for the interpretation of article 34 paragraph 2. (3) of the Constitution of the Republic of Moldova (access to information) (Referral No. 23b/2015)
Published: 08.12.2015 in Official Gazette No. 330-331 art no: 33 date of entry into force: 22.06.2015 In the name of the Republic of Moldova, the Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Mr. Victor POPA, judges, with the participation of Mr. Theodore Slipper, Registrar, considering the appeal filed on 27 May 2015 and recorded at the same time, examining the appeal referred to in public plenary considering the acts and proceedings of the dossier, acting in plenary sitting, Pronounce the following judgment: 1. The origin of the case lies the appeal lodged with the Constitutional Court on 27 May 2015, under articles 135 para. (1) letter b) of the Constitution, paragraph 2 of point 25 g) of the law on the Constitutional Court and 38 para. (1) (a). g) of the code of constitutional jurisdiction, by the members of Parliament Mihai Ghimpu and Valeriu Munteanu for interpretation of article 34 paragraph 2. (3) of the Constitution of the Republic of Moldova.
2. The authors have requested the referral of the Constitutional Court interpretation of article 34 paragraph 2. (3) for the purposes of identification of the Constitution limits the restriction of certain rights of access to information.
3. in addition, the authors have requested Court referral to rule, by interpreting the provisions of article 34 paragraph 2. (3) upon the constitutionality of the assignment parafei "secret" governmental decision No. 938 of 13 November 2014 with regard to macroeconomic stability in the context of the regional situation.
4. By decision of the Constitutional Court of 2 June 2015, the appeal was declared inadmissible, without prejudeca Fund case.
5. In the process of examination of the Constitutional Court of referral, sought the views of Parliament, the President of the Republic of Moldova and the Government.
6. The authors of the referral were not present at the public meeting of the Court. Parliament was represented by Mr. Ion Creanga, head of the Directorate-General of the Secretariat of the Parliament, and the Government was represented by Mr Nicolae Esanu, Deputy Minister of Justice.
In FACT 7. Constitution of Moldova guarantees, under article 34, the right to information. According to the first paragraph of this article, a person's right of access to any information of public interest shall not be restricted.
8. At the same time, in accordance with article 34 para. (3) of the Constitution, the right to information must not prejudice the measures for protection of citizens or public security.
9. Law No. 245 of 27 November 2008 on the State secret information which establishes categories of State secrets constitutes and regulates certain information as qualification principles state secret and how to appeal against decisions by the secrecy of the information.
10. On 13 November 2014, the Moldovan Government passed Judgment No. 938 in respect of ensuring macroeconomic stability in the context of the regional situation, whereby he granted 9500 million lei to ensure the stability of the financial system and the issue of State guarantees for loans granted by the emergency National Bank of Moldova, giving it the stamp of "secret". That judgment constituted State secret until April 14, 2015, when it was desecretizată and published in the Official Gazette of the Republic of Moldova nr. 93/180.
PERTINENT LEGISLATION 11. The relevant provisions of the Constitution (Official Gazette, no. 1, 1994) are as follows: Article 1 the State of the Republic of Moldova "[...]
(3) the Republic of Moldova is a democratic State of law, in which human dignity, rights and freedoms, the open development of human personality, justice and political pluralism represent supreme values and are guaranteed. "
Article 23 the right of everybody to know for the rights and duties "[...]
(2) the State ensures the right of everybody to know for the rights and duties. For this purpose the State publishes and makes accessible all laws and other regulations. "
Article 34 the right to information "(1) a person's right to have access to any information of public interest shall not be restricted.
(2) the public authorities, according to their competences, are obliged to ensure that citizens are properly informed both on public affairs and matters of personal interest.
(3) the right to information must not prejudice the measures to protect the citizens or the national safety.
(4) the public media, State or private, are obliged to ensure correct public opinion.
(5) the public media shall not be subject to censorship. "
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. "
12. The relevant provisions of law No. 245 of 27 November 2008 on the State secret (Official Gazette, 2009, # 45-46, art. 123) are as follows: "for the purposes of Article 1Noțiuni of this law, the following terms are defined: [...] State secret-information protected by State in national defence, economy, science and technology, external relations, State security, ensuring the rule of law and the public authorities ' activities, unauthorised disclosure of or is liable to prejudice the interests and/or security of Republic of Moldova. "
Article 2Scopul and the scope of the law "(1) this Act establishes the legal framework for the protection of State secrets in order to ensure that interest and/or security. The protection of State secrets shall be achieved through the Organization of the national system for the protection of State secrets [...]. "
Article 6Principiile for the award of the secret state information and secrecy of this information "(1) the assignment information to State secret and their classification shall be made on the basis of the principles of legality, argumentation and opportunity.
