The Court examined the constitutionality of certain provisions of the Law on the Polygraph Test and the Law on the National Integrity Authority

On Tuesday, 10 April 2018, the Constitutional Court delivered a judgment on the exception of unconstitutionality of certain provisions of Article 4 a/2) of the Law no. 269 of 12 December 2008 on the polygraph testing and Article 11 (10), (11) and (12) of the Law no. 132 of 17 June 2016 on National Integrity Authority.

Circumstances of the case:
The exception of unconstitutionality was invoked by Mr. Teodor Cârnaț, in a pending trial before the Court of Law of Chişinău, Buiucani office. He challenged the justification of these legal provisions, which establish polygraph testing and which make it binding for the candidates for the office of President or Vice-President of the National Integrity Authority to pass the test.

The Court's assessment:
The Court examined this exception in light of Articles 39 and 43 of the Constitution: the right to take part in the administration of public affairs and the right to work.

The Court acknowledged both the existence of a legal basis for this interference and the compliance with the standard of the quality of the law.

The Court noted that the challenged provisions may contribute to the selection of honest persons for the position of President or Vice-President of the National Integrity Authority and to the prevention of corruption within this institution. The Court established that these particular purposes may be subsumed at least into the following general legitimate aims established by Article 54 (2) of the Constitution: ensuring the defence of national security, ensuring the economic welfare of the country and prevention of crimes.

With regard to the rational connection between the contested legal measures and the above-mentioned legitimate aims, the Court observed that the polygraph test is not a scientific method accepted at European or international level and it is not a reliable procedure to detect simulated behaviour. However, this method may be combined with other evidence established on the basis of scientific methods. Therefore, the lack of any rational connection with the legitimate purposes pursued by the challenged legal provisions cannot be supported.

The Court did not find any less restrictive alternative that would have a rational connection with the pursued legitimate aims and which would achieve these aims equally or more efficiently without additional costs.

Finally, the Court held that the scientific certainty of the result of the polygraph test has, in general, a low weight. Even Article 22 (1) j) of the Law no. 269 of 12 December 2008 on the polygraph test provides that its results „are presumptive and indicative and cannot constitute evidence in any proceedings". However, despite this reduced weight in the certainty of the outcome of the polygraph test, the interference in the right to participate in the administration of public affairs and the right to work has a large share. Practically, if they do not pass the polygraph test, candidates for the position of President or Vice President of the National Integrity Authority cannot be nominated as winners of the contest.

From this perspective, the Court considered that making it binding to pass the polygraph test amounts to a disproportionate measure.

Conclusions of the Court:
In view of the above, the Court partially admitted the exception of unconstitutionality raised by the Mr. Teodor Cârnaț, part of a pending trial before Chişinău Court, Buiucani district.

The Court declared unconstitutional the text „and who passes the polygraph test" of Article 11 (12) of the Law no. 132 of 17 June 2016 on the National Integrity Authority.

The Court has recognized as constitutional:

- Article 4 a/2) of the Law no. 269 of 12 December 2008 on the polygraph test;

- Article 11 (10) and (11) of the Law no. 132 of 17 June 2016 on the National Integrity Authority.

The Court declared inadmissible the exception of unconstitutionality in the part related to the review of the constitutionality of Article 4 a) and a/1) of the Law no. 269 of 12 December 2008 on the polygraph test.

This judgment of the Constitutional Court of Moldova is final, cannot be appealed, shall enter into force on the date of its deliverance, and shall be published in the Official Gazette of the Republic of Moldova.

This is an English language courtesy translation of the original press-release in Romanian language.