NAME OF THE REPUBLIC OF MOLDOVA
RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of June 4, 2013 No. 12

About control of constitutionality of some provisions concerning prohibition of communistic symbolics and promotion of totalitarian ideologies
(Address No. 33a/2012)

Name of the Republic of Moldova,

Constitutional court in structure:

To Alexander Tenase, chairman

Auryl to Beesh,

Igor Dolya,

Petra Reiljan, judges,

with the assistance of the secretary of meeting, Lyudmila Kikhay,

in view of the address provided and registered on September 18, 2012

having considered the specified address in open plenary meeting, considering documents and case papers,

issues the following decree:

Points of order

1. The address of 29 deputies of parliamentary fraction of Communist Party provided on September 18, 2012 according to provisions of Art. 25 of the item g) the Law on the Constitutional court and Art. 38 of the h formed the basis for consideration of the case. (1) the item g) the Code of the constitutional jurisdiction, about control of constitutionality of the Law No. 192 of July 12, 2012 on entering of amendments into some legal acts which prohibits use in political goals of communistic symbols (sickle and hammer) and promotion of totalitarian ideologies.

2. Authors of the address consider, in particular, that they of the provision challenged the law mention freedom of expression of opinion and freedom of consolidation, breaking provisions of Articles 1, of 2, of 4, of 5, of 6, of 16, of 32, of 41, of 54, of 66, 114 and 115 Constitutions of the Republic of Moldova.

3. Determination of the Constitutional court of October 4, 2012 without decision in essence the address was acknowledged acceptable.

4. During consideration of the address the Constitutional court requested the points of view of Parliament, the President of the Republic of Moldova, the Government, Academy of Sciences of Moldova, faculty of history and philosophy of the Moldavian state university, faculty of history and ethnopedagogics of the State pedagogical university of Ion Kryange and the National commission on heraldry. The president of the Republic of Moldova and the Government did not provide the opinion.

5. Also Constitutional court requested opinion of the European commission of the Council of Europe for democracy through the right (further - the Venetian commission) and OSCE Bureau for democratic institutes and human rights (further - OBSE/ODIHR). On March 11, 2013 the Venetian commission and OBSE/ODIHR provided to the Constitutional court the conclusion of Amicus curiae about compatibility with the European standards of the Law No. 192 of the July 12, 2012 prohibiting use of symbols of the totalitarian communist regime and promotion of totalitarian ideologies adopted on March 8-9, 2013 at the 94th plenary session.

6. On May 31, 2013 in the Constitutional court the petition of Association of the former deported and political prisoners of the Republic of Moldova for permission to her representative arrived to participate in meeting of the Constitutional court for protection of interests of her members.

7. In open plenary meeting of the Constitutional court the address was reasoned by deputies of Parliament Artur Reshetnikov and Igor Vremya who provided authors of the address and deputy Sergey Syrbu. The parliament was provided by the deputy of Parliament to Valeriu Muntyan. The government was provided by the deputy minister of justice Vladimir to Groce. The president of the Republic of Moldova did not direct the representative.

8. Members of the commission on studying and assessment of totalitarian communist regime were invited to open plenary meeting of the Constitutional court as experts: George Kozhokaru, the doctor of historical sciences, the director of Institute of history of Academy of Sciences of Moldova, the commission chairman, Mihai Tashke, the doctor juris, the senior scientific researcher of Institute of legal and political researches of Academy of Sciences of Moldova, and George Negru, the doctor of historical sciences, the scientific researcher-coordinator of Institute of history of Academy of Sciences of Moldova, the chairman of Association of historians of the Republic of Moldova (see § 18 infra). Also Silviu Tabak, the doctor of historical sciences, the state expert of the Republic of Moldova in heraldry, the deputy director of Institute of cultural heritage of Academy of Sciences of Moldova was invited.

Actual circumstances

9. On July 12, 2012 the Parliament of the Republic of Moldova accepted the Resolution No. 191 about historical and political legal treatment of totalitarian communist regime in the Moldavian Soviet Socialist Republic. The resolution condemns totalitarian communist regime in MSSR which committed crimes against humanity and prohibits use in the territory of the Republic of Moldova of communistic symbols (sickle and hammer, any carrier with such symbolics) and promotion of totalitarian ideologies.

10. The same number the Parliament adopted the Law No. 192 on entering of amendments into some legal acts which prohibits use of communistic symbols and promotion of totalitarian ideologies.

11. The law No. 192 made additions to three laws: The law on political parties No. 294-XVI of December 21, 2007, the Code about offenses No. 218-XVI of October 24, 2008 and the Law on freedom of expression of opinion No. 64 of April 23, 2010.

12. Article 4 of the Law on political parties was added h. (5) which prohibits "use of symbolics of totalitarian communist regime by political parties (sickle and hammer, any carrier with such symbolics), and also promotion of totalitarian ideologies." Also, the law was added with the new provisions providing that "assignment of punishment for the repeated offense connected with violation of provisions [this law]" [including new Art. 4 of the h. (5) the law] "the termination of activities of political party" attracts (Art. 22 of the h. (1) item е) law).

13. The code about offenses was added with Article 67-1, providing that "promotion and/or use in the territory of the Republic of Moldova in the political and propaganda goals of symbolics of totalitarian communist regime (sickle and hammer, any carrier with such symbolics), and also promotion of totalitarian ideologies" attract imposing of penalty on physical persons in the amount of 100 to 150 conventional units, and on officials and legal entities in the amount of 300 to 500 conventional units.

14. The provisions prohibiting "promotion and/or use in political goals of symbolics of totalitarian communist regime (sickle and hammer, any carrier with such symbolics), and also promotion of totalitarian ideologies were brought in the Law on freedom of expression of opinion." [Art. 3 of h (4-1) laws].

15. Both the resolution, and the law were accepted based on the report of the Commission on studying and assessment of totalitarian communist regime provided in 2010 (the so-called Commission to Kozhokar) which was created by the Decree No. 165-V of January 14, 2010 issued by the acting president of the Republic of Moldova Mihai Ghimpu. Recommendations of the Commission provide condemnation of totalitarian communist regime for making of crimes against humanity, adoption of law on lustration and recognition illegal uses of communistic symbols and the term "communism".

16. On September 3, 2012 29 deputies of parliamentary fraction of Communist Party brought into the Constitutional court the address about control of constitutionality of the Resolution of the Parliament No. 191 (published in Monitorul oficial al Republicii Moldova of August 31, 2012). On September 18, 2012 the same group of deputies disputed in the Constitutional court the Law No. 192 (Monitorul oficial al Republicii Moldova of September 14, 2012). Determination of October 4, 2012 the Constitutional court decided that verification of the Resolution of Parliament No. 191 is not included into its competence as the resolution has no normative nature, but accepted to consideration on the merits the address about control of constitutionality of the disputed law.

Applicable legislation

A. National legal system

17. Applicable provisions of the Constitution (M.O. No. 1/1, 1994 of):

Preamble

"[…] RECOGNIZING the constitutional state, the civil world, democracy, advantage of the person, its right and freedom, free development of the human person, justice and political pluralism as the supreme values;

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 2 Sovereignty and government

"(1) National sovereignty belongs to the people of the Republic of Moldova performing it it is direct also through the representative bodies in the forms determined by the Constitution.

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