Read the untranslated law here: http://lex.justice.md/index.php?action=view&view=doc&lang=1&id=366435
1. by 27.06.2016, the members of the Central Election Commission, which is composed of nominal was confirmed by the decision of Parliament no. 144 of 17.06.2016, met in the first meeting for election of the Chairman, Vice-Chairman and Secretary of the Central Electoral Commission.
2. I haven't voted, as well as the majority of members of the CEC, to Decision No. 1 of 27.06.2016 on the appointment of the Chairman, the Vice-Chairman and the Secretary of the Central Electoral Commission and on the way I had therefore abstained in the vote because I think that the procedure of voting by secret ballot is provided for in the existing normative framework was not respected.
3. Kept to emphasize that, in fact, I'm not pronunț against approval of the minutes concerning the CEC leadership election results, since essentially this procedure carries a character finding technical and election results totaling. However, I expressed the option through abstention from voting on the grounds that the very procedure of election by secret ballot was not respected and ensured by the majority of members of the CEC, as well as by the Chairman and the Secretary of the meeting.
4. In the present case, the procedural objections and vices of the conditions for election of the new leadership of the Central Electoral Commission refers to the fact that the provisions of the present regulations shall determine how accurate the pursuit of secret voting by members of the CEC, or this, from my point of view, has been violated and deliberately bypassed the majority of CEC members for the following reasons.
5. in accordance with article 16(1). (4) the electoral code, the Central Electoral Commission shall drive in the Constitution, of this code, applicable law and regulation, approved by Commission Decision. Thus, by Decision No. 137 of 14.02.2006, Central Electoral Commission has approved the regulation on his work.
6. In the debate over how voting for leadership within the central electoral body, the majority have opted for a secret vote, under item 58 of the regulation on the work of the Central Election Commission. In order to exercise this democratic exercise, were prepared the technical conditions needed to ensure the vote is secret. In particular, the Chairman of the meeting of the CEC apparatus to ensure ordered the printing of ballot papers in the following formula: last name candidates and a circle where they can be "voted" stamp.
7. Apparently, it seems that everything is clear and correct. But in this regard it is noted that the regulation on the work of the CEC sets out clear and precise rules in relation to the exercise of voting by secret ballot by the members of the Central Electoral Commission. Thus, section 60 of the Regulation States that: over-consumption nominated "for the pursuit of secret voting ballots shall be used. Text of ballot papers must be clearly and precisely. Option must be used for expressing the words "for", "against" and "abstained".
8. In the debate have prompted colleagues on the need to respect its own rules of activity, however, although it is more than evident requirement of compliance with regulatory rules, the majority of members of the CEC decided through a vote to continue the procedure, at the expense of repairing this error of procedure. On the way I therefore deemed it necessary to condiționez my participation in the vote, pointing out that you participate in the vote only if and in what conditions will be ensured compliance with item 60 of the regulation on the work of the CEC, which has not been made. I have not participated in the voting procedure and, as a result, I have abstained from approving the CEC leadership election results, with all due respect for rigour in relation to colleagues elected in these functions.
9. Non-pecuniary value, I consider it fundamental judiciously and essential that the central electoral body-independent State institution, which has as its primary mission and task quality assurance and correctness of any elections, be an example in this respect unequivocally. disregard of rules Or their own electoral matters, namely with regard to the contents of the ballot paper, may create doubts regarding the credibility and professionalism of the Central Election Commission as a whole.
10. According to article 1, paragraph 1. (3) of the basic law, "the Republic of Moldova is a State of law." The provisions of the law on Supreme nominees represents the seat of matter for the principle of legality. The principle of legality, which expresses the requirement of compliance with the regulatory framework, ensure the observance of the rule of law. As the principle of the primacy of the Constitution, legality is the essence of the requirements of the rule of law, i.e. the law of preeminenței in regulating social relations. The principle of legality, as a principle of constitutional rank, enshrines the requirement of compliance with laws and its quality.
