RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of March 26, 2024 No. 9

About control of constitutionality of the Law No. 280 of October 4, 2023 (prohibition to stand on elections for persons associated with political parties, acknowledged unconstitutional [No. 2]) (the address No. 226a/2023 of)

Name of the Republic of Moldova

Constitutional court in structure:

Domnika Manole, chairman,

Viorika Puyka,

Nicolae Roshka,

Liouba Shova,

Sergey Tsurkan,

Vladimir Tsurkan, judges,

with the assistance of the assistant judge Dumitra Avornik,

in view of the address,

registered on October 16, 2023,

having considered the specified address in open plenary meeting,

considering acts and case papers,

having carried out discussion in the consultative room on March 26, 2024,

issues the following decree.

Points of order

1. The address of deputies of Parliament of the Republic of Moldova - Marina Tauber, Regina Apostolova, Denis Ulanov, Vadim Fotesku and Petra Zhardan, brought into the Constitutional court on October 16, 2023, according to provisions of Art. 135 of h (1) the item and) formed the basis for consideration of the case to the Constitution, Art. 25 of the item g) the Law on the Constitutional court and Art. 38 of h (1) the item g) the Code of the constitutional jurisdiction.

2. Authors of the address ask the Constitutional court to check constitutionality of the Law No. 280 of October 4, 2023 on introduction of amendments to the Electoral code.

3. During consideration of the address the Constitutional court requested opinion of the Government, Parliament, the President of the Republic of Moldova, Promo-LEX Association, the national lawyer and Association for efficient democracy of "ADEPT".

4. The constitutional court made on November 3, 2023 inquiry in the European commission for democracy through the right of the Council of Europe (further - the Venetian commission) for expression of the opinion by some provisions of the Law No. 280 of October 4, 2023. The European commission for democracy through the right and Bureau on democratic institutes and human rights (OBSE/ODIHR) on December 18, 2023 took out joint opinion of amicus curiae No. 1164/2023 for the Constitutional court of the Republic of Moldova concerning not election of persons affiliated with political parties, acknowledged unconstitutional (CDL-AD(2023)049).

5. At open session of the Constitutional court there were authors of the address - deputies of Parliament Vadim Fotesku, Regina Apostolova and Petra Zhardan, their lawyers - Aureliu Kolenko, Denis Kalayda, Vadim Banaru, Christian Bizian and Brezil Shaul David. The parliament and the Government were provided by Valery Kuchuk and, respectively, Eduard Serbenko.

Applicable legislation

6. Applicable provisions of the Constitution:

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.

(2) Any individual, any part of the people, any social group, any political party or other public association cannot perform the government on its own behalf. Usurpation of the government is worst crime against the people".

Article 5. Democracy and political pluralism

"(1) Democracy in the Republic of Moldova is performed in the conditions of the political pluralism incompatible with dictatorship and totalitarianism.

(2) No ideology can be established as official state ideology".

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 21. Presumption of innocence

"Any person accused of crime execution is considered innocent until his guilt is not established by legal order by public legal proceedings in case of which all necessary guarantees for protection are provided to it".

Article 22. Irreversibility of the law

"Nobody can be condemned for actions or failure to act which at the time of their making did not constitute crime. Punishment heavier cannot be also imposed, than that which could be applied at the time of crime execution".

Article 23. Right of each person to knowledge of the rights and obligations

"(1) Each person has the right to recognition of its legal personality.

(2) the State provides the right of each person to knowledge of the rights and obligations. For this purpose the state publishes all laws and other regulations and provides their availability".

Article 32. Freedom of opinions and expression

"(1) the freedom of thought, opinions, and also freedom of public expression by means of the word, the image or other possible methods is guaranteed to Each citizen.

(2) Freedom expressions shall not cause damage to honor, advantage or the right of other person to have own views.

(3) contest and slander of the state and the people, appeals to war of aggression, national, racial or religious discord, instigation to discrimination, territorial separatism, public violence, and also other actions encroaching on the constitutional mode Are prohibited and punished by the law".

Article 38. The right to choose and be elected

"(1) Volya of the people is government basis. This will finds expression in the free elections held periodically on the basis of general, equal and direct suffrage in case of secret and free vote.

(2) the citizens of the Republic of Moldova who reached on the election day of 18-year age, except for the faces deprived of this right according to the procedure have to choose the Right, established by the law.

(3) the Right to be elected is guaranteed to the citizens of the Republic of Moldova having the right to choose according to the law".

Article 39. Right to management

"(1) Citizens of the Republic of Moldova have the participation right in management of public affairs as it is direct, and through the representatives.

(2) access to public service is provided to Any citizen according to the law".

Article 41. Freedom of batches and other social and political organizations

"(1) Citizens can freely unite in the batches and other social and political organizations promoting identification and expression of political will of citizens and participating in elections according to the law.

(2) Batches and other social and political organizations are equal before the law.

(3) the State provides observance of the rights and legitimate interests of batches and other social and political organizations.

(4) Batches and other social and political organizations, the purposes or activities of which are directed against political pluralism, the principles of the constitutional state, sovereignty, independence and territorial integrity of the Republic of Moldova, are unconstitutional.

(5) Secret associations are prohibited.

(6) activities of the batches consisting of foreign citizens Are forbidden.

(7) the State positions which occupation is incompatible with membership in batches are established by the organic law".

Article 54. Restriction of implementation of the rights or freedoms

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