DECIDES:

1. The complaints submitted by Mr Octavian Țîcu, Mr Sergiu Litvinenco and Ms Veronica Roșca, Members of the Parliament of the Republic of Moldova, are partially accepted.

2. The Decision of the Parliament regarding the declaration of the state of emergency no. Is declared unconstitutional. 49 of March 31, 2021.

3. The notifications in the part referring to the Government Decision regarding the proposal for declaring the state of emergency no. 43 of March 30, 2021.

4. This decision is final, may 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
FOR THE CONTROL OF CONSTITUTIONALITY
Government Decision on the proposal to declare a state of emergency no. 43 of March 30, 2021 and of the Decision of the Parliament regarding the declaration of the state of emergency no. 49 of March 31, 2021

(declaration of state of emergency)
  (complaints no. 81a / 2021 and no. 82a / 2021)

CHIŞINĂU
April 28, 2021

On behalf of the Republic of Moldova,

The Constitutional Court, judging in its composition:

Ms Domnica MANOLE, President,

Mr Nicolae ROȘCA,

Ms Liuba ȘOVA,

Mr Serghei ȚURCAN,

Mr Vladimir ȚURCAN, Judges,

with the participation of Ms Dina Musteața, legal assistant,

Having regard to the complaints lodged on 7 and 9 April 2021,

Having considered the above referrals in plenary,

Having regard to the documents and works of the file,

Deliberating in the Council Chamber,

Make the following decision:

PROCEDURE

1. At the origin of the case are the notifications submitted to the Constitutional Court on April 7 and 9, 2021, based on articles 135 par. (1) lit. a) of the Constitution, 25 let. g) of the Law on the Constitutional Court and 38 para. (1) lit. g) of the Code of Constitutional Jurisdiction, by Mr. Octavian Țîcu [notification no. 81a / 2021], by Mr. Sergiu Litvinenco and by Ms. Veronica Roșca [notification no. 82a / 2021], deputies in the Parliament of the Republic of Moldova. The authors of the notification no. 82a / 2021 submitted on April 21, 2021 a supplement to their notification.

2. The complainants request the Court to verify the constitutionality of the Government Decision on the proposal to declare a state of emergency no. 43 of March 30, 2021 and of the Decision of the Parliament regarding the declaration of the state of emergency no. 49 of March 31, 2021.

3. By the decision of the Constitutional Court of 19 April 2021, the notifications were declared admissible, without prejudice to the merits of the case.

4. In view of the identity of the objections of the referrals, the Court decided to connect them in a single file, based on article 43 of the Code of Constitutional Jurisdiction, being assigned the number 81a / 2021.

5. In the process of examining the notifications, the Constitutional Court requested the opinions of the Parliament, the President of the Republic, the Government, the Ministry of Health, Labor and Social Protection, the Center for Legal Resources of Moldova and the Faculty of Law of the State University of Moldova.

6. The public hearing of the Court was attended by Mr Octavian Țîcu, author of notification no. 81a / 2021, Mr. Sergiu Litvinenco, author of the notification no. 82a / 2021, and Mr. Radu Radu, representative of the Parliament.

IN FACT

7. On March 30, 2021, the Government whose term of office ended adopted Decision no. 43, which took note of the Report of the Commission for Exceptional Situations on the need to declare a state of emergency, presented the Report in question to the Parliament and proposed to the Parliament the declaration of the state of emergency on the entire territory of the Republic of Moldova.

8. On 31 March 2021, Mr Vasile Bolea, Mr Alexandr Suhodolski and Ms Alla Dolință registered with the Secretariat of the Parliament, on the basis of their right to legislative initiative, guaranteed by Article 73 of the Constitution, the draft Parliament Decision on the declaration of a state of emergency ( No. 95).

9. On the same day, Parliament met in plenary session [1] to consider draft Parliament Decision no. 95. At the meeting, Mr Aureliu Ciocoi, Acting Prime Minister, presented the Report of the Committee on Exceptional Situations and answered questions. Subsequently, Mr. Vasile Bolea took the floor from the authors of the project, presented the project and requested its support. Following the debates, Parliament's decision was adopted by a majority of votes.