(2) the legality of the award information to State secret and their correspondence to the secretizării this information lies in with article 7 and 8 of this law and the law on secrecy of State (3) the rationale for the award of State secret information and their secretizării is to establish rational character of secretizării concrete information, any economic consequences and otherwise of this action , taking into account the balance between the interests of the State, which the society and the citizen.
(4) the appropriateness of the award information to State secret and their secretizării is to establish some restrictions on access to and dissemination of information in question either designing/receipt, either time. "
Article 7Informațiile attributed to State secret "(1) In the manner established by this law are assigned to State secret information: 1) of the national defence: a) the contents of operative and strategic plans of the documents pertaining to the leadership of combat operations relating to the preparation and conduct of operations, strategic deployment, operational and mobilization of troops, other important indicators characterizing the Organization herd, deployment, training and mobilization, arms and technical-material ensuring of the armed forces of the Republic of Moldova;
(b) development of directions) of certain types of weapons, military and special technology, the quantity and characteristics of their tactical and technical, organization and production technology, theoretical and experimental scientific works related to the creation of new models of weapons, military and special technical upgrading, or other works planned or carried out in the interests of national defence;
c) forces and civil protection capabilities available to localities and some separate objectives for protection, evacuation and dispersal of the population, providing vital social activities of population and production activity of legal persons during the period of war, martial law or emergency, as well as in the case of emergency situations;
d) deployment, the destination, the readiness and security objectives with special arrangements, design, construction and operation thereof, the distribution of land, subsoil and acvatoriului for such objectives;
e) data and characteristics of GEODESIC, cartographic and gravimetric devices, which presents the importance to the defence of the State;
2) in the field of economy, science and technology: a) plans and potential for mobilization of national economy, reserves and volume of supplies of strategic materials, generalized data about nomenclature and stock levels, the volume of deliveries, allocation, presentation, their împrospătării, their location and the actual volume of State material reserves;
b) using transport, communications, and other potential targets of national infrastructure in order to ensure the capacity of the defence and security of the State;
c) plans, content, volume, funding and carrying out the orders of the State to ensure State security and defence needs;
d) plans, volume and other important features relating to the extraction, production and realization of some strategic raw materials and products;
e) operations relating to the manufacture of signs and securities issued by the State, their preservation and protection against counterfeiting, issue, Exchange and withdrawal them from circulation;
f) scientific theoretical, experimental design and construction, which can be created by advanced technologies, new types of production, products and technological processes, showing the importance for national defense and the economy, or that affect essential external economic activities, interests and/or State security;
3) of foreign relations concerning the activity of foreign policy), the external economic relations of the Republic of Moldova, whose premature disclosure may cause injury and/or interests of State security;
b) military collaboration, scientific-technical and other Moldova with foreign States and international organizations, if disclosure of such information will inevitably cause damage to the interests and/or State security;
c) foreign State activity in the fields of finance, credit and currency, if the disclosure of such information will cause injury and/or interests of State security;
4) State security and ensuring the rule of law: a) the herd, as well as content, organization, financing plans, and providing technical and material, forms, tactics, methods, means and performance information, and Counterintelligence operative investigation;
b) people who collaborate or collaborated with confidential law enforcement agencies performing intelligence, counterintelligence and operative investigation;
c) forces, means and methods of ensuring the protection of the injured party's State, witnesses and other persons that provide help in criminal procedure;
d) guarding the State border of the Republic of Moldova;
e) plans, organization, funding, personnel of the forces, means and methods of ensuring the security of persons receiving State protection, as well as guarding the offices and their residences;
f) telecommunications systems and other electronic telecommunications networks which provide for the needs of public authorities, national defence, State security and public order;
g) Organization, content, status and plans for the development of cryptographic and technical protection of State secrets, the contents and results of scientific researches in the field of cryptography with respect to the protection of State secrets;
h) systems and means of cryptographic protection of State secret, design, production, production technology and their use;
