Advanced Search

Inadmissibility Of Referral No. 93A/2016 On Notification Constitutionality Control Art. 26 Para. (6) (A). B) Of Law No. 294-Xvi Of 21 December 2007 Concerning Political Parties And Art. 38 Para. (3) (A). C) Electoral Code No. 1381-Xiii Of 21 New

Original Language Title: de inadmisibilitate a sesizării nr. 93a/2016 privind controlul constituționalității art. 26 alin. (6) lit. b) din Legea nr. 294-XVI din 21 decembrie 2007 privind partidele politice și art. 38 alin. (3) lit. c) din Codul electoral nr. 1381-XIII din  21 noi

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.
inadmissibility of referral No. 93A/2016 on notification constitutionality control art. 26 para. (6) (a). b) of law No. 294-XVI of 21 December 2007 concerning political parties and art. 38 para. (3) (a). c) electoral code no. 1381-XIII of 21 November 1997 (financing of political parties)



Published: 11.10.2016 in Official Gazette No. 353-354 art no: 79 date of entry into force: 06.09.2016 Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, PANŢÎRU, Mr. Mr. Talal Zadrahimi, judges, with the participation of Mr Darroch Avornic, Registrar, considering the appeal filed on July 29, 2016, recorded at the same time, examining the admissibility of the referral, taking into account the acts and proceedings of the dossier on 6 September, Acting in the Council room 2016, Pronounce the following decision: in fact 1. On July 29, 2016, Deputy Gregory Canon has addressed a complaint to the Constitutional Court, requesting notification constitutionality control art. 26 para. (6) (a). b) of law No. 294-XVI of 21 December 2007 concerning political parties and art. 38 para. (3) (a). c) electoral code no. 1381-XIII of November 21, 1997.
A. reasons for referral 2. Reasons for referral, as exhibited by the author referral, can be summarized as follows.
3. On 2 April 2015 was adopted Law No. 36 for modification and completion of some legislative acts, which have been introduced through amendments to the law on political parties and the electoral code. Thus, the changes were imposed a ban on the funding of political parties on behalf of natural persons citizens of the Republic of Moldova of the proceeds abroad.
4. The author of the referral argues that the provisions of art. 26 para. (6) (a). b) of the law on political parties and art. 38 para. (3) (a). c) electoral code infringe the principle of equality of citizens and constitutional right of free association in political parties, thus entering into conflict with the provisions of articles 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. relevant Legislation 5. 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.
[…]”
6. 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.
[…]”
7. The relevant provisions of the electoral code no. 1381-XIII of November 21, 1997 (published in m. o., 2016, nr. 277-287/585) are as follows: Article 2Principiile to participate in the election "(1) a citizen of the Republic of Moldova participates in the elections through universal, equal, direct, secret and freely expressed suffrage.
(2) participation in the elections is free (voluntary). No one has the right to exert pressure on a voter in order to coerce him to participate or not to participate in elections, as well as the expression of the free will of his.
(3) citizens of the Republic of Moldova residing outside the country shall enjoy full electoral rights under this code. Diplomatic missions and consular offices are obliged to create conditions for citizens to exercise their electoral rights freely. "


Article 36Interzicerea aid from abroad "(1) it is prohibited to direct funding and/or indirect, as well as support material in whatever form initiative groups, election campaigns of candidates for the election and the contestants by other States, by enterprises, institutions and organizations, international and mixed as well as by individuals who are not nationals of the Republic of Moldova. Amounts so received shall be forfeited by the decision of the Court and make come from the State budget according to the provisions of criminal legislation and criminal.
(2) the provisions of paragraphs 1 and 2. (1) may not be interpreted and applied for the purposes of the limitation of funding allocated to the open and transparent manner, with the aim of supporting the promotion of democratic values, international standards for free elections, democratic and fair. "