RELEVANT LEGISLATION

10. The relevant provisions of the Constitution are the following:

Article 1
State of the Republic of Moldova

"[...]

(3) The Republic of Moldova is a 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 23
The right of every human being to know his rights and duties

"1. Everyone has the right to recognition as a person before the law.

(2) The state ensures the right of every person to know his rights and duties. To this end, the state publishes and makes accessible all laws and other normative acts. "

Article 27
The right to free movement

"1. The right to free movement within the country is guaranteed.

(2) Every citizen of the Republic of Moldova is guaranteed the right to establish his domicile or residence in any locality in the country, to leave, to emigrate and to return to the country. ”

Article 40
Freedom of assembly

"Rallies, demonstrations, demonstrations, processions or any other gatherings are free and can be organized and conducted only peacefully, without any weapons."

Article 46
The right to private property and its protection

"(1) The right to private property, as well as the claims on the state are guaranteed.

(2) No one may be expropriated except for a cause of public utility, established according to the law, with fair and prior compensation.

(3) The lawfully acquired property may not be confiscated. The lawfulness of the acquisition is presumed.

(4) The goods intended, used or resulting from crimes or contraventions may be confiscated only in accordance with the law.

(5) The right of private property obliges to the observance of the tasks regarding the protection of the environment and the assurance of the good neighborhood, as well as to the observance of the other tasks that, according to the law, belong to the owner

(6) The right to inherit private property is guaranteed. "

Article 54
Restriction on the exercise of certain rights or freedoms

"(1) Laws that would suppress or diminish the fundamental rights and freedoms of man and citizen cannot be adopted in the Republic of Moldova.

(2) The exercise of rights and freedoms may not be subject to restrictions other than those provided by law, which correspond to the unanimously recognized norms of international law and are necessary in the interests of national security, territorial integrity, economic welfare, public order, in order to prevent disturbances. and crimes, the protection of the rights, freedoms and dignity of others, the prevention of the disclosure of confidential information or the guarantee of the authority and impartiality of justice.

(3)The provisions of paragraph 2 shall not permit the restriction of the rights proclaimed in Articles 20 to 24.

(4) The restriction must be proportionate to the situation which gave rise to it and may not affect the existence of a right or freedom. "

Article 66
Basic tasks

"Parliament has the following basic responsibilities:

[…]

m) declares a state of emergency, siege and war;

[…] ”

Article 72
Categories of laws

"[...]

(3) The organic law regulates:

[...]

m) the regime of state of emergency, siege and war;

[...] ”

Article 73
Legislative initiative

"The right of legislative initiative belongs to the deputies in the Parliament, to the President of the Republic of Moldova, to the Government, to the People's Assembly of the autonomous territorial unit of Gagauzia."

Article 85
Dissolution of Parliament

"[...]

(4) The Parliament cannot be dissolved in the last 6 months of the mandate of the President of the Republic of Moldova, nor during the state of emergency, siege or war. ”

Article 103
Termination of office

„[…]

(2) The Government, in case of expressing the vote of no confidence by the Parliament, of the resignation of the Prime Minister or in case of paragraph (1), fulfills only the functions of administration of public affairs, until the oath is taken by the members of the new Government. "

11. The relevant provisions of the Government Decision on the proposal to declare a state of emergency no. 43 of March 30, 2021 are the following:

„Pursuant to article 19 of Law no. 212/2004 on the regime of state of emergency, siege and war (Official Gazette of the Republic of Moldova, 2004, no. 132-137, article 696), with subsequent amendments, the Government

DECIDES:

1. The Report of the Commission for Exceptional Situations of the Republic of Moldova on the need to declare a state of emergency is noted.

2. The Report of the Commission for Exceptional Situations of the Republic of Moldova on the need to declare a state of emergency is presented to the Parliament.