I) State, the development of ciphers, creation, production technology and their use;
j) Organization of secret arrangements within the public administration and in other legal entities, plans and measures for the protection of State secrets;
k) methods, forms and means of protection of State secrets;
in the sphere of activity 5) public authorities concerning: a) the contents of the statements, comments, projects, parts thereof and other acts of the public authority's internal use, the disclosure of which could result in disclosure of information attributed to State secret;
b) elaboration, activity modification, completion, finalization of official documents, procedures and activities of the public authorities for the collection and processing of information, in the manner prescribed by law, to be awarded to the State secret;
c) examination activity and deliberation within the Government and between these issues in the fields of information are assigned to State secret (2) Motivation need to attribute the information to the State secret, based on principles of attribution of information to State secret and their secrecy, public authorities and other legal persons which have developed/got this info. "
Article 8Informațiile which are not assigned to the State secret "(1) There shall be attributed to the State secret and cannot be classified information concerning: (a) acts of infringement) freedoms and rights of man and of the citizen;
(b) State of the environment) quality of food products and household appliances;
c) accidents, disasters, hazardous natural phenomena and other extraordinary events that threaten the security of citizens;
d population health), her level of life, including nutrition, clothing, medical service and social security, sociodemografici indicators;
e) health of persons occupying positions of dignity;
f) facts of violation of the law by public authorities and persons with responsible positions within it;
the actual condition of g) things in the field of education, culture, trade, agriculture and the rule of law.
Not be assigned to the State secret and cannot be classified and other information according to national legislation and international treaties to which Moldova is a party.
(2) it is prohibited to scrambling the information where it could limit access to information of public interest, it might hit the negatively on the achievement of the programs of State and branch of socio-economic development and cultural or could restrain competition between businesses. "
Article 17Contestarea decision of secrecy of the information "(1) Any national or legal person is entitled to apply to persons with responsible positions who have scrambled information with a reasoned request concerning declassification of such information. People with responsible positions concerned are obliged, within one month, to respond to citizen or legal person writing this application.
(2) persons with responsible positions who eschew the substantive examination of the application is responsible under the legislation.
(3) the decision of the security grading of the information can be challenged in the body or the person with superior responsibility, for the Interdepartmental Commission on State secrecy protection or the administrative court. If the application is submitted in order or hierarchical legal citizen has the right to challenge in court the decision of the administrative body or person with higher liability. If one of these authorities recognize as unfounded, scrambling the information to be released in the manner established by this law.
(4) the administrative court shall examine the request in accordance with the provisions of the law on administrative courts no. 793-XIV of 10 February 2000. "
13. The relevant provisions of the Universal Declaration of human rights (adopted at New York on 10 December 1948, and ratified by the Republic of Moldova by the decision of Parliament no. 217-XII of 28 July 1990) are as follows: "Article 19 everyone has the right to freedom of opinion and expression; This right includes freedom to hold opinions without interference, and freedom to seek, receive and impart information and ideas through any media and regardless of frontiers. "
14. The relevant provisions of the International Pact concerning civil and political rights (adopted by the UN General Assembly on 16 December 1966 and ratified by the Republic of Moldova by the decision of Parliament no. 217-XII of 28 July 1990) are as follows: article 19 1. No one should have to suffer because of his views.
2. Everyone has the right to freedom of expression; This right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, in the form of oral, written, printed, or times by any other means, of his choice.
3. The exercise of the freedoms provided for in paragraph 2 of this article entails obligations and responsibilities. Consequently, it may be subject to certain limitations which must be expressly established by law and are necessary: a) rights or reputation of others;
b securitățiii national defence), public order, public health or morality. "
15. The relevant provisions of the United Nations Convention against corruption (adopted at New York on 31 October 2003 and ratified by the Republic of Moldova Law No. 155 of 6 July 2007; M.o., 2007, nr. 103-106, art. 451) are as follows: Article 10Informarea public "taking into account the necessity of the fight against corruption, each State party shall take, in accordance with fundamental principles of its domestic law the measures necessary to enhance the transparency of its public administration, including as regards the organisation, functioning and decision-making processes, as appropriate. [...]”
