Results:

None

Principiul de ghidare al curţii:

1. For the purposes of Article 11 of the Constitution in conjunction with Articles 1 (1), 3 and 8 of the Constitution:

- The military occupation of a part of the territory of the Republic of Moldova at the time of the declaration of neutrality, as well as the lack of international recognition and guarantees of this status, does not affect the validity of the constitutional provision regarding neutrality;

- in case of threats to fundamental constitutional values, such as national independence, territorial integrity or state security, the Moldovan authorities are obliged to take all necessary measures, including military ones, which would allow them to defend themselves effectively against these threats;

- the deployment on the territory of the Republic of Moldova of any troops or military bases, led and controlled by foreign states, is unconstitutional;

- the participation of the Republic of Moldova in collective security systems, such as the United Nations security system, peacekeeping operations, humanitarian operations, etc., which would impose collective sanctions against aggressors and offenders under international law, does not contradict the status of neutrality .

2. This Decision shall be final, shall not be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.

JUDGEMENT

ON INTERPRETATION

Article 11 of the Constitution

(permanent neutrality)

(Notification no. 37b / 2014)

https://www.constcourt.md/ccdocview.php?tip=hotariri&docid=613&l=en

 

Chisinau

May 2, 2017

 

On behalf of the Republic of Moldova,

The Constitutional Court, ruling on:

Mr Alexandru TĂNASE, President,

Mr. Aurel BĂIEŞU,

Mr Igor DOLEA,

Mr. Tudor PANŢÎRU,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN, Judges,

with the participation of Mrs. Ludmila Chihai, Clerk,

 

Having regard to the notification lodged on 26 May 2014 and

registered on the same date,

Having considered that reference in closed session,

Having regard to the documents and works in the file,

Delivers the following judgment:

 

PROCEDURE

 

1. At the origin of the case is the notification submitted to the Constitutional Court on May 26, 2014 pursuant to art. 135 para. (1) lit. b) of the Constitution, art. 4 para. (1) lit. b), art.25 lit. g) of the Law on the Constitutional Court and art. 4 para. (1) lit. b), art. 38 para. (l) lit. g) of the Code of Constitutional Jurisdiction of Deputies Mihai Ghimpu, Valeriu Munteanu, Gheorghe Brega and Corina Fusu on the interpretation of Article 11 of the Constitution, according to which:

 

"(1) The Republic of Moldova proclaims its permanent neutrality.

 

(2) The Republic of Moldova does not allow the deployment of military troops of other states on its territory."

2. The complainant requested the Constitutional Court, in interpreting Article 11 of the Constitution, to explain:

 

"1. The provisions of art. 11 of the Constitution, considering the fact that, at the time of adoption and entry into force of the Constitution, on the territory of the Republic of Moldova were deployed military troops of another state, these provisions being thus ab initio struck by nullity?

2. Considering the reasons for the existence of the state of the Republic of Moldova, the derogation from the principle of permanent neutrality, enshrined in art. 11 of the Constitution, if the perpetuation of neutrality could lead to the dismemberment or even the disappearance of the state?

3. The deployment on the territory of the Republic of Moldova of the military troops of some groups of states or under international mandate contradicts the provisions of art. 11 of the Constitution?"

 

3. By the decision of the Constitutional Court of September 10, 2014, the notification was declared admissible, without prejudice to the merits of the case.

 

4. In the process of examining the referral, the Constitutional Court requested the opinions of the Parliament, the President and the Government, as well as information from the Ministry of Foreign Affairs and European Integration.

 

CONTEXT

 

5. The Court considers the following facts to be relevant in the present case, as found by the European Court of Human Rights in its case-law on the basis of documentary evidence, the parties' observations and the statements of witnesses heard in Chisinau and Tiraspol [see Ilascu and others v. Moldova and the Russian Federation, judgment of the Grand Chamber of the European Court of Human Rights (hereinafter "ECtHR") of 8 July 2004; Ivanţoc and others v. Moldova and the Russian Federation, judgment of 15 November 2011, Catan and others v. Moldova and the Russian Federation, judgment of the Grand Chamber of the ECtHR of 19 October 2012], which can be summarized as follows.

 

A. The disintegration of the USSR and the conflict over the separation of Transnistria

 

1. The disintegration of the USSR, the separation of Transnistria and the independence of the Republic of Moldova

 

6. The Moldovan Soviet Socialist Republic was created by the decision of the Supreme Soviet of the USSR of August 2, 1940, on the territory of part of Bessarabia, which was incorporated into the USSR on June 28, 1940, as a result of the signing of the Pact by the USSR and Nazi Germany of Soviet-German non-aggression (the Molotov-Ribbentrop Pact), and from a piece of land on the left bank of the Dniester in Ukraine (USSR), called Transnistria.

 

Russian became the official language of the new Soviet republic. Immediately after the formation of the MSSR, the Soviet authorities imposed the change of the Latin alphabet to the Cyrillic alphabet.

 

7. In August and September 1989, the Supreme Soviet of Moldova adopted two laws introducing the Latin alphabet for writing in Romanian (Moldovan), establishing this language as the first official language of the state, instead of Russian.

 

8. On April 27, 1990, the Supreme Soviet adopted a new tricolor flag (red, yellow, blue) with the Moldovan coat of arms and the national anthem.

 

In June 1990, driven by the movements for autonomy and independence within the Soviet Union, the Moldovan Soviet Socialist Republic changed its name to the Soviet Socialist Republic of Moldova.

 

9. On 23 May 1991 the Soviet Socialist Republic of Moldova changed its name to the Republic of Moldova.

 

10. On 2 September 1990 the so-called "Dniester Republic of Moldova" ("RMN") was proclaimed. On 25 August 1991, the "Supreme Council of the TMR" adopted the Declaration of Independence of the "TMR".

11. To date, "MRI" is not recognized by the international community.

 

12. On 27 August 1991 the Parliament of the Republic of Moldova adopted the Declaration of Independence of the Republic of Moldova, which also included Transnistria.

 

At that time, the Republic of Moldova did not have its own army, the Armed Forces of the Republic of Moldova being created by the Decree of the President of the Republic of Moldova no. 193 of September 3, 1991.

 

The Parliament of the Republic of Moldova requested the USSR government to "start negotiations with the Government of the Republic of Moldova to end the illegal occupation of the territory of the Republic of Moldova and to withdraw Soviet military troops from the territory of the Republic of Moldova."

 

13. After the Declaration of Independence of the Republic of Moldova, the Fourteenth Army of the Odessa Military District of the Ministry of Defense of the USSR ("Fourteenth Army"), whose headquarters were in Chisinau since 1956, remained on the territory of the Republic of Moldova.

 

Since 1990, however, significant transfers of equipment have been reported: among other things, large quantities of equipment have begun to be withdrawn from the territory of the Republic of Moldova.

 

14. During 1991, the Fourteenth Army consisted of several thousand soldiers, infantry units, artillery (equipped mainly with an anti-aircraft missile system), armor and aviation (including fighter jets and helicopters) and had several ammunition depots, one of the largest ammunition depots in Europe being located in Colbasna, Transnistria.

 

15. In addition to the armaments of the Fourteenth Army, the DOSAAF, the "Voluntary Association for the Aid of the Army, Aviation and Fleet" ( , created in 1951, in order to prepare the civilian population in case of war, had ammunition depots.

 

16. After the proclamation of the independence of the Republic of Moldova, the equipment of DOSAAF located on the part of the territory controlled by the Government of Moldova passed into its possession, and the rest of the goods, located in Transnistria, in the possession of Transnistrian separatists.

 

17. On 6 September 1991, the so-called "Supreme Soviet of the Transnistrian Moldovan Republic" adopted an ordinance placing under the jurisdiction of the "Transnistrian Republic" all public institutions, enterprises, organizations, militia units, the prosecutor's office, the judiciary, the KGB and other bodies located in Transnistria, except for the military units of the Soviet armed forces.

 

Officers, non-commissioned officers and other soldiers of military units stationed in Transnistria were called "to show civic solidarity and to mobilize to defend the so-called" Dniester Republic "along with workers' representatives in case of invasion of Moldovan forces."

 

18. On 18 September 1991 the "President of the Supreme Soviet of the Transnistrian Moldavian Soviet Socialist Republic" decided to place the units of the Soviet armed forces stationed in Transnistria under the jurisdiction of that "Republic".

 

19. By decree no. 234 of November 14, 1991, the President of the Republic of Moldova, Mr. Snegur, declared as property of the Republic of Moldova ammunition, armaments, military means of transport, military bases and other goods belonging to the military units of the Soviet armed forces stationed on the territory of the Republic of Moldova.

 

20. On 8 December 1991 the Republic of Belarus, the Russian Federation and Ukraine signed the Minsk Agreement establishing the cessation of the existence of the USSR.

