inadmissibility of referral No. 109 g/2016 regarding constitutionality exception provisions of article 26 para. (6) (a). b) of the law on political parties (funding of political parties)



Published: 07.10.2016 in Official Gazette No. 347-352 art no: 78 date of entry into force: 26.09.2016 Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Mr. Victor PALMER, Mr. Zadrahimi, judges, with the participation of Mr Darroch Avornic, Registrar, considering the appeal filed on 19 September 2016, recorded at the same time, examining the admissibility of the referral, taking into account the acts and proceedings of the dossier , Acting on 26 September 2016 in the Council Chamber, Pronounce the following decision: in fact 1. The origin of the case lies the plea of unconstitutionality of article 26 para. (6) (a). b) of law No. 294-XVI of 21 December 2007 concerning political parties, raised by Maia in file No. S 2-4325/16 pending in Buiucani, mun. Chişinău.
2. The appeal was lodged with the Constitutional Court on 19 September 2016 by judge Magalona Murguleț under article 135, paragraph 1. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016, and of the regulation on the procedure for examining complaints lodged with the Constitutional Court.
A. the main dispute Circumstances 3. On the role of the Buiucani, mun. Chişinău, is the action filed by E.L. political party against the "party of action and Solidarity" with respect to the cancellation of a refusal of acceptance of the donation.
4. On 16 September 2016, during the meeting, President of the political "party of action and Solidarity", Maia Sandu, raised the plea of unconstitutionality of article 26 para. (6) (a). b) of law No. 294-XVI of 21 December 2007 on political parties.
5. By the same date, the Court has ordered the lifting of the exception of unconstitutionality and send referral to the Constitutional Court for address resolution.
B. relevant Legislation 6. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 16 Equality "(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 41 Freedom of parties or other socio-political organizations "(1) all citizens are free to associate in parties and other socio-political organizations. They contribute to the definition and expression of the political will of citizens and, in accordance with the law, shall participate in the election.
[…]”
7. The relevant provisions of law No. 294-XVI of 21 December 2007 on political parties (published in M. A., 2008, no. 42-44/119) are as follows: Article 26Donaţiile "[...]
(6) it is prohibited to financing, provision of services free of charge times the material support in any form, directly and/or indirectly, to political parties by: a) the Moldovan citizens who have not reached the age of 18 years, limit the ability of citizens exercise or declared unable through a final decision of the Court;
b) natural persons citizens of the Republic of Moldova of the proceeds abroad;
c) foreign citizens, stateless persons, or those anonymous donating on behalf of third parties;
d) public authorities, organizations, businesses, public institutions and other legal persons financed from the State budget or having state capital, except in cases in which the provision of services or support material is expressly provided for by law;
e) legal persons who, at the time of donation, have outstanding debts older than 60 days from the State budget, the State social insurance budget or mandatory health insurance fund;
f) legal entities with foreign capital or joint legal persons from abroad;
g) other States and international organizations, including international political organisations;
h) non-commercial organizations, trade unions, charitable or religious.
[…]”
8. The relevant provisions of the European Convention for the protection of human rights and fundamental freedoms, as amended by the additional protocols (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 as follows: Article 11Libertatea of Assembly and of Association 1. Everyone has the right to freedom of peaceful assembly and to freedom of Association, including trade unions, to be with others and to join unions to defend one's interests.
2. The exercise of these rights may be subject to restrictions other than those prescribed by law and which, in a democratic society, are necessary for national security, public safety, order and prevention of crime, protection of health, morals or the rights and freedoms of others. This article shall not preclude legal limitations to be imposed on the exercise of these rights by members of the armed forces, the police or the State administration. "


Article 14Interzicerea discrimination ' exercise of the rights and freedoms recognized in the present Convention shall be ensured without distinction and, in particular, on race, colour, sex, language, religion, political opinions or any other opinions, national or social origin, membership of a national minority, wealth, birth or any other situation. "
In the author's Arguments exception. constitutionality 9. The author argues that the non-constitutionality exception rules violate the constitutional principle challenged of the equality of citizens and the right of free association in political parties.
10. The author of the referral argues that the prohibition of donations on behalf of the citizens of the Republic of Moldova from the earnings obtained outside the country creates a situation discriminating between citizens.
11. At the same time, the author of the referral argues that the prohibition imposed by the norm extends and criticised the quality of party member. However, non-payment of contributions or donations to the party members can generate exclusion from the party.
12. Thus, according to the author of the referral, the constitutionality of which is invoked in breach of the provisions of art. 4, 8, 16 para. (2) paragraphs 1 and 2, 41. (1) of the Constitution, art. 11, 14 of the European Convention and article. 1 of Protocol No. 12 to the European Convention.
B. Assessment Of Court 13. Examining the admissibility of the referral regarding constitutionality exception, the Court notes the following.
14. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws, in particular of the law nr. 294-XVI of 21 December 2007 concerning political parties is the responsibility of the Constitutional Court.
15. the Court finds that the appeal relating to the exception of unconstitutionality, being raised in the Maia S No. 2-4325/16 pending in Buiucani, mun. Chişinău, is made by the subject entrusted this right under article 135, paragraph 1. (1) letter a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016.
16. the Court respect that prerogative to address the exceptions of unconstitutionality entails establishing correlation between the contested rules and Constitution, taking into account the principle of the supremacy of its provisions and to address the relevance of the contested dispute in the courts.
17. In this connection, the Court noted that the exception of unconstitutionality is a tool for the defence of fundamental rights and freedoms. The exception of constitutionality may be erected only within a process triggered by the common law courts. The exception of constitutionality may be raised only as an incident in the examination of the main action. This principle implies that the main action must be based on a real dispute and norma challenged to have impact on the resolution of the case on the role of the Court.
18. In the present case, the Court note that a member of the party action and Solidarity acted in Court Action and solidarity Party, on the grounds that the party does not accept a donation from his side.
19. Please note that the subject of Court action, on the role of the Court is the legal obligation of a person to accept a donation. The Court noted that the civil legislation does not provide for the possibility of obliging the donatarului to accept a donation, the donation was a legal act is reached only by the free consent of the parties. The Court points out that no one can be forced to accept a donation, even more so, it is unable to make the Court.

20. the Court retains that circumstances of the case it is clear that between the parties, in essence, there is a dispute of civil nature, the donation by the legal norm, which establishes certain prohibitions in the matter of the funding of political parties. Consequently, the action brought before the Court by the Fund is not a real dispute, but has pursued a clear goal to appeal to the Constitutional Court the provisions of art. 26 para. (6) (a). b) of law No. 294-XVI of 21 December 2007 on political parties.
21. In the light of the foregoing, the Court finds that the action brought before the Court is fictional, its purpose being to request notification constitutionality control art. 26 para. (6) (a). b) of the law on political parties, making use of non-constitutionality exception mechanism, which runs counter to the concept of the institution of non-constitutionality exception. 
22. the Court points out that, in the absence of an actual dispute, the plea of unconstitutionality of a camouflaged character behaves actio popularis. Therefore, the Court of constitutionality in mind that exception makes the subject of this case is unfair and cannot be accepted for examination.
For these reasons, pursuant to article 26 of the law on the Constitutional Court, articles 61 para. (3) and 64 of the code of constitutional jurisdiction and the PT 28 lit. d) of the regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court DECIDES: 1. To be declared inadmissible the plea of unconstitutionality of article 26 para. (6) (a). b) of law No. 294-XVI of 21 December 2007 concerning political parties, raised by Maia in file No. S 2-4325/16 pending in Buiucani, mun. Chişinău.
2. 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