regarding the constitutionality of certain provisions of law No. 162-XVI of 22 July 2005 on the status of the military (the ban on possession of multiple citizens by soldiers under contract) (referral No. 126a/2016)



Published: 07.04.2017 in Official Gazette No. 109-118 art No.: 45 date of entry into force: 31.01.2017 In the name of the Republic of Moldova, the Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Mr. Talal Igor DOLEA, GEOGRAPHIC LOCATION, Mr. Victor PALMER, Mr. Zadrahimi, judges, with the participation of Mr. Marcel Lupu, Registrar, considering the appeal filed on 25 October 2016 and recorded at the same time examining the appeal referred to in public plenary, taking into account the laws and proceedings, Acting on 31 January 2017 in the Chamber Council Pronounce the following judgment: 1. The origin of the case lies at the Constitutional Court on an appeal filed by Mr. Mikhail Santiago, Ombudsman, on notification constitutionality control art. 28 para. (6) (a). e) and art. 35 para. (3) (a). g) of law No. 162-XVI of 22 July 2005 on the status of the military.
2. The author of the referral alleged, essentially, that the contested provisions, which prohibit military personnel by contract the right to hold multiple nationalities, restrict the right to work, to freedom of movement and the right to education, and in fact are discriminatory, contrary to articles 1 para. (3) ". (1), 15, 16, 17, 27, 35, 43, 57 of the Constitution.
3. By decision of the Constitutional Court of 18 November 2016 referral has been declared admissible, without prejudeca Fund case.
4. In the process of examination of the Constitutional Court requested the referral to the opinion of the Parliament, the President of the Republic of Moldova and the Government.
5. During the meeting of the public Court, the appeal was supported by the representative of the Ombudsman, Mr. Igor, lead counsel in the direction of policies, reforms and reports from the Office of the Ombudsman.
6. Parliament was represented by Mr Valeriu Kuchuk, head of representation at the Constitutional Court, and law enforcement agencies in the legal Directorate of the Parliament Secretariat. The Government was represented by Mr. E. Taha, Deputy Minister of Justice. The Ministry of defence was represented by Mr. Radu Sereda, head of the legal Directorate of the Ministry of defence.
In FACT 7. Rights and duties of the military, how compliance with military service, prohibitions and restrictions on the exercise of certain rights of military personnel are regulated by law No. 162-XVI of 22 July 2005 on the status of the military.
8. Under art. 28 para. (6) (a). e) of the Act, may not be impressed into military service by contract Moldovan citizens who hold citizenship of another country. According to art. 35 para. (3) (a). g) of the same law, the release of soldiers from military service under the contract shall be made in the case of acquiring the citizenship of another State in REVIEWING LEGISLATION. 10. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 4Drepturile and human freedoms "(1) constitutional provisions for human rights and freedoms shall be interpreted and applied in accordance with the Universal Declaration of human rights, and with other conventions and treaties endorsed by the Republic of Moldova is a party.
(2) If there are inconsistencies between covenants and treaties regarding fundamental human rights to which Moldova is a party and its internal laws, international regulations have priority. "


Article 16Egalitatea "(1) respect and protect the human person constitutes a duty of the State.
(2) all citizens of the Republic of Moldova are equal before the law and public authorities, without distinction of race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, wealth or social origin. "


Article 35Dreptul to education "(1) the right to education is guaranteed through compulsory general education, upper secondary education and through the professional, through higher education, and through other forms of instruction and professional development.
[…]”


Article 43Dreptul at work and the labour protection (1) everyone has the right to work, to free choice of work, to fair and satisfactory conditions of work and to protection against unemployment.
[…]”


Article 54Restrângerea the exercise of certain rights or freedoms "(1) in the Republic of Moldova cannot be adopted laws suppressing or violating fundamental rights and freedoms of man and citizen.
(2) the exercise of rights and freedoms may not be subject to restrictions other than those prescribed by law and which correspond to the widely recognized norms of international law and are necessary in the interests of national security, territorial integrity, economic well-being of the country, public order, in order to prevent mass unrest and crime, protection of rights, freedoms and dignity of other persons, preventing the disclosure of confidential information or to ensure the authority and impartiality of the judiciary.
(3) the provisions of paragraph (2) do not allow the restriction of the rights stipulated in articles 20-24.
(4) the restriction must be proportional to the situation that caused it, and may not affect the existence of that right or freedom. "


Article 56Devotamentul towards the country "(1) the devotion to country is sacred.
(2) citizens to whom they are entrusted to public officials, as well as the military, responsible for carrying out faithfully the obligations and, in the cases provided by law, shall take an oath demanded of it. "