21. On 21 December 1991, eleven Member States of the USSR, including the Republic of Moldova and Ukraine, signed the Alma-Ata Declaration, which confirmed and extended the Minsk Agreement on the establishment of the CIS. The Alma-Ata Declaration also confirmed that, by virtue of the creation of the CIS, the USSR had ceased to exist and that the CIS was neither a state nor a supranational entity.

 

A CIS Council of Heads of Government was also set up, which decided to support the Russian Federation as the successor to the USSR in the United Nations, including the UN Security Council, as well as in other international organizations. .

 

22. On 30 January 1992, the Republic of Moldova became a member of the Conference on Security and Cooperation in Europe. On 2 March 1992, she was admitted to the United Nations. On the same day, the undeclared war in Transnistria of the Russian Federation against the Republic of Moldova began, with the outbreak of the armed conflict in Dubasari, through a diversion of separatists.

 

23. On 8 April 1994 the Parliament of the Republic of Moldova ratified, subject to certain reservations, the Treaty of Accession of the Republic of Moldova to the CIS, signed by the President of the Republic of Moldova at Alma-Ata on 21 December 1991.

 

2. Armed conflict (1991-1992)

24. Starting in 1989, resistance movements against the independence of the Republic of Moldova began to be organized in the south (Gagauzia) and east (Transnistria) of Moldova.

25. Armed confrontations of minor importance between the Transnistrian separatists and the Moldovan police took place in November 1990 in the east of the country, at Dubasari, on the left bank of the Dniester.

26. In the following months, the Transnistrian authorities mobilized paramilitary detachments, called "workers' detachments", on the basis of which, in 1991, a fully equipped professional "Republican Guard" was created.

27. On 1 December 1991, presidential elections were declared in the districts on the left bank of the Dniester (Transnistria), which were declared illegal by the Moldovan authorities. The citizen of the Russian Federation Igor Nikolaevich Smirnov (Игорь Николаевич Смирнов) was elected "President of the MRI".

28. By decree of 5 December 1991, Igor Smirnov decided to place 'military units attached in particular to the Odessa military district, stationed in the Dniester Republic of Moldova, under the command of the head of the National Defense and Security Department of the Dniester Republic of Moldova'.

The head of this department, Ghennady I. Yakovlev, commander of the Fourteenth Army, was ordered to take all necessary measures to stop the surrender and surrender of weapons, equipment and goods of the Soviet army in the possession of military units deployed in Transnistria.The stated purpose of this measure was to preserve, for the benefit of the separatist regime in Transnistria, the armaments, equipment and patrimony of the Soviet army located in Transnistria.

29. At the end of 1991 and the beginning of 1992, violent clashes took place between the Transnistrian separatist forces and the Moldovan law enforcement forces, which resulted in several hundred deaths.

30. In an appeal issued on 6 December 1991 to the international community and the UN Security Council, the President of the Republic of Moldova, Mircea Snegur, the President of the Parliament of the Republic of Moldova, Alexandru Moşanu, and the Prime Minister, Valeriu Muravschi, protested against the occupation on 3 December. 1991 of the Moldovan cities of Grigoriopol, Dubasari, Slobozia, Tiraspol and Râbnița, located on the left bank of the Dniester River, by the Fourteenth Army, commanded by Lieutenant-General Iakovlev, accusing the USSR authorities, especially the Ministry of Defense, of being at the origin of these actions.

The soldiers of the Fourteenth Army were accused of distributing military equipment to the separatists in Transnistria and of organizing military detachments, which terrorized the civilian population.

31. By a decree issued on 26 December 1991, Igor Smirnov, "President of the MRI", created the "Armed Forces of the MRI" from troops and other formations of the USSR stationed on the territory of the "MRI".

32. In January 1992, Lieutenant-General Iakovlev was released from the post of commander of the Fourteenth Army by the CIS Unified Armed Forces Command. By decision of 29 January 1992 of the Commander-in-Chief of the CIS Unified Armed Forces, Lieutenant-General Yakovlev was placed at the disposal of the Military Commissariat in the Primorsk region of Odessa (Ukraine).

33. In the years 1991-1992, as a result of confrontations with the Moldovan law enforcement forces, several military units belonging to the USSR, later the Russian Federation, sided with the Transnistrian separatists, while numerous military equipment of the Fourteenth Army they came into the possession of the separatists.

34. The Battalion of Engineers from Parcani of the Fourteenth Army, under the command of General Butkevich, sided with the separatists. Namely this battalion destroyed the bridges from Dubăsari, Gura Bâcului-Bâcioc and Coşniţa.

35. Armored combat vehicles, mine launchers, tanks and armored transport vehicles were transferred to the separatists in the units of the Fourteenth Army. Moreover, during the fighting, eight helicopters of the Fourteenth Army participated in the transport of ammunition and wounded by the separatists.

36. The military actions of the separatists were led by the Fourteenth Army, which coordinated all its actions with the Ministry of Defense of the Russian Federation.

37. Thousands of Russian Cossacks came from Russia to fight on the side of the separatists against Moldovan forces, being armed by officers of the Fourteenth Army.

38. The Fourteenth Army actively engaged, directly and indirectly, in the Transnistrian conflict against the armed forces of the Republic of Moldova. Transnistrian separatists were able to arm themselves from the arsenal of the Fourteenth Army and its complicity.

39. Given the assistance provided by the troops of the Fourteenth Army to the separatist forces and the massive transfer of weapons and ammunition from the arsenal of the Fourteenth Army of the separatists, it is certain that the Moldovan army was inferior, which prevented it from regaining control over Transnistria. .

40. On 5 March 1992, the Parliament of the Republic of Moldova protested against the silence of the Russian Federation authorities, which it described as complicity in the aid provided to the Transnistrian separatists by armed groups of Cossacks from Russia belonging to the Union of Cossacks, association recognized by the authorities of the Russian Federation.

The Parliament of the Republic of Moldova has asked the Supreme Soviet of the Russian Federation to intervene in order to immediately withdraw the Russian Cossacks from the territory of the Republic of Moldova.

41. On 23 March 1992 the Ministers of Foreign Affairs of the Republic of Moldova, the Russian Federation, Romania and Ukraine met in Helsinki, where they adopted a declaration setting out the principles for the peaceful settlement of the conflict. At subsequent meetings in Chisinau in April and May 1992, the four ministers decided to form a quadripartite commission and set up a group of military observers to monitor the possible ceasefire.

42. On 24 March 1992 the Parliament of the Republic of Moldova protested against the interference of the Russian Federation in the internal affairs of the Republic of Moldova, after the Presidium of the Supreme Soviet of the Russian Federation issued a statement on 20 March 1992 indicating solutions to the Republic of Moldova. the conflict in Transnistria, respecting the rights of the "Transnistrian people".

43. On 28 March 1992 the President of the Republic of Moldova, Mr Snegur, declared a state of emergency. He noted that some "adventurers" had created a "pseudo-state" on the left bank of the Dniester, "not without outside help," and that they, "armed to the teeth with military equipment from the best of the Soviet army" triggered an armed conflict, resorting to any means for the intervention in this conflict of the Fourteenth Army of the CIS Unified Armed Forces.

Under the state of emergency, the Moldovan Ministries of National Security and Interior, as well as other competent authorities, together with the units of the National Army, were instructed by the President to take all necessary measures to dismantle and disarm illegal armed formations and to find and defer justice of all perpetrators of crimes against state bodies and the population of the Republic.

The initiators of the "so-called Transnistrian Moldovan Republic" and their accomplices were ordered to disband the illegal armed formations and to surrender to the authorities of the Republic of Moldova.

44. By decree no. 320 of April 1, 1992, the President of the Russian Federation placed the military formations of the former USSR stationed on the territory of the Republic of Moldova, including those on the left bank of the Dniester, under the jurisdiction of the Russian Federation. hereinafter "GOR" or, as it was formerly called, "Fourteenth Army").

45. By decree no. 84 of April 1, 1992, "MRI President" Igor Smirnov dismissed Lieutenant General Yakovlev from his position as head of the "MRI Defense and Security Department".

46. ​​On 2 April 1992, General Netkatchev, commander of the GOR (Fourteenth Army), ordered the Moldovan forces surrounding the separatist-occupied town of Tighina (Bender) to withdraw immediately, otherwise the Russian army would retaliate.

47. On 4 April 1992, the President of Moldova, Mr Snegur, sent a telegram to the Heads of the CIS Member States, the CIS Unified Armed Forces Command and the Commander of the Fourteenth Army, informing them that the Fourteenth Army was the obligation of neutrality.

48. By order no. 26 of April 8, 1992 of the Commander-in-Chief of the Unified Armed Forces of the CIS, it was decided that only the troops and units of the former Fourteenth Army stationed on the territory of the former Moldovan Soviet Socialist Republic could be the basis for creating the armed forces of the Republic of Moldova.

49. Three military units belonging to the Fourteenth Army decided to join the new army of the Republic of Moldova: the military unit from Floresti (ammunition depot no. 5381), the artillery regiment no. 4 from Ungheni and the missile artillery regiment no. 803 from Ungheni.

