RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of July 20, 2023 No. 11

About exceptional case of illegality of some provisions of Article 22-1 of h (1) the item c) and Article 27-3 of the item d) the Law on private detective and security activities (prohibition on transfer on work in the private security organization of persons condemned for making of intentional crimes) (the address No. 39g/2023 of year)

Name of the Republic of Moldova

Constitutional court in structure:

Nikolay Roshka, chairman,

Liouba Shova,

Sergey Tsurkan,

Vladimir Tsurkan, judges,

with the assistance of the assistant judge Marcella Lupu,

in view of the address,

registered on February 24, 2023,

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.

Procedure questions

1. The address about exceptional case of illegality of the offer of "the intentional crimes which are not condemned by the final judgment for making" in the item c) h (1) Article 22-1 and provisions of the item d) article 27-3 of the Law No. 283 of July 4, 2003 on private detective and security activities declared by the lawyer Victor of Barend in interests Rada Olara, party litigants No. 2-421/2023, to Chentr who is in production the vessels Chisinau, the sector formed the basis for consideration of the case.

2. The appeal about exceptional case of illegality was sent in the Constitutional court by the judge in court of Chisinau, the sector to Chentr, Maria Alexey, 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 March 16, 2023, 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 and the National lawyer.

5. Were present at open session of the Constitutional court: author of the address about exceptional case of illegality lawyer Victor Barend, representative of Bercut-Grup LLC Tatyana Paladi, chief of legal Regional Office of the Ministry of Internal Affairs Vyacheslav Syrbu and chief of service of representation in the Constitutional court and law enforcement agencies of the Head legal department of the Secretariat of Parliament Valery Kuchuk.

Actual circumstances

I. Circumstances of the main dispute

6. Rada Olara on January 3, 2023 submitted claim against the security organization "Bercut-Grup" of Ltd company in which demanded, among other things, cancellation of the dismissal order and its recovery as the agent of protection. According to the claimant, dismissal is based that he was condemned for crime execution earlier, stipulated in Article 369 h (1) the Criminal code [violation of authorized rules of relations between the military personnel in the absence of the subordination relations between them] though the criminal record was extinguished.

7. During consideration of the case the lawyer Victor Barend declared in interests Rada Olara exceptional case of illegality of the offer of "the intentional crimes which are not condemned by the final judgment for making" in the item c) h (1) Article 22-1 and provisions of the item d) article 27-3 of the Law on private detective and security activities.

8. Determination of February 9, 2023 the court of Chisinau, the sector to Chentr, satisfied the petition and sent the appeal about exceptional case of illegality to the Constitutional court for its permission.

II. Applicable legislation

9. Applicable provisions of the Constitution:

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".

10. Applicable provisions of the Law No. 283 of July 4, 2003 on private detective and security activities:

Article 22-1 of the Condition of permission of private security activities

"(1) Conditions of permission of private security activities are:

[…]

c) transfer in states for implementation of private security activities only persons:

- reached 18-year age;

- being citizens of the Republic of Moldova;

- having at least gymnasia education;

- not staying on the registry at the narcologist or the psychiatrist;

- which does not impose penalties for the offenses encroaching on public order and public safety;

- the intentional crimes which are not condemned by the final judgment for making;

- ended qualification rates in the educational institutions accredited according to the law, or undertaking to pass and finish such rates within three months from the date of transfer;

[…]".

Article 27-3 of Restriction in activities of employees of divisions of internal protection

"Employment in division of internal protection of persons is forbidden:

a) not reached 18 years;

b) noticed in systematic disorderly conduct;

c) staying on the registry at the narcologist or the psychiatrist;

d) having criminal record for making of intentional crime;

e) pursued in criminal procedure".

Appendix № 2

Standard regulations on private security activities

"[…]

9. Head of the private security organization:

[…]

c) provides matching of persons with moral qualities, physical and professional data, necessary for implementation of security service;

[…]".

11. Applicable provisions of the Criminal code of the Republic of Moldova accepted by the Law No. 985 of April 18, 2002:

Article 110 Concept of Criminal Record

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