Article 57Apărarea of the fatherland "(1) homeland defense is a right and a sacred duty of every citizen.
(2) military service is satisfied within the armed forces, national defense, intended for guarding the borders, and maintaining public order, in accordance with the law. "
11. The relevant provisions of law No. 162-XVI of 22 July 2005 on the status of military personnel (Official Gazette, 2005, no. 129-131, 618) are as follows: Article 8Drepturile and of the soldiers ' Military benefits from the rights and freedoms set forth for Moldovan citizens by the Constitution, laws and international agreements to which Moldova is a party, with the restrictions caused by the peculiarities of the military service. "



Article 28Încadrarea into military service under the contract "[...]
(6) may not be employed in military service by contract: citizens [...] e) who hold citizenship of another State;
[…]”


Article 35Eliberarea soldiers from military service "[...]
(3) Release from military service under the contract shall be made in the following cases: [...]) to acquiring citizenship of another State;
[…]”


Article 38Îndeplinirea military service in case of a plurality of citizens "[...]
(2) citizens of the Republic of Moldova that have permanent legal domicile in the territory of the Republic of Moldova and who hold citizenship of another State may not be employed in military service under the contract. "
12. The relevant provisions of the law on citizenship of the Republic of Moldova No. 1024 of 2 June 2000 (republished in the Official Gazette, Special Edition, 2005) are as follows: Article 25Drepturile and duties in case of a plurality of citizens "Moldovan citizens residing legally and habitually in the territory of the Republic of Moldova, which possess legal and citizenship of another State shall enjoy the same rights and duties as other citizens of the Republic of Moldova."
13. The relevant provisions of the European Convention concerning citizenship (adopted at Strasbourg, on 6 November 1997 and ratified by decision of Parliament of the Republic of Moldova No. 621-XIV of 14 October 1999) are as follows: Article 1 3Competenţa State ") each State has the right to determine through legislation to which they are citizens.
[…]”


Article 17Drepturile and obligations arising from multiple citizenship ' 1) citizens of the State party who possess another nationality, the territory of that State party where they live, the same rights and obligations as the nationals of that State [...] "
LAW 14. From the contents of the referral, the Court observes that it is aimed at essentially the prohibition to hold citizenship of another country than Moldova for military service under the contract as well as the release from military service under contract to the acquisition of citizenship of another State. Therefore, the appeal concerns a number of constitutional principles and elements, as well as interconexe the right to equality and non-discrimination, as well as the principle of the primacy of the provisions of international documents to which Moldova is party in the field of the protection of the rights and fundamental human freedoms.
A. ADMISSIBILITY Of 16. In accordance with its decision of 18 November 2016, the Court noted that, under article 135 paragraph 1. (1) (a). the article of the Constitution). (1) (a). a) of the law on the Constitutional Court and to article 4 para. (1) (a). the constitutional jurisdiction of the code), referral to the constitutionality of laws concerning the competence of the Constitutional Court.
17. Articles 25 lit. I) of the law on the Constitutional Court and 38 para. (1) (a). I) of the code of constitutional jurisdiction granted to the Ombudsman the right to refer the matter to the Constitutional Court.
18. the Court points out that the prerogative vested in it by article 135 paragraph 1. (1) (a). of the Constitution requires) the relationship between laws and the Constitution, taking into account the principle of the supremacy of the latter.
19. Note that the subject of Court control of constitutionality is the article. 28 para. (6) (a). e) and art. 35 para. (3) (a). g) of law No. 162-XVI of 22 July 2005 on the status of the military.
20. At the same time, examining the referral, the Court observed that a rule with a similar object and is contained in para. (2) art. 38 of law No. 162-XVI of 22 July 2005 on the status of the military. Although the author has not invoked the referral provisions in paragraph 1. (2) art. 38 the Court finds that this is in connection with the contested provisions. Thus, pursuant to article 4. 6 paragraph 1. (3) of the code of constitutional jurisdiction, according to which the Constitutional Court may rule a decision in respect to other enactments whose constitutionality depends entirely or partly to the constitutionality of the contested act, the Court will exercise on notification constitutionality control also art. 38 para. (2) 21. The Court notes that the contested rules have not been previously subject to the control of constitutionality.
22. the Court notes that the referral cannot be rejected as inadmissible and there is no reason to suspend the process, in accordance with the provisions of article 60 of the code of constitutional jurisdiction.
23. the Court observes that the author of the referral argues that the contested rules are contrary to articles 1 para. (3) ". (1), 15, 16, 17, 27, 35, 43, 57 of the Constitution.
24. the Court noted that articles 1 and 4 wearing a generic character and constitute overriding general-obligatory underlying any regulatory approvals cannot constitute separate and individual landmarks. At the same time, keep in mind that the provisions of articles 15, 17, 27 and 57 of the Constitution, cited by the author referral, are irrelevant in relation to the disputed rule.
25. Thus, in order to elucidate the issues raised in the complaint, the Court will operate with the provisions of articles 16, 35 and 43 of the Constitution, and by reference to the case-law of the European Court of human rights (hereinafter the ECHR).
B. the CASE of alleged infringement of the FUND article 16 combined with articles 35 and 43 of the Constitution. The author of the referral alleges that the contested provisions are contrary to article 16 of the Constitution, which States: "(1) respect and protect the human person constitutes a duty of the State.
(2) all citizens of the Republic of Moldova are equal before the law and public authorities, without distinction of race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, wealth or social origin. "
27. in addition, the author considers that the contested rules violate article 35 of the Constitution, according to which: "(1) the right to education is guaranteed through compulsory general education, upper secondary education and through the professional, through higher education, and through other forms of instruction and professional development.
[…]”
28. At the same time, the author argues that the legal provisions are contrary to the criticism article 43 of the Constitution, which lays down: "(1) everyone has the right to work, to free choice of work, to fair and satisfactory conditions of work and to protection against unemployment.
[…]”
1. Arguments of the author of the referral

