„Justice is the specific idea of law”.
Gustav Radbruch, German legal scholar (1878-1949)
The exception of unconstitutionality, with all its peculiarities, represents the most spread and efficient means of indirect access of individuals to a constitutional court. In states with such a mechanism in place, most complaints pending before constitutional courts emerge from trial courts of law.
Nevertheless, in 21 years since the Constitutional Court of the Republic of Moldova was established, out of the total number of complaints only 6% were exceptions of unconstitutionality. For instance in Romania, since the Constitutional Court was established till 31 January 2016, exceptions of unconstitutionality raised by trial courts amounted for 98.7% out of the total of complaints lodged with the Constitutional Court of Romania. Statistics clearly show a persistence of certain system deficiencies of the institution of the exception of unconstitutionality in Moldova.
The issue is not a new one, the Constitutional Court of the Republic of Moldova being asked in a number of cases to clarify the role of the Supreme Court of Justice when an exception of unconstitutionality is raised. The great majority of these complaints targeted mainly one issue – the possibility of trial courts to raise exceptions of unconstitutionality independently from the Supreme Court of Justice.
Article 135.1.b of the Constitution of Moldova grants the Constitutional Court the exclusive competence to establish the genuine and complete meaning of constitutional provisions, by textual and functional interpretation, to the extent it may be construed based on the text of the Constitution, considering the generic nature of the provisions, concrete situations the legislator could not foresee when drafting the provision, the subsequent regulations (of related of contradictory nature), and the complex situations where the provision is to be applied etc.
In its case law the Court mentioned the need for an evolutionary interpretation of the powers of the Constitutional Court, in order to enhance and extend the mechanisms of the Court. Any restrictive interpretation of the Supreme Law (in that it would limit, eliminate or reduce the powers of the Constitutional Court), would result in Court’s shift from the goal of enhancing constitutional democracy, pursued by Constitution’s framers themselves.
In the same context, it deems necessary to recall that a court should check on solutions it delivered in its case law and which were functional or not, and if necessary, to depart from its case law.
The world around us is rapidly changing, so that the development and evolvement of our legal system mostly depends on the capacity to adapt and to react to these changes. The trial courts perceive the issue in a practical manner, less theoretically or abstract. The law nowadays is completely different than it was one or two decades ago. Today in Europe the law is what the trial courts state, and not just the legal texts. Irrespective of the formal value of the judicial precedent, it is impossible to speak about law and to understand law as such without taking into account what the courts state.
Following the case law of the Constitutional Court on this subject, we ascertain a very interesting evolution, from the restrictive interpretation (Judgment of the Constitutional Court no. 15 of 6 May 1997 and Decision no. 186 of 26 March 2007) to the evolutionary interpretation of the procedure of raising the exception of unconstitutionality (Judgment no. 2 of 9 February 2016).
The arguments held by the Court in its case law, according to which the right to apply before the Constitutional Court in order to examine an exception of unconstitutionality belongs exclusively to the Supreme Court, have proved to be unsupported in reality – the institution exception of unconstitutionality remaining inoperative.
The dialogue between the Constitutional Court and the Supreme Court in the years 1997-2007-2014 unequivocally reveals that both courts were aware of this issue. Therefore, on 9 December 2015 Supreme Court requested the Constitutional Court, by way of interpreting Article 135.1.g of the Constitution, to explain:
„1) Whether the Supreme Court is entitled to refuse trial courts applying before the Constitutional Court on the exception of unconstitutionality, raised by them in judicial proceedings, taking into account the text Article 135.1.g of the Constitution?
2) What is the role of the Supreme Court in the procedure of applying before the Constitutional Court, in term of the right of trial courts of all levels to raise the exception of unconstitutionality?
3) Whether the trial courts are entitled to refuse parties in raising the exception of unconstitutionality?”
The following aspects can be construed from the application lodged by the Supreme Court:
- the relationship between trial courts and litigants in terms of raising the exception;
- subjects entitled to raise the exception of unconstitutionality and to apply before Constitutional Court.
Thus, in its judgment no. 2 of 9 February 2016, by way of functional interpretation of Articles 20, 115, 116, 134 and 135.1.a and 135.1.g of the Constitution, the Constitutional Court explained the mechanism of raising the exception of unconstitutionality.
