Moldovan top court declares constitutional obligation of Superior Council of Magistracy to check conditions for lifting judge's immunity

Chisinau, 28 June /MOLDPRES/ - The Constitutional Court (CC) has declared as constitutional the obligation of the Superior Council of Magistracy (CSM) to check the conditions for lifting the immunity of a judge.  

Lawyers Vasile Foltea and Gheorghe Ulianovschi submitted a notification on exception of constitutionality of Article 23 of the Law on the Superior Council of Magistracy in 2017.  

According to the magistrates, the independence of judges is a guarantee against external pressures in taking decisions, with the need to allow judges fulfill their role of guards of the human rights and freedoms being justified.

The Court found out that, as a rule, a sine qua none condition for starting criminal prosecution, detaining, reconduction, arrest or search of a judge is the agreement of the Superior Council of Magistracy. At the same time, the magistrates noted that the present provisions of the law exclude CSM’s possibility to assess the quality and truthfulness of the materials presented by the Prosecutor General. Therefore, the Superior Council of Magistracy is limited and obliged to proceed to a quasi-automated agreement of starting the criminal prosecution against judges.   

According to CC’s decision, such a situation obviously leads to the diminution of the importance of the agreement of the Superior Council of Magistrates, which,  in fact, represents a special condition provided for in the law and has the legal character of an act-condition for starting the criminal prosecution or carrying out criminal prosecution actions against a judge. 

Nevertheless, expressing its agreement or refusal as to starting the criminal prosecution, the Superior Council of Magistracy has right or obligation to assess the materials unveiled by the prosecution body, yet, without formulating conclusions as to the guilt of the judge.

The Constitutional Court’s ruling is final, cannot be subjected to any appeal, enters into force on the date of adoption and is to be published in Moldova’s Official Journal (Monitorul Oficial).   

(Reporter A. Zara, editor L. Alcaza)