CONCLUSION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of December 9, 2008 No. 2

Under the bill on change of Art. 32 of the Constitution of the Republic of Moldova

Name of the Republic of Moldova

Constitutional court in structure:

To Dumitr PULBERE - the chairman

Alina YANUCHENKO is judge

Victor PUSKAS is judge

Petra RAJLJAN - the judge-speaker

Elena SAFALERU is judge

Valeria SHTERBETS is judge

with the assistance of Victoria Botnaryuk-Trelya, the secretary of meeting, Ion Mytsu, the permanent representative of Parliament in the Constitutional court, Nicolae Eshana, the permanent representative of the Government in the Constitutional court, according to Art. 135 of the h. (1) item c), Art. 141 of the h. (1) item c) and h. (2) Constitutions, Art. 4 of the h. (1) item c) Law on the Constitutional court, Art. 4 of the h. (1) item c) and Art. 16 of the h. (1) the Code of the constitutional jurisdiction considered in open plenary meeting the appeal of the Government about making the conclusion under the bill on change of the h. (3) Art. 32 of the Constitution of the Republic of Moldova.

Determination of November 26, 2007 the Constitutional court accepted the appeal to consideration on the merits.

Having considered the address, the draft of the constitutional law and the filed materials, the conclusions of the President of the Republic of Moldova, Institute of history, the state and the right of Academy of Sciences of Moldova, having heard the message of the judge-speaker, arguments of representatives of Parliament and Government, the Constitutional court established:

On November 13, 2007 by the Resolution N1234 Government approved the bill on change of the h. (3) Art. 32 of the Constitution of the Republic of Moldova and on November 16, 2007 brought it into the Constitutional court for making the conclusion. Based on the constitutional provisions of Art. 141 of the h. (1) the item c) the Government has the right to initiate review of the Constitution.

Provisions of article 32 of the Constitution "Freedom of opinions and expression" to each citizen guarantee freedom of thought, opinions, and also freedom of public expression by means of the word, the image or other possible methods (h. (1). Freedom of expression shall not cause damage to honor, advantage or the right of other person to have own views (h. (2). Contest and slander of the state and the people, appeals to war of aggression, national, racial or religious discord, instigation to discrimination, territorial separatism, public violence, and also other actions encroaching on the constitutional mode are prohibited and punished by the law (h. (3).

In the bill part (3) article 32 of the Constitution it is stated in the following edition: "Appeals to war of aggression, national, racial or religious discord, instigation to discrimination, territorial separatism, public violence, other violent acts encroaching on the constitutional mode are prohibited and punished by the law".

The government offers review of the h. (3) Art. 32 of the Constitution for the purpose of ensuring compliance of the constitutional provisions to article 10 of the European convention on human rights protection and fundamental freedoms and its law enforcement. Article 10 of the Convention states: each person has right to liberty of expression of the opinion. This right includes freedom of opinion, to receive and distribute information and the ideas without any intervention from state bodies and irrespective of frontiers.

The initiative of the Government about review of Art. 32 of the Constitution, as appears from the explanatory note to the draft of the constitutional law, is entered in the human rights National action plan for 2004-2008 approved by the Resolution of Parliament N 415-XV of October 24, 2003 (Chapter 6 undressed and) Appendices to the resolution of legislature), according to which the rights and freedoms provided by the Constitution, other internal legal acts, and also the conventional principles and rules of international law are guaranteed to all citizens of the Republic of Moldova, foreign citizens and persons without citizenship living in the territory of the state. Accomplishment of the National plan of action for human rights assumes implementation of international standards on human rights in the national legal system and in practice, ensuring effective protection of the political, civil, economic, social and cultural rights, enhancement of national mechanisms of human rights protection, etc.

Having analyzed the draft of the constitutional law, the Constitutional court allocates the following changes in edition of the h. (3) Art. 32 of the Constitution: syntagma exception "contest and slander of the state and people" and replacement of syntagma", and also other actions by" syntagma "other violent acts".

The Universal Declaration of Human Rights provides that each person has right to liberty of beliefs and to their free expression; this right includes freedom to freely adhere to the beliefs and freedom to look for, receive and distribute information and the ideas by all means and irrespective of frontiers (the Art. 19).

Having joined the International Covenant on Civil and Political Rights accepted on December 16, 1966 the Republic of Moldova undertook to respect and provide to all to persons of the right which are in limits of its territory and under its jurisdiction, recognized in the Pact, without any distinction as that concerning race, skin color, floor, language, religion, political and other convictions, national or social origin, property status, the birth or other circumstance. The Republic of Moldova undertook to take also necessary measures according to the constitutional processes and provisions of the Pact for acceptance of such legislative or other measures which can be necessary for implementation of the rights recognized in the Pact (Art. 2 of the h. (1) and h. (2). According to Art. 19 of the Pact each person has the right to freely adhere to the opinions. Each person has the right to freedom of expression; this right includes freedom to look for, receive and distribute any information and the ideas, irrespective of frontiers, orally, in writing or by means of seal or art forms of expression, or different ways at the choice.

Implementation of freedoms provided by the Universal Declaration of Human Rights, the European convention on human rights protection and fundamental freedoms, the International Covenant on Civil and Political Rights imposes special obligations and the separate liability. As a result, implementation of these freedoms can be integrated to some formalities, conditions, restrictions or penalties provided by the law which are necessary measures in democratic society for the benefit of homeland security, territorial integrity or public tranquility, for the purpose of prevention of conflicts and crime, protection of health and morality, protection of reputation or the rights of other persons, prevention of disclosure of information obtained confidentially or ensuring authority and impartiality of justice. Any propaganda for war, any performance for benefit of national, racial or religious hatred representing instigation to discrimination, hostility or violence shall be prohibited by the law (Art. 10 of h 2 Conventions, Art. 19 of h 3, to Art. 20 of the Pact).

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