- The exception of unconstitutionality as an instrument of defending the fundamental rights and freedoms
The analysis of the institution exception of unconstitutionality is inconceivable without understanding the importance of respect for human rights and the mechanisms for protection of these rights by constitutional courts.
”The exception of unconstitutionality is the citizen’s constitutional warrant meant to protect his rights and fundamental freedoms while resolving a dispute; that is why as long as being subjected to a jurisdiction, regardless of its nature whether administrative or judicial, his right to challenge the constitutional legitimacy of the law applicable to the proceedings cannot be denied”
Considering the subsidiary nature of ECHR mechanisms, the issue of individual access to the constitutional court is no longer, for an extended period of time, in the theoretical or hypothetical areas. Stemming from the commitments deriving from the process of streamlining the ECtHR, assumed within the Conferences held in Interlaken (18-19 February 2010), Izmir (26-27 April 2011) and Brighton (19 to 20 April 2012), the Republic of Moldova is compelled to extend, at national level, the mechanisms of human rights protection.
The legislation of the Republic of Moldova does not provide for direct individual access to the jurisdiction of the Constitutional Court by way of individual appeal. Article 135.1.g of the Constitution of the Republic of Moldova provides for the Constitutional Court’s jurisdiction to solve the exceptions of unconstitutionality of legal acts, as claimed by the Supreme Court of Justice.
The lack of an individual appeal, interconnected with an extremely restrictive interpretation of the procedure of raising the exception of unconstitutionality was always ascertained as a shortcoming in the context of the constitutionality control of laws, in terms of the right of individuals to defend rights and freedoms guaranteed by the Constitution, by means of removing the enforcement of a norm contrary to the Constitution.
This indirect route, allowing citizens the access to constitutional justice, also offers the Constitutional Court the possibility, as guarantor of the supremacy of the Constitution, to exercise control over the legislative power in regard to the respect of fundamental rights and freedoms.
In this context the control undertaken through the exception of unconstitutionality shall comply with the provisions of Art. 6 of the ECHR, stating that a Constitutional Court shall enjoy the power to repair all the encountered violations by annulling controversial regulations […].
- Exception of unconstitutionality as a way of indirect access of individuals to the constitutional court
The term “exception” has its origin in the fact that the normative acts of public authorities enjoy a presumption of constitutionality and the allegations of unconstitutionality of parties in judicial proceedings or the uncertainty of the judge in this respect represents an exceptional situation. Thus, the exception of unconstitutionality is a procedural action of defence, by way of which the Constitutional Court is appealed on the inconsistency with the Constitution of provisions applicable in the case pending before the trial court.
Stemming from the fact that the provision appealed by means of the institution of exception of unconstitutionality is subject to constitutional control applied in a specific case pending before the trial court, the procedure of solving the exception of unconstitutionality constitutes a substantive control of constitutionality.
Given the right of the individuals to access the court, thus ensuring efficient and effective protection of fundamental rights, the institution of constitutional justice succeeded to grant citizens the feeling that their rights could have been materialized.
The reasoning of establishing this control is based on censorship and interference, on the part of the constitutional court, in the process of applying, by a trial court, a provision in regard to which there is a doubt of constitutionality. Otherwise, given the remedy of constitutional complaint the individual might request, apart from legal protection granted through ordinary jurisdiction, respect for his/her fundamental rights in the field of constitutional law. In this regard constitutional complaint has a double function – legal protection of the individual and protection of the objective constitutional right, thus exceeding the effects of res judecata only among the parties to the trial.
In this context, it is necessary to emphasize a very important ascertainment made by the Court in its judgment no.2 of 9 February 2016. Stemming from the nature of the exception of unconstitutionality, the Court held that it can be raised not only in relation to existing acts, contained in Article 135.1.a of the Constitution, but also with regard to acts that are no longer in force, in case under the provisions of these acts had emerged legal relationships which continue to remain in effect while the provision is applicable in relation to the legal relationships part of the litigation, being decisive in solving the case.
To shatter any doubt regarding the scope of application of the concept of „exception of unconstitutionality”, the Court held that „the constitutionality of a law, of a provision of another normative act, to be related to the parties, may be invoked only in case of a pending litigation, therefore always by way of exception and never by action”.
