Dismissal of the vice-president of the Court of Accounts – unconstitutional

(Complaint No. 33a/2013)

On 20 September 2013 the Constitutional Court delivered its judgment on the constitutionality of the Parliament’s Decision No. 183 of 12 July 2013 on the dismissal of the member and vice-president of the Court of Accounts (Complaint No. 33a/2013).

Circumstances of the case

At the origin of the case lies the complaint submitted to the Constitutional Court on 19 July 2013, by the MP’s, Messrs Mihai Ghimpu, Valeriu Munteanu, Gheorghe Brega and Mrs. Corina Fusu, on the constitutional review of Parliament’s Decision No. 183 of 12 July 2013, whereby Mr. Tudor Şoitu was released early from office as a member and vice-president of the Court, on the proposal of the President of the Court of Accounts.

The authors of the complaint argued that in case the Parliament intends to dismiss an official, in this case - member of the Court of Accounts – it is compulsory to comply with the provisions of the Constitution and legislation.

The authors of the complaint alleged that by adopting the Parliament Decision No. 183 of 12 July 2013 on the dismissal from office of a member and vice-president of the Court of Accounts, were violated the provisions of the Articles 66, para. (j) and 133 of the Constitution.

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

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEŞU,

Mr Igor DOLEA,

Mr Tudor PANŢÎRU,

Mr Victor POPA,

Mr Petru RĂILEAN, judges

Conclusions of the Court

Hearing the reasoning of the parties and examining the case file, the Court reiterated that Article 135 para. (1), lett. (a) of the Constitution empowers the court of constitutional jurisdiction to review the constitutionality of all acts adopted by the Parliament, without making distinction between normative and individual acts.

The Court found that on the basis of the rule of law state, enshrined in art. 1 para. (3) of the Constitution, is the principle of legality. No law or other legal act contrary to the Constitution has legal force (Article 7 of the Constitution).

In this context, the Court noticed that legality, as a basic principle of the rule of law state, requires compliance with the rule or the legal act establishing higher standards of procedural conditions regarding the enactment of legal norms. Legal behavior aims at both the legislative work of the Parliament and the establishment of internal rules of organization and operation that have a direct connection with the enactment process.

According to its previous jurisprudence (cases Muruianu Urechean Gurin, etc.), the Court examines the constitutionality of the challenged individual acts, regarding the dismissal from office of a member and vice-president of the Court of Accounts, in terms of the competent authority to adopt the act in question and the adoption procedure.

The Court held that Article 66 lett. (j) gives to Parliament the ability to elect and to appoint state officials in cases provided by law.

Furthermore, in accordance with Article 133 of the Constitution, the Court of Accounts is composed of seven members appointed by the Parliament at the proposal of its President.

Paragraph (5) of the constitutional provision cited above states: "Other tasks, as well as the organization and functioning of the Court of Accounts, shall be established by an organic law".

The Court noted that on 12 July 2013, at the initiative of the President of the Court of Account, under Article 22 of the Law on the status of civil servants with public dignity and Article 21 of the Law on the Court of Accounts, Parliament adopted the Decision No. 183, whereby Mr. Tudor Şoitu was released from office as member and vice-president of the Court of Accounts.

Article 22 para. (3) of the Law on the status of civil servants with public dignity lays down that, in case of the appointed dignitary, his mandate will end before the term by revocation or, where appropriate, by dismissal, under the administrative act of the authority which appointed him/her. But according to para. (4) of the same Article, the provisions of the para. (3) do not apply to officials wherefore a special law regulating their activity provides another procedure of early termination of the mandate.

Therefore, the Court held that the provisions of the Article 22 of the Law on the status of civil servants with public dignity are not relevant for the dismissal of a member of the Court of Accounts, since the activity, organization and functioning of the Court of Accounts are established by a special law which requires another procedure for the termination of the mandate before the deadline.

The Court noted that under Article 21 para. (2) of the Law on the Court of Accounts, the member of the Court of Accounts can be removed from office before the termination of his/hers mandate, by the Parliament, on the proposal of the President of the Court of Accounts, only in the following situations:

• loss of citizenship of the Republic of Moldova;
• conviction on the basis of a final and irrevocable Judgment of a Court for committing an offense;
• impossibility, for health reasons, to perform duties for more than 4 consecutive months;
• declaration of disappearance without trace, in accordance with the law;
• incompatibility with other gainful employment;
• activity in a party or other social-political organizations.

This rigidity results from ensuring the independence of the person towards those who voted for his/hers election or appointment. Moreover, based on the role of the Court of Accounts to verify the management and use of public funds, including by the Parliament, the Court considered extremely necessary to ensure the functional independence and irremovability of their members’ tenure, in order to avoid political subordination.

In this context, the Court held that the act of release from from member functions and vice-president of the Court of Accounts has resulted in termination of the tenure of a member of the Court of Accounts. In order to guarantee the independence of the person exercising a public dignity, constitutional and legal rules require that the exercise of the term of office is respected. Ordinarily, dismissal requires a more complicated procedure than the appointment or at least an equal one. Dismissal procedure is specifically prescribed by law for members of the Court of Accounts.

The Court noted that the recall of members of the Court of Accounts may be ruled only by the appointing authority, namely the Parliament, and the cases and conditions of the dismissal are provided by the Law on the Court of Accounts. Therefore, the power given to the Parliament by law is not a discretionary one.

From constitutional and legal norms, the Court held that the challenged act, adopted by the Parliament at the proposal of the President of the Court of Accounts, as a judgment, does not meet the requirements established by the Articles 66, lett. (j) and 133 of the Constitution.

Judgment of the Court

Starting from the reasoning invoked above, the Constitutional Court upheld the complaint of a group of MPs and declared unconstitutional the Parliament Decision No. 183 of 12 July 2013 on the dismissal of the member and vice-president of the Court of Accounts.

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.