Name of the Republic of Moldova
of May 18, 2016 No. 16
About exceptional case of illegality of the h. (4) Art. 10 of the Law No. 151 of July 30, 2015 on the Government representative (information access) (the Address No. 29g/2016)
Constitutional court in structure:
To Alexander Tenase, chairman,
Auryl to Beesh,
Victor of Pop, judges,
with the assistance of the secretary of meeting Sorin to Muntyan,
in view of the address provided and registered on March 24, 2016
having considered the specified address in open plenary meeting, considering acts and case papers,
having carried out discussion in the consultative room,
issues the following decree:
Points of order
1. The address about exceptional case of illegality of the h formed the basis for consideration of the case. (4) Art. 10 of the Law No. 151 of July 30, 2015 on the Government representative, provided at the request of the representative of "Lawyers for Human Rights" public organization Vitaly Zama, within the case No. 2-674/16, considered by court of the sector Buyukan мун. Chisinau.
2. The address was brought into the Constitutional court on March 24, 2016 by the judge of court of the sector Buyukan мун. Chisinau Chipriyan Valakh according to provisions of Art. 135 of the h. (1) the item and) and the item g) Constitutions in the light of its interpretation by the Resolution of the Constitutional court No. 2 of February 9, 2016, and also with Regulations on procedure for consideration of the addresses brought into the Constitutional court.
3. The author of the address considers that provisions of the h. (4) Art. 10 of the Law No. 151 of July 30, 2015 on the Government representative contradict provisions of Art. 1 of the h. (3), Art. 4 of the h. (2), Art. 34 of the h. (1) and h. (2) and Art. 54 of the h. (2) Constitutions, and also Art. 10 of the European convention on human rights protection and fundamental freedoms (further – the European convention).
4. Determination of the Constitutional court of April 4, 2016, without decision in essence, the address was acknowledged acceptable.
5. During consideration of the address the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova and the Government.
6. In open plenary meeting the address was supported by the author Vitaliye Zama. The parliament was provided by the head of department of general legal management of the Secretariat of Parliament Serdzhiu Bivol. From the Government there was Eduard Serbenko, the deputy minister of justice.
Facts of the case
7. The "Lawyers for Human Rights" public organization made on August 13, 2015 in the Ministry of Justice inquiry about provision of information opening surnames of persons considering number of the cases which became subject of legal proceedings in the European Court of Human Rights in national instances (further – ECHR).
8. The Ministry of Justice denied on September 9, 2015 the request, referring to Art. 10 of the h. (4) the Law No. 151 of July 30, 2015 on the Government representative, providing that provisions of the Law No. 982-XIV of May 11, 2000 on information access are not applied to correspondence between the Government representative and European court and other bodies, and also to materials of cases with which the Government representative works.
9. Without having agreed with the received answer, the "Lawyers for Human Rights" public organization took a legal action on October 2, 2015 sectors Buyukan мун. Chisinau with the action for declaration against the Ministry of Justice, requiring to state violation of right of access to information and to oblige the Ministry to provide it the requested information.
10. In judicial session of January 18, 2016 the representative of "Lawyers for Human Rights" public organization sent request about exceptional case of illegality of the h. (4) Art. 10 of the Law on the Government representative, believing that the restriction of information access provided by the provision of the law contradicts the Constitution, and also the international standards in the field of human rights.
11. Determination of March 21, 2016 the court decided to send the appeal about exceptional case of illegality to the Constitutional court.
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