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To Control Notification Constitutionality Of Article 41 Paragraph 2. (4) Of The Code Of Education Of The Republic Of Moldova Nr. 152 Of 17 July 2014 (Students With School Textbooks) (Referral No. Machine 162Nd/2016)

Original Language Title: pentru controlul constituționalității articolului 41 alin. (4) din Codul educației al Republicii Moldova nr. 152 din 17 iulie 2014 (asigurarea elevilor cu manuale școlare) (sesizarea nr.162a/2016)

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    On behalf of the Republic of Moldova, the Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Zadrahimi, judges, with the participation of Mrs Abdow Balaban, Registrar, considering the appeal filed on 28 December 2016 and recorded at the same time, examining the appeal referred to in public plenary, taking into account the laws and proceedings, Acting in the Council Chamber following the judgment, a decision: 1. The origin of the case lies the appeal lodged with the Constitutional Court on 28 December 2016, pursuant to art. 135 para. (1) (a). the art of the Constitution). 25 lit. g) of the law on the Constitutional Court and the 38 para. (1) (a). g) of the code of constitutional jurisdiction, MPs in the Parliament of the Republic of Moldova, Mr. Vasile Bae and Vladimir Odnostalco, for controlling notification constitutionality of article 41 paragraph 2. (4) of the code of education of the Republic of Moldova nr. 152 of 17 July 2014.
2. referral to the Authors claimed essentially that the provisions of paragraphs 2 and 3 of article 41. (4) the education of the Republic of Moldova are contrary to the provisions of articles 16 and 35 of the Constitution.
3. By decision of the Constitutional Court of 19 January 2017, referral has been declared admissible, without prejudeca Fund case.
4. In the process of examination referral, the Constitutional Court of the Republic of Moldova requested the views of the President, the Parliament and the Government.
5. At the plenary session of the Court attended by deputies in Parliament, Mr. Vasile Bae and Vladimir Odnostalco, authors of the referral. The appeal was supported by Mr. Vaillancourt Bae. Parliament was represented by Mr Valeriu Kuchuk, head of representation at the Constitutional Court and the law enforcement agencies within the General Directorate of the Parliament Secretariat. The Government was represented by Ms. Rae Juan, head of the Legal Department of the Ministry of education.
In FACT 6. On 17 July 2014, the Parliament adopted the code of education of the Republic of Moldova, which was established through the legal framework of relations relating to the design, planning, operation and development of the education system in the Republic of Moldova.
7. According to article 41 paragraph 2. (1) of the code of education of the Republic of Moldova nr. 152 of 17 July 2014 (hereinafter referred to as the code of education) in institutions of general education school books shall be used, developed on the basis of the National Curriculum, selected and edited by competition.
8. Thus, article 41 paragraph 2. (3) of the same Code stipulates that students in primary education are provided with textbooks free of charge. At the same time, the provisions of paragraph 4 of the same article state that V-XII school students are provided with textbooks under the lease approved by Ministry of education.
PERTINENT LEGISLATION 9. The relevant provisions of the Constitution of the Republic of Moldova (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 35Dreptul to education "(1) the right to education is guaranteed through compulsory education through secondary education and the professional, through higher education, and through other forms of instruction and professional development.
[...]
(4) public education is free of charge.
[...]
(7) Education, vocational and higher education is equally accessible to all, on the basis of merit.
[...] ".
10. The relevant provisions of the Education Code of the Republic of Moldova No. 152 of 17 July 2014 (Official Gazette, no. 2014, 319-324, art. 634) are as follows: Article 12Structura of the system of education "education is organized by levels and cycles in accordance with the International Standard Classification of education (ISCED-2011): a) level 0-early childhood education-early childhood education:;
-preschool education;
b) level 1-primary education;
c) level 2-secondary education, upper secondary level education cycle:;
d) level 3:-, secondary cycle II: upper secondary education;
-professional technical secondary education;
e) level 4-post-secondary professional technical education;
f) level 5-professional technical education post-secondary nonterţiar;
g) level 6-higher education, cycle one: higher education;
h) 7-level higher education, graduate studies: master higher education;
level 8-I) higher education, cycle III: higher education. "


