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Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of January 31, 2017 No. 3

About control of constitutionality of some provisions of the Law No. 162-XVI of July 22, 2005 on the status of the military personnel (prohibition of multiple nationality for contract servicemen) (the address No. 126a/2016)

Constitutional court in structure:

To Alexander Tenase, chairman,

Auryl to Beesh,

Igor Dolya,

Tudor Pantsyru,

Victor of Pop,

Vyacheslav Zaporozhan, judges,

with the assistance of the secretary of meeting Marcella Lupu,

in view of the address provided and registered on October 25, 2016

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

having carried out discussion in the consultative room on January 31, 2017,

issues the following decree.

Points of order

1. The address of the national lawyer Mikhail Kotorobaya about control of constitutionality of Art. 28 of the h formed the basis for consideration of the case. (6) item е) and Art. 35 of the h. (3) the item g) the Law No. 162-XVI of July 22, 2005 on the status of the military personnel.

2. According to the author of the address, the challenged provisions prohibiting multiple nationality for contract servicemen limit right to work, on free movement and right to education, being discrimination, are contrary to regulations of Art. 1 of the h. (3), Art. 4 of the h. (1), Art. 15, Art. 16, Art. 17, Art. 27, Art. 35, Art. 43 and Art. 57 of the Constitution.

3. Determination of the Constitutional court of November 18, 2016, without decision in essence, the address was acknowledged acceptable.

4. During consideration of the address the Constitutional court requested opinions of Parliament, the President of the Republic of Moldova and the Government.

5. In open plenary meeting of the Constitutional court the address was supported by Igor Muntyan, the representative of the national lawyer, the main consultant in management for political affairs, reforms and reports of office of the national lawyer.

6. From Parliament there was Valeriu Kuchuk, the chief of service of representation at the Constitutional court and law enforcement agencies of general legal management of the Secretariat of Parliament. The government was provided by the deputy minister of justice Eduard Serbenko. From the Ministry of Defence the chief of legal management Rada Sered took part.

Actual circumstances

7. The law No. 162-XVI of July 22, 2005 on the status of the military personnel regulates the rights and obligations of the military personnel, procedure for execution of military service, prohibitions and restrictions of some rights and freedoms of the military personnel.

8. According to Art. 28 of the h. (6) the item е) this law the citizens of the Republic of Moldova having nationality of other state are not accepted on military service under the contract.

9. Provisions of Art. 35 of the h. (3) the item g) this law provide that dismissal of the military personnel from military service under the contract is performed in connection with receipt of nationality of other state.

Applicable legislation

10. Applicable provisions of the Constitution (repeated publication in M.O., 2016, No. 78, the Art. 140):

Article 4 of the Human right and freedom

"(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 16 Equality

"(1) the Respect and protection of the personality constitute paramount obligation of the state.

(2) All citizens of the Republic of Moldova are equal before the law and the authorities irrespective of race, nationality, ethnic origin, language, religion, floor, views, political affiliation, property status or social origin".

Article 35 Right to education

"(1) the Right to education is provided with the compulsory general education, lyceum and professional education, the higher education, and also other forms of education and advanced trainings.

[…]".

Article 43 Right to work and protection of work

"(1) Each person has right to work, the free choice of work, fair and satisfactory working conditions, and also right of defense from unemployment.

[…]".

Article 54 Restriction of Implementation of the Rights or Freedoms

"(1) In the Republic of Moldova the laws prohibiting or diminishing the rights and fundamental freedoms of man and citizen cannot be adopted.

(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.

(3) part Provisions (2) restrictions of the rights proclaimed in Articles 20 - 24 do not allow.

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

Article 56 Commitment to the country

"(1) Commitment to the country is sacred.

(2) Citizens to whom the state positions are entrusted and also the military personnel bears responsibility for fair execution of the obligations and takes the corresponding oath in the cases provided by the law".

Article 57 Protection of the Homeland

"(1) Protection of the Homeland – the sacred right and debt of each citizen.

(2) the Military service is performed according to the law in the armed forces intended for ensuring national defense, protection of borders, maintenance of public order".

11. Applicable provisions of the Law No. 162-XVI of July 22, 2005 on the status of the military personnel (M.O., 2005, Art. No. 129-131, 618):

Article 8 of the Right and freedom of the military personnel

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