Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of April 10, 2018 No. 6

About exceptional case of illegality of some provisions of the Law No. 269 of December 12, 2008 on application of testing on the detector of simulation (polygraph) and the Law No. 132 of June 17, 2016 on National authority on integrity (testing on polygraph) (the address No. 147g/2017)

Constitutional court in structure:

Mihai Poalelunzh, chairman,

Auryl to Beesh,

Igor Dolya,

Victor of Pop,

Vyacheslav Zaporozhan, judges,

with the assistance of the secretary of meeting Georgy Renitse,

in view of the address provided and registered on November 10, 2017

having considered the specified address in open session,

considering acts and case papers,

having carried out discussion in the consultative room,

issues the following decree.

Points of order

1. The address about exceptional case of illegality of Art. 4 of the item and), the item and-1) and the item and-2) the Law No. 269 of December 12, 2008 on application of testing on the detector of simulation (polygraph), and also Art. 11 of the h formed the basis for consideration of the case. (10), h. (11) and h. (12) the Law No. 132 of June 17, 2016 on National authority on integrity, provided at the request of the party in the course of Theodor Kyrnats, within the case No. 3-759/17, considered by court of Chisinau, the sector Buyukan.

2. The address the judge brought into the Constitutional court on November 10, 2017 the vessels Chisinau, the sector Buyukan, Petra Harmanyuk, based on Art. 135 of the h. (1) the item and) and the item g) Constitutions, in the light of its interpretation by the Resolution of the Constitutional court No. 2 of February 9, 2016.

3. The author of the address considers that provisions of Art. 4 of the item and), the item and-1) and the item and-2) the Law No. 269 of December 12, 2008 on application of testing on the detector of simulation (polygraph), and also Art. 11 of the h. (10), h. (11) and h. (12) the Law No. 132 of June 17, 2016 on National authority on integrity, contradict Art. 1 of the h. (3), Art. 16, Art. 28, Art. 39, Art. 43 and Art. 54 of the Constitution.

4. Determination of the Constitutional court of December 15, 2017, without decision in essence, the address was the item which is acknowledged accepted regarding implementation of the constitutional control of Art. 4 and-2) the Law No. 269 of December 12, 2008 on application of testing on the detector of simulation (polygraph), and also Art. 11 of the h. (10), h. (11) and h. (12) the Law No. 132 of June 17, 2016 on National authority on integrity. At the same time this determination the address was acknowledged unacceptable regarding implementation of the constitutional control of Art. 4 of the item and) and the item and-1) the Law No. 269 of December 12, 2008 on application of testing on the detector of simulation (polygraph).

5. During consideration of the address the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government, the National center for fight against corruption, Council for integrity and National authority on integrity.

6. In open session of the Constitutional court the address was supported by the author, Theodor Kyrnats. From Parliament the chief of service of representation took part in the Constitutional court and law enforcement agencies of general legal management of the Secretariat of Parliament, Valeriu Kuchuk. From the Government Eduard Serbenko, the state secretary of the Ministry of Justice participated.

Circumstances of the main dispute

7. The resolution No. 6 of October 9, 2017 on results of testing on the simulation detector (further - testing on polygraph) Council for integrity determined that the participant of contest for post of the chairman of National authority on integrity Theodor Kyrnats who passed the written test and had interview because of negative result of testing on polygraph was not included in final phase of tender. Based on this resolution the new contest for post of the chairman of National authority on integrity was announced.

8. Theodor Kyrnats submitted on October 12, 2017 to Council for integrity the application for cancellation of the specified resolution and repeating of the test on the detector.

9. The resolution No. 7 of October 23, 2017 Council for integrity rejected the statement, having specified that only the candidates who successfully passed the test on polygraph can hold position of the chairman or vice-chairman of National authority on integrity and that repeated testing is impossible.

10. Theodor Kyrnats made on October 25, 2017 in administrative court the complaint to the Resolution of Council for integrity No. 6 of October 9, 2017, requiring to repeal the resolution, including its illegal and to oblige Council for integrity to repeat testing with involvement of the independent polygraphologist.

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