LAW 16. From the contents of the referral, the Court observes that it is aimed at essentially limits the restriction of the right of persons to information by invoking the existence of a State secret.
17. In this regard, note that the Appeal Court more constitutional principles aimed at interconexe, as well as the rule of law, democracy, guaranteeing fundamental rights and freedoms and especially the right to information.
A. ADMISSIBILITY 18. In accordance with its decision of 2 June 2015, the Court noted that, under article 135 paragraph 1. (1) (a). (b)) of the Constitution, article 4 para. (1) (a). b) of the law on the Constitutional Court and of article 4 para. (1) (a). (b) Constitutional Jurisdiction) of the Code concerning the interpretation of the Constitution, be taken to refer to 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 confers on the parliamentarian right to refer the matter to the Constitutional Court.
20. the Court note that previously has not interpreted the provisions of article 34 of the Constitution, and the issues raised by the authors of the report I have never constituted the object of interpretation to the Constitutional Court.
21. 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. The Court has received notice that legally and that is competent to decide on the interpretation of article 34 paragraph 2. (3) of the Constitution. Therefore, the Court will examine further referral to the Fund.
22. At the same time, with reference to the examination of the constitutionality of the secretizării governmental decision nr. 938 of 13 November 2014 through article 34 para. (3) of the Constitution, the Constitutional Court stated the following.
23. the Court finds that the Government decision, referred to above, which has accepted the proposal of the National Committee of financial stability for the granting by the National Bank of Moldova, in case of necessity, emergency loans to banks licensed to stabilise financial system, desecretizată, was published in the Official Gazette of the Republic of Moldova nr. 93/180 of 14 April 2015. Thus, the Court finds that the lack of referral object matter.
24. Therefore, for the interpretation of article 34 paragraph 2. (3) of the Constitution, the Court will examine the importance of the right to information for the evolution of democratic society.
25. in addition, the Court will consider including the European Court of human rights and the relevant international organisations acts.
A. CASE FUND 1. The arguments of the authors of the referral. According to the authors of the referral, it is natural that to lay down certain limits and to enumerate the cases when information can not be made known to the public because it could impair the rights, legal interests and measures for the protection of citizens. These limits are set out in article 54 paragraph 1 Express. (2) of the Constitution. Also, article 7 para. (1) of law No. 245 of 27 November 2008 on the State secret shall establish comprehensive information attributed to State secret. The authors assert that the referral, in spite of the existing rules, the authorities abide by secretizării information not covered by the restrictions laid down.
2. Arguments of the authorities. In its opinion, the Parliament considers that the limits imposed by article 34 para. (3) of the Constitution seek to avoid situations which could bring about a moral or material injury to a person or to the interests of the State as a whole. Thus, through measures to protect citizens are considering protecting their legal rights and interests, and through national security it is understood the State of legality, social balance and stability, and economic policy needed for the existence and development of the State as a sovereign and independent, unitary and indivisible State, to maintain the rule of law and the pursuit of unlimited rights fundamental freedoms, and duties of citizens.
29. The President of the Republic of Moldova supports the, in his opinion, that there may be a number of situations where free access to information and, in particular, an advertising information can bring serious damage to the moral and material interests of a person or the State as a whole. The President also considered that the constitutional and legal norms provides citizens with access to information to the extent that it may be offered by suppliers, and where citizens feel restricted in rights, attack actions or information provider inacțiunile using extrajudicial or judicial remedies. At the same time, the President stated that the assignment of parafei "the Secret" a regulatory act does not constitute a problem of constitutionality.
30. In his view, the Government considers that the referral by the authors addressed concern the interpretation of article 34 paragraph 2. (3) of the Constitution, but the fact of the assignment of parafei grading the Government's decisions. Therefore, the referral does not invoke law circumstances implying constitutional provisions interpretation. The Government argues that to interpret the Constitution not referrals should be to pursue cognitive purposes, but must contain clear indications on the various provisions of the constitutional arrangement by some subjects.
3. Assessment of the Court 3.1. General 31. The Court noted that, according to article 34 para. (1) and (2) of the Constitution, a person's right of access to any information of public interest shall not be restricted. According to powers, the public authorities are obliged to ensure that citizens are properly informed about the public affairs and issues of personal interest.
32. the Court shall retain the right of access to any information aimed at the conditions, means and mode of execution of the administration of the Affairs of the State and the right to disseminate such information.
