RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of January 24, 2006 No. 2

About control of constitutionality of some provisions of the Law No. 283-XV of July 4, 2003 "About private detective and security activities" and from the orders of the Government No. 1510 of the December 12, 2003 and No. 667 of July 8, 2005 accepted in pursuance of this law

Name of the Republic of Moldova

Constitutional court in structure:

Victor PUSKAS is chairman

Alina YANUCHENKO is judge

To Dumitr PULBERE - the judge

Elena SAFALERU is judge

Ion VASILATI is judge-speaker with the assistance of Tatyana Oborok, the secretary of meeting, Tatyana Paladi, the representative of the deputy of Parliament Ion Pleshk, the author of addresses, Ion Mytsu, the permanent representative of Parliament in the Constitutional court, Nicolae Eshana, the permanent representative of the Government in the Constitutional court, Evgeny Aksentyev, the head of department of the Ministry of Internal Affairs, the representative of the Government, being guided by Art. 135 of the h. (1) item and) Constitutions, Art. 4 of the h. (1) item and) Law on the Constitutional court, Art. 4 of the h. (1) item and), Art. 16 of the h. (1) and Art. 43 of the Code of the constitutional jurisdiction, considered case on control of constitutionality of provisions of Art. 22 of the h in open plenary meeting. (2), Art. 23 of the h. (10), Art. 24 and Art. 27 of h. (2) the item and) and the item c) the Law N283-XV of July 4, 2003 "About private detective and security activities" 1 and some provisions of the Order of the Government N667 of July 8, 2005 "About measures for implementation of the Law N283-XV of July 4, 2003 on private detective and security activities" 2 (appendix N 2).

The addresses of the deputy of Parliament Ion Pleshk provided on September 9, 2005 according to Art. 24 and Art. 25 of the Law on the Constitutional court formed the basis for consideration of the case.

Addresses were accepted by determinations of the Constitutional court of September 26, 2005 to consideration on the merits and are united in one production.

During preliminary consideration of addresses the Constitutional court requested the conclusions of Parliament, the President of the Republic of Moldova, the Government, the Ministry of Internal Affairs, the Ministry of Defence, the Ministry of Justice, the Ministry of Health and Social Affairs, the Ministry of Public Education, youth and sport, the Prosecutor General's Office, the Highest trial chamber, Service of information and safety, the Center for fight against economic crimes and corruption, the Center for human rights in Moldova.

Having considered case papers, having heard the message of the judge-speaker and arguments of the parties, the Constitutional court established:

1. On July 4, 2003 the Parliament adopted the Law N283-XV "About Private Detective and Security Activities" (further - the Law N283-XV) from which the author of addresses disputes constitutionality of provisions of Art. 22 of the h. (2), Art. 23 of the h. (10), Art. 24, Art. 27 of the h. (2) item and and item c).

According to provisions of the Law N283-XV:

- Art. 22 of the h. (2). The private security organization has no right to perform other business activity;

- Art. 23 of the h. (10). Private security activities cannot be performed on objects of special importance, in bank institutions, on critical infrastructure of settlements, the companies with the prevailing share of state-owned property, and also on other subjects to the state protection objects which list is established by the Government;

- Art. 24. Training of personnel for security activities. (1)

Preparation and advanced training of personnel for activities for protection of objects, property and values, and also protection of physical persons are performed on the qualification rates organized by the Ministry of Internal Affairs.

(2) the Termination of qualification rates is not obligatory for the persons having special preparation in the field and who worked in the specialized security organizations at least three years.

(3) the Procedure for preparation, advanced training and employee assessment of the private security organizations and issue of appropriate certificates to them is established in the provision approved by the Government;

- Art. 27 of the h. (2). The admission to private security activities of persons is forbidden:

a) not reached 21 years;

c) not certified in accordance with the established procedure for implementation of security activities.

In pursuance of the Law N283-XV the Resolution N667 of July 8, 2005 on measures for implementation of the Law N283-XV (further - the Order of the Government N667/05) Government approved Regulations on conditions of preparation, retraining and employee assessment of the private security organizations according to the appendix N2. The provision is challenged as unreasonably limiting right to work.

In the resolution it is determined that preparation and advanced training of personnel for private detective and security activities are carried out through the industry rates organized by the Ministry of Internal Affairs on contractual basis. Upon termination of rates the certificate of the approved sample is issued.

According to the Provision qualification courses are conducted on the special subject provided in the curriculum and come to an end with passing an examination and certification of graduates by the commission which representatives of police and social security authorities enter.

