Republic of Moldova CONSTITUTIONAL COURT Unofficial translation JUDGMENT ON CONSTITUTIONAL REVIEW of certain provisions of the Law no. 1115-XIV of 5 July 2000 amending the Constitution of the Republic of Moldova (modality of electing the President) (Complaint no. 48b/2015) CHIŞINĂU 4 March 2016 JUDGMENT ON CONSTITUTIONAL REVIEW OF CERTAIN PROVISIONS OF THE LAW NO. 1115-XIV OF 5 JULY 2000 AMENDING THE CONSTITUTION OF THE REPUBLIC OF MOLDOVA (MODALITY OF ELECTING THE PRESIDENT) 2 In the name of the Republic of Moldova, The Constitutional Court, sitting in the following composition: Mr Alexandru TĂNASE, President, Mr Aurel BĂIEŞU, Mr Igor DOLEA, Mr Victor POPA, judges, With the participation of Mrs Ludmila Chihai, registrar, Considering the complaint submitted on 12 November 2015 and registered on the same date, Having examined the complaint in a public plenary hearing, Considering the acts and files of the case, Having deliberated in a private sitting, Delivers the following judgment: PROCEDURE 1. The case originated with the complaint submitted to the Constitutional Court on 12 November 2015, according to Article 25 let. h) of the Law on the Constitutional Court and Article 38 para. (1) let. h) of the Code of Constitutional Jurisdiction, by 18 MPs of the parliamentary faction of the Liberal Democratic Party of Moldova: Valeriu Ghileţchi, Tudor Deliu, Liliana Palihovici, Angel Agache, Maria Ciobanu, Vladimir Hotineanu, Chiril Lucinschi, Grigore Cobzac, Vadim Pistrinciuc, Iurie Ţap, Ion Balan, Nae-Simion Pleşca, Ştefan Creangă, Octavian Grama, Gheorghe Mocanu, Mihaela Spatari, Aliona Goţa, and Victor Roşca, on the constitutionality of section 2 in its entirety and the phrase „except the case provided for in Article 78 para.(5)" in section 5 of Article I of Law no.1115-XIV of 5 July 2000 amending the Constitution of the Republic of Moldova, that have modified the manner of electing the President of the Republic of Moldova. 2. The authors of the complaint in the present case requested verification of the compliance of certain provisions of the Law no. 1115/2000 referring to the amendments operated in Articles 78 and 85 para. (4) of the Constitution, taking into account the procedure of adoption thereof, with Article 135 para. (1) let. c) and Article 142 para. (1) of the Constitution, as well as with the constitutional principle of rule of law enshrined in the Preamble and in Article 1 para. (3) of the Constitution. 3. In the public hearing the author of the complaint fleshed out the subject of the complaint, specifying that only the control of constitutionality of the amendments referring to the mechanism of electing of the President of the Republic of Moldova by a vote of 3/5 of the total number of MPs has been requested. The author does not challenge other amendments, which did not essentially alter the content of the original draft law upon which the JUDGMENT ON CONSTITUTIONAL REVIEW OF CERTAIN PROVISIONS OF THE LAW NO. 1115-XIV OF 5 JULY 2000 AMENDING THE CONSTITUTION OF THE REPUBLIC OF MOLDOVA (MODALITY OF ELECTING THE PRESIDENT) 3 Constitutional Court had delivered its opinion and which did not affect the unity and balance of the constitutional matter. 4. In the same context, the authors of the complaint requested the Court, following an interpretation of Article 135 para. (1) let. c) in conjunction with Article 141 para. (2) of the Constitution, to explain: „1) Whether it is necessary and/or mandatory for a repeated Opinion of the Constitutional Court to be delivered on the amendments advanced by MPs and accepted by the Parliament in the second reading of a draft law revising the Constitution, following the submission into the Parliament of the draft law along with the Opinion of the Constitutional Court? 2) Whether the procedure of adopting a draft constitutional law that has been amended substantially and conceptually by MPs during the second reading without the delivery of a repeated Opinion of the Constitutional Court, has been violated? 3) In case the Constitutional Court delivers a repeated Opinion on a draft law revising the Constitution that has been substantially amended during the second reading in Parliament, shall this draft law be subjected to all the procedures provided in Article 143 para.(1) of the Constitution?” 5. By the Decision of the Constitutional Court of 7 December 2015, the complaint was declared admissible, without prejudicing the merits of the case. 6. In the process of examination of the complaint, the Court requested the opinions of the Parliament, President of the Republic of Moldova and of the Government. 7. In the public hearing of the Court, the complaint was presented by Mr Valeriu Ghileţchi, Member of Parliament and one of the authors of the complaint. The Government was represented by Mr Eduard Serbenco, Deputy Minister of Justice. The Parliament submitted its written opinion and did not delegate a representative to participate in the public hearing. THE FACTS 8. On 23 May 1999 within the republican consultative referendum, in which 58.33% of voters took part, 55.33% answered positively the question „Would you be in favour of amending the Constitution with the view to establish a presidential system of government in the Republic of Moldova where the President of the Republic would form and lead the government, as well as would bear responsibility for the results of the country’s government?”