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12Oct07

Resolution on the control of constitutionality of the Rome Statute of the International Criminal Court

MONITORUL OFICIAL
al Republicii Moldova

N°161-164 (3048-3051) 12 October 2007

Acts of the Constitutional Court of the Republic of Moldova
RESOLUTION
on the control of constitutionality of the Rome Statute
of the International Criminal Court

In the name of the Republic of Moldova, the Constitutional Court, composed of:
Dumitru PULBERE - Chairman, Rapporteur Judge
Alina IANUCENCO - Judge
Victor PUŞKAŞ - Judge
Elena SAFALERU - Judge
Valeria ŞTERBEȚ - Judge
Ion VASILATII-Judge

with the participation of Victoria BOTNARIUC, secretary of the session, Nicolae IEŞANU, Permanent Representative of the Government in the Constitutional Court, experts - Raisa Botesatu, Deputy Chairman of the Supreme Court of Justice, Valeriu Botnari, Assistant Public Prosecutor General, and Eugenia Chistruga, Deputy Minister for Foreign Affairs and European Integration, Ion Mîțu, Permanent Representative of the Parliament in the Constitutional Court, guided by Article 135(1)(a) of the Constitution, by Article 4(1)(a) of the Law on the Constitutional Court, Article 4(1)(a) and Article 16(1) of the Code of the Constitutional Jurisdiction has considered in an open plenary session a case on the control of constitutionality of Article 1, Article 4(2), Article 27 and Article 89(1) of the Rome Statute of the International Criminal Court.

The basis for the consideration of the case was the application by the Government of the Republic of Moldova submitted on 16 July 2007 in accordance with the provisions of Articles 24 and 25(b) of the Law on the Constitutional Court, Articles 38 and 39 of the Code of Constitutional Jurisdiction.

The application was received for consideration on the merits and included into the agenda by the Order of the Constitutional Court of 18 July 2007.

In the course of the preliminary of the application, the Constitutional Court requested the opinions of the Parliament, of the President of the Republic of Moldova, of the Government, of the Ministry of Justice, of the Public Prosecutor, of the Human Rights Centre, of the Legal Centre of Lawyers of the Republic of Moldova, of the Helsinki Human Rights Committee in Moldova, the Venice Commission of the Council of Europe, the Moldova State University, and the International State University of Moldova.

Having considered the materials of the case, having heard a communication by the Rapporteur Judge and explanations by the participants of the session,

the Constitutional Court has found:

    1. On 8 September 2000, the Republic of Moldova signed the Rome Statute of the international Criminal Court (hereinafter referred to as 'the ICC Statute'), adopted on 17 July 1998 at the Diplomatic Conference of the United Nations. According to Article 11 (1)(b) of Law N°595-XIV of 24 September 1999 on International Treaties of the Republic of Moldova, |1| the ICC Statute is subject to approval by the Parliament.

    The ICC Statute, which proposes raising the level of protection of citizens, the efficiency of administering justice by national law enforcement bodies and judicial authorities, stipulates bringing to justice persons guilty of the crime of genocide, crimes against humanity, war crimes and the crime of aggression.

    In its application, the Government of the Republic of Moldova request to verify the constitutionality of Article 1, Art. 4(2), Art. 27 and Art. 89 (1) of the ICC Statute.

    The provisions of the ICC Statute, the constitutionality of which has been verified, stipulate the following:

    Article 1 The Court

    An International Criminal Court ("the Court") is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.

    Article 4 Legal status and powers of the Court

    2. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.

    Article 27 Irrelevance of official capacity

    1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

    2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

2. According to 135(1)(a) of the Constitution and Article 22 of Law N°595-XIV On International Treaties of the Republic of Moldova, the Constitutional Court shall carry out the control of constitutionality of the provisions of international treaties to which the Republic of Moldova is a party. International Treaties to which the Republic of Moldova is a party and which are deemed by the Constitutional Court inconsistent with the Constitution of the Republic of Moldova shall not come into force and shall have no effect.

Established with the approval of the States party and carrying out its functions on the basis of the principle of complementarity and rules recognised by the international community, the International Criminal Courts guarantees the sovereignty of States in the field of justice.

Under Article 114 of the Constitution of the Republic of Moldova, justice shall be administered in the name of law only by the judicial authorities indicated in Article 115 that prohibits setting up extraordinary tribunals and limiting the competence of specialised tribunals for certain categories of court cases.

The International Criminal Court is not an extraordinary judicial instance the setting up of which is prohibited by constitutional provisions, it does not substitute the national criminal justice system, as it investigates only the most serious crimes and administers punishment only when national judicial authorities are unwilling or unable to do that.

In it preamble, the Statute codifies the obligation to comply with the purposes and principles of the Charter of the United Nations greatly extending the possibilities of protecting human rights and freedoms provided for in the Charter.

