The Constitutional Court has declared unconstitutional the article which provides that a judge may be suspended from office, upon request or ex officio, by decision of the Superior Council of Magistracy, if the disciplinary college has proposed his or her dismissal. The complaint concerning the exception of unconstitutionality was lodged by Judge Mihail Cojocaru, who was disciplined with “dismissal from office”.

Thus, the Court declared unconstitutional the measure of suspension by operation of law imposed by Article 24 para. (11) (b) of the Law on the Status of Judges. However, the Court did not rule out the possibility of the disciplinary panel suspending the judge from office in cases where the disciplinary panel has proposed that the judge be relieved of his or her duties, “if this measure is proportionate to the underlying situation”.

Pending amendment of the relevant legislation in line with the considerations of the Court’s judgment, judges whose suspension from office has been ordered will be able to challenge it separately in accordance with the procedure laid down in Article 24(2) of the Rules of Procedure. (6) of the Law on the Status of Judges.

“The Constitutional Court has observed that the measure of suspension is decisive for the civil right of judges to exercise their office. Although suspended judges continue to receive their salaries, this aspect is of importance in relation to redressing the effects of their suspension. However, the receipt of salaries is not directly linked to the fact that suspended judges do not have access to the courts to challenge their suspension. The regime of incompatibilities and prohibitions in the Law on the Status of Judges continues to apply to suspended judges. They are forced, in practice, to stagnate professionally, sometimes with serious consequences for their reputation and their private life in general,” said Constitutional Court President Domnica Manole at a press briefing on Thursday 9 February.

The Court held that the suspension of the judge whose dismissal was proposed by the disciplinary panel, without the possibility of challenging this measure separately before a court, “affects the very essence of the right of access to justice”.

“The measure of automatic suspension of the judge from office is disproportionate and therefore unconstitutional, because it does not offer the possibility of benefiting from the guarantees inherent in Articles 20 and 116 of the Constitution,” said Domnica Manole.

Mihail Cojocaru: Judge sanctioned with “removal from office”

Mihail Cojocaru has been working as a magistrate at the Balti Court of Appeal, central seat, since 2015. In 2021, he wanted to retire and submitted a request to do so, but later changed his mind, with the CSM accepting the withdrawal of the request 14 days after accepting it. In 2017, Magistrate Cojocaru was the subject of disciplinary proceedings, which were terminated on the grounds that no disciplinary offence had been committed. In March 2022, he was disciplined with a “warning” on the grounds that, without reasonable justification, he had not properly fulfilled his duties. And on 22 April 2022, the Disciplinary College (CD) of the CSM examined the disciplinary case brought on the basis of the complaint filed by the former president of the Balti Court Gherasim Dumitru, and the judge was disciplined with “dismissal from office”. However, the magistrate challenged the decision at the CSM. The Chisinau Court of Appeal is currently examining the request for suspension of the administrative act.

Mihail Cojocaru withdrew from the competition for the position of member of the Superior Council of Magistracy (CSM).

Mihail Cojocaru came to public attention in June 2021 when he spoke about being discriminated against in relation to his degree of disability. The magistrate has a marked disability, mainly locomotor. Although he presented a disability certificate when he was hired, he did not benefit from the special conditions he was entitled to. So, after five years of working 40 hours a week for 30 hours, in 2019, the magistrate turned to the CSM. Subsequently, although the CSM recognized his right and decided to reduce the time and volume of work, the management of the Balti Court did not accept his request for recalculation of his pension. In this context, the magistrate referred the matter to the Constitutional Court, which ruled that employees receiving disability pensions are entitled to request recalculation of their pension, as previously only employees who reached the age limit benefited from recalculations.