50. The soldiers of the independent battalion no. 115 engineers and firefighters of the Fourteenth Army refused to join the armed forces of the Republic of Moldova and "placed themselves under the jurisdiction of the Transnistrian region", according to the terms used by the Government of the Russian Federation.

51. In a message to the CIS Unified Armed Forces Commander-in-Chief in April 1992, the President of the Republic of Moldova, Mr. Snegur, stated that the events in Transnistria were inspired and supported by the “imperial and pro-communist structures of the former USSR. and their successors in law" and that the Fourteenth Army did not respect its neutrality in the conflict.

In this regard, he stressed that the Transnistrian military formations were equipped with modern weapons belonging to the former Soviet army and that many Russian citizens took part in conflict with separatists as mercenaries.

52. In a letter to the heads of the member states of the UN Security Council, the OSCE and the CIS in April 1992, Mr Snegur accused the command of the Fourteenth Army of arming the formations in December 1991. denounced the attitude of the 6th Congress of Russian Deputies, which called for the maintenance of Russian Army units in the Republic of Moldova as “peacekeeping forces.”

In conclusion, Mr. Snegur stressed that a The Transnistrian conflict was the withdrawal of the Russian Federation army from the territory of the Republic of Moldova as soon as possible and called on the international community to support the young state of the Republic of Moldova in its fight for freedom and democracy.

53. On 20 May 1992 the President of the Parliament of the Republic of Moldova protested against the occupation of the new territory of Transnistria on 19 May 1992 by the forces of the Fourteenth Army, supported by Cossack and Russian mercenaries and paramilitary forces from Transnistria.

According to the President of the Parliament, this military aggression on the part of the Russian Federation violated the sovereignty of the Republic of Moldova and all the norms of international law, making illusory ongoing negotiations in order to find a solution to the conflict in Transnistria.

Accusing the Russian Federation of arming separatists in Transnistria, the Speaker of the Parliament of the Republic of Moldova called on the Supreme Soviet of the Russian Federation to end this aggression and to withdraw Russian military forces from the territory of the Republic of Moldova.

54. On 26 May 1992 the Parliament of the Republic of Moldova addressed a letter to the Supreme Soviet of Ukraine expressing its gratitude to the Parliament of the Republic of Moldova for the Ukrainian authorities, which had not been involved in the occupation of 19 May 1992.

55. On 22 June 1992, the Parliament of the Republic of Moldova appealed to the international community, opposing "the new aggression carried out in Transnistria on 21 June 1992 by the forces of the Fourteenth Army", which, through their actions of destruction and robbery, forced a large number of civilians to leave their homes, and the international community was urged to send experts to Transnistria to bring an end to the "genocide" against the local population.

56. On 23 June 1992, the President of the Republic of Moldova, Mr. Snegur, requested the UN Secretary-General, Mr. Boutros Boutros-Ghali, to inform the members of the UN Security Council of "the attack on the city [Tighina] by the Fourteenth Army" , which in his view was a "direct and brutal interference in the internal affairs of the Republic of [Moldova]".

He also expressed concern about the statements of the President of the Russian Federation, Mr. Yeltsin, and his Vice President, Mr. Rutskoi, "which clearly shows that the Russian Federation was not willing to give up the" rights "it did not have, neither de jure nor de facto, over a territory that no longer belonged to him as a result of the dismemberment of the Soviet empire. "

Mr Snegur finally concluded that "the recent repeated threats against the legitimate leaders of the Republic of Moldova, an independent and sovereign state, by the authorities of the Russian Federation, were a cause for concern for Moldovan public opinion, as they seemed to foreshadow other means of intervention. in internal affairs, means and methods specific to the Soviet communist imperialist system ...".

57. In the first half of July 1992, intense discussions took place within the CIS on the possible deployment of CIS peacekeeping forces in the Republic of Moldova. An agreement signed in Minsk in March 1992 on the CIS's military observer groups and collective peacekeeping forces was mentioned.

58. At the CIS meeting held in Moscow on 6 July 1992, it was decided, as a preliminary point, to deploy CIS peacekeeping forces to the Republic of Moldova, consisting of Russian, Ukrainian, Belarusian, Romanian and Bulgarian troops. , provided that the Republic of Moldova so requests.

Despite such a request, submitted the next day by the Parliament of the Republic of Moldova, the respective peacekeeping forces were never deployed, with some countries reviewing their consent to participate in their formation.

59. On 10 July 1992, at the CSCE Helsinki Summit, the President of the Republic of Moldova, Mr Snegur, called for consideration to be given to using the CSCE's peacekeeping mechanism for the situation in the Republic of Moldova.

This mechanism was not used due to the effective and lasting cessation of the fire.

60. On 21 July 1992 the Republic of Moldova and the Russian Federation signed in Moscow the Agreement on the Principles for the Peaceful Settlement of Armed Conflict in the Dniester Area of ​​the Republic of Moldova. According to Article 1 of this Agreement:

"The Republic of Moldova and the Russian Federation, aspiring to a total and expeditious ceasefire and to settle the armed conflict in the Transnistrian districts by peaceful means, have agreed as follows:

From the signing of the Agreement, the parties to the conflict undertake to take all necessary measures. for a total ceasefire, as well as any armed action, against each other.

With the ceasefire, the conflicting parties withdraw their armed forces and other formations, combat equipment and weapons, and will complete this process within seven days. The purpose of such disengagement is to create a security zone between the conflicting parties.

The specific coordinates of the area will be established by a special protocol of the parties engaged in the implementation of this Agreement. "

61. This Agreement establishes the principle of a security zone created by the withdrawal of the armies of the "parties to the conflict".

62. Pursuant to Article 2 of this Agreement, a Unified Control Commission ("JCC") was established, composed of representatives of the Republic of Moldova, the Russian Federation and Transnistria, based in Tighina (Bender).

63. For the purpose of monitoring and ensuring the maintenance of peace and security, the Agreement also provides for the establishment of peacekeeping forces, consisting of five Russian battalions, three Moldovan battalions and two Transnistrian battalions, subordinated to a joint military command, subordinated to the CUC.

64. According to Article 3 of the agreement, the city of Tighina was declared a region subject to the security regime and administered by "local self-government authorities, possibly in agreement with the control commission".

The JCC was assigned the task of maintaining public order in Tighina, together with the police.

65. Article 4 provides that the Fourteenth Army of the Russian Federation, stationed on the territory of the Republic of Moldova, shall strictly observe its neutrality, while Article 5 prohibits the application of any sanction or blockade and sets as its objective the removal of all obstacles to the free movement of goods. and people.

66. Finally, the measures provided for in this agreement were defined as "a very important part of the settlement of the conflict by political means" (Article 7).

 

3. The events that followed the armed conflict

67. On 29 July 1994, the Republic of Moldova adopted a new Constitution. It provides, inter alia, for state neutrality and prohibits the stationing of troops belonging to other states on its territory.

68. On October 21, 1994, the Republic of Moldova and the Russian Federation signed an agreement on the legal status, manner and deadlines for the withdrawal of military formations of the Russian Federation temporarily on the territory of the Republic of Moldova.

69. Article 2 of this Agreement provides for the synchronization of the withdrawal of the army of the Russian Federation from the territory of the Republic of Moldova with the political settlement of the Transnistrian conflict and the establishment of a special status for the "Transnistrian Region of the Republic of Moldova".

70. Not having been ratified by the authorities of the Russian Federation, that agreement never entered into force.

71. The principle of neutrality of the Fourteenth Army of the Russian Federation, enshrined in Article 4 of the Agreement of 21 July 1992 (see paragraph 65 above), has been constantly violated (by e.g.):

the transfer by the Army of the Fourteenth of the unconstitutional authorities from Tiraspol of military equipment and ammunition;

the training of "MRI" troops by the Russian army and the transfer of Fourteenth Army military units to the "MRI" camp - for example, the engineering battalion in Parcani became an "MRI" artillery unit,

the transfer of the Tighina / Bender fortress to the the second infantry brigade of the "MRI"

or the transfer to the "MRI" of the warehouse in Slobozia, occupied by the communications battalion of the Fourteenth Army.

72. "MRI" military units were brought to the security zone with the support of Russian CUC troops, and new paramilitary units were set up in the town of Tighina / Bender, declared a security zone, which was under the responsibility of the peacekeeping forces. Russian companies, companies in Tighina / Bender and Tiraspol manufactured weapons and ammunition.

73. . On 8 May 1997, Mr Petru Lucinschi, President of the Republic of Moldova, and Mr Igor Smirnov, "President of the Republic of Moldova", signed a memorandum in Moscow, which laid the groundwork for the normalization of relations between the Republic of Moldova and Transnistria, by which they undertook to settle any conflict that might arise during the negotiations, with the assistance, if necessary, of the Russian Federation and Ukraine as States - guarantor of compliance with concluded agreements, as well as the OSCE and the CIS.

The memorandum was countersigned by the President of the Russian Federation, Mr. Yeltsin, and the President of Ukraine, Mr. Kuchma. It was also signed by Mr. H. Petersen, President of the OSCE, present at the signing of the memorandum by the parties and the guarantor states.

