Published on 11 October 2021
SECOND SECTION
Application no. 73942/17
Oleg HALABUDENCO
against the Republic of Moldova and Russia
lodged on 29 September 2017
communicated on 11 July 2018 and 21 September 2021
The facts and complaints in this application have been summarised in the Court’s Questions to the parties, which is available in HUDOC.
QUESTIONS TO THE PARTIES
1. I. Background
1. Has the “MRT”‘s legal system evolved since the Court’s judgments (Ilaşcu and Others v. Moldova and Russia ([GC] no. 48787/99, 8 July 2004, ECHR 2004-VII); Catan and others v. Republic of Moldova and Russia ([GC] nos. 43370/04, 18454/06 and 8252/05, 19 October 2012, ECHR 2012), and Mozer v. Republic of Moldova and Russia ([GC] no. 11138/10, 23 February 2016)) in a manner which would reflect a judicial tradition considered compatible with the Convention principles? Please, submit a number of concrete examples of court decisions and/or judgments.
2. Is the European Convention on Human Rights directly applicable in court proceedings on the territory of the “MRT”, or has it been incorporated into its legal system, and if so, in what form?
3. Alternatively, do the “MRT” courts apply the Convention principles and/or do they take into account the case-law of the Court when examining cases before them? Please, submit a number of concrete examples of court decisions and/or judgments.
II. Judicial system of the “MRT”
4. Are the right of everyone to judicial protection of his rights and freedoms, the right to appeal against unlawful decisions and actions of the state authorities, officials, public associations in court guaranteed by/incorporated in any other legal provision/s (Act/s) of the “MRT” judicial system? In practice, are these rights applied identically in proceedings concerning civil, criminal and administrative matters?
5. Does the Supreme Court of the “MRT”, as the highest judicial body in the “MRT” judicial system constitute an appellate or a cassation instance? Alternatively, is the appellate function exercised by the regional (city) courts? Are the appellate instances within the “MRT” judicial system the courts of full jurisdiction regarding civil, administrative and criminal matter? What are the concrete conditions to be complied with to appeal against a decision on the merits of a first instance court?
6. From the observations of the Russian Government it appears that under Article 29 § 3 of the “Constitutional Law” of the “MRT” of 2005, one of the functions of the judicial community bodies is discussion of issues of judicial practice. In this respect, what is the full title of the “Constitutional Law” of the “MRT” of 2005” and what its Article 29 § 3 (a) provides for? Moreover, what are the functions and competences of the Congress of Judges, the Council of Judges, the Meeting of Judges, the Conference of Judges of District Court and the Qualification Panel of Judges? In which form and with what frequency do these bodies act under Article 29 § 3 (a) of the “Constitutional Law” of the “MRT”? What are the concrete points of discussion of issues of judicial practice and what are the results and consequences?
7. Have residents in the territory of the “MRT” had the possibility to submit their civil and administrative claims directly to courts functioning on the territory of the “MRT”, or do have they to do so through the Moldovan or Russian judicial authorities? In other words, which elements fall within the term “the right to judicial protection of ... rights and freedoms”?
8. In civil and administrative proceedings, can parties be represented by professional lawyers? In the “MRT” does there exist one or more Bar associations? If so, what are the conditions for becoming a barrister in the “MRT”?
9. According to the Russian Government’s observations, as a general rule, judges are appointed for an indefinite term, until they reach the age of 65 years, their first appointment (judges at general courts) lasting only five years, and judges at the Constitutional Court seven years. If the judges could exercise their function until their 65 years, how is their professional career regulated? Who/which authority decides to which court they are appointed and when? Are such decisions influenced directly/indirectly by the Russian authorities? What are the guarantees against an eventual attempt to influence a particular, potentially arbitrary decision? More precisely, who/which authority appoints judges to the general courts including the Supreme Court? What are the conditions for their appointment? Can their mandates be renewed?
III. Constitutional Court
10. According to the Russian Government’s observations, the Constitutional Court of the “MRT” examines complaints of citizens of violations of the rights and freedoms of “man and citizen” (человека и гражданина) which have taken place as a result of application of a law or statutory act. In this context, what are the competences of the Constitutional Court? May any person in general terms, claiming to be the victim of a violation of law or statutory act by a “MRT” authority, address directly (being legally represented) the Constitutional Court? What are the admissibility conditions?
11. Which authorities propose candidates for judges at the Constitutional Court?
12. What are the conditions to become a judge at the Constitutional Court?
13. Are there concrete guarantees of independence and impartiality of judges?
14. It appears that currently, six judges work at the Constitutional Court and seven other judges have resigned. They received their legal education in Chisinau (Moldova), Kharkiv (Ukraine) and Odessa (Ukraine). Ukraine played a role in the development of the “MRT” Constitutional Court: in 2004, a Cooperation Agreement between the Constitutional Court of the “MRT” and the Odessa National Academy of Law was signed.
In this connection, how many judges are currently appointed at the Constitutional Court to form the Plenary?
15. Given the fact that judges take decisions on the constitutional level in the name of the “MRT”, is their legal education in Kharkov and Odessa equivalent to the education in Chisinau? Is Moldovan law identical to “MRT” law? Is there any law school/Faculty of Law in the “MRT”?
16. Have the judges at the Constitutional Court to demonstrate concretely their independence and impartiality in respect of political issues?
17. For which purposes must the Constitutional Court of the “MRT” adopt annually a “Message of the Constitutional Court of the “MRT” about the state of constitutionality in the “MRT””. What are the consequences if the Message indicates mistakes and defects in complaints and applications preventing initiation of a case?
IV. Commercial court and arbitration proceedings
18. Consideration of economic disputes falls within the jurisdiction of the Commercial Court of the “MRT”, which has the first, cassation and supervisory instances. Currently, there is no appellate instance for economic disputes in the “MRT”. Are, therefore, the first instance courts the only instance with full jurisdiction?
19. It appears that the Plenum of the Commercial Court performs the function of the supervisory instance. The functions of the Plenum include analysis and summarising of judicial practice, adoption of judgments explaining the most complex and controversial issues of judicial practice, as well as giving explanations in order to provide methodological support to persons seeking judicial protection. Shall the functions of the Plenum substitute the absence of the appellate instance for economic disputes in the “MRT”?
20. Moreover, having regard to the legislative initiative of the Plenum, what is a legislative organ of the “MRT”? Is the legislative power of the Plenary of the Commercial Court equivalent to the “MRT” legislative organ, i.e. the Supreme Council of the “MRT”?
21. Is the Plenum of the Commercial Court authorised to supervise the work/decision acts of different instances of the arbitration proceedings?
V. Courts of general jurisdiction: civil, criminal and administrative proceedings
22. According to the Russian Government’s observations, courts of general jurisdiction consider the majority of cases in civil and administrative matters. Which courts examine the remaining cases, in particular criminal cases, apart from the Supreme Court of the “MRT”?
23. The Supreme Court of the “MRT” consists of the President, his deputies, the judicial boards, the Presidium and the Plenum, which is a judicial instance. Moreover, both the Presidium and the Plenum of the Supreme Court of the “MRT” act as the supervisory instances in the “MRT” judicial system. In that legislative framework, the Presidium acts as a classical and traditional instance, while the Plenum acts as the last supervisory instance verifying and reviewing judicial acts of the Presidium. From this perspective, are opinions of the Plenum binding? Can the Plenum modify or quash the opinions of the Presidium?
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