29. In motivating referral, author claims that, by applying art. 28 para. (6) (a). e) and art. 35 para. (3) (a). g) of the law on the status of military personnel, citizens carrying out military service under the contract are discriminated against in relation to other citizens of the Republic of Moldova, which hold some public functions or the status of public dignity and entitled to hold multiple nationalities.
30. In the opinion of the author of the referral, the condition of citizenship, established for soldiers under contract, is not based on objective justification and does not seek a legitimate purpose, there is a reasonable proportionality between the report means employed and the aim sought.
31. in addition, the author also mentions that the referral to apply for admission to the higher military education institutions must possess the citizenship of the Republic of Moldova, only because, under the law on the status of the military, students to those institutions have the status of contract servicemen. Therefore, in the author's vision, the rules restrict right to challenged learning, held by art. 35 of the Constitution.
2. Arguments of the 32 authorities. In his written opinion, Parliament noted that possession by a contract employee other than citizens of the Republic of Moldova may arouse doubts regarding its loyalty towards the country. Thus, Parliament has considered it necessary to establish multiple restriction to its citizens by contract, in order to ensure their loyalty towards the State and for the exclusion of conflicts of interests which could arise in the performance of the obligations imposed by these citizens and their associations.
33. At the same time, the Parliament considers that the contested rules do not violate the right to work, offering its citizens or state right to choose between employment and military service by contract or accession to other work.
34. At the same time, Parliament argued that the contested rules do not violate the right to education, since the Constitution allows for higher education institutions to approve its own rules and to establish educational programmes.
35. According to the Government, possession of the restriction in the contract soldiers of several nationalities shall be subject to the interests of national security.
36. Also with regard to the principle of non-discrimination, invoked by the author, the Government referral noted that employment relationships of persons holding public or have the status of public dignitaries are not similar to soldiers ' employment relationships that have specific duties of military service.
37. In conclusion, the Government argued that the contested rules pursue a legitimate purpose and are necessary in a democratic society, being in accordance with their constitutions and the European Convention for the protection of human rights and fundamental freedoms.
38. the presidential Institution has not submitted to the Court his opinion.
3. Assessment of the Court 3.1. General principles 39. The Court noted that the nationality of a legal person designates the link between State and citizen quality requires devotion and fidelity to the people's interests, as well as meeting all of the obligations enshrined in the Constitution and other laws.
40. the Court shall retain citizenship of the institution that finds its legal regulation in the Constitution and legislative acts, international laws, the consequential, as well as the Universal Declaration of human rights and the European Convention on nationality.
41. the Court noted that the Republic of Moldova has ratified the European Convention concerning citizenship (CEC) in 1999, without veto with regard to the prohibition on multiple nationalities. In this sense, one of the fundamental principles of international law is that States have an obligation to pursue in good faith the international treaties to which they are party.
42. Art. 17 of the European Convention concerning the nationality of the Republic of Moldova establishes the obligation to ensure that its citizens who possess and other citizens to benefit from the same rights and obligations as all other citizens of the Republic of Moldova.
43. In accordance with the provisions of article 25 of the international law relating to citizenship of the Republic of Moldova stipulates that citizens who possess the nationality of another State shall enjoy the same rights and obligations as all other citizens of the Republic of Moldova.
44. In the case of Tanase v. Moldova, the Court found violations of the provisions of the conventional by the authorities of the Republic of Moldova, through the adoption of law No. 273-XVI of December 7 2007, namely the violation of the right of the complainant to be elected to Parliament, as guaranteed by article 3 of Protocol No. 1 to the Convention. Provisions of the law required restrictions on the employment of public functions for people who held and the nationality of a State other than the Republic of Moldova.
45. In this case, the European Court considered that there were other means to protect the laws, institutions and national security of the Republic of Moldova.
46. Moreover, the European Court has noted that the State had to take into account relevant international instruments and reports, particularly those of the Council of Europe bodies, in the conventional interpretation of the guarantees and the establishment of a general consensus. The European Court observed that the Commission against racism and intolerance, Council of Europe Parliamentary Assembly, the Committee for monitoring compliance with obligations, as well as the Venice Commission were unanimous in their criticism over the ingerinței.
47. Having regard to the conclusions of the European Court in the case of Tanase v. Moldova, the Constitutional Court passed Judgement No. 31 of 11 December 1986 on the review of the decision of the Constitutional Court of 26 May 2009 whereby he declared unconstitutional the provisions of law No. 273-XVI dated December 7, 2007, which forbade the employment of public functions by Moldovan citizens who hold another nationality.
3.2. Application of the principles in this question 48. The Court finds that art. 28 para. (6) (a). e) and art. 35 para. (3) (a). g) of the law on the status of the military establish a ban on possession of several citizens for military contracts, which differ from the conditions of employment of military personnel from those of other categories of persons who hold certain public functions and have the right to hold multiple nationalities.

