RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of May 21, 2020 No. 13

About control of constitutionality of some provisions of the Law No. 3 of February 25, 2016 on Prosecutor's office, Resolutions of Parliament No. 101 of July 30, 2019 about nomination of candidate for position of the acting as the Attorney-General of the Republic of Moldova and the Presidential decree of the Republic of Moldova No. 1232-VIII of July 31, 2019 about appointment mister Dumitru Rob the acting as the Attorney-General (the address No. 168a/2019)

Name of the Republic of Moldova,

Constitutional court in structure:

Domnika Manole, chairman,

Eduard Ababey,

Nicolae Roshka,

Liouba Shova,

Sergey Tsurkan, judges,

with the assistance of the assistant judge Alena Balaban,

in view of the address,

registered on September 23, 2019,

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 control of constitutionality of Art. 11 of h (2-1) and (2-2) formed the basis for consideration of this case, to Art. 17 of h (2), h (3), h (5), h (7), h (8), h (9), h (9-1) and h (11-1), Art. 58 of h (7), h (8) and h (9), Art. 69 of h (1), h (2) and h (4) and Art. 70 of h (1) the Law No. 3 of February 25, 2016 on Prosecutor's office, in edition of the Law No. 87 of July 19, 2019 on modification of Art. 11 of the Law on Prosecutor's office No. 3/2016 and the Law No. 128 of September 16, 2019 on introduction of amendments to the Law on Prosecutor's office No. 3/2016, of h (2) the Art. II of the Law No. 87 of July 19, 2019 on modification of Art. 11 of the Law on Prosecutor's office No. 3/2016, of h (2) the Art. II of the Law No. 128 of September 16, 2019 on introduction of amendments to the Law on Prosecutor's office No. 3/2016, of the Resolution of Parliament No. 101 of July 30, 2019 about nomination of candidate for position of the acting as the Attorney-General of the Republic of Moldova and the Presidential decree of the Republic of Moldova No. 1232 of July 31, 2019 about appointment mister Dumitru Rob the acting as the Attorney-General.

2. Deputies of Parliament Paweê Phillip, to Dumitr Dyakov, Vladimir Chebotar, Sergey Syrbu, Igor Vremya, Aleksandra Zhizdan, Vladimir Vityuk, Violeta Ivanov, Korneliu Padnevich, Nicolae Chubuk, Eleonora Graur and Vasile Bytke, according to Art. 135 of h (1) the item a) brought into the Constitutional court the address Constitutions, Art. 25 of the item g) the Law on the Constitutional court and Art. 38 of h (1) the item g) the Code of the constitutional jurisdiction.

3. Deputies of Parliament Paweê Phillip, to Dumitr Dyakov, Igor Vremya, Aleksandra Zhizdan and Nicolae Chubuk submitted on May 20, 2020 the application for withdrawal of the address, according to Art. 41 of the Code of the constitutional jurisdiction. Having taken into consideration the statement for withdrawal of the address, the Constitutional court will consider only the address of deputies of Parliament Vladimir Chebotar, Sergey Syrbu, Vladimir Vityuk, Violeta Ivanov, Korneliu Padnevich, Eleonora Graur and Vasily Bytke.

4. Authors of the address provided request about suspension of action of some provisions of the Law No. 128 of September 16, 2019 on introduction of amendments to the Law on Prosecutor's office No. 3/2016, concerning contest for post of the Attorney-General (suspension of the competition announced by the Supreme council of prosecutors and carrying out new tender). Determination No. 96 of September 25, 2019 the Constitutional court denied this request.

5. Determination of the Constitutional court of December 5, 2019, without decision in essence, the address was acknowledged acceptable.

6. Due to the expected illegality of some provisions of the Law on Prosecutor's office No. 3 of February 25, 2016, the Constitutional court appealed on October 7, 2019 to the Venetian commission to express the opinion. At the 121st plenary session which took place on December 6-7, 2019 the Venetian commission accepted Opinion of amicus curiae No. 972/2019 on amendments to the Law on Prosecutor's office (CDL-AD(2019)034).

7. During consideration of the address the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government, the Supreme council of prosecutors, Institute of legal, political and social researches, Institute of reforms in the criminal sphere, the State university of Moldova and the International independent university of Moldova.

8. Sergey Syrbu, one of authors of the address participated in open session of the Constitutional court. From Parliament the main consultant of service of representation took part in the Constitutional court and law enforcement agencies of general legal management of the Secretariat of Parliament Rada Rada. The government was provided by the state secretary of the Ministry of Justice Dorin Lishman.

9. At the beginning of the meeting of the Constitutional court Sergey Syrbu, the author of the address, made to plenum of the Constitutional court inquiry about removal of the judge Vladimir Tsurkan. After the analysis of the bases of branch the Constitutional court satisfied request.

Actual circumstances

10. The law No. 87 of July 19, 2019 the Parliament made changes in Art. 11 of the Law on Prosecutor's office No. 3/2016.

11. Article 11 of the Law on Prosecutor's office was added with part (2-1) and part (2-2). According to part (2-1), in case of approach of vacancy of position of the Attorney-General the President of the Republic of Moldova according to the offer of the Supreme council of prosecutors appoints the acting as the Attorney-General. The president of the Republic of Moldova can reject the candidacy for the position of the acting as the Attorney-General proposed by the Supreme council of prosecutors in case of detection of incontestable proofs of incompatibility of the candidate with the corresponding position, violation by the candidate of the legislation or violation of processes at law of its selection.

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