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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of December 7, 2021 No. 37

About exceptional case of illegality of some provisions of Article 343-8 of the Code of civil procedure (test result assessment on professional integrity) (the address No. 41g/2021 of year)

Name of the Republic of Moldova

Constitutional court in structure:

Domnika Manole, chairman,

Nicolae Roshka,

Liouba Shova,

Sergey Tsurkan,

Vladimir Tsurkan, judges,

with the assistance of the assistant judge Christina Kikhay,

in view of the address,

registered on February 25, 2021,

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 following provisions of the Code of civil procedure accepted by the Law No. 225 of May 30, 2003 formed the basis for consideration of the case:

- the provisions "agrees or makes amendments to the offer of the organization estimating institutional integrity, in view of assessment of behavior of the tested public official, and states determination results of testing of professional integrity" in h (2) Article 343-8;

- syntagmas "the organization estimating institutional integrity" at h (4) Article 343-8;

- Article 343-8 in part in which it does not provide participation of the tested public official during assessment by degree of jurisdiction of results of testing of professional integrity, the declared Serdzhiu Buruyane, the claimant in the matter of No. 3a-1410/20, being in production of Appeal chamber Chisinau.

2. The appeal was sent in the Constitutional court by judicial structure of board on the civil, commercial and administrative cases of Appeal chamber Chisinau (consisting of judges - Anatoliye Minchuna, Ion Muruyanu and Ekaterina Palanchuk), according to the procedure of Article 135 of h (1) the item and) and the item g) Constitutions.

3. Determination of the Constitutional court of September 16, 2021, without decision in essence, the address was acknowledged acceptable.

4. During consideration of the case the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government, the National center for fight against corruption, the Center of the analysis and prevention of corruption, Institute of legal, political and social researches, Institute of criminal reforms, the Center of legal resources of Moldova, the Transparency International organization - Moldova.

5. Were present at open session of the Constitutional court: representative of the author of the address, lawyer Victor Pantsyru, representative of Parliament, Rada Rada, representative of the Government, Yulian Rusu, and representative of the National center for fight against corruption, Tatyana Pavalaki.

Actual circumstances

A. Circumstances of the main dispute

6. The national center for fight against corruption passed on February 25, 2019 the decision on initiation of testing of professional integrity of Sergey Buruyane approved by determination the vessels Chisinau, the sector to Chentr of March 5, 2019.

7. The national center for fight against corruption passed on September 3, 2019 the decision on prolongation of testing of professional integrity. Determination of September 5, 2019 the court of Chisinau, the sector to Chentr, approved the specified decision.

8. The court of Chisinau, the sector to Chentr, took out on January 28, 2020 determination about assessment of results of testing of professional integrity.

9. The disciplinary commission of the Inspectorate on environmental protection (further - the Inspectorate) on May 8, 2020 considered the report on conducting office investigation on the occasion of receipt of negative test result on professional integrity and non-admissions of manifestations of corruption.

10. The order No. 275-d of May 19, 2020 the Inspectorate imposed on Serdzhiu Buruyane authority punishment on discharge from the state position and to the termination of the office relations, since May 20, 2020.

11. Serdzhiu Buruyane filed a lawsuit on June 18, 2020 Chisinau, sector Ryshkan, the action for declaration about cancellation of the above-stated order and its recovery in earlier held state position.

12. The decision of October 29, 2020 the court of Chisinau, the sector Ryshkan, rejected the action for declaration of Serdzhiu Buruyane.

13. Serdzhiu Buruyane made on December 1, 2020 the petition for appeal about the decision of the first instance.

14. During consideration of the case by Appeal chamber Chisinau of Serdzhiu Buruyane on February 10, 2021 declared exceptional case of illegality of the provisions stated above in § 1.

15. The Appeal chamber Chisinau satisfied with determination of February 17, 2021 the petition and sent the appeal about exceptional case of illegality to the Constitutional court for its permission.

B. Applicable legislation

16. Applicable provisions of the Constitution:

Article 20 Open entry to justice

"(1) Any person has the right to effective recovery in the rights by competent courts in case of violation of its rights, freedoms and legitimate interests.

(2) Any law cannot limit access to justice".

Article 26 Right of defense

"(1) the Right of defense is guaranteed.

(2) Each person has the right independently to react by legal methods to violation of the rights and freedoms.

[…]".

Article 43 Right to work and protection of work

"(1) Each person has right to work, the free choice of work, fair and satisfactory working conditions, and also right of defense from unemployment.

[…]".

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 119 Right to appeal

"The judgments can be appealed by concerned parties and competent state bodies according to the law".

17. Applicable provisions of the Code of civil procedure accepted by the Law No. 225 of May 30, 2003:

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