3. It is proposed to the Parliament to declare a state of emergency on the entire territory of the Republic of Moldova.

4. This Decision shall enter into force on the date of its publication in the Official Gazette of the Republic of Moldova. "

12. The relevant provisions of the Decision of the Parliament regarding the declaration of the state of emergency no. 49 of March 31, 2021 are the following:

"Pursuant to Article 66 letter m) of the Constitution of the Republic of Moldova, of article 19 of Law no. 212/2004 on the state of emergency, siege and war and having regard to the Report of the Commission for Exceptional Situations of the Republic of Moldova on the need to declare a state of emergency, taking into account the serious pandemic situation and the fact that the subject concerns state security and interest national,

Parliament shall adopt this decision.

 Article 1. - A state of emergency is declared on the entire territory of the Republic of Moldova for the period April 1 - May 30, 2021.

 Article 2. - During the state of emergency, the Commission for Exceptional Situations of the Republic of Moldova shall issue provisions for the implementation of the following measures:

1) the establishment of a special regime of entry and exit from the country;

2) the establishment of a special traffic regime on the territory of the country;

3) the introduction of the quarantine regime and the taking of other obligatory sanitary-anti-epidemic measures;

4) establishing a special working regime for all entities;

5) prohibiting the holding of assemblies, public demonstrations and other mass actions;

6) ordering, if necessary, the rationalization of the consumption of food and other products of strict necessity;

7) coordinating the activity of the mass media regarding:

a) informing the population about the causes and proportions of the exceptional situation, about the measures taken to prevent the danger, liquidate the consequences of this situation and protect the population;

b) familiarization of the population with the rules of behavior during the exceptional situation;

c) introduction of special rules for the use of telecommunications means;

8) modification of the procedure for appointment and dismissal of the heads of economic agents and public institutions;

9) the prohibition of the resignation of the workers, except for the cases provided by the normative acts, for this period;

10) calling citizens to provide services in the public interest under the law;

11) carrying out, in the manner established by law, the requisitions of goods in order to prevent and liquidate the consequences of the situations that imposed the declaration of the state of emergency;

12) performing other necessary actions in order to prevent, reduce and eliminate the consequences of the coronavirus pandemic (COVID-19).

 Article 3. - The provisions of the Commission for Exceptional Situations of the Republic of Moldova are binding and enforceable for the heads of central and local public administration authorities, economic agents, public institutions, as well as for citizens and other persons located on the territory of the Republic of Moldova.

 Article 4. - All provisions issued by the Commission for Exceptional Situations of the Republic of Moldova shall enter into force upon issuance.

 Article 5. - The Parliament of the Republic of Moldova shall inform, within 3 days, the Secretary General of the UN and the Secretary General of the Council of Europe about this decision and the reasons for its adoption.

 Article 6. - This decision shall enter into force on the date of its adoption, shall be immediately brought to the attention of the public through the mass media and shall be published in the Official Gazette of the Republic of Moldova. "

IN LAW

A. ADMISSIBILITY

13. By its decision of 19 April 2021, the Court upheld the observance in the present case of the conditions for the admissibility of a referral, laid down in its settled case-law.

14. In accordance with Article 135 para. (1) lit. a) of the Constitution, the control of the constitutionality of the decisions of the Parliament and of the decisions of the Government, in the present case of the Decision of the Government regarding the proposal to declare the state of emergency no. 43 of March 30, 2021 and of the Decision of the Parliament regarding the declaration of the state of emergency no. 49 of March 31, 2021, falls within the jurisdiction of the Constitutional Court.

15. Also, according to articles 25 let. g) of the Law on the Constitutional Court and 38 para. (1) lit. g) of the Code of Constitutional Jurisdiction, the deputies are empowered with the prerogative to notify the Constitutional Court.

16. As regards the subject-matter of the complaints, the Court notes that the authors of the complaints challenge the Government Decision on the proposal to declare a state of emergency no. 43 of March 30, 2021 and the Decision of the Parliament regarding the declaration of the state of emergency no. 49 of March 31, 2021, decisions that previously were not subject to constitutional review.

17. The authors of the notifications consider that the contested judgments contravene articles 1 par. (3) [rule of law], 4 [priority of international human rights law], 6 [separation and co-operation of powers], 15 [universality of fundamental rights], 23 [clarity of law], 27 [right to free movement], 38 [ the right to vote and the right to be elected], 40 [freedom of assembly], 46 [right to property], 54 [restriction on the exercise of certain rights or freedoms], 72 [categories of laws], 73 [legislative initiative], 85 [dissolution of Parliament] and 103 para. (2) [powers of the Government whose term of office has ceased] of the Constitution.

