Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of April 16, 2015 No. 7

About control of constitutionality of some provisions of the Law No. 325 of December 23, 2013 on testing of professional integrity (the Address No. 43a/2014)

Constitutional court in structure:

To Alexander Tenase, chairman,

Auryl to Beesh,

Igor Dolya,

Tudor Pantsyru,

Victor of Pop, judges,

with the assistance of the secretary of meeting Theodor Papuk,

in view of the address provided and registered on June 20, 2014

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

having held meeting behind closed doors,

issues the following decree:

Points of order

1. The address which was brought into the Constitutional court on June 20, 2014 by deputies of Parliament Galina Balmosh, Maria Postoyko, Artur Reshetnikov and Igor Vremya, according to provisions of Art. 135 of the h formed the basis for consideration of the case. (1) item and) Constitutions, Art. 25 of the item g) Law on the Constitutional court and Art. 38 of the h. (1) the item g) the Code of the constitutional jurisdiction, about control of constitutionality of syntagmas "Constitutional court" and "Degrees of jurisdiction of all levels" from appendix to the Law No. 325 of December 23, 2013 on testing of professional integrity.

2. On July 31, 2014, based on Art. 31 of the h. (3) the Code of the constitutional jurisdiction, authors provided additional arguments to the address.

3. Authors of the address consider that testing of professional integrity of judges and staff of degrees of jurisdiction and the Constitutional court by the staff of body under control to the executive authority (The national center for fight against corruption) breaks the principles of the constitutional state, separation of the government and independence of justice, and also the right to fair legal proceedings and the right to respect of private life fixed by Art. 1 of the h. (3), Art. 6, Art. 28, Art. 116 of the h. (1) and h. (6), Art. 123 of the h. (1) and Art. 134 of the h. (2) the Constitution and Art. 6 and Art. 8 of the European convention on human rights protection and fundamental freedoms (further – the European convention).

4. Determination of the Constitutional court of September 11, 2014, without decision in essence, the address was acknowledged acceptable.

5. The constitutional court requested according to the address opinion of the European commission for democracy through the right of the Council of Europe (further – the European commission). On December 15, 2014 in the Constitutional court the conclusion of amicus curiae of the Venetian commission (CDL-AD(2014)039) adopted at 101 plenary sessions (Venice – on December 12-13, 2014), concerning the Law No. 325 of December 23, 2013 on testing of professional integrity arrived.

6. During consideration of the address as before receipt of the conclusion of the Venetian commission, and afterwards, the Constitutional court requested opinion of the President of the Republic of Moldova, Parliament and the Government.

7. Authors of the address were not present at open plenary meeting of the Constitutional court. The parliament was provided by the chief of general legal management of the Secretariat of Parliament Ion Kryange. The government was provided by the deputy director of the National center for fight against corruption – Christina Tserne and the government employee of the Ministry of Justice – Natalya Roshka.

Actual circumstances

8. The law No. 325 on testing of professional integrity was adopted by Parliament of the Republic of Moldova on December 23, 2013.

9. According to Art. 2 this law has the following purposes:

a) ensuring professional integrity, the prevention and fight against corruption in public bodies;

b) check of procedure for observance by public officials of service duties and powers, and also rules of conduct;

c) identification, assessment and elimination of vulnerability and the risks inducing or promoting making of acts of corruption, the acts adjacent to corruption or the facts of corruption behavior;

d) non-admission of inadequate influence in connection with accomplishment of service duties or functions of public officials.

10. According to provisions of Art. 4 of the law the professional integrity test consists in creation and application by the tester of the imaginary, imitated situations, similar arising in office activities, performed by means of the hidden transactions and caused by activities and behavior of the tested public official, for the purpose of passive observation, determination of reaction and behavior of the tested public official.

11. The law was drafted within strategy implementation of reforming of the sphere of justice for 2011-2016 and in the beginning was related only to representatives of the sphere of justice.

12. In the accepted edition the law expanded scope of the test for professional integrity. As it is specified in the information reference, the law extends to "the bodies, organizations and the organizations performing public activities (public bodies) which staff (public officials) in execution of professional obligations are subject to risk of corruption or are vulnerable."

13. According to Art. 5 of the law professional integrity tests are applied to the public officials working in the public bodies listed in appendix including the Constitutional court and degrees of jurisdiction of all levels. The law does not extend to the President of the Republic of Moldova, the Prime Minister and deputies. In this sense only the Secretariat of Parliament, the Office of the President of the Republic of Moldova and the State office are specified in appendix to the law.

14. Professional integrity tests are carried out by the staff of the National center for fight against corruption and Service of information and safety – concerning the staff of the National center and own employees.

15. Before adoption of law on testing of professional integrity this mechanism was used only to police officers. So, according to Art. 40 of the Law No. 320 of December 27, 2012 on activities of police and the status of the police officer, testing of professional integrity of police officers is performed by the specialized division subordinated to the Ministry of Internal Affairs which employees, in turn, are tested by the National center for fight against corruption.

16. The law No. 325 on testing of professional integrity became effective on February 14, 2014. Testing of professional integrity is applied since August 14, 2014.

Applicable legislation

A. National legal system

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

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 4. Human rights and freedoms

"(1) the Constitutional regulations on human rights and freedoms are interpreted and applied according to the Universal Declaration of Human Rights, pacts and other agreements, one of the parties of which is the Republic of Moldova.

(2) with discrepancies between pacts and agreements on fundamental human rights, one of the parties of which is the Republic of Moldova, and the internal laws the international standards have priority."

Article 6. Separation and interaction of the authorities

"In the Republic of Moldova the legislative, executive and judicial authorities are divided and interact when implementing the prerogatives according to Constitution provisions."

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 28. Intimate, family and private life

"The state respects and protects intimate, family and private life."

Article 54. Restriction of implementation of the rights or freedoms

"[…] (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. […]

(4) Restriction shall correspond to the circumstance which caused it and cannot affect existence of the right or freedom."

Article 116. Status of judges

"(1) Judges of degrees of jurisdiction are independent, impartial and irremovable according to the law. […]

(6) Involvement of judges to responsibility is performed according to the law."

Article 123. Powers [The Supreme council of magistracy]

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