49. The Court also notes that, for the purposes of the law on the status of the military, students of higher teaching institutions have the status of military servicemen under contract.
50. Under art. 16 of the Constitution, all citizens of the Republic of Moldova are equal before the law and public authorities, without distinction of race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, wealth or social origin.
51. the Court recalls that in its constant jurisprudence held that any difference in treatment does not automatically entail a violation of article 16 of the Constitution. To fix the violation of article 16 of the Constitution has to be noted that persons in similar situations or comparable benefits from preferential treatment and that this distinction is discriminatory (Judgement No. 27 of December 20, 2011).
52. At the same time, a distinction is considered discriminatory if not based on an objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is a reasonable ratio of proportionality between the means employed and the aim sought.
53. the State has a certain margin of appreciation in order to justify a different treatment in similar situations. The scope of the margin of appreciation varies depending on the circumstances and context, but the Constitutional Court it is incumbent upon the mission to finally appreciate the compliance with the requirements of the Constitution.
54. the Court note that this question is in the context of the armed forces, which is an area located in close liaison with the security of the State and therefore essential to the vital interests of the State.
55. The European Court has established that States enjoy a wide discretion in the field of national security in general, and of the armed forces, in particular (Smith and Grady v. United Kingdom and Lustig-Prean and Beckett v. the United Kingdom).
56. The case-law of the European Community noted that by embracing the military career, members of the armed forces shall voluntarily submit to a system of military discipline and some limitations on rights and freedoms that this system involved (Kalac v. Turkey on 1 July 1997 and Larissis and others v. Greece of 24 February 1998).
57. At the same time, such restrictions are acceptable only where there is a real threat to the operational effectiveness of the armed forces, and allegations of the existence of this risk must be "supported by examples" (Smith and Grady v. United Kingdom and Lustig-Prean and Beckett v. United Kingdom of 27 September 1999).
58. the Court supports arguments that the military authorities have an obligation under the contract of loyalty to the State in order to ensure national security and defence capacity of the country.
At the same time, the Court finds that this restriction be imposed an absolute presumption of bad faith and lack of loyalty towards the State. 59. The Court points out that the obligation of soldiers to be loyal to the State is enshrined by the constitutional provisions.
60. According to article 56 para. (1) of the Constitution of the country, the commitment is sacred. The court notice that devotion of country is a task which, through meaning and importance, are the basis of other constitutional duties, whereas the essential requirement expresses the ratio of the nationality. Thus, between citizen and State is born a lasting bond, accompanied by mutual responsibilities.
61. Likewise, article 56 para. (2) of the Constitution states that: "Citizens for whom they are entrusted to public officials, as well as the military, responsible for carrying out faithfully the obligations and, in the cases provided by law, shall take an oath demanded of it."
62. the Court shall state the constitutional norm that the rationale lies in the fact that the respective functions and quality of military action, in the performance of their duties and obligations of power, which, if necessary, be brought to fruition through the force of compulsion of the State. For these categories of citizens, the fulfilment of obligations under the public authorities which must be made with sacred devotion and faith, presumed a priori.
63. At the same time, the court notice that commitment of military country is insured and by oath. Military oath, given in relation to Moldova, assuming responsibility for the observance represents the laws and military regulations. The Court points out that the oath is not a mere formality.
64. the Court note that violation of the constitutional and legal duties entail legal liability.
65. Thus, secondary sources may be held responsible for the betrayal of the motherland (article 337 of the penal code), disclosure of State secrets (art. 344 of the penal code), handing out perpetual imprisonment (article 387 of the penal code), leaving samavolnică to the battlefield or refusal to Act (article 386 of the penal code) 66. At the same time, the Court notes that while that prohibition is imposed only for soldiers under contract, the military within may hold citizenship of another State, and both having the obligation of loyalty to the country. Equally, it cannot be asserted that the Defense Minister, the President of the Republic of Moldova is the Commander-in-Chief of the armed forces, and others, whose work is linked to the defense of the fatherland and who may hold citizenship of another State, and they do not have similar obligations.
67. Concluding the Court note that exposed such restriction, imposed on a group of people without objective justification, exceed the scope of an acceptable margin of appreciation of the State, affecting the right to work and to education, contrary to articles 16, 35 and 43 of the Constitution.
For these reasons, under articles 135 para. (1) (a). of 140 of the Constitution), and 26 of the law on the Constitutional Court, 6, 61, 62 letter a) and 68 of the code of constitutional jurisdiction, the Constitutional Court DECIDES: 1. It is acceptable to refer to the Ombudsman Nuala Mihail for constitutionality of some provisions of the law. 162-XVI of 22 July 2005 on the status of the military, providing for a ban on possession of multiple nationalities by the military under contract.
2. It is hereby declared unconstitutional:-e) to paragraph (6) of article 28;
-Letter g) of paragraph 3 of article 35;