- Exception of unconstitutionality as element of a fair trial
No law may restrict access to justice. Under Article 20 of the Constitution, any individual is entitled to effective satisfaction from the part of competent courts of law against actions infringing upon his/her legitimate rights, freedoms and interests. Without an effective access to a court, the rights afforded to individuals would be illusory. Thus, the right of access to justice is understood as a right of substantive and effective access, which implies that the litigants shall benefit from a clear and substantive possibility of challenging an act constituting a breach of his rights.
In order to guarantee an effective protection of human rights, it is not sufficient to enshrine substantive rights and specify, by constitutional way, the minimum requirements for carrying out justice, but it is also necessary to establish some procedural safeguards aimed at consolidating the functionality of these mechanisms. By way of these procedural safeguards, the right to a fair trial shall be guaranteed, hence, in an effective and efficient manner.
The right to a fair trial implies inclusively the presumption of conformity of normative interpreted acts, applied by the trial court in the act of justice, with the constitutional provisions and international law. Therefore, the settlement of a lawsuit cannot involve the promotion of a right by means of unconstitutional provisions.
As mentioned previously, the exception of unconstitutionality may be invoked in judicial proceedings which are under way and only in case it affects the outcome of the case pending before the trial court.
The substantive constitutionality control by way of exception constitutes the only instrument by means of which the citizen has the opportunity to act in order to defend himself/herself against the legislator, in case where, by law, his/her constitutional rights are infringed upon.
In this context, the right of access to the Constitutional Court of citizens by way of exception of unconstitutionality represents an aspect of the right to a fair trial.
- Trial court judge – „first constitutional judge”
In its judgment of 9 February 2016, the Court held that the procedure of solving the exception of unconstitutionality implies two distinct stages:
- the judicial stage, the preceding one, which consists of invoking the exception of unconstitutionality in a pending case before a trial court and adjudication by a judge on this procedural incident, eventually finalised by applying before the Constitutional Court;
- the proper stage of Constitutional contentious, which consists of solving the exception of unconstitutionality by the Constitutional Court.
At the first stage, the decisive role belongs to the ordinary judge, which ultimately decides to raise the exception of unconstitutionality. The judge can be called „first constitutional judge”, revealing aspects of unconstitutionality in the law enforcement process. Recalling the famous decision Marbury vs. Madison, this statement becomes more obvious. In this decision Judge Marshall stated „if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”
Therefore, once a certain doubt on the constitutionality of the applied act is ascertained by the ordinary judge or is invoked by one the parties, the judge is compelled to initiate the process of exercising the constitutionality control.
In this chapter, the Court held that the exception of unconstitutionality may be raised by:
- the trial court, ex officio, which by respecting the principle of supremacy of the Constitution, is not entitled to apply a provision in regards to which there exists a doubt of constitutionality;
- the parties in the proceedings, including their representatives, the rights and interests of which may be affected by the application of an unconstitutional provision in the settlement of the case.
- Procedural aspects of raising the exception of unconstitutionality
According to legal provisions, once the exception of unconstitutionality is accepted, the judge orders, by decision, the suspension of judicial proceedings.
Any suspension of judicial proceedings raises the question of affecting the time periods of proceedings. Unlike other cases, the suspension of proceedings on the ground of raising an exception of unconstitutionality requires a different analysis, namely, from the perspective of balancing the celerity of proceedings and the quality of adopted judicial solutions, as well as the legal security. For these reasons, the Court considered necessary to explicitly state that „the suspension of proceedings until the Constitutional Court solves the exception of unconstitutionality is necessary in order to exclude, when settling a case, the application of provisions contrary to the Constitution”. This statement was made especially for the legislator, in view of the legislative regulations to be carried out.
Further, the Court held that in view of assuring the celerity of proceedings, the parties must have the procedural possibility to challenge separately with recourse the decision of the ordinary judge on rejecting the request for raising the exception. The Court issued an Address to Parliament in view of regulating the procedure of challenging such decisions (currently, the decision of refusing to raise the exception cannot be challenged separately with recourse, but only along with the merits of the case).
