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17.11
2015

Secret ballot and absolute majority - unconstitutional. Procedure on lifting parliamentary immunity of the MP Vladimir Filat is constitutional

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On 17 November 2015, the Constitutional Court ruled on the constitutionality of Parliament’s Decision no. 172 of 15 October 2015 on the consent of lifting parliamentary immunity of MP Vladimir Filat.

 

Circumstances of the case

 The case originated in the complaint lodged with the Constitutional Court on 19 October 2015 by 18 MPs of the parliamentary faction of the Liberal Democratic Party of Moldova.

 In fact, on 15 October 2015 the Prosecutor General informed the Parliament that on 13 October 2015 there was launched a criminal investigation against the MP Vladimir Filat, based on reasonable doubt of committing the crimes provided by Articles 324.3.a, 324.3.b and 326.3.a of the Criminal Code and requested the lifting of his parliamentary immunity.

 On the same day, the Parliament of the Republic of Moldova, by the vote of 79 MPs, adopted the decision on the consent of lifting parliamentary immunity for apprehending, arresting, searching, and suing the MP Vladimir Filat.

 The authors of the complaint invoked violations of the procedures prescribed by law and with regards to presumption of innocence. In their view, the challenged act is contrary to Articles 1.3, 21, 66.a and 66.j of the Constitution.

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

Mr Igor DOLEA, President of the sitting,

Mr Aurel BĂIEȘU,

Mr Tudor PANȚÎRU,

Mr Victor POPA, judges

Conclusions of the Court

Hearing the reasoning of the parties and examining the files of the case, the Court held that under Article 70.3 of the Constitution, the Member of Parliament may not be apprehended, arrested, searched, except for the cases of flagrant misdemeanour, or sued without prior consent of the Parliament and upon hearing of the member in question.

Concerning the adoption procedure, the Court highlighted the requirements of constitutional rank, which shall be observed when lifting parliamentary immunity.

In this context, the Court held that when it comes to passing legal acts of the Parliament, the Basic Law provides for in Article 74 the essential regulations on legislative procedure, including the decisional quorum necessary for adopting these legal acts. Organic laws shall be adopted by a vote of the majority of the elected MPs. Ordinary laws and decisions shall be adopted by a vote of the majority of the present MPs.

Therefore, in line with constitutional provisions, under the condition that the lawful quorum of the session is respected, the regulation governing the adoption of decisions by the Parliament provides for a simple majority of votes, subsequently half of all MPs present at the session plus one. Exceptions to this rule are expressly provided for by the Basic Law (election or impeachment of the President of the Republic of Moldova, election or revocation of the President of the Parliament, casting a no confidence vote for the Government, and adoption of a motion of censure).

Stemming from the analysis of these constitutional provisions, the Court held that all the decisions adopted by the Parliament, except those related to the aforementioned cases, shall follow the regulation laid down by Article 74.2 of the Constitution and shall be adopted by a majority of present members. The Constitution makes no distinction between the adopted decisions based on their subject matter.

The Court also held that the Basic Law does not provide for special requirements on the nature of the ballot (open or secret) for lifting parliamentary immunity.

In this context, the Court noted that the constitutional principle of transparency of the working sessions of the Parliament includes the right of access to information of every citizen with respect to the activity of all MPs. Thus, the MPs must prove transparency in their parliamentary activity, including the votes cast by each MP individually.

The Court underscored that, without an open, transparent and traceable ballot, the citizen cannot track the activity of the MP representing him/her and therefore cannot properly assess the way s/he is represented in the Parliament. In other words, MPs must take responsibility for the expressed political positions, primarily by an open ballot voting.

Thus, in order to ensure the constitutional principle of transparency and responsibility, each MPs ballot is open, except the cases provided for in an express and exhaustive manner in the Constitution.

The Court held that the Basic Law provides for only three situations where Parliament adopts decisions by secret ballot: (1) election of the President, (2) election and (3) revocation of the Speaker of the Parliament.

In its previous jurisprudence, the Court held that a person's right of access to information, as guaranteed by Article 34 of the Constitution, cannot be restricted unless it is based on a real and justified purpose for safeguarding a legitimate interest regarding the protection of citizens or national security, and the public interest of being informed does not prevail.

Stemming from the analysis of these constitutional provisions, there results that all Parliament decisions, except for those related to the aforementioned cases, as well as in emergency situations regarding the protection of citizens or national security, shall be adopted by open ballot voting.

The Court held that, under the principle of regulatory autonomy, provided for by Article 64.1 of the Constitution, the Parliament enjoys the right to decide on its own organisation and on operation of parliamentary workings. Nevertheless, this provision can operate exclusively within the limits set by the Basic Law and cannot be exercised in a discretionary way, infringing upon the mandatory norms on parliamentary procedure.