33. In Judgement No. 19 of 16 June 1998, the Court noted that the right to information is a fundamental right of the person, because the person's development in society, the exercise of the freedoms provided for by the Constitution, including freedom of thought, opinion, creation, public expression through Word, image or any other means possible, implies the possibility of receiving information on social life, political, economic, scientific, cultural, etc.. 34. The Court notes that the right to information is a right to request information from the authorities and public institutions. This right involves two aspects: the right to seek and receive information.
35. In this respect, the Court noted that any authority and/or public institution is obliged to provide the information requested as long as there is a legitimate reason to refuse such requests.
36. the Court shall retain that right to information includes the following elements:-the right of a person, organization or legal entity to request public information from the authorities and public institutions without legal interest demonstrate that underlies the request;
-right to request personal information from public authorities and institutions;
-the obligation of the authority or public institution to reply or to provide the information requested, which presupposes the existence of mechanisms for managing requests and the time limits for replies to these requests;
-the existence of exceptions, allowing the refrain for certain categories of information. These exceptions include the protection of national security, international relations, privacy of persons, commercial confidentiality, public order and the implementation of the law, as well as refusal to present information received in confidence, or those resulting from internal discussions. To be able to be invoked, exceptions must justify the existence of injury to the public interest, if that information would be communicated;
-existence of complaints mechanisms for applicants, where public authorities and institutions refuse to submit them;
-the existence of remedies in case of refusal to submit information (usually, the ordinary courts);
-on condition that the authorities and public institutions to inform ex officio in certain types of information about their structure, rules and their activities.
37. the Court shall retain that right to information is a precondition for the exercise of other rights, notably political rights, economic and social development; the right to privacy, the right to take part in public affairs, the right to a fair trial, etc. 38. With regard to political rights, the Court noted that the ability of individuals, interest groups and organizations to participate actively in the political debate that decide issues on the public agenda, as well as the possibility to introduce new issues on that agenda are closely linked to their ability to obtain relevant information.
39. the Court reiterates in this respect the ruling by the European Court in the case of Társaság Szabadságjogokért v. Hungary, namely the fact that the refusal of access to information may constitute a violation of the right to freedom of expression guaranteed by article 10 of the Convention. In this case, the refusal of access to a non-governmental organisation to a lawmaker, filed the appeal at the Constitutional Court and on notification constitutionality control aimed at criminal laws pertaining to drug use, was based on the existence of the personal data of the parliamentarian that referral. The European Court noted that NGOs, which act as guard dogs society, for the benefit of the same protection of article 10 as well as the press and that the complainant's intention was to contribute to the public debate information (paragraphs 26 and 27). Ingerința was apeciată as overkill, and felt that it would be fatal to the freedom of expression in the sphere of policy if political figures could press censorship and public debates on behalf of their personality rights, citing the fact that their views regarding public affairs relate to their person and hence constitute personal data may not be disclosed without consent (paragraph 37).
40. With reference to the relationship between the right to information and right to privacy, the Court recalls the ruling by the European Court in the case Guerra v. Italy, where State authorities failure to communicate information concerning the risks of living in a city exposed the dangers of the environment has created the prerequisites for a violation of article 8. Similarly, the second kind McGinley and Egan v. the United Kingdom, where plaintiffs have tried to establish the link between their health problems and an alleged exposure to radiation during the performance of military service by them, the Court noted that the failure of the authorities to allow the complainants access to certain parts of the dossiers on their medical and military files concerning the level of radiation in the environment amounted to a violation of article 8.
41. the Court notes that the basic law contains several provisions designed to promote participation in the Affairs of Government, namely the right to take part in the administration of public affairs, which emerges from articles 2 (2). (1) and 39-right to vote and the right to free elections, which are guaranteed by article 38 of the Constitution.
42. the Court points out that one of the reasons of consecration of the right to information at the constitutional level is that a functional democracy presupposes the existence of an informed electorate. Models of participatory democracy requires citizens to be well informed in order to be allowed to participate effectively in Government.