The tuition fee on qualification rates is brought by the candidate or, in certain cases, the employer. Once a half-year with the security personnel and bodyguards having access to weapon suffices, under the supervision of competent police officers training firing practice will be organized. Certification of personnel on implementation of activities for protection of objects, property and values, and also certification of bodyguards is carried out after the termination of paid qualification rates lasting at least 240 watch. Retraining of security personnel on rates for the purpose of enhancement of practical skills (duration at least 120 hours) is carried out in the presence of 3-year length of service. Employment of security personnel or bodyguards is carried out based on the statement of the candidate, and also the conclusion of police agencies about operational data, the certificate on the termination of qualification rates with execution of an employment agreement. Responsibility for matching, employment, level of training, equipment and providing personnel of the security organizations is assigned to the employer.

In addresses it is noted that restriction of the right of the private security organizations to perform other business activity (Art. 22 of the h. (2) the Law N283-XV) is violation of the constitutional right on freedom of business activity affirmed by Art. 126 of the h. (2) item b) the Supreme law. According to the author, this constitutional provision, is broken also by prohibition on private security activities in bank institutions, at the companies with the prevailing share of state-owned property, and also on other subjects to the state protection objects which list is established by the Government (Art. 23 of the h. (10) Law N283-XV). Provisions of the law on prohibition of the admission to private security activities of persons which did not reach 21 years which did not finish special rates and are not certified in accordance with the established procedure for implementation of these activities (the Art. 24, Art. 27 of the h. (2) the item and) and the item c), is violated the right to work established by Art. 43 of the h. (1) Constitutions.

In meeting of the Constitutional court the representative of the author of addresses expanded consideration subject, having requested to exercise constitutionality control:

- Art. 5 of the h. (2) Law N283-XV. Preparation and advanced training of personnel for private detective and security activities are performed in the specialized training centers determined by the Government;

- syntagmas "in bank institutions" and "at the companies with the prevailing share of state-owned property, and also on other subjects to the state protection objects which list is established by the Government" from Art. 23 of the h. (10) Law N283-XV;

- syntagmas of "bank institutions" and "the companies with the prevailing share of state-owned property" from appendix to the Order of the Government N1510 of December 12, 2003 "About approval of the list of objects which protection cannot be performed by the private security organizations" 3 (further - the Order of the Government 1510/03), motivating with the fact that these provisions also contradict the constitutional regulations about right to work and freedom of business activity.

2. According to provisions of Art. 66 of the item and) and Art. 72 of the h. (3) the item r) the Constitution the Parliament subjected to regulation private detective and security activities which belong to one of the fields of business activity, the special organic law.

According to the Law N283-XV private security activities are licensed type of activity on provision of services on the protection of life, health and protection of property performed by persons specializing in this area on contractual basis according to licensed conditions (the Art. 3). Private security activities are performed on the basis of self-financing, and persons who are engaged in this type of activity acquire necessary technical means, stock and the equipment at the expense of own means (the Art. 14). The private security organization is the commercial organization, the providing service in protection of life, health and property of physical persons, and also in protection of property of legal entities from illegal actions. This organization has no right to perform other business activity (Art. 22 of the h. (1) and h. (2)).

Having established by the Law N283-XV the principles, the purposes, subjects and procedure for provision of private security services to physical persons and legal entities according to the law, the legislator followed the all-legal, organizational and economic principles of business activity, the established Law N845-XII of January 3, 1992 "About entrepreneurship and the companies" 4 (further - the Law N845-XII) according to which economic agents have the right under the firm to perform business activity in the Republic of Moldova.

So, according to the private security activities performed by the citizens and their associations independently, on its own behalf, on the risk and under the property responsibility specified by the laws for rendering services for the purpose of providing permanent source of the income is business activity. In sense of the laws 283-XV and N845-XII any citizen of the Republic of Moldova having the license for implementation of business activity and which is not limited in the rights, according to the procedure, to the established Law on entrepreneurship and the companies and other legal acts can be the private security guard. Private security activities are performed in form of business of the company (organization) which is the economic subject having the firm (name) and are created by the entrepreneur in the procedure established by the legislation.

According to the Law N845-XII the company has the right to be engaged in any kinds of activities, except for those which are prohibited by the law, however in the separate types of activity established by the legislation, the company has the right to be engaged only in case of receipt of the license for this type of activity (Art. 10 of item 1 and the item 2).