. This question has been answered negatively by 30.85% of voters. 9. By the Judgment no. 32 of 15 June 1999 the Constitutional Court confirmed the results of the republican consultative referendum, however the Court decided that it „is of consultative nature and the results thereof have no legal effects”. JUDGMENT ON CONSTITUTIONAL REVIEW OF CERTAIN PROVISIONS OF THE LAW NO. 1115-XIV OF 5 JULY 2000 AMENDING THE CONSTITUTION OF THE REPUBLIC OF MOLDOVA (MODALITY OF ELECTING THE PRESIDENT) 4 10. Contrary to the opinion expressed by the voters in the consultative referendum, by the Law 1115-XIV of 5 July 2000 the Parliament had revised the Constitution of the Republic of Moldova, amending, inter alia, Article 78. As a consequence, if until that date the President was directly elected by citizens, following the constitutional revision the Parliament was vested with the right to elect the President of the Republic of Moldova by the vote of 3/5 of the MPs (61 MPs). 11. Immediately after the constitutional revision, the Parliament failed to elect the President of the Republic of Moldova in two ballots (on 4 and, respectively, on 6 December 2000), since none of the candidates has obtained the necessary number of votes in order to be elected as Head of the state. The Parliament had also failed to elect the President of the Republic of Moldova within the second attempt of repeated elections (on 21 December 2000) due to the lack of the required number of MPs. As a result, by the Presidential Decree no. 1843 of 31 December 2000, the Parliament was dissolved and early parliamentary elections have been organized. 12. On 4 April 2001 the newly-elected Parliament voted to elect the President of the Republic of Moldova, pursuant to Article 78 of the Constitution, in the first ballot. 13. On 4 April 2005, the Parliament elected the President of the Republic of Moldova, pursuant to Article 78 of the Constitution, in the first ballot. 14. On 20 May 2009, the Parliament carried out regular procedures to elect the President of the Republic of Moldova; however none of the candidates obtained the necessary number of votes. The Parliament failed to elect the President of the Republic also within the repeated elections of 3 June 2009, as none of the candidates obtained the necessary number of votes. As a consequence, by the Presidential Decree no. 2243 of 15 June 2009, the Parliament was dissolved and early parliamentary elections took place. 15. Following the resignation of the acting President on 11 September 2009, the interim office was taken over by the Speaker of the Parliament. 16. On 10 November 2009, within the ordinary procedure of election of the President only one person ran for the office of the President of the Republic of Moldova; however the necessary number of votes were not cumulated. Within the repeated elections that took place on 7 December 2009 the same candidate was proposed for the office of the President of the Republic of Moldova and again failed to obtain the necessary number of 61 votes. 17. On 5 September 2010 there was an attempt to amend the Constitution by way of referendum on the introduction of direct elections of the President by the citizens. However, the referendum has been invalidated due to a low turnout. 18. In this context, by the Presidential Decree no. 563 of 28 September 2010 the Parliament was dissolved. JUDGMENT ON CONSTITUTIONAL REVIEW OF CERTAIN PROVISIONS OF THE LAW NO. 1115-XIV OF 5 JULY 2000 AMENDING THE CONSTITUTION OF THE REPUBLIC OF MOLDOVA (MODALITY OF ELECTING THE PRESIDENT) 5 19. The interim office of the President was ensured by the President of the Parliament elected in this office on 30 December 2010 and appointed as Interim President by Parliament Decision no. 6 of 30 December 2010. 20. On 16 March 2012 within repeated elections the Parliament elected the President of the Republic of Moldova according to Article 78 of the Constitution, thus bringing to an end a period of nearly 3 years of interim office. RELEVANT LAW 21. Relevant provisions of the Constitution (Official Gazette of the Republic of Moldova of 1994, no. 1) are as follows: Preamble „[...] CONSIDERING rule of law, civic peace, democracy, human dignity, fundamental human rights and freedoms, the free development of human personality, justice and political pluralism as supreme values [...]” Article 1 The State of the Republic of Moldova „[...] (3) Governed by the rule of law, the Republic of Moldova is a democratic State in which the dignity of people, their rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values and shall be guaranteed.” Article 134 Statute [of the Constitutional Court] „(1) The Constitutional court is the sole authority of constitutional jurisdiction in the Republic of Moldova.