74. According to that memorandum, the status of Transnistria must be based on the following principles: decision-making by mutual agreement of both parties, division and delegation of mutually assured competences and guarantees.

Transnistria must participate in the implementation of the foreign policy of the Republic of Moldova in areas that affect its interests, these areas to be established by mutual agreement.

Transnistria has the right to unilaterally establish and maintain international relations in the economic, scientific and technical, cultural and other fields, to be determined by common agreement.

75. The Memorandum welcomes the readiness expressed by the Russian Federation and Ukraine to act as guarantor states of compliance with the provisions contained in the documents defining the status of Transnistria and in the Memorandum. The Parties also confirm the need to continue the activities undertaken by the Joint Peacekeeping Forces in the Security Zone under the Agreement of 21 July 1992.

The Memorandum also provides for the right of the Parties, in the event of a breach of these Agreements, to request consultations with the guarantor states in order to take measures to normalize the situation.

Finally, the two sides undertake to establish relations within a common state within the borders of the Moldovan SSR existing on 1 January 1990.

76. On 20 March 1998, representatives of the Republic of Moldova, Transnistria, the Russian Federation and Ukraine signed several documents in Odessa, Ukraine, on ensuring the settlement of the Transnistrian conflict.

77. It is clear from official CUC documents that the Transnistrian separatist forces acted in violation of the ceasefire, so that in the area under the responsibility of the Russian peacekeeping forces the Transnistrian side did not comply with its commitments under the agreement of 21 July 1992.

78. On 16 April 2001 the President of the Republic of Moldova, Mr Voronin, and the President of the Russian Federation, Mr Putin, signed a joint declaration, paragraph 5, which reads as follows:

"The presidents are advocating for a speedy and equitable settlement of the Transnistrian conflict by exclusively peaceful means, based on respect for the principle of sovereignty and territorial integrity of the Republic of Moldova, as well as on international human rights standards."

79. In a document dated 4 September 2001 examining the implementation of the Moldovan-Russian agreement of 20 March 1998 on the principles of peaceful settlement of the armed conflict in the Transnistrian region of the Republic of Moldova, the Moldovan delegation to the JCC highlights the Transnistrian side's failure to fully comply with its obligations as a result of the creation of new military units, the introduction of weapons into the security zone and the installation of customs posts.

The Moldovan delegation expressed its concern that the Unified Military Command had not taken any appropriate measures to put an end to this situation, but had merely ascertained the facts.

The Moldovan delegation proposed that concrete measures to ensure compliance with the obligations of both parties be discussed at the level of Ministries of Foreign Affairs of the Republic of Moldova and the Russian Federation. Finally, she proposed placing the position of military observer in the security zone under the auspices of the OSCE.

80. Meetings with the Transnistrian side to discuss various aspects of a possible settlement of the situation in Transnistria continues.

 

B. The presence of the army of the Russian Federation and its personnel in Transnistria following the agreement of 21 July 1992

1. ROG troops and equipment in Transnistria

81. As provided for in Article 4 of the Ceasefire Agreement of 21 July 1992, the Republic of Moldova and the Russian Federation have entered into negotiations on the withdrawal of the GOR from the territory of the Republic of Moldova and its status until withdrawal.

82. In 1994, the Russian side proposed to synchronize the withdrawal of the GOR from the territory of the Republic of Moldova with the settlement of the Transnistrian conflict; this proposal, considered by the Moldovan side as counterproductive, was accepted at the insistence of the Russian side and only after the Russian side declared itself in favor of the rapid release of the members of the Ilascu group.

83. The Moldovan authorities categorically opposed any synchronization between the political settlement of the Transnistrian conflict and the withdrawal of the Russian armed forces from the territory of the Republic of Moldova. They call for the full and unconditional withdrawal of the Russian armed forces in accordance with OSCE decisions, all the more so as the OSCE Member States have set up a special fund to finance this withdrawal.

84. Article 2 of the Agreement of 21 October 1994 ("the first agreement") provided for the withdrawal by the Russian side of its military formations within three years of the entry into force of the agreement, which would be withdrawn at the same time as the political regulation. of the Transnistrian conflict and the establishment of a special status of the "Transnistrian region of the Republic of Moldova".

Regarding the stages and dates of the final withdrawal of these formations, the same article provided that they were to be established in a separate protocol, concluded between the Ministries of Defense of both parties.

85. According to Article 5 of that agreement, the trading of any type of military equipment, armament and ammunition belonging to the military forces of the Russian Federation stationed on the territory of the Republic of Moldova could take place only through a special agreement concluded between the governments of those states.

86. According to Article 7 of that agreement, the Tiraspol military airport was to be used jointly by GOR aviation and by "civil aviation of the Transnistrian region of the Republic of Moldova". A second agreement was also concluded on 21 October 1994. ("Second agreement") between the ministries of the Republic of Moldova and the Russian Defense Federation established the use of Tiraspol airport.

Thus, he provided that the flights to Tiraspol airport were to be carried out in accordance with the provisions of the "Provisional Regulation on the joint deployment of aviation of the military formations of the Russian Federation and civil aviation of the Transnistrian region of the Republic of Moldova" and in coordination with the State Administration. of the Civil Aviation of the Republic of Moldova and the Ministry of Defense of the Russian Federation.

87. On 9 November 1994 the Government of the Republic of Moldova adopted a decision on the application of the Agreement on the withdrawal of the Russian army from the territory of the Republic of Moldova.

The Government of the Russian Federation has decided to submit this agreement for ratification by the State Duma.

On 17 November 1998, when the first agreement of 21 October 1994 had not yet been ratified, the Ministry of Foreign Affairs of the Russian Federation asked the Duma to exclude it from the agenda on the grounds that "a possible decision by the Ministry to return to this matter will be adopted according to the evolution of relations with the Republic of Moldova and the Transnistrian region and the political regulation in the region."

In January 1999, the agreement was excluded from the Duma's agenda. This agreement has not yet entered into force.

88. The second agreement was approved only by the Government of the Republic of Moldova on 9 November 1994.

89. No agreement of 21 October 1994 entered into force because they had not been ratified by the Russian Federation.

90. On 20 March 1998, in addition to other documents relating to the settlement of the situation in Transnistria, an agreement was signed in Odessa, Ukraine, on matters relating to the military property of the Fourteenth Army. The signatories of this agreement were Mr. Chernomirdin, on behalf of the Russian Federation, and Mr. Smirnov, "President of the TMR".

91. According to the timetable set out in the Annex to that Agreement, the removal and destruction of certain stored items, their removal by detonation or other mechanical means had to be carried out by 31 December 2001, provided, inter alia, that they obtain the authorization of the Moldovan authorities, "especially those in the Transnistrian region".

92. The deadline for the withdrawal (transfer and destruction) of surplus ammunition and other ROG military equipment was 31 December 2002.

The withdrawal of ROG equipment and personnel that were not part of the peacekeeping forces had to be completed by 31 December 2002, under the following conditions:

completion by this date of the process of withdrawal of ammunition and other equipment in Russia,

transfer or destruction of other equipment and

compliance by the Republic of Moldova with the obligations arising from Article 17 of the Agreement of 21 October 1994.

93. In their statement at the Istanbul Summit on 19 November 1999, the Heads of State and Government of the OSCE States stated that they expected a "rapid, appropriate and complete withdrawal of Russian troops from the Republic of Moldova" and welcomed the Russian Federation's commitment to complete the withdrawal of the armed forces from the territory of the Republic of Moldova by the end of 2002. Finally, they recalled that an international assessment mission was ready to immediately monitor the withdrawal and destruction of ammunition and Russian armament.

94. In its observations to the Parliamentary Assembly of the Council of Europe in 1999, the Government of the Republic of Moldova stated that, at that time, the official figure presented by the authorities of the Russian Federation regarding the quantity of ROG weapons and ammunition stored in Transnistria was 42000 tonnes, but this figure could not be verified, as both the Russian authorities and the Transnistrian separatists refused to allow access to an international assessment mission.

95. The Moldovan authorities have drawn attention to the fact that a possible withdrawal of GOR personnel without evacuating the GOR's huge arsenal would create the risk of Transnistrian separatists taking possession of these weapons.

96. Several echelons of ROG equipment were evacuated during 1999-2002.

97. On 15 June 2001, the Russian Federation and Transnistria signed a protocol on the joint implementation of works for the use of weapons, military equipment and ammunition.

98. Military equipment - ammunition and high-performance military equipment, belonging to the GOR and withdrawn until November 2002 from the territory of the Republic of Moldova under the agreement of October 21, 1994, represents only 15% of the total volume declared in 1994 as stationed on the territory of the Republic of Moldova.