Having set by the Law N451-XV of July 30, 2001 "About licensing of separate types of activity" the 5th principles of protection of the rights, legitimate interests and health of citizens, environment protection and safety of the state, the legislator referred to licensed types of activity private detective and security activities which implementation can entail in an inadequate way causing damage to the rights stated above and which regulation cannot be performed by other methods, except as licensing (Art. 3 of the item c), the Art. 4, Art. 8 of the h. (1) item 25).

Private security activities are performed based on the license granted after approval of the Ministry of Internal Affairs in the procedure established by the legislation taking into account the features provided by the Law N283-XV. So, according to Art. 5 of the h. (3) and h. (4) the Law N283-XV in the territory of the Republic of Moldova implementation of activities of the security organizations of foreign states is forbidden. To the security organizations of foreign states, and also foreign citizens and stateless persons it is forbidden to perform security activities as the individual entrepreneur, to establish or be cofounders of the security organizations, to have the private security organization or specialized security division in the subordination.

According to the Law N283-XV private security activities cannot be performed on objects of special importance, in bank institutions, on critical infrastructure of settlements, the companies with the prevailing share of state-owned property, and also on other subjects to the state protection objects which list is established by the Government (Art. 23 of the h. (10).

By the resolution N1510/03 in pursuance of the specified provision of the law Government approved the List of objects which protection cannot be performed by the private security organizations.

According to appendix to this resolution the private security organizations cannot perform protection of the Ministry of Defence; Ministries of Internal Affairs; Services of information and safety; Center for fight against economic crimes and corruption; Department of border troops; Customs department; Department of information technologies; public institutions of communication; organizations of national system power - and gas supply; water supply and life support systems of settlements; storages of weapon, ammunition, explosive materials, toxic, radioactive and strong agents; bodies of the state, executive and judicial authority; bank institutions; the organizations, the organizations financed from the state and local budgets; the companies with the prevailing share of state-owned property.

By the regulations on Service of the state protection of the Ministry of Internal Affairs approved by the Order of the Government N115 of February 2, 1999 of 6, protection of especially important objects, bank institutions, critical infrastructure of settlements and other objects it was assigned to Service of the state protection of the Ministry of Internal Affairs (the item of 5 subitems and).

The constitutional court considers that the private security organization in the cases and conditions determined by the legislation, having special rights, uses the same opportunities for providing permanent source of the income. These objectives can be achieved precisely by execution of provisions of the Law N283-XV, including Art. 22 of the h. (2) and Art. 23 of the h. (10), other business activity and to provide services in protection of bank institutions, companies with the prevailing share of state-owned property, and also other subjects to the state protection of objects which list is established by the Government prohibiting to the private security organization to perform.

Guaranteeing realization of the property right of the private security organization, the state according to Art. 127 of the h. (2) the property right in all forms which are not conflicting to interests of society shall provide Constitutions at the same time.

Being guided by the specified constitutional provisions, the legislator in case of acceptance of provisions of Art. 22 of the h. (2) and Art. 23 of the h. (10) the Law N283-XV followed the basic principle of property which cannot be applied to the detriment of the rights, freedoms and advantage of the person (Art. 9 of the h. (2) the Supreme law).

3. Exercising control of constitutionality of provisions of Art. 5 of the h. (2), Art. 24, Art. 27 of the h. (2) the item and) and the item c) the Law N283-XV providing professional training of personnel for security activities, admission prohibition to private security activities of the persons which did not reach 21 years, or are not certified in accordance with the established procedure for implementation of security activities the Constitutional court did not establish infringement of right to work and notes the following.

Main objectives of the Law N283-XV are regulation of organizational process of provision on contractual basis of private detective and security services by persons licensed in accordance with the established procedure, ensuring protection of the rights and legitimate interests of clients, assistance to respect for interests of the state and protection of public order, etc. (the Art. 2).

According to the law provision of such services as protection of life and human health, protection of property, protection of physical persons is allowed to the private security organizations; physical and technical protection of the territories, buildings, rooms; designing, installation, maintenance of alarm systems; protection and maintenance of valuable cargoes, personal property; assistance to law enforcement agencies in protection of public order and safety of people, informing the public concerning protection against illegal actions (Art. 6 of the h. (2)).

Persons who are engaged in private security activities shall involve in rendering security services only the workers who underwent the corresponding certification (Art. 8 of the h. (1) item d). The personnel of the specialized security organization consist of the security guard who completed special training courses for work as the watchman who passed examination for the right of carrying and storage of office weapon and special means, and enlisted on service in the security organization on contractual basis (the Art. 3).