18. Regarding the contestation of the Government Decision no. 43 of March 30, 2021, the Court observed that the authors of the notifications invoked the incidence of article 103 par. (2) of the Constitution. In this respect, the Court noted that the authors of the notifications referred to the Decision of the Constitutional Court no. 7 of 18 May 2013, in which the Court ruled on the competences of the Government whose mandate ended.

The Court held that, by Decision no. 7 of March 4, 2021, the Court reconsidered its jurisprudence in the field of competences of a Government with a terminated mandate. In its last Judgment in this field, the Court drew up a test in the light of which it is possible to examine whether the measures adopted by a Government whose term of office has ceased fall within the requirements laid down in Article 103 para. (2) of the Constitution.

The test involves verifying the following conditions: (i) the need for measures taken by a Government whose term of office has ceased; (ii) the repercussions of measures taken by a Government whose term of office has expired on the powers of the next Government in full power; (iii) if the next Government with full powers may annul the measure adopted by the Government whose term of office has ceased (see §§ 45, 49 of the judgment cited).

In this case, the authors of the notifications did not argue the unconstitutionality of the Government Decision no. 43 in the light of the test elaborated by the Court by Decision no. 7 of March 4, 2021. Therefore, this end of the complaints is inadmissible.

19. With regard to the impact of Articles 1 para. (3), 6 and 73 of the Constitution, the authors note that the Parliament Decision was not adopted on the basis of a draft proposed by the Government, but on the basis of the draft Decision submitted by Members of Parliament according to the right to legislative initiative, thus creating an imbalance. between the legislature and the executive.

Also, the authors of the notifications mention that the deputies do not have the competence to propose to the Parliament the declaration of the state of emergency, because this competence belongs only to the President of the Republic of Moldova and the Government. In order to see whether the adoption of Parliament's judgment on the basis of the draft Judgment submitted by Members led to an imbalance between the legislature and the executive and to a breach of the prerogative of legislative initiative, the Court considered that this issue should be examined.

20. As regards the scope of Articles 4, 15, 23 and 54 of the Constitution, the Court has held in its case-law that those articles of the Constitution cannot be relied on independently, but only in relation to a fundamental right (see , mutatis mutandis, JCC No 11 of 25 March 2021, § 27 and the case law cited there). The Court noted that the scope of the contested judgments is wide, which makes it possible for several fundamental rights to be affected (see JCC No 17 of 23 June 2020, § 53).

In any case, the analysis of Articles 4 and 15 is not a dedicated one, as they are rather the character of a commitment of the State of the Republic of Moldova to protect human rights. The reference to international treaties for the protection of human rights takes place in any case in the judgments of the Court, where the Court considers it relevant.

21. The authors of the notification no. 82a / 2021 supported the violation of the right to free movement guaranteed by Article 27 of the Constitution, the right to vote and the right to vote, guaranteed by Article 38 of the Constitution, the right to freedom of assembly, guaranteed by Article 40 of the Constitution, and the right to property, guaranteed by Article 46 of the Constitution. Therefore, in the present case, the scope of Articles 4, 15, 23 and 54 of the Constitution depends on the scope of the fundamental rights mentioned above.

22. The very text of the Parliament Decision no. 49 of March 31, 2021 contains express provisions that refer to some rights whose violation is supported by the authors of notification no. 82a / 2021. Points 1) and 2) of Article 2 of the Decision of the Parliament refer to the establishment of a special regime of entry and exit from the country and the establishment of a special regime of movement on the territory of the country, incidental to Article 27 of the Constitution.

Point 5) of Article 2 of the Decision of the Parliament aims at prohibiting the holding of assemblies, public demonstrations and other mass actions, making incident Article 40 of the Constitution. Point 11) of Article 2 of the Parliament's Decision aims to carry out, in the manner established by law, requisitions of goods in order to prevent and liquidate the consequences of situations that required the declaration of a state of emergency, making Article 46 of the Constitution incident.