The Court held that, in the event of refusing to raise the exception of unconstitutionality and solving the litigation without a prior judgment on this case delivered by the constitutional court, the ordinary judge would acquire prerogatives unsuitable to a trial court. For these reasons, the Court ruled that an ordinary judge shall not rule on the merits of the complaint or the constitutionality of the challenged provisions, limiting himself/herself exclusively to verifying the fulfilment of the following conditions:
- the object of the exception falls into the category of acts contained in Article 135.1.a of the Constitution;
- the exception is raised by a party or its representative, or indicates that it is raised by the trial court ex officio;
- the challenged provisions shall be applied in settling the case;
- there is no earlier judgment of the Court dealing with the challenged provisions.
The Court held that the constitutionality control of challenged provisions constitutes the exclusive competence of the Constitutional Court. Therefore, ordinary judges are not entitled to refuse the parties to apply before the Constitutional Court, except the cases when the abovementioned conditions are not fulfilled. Therefore, any trial court called upon to solve a case, in the event of a doubt on the constitutionality of a provision, has both the power and the duty to apply before the Constitutional Court.
- Equality of judges
In order to understand the authentic meaning, which the constituent legislator provided for in Article 135.1.g of the Constitution, it is necessary to analyse and to point out the constitutional status of a judge.
According to Article 115 of the Constitution, justice shall be administered by the Supreme Court of Justice, courts of appeal and courts of law. Similarly, under Article 116 of the Supreme Law, judges sitting in trial courts are independent and shall abide only by the law. The independence of judges is one of the fundamental principles of organizing and carrying out justice. In applying the law, the independence of judges excludes the notion of hierarchy and subordination. Having the role of solving litigations in an objective manner, according to the law, and being a power per se, judges cannot receive orders, instructions or suggestions of any kind in regard to their judicial activity, nor inside or outside the judiciary.
In this context, the Court held that judges shall have sufficient powers and shall be able to exercise them in view of performing their tasks. Therefore, the provisions of Articles 135.1.a and 135.1.g of the Constitution cannot be interpreted as restricting the right of other trial courts to apply before the court of constitutional jurisdiction. Namely, such an interpretation guarantees the constitutional principle of independence of all judges in judicial proceedings and the supremacy of the Constitution in the defending the fundamental rights and freedoms.
In this context the Venice Commission stated that ”while this is an effective tool to reduce the number of preliminary questions and consistent with the logic of exhaustion of remedies (the individual should follow the ordinary sequence of courts), this leaves parties to proceedings in a potentially unconstitutional situation for a long period of time if lower courts are obliged to apply the law even if they have serious doubts as to its constitutionality. From the viewpoint of human rights protection, it is more expedient and efficient to give courts of all levels access to the constitutional court. There are also other alternatives. In Germany, for example, all courts have to take into consideration all questions of constitutional law and they are obliged to refer a question to the Constitutional Court, if they are convinced that a certain norm is unconstitutional – mere doubts are not sufficient. This helps both to reduce the number of preliminary questions without unnecessarily prolonging rather obvious unconstitutional situations”.
Based on these considerations and taking into account the essence of the institution “exception of unconstitutionality”, the Court ruled that the right to raise the exception belongs to all trial courts, respectively to judges within this courts, and lodging an application on constitutionality control of certain provisions to be enforced in solving a case shall be applied directly before the Constitutional Court by the judges/panels of judges of the Supreme Court, courts of appeal and courts of law, where this cases are pending.
Thus, to guarantee the enforcement of this constitutional mechanism, the exception of unconstitutionality shall be adjudicated exclusively by the constitutional court upon appeal by judges of all trial courts.
Analysing this article, I had a certain dilemma in regard to the title that I shall put. I was looking for something equally brief, and covering. Eventually I gave up this solution as there are topics that cannot be simplified. Excessive simplification is likely to deprive of content, or as Albert Einstein said „Everything should be made as simple as possible, but not simpler”. I am absolutely convinced that the Judgment no. 2 of the Constitutional Court from 9 February 2016 is revolutionary and will lead to profound changes in justice. I will continue by referring to a few effects, which I think will arise in the short and medium term.
The Judgment no. 2 of the CCM from 9 February 2016, in fact, grants a person an actual legal instrument that allows him/her to make the most of the rights guaranteed by the Constitution. Since this institution leads to the elimination, from the legal space, of provisions contrary to the Constitution, there will happen a cleansing of the legal order from unconstitutional provisions.