According to provisions of the Law N283-XV of person, engaged in the private security activities having the right to use physical force, to carry, store, use and use special means and firearms according to the procedure, established by the current legislation, shall have instructing and special training in application of the specified measures and means according to the procedure, established for employees of police. These persons are periodically certified by law-enforcement bodies on suitability to actions in the conditions connected using physical force, special means and firearms (Art. 28 of the h. (1) and h. (2)).

The law N283-XV the legislator allocated the Government with the right to establish the resolution of obligation of security personnel, heads of the organizations, procedure for preparation, advanced training and employee assessment of the private security organizations and issue of appropriate certificates to them (Art. 8 of the h. (2), Art. 24 of the h. (3). Preparation and advanced training of personnel for activities for protection of objects, property and values, and also protection of physical persons are performed on qualification rates in the specialized training centers determined by the Government and organized by the Ministry of Internal Affairs (Art. 5 of the h. (2), Art. 11 of the item c) and Art. 24 of the h. (1).

Heads of the organizations which are performing private security activities or the specialized divisions of internal protection having in subordination, along with the main powers shall provide matching of persons having the corresponding moral, physical and professional qualities necessary for accomplishment of security service; take measures for special training of security personnel and control accomplishment of service duties by it; observe the labor law; provide interaction with law enforcement agencies by assistance, within competence, in the prevention, suppression and disclosure of crimes. The security personnel shall know and carry out the obligations, directly being responsible for protection and integrity of the objects entrusted to it things and material values (the appendix N1 to the Order of the Government 667/05 of the item of 1 subitem c), d), i), n) and the item 2). So, protection in transit of the particular loads consisting of weapon, ammunition, military equipment, explosives and materials, drugs, toxic substances, nuclear materials and radioactive materials or other dangerous materials and substances is performed on special vehicles accompanied by police squads, except for the transportations organized and which are carried out by divisions of the Ministry of Defence. Protection in transit of the valuable cargoes consisting of sums of money, and protection in case of collection is allowed only to internal divisions of internal protection of banks and police divisions. Besides, protection in transit of property and valuable or particular loads which are en route in the territory of the Republic of Moldova on iron or automobile roads, is provided with police divisions (the appendix N5 to the Order of the Government N667/05, Items 1-4).

According to the Constitution each person has right to work, the free choice of work, fair and satisfactory working conditions, and also right of defense from unemployment. The constitution provides protection of workers in different situations, including specific (Art. 43 of the h. (1) and h. (2) in which the priority of preserving their life and health shall be provided (Art. 222 of the h. (1) item and) Labor code).

According to the Labor code the physical person acquires working capacity on reaching 16-year age (Art. 46 of the h. (2). At the same time the Labor code prohibits application of work of persons aged up to 18 years on hard work and works with harmful and/or dangerous working conditions (Art. 255 of the h. (1).

Based on general provisions (Art. 2 of the h. (1) and h. (2) the Labor code is applied also regarding the employment relationships regulated by the organic laws, including the organic Law N283-XV.

The basic principles of regulation of employment relationships provide fair working conditions, equal rights and opportunities of workers. So, according to the Labor code establishment of the distinctions caused by the requirements specific to this type of work or provided by the current legislation, or special care of the state of persons needing the raised social or legal protection (Art. 5 of the item d) and the item е), Art. 8 of the h is not discrimination. (2).

In understanding of the Convention N111 on the employment discrimination and occupations accepted in Geneva on June 25, 1958 and any distinction, exception or preference based on the requirements connected with the certain work ratified by Parliament of the Republic of Moldova the Resolution N593-XIII of September 26, 1995 of 7, are not considered as discrimination. According to the Convention the terms "work" and "occupations" include access to professional training, access to work and to different occupations, and also working conditions (Art. 1 of the p. 2 and h 3).

Having ratified the Convention, the Republic of Moldova undertook to proclaim and pursue the national policy directed by means of approved with national conditions and practice of methods on promotion of equal opportunities and the address concerning work and occupations (Art. 2 of the Convention).

The constitutional court considers that, having subjected to the Law N283-XV activities of the private security organizations to restrictive regulation, the legislator was guided by Convention provisions according to which each state member of the organization for which this Convention is valid shall enter such legislation and encourage such educational programs which will be able to provide acceptance and observance of this policy and to pursue established policy in the field of work under direct supervision of the government (Art. 3 of the item b and the item d).

4. The constitutional court states that in case of regulation of private security activities in the considered cases the legislator was guided by the general constitutional principles and regulations on the status of the Republic of Moldova, basic rights, freedoms and obligations of person, on economy and property.

