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Press release. MTIC's refusal to submit to the President the applications for acquiring citizenship is unconstitutional
MTIC's refusal to submit to the President the applications for acquiring citizenship is unconstitutional
On October 30, 2012 the Constitutional Court passed the judgment on examination of the exception of unconstitutionality of Article 28 letter a) of the Law on Citizenship of the Republic of Moldova (Complaint no. 16g/2012). The judgment was sent for publication in the Official Gazette (Monitorul Oficial).
Circumstances of the case
The case originated in the complaint lodged with the Constitutional Court on June 28, 2012 by the Supreme Court of Justice on exception of unconstitutionality of Article 28 letter a) of the Law on Citizenship of the Republic of Moldova raised in the file no. 3-4413/11 which is pending in the Court of Appeal.
The case pending in the Court of Appeal concerns the refusal of the Ministry of Information and Communications Technology (hereinafter - MTIC) to submit to the President of the Republic of Moldova the application for acquiring citizenship of Mr. ASLI Mohammed Hadi Mihiddin.
Drawing on the case materials, it results that although the application for acquiring citizenship was addressed to the President of the country, the applicant received a response from the S.E. CRIS "Registru" and MTIC, without that being sent to the presidential institution.
On October 31, 2011, the applicant sued MITC and S.E. CRIS "Register", asking the Court of Appeal Chişinău to recognize their illegal acts and to compel them to forward his application for acquiring citizenship to the Commission on Citizenship and Political Asylum issues by the President of the Republic of Moldova for examination on its substance, so as to receive the answer to his request from the President of the Republic of Moldova.
According to the Supreme Court of Justice, Article 28 letter a) of the Law on Citizenship, which stipulates the competences of the Ministry of Information and Communications Technology with regard to the procedures of acquiring citizenship, shall be applied for settlement of the main lawsuit.
In this context, the author alleged, in particular, that legal rules to be applied for the settlement of the lawsuit contradict the provisions of Article 88 letter c) of the Constitution, according to which the President of the Republic of Moldova is the one who solves citizenship issues of the Republic Moldova and grants political asylum.
The complaint was judged by the Constitutional Court in the following composition:
Mr. Alexandru TĂNASE, President,
Mr. Victor PUŞCAŞ, Judge-Rapporteur,
Mr. Dumitru PULBERE,
Mrs. Elena SAFALERU,
Mrs. Valeria ŞTERBEŢ, judges
Conclusions of the Court
Having heard the parties' arguments, the Court held that the challenged rule according to which in case of meeting all the conditions laid down by the legislation in force, MTIC shall issue a reasoned opinion and along with the opinions of the Ministry of Interior, Information and Security Service and the applicant's request, sends the applicant's request for citizenship to the President of the Republic of Moldova for consideration, empowers MTIC with decision-making competencies related to the request for acquiring citizenship.
The Court held that out of the contents of Article 88 of the Constitution results the duty of the President on settlement of citizenship issues presumes consideration of all matters related to citizenship, from application through to issuing of the final solution which may be both positive either negative.
In this context, the Court concluded that under constitutional norms, the President of the Republic of Moldova is the sole authority that may issue final solutions for each stage of procedure with regard to acquiring of citizenship.
Any other authority, as is the case of MTIC, can only be empowered by law than with purely technical tasks and not of decision-making character, as is it the right to retain the application for granting citizenship without submitting it for consideration to the presidential institution.
The Cort noted that divergences arisen in the contentious procedure for granting of citizenship is due to certain gaps and inaccuracies in the concerned normative acts, adopted by the Parliament and the Government, the reason why it has formulated an address.
For these reasons, the Court concluded that the contested norm infringes the provisions of Articles 88 letters c) and 23 of the Constitution.
The Court also ascertained that although the Court of Appeal asked the Supreme Court of Justice to appeal the Constitutional Court on several provisions of the Law on Citizenship of the Republic of Moldova, the Plenum of the Supreme Court of Justice approved the complaint merely with regard to the provision of Article 28 letter a). The Cort held that in this way there had occurred a restraint of the object of exception of unconstitutionality on the part of the Supreme Court of Justice, the reason why it signalled that aspect in the address attached to Court's judgment, as well.
Judgment of the Court
Based on the above arguments, the Constitutional Court accepted the exception of unconstitutionality raised by the Supreme Court of Justice and declared unconstitutional the phrase "In case of meeting all the conditions laid down by the legislation in force, the ministry and its bodies shall issue a reasoned opinion" contained in Article 28 letter a) of the Law on Citizenship. The judgment of the Constitutional Court is final, cannot be subjected to any remedies, shall enter into force upon adoption and be published in the Official Gazette (Monitorul Oficial) of the Republic of Moldova.
The full text of the judgment is available on the website of the Constitutional Court http://www.constcourt.md/
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