Article 13Învățământul binding "(1) compulsory education begins with preparatory group in tertiary education and pre-school is completed with upper secondary education or secondary professional technical education and post-secondary.
(2) Compulsory attendance compulsory education cease at age 18.
(3) the responsibility of the compulsory schooling of children up to the age of 16 years shall be the responsibility of parents or other legal representatives and local public administration authorities of first and second levels.
(4) the Ministry of education shall prepare, approve and monitor compliance with regulations for the compulsory schooling of the children of school age. " 


Article 20Organizarea general education ' (1) general Education includes: a) early childhood education:-antepreşcolare groups, for children aged from 0 to 3 years;
-preschool groups for children aged 3 to 6 (7) years, including preparatory groups;
b) primary education: classes I-IV;
(c) secondary education): grades V-IX;
d) upper secondary education: grades X-XII (XIII).
(2) general Education also includes special education, extra-school education, educational alternatives.
[...] "


Article 41Manualele school "(1) In general-education institutions shall use textbooks, developed on the basis of the National Curriculum, selected and edited by competition under a regulation approved by the Ministry of education.
(2) In general education institutions can also use the manual alternative, drafted on the basis of the National Curriculum, selected on a contest basis and recommended by the Ministry of education.
(3) students in primary education are provided with textbooks free of charge.
(4) pupils of V-XII are provided with textbooks under the lease approved by Ministry of education.
(5) students from socially vulnerable families are benefiting from the facilities rental textbooks, under the conditions laid down by the Government. "

11. The relevant provisions of the governmental decision nr. 876 22 December 2015 concerning the provision of textbooks to pupils (Official Gazette, no. 2016, 2-12, art. 3) are as follows: "[...]
5. V-XII school students, including students of professional technical education system in which it is performed and upper secondary education, are provided with textbooks through the system of renting textbooks.
6. payment of textbook rental is determined annually by the special fund for books, depending on the degree of wear and the cost of each textbook specified for the respective year and is approved by the Ministry of education.
     [...]. "
12. The relevant provisions of the Universal Declaration of human rights (adopted on 10 December 1948, in New York and Republic of Moldova ratified by decision of Parliament no. 217-XII of 28 July 1990) are as follows: 1 article 26 ". Everyone has the right to education. Education shall be free, at least in terms of elementary and basic education. Elementary education is compulsory. Technical and professional education shall be accessible to all; access to higher education must be open to all on the basis of full equality according to merit.
2. Education shall be directed to the full development of the human personality and the strengthening of respect for human rights and for fundamental freedoms. It must foster understanding, tolerance and friendship among all Nations and all racial or religious groups, and the development work of the United Nations for peacekeeping.
3. parents have the right to choose the kind of education to be given to their children. "13. The relevant provisions of the Convention on the rights of the child (adopted on 20 November 1989 and ratified by decision of Parliament of the Republic of Moldova nr. 408-XII of December 12, 1990) are as follows: Article 28 1. States parties recognize the right of the child to education and with a view to ensuring the exercise of this right progressively and on the basis of equal opportunities, will aim in particular to: (a)) to make primary education compulsory and free for all;