Under the authority of Article 4 of the Supreme Law, constitutional provisions concerning human rights and freedoms shall be interpreted and applied in accordance with the Universal Declaration of Human Rights, covenants and other treaties, to which the Republic of Moldova is a party, and in case of discrepancies between the covenants and treaties, to which the Republic of Moldova is a party, and the national legislation, the international rules shall prevail.

The crimes indicated in the ICC Statute are also punishable according to the following other international treaties to which the Republic of Moldova has acceded:

    - The Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 ratified on 10 September 1991 ; |2|

    - The Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 ratified on 2 March 1993; |3|

    - The Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949 ratified on 2 March 1993; |4|

    - The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 26 November 1987 ratified on 9 July 1997; |5|

    - The Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 ratified on 31 May 1995. |6|

A number of these conventions became binding for the Republic of Moldova before and some - after the Constitution came into force.

In this context, the Constitutional Court notes that by ratifying the Convention on the Prevention and Punishment of the Crime of Genocide our State made the commitment to hand over any person guilty of a crime of this type to an international tribunal.

One of the main principles of international law is pacta sunt servanda which requires bona fide compliance of the agreements to which a State has acceded.

According to constitutional provisions Art. 8, the Republic of Moldova undertakes to comply with the Charter of the United Nations and the treaties to which it is a party and to found its relations with other States on universally recognised principles and rules of international law. The obligation to respect and honour international treaties is also codified in Art. 19 of Law N°595-XIV On international Treaties of the Republic of Moldova.

Bringing about conditions for maintaining equality and complying with the obligations following from international agreements and other rules of international law is an obligatory principle.

In this context, the Republic of Moldova should consider the ICC Statute as a mechanism of punishment for the crimes of genocide, aggression, war crimes and crimes against humanity on the basis of commitments made as a result of the ratification of the above-mentioned international conventions.

In its Resolution N°55 of 14 October 1999, |7| the Constitutional Court ruled on the interdependence of national normative acts and international treaties noting that universally recognised principles and rules of international law were binding on the Republic of Moldova inasmuch as it expressed its consent to abide by them. Consequently, the execution of the rules of the international treaties to which the Republic of Moldova has acceded is unconditional.

In execution of international treaties, modifications and additions were introduced into the national criminal legislation. Thus, the crime of genocide, war crimes, the crime of aggression, and crimes against humanity indicated in Art. 5 of the ICC Statute are also punishable under the Penal Code of the Republic of Moldova, Chapter I of the Special Part, Art. 135-144.

The Constitutional Court considers that the provision of Article 12 of the ICC Statute, according to which the crimes indicated in Art. 5 of the Statute fall within the competence of the International Criminal Court, does not deprive a State party of the right to punish persons guilty of such crimes in accordance with national legislation.

Art. 17 of the ICC Statute stipulates that a case is inadmissible for the Court when it is being investigated or prosecuted by a State which has jurisdiction over it. The Court considers a case only when the State is unwilling or unable genuinely to carry out the investigation or prosecution.

Under the authority of Art. 18(2) of the ICC Statute, a State may request the Prosecutor of the International Criminal Court to defer the case to its investigation.

3. The Constitution of the Republic of Moldova guarantees the immunity of the President of the Republic of Moldova (Art. 81(2)), Members of Parliament (Art. 70(3)), and judges, including those of the Constitutional Court (Art. 116).

Under the authority of Art. 27(2) of the ICC Statute, immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

The Statute does not limit or exclude the immunity of State officials stipulated for their terms of office and their immunity at the level of national law but establishes a measure of responsibility in case of their committing the crimes provided for by the international treaties, to which the Republic of Moldova acceded and which it undertook to respect.

Law N°39-XIII On the Status of a Member of Parliament of 7 April 1994 |8| clearly stipulates in its Chapter II that a Member of Parliament may be stripped of his immunity if he commits a crime.

Under the authority of constitutional rules, at the discretion of the Parliament, the President of the Republic of Moldova may be stripped of his immunity by a majority of two-thirds of the of the elected members in case he has committed a crime.

Under the authority of Laws N°544-XIII of 20 July 1995 On the Status of the Judge |9| and N°317-XIII of 13 December 1994 On the Constitutional Court |10|, judges and the judges of the Constitutional Court may be subject to penal punishment with the sanction of the Supreme Council of the Magistracy and of the Plenary Assembly of the Constitutional Court accordingly.

Under the authority of Art. 16 of Law N°111-XIII of 20 February 1997 On Ensuring the Activities of the President of the Republic of Moldova |11|, in the case of expiry of the mandate of the President, the President's diplomatic immunity remains.

Law N°761-XV on Diplomatic Service of 27 December 2001 |12| stipulates in its Art. 20(d) that diplomats, for the term of their activities, are entitled to the immunity stipulated by the rules of international law and the treaties, to which the Republic of Moldova is a party.