The Parliament enjoys full freedom to decide on the request for consent of lifting the immunity, only in compliance with constitutional procedure, by adopting a decision in the plenary session, thus exercising its right to approve or reject the request on such a matter.

The Court found that the requirements on decisional quorum (in this case, the vote of the majority of the present MPs) and on open ballot are requirements of constitutional rank, while the procedural rules are provided by the Regulation of the Parliament, under the principle of regulatory autonomy and are not susceptible to constitutional review.

Thus, in compliance with the Constitution, the Parliament shall decide on the consent of lifting parliamentary immunity by an open ballot of the majority of the present MPs.

Stemming from the above reasoning, the Court concluded that the provisions of the Regulation of the Parliament and those of the Law on the status of MP providing for the decision on lifting parliamentary immunity of the MP to be adopted „[...] by the vote of the majority of the elected MPs, expressed secretly", are unconstitutional.

Therefore, in this case, the open ballot does not amount to a violation of the Constitution; on the contrary, the secret ballot, not being an express requirement of constitutional rank for lifting the immunity, is in breach of the Constitution.

In the same context, the Court held that, according to the transcript of the Parliament, the request for consent of apprehending, arresting, searching, and suing the MP Vladimir Filat was approved by 79 votes. Thus, at the moment of passing the challenged act, there had been met the requirement on the quorum for the majority of present MPs, in order to adopt the decision of the Parliament on the consent of apprehending, arresting, searching, and suing.

In regard to the alleged infringement of the presumption of innocence, the Court noted that it does not affect the proceedings of lifting the immunity, as it refers to procedural measures and actions that shall be applied by the competent authority, not to the guilt or innocence of the MP.

Moreover, the ballot of the Parliament does not make it binding, in any way, for the competent agency to order the respective procedural measure or action. The apprehension, arrest, searches and suing shall be ordered by the competent authority and not by the Parliament.

The parliamentary committee empowered to draft the opinion and the report, as well as the plenum of the Parliament, are not jurisdictional bodies, with competence to examine the correctness or legality of the legal classification of facts nor to determine the guilt or innocence of the person, these being exclusive competences of the judiciary.

In this context, the Court notes that Parliament's consent does not represent a criminal procedure act. Decisions taken in this regard by the bodies of the Parliament, which are political bodies by definition, are thus political and not legal decisions, therefore there is no need for them to meet the same motivational criteria as procedural acts of judicial bodies.

The decision taken by the Parliament on the request in this regard does merely assess whether it is made in good faith, in the spirit of institutional loyalty and whether it concerns facts, which by the aforementioned means, justify the interference in the status of MP. A contrary conduct would violate the exclusive powers of the judiciary and checks and balances principle.

In view of this, the Court concluded that, in this case, the request submitted to the Parliament contains the minimum necessary for the MPs to be informed and does not lead to the substitution of the Parliament in specific attributes of the judiciary. Thus, the infringement of presumption of innocence cannot be sustained.

In the same context, the Court underscored that arraignment and the recognition of the defendant status does not mean the recognition of his/her guilt, which represents an exclusive competence of the court of law. Arraignment consists of submitting the prosecution case documents to the competent court, the latter, based on the presented evidence, being entitled to sentence or acquit the individual.

Stemming from the above conclusions, the Court held that the adoption of the challenged decision met the requirements of the Constitution on the adoption of decisions by the Parliament, for the purposes of a quorum for adoption and the way of voting. Concerning the rest of procedures established by the Regulation of the Parliament, the Court is not competent to rule.

The Court also issued an Address to the Parliament, in view of eliminating several legislative provisions contrary to the Constitution, with regard to the decisional quorum and the open vote.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court held that in the sense of Article 70 of the Constitution, in conjunction with Articles 1.3 and 7 of the Constitution, the Parliament cannot establish other decisional quorums than those expressly provided for by the Constitution. At the same time, for the purposes of Article 68 of the Constitution, in conjunction with Articles 34, 39 and 65 of the Constitution, in order to ensure the constitutional principle of transparency and responsibility, each MP’s ballot is open, except for the cases provided in an express and exhaustive manner by the Constitution and in exceptional situations related to protection of citizens or national security. The Court ordered that, until the amendment by the Parliament of legislative provisions enshrining the secret ballot and decisional quorums in other cases than those provided for by the Constitution, the constitutional provisions shall be applied directly.

The Court declared unconstitutional paragraphs (6) and (7) and the word "secret" in paragraph (8) of Article 97 of the Regulation of the Parliament adopted by the Law no. 797-XIII of 2 April 1996, and paragraph (5) of Article 10 of the Law no. 39-XIII of 7 April 1994 on the status of MP.

Consequently, the Court rejected as unfounded the complaint and recognised the constitutionality of Parliament’s Decision no. 172 of 15 October 2015 on the consent of lifting parliamentary immunity of MP Vladimir Filat.

 

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 Gazette of the Republic of Moldova.

 
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