Moldova's judges, prosecutors to be able to continue external evaluation after submitting resignation application; parliament to amend legislation following Constitutional Court's ruling

The Constitutional Court (CC) today declared unconstitutional the provision stipulating that the resignation of judges and prosecutors after the expiry of the 20-day period from the initiation of the external evaluation automatically results in failing the evaluation, regardless of the reason invoked. The parliament is to amend the regulatory framework, and until then, the evaluation may continue at the request of the person who submitted his/her resignation.

At a news briefing, CC President Domnica Manole emphasized that the High Court ruled on a complaint based on two objections of unconstitutionality. Thus, the first objection was raised by a panel of the Supreme Court of Justice (CSJ), while the second was raised by the lawyer representing the interests of Veronica Dragalin, former chief prosecutor of the Anti-Corruption Prosecutor’s Office and the claimant in the proceedings before the CSJ.

“The authors of the objections said that equating a resignation submitted after the expiry of the 20-day period from notification of the initiation of the evaluation with failing the evaluation, in the absence of an assessment of the subject’s ethical and financial integrity, has serious consequences for their professional reputation and career. If the person subject to the evaluation submits a resignation application and asks for the evaluation procedure to be completed, the law should not automatically result in a finding that the evaluation was failed and the subsequent imposition of a ban on holding certain positions for a period of up to five years. If the resignation application is submitted after the expiry of that period, the authorities must find that the evaluation was failed. This would create a presumption that the person being evaluated does not meet the integrity criteria and is not considered worthy of holding a position of public dignity. The claimant’s lawyer said that the person subject to the evaluation is forced to remain in office against his/her will, in order to avoid the consequences of resignation. In her opinion, the law should have provided for the possibility of terminating or completing the evaluation procedure in relation to persons who resign from their position after the expiry of the 20-day period from notification of the initiation of the evaluation,” Domnica Manole said.

She pointed out that the High Court had conducted the constitutional review on the basis of Articles 28, 39 and 43 of the Constitution, which guarantee the right to respect for private life, the right of citizens to participate directly in the administration of public affairs and the right to work.

“The CC established that setting, as a general rule, a deadline for submitting a resignation application, for withdrawing it, as well as establishing the legal consequences when the deadline is exceeded, are meant to make the work of the evaluation commissions more efficient and, at the same time, to prevent cases of evasion of the evaluation procedure. This ensures achievement of the general purpose of the integrity evaluation process, namely restoring public confidence in the judicial system. The Court found that failing the evaluation has serious repercussions for the careers of resigning subjects. The ban on holding vacant positions for a period of five to seven years applies to positions of public dignity. The Court emphasized that the challenged provision forces persons subject to evaluation who want to resign for personal reasons either to refrain from changing their professional status during the evaluation process or to accept the imposition of a ban on holding positions as judges or prosecutors, as well as other positions of public dignity, for a period of five to seven years,” the CC president noted.

Domnica Manole specified that, during its examination, the Court had noted that, by establishing an absolute measure, the parliament failed to distinguish between resignation used to avoid the evaluation and resignation prompted by objective, serious and verifiable reasons, applying the consequences of failing the evaluation in all cases.

“The CC established that the phrase ‘regardless of the reason invoked’ in the provision under review is rigid and does not allow the evaluation to continue at the subject’s request under any circumstances. Through the mechanism for evaluating the integrity of serving judges and prosecutors, the parliament sought to reform the justice system and remove from it persons who do not meet the ethical and financial integrity criteria. However, applying the consequences of failing the evaluation in connection with resignation and refusing to allow the evaluation to continue at the subject’s request represents a disproportionate measure in relation to the goal declared by the state authorities. By automatically establishing that the evaluation had been failed, regardless of the reason invoked, the legislature did not allow an assessment of the individual circumstances of the person resigning, nor did it allow the evaluation to continue at that person’s request. Consequently, the Court declared unconstitutional the phrase ‘regardless of the reason invoked’ from Article 3(4) of Law No. 252/2023, because it contravenes Articles 28, 39, 43 and 54 of the Constitution,” Domnica Manole said.

The Constitutional Court established a provisional solution under which, until the parliament amends the regulatory framework, if a resignation request is submitted after the expiry of the 20-day period from notification of the initiation of the evaluation, the evaluation commissions will continue the integrity evaluation procedure, if the person subject to the evaluation requests that the procedure continues. In this regard, the Court issued an address to parliament.