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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of June 23, 2020 No. 17

About control of constitutionality of some provisions of the Law No. 212 of June 24, 2004 on the modes of emergency, obsidional and warlike situation and some provisions of the Resolution of Parliament No. 55 of March 17, 2020 about the announcement of emergency state (the address No. 47a/2020 of year and No. 88a/2020 of year)

Name of the Republic of Moldova

Constitutional court in structure:

Domnika Manole, chairman,

Eduard Ababey,

Nicolae Roshka,

Liouba Shova,

Sergey Tsurkan,

Vladimir Tsurkan, judges,

with the assistance of the assistant judge Dumitra Avornik,

in view of addresses,

registered on March 23, 2020 and on June 4, 2020,

having considered these addresses in open plenary meeting,

considering acts and case papers,

having carried out discussion in the consultative room,

issues the following decree.

Points of order

1. The addresses brought into the Constitutional court on March 23, 2020 and on June 4, 2020 according to the procedure of Art. 135 of h (1) the item and) formed the basis for consideration of the case to the Constitution, Art. 25 of the item g) the Law on the Constitutional court and Art. 38 of h (1) the item g) the Code of the constitutional jurisdiction, Andrian Kandu, Sergey Syrbu, Korneliu Padnevich, Eleonora Graur and, respectively, Kirill Motspan, deputies of Parliament of the Republic of Moldova.

2. Authors of the address No. 47a/2020 of ask the Constitutional court to check constitutionality of following provisions:

- Articles I Items 2, 3, 4 and 5 Laws No. 54 of March 17, 2020 on introduction of amendments to the Law No. 212/2004 on the modes of emergency, obsidional and warlike situation;

- Articles 20 of the item k), 22 h (1) the item i), 24 items g) and 25 items j) the Law No. 212 of June 24, 2004 on the modes of emergency, obsidional and warlike situation, and

- syntagmas of "other actions necessary" in Article 2 of the item 12) Resolutions of Parliament No. 55 of March 17, 2020 about the announcement of emergency state.

3. The author of the address No. 88a/2020 of asks the Constitutional court to check constitutionality of Articles 20 of the item k), 22 h (1) the item i), 24 items g) and 25 items j) the Law No. 212 of June 24, 2004 on the modes of emergency, obsidional and warlike situation.

4. Authors of addresses consider that the challenged provisions contradict Articles 1 of h (3), 4, 6, 7, 23, 54, 60, 66, 72, 76, 96 and 102 Constitutions.

5. Authors of the address No. 47a/2020 of sent request about suspension of action of the challenged provisions. Determination No. 36 of March 24, 2020 the Constitutional court denied this request.

6. Determinations of the Constitutional court of April 7, 2020 and of June 9, 2020, without decision in essence, addresses No. 47a/2020 of and No. 88a/2020 of were recognized as acceptable.

7. In view of identity of subject of the provided addresses, the Constitutional court, according to provisions of article 43 of the Code of the constitutional jurisdiction, determination of June 9, 2020 decided to combine them in one production, having appropriated it No. 47a/2020 of.

8. In proceedings on the reference the Constitutional court requested opinions of Parliament, the President of the Republic of Moldova, the Government, the National lawyer, the Government agent, the Prosecutor General's Office, Service of information and safety, the Ministry of Internal Affairs, Institute of legal, political and social researches, the Center of legal resources of Moldova, Promo-LEX Association and Institute of development and social initiatives of "Viitorul".

9. At open session of the Constitutional court there were deputies of Parliament Sergey Syrbu and Kirill Motspan, authors of addresses, to Dumitr Buliga, the representative of the deputy Kirill Motspan, Rada Rada, the representative of Parliament, and Doreen Lishman, the representative of the Government.

Actual circumstances

10. The parliament of the Republic of Moldova adopted on March 17, 2020 the Law No. 54 on introduction of amendments to the Law on the modes of emergency, obsidional and warlike situation. Expanded with this law Parliament range of the measures applied during emergency state.