99. According to the evidence administered by the European Court in the case of Ilascu and Others (judgment of the Grand Chamber of the European Court of 8 July 2004), there were at least 200000 tonnes of Russian weapons and ammunition in Transnistria in 2003, mainly at the Cobasna depot, 106 battle tanks, 42 armored combat vehicles, 109 armored personnel carriers, 54 armored reconnaissance vehicles, 123 cannons and mortars, 206 anti-tank weapons, 226 anti-aircraft weapons, 9 helicopters and 1648 other vehicles (Ilascu and others , specified, § 131).

In 2003, OSCE observers monitored and monitored the withdrawal of 11 Russian military equipment trains and 31 trains carrying more than 15,000 tons of ammunition from Transnistria. The following year, however, the OSCE pointed out that only one train, containing about 1,000 tonnes of ammunition, had left Transnistria.

100. Since 2004, there has been no controlled withdrawal of Russian weapons and equipment from Transnistria.

In the decision of Ilașcu and others, the European Court found that at the end of 2004 there were still about 21,000 tons of ammunition, over 40,000 small arms and light weapons, as well as about ten trains with different military equipment.

In November 2006, an OSCE delegation, which was granted access to ammunition depots, reported that more than 21,000 tonnes of ammunition were stored in the area.

In May 2005, the ROG commander reported that excess stocks of 40,000 small arms and light weapons had been destroyed, but no independent observers were allowed to go to the scene to verify these allegations.

101. According to some reports, about a thousand Russian soldiers are in Transnistria on a mission to monitor weapons depots, and about 1125 Russian soldiers belonging to the international peacekeeping forces are stationed in the security zone, which stretches on 225 km long and 12-20 km wide.

 

2. Relations between ROG and "MRT"

102. ROGsoldiers, prosecutors and military judges seconded to the GOR did not receive specific instructions regarding their relations with the Transnistrian authorities.

103. ROG soldiers can move freely on Transnistrian territory.

The ROGinforms the Transnistrian authorities in advance about the movement of troops or military equipment. According to the legal provisions in force in the Russian Federation, the ROG's investigative bodies are not competent to send cases for examination directly to the Moldovan authorities, which have jurisdiction over the Transnistrian territory. Any theft or other crime committed by a natural person from Transnistria against the ROG must be reported by the ROG authorities to the competent authorities of the Russian Federation, the latter being the only ones competent to notify the Moldovan authorities.

104. In practice, the criminal prosecution of this type of crime is carried out by the Transnistrian bodies.

105. The investigative bodies of the ROG have the sole power to carry out the investigation of offenses committed by or with the participation of a GOR member and only in respect of that member.

106. Military equipment and civilian installations belonging to the ROG were transferred to the "MRI".

 

C. Economic, political and other relations between the Russian Federation and Transnistria

107. Russia has provided and continues to provide economic and political assistance to the Transnistrian region.

108. At the end of the conflict, senior officers of the Fourteenth Army participated in events in the public life of Transnistria. In particular, soldiers of the Fourteenth Army participated in the Transnistrian elections, military parades of Transnistrian forces and other public events.

109. Permanent consular posts, with the function of polling stations, were opened by the authorities of the Russian Federation on the Transnistrian territory, in the absence of the agreement of the Moldovan authorities.

110. In a resolution no. 1334 IGD of November 17, 1995, the State Duma of the Russian Federation declared Transnistria "an area of ​​special strategic interest for the Russian Federation".

111. Political figures and representatives of the Russian Federation confirmed, on various occasions, the support given by the Russian Federation to Transnistria. Representatives of the Duma and other personalities from the Russian Federation visited Transnistria and participated in official events.

112. Representatives of the "MRI" regime also visited Moscow on official visits, in particular the State Duma.

113. On 19 May 1994, Lieutenant-General Yakovlev, a former commander of the Fourteenth Army and a former head of the MRI's defense and security department, became a citizen of the Russian Federation.

114. In 1997, Mr Mărăcuţa, "President of the Supreme Soviet of the TMR", was granted Russian citizenship.

115. In 1999, Mr Caraman, one of the leaders of the MRI, also acquired citizenship of the Russian Federation.

116. Mr Smirnov was granted Russian citizenship in 1997.

117. The arms industry is one of the pillars of the Transnistrian economy. This is directly supported by Russian companies involved in arms production in Transnistria.

118. Since 1993, Transnistrian arms companies have specialized in the production of high-performance weapons thanks to funds and various orders from Russian companies, including the Russian group for the production and sale of weapons "Rosvoorujenye".

Russian companies provide Transnistrian companies with the necessary technology and equipment for the production of modern weapons, as well as materials for military use.

On the other hand, Transnistrian companies produce parts for Russian arms manufacturers. For example, Elektromaş receives from the Russian Federation parts for pistols with shock absorbers, which it produces, and delivers parts for various weapons systems assembled in the Russian Federation. 119. Under the pretext of withdrawal, GOR provided Transnistrian companies with parts and equipment for military use. The metallurgical plant from Râbnița

119. Under the pretext of withdrawal, ROG provided Transnistrian companies with parts and equipment for military use. The metallurgical plant in Râbnița, which produces 82 mm mortars, regularly received trucks loaded with mortars and shells from the ROG warehouse in Colbasna (Cobasna), under the pretext of destroying non-transportable ammunition.

120. Moreover, there is an interdependence between Transnistrian interests, economic or otherwise, and the ROG, due to the massive employment by the ROG of the inhabitants of Transnistria.

121. Thus, about 70% of the command of the ROG military unit stationed at Colbasna (including the ammunition depot) consists of residents of Râbniţa and Colbasna, and 100% of the technical staff of the Colbasna depot (warehouse managers, technicians, mechanics ) is the inhabitants of the region.

122. In total, 50% of ROG officers and 80% of non-commissioned officers are residents of "RMN".

123. There is legal cooperation in the field of the transfer of detainees between the Russian Federation and Transnistria, without the participation of the Moldovan authorities. As a result, as part of this cooperation, Russian detainees in Transnistria were able to be transferred to prisons in the Russian Federation.

124. Meetings between officials from the Russian Federation and those from Transnistria continued, including by participating in the anniversaries of the "MRI" declaration of independence.

125. The leaders of the "MRI" received official distinctions from the various institutions of the Russian Federation and were greeted with honors by the state authorities of the Russian Federation.

126. The Russian Federation has direct relations with the "MRI" in the field of gas exports.

127. Transnistria receives electricity directly from the Russian Federation.

128. Goods produced in Transnistria are exported to the Russian market, certain goods being presented as originating in the Russian Federation.

129. ROG purchases certain products needed to supply troops directly from the Transnistrian market.

130. Russian companies participated in privatizations in Transnistria. For example, the Russian company "Iterra" bought the largest company in Transnistria, the metallurgical plant in Râbniţa, despite the opposition expressed by the Moldovan authorities.

131. The Moldovan authorities have never officially recognized "MRI" as a state entity.

 

D. "Jurisdiction" over the occupied territories

132. By a series of judgments, the European Court recognized the de facto "jurisdiction" of the Russian Federation over the separatist territory. (Ilașcu and others v. Moldova and the Russian Federation, Grand Chamber decision of the ECtHR of 8 July 2004; Ivanţoc and others v. Moldova and the Russian Federation, judgment of 15 November 2011, Catan and others v. Moldova and the Russian Federation, Grand Chamber judgment of the ECtHR of 19 October 2012).

RELEVANT LEGISLATION

133. The relevant provisions of the Constitution (M.O., 1994, no. 1) are the following:

Article 1
State of the Republic of Moldova

"[...]

(3) The Republic of Moldova is a state governed by the rule of law, democratic, in which human dignity, his rights and freedoms, the free development of the human personality, justice and political pluralism represent supreme values ​​and are guaranteed. "

Article 3
Territory

"(1) The territory of the Republic of Moldova is inalienable.

2. The borders of the country shall be enshrined in organic law, in accordance with the unanimously recognized principles and rules of international law. "

Article 8
Respect for international law and a international treaties

"1. The Republic of Moldova undertakes to respect the Charter of the United Nations and the Treaties to which it is a party, to base its relations with other States on the unanimously recognized principles and norms of international law.

(2) The entry into force of an international treaty containing provisions contrary to the Constitution shall be preceded by a revision thereof. "

Article 11
Republic of Moldova, neutral state

"(1) The Republic of Moldova proclaims its permanent neutrality.

(2) The Republic of Moldova does not allow the deployment of military troops of other states on its territory. "

 

IN LAW

134. From the content of the referral, the Court notes that it essentially concerns the effects of the declared neutrality of the Republic of Moldova in the context of the occupation of part of the national territory by foreign military troops.

135. The complaint thus refers to a set of elements and principles of interconnected constitutional value, such as sovereignty, territorial integrity, national security and military neutrality.

 

A. ADMISSIBILITY

136. In accordance with its decision of 10 September 2014 (see § 3 above), the Court held that, pursuant to Article 135 para. (1) lit. b) of the Constitution, article 4 par. (1) lit. b) of the Law on the Constitutional Court and article 4 par. (1) lit. b) of the Code of Constitutional Jurisdiction, the notification regarding the interpretation of the Constitution belongs to the competence of the Constitutional Court.