b) to encourage different forms of secondary education, both general and professional, to make them open and accessible to any child and take appropriate measures such as the establishment of the first education and the provision of financial assistance in case of need;
c) to ensure access to higher education to all, depending on the capabilities of each, by all appropriate means;
d) make open and accessible to all children and school information and professional orientation;
e) take measures to encourage regular attendance at school and reduce school dropout rates.
[...]. "
14. The relevant provisions of the International Covenant on economic, social and cultural (adopted on 16 December 1966, in New York and Republic of Moldova ratified by decision of Parliament no. 217-XII of 28 July 1990) article 13 shall be as follows: ' 1. States parties recognize the right of this Pact that all persons to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity and to enhance respect for human rights and fundamental freedoms. In addition, they agree that through education every person should be able to play a useful role in a free society, that education shall promote understanding, tolerance and friendship among all Nations and all racial, ethnic or religious lines and encourage the development of United Nations activities for the maintenance of peace.
2. States parties recognize that the present Pact to ensure the full exercise of this right: (a)) primary education shall be compulsory and accessible to all free of charge;
b) secondary education, under its various forms, including technical and professional secondary education, must be broadened and become accessible to all through all appropriate means, and in particular introducing progressively the first;
c) higher education must become accessible to all in full equality, depending on each person's ability, through all appropriate means, and in particular by the progressive introduction of the first.
[...]. "
15. The relevant provisions of the additional protocol to the European Convention for the protection of human rights and fundamental freedoms (done at Rome on 4 November 1950 and ratified by decision of Parliament of the Republic of Moldova No. 1298-XIII of 24 July 1997) are the following: 2Dreptul the Article "no one can deny the right to education. The State, in the exercise of their functions and they will assume in the field of education and education, will respect the right of parents to ensure such education and teaching in accordance with their religious and philosophical convictions. "
LAW 16. From the contents of the referral, the Court observes that it is aimed at essentially the way to ensure pupils V-XII with school books.
17. Thus, the appeal relates to a set of elements and principles with constitutional value related to education law and the principle of gratuității education.
A. ADMISSIBILITY 18. In accordance with its decision of January 19, 2017, the Court noted that, pursuant to art. 135 para. (1) (a). the art of the Constitution). 4 paragraphs 2 and 3. (1) (a). a) of the law on the Constitutional Court and the 4 paragraphs 2 and 3. (1) (a). the constitutional jurisdiction of the code), the constitutionality of laws, in particular the education code, the competence of the Constitutional Court.
19. Articles 25 lit. g) of the law on the Constitutional Court and 38 para. (1) (a). g) of the code of constitutional jurisdiction authorizing Deputy in Parliament with the right to refer the matter to the Constitutional Court.
20. the Court notes that the prerogative vested in it by article 135 paragraph 1. (1) (a). the Constitution requires) of the correlation between the laws and the Constitution, taking into account the principle of the supremacy of the latter.

