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24.01
2017

The Court Delivered a Positive Opinion to the Amendment of the Constitution on Extending the Freedom of Association

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The Court Delivered a Positive Opinion to the Amendment of the Constitution on Extending the Freedom of Association

The Constitutional Court of Moldova (CCM) delivered today, 24 January, an Opinion on the initiative to amend Article 42 of the Constitution.

The application was lodged by the Government, on 19 January 2017, thereby proposing an amendment to Article 42 of the Constitution, in the following wording:

„Article 42. Right of Association:

(1) Anyone shall enjoy the right to freely associate with other people, and to establish trade unions or employers associations, as well as to join them.

(2) Enjoying the right of association may only be limited in cases expressly provided by the Constitution, if this limitation constitutes a necessary measure in a democratic society, aiming at ensuring national security, public order, preventing crimes, safeguarding health, morals or rights and freedoms of other people.”

Examining the application, the Court held that the freedom of association is a fundamental right and making use of it is the expression of a conscient and free will of this right.

Although, now Article 42 of the Constitution only provides for the freedom to join trade unions, in its caselaw the Court, correlating Article 4 of the Constitution – which provides for the human rights and freedoms to be interpreted and applied in line with the treaties to which Moldova is party – examined the right of association in its full meaning, referring for this purpose to Article 11 of the European Convention on Human Rights and to the caselaw of the European Court of Human Rights.

The Court also mentioned that like other “conditional” rights, the right of association is not an absolute one and may be restricted, but the restrictions shall be applied strictly.

At the same time, the Court stressed that Article 54 of the Constitution covers framework provisions, regulating cases of restricting certain fundamental rights and freedoms, as well as the limits that may be incumbent upon them.

Therefore, in order to ensure the unity of constitutional practice and to preclude duplications, the proposed amendment to Article 42 of the Constitution shall be passed by the Parliament in the wording of para. 1, without para. 2, as its content is mainly covered by Article 54 of the Constitution.

Stemming from the abovementioned, the Court held that the draft law observes the limits imposed by Article 142.2 of the Constitution, i.e. it does not lead to a suppression of fundamental rights and freedoms of citizens or of safeguards thereof.

According to the Opinion of the Court, the draft law amending the Constitution may be passed following at least 6 months following the submission in Parliament of the initiative to amend the Constitution.

The Opinion of the Court is final and not subject to any appeal, it becomes effective on the day of its adoption and is published in the Official Journal of Moldova.

The application was examined by the Court in the following composition: Mr Alexandru TĂNASE, President and Mr Aurel BĂIEŞU, Mr Igor DOLEA, Mr Tudor PANȚÎRU, Mr Victor POPA, Mr Veaceslav ZAPOROJAN, judges.

This press-release is also available in its original version – in Romanian language.

 
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