137. Articles 25 para. (1) lit. g) of the Law on the Constitutional Court and 38 para. (1) lit. g) of the Code of Constitutional Jurisdiction empowers the Member of Parliament with the right to refer the matter to the Constitutional Court.

138. The Court notes that the issues raised by the complainants have not previously been the subject of interpretation in the constitutional court.

139. The Court considers that the complaint cannot be dismissed as inadmissible and there is no other ground for terminating the proceedings in accordance with the provisions of Article 60 of the Code of Constitutional Jurisdiction. The Court notes that it has been legally seised and has jurisdiction to rule on the interpretation of Article 11 of the Constitution. The Court will therefore continue to examine the merits of the complaint.

140. In accordance with Article 6 (2) of the Code of Constitutional Jurisdiction, the Constitutional Court alone determines the limits of its jurisdiction.

141. The issues submitted to the Court for resolution call for an analysis of two issues which are interdependent. Given that the interpretation of permanent neutrality influences the reasoning regarding the prohibition of the deployment of military troops of other states on the territory of the Republic of Moldova, the Court will examine these issues separately, some issues to be addressed jointly. Thus, the Court will examine: a) permanent neutrality; b) the prohibition of the deployment of foreign military troops.

142. The Court notes that the prerogative with which it was vested by Article 135 para. (1) lit. b) of the Constitution presupposes the establishment of the authentic and full meaning of the constitutional norms, which can be achieved by textual or functional interpretation, insofar as it can be deduced from the text of the Constitution, taking into account the generic character of the norm, the concrete situations that the legislator did not have how to provide them at the time of drafting the rule, subsequent regulations (related or even contradictory), complex situations in which the rule must be applied, etc.

143. In order to elucidate the issues addressed in the referral, the Court will operate, in particular, with the provisions of Article 11 in conjunction with Articles 1 para. (1), 3 and 8 of the Constitution, using all methods of legal interpretation.

 

B. BOTTOM OF THE CASE

I. Permanent neutrality status

1. Arguments of the authors of the notification

144. According to the complainants, the status of permanent neutrality, proclaimed in Article 11 of the Constitution, has certain wording deficiencies, which need to be interpreted by the Constitutional Court.

145. The authors of the complaint allege that, at the time of the adoption and entry into force of the Constitution, the military troops of the Russian Federation were deployed on the territory of the Republic of Moldova.

146. In the view of the complainants, in view of the obvious contradiction between the de facto deployment of foreign (Russian) military troops in the eastern region of the Republic of Moldova and the de jure ban provided for in Article 11 of the Constitution, never de facto and cannot be applied as long as, by the presence of foreign armies, the condition of non-deployment of foreign military troops is violated.

147. In the same context, the authors of the complaint allege that the status of neutrality has not been officially and expressly recognized internationally by any state or international organization, as well as the regional geopolitical context.

2. Arguments of the authorities

148. According to the Parliament, the neutrality of the Republic of Moldova was declared unilateral, not being the consequence of an international treaty.

149. In the view of the Parliament, by proclaiming neutrality in Article 11 of the Constitution, the Republic of Moldova has made the choice in the direction of its foreign policy, starting from the path of establishing the principle of permanent neutrality as an objective of plenary achievement in international relations.

150. According to the Parliament, the choice of permanent neutrality status was determined by a number of factors: the need to strengthen sovereignty under complex political conditions and the lack of traditions of statehood.

Thus, the stability, absolutely necessary for the implementation of the reforms, involved the withdrawal from the territory of the state of foreign (Russian) military troops, the de-escalation of the internal political situation, the finalization of the country's development perspectives and directions.

151. In Parliament's view, it is noted that the provisions of Article 11 of the Constitution do not refer to Moldova's relations with other countries or international organizations with a view to concluding agreements respecting neutrality and guaranteeing non-aggression from abroad.

Thus, the provisions of Article 11 of the Constitution do not establish restrictions for the Republic of Moldova in cases where measures are taken to defend the sovereignty, independence, territorial integrity and other vital interests of the country, including through the use of international armed forces or other states.

152. The Parliament also emphasizes that the constitutional provision proclaiming the permanent neutrality of the Republic of Moldova is compatible with the universal system of collective security, which allows the Republic of Moldova to participate in international peacekeeping operations.

153. However, the Parliament states that, in the absence of international recognition and guarantees, the effects of permanent neutrality are not effectively enforceable internationally. Parliament cites as an example the presence of Russian military troops in the area on the left bank of the Dniester, troops that have not been withdrawn despite the fact that the Russian Federation has made this commitment, including internationally.

154. Thus, in the view of the Parliament, the provisions of Article 11 of the Constitution prohibit the initiation of military aggression against other states, as well as the use of the territory of the Republic of Moldova for foreign troops aimed at aggression against other states.

The constitutional norm does not refer to actions aimed at repelling armed aggressions against the Republic of Moldova and does not prohibit the conclusion of any international treaty aimed at discouraging and preventing any external aggression, as well as guaranteeing the sovereignty, independence and territorial integrity of the Republic. Moldova, including through national or multinational military intervention to ensure this goal.

155. According to the Government, the provisions of Article 11 of the Constitution, the interpretation of which is required, do not contain ambiguities, inaccuracies or ambiguities and therefore need not be interpreted. In the Government's view, by the nature of the questions raised, the referral does not concern the interpretation of Article 11 of the Constitution, but concerns the possibility of derogating from the invoked constitutional norm, as well as the analysis of certain facts.

156. According to the information provided by the Ministry of Foreign Affairs and European Integration, the status of permanent neutrality of the Republic of Moldova is regulated only at national level by Article 11 of the Constitution. At the international level, no legal acts / treaties have been concluded or a resolution has been adopted within the UN, which would expressly recognize this status.

To date, the Republic of Moldova has not taken any action aimed strictly at recognizing its status of international neutrality. The only relevant step in this regard was the initiative launched in June 2004 by the President of the Republic of Moldova on the "Stability and Security Pact for the Republic of Moldova", which provided for the signing by the Russian Federation, the United States, Ukraine, Romania and the European Union. a political document by which these countries were to respect certain principles and promote a number of common objectives in relation to the Republic of Moldova, including respecting and guaranteeing the neutrality of the Republic of Moldova.

The main purpose of this initiative was to create favorable external conditions for Transnistrian conflict settlement, but the talks failed.

157. According to the MFAEI, in international practice there are different forms of state neutrality, the specifics of each being determined by the historical context and political interests. International recognition of neutrality is not a mandatory requirement, but a political option, which is promoted by a state if it meets its interests.

158. The President of the Republic of Moldova has not communicated his opinion to the Court on this subject.

3. Findings of the Court

3.1. Fundamental principles

1) The right to neutrality

159. Neutrality is a complex concept in international law and in politics, which essentially means that such a state does not take part in wars between other states.

160. The rights and obligations of belligerents and neutral states in times of armed conflict are governed by the law of neutrality. This right was transformed in the nineteenth century into customary law and was partially codified in two conventions signed on October 18, 1907 at the Second Hague Peace Conference:

- Fifth Convention on the Rights and Duties of Neutral Powers and Persons in the Event of a Land War;

- Thirteenth Convention on the Rights and Duties of Neutral Powers in Maritime Warfare.

161. The right to neutrality confers a number of rights on a neutral state. For example, it prohibits any attack on the territory of the neutral state by the belligerents or the passage of any troops, ammunition or supplies on its territory in the interest of the belligerents. The neutral state also has the right to free movement of its economic goods, and its nationals are free to trade on land and sea with any other state, whether belligerent or not. On the other hand, the right to neutrality also imposes certain obligations on the neutral state.

They are not allowed to participate directly in armed conflicts or to assist the belligerents by providing them with troops or weapons. It is forbidden to make its territory available to the belligerents for military purposes, regardless of whether operational bases are set up, troops move through it or even, at present, to fly over it. The neutral state is obliged to ensure the inviolability of its territory with a properly equipped army.

162. The law of neutrality does not impose additional conditions that limit the foreign policy of the neutral state, nor does it define the peacetime position of a permanent neutral state. In particular, traditional practice and doctrine have not prevented neutral states from working with foreign military authorities to prepare joint defense measures.

Similarly, a state that has declared itself permanently neutral has no obligation to extend its political, ideological or economic neutrality (see White Paper on Neutrality, Annex to Switzerland's Foreign Policy Report for the 1990s). of 29 November 1993).

163. The right to neutrality gives a great deal of freedom of action and limits the state's political decision-making to a very small extent. Neutrality is not an institution that determines the general conduct of foreign policy.

Rather, it is a statute in accordance with public international law, the essential narrow content of which offers great freedom for the formulation of a foreign policy adapted to the needs of the moment and which, in practice, must be constantly developed to respond to changes in the scene. international politics. The only unchanging principle inherent in neutrality is the non-participation of one state in armed conflicts between other states.