By granting every individual that is part of proceedings, the possibility to raise an exception of unconstitutionality, the existing mechanism for protection of human rights shall be redefined, representing the first significant step towards the introduction of an individual complaint before the Constitutional Court.
Besides this important aspect, there shall be obtained a series of collateral effects, which are no less important. Unlocking the mechanism of raising the exception of unconstitutionality shall determine the trial courts to use the Constitution and the case law of the Constitutional Court, and shall urge the judges to distance themselves, when necessary, from purely positive approaches of the law and to accept the use of interpretative approaches of the law, hence the spirit of the law, and not only from certain rigid regulations applied ad litteram. Thus, shall be guaranteed the legal supremacy of the Constitution within the legal internal order, putting an end to the anomaly in the judicial practice, which did not allow the useful invocation of the supreme provision in a procedure, when a law was saying something else.
Expanding the mechanism of the exception of unconstitutionality shall generate progress in protecting the rights and freedoms, without affecting the legal security. This will allow the repeal of acts contrary to the rights and freedoms guaranteed by the Constitution still in the examination phase of the proceedings before trial courts, without reaching the revision of the final decision, as is in the case when the criticized provisions are declared unconstitutional only after the case has been settled.
One last effect (as succession, not as importance) that I want to refer is related to the depoliticization of the agenda of the Constitutional Court. In the situation when the majority of complaints pending before the Court would arise from trial courts, and not from the political environment, we will assist not only at the substantial depoliticization of the agenda of the Constitutional Court, but at such an evolution of its case law, which shall fundamentally change the nature of the Court. As the number of the exceptions of unconstitutionality will increase, we shall witness the emergence of a case law equally useful and usable for trial courts, which shall resize, on a qualitatively new level, the national mechanisms of human rights protection.
Finally, it would be the case to return to a statement made on other occasions: the development of judicial review of laws and its forms has been based mostly on the result of jurisdictional activity and not on the expression of will of the legislator. Functionality of any law institutions, including the exception of unconstitutionality, depends to the utmost extent not so much on the existing legal regulations as on the effectiveness of enforcement mechanisms. This was the reason why the Constitutional Court, by way of evolutionary interpretation of the Constitution, made possible the plenary functioning of this institution.
 Judgment of the Constitutional Court of Moldova no. 9 of 14 February 2014 on the interpretation of Article 135.1.a of the Constitution; Judgment of the Constitutional Court of Moldova no. 32 of 29 December 2015 on constitutional review of the Decree of the President of Moldova no. 1822-VII of 21 December 2015 on nomination of a candidate for the office of Prime Minister.
 Judgment of the Constitutional Court of Moldova no. 15 of 6 May 1997 on the interpretation of Article 135.1.g of the Constitution of the Republic of Moldova
 Judgment of the Constitutional Court of Moldova no.2 of 9 February 2016 on the interpretation of Article 135.1.g of the Constitution of the Republic of Moldova (exception of unconstitutionality). §100,101,104
 Horea Crisan. Procedure to raise the exception of unconstitutionality// Fiat Iustitia, no.2/2011
 Study on “Strengthening the role of the Constitutional Court of the Republic of Moldova”, 2015
 Stephane de la Rosa. Droit constitutionnel et CEDH, PUF, 2009/5, no. 80, p. 819.
 Gabriele Kucsko-Stadlmayer. Les recours individuels devant la Cour constitutionnelle en droit constitutionnel autrichien // Les Cahiers du Conseil Constitutionnel, 2001, nr. 10, DALLOZ, p. 89.
 Armin Dittmann. Le recours constitutionnel en droit allemande // Les Cahiers du Conseil Constitutionnel, 2001, nr. 10, DALLOZ, p. 72.
 Judgment of the Constitutional Court of Moldova no. 15 of 6 May 1997 on the interpretation of Article 135.1.g of the Constitution of the Republic of Moldova, §73
 Marbury v. Madison (1803) landmark United States Supreme Court case
 Judgment of the Constitutional Court of Moldova no. 15 of 6 May 1997 on the interpretation of Article 135.1.g of the Constitution of the Republic of Moldova, §81
 Ibidem, §88
 Ibidem, §97
 Study on individual access to constitutional justice – Adopted by the Venice Commission at its 85th Plenary Session (Venice, 17-18 December 2010) CDL-AD(2010)039, §62