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Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of October 17, 2017 No. 28

About interpretation of provisions of Art. 98 of the h. (6) in combination to the Art. 1, the Art. 56, the Art. 91, Art. 135 and Art. 140 of the Constitution of the Republic of Moldova (non-execution of the constitutional obligations from the President) (the address No. 124b/2017)

Constitutional court in structure:

Tudor Pantsyru, chairman,

Auryl to Beesh,

Igor Dolya,

Victoria Iftodi,

Victor of Pop,

Vyacheslav Zaporozhan, judges,

with the assistance of the secretary of meeting Anna Floryan,

in view of the address provided and registered on September 19, 2017

having considered the specified address in the consultative room,

considering acts and case papers,

having carried out discussion in the consultative room,

issues the following decree.

Points of order

1. The appeal of the Government of the Republic of Moldova brought into the Constitutional court on September 19, 2017 according to provisions of Art. 135 of the h formed the basis for consideration of the case. (1) item b) Constitutions, Art. 25 of the item b) Law on the Constitutional court and Art. 38 of the h. (1) the item b) the Code of the constitutional jurisdiction about interpretation of Art. 98 of the h. (6) Constitutions of the Republic of Moldova.

2. The author of the address requires to give interpretation of Art. 98 of the h. (6) Constitutions for the purpose of clearing of the following aspects:

"1. What actions shall be taken the Prime Minister and Parliament of the Republic of Moldova if the President of the Republic of Moldova rejects the candidacy for the minister's position twice?

2. How to resolve this situation to exclude institutional blocking if the President of the Republic of Moldova breaks the constitutional obligations and does not appoint for the second time the candidacy proposed by the Prime Minister, realizing the fact that discharge of the head of state from position is impossible?

3. Whether for the purpose of ensuring national security it is possible and in what conditions assumption of office of the Minister of Defence - the candidate which is repeatedly offered by the Prime Minister if within 14 days the president does not issue the relevant decree?"

3. The constitutional court made the decision to combine permission of question of the address acceptability with substantive prosecution.

4. During consideration of the address the Constitutional court requested opinion of Parliament and the President of the Republic of Moldova.

Actual circumstances

5. In the Resolution No. 2 of January 24, 2017 the Constitutional court determined that in sense of Art. 98 of the h. (6) Constitutions:

- The president of the Republic of Moldova can reject only once and reasonably the candidate for vacant position of the minister proposed by the Prime Minister if considers that this candidate does not conform to requirements about execution of position of the member of the government, the established law;

- the Prime Minister can propose other candidacy for the minister's position or repeatedly propose the same candidate, in this case the President shall appoint this candidate.

6. The Prime Minister of the Republic of Moldova proposed on September 12, 2017 to the President of the Republic of Moldova the candidacy for the place exempted on December 27, 2016 owing to response of the Minister of Defence.

7. The president of the Republic of Moldova rejected on September 13, 2017 the offer of the Prime Minister on position assignment of the Minister of Defence, referring to absence at the candidate of professional training in the field, ignorance of specifics of military science and lack of the authority on armed forces, and also in connection with the arisen doubts in integrity of the candidate and "participation in games of politics, especially in plays of doubtful nature".

8. At press conference the President declared that he has own candidate whom he decided "recommend to the Government […] for promotion to position of the Minister of Defence".

9. The Prime Minister proposed on September 14, 2017 the same candidacy for position of the Minister of Defence.

10. The president of the Republic of Moldova again rejected on September 18, 2017 the candidacy proposed by the Prime Minister for position of the Minister of Defence.

Applicable legislation

11. Applicable provisions of the Constitution (repeated publication in M.O., 2016, No. 78, Art. 140):

Article 1 State Republic of Moldova

(" […] (3) the Republic of Moldova – the democratic constitutional state in which advantage of the person, its rights and freedom, free development of the human person, justice and political pluralism are the supreme values and are guaranteed".

Article 56 Commitment to the country

"(2) Citizens to whom the state positions are entrusted […] bear responsibility for fair execution of the obligations […]".

Article 79 Recognition of Powers and Bringing of the Oath

"(2) the Candidate, which election acknowledged valid not later than in 45-day time after elections brings the following oath before Parliament and the Constitutional court:

"I swear to direct all the efforts and ability for prosperity of the Republic of Moldova, to observe the Constitution and the laws of the country, to protect democracy, basic rights and human freedoms, sovereignty, independence, unity and territorial integrity of Moldova".

Article 91 Temporary fulfillment of duties of the President

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