164. The rights of the neutral state are summarized as follows:

- The right to independence, sovereignty and territorial integrity, which it ensures through the appropriate means, all in accordance with the principles applied by the international community.

- The neutral neutral state exercises the rights deriving from its international personality (the right to be a party to treaties, to participate in international conferences).

- The neutral state has the right to protect its nationals in the territory of the warring states.

- The neutral state has the right to respect for its property.

- The Permanent Neutral State will actively support the efforts of the international community in the field of disarmament, confidence-building and interstate cooperation. In this regard, neutral states have the right to participate in the activities of international organizations in order to ensure the collective security of states. Therefore, the permanent neutral state will have the right to be part of the defensive alliances when it is attacked. The participation of the neutral state in such alliances, under certain conditions, can become a form of guarantee of its security and territorial inviolability. At the same time, the permanent neutral state will not have the right to be a member of international organizations whose aims and principles are contrary to its status.

- The right to self-defense (individual and collective) against an armed attack against the sovereignty and territorial integrity of the state.

- The neutral state has the right to take part in peacekeeping operations carried out under the auspices of international organizations. Practice shows that neutral states actively participate in this type of operation.

2) Neutrality, an adaptable tool for defending national interests

165. Throughout history, neutrality has never been a rigid, fixed and unchanged institution, neither in terms of its content nor its duration. On the contrary, states have always adapted the instrument of neutrality to international requirements and to their own interests. Periods in which states pursue a foreign employment policy, with an active presence on the international stage, may alternate with periods in which states may be more reserved in their foreign policy.

166. Neutrality describes the position of a state in a war involving other states. Neutrality is thus defined in relation to military tensions and conflicts, ie in terms of the basic forms of insecurity. In essence, in this context, it has the maximum function of foreign and security policy. Such a status is appropriate when antagonistic states or blocs oppose each other and the country in question fears the outbreak of military conflicts in which it may engage and must defend itself.

167. Neutrality should remain an instrument of foreign and security policy, as long as it remains more appropriate than other instruments to protect national interests.

3) Neutrality and security

168. In the light of the challenges facing states in the late twentieth and early twenty-first centuries, neutrality cannot be understood as a status that justifies inaction and non-involvement, as a position of passivity and isolation.

The key maxim in the current system of collective security is solidarity with others, because in many areas the individual interests of states can only be achieved through their willingness to share international responsibilities and participate in solving international problems and making international decisions. The interests of states can only be met through global solidarity, global and regional cooperation and participation.

169. With the end of the Cold War, various types of dangers appeared, some unexpected, others forgotten: regional conflicts within Eastern European countries triggered by nationalism, minority issues, secessionist aspirations or cross-border disputes, wars outside Europe with implications for the continent. ours, coercion with weapons of mass destruction or equally effective conventional weapons, terrorism, mass migration and waves of refugees, environmental destruction and disasters.

170. As combined efforts are needed to combat these dangers, they cannot be addressed through national measures, but only through international cooperation, especially through joint action at European level. Such a defense requires a multinational approach.

171. The same is true for the creation of effective instruments for preventing and limiting regional conflicts that threaten European stability and security.

172. If neutrality meant prohibiting cooperation with other countries in the field of security policy, it would be a dangerous obstacle to international measures to combat those threats.

173. Any country not participating in cooperation in the field of international security policy risks being isolated. Such a country would no longer be a respected and fair partner in Europe. In the event of a threat, it probably could not rely on solidarity and support from its partners and would be particularly vulnerable to certain dangers.

174. The law of neutrality developed at the beginning of the last century refers to the behavior of neutral states in the event of war and does not mention preventive defense measures in peacetime. To the extent that, at the end of the last century, weapons have developed in such a way that we can only ensure our defense through cooperation with other countries in certain areas, such cooperation (provided that it does not exceed certain limits) must be considered compatible. with the spirit of neutrality. This is all the more so as a neutral state is not only justified but also obliged to take the military precautions it can reasonably require to enable it to defend itself effectively against possible attacks.

3.2. The practice of other states

175. As a political option, some states have declared, through various internal documents, the status of permanent neutrality.

Switzerland. The regime has been established since 1815 by the Treaty of Guarantee of Neutrality of Switzerland, reconfirmed by Article 435 of the Treaty of Versailles.

Luxembourg. Its neutrality ceased to be guaranteed by the Treaty of Versailles, but was maintained unilaterally until Germany invaded Luxembourg in 1940.

Austria. The status of permanent neutrality of Austria was declared for the purpose of obtaining the withdrawal of the occupation troops, by an internal law of its in 1954, which entered into force on 5 November 1955, after the signing on 5 May 1955 of the State Treaty between Austria and the 4 great powers (England, France, the USSR and the USA), and was received at the UN in the same year.

Malta. It declared unilateral permanent neutrality, and European states took note of this declaration in the final act of the 1983 Madrid Meeting of the Conference on Security and Cooperation in Europe.

Laos. Its permanent neutrality is established by the Government Declaration of 9 July 1962 and by the Declaration on Neutrality of Laos of 23 July 1962, Geneva.

Cambodia. Cambodia's neutrality was established by a constitutional law on January 12, 1957, defined by Prince Norodom Sihanouk as the expression of an international policy. According to the principle of neutrality, Cambodia did not carry out any aggression against a foreign country, but if it was the victim of an attack, it reserved the right to defend itself, to appeal to the United Nations, of which it is a member, or to a great power with which he was on good terms.

A special case is Turkmenistan, a new state that emerged as a result of the dismemberment of the former USSR. After it was decided, by domestic law, that it would have a status of permanent neutrality, by a 1995 resolution the General Assembly recognized this status and called on the UN member states to respect and support it.

176. In order to be effectively opposable internationally, some states have obtained recognition through multilateral acts and the international guarantee of this status (the case of Austria and Laos).

3.3. Application of the principles set out in the present case

177. Neutrality is a matter of the foreign and security policy of the State.

The neutrality of the Republic of Moldova is closely linked to its historical context, the military occupation of the eastern area being a determining factor in its proclamation in the Constitution.

From a historical and constitutional point of view, neutrality has never been an end in itself, but rather an instrument, among many others, to enable the Republic of Moldova to achieve its true objectives, including the withdrawal of foreign troops from the territory, strengthening its independence and restoring its territorial integrity.

178. Two distinctive features of the instrument of permanent neutrality of the Republic of Moldova can be deduced from the wording of Article 11 of the Constitution.

First of all, permanent neutrality means that the Republic of Moldova undertakes to remain neutral in any present and future conflict, regardless of the identity of the belligerents and the place and time of its outbreak.

Secondly, the neutrality of the Republic of Moldova means that the Republic of Moldova does not allow the deployment of military troops of other states on its territory.

However, this does not prevent the Republic of Moldova from using all the means at its disposal to defend itself militarily against any aggressor and to prevent any act incompatible with its neutrality, which the belligerents may commit on its territory.

179. The Republic of Moldova has enshrined the status of neutrality in its Constitution, without asking for its confirmation at the UN. In fact, no state has recognized the neutrality of the Republic of Moldova and there are no international guarantees of this status (as there is in the case of Austria).

The military occupation of a part of the territory of the Republic of Moldova at the time of the declaration of neutrality, as well as the lack of international recognition and guarantees of this status, does not affect the validity of the constitutional provision regarding neutrality.

180. Article 11 of the Constitution provides that "the Republic of Moldova shall declare its permanent neutrality".

Although the second paragraph of the article specifies that "the Republic of Moldova does not allow the deployment of military troops of other states on its territory", from the Soviet occupation of the current territory of the Republic of Moldova (1944-1991) to the eastern part of the country, occupation troops of the Russian Federation are still deployed.

Practically, the Soviet / Russian occupation did not end in the eastern part of the country even today, although the independence of the Republic of Moldova was proclaimed. The Russian Federation recognized it, but withdrew its army only from the western part of the Moldovan territory (11% of the Republic of Moldova's area remained under occupation).

181. Thus, the fact that the Russian Federation has not withdrawn its occupation troops from the east of the country, but, on the contrary, has strengthened its military presence in the Transnistrian part of the Republic of Moldova, constitutes a violation of the constitutional provisions on independence, sovereignty, territorial integrity and permanent neutrality of the Republic of Moldova, as well as international law.

182. Neutrality and independence are interdependent: independence is both what neutrality seeks to protect and, because the state must be able to make decisions freely, a sine qua non condition of neutrality.

To be credible, a permanent neutral state must prove a sufficient degree of real independence from other countries. Only then will it be able to withstand the pressures to which it may be exposed in times of crisis and fulfill its obligations as a neutral state.

183. The Court notes that the longer the Republic of Moldova remains under military occupation, the more relative the independence and autonomy that its status of neutrality must entail.

184. The right to neutrality does not impose additional conditions that limit the foreign policy of the neutral state, nor does it define the peacetime position of a permanent neutral state.

The only unchanging principle inherent in neutrality is the non-participation of a state in armed conflicts between other states.