-in paragraph (2) of article 38 of law No. 162-XVI of 22 July 2005 on the status of the military.
3. This decision is final, cannot be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.

The PRESIDENT of the CONSTITUTIONAL COURT No. 3 Alexandru Tanase. Chisinau, 31 January 2017.


PCC-01/126a No.3, Chisinau, Republic of Moldova on 31 January 2017Parlamentul January 31, 2017 ADDRESS the Constitutional Court decision No. 3, by which he declared unconstitutional the provisions of art. 28 para. (6) (a). e), art. 35 para. (3) (a). g) and art. 38 para. (2) of law No. 162-XVI of 22 July 2005 on the status of the military. The rules ban possession of instituiau challenged by soldiers under contract to the nationality of another State, than in Moldova.
Similarly, having regard to the conclusions of the European Court in the case of Tanase v. Moldova, by decision No. 31 of 11 December 1986 on the review of the decision of the Constitutional Court of 26 May, 2009, the Court declared unconstitutional the provisions of law No. 273-XVI dated December 7, 2007, which forbade the employment of public functions by Moldovan citizens who hold another nationality. Among the provisions declared unconstitutional is also the phrase "that exclusively hold Moldovan citizenship" in article 14, paragraph 1. (2) of law No. 753-XIV of 23 December 1999 on the information and Security Service of Moldova.
At the same time, the Court finds that, by law nr. 65 of 7 April 2011, article 14 of law No. 753-XIV dated 23 December 1999 was exhibited in the new editorial board, at para. (5) of that article is instituindu-prohibition for collaborators of the intelligence and security to hold citizenship of other States.
Taking into account the fact that by the decision No. 31 December 2014 11 were declared unconstitutional provisions of article 14 of the law on the information and Security Service of the Republic of Moldova, introduced through law No. 273-XVI dated December 7, 2007, which prevent multiple nationality, the Court considers it necessary to review the current provisions for the purpose of exclusion of the existing ban. Also to be carried out changes and in art. 7 of law No. 170-XVI dated July 19, 2007 on the status of information and security officer.
Note that court decisions of the constitutional court litigations have effect erga omnes, making it mandatory for all natural and legal persons. The legal consequences of the rules declared unconstitutional will be removed in accordance with the legislation in force.
Thus, in accordance with the provisions of article 28/1 of the law on the Constitutional Court, the Court shall request Parliament to examine this address to be communicated the results of its examination within the time limits prescribed by law.

President Alexandru Tanase