11. the essential feature of the rule of law is the obligation of compliance with legal norms. The rule of law ensures the supremacy of the Constitution, all laws and referencing all normative acts, which means that it "involves, priority, enforcement and democratic State is eminently a State in which the rule of law". At the same time, the principle of security of civil legal relations constitutes a fundamental dimension of the rule of law, as it is expressly enshrined by article 1 para. (3) of the basic law.
12. The principle of legality is one of constitutional rank, thereby violating the law has therefore disregard the constitutional rules are immediately. Violation of this obligation affecting the constitutional principle of default draws the rule of law, enshrined in article 1 (1). (3) the Supreme law.
13. In the present case, the European Court noted human rights has held in its case-law that, once the State adopts a regulatory solution, it needs to be implemented with reasonable clarity and coherence in order to avoid legal uncertainty as soon as possible and uncertainty for the subjects of law covered by the measures for the implementation of this solution [see judgement of 01.12.2005 pronounced against the Romanian Cause Păduraru , para. 92, or judgement of December 6, pronounced in the case of Juliet against Romania (No. 1), para. 31].
14. Thus, compliance with legal norms is a fundamental obligation in a State of law, any action by the public authorities must be multipath this objective. Or ignoring the provisions concerning voting procedure itself represents the default secret in breach of the obligations imposed by the principle of legality. Such conduct poses serious questions about the security of legal relations, as tantamount to public authorities to bypass the regulatory framework whenever and in whatever circumstances, while citizens be allowed to enforce it. Moreover, the principle of legality is the essence of the requirements of the rule of law, within the meaning of rule of thumb: "no one is above the law".
15. Respectively, it can be seen that by breaking the rules concerning the content of the ballot paper within the CEC leadership election, it can cause the emergence of situations of instability and inconsistency, contrary to the principle of security of legal relations in its case-law concerning the clarity and predictability of the law.
16. By way of example, we refer to the cause of Ganapthy c/Romania (§ 51), where the ECHR stated the following: "the question arises whether this lack of clarity of the electoral rules could give place to an arbitrary in their application. In this regard, the Court recalls that it has already extensive interpretation again and, therefore, arbitrary in terms of an electoral legislation [Kovach c/Lykourezoz c/Ukraine, Greece]. In the opinion of the Court, the lack of clarity of the provisions of the relevant national authorities required them to be cautious in their interpretation of the account directly with the impact they can have on the outcome of the election. [..] [paragraph 51] ". In paragraph 57 of the same decision, the ECHR held that: "in these circumstances, the Court considers that the lack of clarity of the electoral law [..] have violated the very essence of the rights guaranteed by art. 3 of Protocol No. 1 ".
17. The case is referred to the case-law of the Court and domestic constitutional, through Resolution No. 27 of 20.09.2013, has noted that: "41. The importance of the principle of legality requires that the law be respected, this requirement was not only for individuals, but equally and for public and private authorities. As far as the legality of targeting public agents would have the paperwork is that they act within the limits of powers which have been conferred (§ 42, report on respect for the rule of law, adopted by the Venice Commission at its plenary session, he 86 2011) ".
18. Applying Fora High ad similis Judicial observations, we note that the procedure for the election of the new leadership of the CEC under the existing normative framework was not respected. Thus, this legal reality makes the Central Election Commission Decision No. 1 of 27.06.2016 to the principle of legality in the sense of almost granted constitutional jurisprudence and the ECHR.
19. In such circumstances when no account shall be taken, as stated above, the rigors of procedural constraints imposed by normative framework, even though the Constitutional Court cannot censor laws, appointing or revoking in terms of compliance with the rules of law, this material is required to censor aspects of such procedural acts. However, by Decision No. 29 from 21.12.2010, Constituționlă Court has established that in relation to the President, viepreședintelui, Secretary and member of the CEC, the instruments of appointment/revocation depending on the object of control can make notification constitutionality in terms of form and procedure for adoption.