23. However, the contested judgment of the Parliament does not contain provisions which affect or expressly prohibit the exercise of the right to vote and the right to vote, guaranteed by Article 38 of the Constitution, beyond the fact that the exercise of those rights is activated by reporting. at precise periods of time (pre-election campaign, for the registration of candidates in elections; election campaign, for candidates in elections; election day, for voters and for candidates).

24. The Court therefore notes the scope of Articles 27, 40 and 46 of the Constitution, in conjunction with Articles 23 and 54, which contain the requirements of the quality of the law and proportionality.

25. As regards the scope of Article 72 of the Constitution, which lays down the categories of laws which may be adopted by Parliament, the Court has held that this article is applicable if Parliament adopts a law, without being applicable to Parliament's judgments. Therefore, this end of the complaints is inadmissible.

26. With regard to the impact of Article 85 of the Constitution, the authors of notification no. 82a / 2021 claims the existence of an abuse of the Parliament, in order to block the procedure of dissolution of the Parliament. The Court noted that there are several constitutional procedures that can be blocked by the establishment of a state of emergency by Parliament.

The first procedure is to dissolve Parliament. According to article 85 par. (4), Parliament may not be dissolved, inter alia, during a state of emergency. The second procedure is to revise the Constitution. According to article 142 par. (3) of the Constitution, the Constitution may not be revised during the state of emergency.

The principle of the supremacy of the Constitution requires Parliament to adequately demonstrate the justification of the state of emergency not only from the perspective of restricting fundamental rights, but also from the perspective of obstructing the two constitutional procedures when they were initiated, explaining the necessary nature of obstruction. Because on the date on which the contested judgment of the Parliament was adopted, there was a referral to the Court regarding the finding of the circumstances justifying the dissolution of the Parliament, the Court noted the incidence of Article 85 of the Constitution, to make a substantive analysis.

27. The Court therefore held, for the analysis of the merits of the case, Articles 1 para. (3), 6, 27, 40, 46 and 73 in conjunction with Articles 23, 54 and 85 of the Constitution.

B. BOTTOM OF THE CASE

A. Arguments of the authors of the notifications

28. The complainants submit that the contested judgments do not provide for an action plan to be drawn up by the authorities after the declaration of a state of emergency and the extent to which the rights of persons will be restricted, the reasons for declaring the state of emergency and the urgent measures to be taken. authority.

Also, the authors of the notifications mention that it is unclear the request of the Interim Government to declare a state of emergency on the entire territory of the Republic of Moldova in order to obtain additional powers for pandemic management, because, based on the Constitutional Court Decision no. 48 of October 1, 1999, the Interim Government may issue legally binding legal acts in order to avoid the effects of natural phenomena and unpredictable facts that present a public danger. In that regard, the contested judgments are considered to be uncertain.

29. With regard to the infringement of Article 54 of the Constitution, the complainants consider that the Government Decision is based on a general reference to the report of the Committee on Exceptional Situations and that Parliament's decision gives executive authorities fact and would link this state of affairs to the measures that can be taken to improve the state of affairs related to the epidemiological situation.

30. According to the authors of the notification no. 82a / 2021, the procedure for declaring a state of emergency must take into account the purpose of overcoming a public danger threatening the life of the nation, when this danger can only be overcome within a derogatory constitutional regime, the establishment of which is justified by a major public interest related to the existence of the nation.

They claim that the measures put in place to overcome the public danger that threatens the life of the nation, i.e. the COVID-19 pandemic, with the exception of the “dissolution” of the Parliament, were also possible in the absence of a state of emergency regime. Moreover, during the state of emergency no more restrictive measures were imposed than those existing until the establishment of the state of emergency, so that there is a reasonable doubt as to the need to establish a state of emergency justified by the purpose invoked.

31. The authors of the notification no. 82a / 2021 states that at the time of the initiation of the procedure for declaring a state of emergency, Parliament was facing an imminent risk of dissolution. The risk could only be overcome by establishing a state of emergency. They also claim that a state of emergency has been put in place to prevent the dissolution of Parliament.