Article 38 the conditions and manner of financial support to electoral campaigns "for financing the activity of political parties and election campaigns may be used only with financial resources from employment, self-employment, or in the scientific creation, the territory of the Republic of Moldova.
(2) direct Funding and/or indirect material support, as well as other forms of electoral contestants campaigns by natural or legal persons shall be conducted in compliance with the following conditions: [...] e) on behalf of the ceilings of donations by individuals and legal entities on behalf of "electoral Fund" for an election campaign constitute 200 and 400, respectively, the monthly average salaries per economy set for that year;
[…]
(3) it is prohibited to funding support material in any times form, direct and/or indirect, of the activity of political parties, election campaigns/candidates: [...] c) natural persons citizens of the Republic of Moldova of the proceeds abroad; "
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 the following: ' 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 AS a. referral to the 9. The author of the referral argues that the contested rules violate the constitutional principle of the equality of citizens and the right of free association in political parties.
10. The author of the referral argues that the contested rules, which establish a ban on the funding of political parties, election campaigns or candidates by citizens of the Republic of Moldova of the revenue 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 rules of criticism extends to the quality of the 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 provisions on notification constitutionality controlled violated 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, please note the following.
14. pursuant to paragraph 1 of article 135. (1) (a). the article of the Constitution). (1) (a). a) of the law on the Constitutional Court and to article 4 para. (1) (a). the constitutional jurisdiction of the code), referral to the constitutionality of laws concerning the competence of the Constitutional Court.
15. 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.
16. the Court shall retain that object on notification constitutionality control is the article. 26 para. (6) (a). b) of the law on political parties and art. 38 para. (3) (a). (c)) of the election code, which prohibits the funding of political parties and election campaigns by individuals Moldovan citizens from the earnings obtained outside the country.
17. In the present case, the author invokes violations of rules on the referral challenged the constitutional principle of equality and freedom of Association in political parties.
18. Note that the prerogative Court was vested in it by article 135 paragraph 1. (1) (a). of the Constitution requires) correlation of the rules/laws, Constitution and challenged the text taking into account the principle of the supremacy of the latter.
19. the Court points out that, in accordance with paragraphs 2 and 3 of article 41. (1) of the Constitution, citizens are free to associate in parties and other socio-political organizations. They contribute to the definition and to expressing political of citizens and, in compliance with the law, shall participate in the election.
20. Interpreting art. 41 para. (1) of the Constitution, the Court, in its judgement No. 37 of 10 December 1998, stated that: "[...] establishment of criteria concerning the organisation and functioning of a political party (how to create, creating, a heritage, a stand-alone structure, registration, the principle of representativeness) derives directly from the Parliament's right to regulate them by means of an organic law, as expressly provided for in art. 72 para. (3) (a). g) of the Constitution. "
21. the Court notes that the contested rules, which provide for the ban on foreign subsidies to political parties, is derived from the principle established by the legislator in article 7. 38 para. (1) of the electoral code, according to which financing activity of political parties and election campaigns may be used only with financial resources from employment, self-employment, or in the scientific creation, the territory of the Republic of Moldova.
22. With reference to the role of the State in regulating subjects entitled to finance European political parties, the Court in its case-law (Basque nationalist party-regional organization from Iparralde v. France, judgment of 7 June 2007, § 47) stated that: "47. […] This matter falls within the margin of appreciation afforded to the residual Contracting States, which are free to determine which external financial resources can benefit from political parties. […] This leads to the conclusion that the ban imposed on political parties receive funding from political parties outside the country is not in itself incompatible with article 11 of the Convention. "
23. At the same time, the European Court (Sitaropoulos and Giakoumopoulos v. Greece, no. 42202/07 judgment of 15 March 2012, § 69) examined the compatibility, in terms of the criterion of habitual residence, the prohibition imposed on the right to vote, guaranteed by art. 3 of Protocol No. 1 to the European Convention, acting: "69. […] such a restriction may be justified for several reasons: firstly, the presumption that non-residents are less tethered directly and continuously, daily problems of the country and have less knowledge of them; Secondly, candidates in parliamentary elections may not submit so easily on matters relating to the election of citizens living abroad, which will also have less influence over the selection of candidates, or in the preparation of the programmes; Thirdly, the close relationship between the right to vote in parliamentary elections and the fact of being directly targeted in acts of political bodies chosen and, fourthly, such a restriction is explained by legitimate concern and of the legislature to limit the influence of the choices of citizens living abroad in respect of the fundamental problems of the country that particularly affects those who live in the country [...]. "
24. in addition, the European Court in the case of Doyle v. United Kingdom (30158/06, decision of 6 February 2007) considered that the necessity of fulfilling the requirement of residence or length of residence for holding or exercising the right to vote is not, in principle, an arbitrary restriction of the right to vote and, therefore, is not incompatible with article 3 of Protocol No. 1.
25. At the same time, keep in mind that the second amendment to the report of the Republic of Moldova concerning the funding of political parties, adopted by GRECO on December 4, 2015 (Greco RC-III (2015) 8E), describe it: "21. [...] Republic of Moldova now has a legal framework which seeks to ensure transparency in the financing of political parties, electoral competitors and associated entities, political parties being in accordance with the relevant provisions of Recommendation Rec (2003) 4 on common rules against corruption in the funding of political parties and election campaigns. "
26. With reference to the alleged infringement of the principle of non-discrimination, the Court in its case-law that any difference in treatment does not automatically entail a violation of article 16 of the Constitution. In order to establish an infringement of this principle, as persons in similar or comparable situations to be subjected to differential treatment and discriminatory. The Court noted that the State has a certain margin of appreciation in order to justify a different treatment in similar situations. The application of the margin of appreciation varies depending on the circumstances and context, which are based on an objective and reasonable justification and pursue a legitimate aim.
27. In addition, the image of violating art. 1 of Protocol No. 12 to the European Convention, the Court noted that the Republic of Moldova has ratified the Protocol referred to supra, but it's just a signatory to it.
28. Thus, taking account of those mentioned, the Court points out that the establishment of financing of political parties, which may include restrictions both in terms of subjects, as well as with regard to the place of origin of funds, take exclusive appreciation margin of the State, which may restrict the exercise of certain rights or freedoms, unless such measures are necessary in the interests of national security and territorial integrity.
29. In the light of the above, the Court noted that the appeal 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 D E C I D E: 1. It is hereby declared inadmissible the appeal of parliamentarian, Canon, on notification constitutionality control article 26 para. (6) (a). b) of law No. 294-XVI of 21 December 2007 concerning political parties and article 38 para. (3) (a). c) electoral code no. 1381-XIII of November 21, 1997.
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.