185. The Court notes that the purpose of any security policy must be to ensure security at four levels:

individual (citizens),

collective (interest associations),

national (state) and

international (external environment).

This requires a continuous adjustment of the national security system to the external and internal environment to meet new security challenges and problems in all five dimensions:

political,

military,

economic,

ecological and

social,

including: individual, cultural, energy, food , information, communications, telecommunications, resources, etc.

186. Ensuring the security of the Republic of Moldova must be done taking into account the geopolitical factors that exert their influence in the South-Eastern European region and directly on the state.

187. Ensuring national security and defense presupposes that its own interests cannot be sacrificed in favor of another State, group of States or international bodies and that, in the event of an attack on its security components, the State may maintain them, including with with the help of national and international armed forces.

188. The Court notes that the Constitution cannot be a "suicide pact".

Thus, in case of a threat to such fundamental constitutional values, such as national independence, territorial integrity or state security, the Moldovan authorities are obliged to take all necessary measures, including military ones, which would allow them to defend themselves effectively against them.

189. Moreover, in the face of increasingly obvious limited independent defense capabilities, greater international cooperation, both bilateral and multilateral, is imperative.

190. It is obvious that the status of neutrality does not constitute an obstacle in the defense policy of the Republic of Moldova. Too restrictive an interpretation, very limiting the possibilities of defense, would be a handicap for our country and for its inhabitants.

The purpose of neutrality is to increase the security of the country, not to limit its defense capacity.

191. Should the Republic of Moldova no longer be able to defend itself against threats, it should adapt its current security and defense policy to the new circumstances.

192. Moreover, the status of neutrality is not opposable to the aggressor state, because the state cannot refrain when it is aggressed.

Neutrality creates special rights and obligations, which usually do not exist in peacetime and which end with the end of hostilities or when war breaks out between the neutral state and one of the belligerents.

The neutral state has the right to self-defense (individual and collective) against an armed attack directed against the sovereignty and territorial integrity of the state.

193. In the same vein, Article 51 of the UN Charter provides that:

'Nothing in this Charter shall prejudice the inherent right of individual or collective self-defense in the event of an armed attack on a Member of the United Nations until The Security Council will take the necessary measures to maintain international peace and security.

The measures taken by Members in exercising this right of self-defense shall be notified immediately to the Security Council and shall not in any way affect the power and duty of the Security Council under this Charter to take any action it deems necessary for the maintenance or restoration of international peace and security."

194. The Constitutional Court notes that the provisions of the Constitution imply that the assurance of the independence and security of the State, including through the use of armed forces, can be carried out both nationally and internationally.

In accordance with the Constitution (the provisions of Article 8), while having to take into account the limits and prohibitions enshrined in the Basic Law, the international treaties of the Republic of Moldova and the laws adopted for the implementation of these treaties may provide for various measures to ensure independence.

State security at international level, inter alia, collective international defense and / or other joint measures, measures to strengthen international peace and security, other measures of international cooperation of a military nature, the basis, purpose and character of which are clear and reasoned constitutional.

195. One of the commitments of the Republic of Moldova in terms of ensuring the security of the state and its independence was assumed by joining the United Nations.

In this context, the UN calls on its members "to take effective collective measures to prevent and eliminate threats to peace and to repress any acts of aggression or other violations of peace" (p. 1 art. 1 of the UN Charter).

No member of the United Nations may evade the fulfillment of its obligations under the Charter unless it is released from its fulfillment by the Security Council.

Article 2 of the UN Charter provides that "all members of the Organization must fulfill in good faith the obligations assumed under this Charter", and Article 25 provides for the commitment of UN members "to accept and execute the decisions of the Security Council", as the Security Council bears the primary responsibility for maintaining international peace and security (art. 24).

196. In accordance with Articles 41 and 42 of the Charter, the Member States of the United Nations, by decision of the Security Council, are obliged to participate in non-military or military sanctions.

The state will authorize the development on its territory of any type of action decided by the Security Council under Chapter VII of the Charter, including the right of way to be granted by the state to impose sanctions against the aggressor (art. 43 of the UN Charter) .

They cannot be considered as acts of war within the meaning of international law, but as police action against states that are guilty of violating international law and thus do not fall within the scope of neutrality, being considered compatible with a system of collective security.

197. Similarly, in accordance with Article 51 of the Charter, UN Member States may provide assistance to the victim of aggression by notifying the Security Council of the measures taken.

198. The main task of a security policy is to eliminate the structural causes of potential violent conflicts. Concrete tools for conflict prevention can be, among others: preventive diplomacy, early detection and timely action, peaceful resolution of conflicts, but also the threat of sanctions, disarmament and building military confidence. Crisis management and conflict prevention can also take place within the European Union, NATO partnerships or the OSCE.

199. Modern neutrality does not preclude cooperation with members of alliances or military alliances in order to strengthen the defense capacity of the Republic of Moldova, as long as they can agree on key issues.

In this context of partnership, peacekeeping operations are perfectly compatible with neutrality. Neutral states, such as Austria, are actively involved in EU crisis management tasks, as required by the Lisbon Treaty.

Austria also cooperates closely with NATO in important and necessary areas, such as crisis management, humanitarian operations or peacekeeping.

200. Similarly, the Republic of Moldova, the new National Security Strategy, approved by the Parliament on 15 July 2011, establishes that in the context of the security of the Republic of Moldova a special role is to participate in global, regional and subregional efforts to promote international stability and security by cooperation within the UN, the OSCE, NATO and other international organizations, as well as participation in missions under the EU's Common Security and Defense Policy (CSDP).

201. The strategy stipulates that the national security of the Republic of Moldova cannot be conceived outside the context of European security and that in the integration efforts special attention will be paid to intensifying cooperation with the EU on CFSP and CSDP, aimed at strengthening national and regional security.

II. Prohibition of the deployment of military troops of other states

202. The provisions of Article 11 of the Constitution, according to which foreign military bases may not be deployed on the territory of the Republic of Moldova, inter alia, mean that there may be no military base on the territory of the Republic of Moldova, which is led and controlled by foreign states.

203. Adequate fulfillment of the imperatives arising from the defense of territorial integrity and state security is a constitutional priority of the foreign and security policy of the Republic of Moldova.

Among other things, this means the need to implement European standards on human rights and freedoms, the duty to ensure the development of the national defense system in line with the needs of the defense system, including the collective, and also to ensure that defense for such development. Identifying the maximum and indispensable guarantees of security and ensuring the constitutional democratic order, although not directly mentioned in the Constitution, constitutes an intrinsic "constitutional value". Without such an imperative, obviously, the Constitution, as a public pact, it would be worthless and the state would no longer be considered the common good for society as a whole, so ensuring the imperative of security, independence and constitutional democratic order is also a constitutional value.

204. Article 11 of the Constitution must be seen as an instrument of protection, and not as an obstacle to the protection of the independence, democracy and other constitutional values ​​of the Republic of Moldova.

III. Participation in collective security systems

205. The neutrality of the Republic of Moldova, an example of the compatibility of the status of neutrality with the universal system of collective security, contains data on the participation of the armed contingents of the Republic of Moldova in UN-led operations to maintain peace and security in "hot spots".

206. The Court therefore considers that, together with the examples provided by Austria and Switzerland, the Republic of Moldova, a permanently neutral state, is not neutral in matters of world peace, effectively contributing to the strengthening of international security.

207. Participation in a collective security system, which, like the United Nations security system, would impose collective sanctions against perpetrators and offenders under international law, is not contrary to the status of neutrality.

The extent to which one or another security or alliance system is contrary to the status of neutrality must be assessed in each case, and there is no generally applicable prohibition. The decision will be based mainly on answering the question of whether participation in the regional defense system will protect the country and the population more effectively than non-participation.

 

For these reasons, under Articles 140 of the Constitution, 26, 28 and 281 of the Law on the Constitutional Court and 6, 61, 62 let. b), 68 and 75 of the Code of Constitutional Jurisdiction, the Constitutional Court unanimously, 

DECIDE:

1. For the purposes of Article 11 of the Constitution in conjunction with Articles 1 (1), 3 and 8 of the Constitution:

- The military occupation of a part of the territory of the Republic of Moldova at the time of the declaration of neutrality, as well as the lack of international recognition and guarantees of this status, does not affect the validity of the constitutional provision regarding neutrality;

- in case of threats to fundamental constitutional values, such as national independence, territorial integrity or state security, the Moldovan authorities are obliged to take all necessary measures, including military ones, which would allow them to defend themselves effectively against these threats;

- the deployment on the territory of the Republic of Moldova of any troops or military bases, led and controlled by foreign states, is unconstitutional;

- the participation of the Republic of Moldova in collective security systems, such as the United Nations security system, peacekeeping operations, humanitarian operations, etc., which would impose collective sanctions against aggressors and offenders under international law, does not contradict the status of neutrality .

2. This Decision shall be final, shall not be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.

President Alexandru TĂNASE

Chisinau, May 2, 2017

HCC no. 14

File no. 37b / 2014

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