21. the Court remember that constitutionality is subject to the provisions of art. 41 para. (4) of the code, which state that "V-XII school students are provided with textbooks under the lease approved by Ministry of education".
22. the Court finds that the contested provisions have not previously been the object of control constituționalităţii.
23. Consequently, the Court considers that the appeal cannot be rejected as inadmissible and there is no other reason to interruption of the process, in accordance with the provisions of article 60 of the code of constitutional jurisdiction.
24. the Court observes that the authors of the referral, citing violation of articles 16 and 35 of the Constitution, argued essentially that the provisions run contrary to constitutional text criticism of enshrining the free State education 25. Thus, in order to elucidate the issues addressed in the referral, the Court will operate with the provisions of article 35 of the Constitution, with the reasoning set forth in its jurisprudence, and will take into account relevant international laws.
B. the CASE of alleged infringement of the FUND article 35 of the Constitution on 26. The authors of the referral considers that legal provisions criticized provisions of article 35 of the Constitution, according to which: "(1) the right to education is guaranteed through compulsory education through secondary education and the professional, through higher education, and through other forms of instruction and professional development.
[...]
     (4) public education is free of charge.
[...]
(7) Education, vocational and higher education is equally accessible to all, on the basis of merit.
[...] ".
1. Arguments of the authors of referral to 27. According to the authors of the referral, the provisions of article 41 paragraph 2. (4) of the code, which governs education ensuring pupils V-XII school textbooks, under lease approved by Ministry of education, are unconstitutional, since by imposing payments payment for textbooks shall be in breach of the provisions of article 35 paragraphs 1 and 2. (4) of the Constitution, that "public education is free".
2. Arguments of the authorities on 28. In its opinion, Parliament pointed out that under the constitutional State ensures the right to education through the education system, through upper secondary education and the professional, through higher education, and through other forms of instruction and professional development. At the same time, the right of access of individuals to education requires the State obligation to provide this service free of charge nature, within certain limits and subject to certain prescribed standards distinct for each level of education.
29. According to the Parliament, the establishment of special provisions in the code of education does not constitute a violation of the constitutional provisions, whereas the introduction of fees for rent for students in 5th-12TH grades represent a contribution to the attainment of the aims of education and the establishment of a system of cost recovery manuals and subsequent financing of their publishing or reeditării.
30. The President of the Republic of Moldova supports the opinion presented, that of coordination mentioned in paragraph 1. (1) and (7) of article 23. 35 of the Constitution, it appears that by the term "compulsory education" is understood only primary education (grades I-IV) and secondary school (grades V-IX), because at higher, vocational and, although it is equally open to all possible exclusively realized on the basis of merit. Therefore, considering that the State establishes the obligation of the studies by the end of the first cycle of secondary education, all students in compulsory education, irrespective of the type of ownership of the educational institutions, public or private, must have the right to be provided with free textbooks.
31. According to the Government, the provisions do not violate the law challenged Supreme, as long as they come to ensure the continuity of the legal framework in the field of education.
32. The Government also stated that, in his opinion, the free State education cannot be regarded as absolute, as there is no absolute requirement to scroll through all stages of education. Thus, the imposition by law of providing textbooks for pupils of 5th through 12TH rental scheme represents a way of being, in part, of the costs involved in educational services in order to achieve the right to education. Payments for renting textbooks for secondary education and upper secondary, not excessive, are not such as to limit the exercise of the right to education. Therefore, in this case there is a reasonable report proportionality between the means employed and the legitimate aim pursued.
3. Assessment of the Court 33. The Court note that article 35 of the Constitution guarantees the principle, the right to education.
34. Thus, in its judgement No. 27 of 29 September 1998, the Court held that: "[...] The right to education constitutes one of the most important social rights. This law creates the necessary prerequisites for the affirmation of the personality of the plenary and of human dignity, and for the development of the entire society. "
35. In the light of international laws, the right to education is guaranteed by art. 2 of Protocol 1 to the European Convention for the protection of human rights and fundamental freedoms, art. 28 of the Convention on the rights of the child, art. 13 of the International Covenant on economic, social and cultural and art. 26 of the Universal Declaration of human rights.
36. In this respect, the Court reveals that the provisions of international legal instruments, it appears that the responsibility of the State obligation to provide primary education to be compulsory and free for all, to encourage different forms of secondary education, both general and vocational nature, which must be open and accessible to any child, and take appropriate measures, such as the establishment of the first education and the provision of financial assistance in case of need.

