Moldova’s Constitutional Court Strikes Down Von Hebel Amendment, Not Appointment

The Constitutional Court annulled the amendment ‘tailored for von Hebel’, but not his appointment

The Constitutional Court of the Republic of Moldova has declared unconstitutional the amendments which allowed the appointment of the Dutch citizen Herman von Hebel to the External Evaluation Commission for Prosecutors by a simple majority vote of MPs. However, this decision does not mean that his appointment is automatically annulled. The Constitutional Court specified separately that the ruling applies to future legal relationships and does not affect acts previously adopted on the basis of the contested provisions.

Domnica Manole

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On Thursday, 15 October, the Constitutional Court upheld the petition lodged by five opposition MPs — Ion Chicu, Alexandr Berlinschii, Adrian Lebedinschi, Alexandr Verșinin and Diana Caraman. The Court declared unconstitutional provisions in two laws governing the external evaluation of judges and prosecutors.

Opposition politicians were quick to welcome the decision, calling it “a triumph of justice” and “a first victory”. But the joy did not last long.

On 5 March, the PAS parliamentary majority amended the procedure for appointing foreign members to the external evaluation commissions for judges and prosecutors. Instead of three-fifths of the elected MPs — 61 votes — a simple majority, i.e. 51 votes, became sufficient for the appointment.

The amendment came about after von Hebel’s candidacy failed to secure the necessary support in the initial vote. The very next day, on 6 March, Herman von Hebel and Bernard Lavigne were appointed as members of the External Evaluation Commission for Prosecutors. Fifty-three PAS MPs voted in favour of this decision.

Today, opposition MPs once again experienced a moment of ‘Spanish shame’.

The Constitutional Court annulled the amendment, but not the appointment

The key aspect of the decision is that the Constitutional Court declared the provisions amending the voting procedure to be unconstitutional, but did not directly overturn Parliament’s decision regarding von Hebel’s appointment.

The President of the Constitutional Court, Domnica Manole, explained that the breach lay in the procedure for adopting the amendment.

“The amendment lacked the necessary substantive link to the original bill; consequently, Parliament breached the legislative procedure laid down by the Constitution,” stated Manole.

Consequently, the declaration that the amendments are unconstitutional does not automatically entail the annulment of the appointment made on the basis of those amendments. Therefore, the Court’s ruling has effect for future legal relationships and does not annul decisions and acts adopted previously.

Thus, the legal victory of those who lodged the complaint does not mean the automatic termination of von Hebel’s term of office. Declaring the procedure that allowed his appointment to be unconstitutional and annulling the appointment itself are two distinct legal matters.

Consequently, the opposition’s calls for von Hebel’s resignation have come up against the wall of constitutional logic. Herman von Hebel, whose name has been linked to several scandals, including at the Hague Court — allegations which he has, however, denied — and who was appointed on the basis of an ‘unconstitutional’ amendment, remains in office.

On the moral aspect of the case

The former Minister of Justice, Alexandru Tănase, emphasises that the declaration of the amendment’s unconstitutionality cannot, in itself, constitute grounds for the annulment or revision of these decisions. Legislative acts are presumed to be constitutional until proven otherwise, and the rulings of the Constitutional Court generally have prospective effect.

According to Tănase, it would be wrong to claim that decisions adopted with von Hebel’s involvement become vulnerable simply because the legislative provision was subsequently declared unconstitutional. Furthermore, a fundamental distinction must be made. The Constitutional Court declared two legislative provisions unconstitutional, but did not annul the individual act appointing Herman von Hebel to office. Consequently, the Court’s ruling does not, in itself, entail the termination of his term of office.

‘However, what can be defended legally is not always morally justifiable. Normally, we would have expected Mr von Hebel to resign honourably. I am, however, by no means convinced that we will witness such a gesture,’ concluded the former minister.

Later, the vetting commission issued a statement noting that it takes note, “in particular, of the clarifications provided by the President of the Constitutional Court, according to which the ruling applies prospectively and does not affect acts previously adopted on the basis of the provisions in question,” and that it “continues its work in the exercise of the powers vested in it…”

This story was translated with the assistance of artificial intelligence.The translation was also reviewed by the Logos Press editorial team.

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