43. the Court notes that the link between the right to information and the right to take part in public affairs and was recognized in the international human rights legal department. In the case of Gauthier v. Canada, the UN Human Rights Committee was based on article 25 of the International Covenant concerning civil and political rights, in conjunction with the right to freedom of expression (paragraph 8.3) when analyzed by a journalist who has been denied access to the facilities granted to the press. The reasoning behind the decision of the Committee was that citizens should have, especially through the mass media, a wide access to information and should avail themselves of the opportunity to disseminate information about the work of elected bodies and their members.
44. the Court finds that the contentious European Court was recognized and the relationship between the right to information and the right to a fair trial in the civil context. In the case of McGinley and Egan v. the United Kingdom, the European Court considered that the right to ingerința a fair trial can take birth through restricting access to information on the conditions in which the State prohibits in good faith the complainants access or denies, falsely, the existence of the documents in its possession, which would have been helpful in the process. In this way, they are denied the right to a fair trial.
45. With regard to the relationship with the right to life, in the case of Osman v. the United Kingdom, the European Court has established the existence of a ingerințe in the right protected by article 2 when State authorities are aware of the existence of a real and imminent risk to the life of individuals and refuses to inform those who may be subjected to that risk. In the case of Oneryildiz v. Turkey, it was found that the local authorities of a city have failed to inform the citizens about the possibility of an explosion caused by build-ups of methane gas, although it had at its disposal matter studies. In the aftermath of the explosion, which caused landslides, 39 people died. The European Court has retained right to life.
46. the Court notes that the right to information may constitute a condition for the realization of the rights and economic, social and cultural life. The social security system must ensure the rights of people and organisations to seek, receive and impart information in a clear and transparent manner in all areas of security.
47. In this connection, the european Committee of social rights has retained the Maragopoulos Foundation for human rights v. Greece that the Greek Government had failed to fulfil its obligations to submit information pertaining to pollution caused by the extraction of lignite, which has violated the rights protected under the European Social Charter. The Committee found violations of the right to health (art. 11) and the right to safe working conditions and healthy (art. 3). The guarantees of the right to health required Greek Government obligation of informing and educating the public on environmental issues.
48. With reference to the right to safe working conditions and healthy, the Committee noted that the Greek State had, by virtue of article 3 of the European Social Charter, the obligation to provide accurate and plausible explanations and information regarding accidents at work and the measures taken to monitor the application of the relevant rules relating to health and safety.
49. the Court notes that, according to article 54 paragraph 1. (2) of the Constitution, 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.
50. In this regard, note that Court to limit their right to information must pursue these legitimate purposes.
51. the Court notes that article 6 of the law on State secret lays down the principles for the award of State secret information and secrecy of this information.
52. the Court noted that, by assigning the status of State secret a document or information, citizens are deprived of the right to information concerning them.
53. the Court points out, by way of a general rule, the higher is ingerința in case of a constitutional law, argued should be the premises on which it is spijină.
54. Consequently, public authorities and institutions shall substantiate the existence of a legitimate purpose and the link between the document or information classified as State secret with the pursuit of that legitimate purpose.
55. In this respect, similar to article 6 of the law on State secret, the Johannesburg Principles on national security, freedom of expression and access to information, adopted on 1 October 1995, develops a test of proportionality, which requires that a first stage-with reference to the need for the restriction of the right to information for reasons of national security-that public authorities to demonstrate that disclosure of the information concerned might seriously threaten a legitimate interest related to the safety of National. Follow the step that determines whether the protection of their information (qualifications as State secret) is the most favorable means possible to defend that interest. Finally, the decisive stage determines whether the withholding of information is consistent with the principles of democracy and the right of preeminenței.
56. the Court noted that the award of the status of a State secret information the authorities will apply the proportionality test referred to supra, in assessing proportionality secretizării information for all legitimate constitutional purposes. The default assumes that circumstance when this measure is challenged in administrative courts, they should not be legal, but deferență to proceed to the proportionality test.
3.2. Application of the principles in this question 57. The court notice that, according to article 34 para. (3) of the Constitution, the right to information must not prejudice the measures to protect the citizens or the national security. Therefore, these provisions provide that access to information may be limited in the case of the need for measures to protect the safety or protection of the citizens.
58. With regard to the expression "national security" can be considered two issues: 1) the right of access to information relating to national security and 2) the right to communicate information relating to national security.
