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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of December 18, 2007 No. 30

About control of constitutionality of some provisions of the Order of the Government No. 594 of May 28, 2007 "About plans of acceptance in 2007 in the highest (the I cycle), average special and average professional educational institutions", with subsequent changes

Name of the Republic of Moldova

Constitutional court in structure:

To Dumitr PULBERE - the chairman

Alina YANUCHENKO is judge

Victor PUSKAS is judge

Elena SAFALERU is judge-speaker

Valeria SHTERBETS is judge

Ion VASILATI is judge

with the assistance of Victoria Botnaryuk-Trelya, the secretary of meeting, Andrey Volentir, the representative of the author of the address, Nicolae Eshana, the permanent representative of the Government in the Constitutional court, in the presence of Serdzhiu Sainchuk, the deputy minister of economy and trade, Galina Bulat, the head of department on the higher and post-university education of the Ministry of Public Education and youth, Nina Punga, the deputy head of department of human resources development of the Ministry of Economy and Trade, being guided by Art. 135 of the h. (1) item and) Constitutions, Art. 4 of the h. (1) item and) Law on the Constitutional court, Art. 4 of the h. (1) item and) and Art. 16 of h. (1) the Code of the constitutional jurisdiction, considered in open plenary meeting case on control of constitutionality of some provisions of the Order of the Government N594 of May 28, 2007 "About plans of acceptance in 2007 in the highest (the I cycle), average special and average professional educational institutions", with the changes made by the Resolution N 840 of July 25, 2007.

The address of the deputy of Parliament Igor Klipy provided on June 28, 2007 according to provisions of Art. 24 and Art. 25 of the Law on the Constitutional court, Art. 38 and Art. 39 of the Code of the constitutional jurisdiction formed the basis for consideration of the case.

The address was accepted determination of the Constitutional court of July 4, 2007 to consideration on the merits.

During preliminary consideration of the address the Constitutional court had the points of view of Parliament, the President of the Republic of Moldova, the Ministry of Justice, Ministry of Public Education and youth, the Ministry of Economy and Trade, Ministry of Finance, Ministry of Agriculture and food industry, Ministry of Health, Ministry of Culture and tourism, the Highest trial chamber, Prosecutor General's Office, Center for human rights.

Having considered case papers, having heard the message of the judge-speaker and arguments of participants of meeting, the Constitutional court established:

1. On May 28, 2007 the Government accepted the Resolution N594 "About Plans of Acceptance in 2007 in the Highest (the I Cycle), Average Special and Average Professional Educational Institutions" (1) (further - the Resolution N 594).

In the address constitutionality of provisions of the Resolution N 594, the subitems four, five and six containing in Item 1, Item 2 the subitem two and in the appendices N4-6 is disputed.

By Item 1 subitems four, five and six of the Resolution N594 Government approved acceptance quotas in 2007:

- students in higher educational institutions (the I cycle) on contractual basis according to the appendix N 4;

- pupils in average special educational institutions on contractual basis according to the appendix N 5;

- pupils in average professional educational institutions on contractual basis according to the appendix N 6.

According to Item 2 to the subitem two of this resolution to the Ministry of Public Education and youth, the Ministry of Agriculture and the food industry, the Ministry of Health, the Ministry of Culture and tourism, to other ministries having the highest, average special and average professional educational institutions in the subordination based on the criteria developed according to the current legislation it was necessary to provide transfer of students and pupils according to the acceptance quotas approved according to the appendices N4-6 to this resolution for the state and private educational institutions with financing on the basis of the contracts signed with the interested physical persons and legal entities.

2. The author of the address considers what in case of adoption of the Resolution N594 Government exceeded limits of the powers. In his opinion, the challenged provisions regulating quotas of admittance of students and students in educational institutions with financing on the basis of contracts contradict Art. 35 (Right to education) and Art. 126 (Economy) of the Constitution, Art. 13 of the p. 2 of the item b), the item c) and the item е) the International Covenant on Economic, Social and Cultural Rights of December 16, 1966, and also Art. 4 of the International Labor Organization Convention of June 23, 1975 "About professional orientation and professional training in the field of human resources development".

In the address it is emphasized that the Government limited to establishment of quotas of acceptance in educational institutions on contractual basis the right of persons to mastering profession according to capabilities, svobod3u the choice of area of professional training, administrative measures limited access to education of the citizens wishing to foot the bill for training. The established difference between the acceptance quotas provided for the state and private educational institutions broke the principle of free competition, discriminating private educational institutions in relation to state.

Assuming that the Government can approve acceptance quotas for the state educational institutions with budget financing, the author of the address considers unacceptable establishment of quotas of acceptance in private educational institutions with financing on contractual basis.

According to the author, the challenged provisions break also the principle of high school autonomy as acceptance of entrants for study is within the competence of higher educational institutions and depends on capability of ensuring educational process.

The author of the address emphasizes that owing to establishment of certain quotas of acceptance the number of workplaces and the salary in the field of education is reduced, worsening thus quality of life of pedagogical personnel.

3. Having considered the challenged provisions through prism of the constitutional regulations, in the ratio with the national legal system and the international acts in the field of education, the Constitutional court notes the following.

The constitution, having determined role of the Government in the state, determines that the Government provides carrying out domestic and foreign policy of the state and performs the common directorship of public management (Art. 96 of the h. (1).

According to Art. 3 of the item 4) of the Law on the Government of N64-XII of May 31, 1990 (2), with subsequent changes and amendments (further - the Law N64-XII), one of the main activities of the Government is development of strategy of scientific and technical development, implementation of national policy in the field of culture, science, the equipment, technology, the solution of questions of state regulation of scientific and technical progress.

The government provides social and economic conditions, creates material and technical resources and special funds for development of national education, youth, culture, health care, environmental protection (Art. 11 of the item 4) of the Law N64-XII).

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