On 12 December 2017 the Constitutional Court delivered the Judgment on the control of constitutionality of certain provisions of Article 112 para.(2) of the Election Code (complaint no.85a/2017)

Circumstances of the case

The case originated in the complaint submitted to the Constitutional Court by Mr. Vlad Bătrîncea, Member of Parliament, on the control of constitutionality of certain provisions of Article 112 para.(2) of the Election Code in the part referring to the incompatibility of the president of the Republic of Moldova with the quality of member of a political party.

Article 112 para.(2) of the Election Code provides that: „Prior to the validation of the mandate, the candidate elected to the position of President of the Republic of Moldova shall submit to the Constitutional Court a confirmation of the fact that he/she is not a member of any political party and does not carry out any other public of private function".

The author of the complaint challenged, in particular, that the incompatibility instituted by the law is contrary to the constitutional right to association into political parties.

The complaint was examined by the Constitutional Court in the following composition:

Mr Tudor PANȚÎRU, Chairman,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mrs Victoria IFTODI,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN, justices

Conclusions of the Court

Having examined the materials of the case file and having heard the arguments of the parties, the Court held that, according to Article 41 para.(1) of the Constitution, citizens can freely associate in parties and other social-political organizations.

Concurrently, the Court pointed out that the freedom of association is not an absolute right, and is subject to restriction under the conditions provided by the law.

The Court thus noted that the limitations imposed on the right to associate in political parties are expressly governed by the constitutional provisions and refer to (1) the purposes or activity of political parties and (2) the quality of persons capable to acquire the status of party member.

The Court held that, according to Article 41 para. (7) of the Constitution: "Public offices the holders of which may not join political parties are established by organic law".

Similarly, the European Convention on Human Rights allows the restriction of the freedom of association in respect of three categories of persons:

(1) members of the armed forces,

(2) police forces, and

(3) state administration.

In this respect, the European Court has recognized the legitimacy of restricting political activity of certain public authorities, taking into account the need to ensure their political neutrality and to ensure the proper fulfilment of their obligations in an impartial manner, this implying the equal and fair treatment of all citizens.

With reference to the present case, the Court found that, according to the challenged provision, "the mandate of the President of the Republic is incompatible with membership in any political party" (Article 112 para. (2) of the Election Code).

The Court held that in its Opinion no. 1 of 3 April 2008, invoked by the author of the complaint, it delivered its opinion in respect of an initiative to supplement para. (1) of Article 81 of the Constitution with new provisions aimed at establishing the incompatibility of the position of President of the Republic of Moldova with the status of member of a party. Hence, the aforementioned Opinion was delivered in respect of the initiative to supplement the Constitution with an interdiction that has already been admissible by virtue of Article 41 para. (7), thus resulting an overregulation.

In that context, the Court held that Article 41 para. (7) of the Constitution reserves the establishment of interdictions for certain categories of public offices regarding the membership in parties to the field of organic law, therefore regulation of such incompatibilities by other constitutional provisions is rather superfluous.

Moreover, following the Opinion delivered in 2008, the Court has reconsidered its own case-law when issuing the Judgment no. 32 of 29 January 2016, Judgment no. 2 of 24 January 2017, Judgment no. 24 of 27 July 2017.

The Court noted that in the abovementioned judgments it stated that following the taking of the oath, the President of the Republic of Moldova undertakes a legal commitment before the entire nation of the Republic of Moldova. Thus, the President of the Republic must prove his/her impartiality and political neutrality.

Concurrently, in its Judgment no. 24 of 27 July 2017 the Court emphasized that the head of state plays the role of a neutral arbitrator, or a neutral power, being detached from political parties. The president is an important element of the political system; however, he is not a partisan of politics.

The court did not accept the argument of the author of the complaint that the president of the country should be allowed to hold the membership of a party, similarly to members of Parliament and Government.

In this regard, the Court noted that these categories of elected officers are in different legal situations, and the criterion of "political neutrality" cannot be applied to the members of Parliament and Government in the same manner as it is applied to the President of the country, given that the members of Parliament and the members of the Government by definition cannot be politically neutral (see, mutatis mutandis, the Grand Chamber Judgment of the ECHR in case Ždanoka v. Latvia of 16 March 2006).

The Court therefore held that the President of the Republic of Moldova is obliged to act in the interests of the entire society, and not for the benefit of only a part thereof, of a political group or a party. For these reasons, the President of the Republic of Moldova cannot be a member of any political party and cannot promote in any way the interests of a political party.

Thus, the Court held that the prohibition imposed on the President of the Republic of Moldova to hold the membership of a political party falls within the permissible limits of restriction of the right to associate in political parties and therefore in compatible with Article 41 paras. (1) and (7) of the Constitution.

Judgment of the Court

Stemming from the above stated arguments, the Constitutional Court:

- dismissed the complaint submitted by the Member of Parliament of the Republic of Moldova, Vlad Bătrîncea, and recognized as constitutional the text "is not a member of any political party and" in paragraph 2 of article 112 of the Election Code of the Republic of Moldova no. 1381-XIII of 21 November 1997.

The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of delivery, 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.