sanctioning of the judges including directly by the inspector and, thus, the independence of judges could be affected.
In this way, the Superior Council of Magistracy has been deprived of the possibility of applying disciplinary sanctions against judges.
Moreover, the Court has not found, and authorities have not argued the causality connection between the imperative of fighting against corruption and limiting the guarantees in cases of contravention.
Judgment of the Court
Starting from the reasoning invoked above, the Constitutional Court dismissed the complaint of the Supreme Court of Justice related to the exclusion of the Superior Council of Magistracy’s consent to initiate criminal proceedings against judges for offenses under Articles 324 and 326 of the Criminal Code. Therefore, the Court recognized as constitutional the phrase "If the judge committed the offenses specified in Articles 324 and 326 of the Criminal Code of the Republic of Moldova, the SCM consent to initiate criminal action is not necessary" in Article 19 para. (4) of the Law No. 544-XIII of 20 July 1995 on the status of judges, changed by the Law No. 153 of 5 July 2012 amending and supplementing certain acts.
The Court upheld the complaint in respect of the exclusion of the Superior Council of Magistracy’s consent for arrest, the forced and search of a judge in cases of criminal offenses under Articles 324 and 326 of the Criminal Code, until the criminal proceedings are initiated by the Prosecutor General. The Court also upheld the complaint in respect of the provision excluding the application of civil sanctions for judges only by the law court with the consent of the Superior Council of Magistracy. The Court declared unconstitutional the phrase "and the offenses specified in art.324 and art.326 of the Criminal Code of the Republic of Moldova" in Article 19 para. (5) of the Law No. 544-XIII of 20 July 1995 on the status of judges, amended by Law No. 153 of 5 July 2012 amending and supplementing certain acts. The Court also declared unconstitutional Article II section 13 para. (3) of the Law No. 153 of 5 July 2012 amending and supplementing certain 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.