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The Court delivered a positive Opinion on the amendment to the Constitution on the competence and structure of the Constitutional Court of Moldova
On 6 December 2016, the Constitutional Court of Moldova has delivered its Opinion on the draft law amending the Constitution.
Circumstances of the case
The case originated in a notification of the Government lodged with the Constitutional Court on 28 November 2016, requesting the approval of the draft law on the amendment to the Constitution related to the powers and structure of the Constitutional Court.
In essence, the draft law provides the following:
- With regards to the powers of the Constitutional Court:
(1) The right of law-courts of all levels to refer to the Constitutional Court exceptions of unconstitutionality.
- On the structure of the Constitutional Court:
(1) The number of constitutional judges is to be increased from 6 to 7.
(2) The seventh judge is to be appointed by the President of the Republic of Moldova.
- On the term of office of constitutional judges:
(1) The appointment of Constitutional Court’s judges for a 9-year term, which may not be renewed.
(2) The term of office of Constitutional Court’s judges (appointed for a 6-year term) performing their duties at the time of entry into force of the law, is to be extended by 3 years.
The Constitutional Court of Moldova ruled on the notification in the following composition:
Mr Alexandru TANASE, president,
Mr Aurel BĂIESU,
Mr Igor DOLEA,
Mr Victor POPA
Mr Veaceslav ZAPOROJAN, judges
Conclusions of the Court
Examining the draft of the constitutional law, the Court held that the initiative to revise the Constitution, lodged by the Government, is submitted by the authorised subject in line with Article 141 para. (1) letter c) of the Constitution.
The Court found that the draft law aims at making constitutional amendments concerning: (1) the powers of the Constitutional Court, in the part related to solving exceptions of unconstitutionality; and (2) the structure of the Constitutional Court and the term of office of constitutional judges.
The Court noted that establishing – by the draft law – the right of law-courts of all levels to refer to the Constitutional Court exceptions of unconstitutionality to be solved, supplementary to the Supreme Court of Justice, is based on Judgment no. 2 of 9 February 2016, which held that the provisions of Article 135 para (1) letter g) of the Constitution shall not be interpreted as restricting the right of other ordinary law-courts to refer to the court of constitutional jurisdiction.
Regarding the proposal to increase the number of judges, the Court noted that according to best practices, the number of constitutional judges has to be an odd one, in order to exclude certain deadlocks in decision making and to avoid voting parity.
Also, in respect of establishing the term of office for a period of 9 years without the possibility of renewal, the Court held that this constitutional amendment is aimed at guaranteeing the independence of constitutional judge in the exercise of their duties. Thus, the Court noted in its caselaw that judges should enjoy unfettered freedom to decide cases impartially, in accordance with their beliefs and their own way of interpreting the facts and in line with the legal provisions in force.
The Court noted that the draft law complies with the limits imposed by Article 142 para. (2) of the Constitution, in that it does not supress the rights and fundamental freedoms of citizens or guarantees thereto. The Court emphasized that the proposed amendments aim at strengthening the activity of the Constitutional Court, as the sole body of constitutional jurisdiction in the Republic of Moldova.
The Opinion of the Court
For these reasons, the Court found that the initiative to amend the Constitution is not in breach of the limits of revision provided by Article 142 of the Constitution and may be submitted before Parliament for consideration.
At the same time, the draft constitutional law can be adopted following at least 6 months from the submission date of the initiative to amend the Constitution.
The Court's opinion is final, cannot be subject to any appeal, shall enter into force on the date of passing and shall be published in the Official Journal of Moldova.
This press-release is also available in its original version – in Romanian language.