The Vienna Convention on Diplomatic Relations of 18 April 1961, |13| to which the Republic of Moldova acceded on 4 August 1992, establishes immunities for diplomatic agents presupposing special conditions of criminal investigation.

Under the authority of Art. 16 of the Constitution, all citizens of the Republic of Moldova are equal before the law. Equality before the law is also stipulated in Art. 5 of the Penal Code of the Republic of Moldova entitled Principle of Democratism.

The Constitutional Court stresses that the provisions of special laws and constitutional rules regarding immunity must be viewed in the context of Art. 4 and Art. 5 of the Constitution, as immunity is not an absolute right of an official, which could be opposed to international treaties but is directly defined by carrying out public functions; immunity concerns only the execution of official functions and is not applicable to a crime committed by an official.

The constitutional provision on the priority of international human rights rules covers laws and other national normative acts notwithstanding the date of their adoption. Thus, the provisions of the ICC Statute may be applied to nationals of the Republic of Moldova, including officials.

Criminal proceedings may also be instituted against officials that enjoy immunity under the authority of national legislation complying with the fundamental principles established by the Statute. The International Criminal Court has the right to require the surrender of these persons only in the event of formal conviction.

The collision between special rules of national legislation pertaining to immunity and the rules of the Statute may be resolved by the constitutional provisions on the validity of acts.

In view of the above, the Constitutional Court states that the constitutional provisions on the immunity of officials pertain only to their public activities and do not make them exempt from criminal prosecution and punishment under the authority of the ICC statute in the event of their committing a crime. Therefore, the Constitutional Court draws the conclusion that Art. 27(1) of the ICC Statute, according to which the Statute shall apply equally to all persons without any distinction based on official capacity, does not contradict constitutional rules.

4. Under the authority of Art. 89(1) of the Rome Statute, the Court may transmit a request for the arrest and surrender of a person, together with the materia! supporting the request outlined in article 91, to any State on the territory of which that person may be found.

Art. 18(2) of the Constitution of the Republic of Moldova stipulates that citizens of the Republic of Moldova may not be surrendered to another State or expelled from the country.

The Rome Statute draws a clear distinction between surrender and extradition specifying that "surrender" means the delivering up of a person by a State to the Court, pursuant to the Statute (Art. 102(a)), while "extradition" means the delivering up of a person by one State to another as provided by treaty, convention or national legislation (Art. 102(b)).

The Constitutional Court notes that surrender and extradition are not only two different notions, but also two distinct concepts differing both in nature and in subjects involved.

In an extradition procedure, two States are involved that are acting on the basis of an international treaty to which they are a party. In this case, the requested State must make sure that the requesting State guarantees the person material and procedural rights codified by the relevant international treaty and universally recognised rules of international law.

Surrender of a person to the International Criminal Court is carried out upon the latter's request and only if it has been deemed admissible.

Having considered the above, the Constitutional Court states that the provisions of the ICC Statute, inter alia, those of Art. 1, Art. 4(2), Art. 27 and Art. 89(1), do not go beyond the limits of constitutional rules and their application mechanisms may be determined both by legislative means and by interpretation.

In view of the above, in accordance with Article 140 of the Constitution, Art. 26 of the Law on the Constitutional Court and Art.60(c), Art. 61 and Art. 64 of the Code of Constitutional Jurisdiction,

the RESOLUTION of the Constitutional Court is as follows:

    1. Art. 1, Art. 4(2), Art. 27 and Art. 89(1) of the Rome Statute of the International Criminal Court adopted on 17 July 1998 at the Diplomatic Conference of the United Nations are in conformity with the provisions of the Constitution of the Republic of Moldova.

    2. The present Resolution is final and not subject to any appeal, it shall come into effect on the day of its adoption and shall be published in Monitorul Official al Republicii Moldova.

PRESIDENT OF THE CONSTITUTIONAL COURT
Dumitru PULVERE

N° 22, Chişinău, 2 October 2007

Notes:

1. M.O., 2000, N°24-26, p. 137 [Back]

2. Международные договоры, 1998, т. I, c. 100. [Back]

3. Там же, т. V, c. 126. [Back]

4. Там же, т. V, c. 55. [Back]

5. Там же, т. I, c. 331. [Back]

6. Там же, т. I, c. 129. [Back]

7. M.O., 1999, Nº 118-199, p. 64. [Back]

8. M.O., 1994, Nº 4, p. 78. [Back]

9. M.O., 1995, N°59-69,p. 664 [Back]

10. M.O., 1995, N°8, p. 86. [Back]

11. M.O., 1997, N°16-17,p. 180. [Back]

12. M.O., 2002, N°20, p. 80. [Back]

13. Международные договоры, 1999, т. 4, c. 37. [Back]

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