37. Furthermore, in its case-law the European Court acknowledged that, although it is especially important, however, the right to education is not absolute and may be subject to limitations. These limitations are implicitly accepted as long as the essence of the right is not affected, because the right of access to education "by its very nature must be regulated by the State" (Cage and others v. Moldova and the Russian Federation, judgment of 19 October 2012, § 140 and cause "aspects of the rules governing the languages in the schools of Belgium" Belgium, judgment of 23 July 1968 , § 3).
38. in addition, in the case of Campbell and Cosans v. the United Kingdom, the European Court held that the right to education requires the adoption of regulations by the States, which can be variable in time and space, in accordance with the needs of society and community resources, as well as the resources of its members, but also rules must never be such as to affect the substance of the right itself (judgement of 25 February 1982).
39. In this context, note that the State Court, through its policies, has the obligation to create conditions for ensuring the right to education, including deciding the programs, the manner and means by which it is achieved, the level of education up to which education is obligatory, as well as the establishment of guarantees and grant free education means are necessary to achieve. At the same time, the State policy in the sphere of education to be carried out in strict conformity with constitutional provisions.
40. According to article 35 paragraphs 1 and 2. (1) of the Constitution, the right to education is ensured by: (1) compulsory general education; (2) vocational upper secondary education, and (3) higher education, and other forms of instruction and professional development. At the same time, article 35 paragraphs 1 and 2. (7) of the Constitution provides that education, vocational and higher education is equally open to all on the basis of merit.
41. Thus, the Court notes that in the sphere of general education mandatory rule is its gratuity. However, compulsory general education is the Foundation of the educational system and is the most visible element of the latter, which is why Government interference to ensure free education is necessary, considering that at this level of education are set bases.
42. For the purposes of constitutional provisions, the Court recalls that in its jurisprudence held that "primary education and general secondary education is free" (HCC No. 27 of 29 September 1998). Thus, once the State in compliance with the constitutional commitment to ensure free education, i.e. to achieve this positive obligation by providing the necessary education process means free of charge.
43. At the same time, the court notice that in general the concept of compulsory education "free education" as a constitutional guarantee, to be interpreted as an opportunity to gain knowledge in educational institutions without being requested, including a payment for renting textbooks.
44. At the same time, the Court shall act that an educational system efficiently implements educational strategies and provides free insurance with the necessary means, including textbooks, to certain educational levels, thereby helping to develop mechanisms to assist in the accumulation of knowledge.
45. In this regard, the Court mentions the practice of other States, and which provides free insurance of pupils in compulsory education school handbooks (Romania, France, Germany, Latvia), and some States shall ensure free education, with all the means necessary for the process of education, and university studies (Sweden, Norway).
46. With reference to the contested rules, the Court indicates that, in accordance with article 5. 72 para. (3) (a). k) of the Constitution, the General organisation of education shall be regulated by an organic law. Thus, according to the powers of the Parliament of the constitutional provisions relating to education developed general compulsory education code.
47. the Court notes that, in accordance with article 5. 20 of the code of education, general education includes: 1) primary education: classes I-IV; 2 lower secondary education): grades V-IX; and 3) upper secondary education: grades X-XII (XIII).
48. At the same time, taking into account the provisions of paragraphs 1 and 2 of article 35. (1) and paragraphs 1 and 2. (7) of the Constitution, the Court shall act through compulsory general education constituanta the envisaged legislative primary education and secondary education, which gave a binding legal regime. However the following cycles of education (upper secondary, vocational and higher education), as it follows from the logic of interpreting art. 35 of the Constitution, is only accessible to all on the basis of merit.
49. Therefore, the Court notes that, by virtue of the constitutional provisions, according to which general education is compulsory and free of charge, charges for educational training in general educational establishments mandatory must be covered entirely from the State budget. 50. Article 41 paragraph 2. (1) of the Code stipulates that education in general education institutions shall use textbooks, developed on the basis of the National Curriculum, selected and edited by competition. At the same time, (3) and (4) of the same article shall require that pupils in primary education are provided with textbooks free of charge, and the V-IX pupils are provided with textbooks under the lease approved by Ministry of education.
51. Furthermore, the Court notes that, according to the governmental decision nr. 876 dated 22 December 2015 as regards the provision of textbooks to pupils, the scheme provides for rental and collection of payment (share of the cost of the manual) for renting textbooks for students use data in an academic year. Textbook rental payment shall be determined annually by the special fund for books, depending on the degree of wear and the cost of each textbook.
52. Thus the Court finds that, contrary to the students of classes I to IV which are insured with free textbooks, students of classes V to IX are restrained textbooks only after the payment of a rental payment.

53. the Court note that, by virtue of the constitutional provisions which guarantee free compulsory education, any legal provision which would allow the establishment of compulsory payments for pupils in primary and lower secondary education, including school textbooks, which is an inherent element of the learning process, is contrary to the Supreme Law.
54. In conclusion, the Court note that article 4. 41 para. (4) of the code, in part in ensuring pupils governing V-IX with school textbooks according to the scheme, approved by the Ministry of education, are contrary to the constitutional principle of gratuității of education, referred to in article 35 of the Constitution.
55. In addition, the Court finds confusing regulations in the Education Code of compulsory education cycles, which is why Parliament will submit an Address for the purpose of elimination of the deficiencies found.
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 lit. of the 68 of the code) and constitutional jurisdiction, the Constitutional Court DECIDES: 1. the appeal is allowed in part of deputies in the Parliament of Moldova, Vasile Bae and Vladimir Odnostalco.
2. It is hereby declared unconstitutional article 41 (4) of the code of education of the Republic of Moldova nr. 152 of 17 July 2014, in part aimed at ensuring pupils in classes V to IX with school textbooks under the lease approved by the Ministry of education.
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.