B. Arguments of the authorities

32. In the opinion presented by the Parliament it is mentioned that, taking note of the Report of the Commission for Exceptional Situations on the need to declare a state of emergency, the Government, by adopting Decision no. 43/2021, proposed the Parliament to declare a state of emergency throughout the country.

The purpose pursued by the adoption of Decision no. 49/2021 was to protect the population, by adopting the necessary actions in order to prevent, reduce and eliminate the consequences of the pandemic. To that end, the Parliament empowered the Committee on Exceptional Situations to issue provisions for the implementation of the measures specified in paragraph 2 of the judgment. Parliament Decision no. 49/2021 was adopted following the Government's proposal on declaring a state of emergency.

This Decision is adopted in accordance with Article 66 let. m) of the Constitution and with article 12 of the Law on the regime of state of emergency, siege and war. The contested provisions must also comply with the principle of proportionality laid down in Article 54 of the Constitution. Protecting the health of the population is of paramount interest and, therefore, the restrictions imposed by Parliament on the protection of health are justified even if they affect the economic interests of individuals. Therefore, the measures and actions taken aim at protecting the health of citizens and, as a result, respecting national security.

Therefore, the principle of proportionality has been respected. Also, according to articles 12, 17 and 19 of the Law, following the examination of the Report of the Commission for Exceptional Situations, the Government adopted the decision to submit to the Parliament the proposal regarding the declaration of the state of emergency.This decision was immediately handed over to Parliament by the Prime Minister. In examining the Government's proposal, Parliament adopted the decision on declaring a state of emergency.

This indicates that the principle of separation of powers in the state has been respected. Therefore, based on the preamble of the Parliament Decision no. 49/2021, this decision was adopted pursuant to article 66 let. m) of the Constitution, of Article 19 of Law 212/2004 and taking into account the Report of the Commission for Exceptional Situations on the need to declare a state of emergency, the serious pandemic situation and the fact that the subject is related to state security and national interest. Therefore, the adoption of this judgment did not violate Article 73 of the Constitution.

The Parliament concludes that the Government Decision no. 43/2021 and Parliament Decision no. 49/2021 are in accordance with the constitutional provisions.

33. In the opinion presented by the President of the Republic it is mentioned that, according to Article 17 of Law no. 212 of June 24, 2004 on the regime of state of emergency, siege and war, the state of emergency is declared at the proposal of the President of the Republic of Moldova or the Government.

Although the adoption of the legislative act regarding the declaration of the state of emergency represents the prerogative of the Parliament, as the only authority invested in this sense by the Constitution and the infra-constitutional legal framework, this, in corroboration with the provisions of Law no. 212/2004, cannot be a discretionary one.

Therefore, from the analysis of the normative framework in the field of declaring a state of emergency, the state authorities exercise shared powers: the President of the Republic of Moldova and the Government have the power to propose declaring a state of emergency, and the Parliament has the constitutional and legal power to declare this state. Also, given that the state of emergency is declared by a decision of Parliament, the proposal to declare a state of emergency must be accompanied by the draft legislative act on its declaration.

This draft must include, exhaustively, the provisional measures to be put in place, the reasons for declaring the state of emergency, the restrictions imposed, the duration of the establishment, etc. In the present case, from the content of the Government Decision no. 43/2021, which proposed the declaration of the state of emergency, it results that the summary Government only referred to the report of the Committee for Exceptional Situations and decided to propose to the Parliament the declaration of this state.

Therefore, the necessary draft normative act was not submitted in the proper way. However, on 31 March 2021, Parliament considered in sitting both the proposal to declare a state of emergency, received from the Government, and the legislative initiative on the establishment of the state of emergency, submitted by a group of Members. Thus, Decision no. 49 of March 31, 2021. In this respect, the procedure for declaring a state of emergency was flawed. At the same time, the contested decisions do not correspond to the justifying requirements provided by article 13 of Law no. 212/2004, i.e. setting out and detailing the reasons for declaring a state of emergency and the urgent measures to be taken.