The constitutional court notes that the respect and protection of the personality constitute paramount constitutional obligation of the state (Art. 16), are performed only by guaranteeing basic rights and freedoms. The constitutional principle of universality of basic rights, freedoms and obligations (the station 15) assumes effective and uniform ratio between the rights and freedoms set by the Constitution and the Law N283-XV, and obligations provided by them.

The constitutional provision according to which the economy of the Republic of Moldova is market socially oriented, based on private and public property and free competition, obliges the state to provide regulation of economic activity and management of the public property belonging to it according to the law. Guaranteeing freedom of trade and business activity, protection of fair competition, creating favorable conditions for use of all production factors, the state shall protect national interests in the field of economic, financial and currency activity, other values fixed by the Constitution (the Art. 126). Guaranteeing to the owner realization of the property right in all forms, the state shall provide also protection of property, including private, other values which are object of exclusively public property (the Art. 127).

The constitutional court states that provisions of Art. 5 of the h. (2), Art. 22 of the h. (2), Art. 23 of the h. (10), in particular syntagmas "in bank institutions" and "the companies with the prevailing share of state-owned property, and also on other subjects to the state protection objects which list is established by the Government", disputed by the author of addresses, Art. 24, Art. 27 of the h. (2) the item and) and items c) do not restrain the Law N283-XV and do not diminish basic rights and freedoms of man and citizen. The accurate conditions concerning professionalism, age and certification in accordance with the established procedure of security personnel and restriction of activities of the private security organizations with law provisions are necessary for the benefit of homeland security, economic well-being of nation, public order, for the purpose of prevention of crimes, protection of the rights, freedoms and advantage of other persons, prevention of disclosure of information obtained confidentially or ensuring authority and impartiality of justice.

The restrictions which are strictly established by the Law N283-XV are pro rata to situations them caused. Owing to objective nature and the pursued purpose they do not restrain and cannot restrain existence of right to work, the free choice of work and right of defense from unemployment (Art. 43 of the h. (1), Art. 54 of the h. (2) and h. (3), Art. 126 of the h. (2) item b) Constitutions).

5. Provision of private detective and security services is specific type of activity. Protection of life, health of the person and protection of property by person who is engaged in such activities attracts expansion of powers and the rights which incompetent implementation can cause property damage, to public order, the rights, freedoms and advantage of citizens. The increased risk for the life and human health involved in these employment relationships requires special professional training. To reduce this risk, the Law N283-XV establishes accurate conditions in the field of professional training and certification of personnel of the private security organizations.

On the bases stated in Items 2, 3 and 4 presents of the resolution, determining that provisions of the Law N283-XV do not break freedom of business activity of the private security organization and do not infringe at constitutional right for work of persons who went to work in the security organization, the court recognizes syntagma of "bank institutions" and "companies with the prevailing share of state-owned property" from Appendix to the Order of the Government N1510/03 and provision of the appendix N2 to the Order of the Government 667/05 as the corresponding Art. 43 and Art. 126 of the Constitution.

Proceeding from stated, based on Art. 140 of the Constitution, the Constitutional court DECIDES: Art. 26 of the Law on the Constitutional court, Art. 62 and Art. 68 of the Code of the constitutional jurisdiction

1. Recognize constitutional:

- provisions of Art. 5 of the h. (2), Art. 22 of the h. (2), syntagmas "in bank institutions", "the companies with the prevailing share of state-owned property, and also on other subjects to the state protection objects which list is established by the Government" from Art. 23 of the h. (10), Art. provisions 24, Art. 27 of the h. (2) the item and) and the item c) the Law N283-XV of July 4, 2003 "About private detective and security activities";

- The regulations on conditions of preparation, retraining and employee assessment of the private security organizations approved by the Order of the Government N667 of July 8, 2005 "About measures for implementation of the Law N283-XV of July 4, 2003 on private detective and security activities" (appendix N 2);

- syntagma of "bank institutions" and "companies with the prevailing share of state-owned property" from appendix to the Order of the Government N1510 of December 12, 2003 "About approval of the list of objects which protection cannot be performed by the private security organizations".

2. This resolution is final, is not subject to appeal, becomes effective from the date of acceptance and is published in "Monitorul Oficial al Republicii Moldova".

 

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1 M.O., 2003, N200-203, of Art. 769

2 M.O., 2005, N98-100, of Art. 748

3 M.O., 2003, N254-261, of Art. 1571

4 Monitor, 1994, N 2, Art. 33

5 M.O., 2001, N108-109, of Art. 836

6 M.O., 1999, N22-23, of Art. 138

7 International agreements, 1999, t. 10, page 53

 

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