59. With regard to the first aspect, the principle 2 of the Johannesburg Principles establishes that restricting access to information that is attempting to be justified on grounds of national security is not legitimate unless its true purpose and demonstrable effect is to protect the existence of or the territorial integrity of the country against threats or use of force. Threats or force can come either from an external source (a military threat), or from an internal source (incitement to violent overthrow of a Government).
60. Actions against State security that pose an unreasonable threat are listed in article 4, paragraph 1. (2) of the law on State security no. 618 of 31 October 1995.
61. In the context of those mentioned, note that restricting the Court justified on the basis of the purpose of national safety protection is not legitimate if not related to national security.
62. With regard to the second aspect, the Court points out that the information cannot be disclosed that touch or can achieve a vested interest related to national security, except in the public interest to know the information exceeds the attainment of which could bring the disclosure of information. Therefore, you should always put in balance the information related to national security and the public's interest to know this information.
63. the Court noted that, according to Principle 15 of the Johannesburg Principles, no person may be punished on national security because it made public certain information if: (1) disclosure of information does not reach or attain a vested interest related to national security, or (2) the public interest-to-know information exceeds the attainment of which could bring the disclosure of information.
64. With reference to the expression "measures for protection of citizens", the Court notes that this includes all positive and negative obligations of the State authorities at national scale in times of peace and war, in order to ensure protection of the population, the property in the condition of natural disasters and environmental damage, and catastarofelor, epifitotiilor, epizootic diseases, fires, and in case of application of modern means of destruction.
65. And in this case can be considered two aspects of access to information relating to measures for the protection of citizens and the right to communicate information relating to measures for the protection of citizens.
66. As regards the first aspect, the Court noted that the activity of the public authorities who have contact with the civil protection and ensure the safety of the public in exceptional situations will be open to the general public and mass media. In addition, public authorities are required to ensure the population properly informed through the mass media, about the degree of protection for them, and in case of occurrence of emergency situations, about the character of danger emerged about actions in the current situation and the measures taken to protect them.
67. With regard to the second aspect, the prohibition to the effect that the communication of information must not prejudice the protection of citizens cover all means of information that would mislead in relation to civil protection and ensure the safety of the population in emergency situations.
68. the Court points out that the right to information is a multidimensional right. It serves several categories of individual and group interests.
69. The right to information means an initial condition for public participation in the democratic game. Access to information has significant consequences for the proper functioning of a democratic regime.
70. the Court notes that democracy is based on citizens ' consent, and consent requires a prior information to citizens on matters of public interest, including the use of public money.
71. the right of access to information is an important tool for the quantification of management mistakes, abuse, corruption and implementing economic and social rights.
72. the Court notes that without access to information or without justified their presentation of its political system would not operate openly, and citizens could not perform active roles in a democracy.
73. the court assigns the right to information is a national resource. Information held by public authorities and institutions are not collected or created for the benefit of these entities, but also for the benefit of the public.
74. the Court emphasizes that openness and transparency are recognized as essential part of modern governments. Transparency is vital for monitoring the activity of public authorities and institutions, and has constitutional dimensions.
75. the Court shall mention, in the context of the fight against corruption, that guarantees the right to information encourages transparency, and transparency of abating corruption. For this reason, a Government acting in the shadow of secrecy when it comes to a public interest which justifies this secrecy is in opposition with the overall goals of the company and designed by the constituent Assembly.
76. the court draws the attention of the public authorities, in decisions on the classification of the information, to consider first the interest of the public with respect to knowledge of the information.
For these reasons, pursuant to articles 140 of the Constitution, 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. For the purposes of article 34 paragraph 2. (3) of the Constitution:-the restriction information can take place only when it is based on a real and justified for the protection of a legitimate interest for the protection of the citizen or national security, and the public interest for the information does not prevail;
-any restrictions on access to information, including specific categories of information, and the limited, which cannot be disclosed for the protection of the citizen or national safety, must be prescribed by law and necessary in a democratic society to protect a legitimate interest;
-justification of legitimate interest is based on the severity of the damage in case of publication of information, the public authorities to demonstrate that disclosure of the information would seriously threaten the protection of the citizen or national security.
2. The Constitutional Court shall decide with discernment in the cases of restricting access to information through acts of Parliament, the President of the Republic of Moldova and the Cabinet of Ministers, in accordance with the requirements set out in item 1 of this device.
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 Alexandru Tanase