11. Besides, the Parliament determined that during emergency state the Commission on emergency situations, the Service of civil protection and emergency situations and the Ministry of Internal Affairs can perform and "other necessary powers" in addition to directly provided Law on the modes of emergency, obsidional and warlike situation.

12. On the same day after adoption of law No. 54 (on March 17, 2020) the Parliament accepted the Resolution No. 55, which declared state of emergency in all territory of the Republic of Moldova during the period from March 17 to May 15, 2020 in connection with the epidemiological situation caused by COVID-19 infection.

13. In article 2 of the Resolution Parliament determined the list of measures which it is necessary to undertake the Commissions on emergency situations. The Item 12) of the same Article provides that the Commission on emergency situations can perform and "other operations necessary for the prevention, mitigations and mitigations of consequences of pandemic of coronavirus (COVID-19)".

Applicable legislation

14. Applicable provisions of the Constitution:

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 4

Human rights and freedoms

"(1) the Constitutional regulations on human rights and freedoms are interpreted and applied according to the Universal Declaration of Human Rights, pacts and other agreements, one of the parties of which is the Republic of Moldova.

(2) with discrepancies between pacts and agreements on fundamental human rights, one of the parties of which is the Republic of Moldova, and the internal laws the international standards have priority".

Article 6

Separation and interaction of the authorities

"In the Republic of Moldova the legislative, executive and judicial authorities are divided and interact when implementing the prerogatives according to Constitution provisions".

Article 7

The constitution - the supreme law

"The constitution of the Republic of Moldova is ee the supreme law. Any law or other legal act contradicting Constitution provisions have no legal force".

Article 23

Right of each person to knowledge of the rights and obligations

"(1) Each person has the right to recognition of its legal personality.

(2) the State provides the right of each person to knowledge of the rights and obligations. For this purpose the state publishes all laws and other regulations and provides their availability".

Article 54

Restriction of implementation of the rights or freedoms

"(1) In the Republic of Moldova the laws prohibiting or diminishing the rights and fundamental freedoms of man and citizen cannot be adopted.

(2) Implementation of the rights and freedoms is not subject to any restrictions, except those which are provided by the law, meet the universally recognized norms of international law and protection of the rights, freedoms and advantage of other persons, prevention of disclosure of information obtained confidentially or ensuring authority and impartiality of justice are necessary for the benefit of homeland security, territorial integrity, economic well-being of nation, public order, for the purpose of prevention of mass riots and crimes.

(3) part Provisions (2) restrictions of the rights proclaimed in Articles 20 - 24 do not allow.

(4) Restriction shall correspond to the circumstance which caused it and cannot affect existence of the right or freedom".

Article 60

Parliament - the highest representative and legislature

"(1) the Parliament is the supreme representative body of the people of the Republic of Moldova and the single legislature of the state.

[…]".

Article 66

Main powers

"The parliament has the following main powers:

a) adopts the laws, resolutions and resolutions;

[…]

f) exercises parliamentary control of the executive authority in the forms and limits provided by the Constitution;

g) ratifies, denounces, suspends and cancels the international agreements signed by the Republic of Moldova;

[…]

m) announces emergency, obsidional and warlike situation;

[…]

r) performs other powers established by the Constitution and the laws".

Article 72

Types of the laws

"(1) the Parliament adopts the constitutional, organic and ordinary laws.

[…]

(3) are regulated by the Organic law:

[…]

m) mode of emergency, obsidional and warlike situation;

[…]

p) other areas on which the Constitution provides adoption of the organic laws;

r) other areas, on which Parliament acknowledged necessary adoption of the organic laws.

(4) the Ordinary laws are effective in all areas of the public relations, except for the areas regulated by the constitutional and organic laws".

Article 76

The introduction of the law in force

"The law is published in the Official monitor of the Republic of Moldova and becomes effective in day of publication or in time, provided in the law. Neopublishing of the law attracts its invalidity".

Article 96

Role [Governments]

"(1) the Government provides carrying out domestic and foreign policy of the state and performs the common directorship of public management.

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