20. it is noted that, although the Central Election Commission status is not regulated in the Constitution, we cannot note the importance of this institution in order to ensure the constitutional rights of citizens to vote, to be elected and to vote expressing the attitude and/or option regarding the most important issues of the State and of society as a whole.
21. the central electoral body is an independent State authority, established for the purpose of achieving electoral policy of good conduct of the elections, in order to monitor the entire electoral process, as well as for compliance with the legal provisions on the financing of political parties and election campaigns.
22. Inter alia, during the meeting concerning the election of the new leadership of CEC, have decided to draw the attention of colleagues and the professional experience of the candidates to the offices of President, Vice-President and Secretary of the CEC, they obtained the status of persons occupying public dignity functions with their choice in these functions. Although the election code and law No. 199 from 16.07.2010 regarding the status of persons with functions of public dignitaries don't provide a minimum set of requirements necessary for these functions, we considered natural that, in order to elect the most competent and professional colleagues, let us take as an indication of at least the minimum basic requirements necessary for the head of the CEC Apparatus, established by law No. 155 of 21.07.2011 for the approval of Classification of public functions. According to this law (which is connected to the EU legislation), such requirements would be as follows: 5 years of professional experience in the field, mastering a language of movement (level B2), the managerial experience of at least 2 years, etc. With all due respect than most CEC members, the proposal in question was considered to be an opinion without being treated as such.
23. As to attract attention, maintain that the debates of the meeting proposed CEC members to fill with a dot-approved decision regarding validation of mandates of the Chairman, the Vice-Chairman and the Secretary of the CEC. This proposal derives from article 6 paragraph 2. (2) of law No. 199/2010 regarding the status of persons with functions of public dignitaries, which stipulates that: "If the commanders of public dignity takes place through elections, the legal basis of the report of the exercise of the function is validating the mandate by the competent authority, if the special law does not provide otherwise".
24. In my view, the special law in respect of the mandates and functions of public dignitaries within the CEC (President, Vice-President and Secretary) is law No. 199/2010 regarding the status of persons with functions of public dignitaries, and not to the provisions of the electoral code. Or the rules of the election code obtained the status of special law just in electoral matters/reports and under no circumstance may not have a special law in the field of public dignity functions.
25. In the same context, I can't align the position of Mr. Ladani Maximum which is based on article 17, paragraph 2. (3) of the electoral code, according to which the President, the Vice-President and the Secretary of the Commission holding public dignity functions obtained by nomination. In reality, the functions of public dignitaries in this case occurred, unequivocally, through elections. However, if we accept that these functions are obtained by the effect of the appointment, then the natural question arises: what was the role of these elections?
26. Under the terms of the current sociopolitical, strengthening and implementation of the electoral and regulatory capacity-control for fair and stable electoral process remains a priority base of State and society. At the same time, the legal rules in this field to be determined and the requirements and international standards in the electoral sphere. However, a fragile electoral process represents a threat to citizens ' trust in State institutions. Therefore, it requires a fundamental electoral system which enjoy the confidence of citizens in the electoral process, a culture of control.
27. In the light of the above, even if you disregard of statutory procedures has been accepted by a majority of the members of the CEC, such a vote cannot cover the error to a vote through secret proceedings, admitted deliberately most members of the Central Electoral Commission which, by definition, must ensure the correctness of any of the choices and, by his own example, must show that the elections in the Republic of Moldova are and will be legal impartial, fair.
28. About therefore consider judiciously as most members of the Central Election Commission to review its position, and at the next meeting to be cancelled, the decision No. 1 of 27.06.2016 and choosing the leadership of CEC in strict accordance with statutory norms.
29. In conclusion, kept to emphasize that compliance with pre-established rules is a guarantee of democracy and the rule of law as fundamental principles of the State of Moldova. Therefore, it would be contrary to the spirit of the electoral rules to use them to limit democracy or for removal from the essence of the rule of law, or intentional breach by most CEC members of secret voting procedure regulations specifically contain and can bear such risks.
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