Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of December 5, 2017 No. 32

About exceptional case of illegality of some provisions of the Law No. 271-XVI of December 18, 2008 on check of persons holding the state positions, and candidates for the state positions (check of judges by Service of information and safety) (the address No. 115g/2017)

Constitutional court in structure:

Tudor Pantsyru, chairman,

Auryl to Beesh,

Igor Dolya,

Victoria Iftodi,

Vyacheslav Zaporozhan, judges,

with the assistance of the secretary of meeting Georgy Renitse,

in view of the address provided and registered on August 23, 2017

having considered the specified address in open plenary meeting, considering acts and case papers,

having carried out discussion in the consultative room,

issues the following decree.

Points of order

1. The address about exceptional case of illegality of Art. 5 of the item and), Art. 14 and Art. 15 of the h formed the basis for consideration of the case. (2), h. (4) and h. (5) the Law No. 271-XVI of December 18, 2008 on check of persons holding the state positions, and candidates for the state positions for parts, the concerning check of candidates for judgeship and effective judges by Service of information and safety, provided according to the petition Domniki Manole and the lawyer Vioriki Greka within the case No. 3-26/17, considered in the Highest trial chamber.

2. The address was brought into the Constitutional court on August 23, 2017 by board of the Highest trial chamber according to provisions of Art. 135 of the h. (1) the item and) and the item g) Constitutions in the light of its interpretation by the Resolution of the Constitutional court No. 2 of February 9, 2016, and also Regulations on procedure for consideration of the addresses brought into the Constitutional court.

3. Authors of the address consider that provisions of Art. 5 of the item and), Art. 14 and Art. 15 of the h. (2), h. (4) and h. (5) the Law No. 271-XVI of December 18, 2008 on check of persons holding the state positions, and candidates for the state positions for parts, the concerning check of candidates for judgeship and effective judges by Service of information and safety contradict Art. 6 and Art. 116 of the h. (1) and h. (2) Constitutions as separately, and in combination to Art. 1 of the h. (3), Art. 20 and Art. 21 of the Constitution.

4. Determination of the Constitutional court of September 6, 2017, without decision in essence, the address was acknowledged acceptable.

5. During consideration of the case the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government, the Supreme council of magistracy, the Highest trial chamber and Service of information and safety.

6. In open plenary meeting the address authors - Domnika Manole and the lawyer supported Viorik Greka. From Parliament the chief of service of representation in the Constitutional court and law enforcement agencies of general legal management of the Secretariat of Parliament Valeriu Kuchuk took part. The government was provided by the state secretary of the Ministry of Justice Eduard Serbenko.

Circumstances of the main dispute

7. The resolution No. 54/3 of February 9, 2016 the Supreme council of magistracy started question of check of certain judges, including the judge of Appeal chamber Chisinau Domniki Manole, based on the Law No. 271-XVI of December 18, 2008 on check of persons holding the state positions, and candidates for the state positions.

8. The service of information and safety in the conclusion dated on August 19, 2016 noted that as a result of check the facts specifying non-compliance with the legislation or availability of risk factors in activities of the judge were elicited.

9. Having considered the application of the judge Domniki Manole, the Resolution No. 771/31 of November 15, 2016 the Supreme council of magistracy appointed conducting additional check from Service of information and safety.

10. In the repeated conclusion of December 9, 2016 the Service of information and safety specified risk factors in activities of the judge [Art. 4 of the item and) and the item c) of the Law No. 271/2008] and on the aspects contradicting Art. 15 of the h. (1) the item d) and the item е) the Law No. 544-XIII of July 20, 1995 on the status of the judge, to the Code about ethics and professional deontology of the judge and to the Bangalore principles of judicial behavior (impartiality and integrity).

11. Domnika Manole appealed on February 24, 2017 the conclusion of Service of information and safety in degree of jurisdiction. Determination of March 10, 2017 the court of Chisinau, the sector Buyukan, rejected the action for declaration. In reasons for determination the degree of jurisdiction specified that the conclusion of Service of information and safety has advisory nature and is not subject to appeal separately but only together with the decision of public body on incompatibility of person concerning which check was performed. The cassation instance (in this case Appeal chamber Kakhul) determination of May 12, 2017 rejected the writ of appeal and left the decision of the first instance without changes.

12. Domnika Manole disputed the conclusion of SIB in the Supreme council of magistracy, having noted that the Service of information and safety exceeded the authority when it gave own assessment to legality of some final judgments made by it.

13. The supreme council of magistracy issued on July 4, 2017 the Decree No. 450/21 on consideration of the conclusion of Service of information and safety of December 9, 2016 at closed meeting.

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