Prohibition of the symbols of totalitarian communist regime and of promotion totalitarian ideologies is unconstitutional (Complaint No. 33a/2012)

On 4 June 2013 the Constitutional Court of Moldova ruled on the constitutionality of the Law No. 192 of 12 July 2012 for the amendment of certain legislative acts regarding the prohibition of the symbols of totalitarian communist regime and of promoting the totalitarian ideologies (Complaint No. 33a/2012).

Circumstances of the case

The case originated in the complaint lodged at the Constitutional Court on 18 September 2012 by a group of MPs, on the constitutional review of the Law No. 192 of 12 July 2012 for the amendment of certain legislative acts.

The authors of the complaint claimed, in particular, that the provisions of the challenged Law affect the freedom of expression and association, violating the Articles 1, 2, 4, 5, 6, 16, 32, 41, 54, 66, 114 and 115 of the Constitution.

The Constitutional Court ruled on the complaint in the following composition:

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mr Petru RAILEAN, judges

Conclusions of the Court

Hearing the reasoning of the parties and the explanations of the experts, examining the documents of the case, the Court decided to stick to the joint opinion expressed by the European Commission for Democracy through Law of the Council of Europe (Venice Commission) and by the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) in the Amicus Curiae brief submitted on 11 March 2013 upon the request of the Constitutional Court.

In particular, the Court noted that regulating the use of those symbols, including their prohibition, as well as countering the promotion of the totalitarian ideologies represents the prerogative of the Parliament.

At the same time, as far as such regulations put under risk certain rights and fundamental freedoms, there is necessary to safeguard their clarity, necessity and proportionality.

The Court noted that, in the present case, the challenged provisions pursue a legitimate aim. Nevertheless, the challenged norms do not fulfil the requirements of clarity and predictability.

For this reason, the Court concluded that the challenged provisions do not correspond to the constitutional provisions under the aspect related to the test of quality of the law.

Judgment of the Court

Starting from the reasoning invoked above, the Constitutional Court declared unconstitutional the Articles 4 para. (5) and 22 para. (1) let. e) of the Law on political parties, 67¹ of the Code of Contraventions and Article 3 para. (4¹) on the Law on freedom of expression in its version of the Law No. 192 of 12 July 2012 for the amendment of certain legislative acts. The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Journal of the Republic of Moldova.

At the same time, there is a partially concurring separate opinion of the judge Igor Dolea, and a dissenting separate opinion of the judge Alexandru Tănase within the Judgment of the Court.