According to Article 20 of the Law, no measures have been taken that can be applied during the state of emergency, only general guidelines are indicated to the competent authorities to subsequently identify the necessary measures and restrictions. Respectively, the way in which the Legislature exercised its legal competence to declare a state of emergency goes beyond the constitutional provisions that state the principles of the rule of law and the separation of powers in the state.

34. In the opinion presented by the Center for Legal Resources of Moldova it is mentioned that, according to the Parliament Decision no. 49/2021, the state of emergency was not introduced at the proposal of the Government or the President of the Republic of Moldova, but based on the report of the Commission for Exceptional Situations. This commission does not have the legal power to propose a declaration of a state of emergency. This is sufficient to declare the judgment under discussion unconstitutional.

Also, the draft Parliament Decision no. 49/2021 was registered as an initiative of three deputies, but not as an initiative of the Government. At the same time, the contested decisions do not mention the concrete measures to be taken during the state of emergency and which could not have been taken without declaring the state of emergency.

Parliament did not in any way justify declaring a state of emergency for the maximum period allowed by law of 60 days. In fact, the Prime Minister himself, who pleaded in Parliament for the introduction of the state of emergency, later said that the establishment of the state of emergency for a period of two months was for political reasons.

Parliament also did not justify the need to introduce a state of emergency throughout the country. In its case law, the European Court has held that, even if the introduction of the state of emergency had been justified at the outset, it may no longer be justified after a certain period of time due to the change of situation (see Case A and Others v. United Kingdom [MC], 19 February 2009, § 177; Bas v. Turkey, 3 March 2020, § 224).

35. The opinion presented by the State University of Moldova states that a state of emergency is established in order to prevent or eliminate the consequences of a natural catastrophe or a technological accident that have the characteristics of a natural disaster or only if the usual constitutional measures are inadequate. In accordance with Articles 12 and 17 of the Law on the regime of state of emergency, siege and war, the state of emergency is declared by a decision of the Parliament at the proposal of the President of the Republic of Moldova or the Government.

The Government meeting is convened at the request of the Commission for Exceptional Situations. The procedure for submitting the proposal on declaring a state of emergency and the procedure for registering and voting in Parliament of this legislative initiative was carried out in violation of Article 103 of the Constitution, Article 15 para. (2) lit. a) of Law no. 136/2017, article 17 of Law no. 212/2004, as well as the jurisprudence of the Constitutional Court on the attributions and powers of the Government.

The proposal to declare a state of emergency is to come either from the Government or from the President of the Republic of Moldova. The resigned Government does not have the necessary powers to be able to propose the establishment of a state of emergency, in the context in which the Government can no longer be held politically accountable by Parliament. In this case, the Prime Minister participated in the plenary session of March 31, 2021, in which the Parliament voted to declare a state of emergency, only that he did not present the Government Decision no. 43/2021, but the draft decision of the Parliament no. 49/2021 submitted with the right of legislative initiative by a group of deputies.

Therefore, contrary to the provisions of Law no. 212/2004, the author of the draft decision of the Parliament regarding the declaration of the state of emergency was not the Government, but a group of deputies. The division between the structures of the state of the attributions regarding the declaration of the state of emergency aims at maintaining a balance of powers between the state authorities in order not to allow a possible abuse by one of the powers, as well as avoiding the situation in which the state of emergency is declared at the initiative of one of the powers.

Therefore, the Decision of the Parliament no. 49 of March 31, 2021 did not comply with the stages of the legislative procedure, because the President of the Republic of Moldova and the Government have the exclusive power to propose to the legislature the declaration of a state of emergency. Moreover, the legislature has assumed an exclusive attribution that does not belong to it.

The analysis of the draft decision, the report of the Committee on Legal Affairs, Appointments and Immunities and the information note on this draft do not show that any proposal from the Government was mentioned. At the same time, it is not clear the need to request the Interim Government to declare a state of emergency on the territory of the Republic of Moldova in order to obtain some additional responsibilities for the management of the pandemic that the Government itself cannot identify.

Parliament Decision no. 49/2021 and Government Decision no. 43/2021 do not contain provisions that would ensure that the proportionality test imposed by Article 54 of the Constitution is complied with. The conclusions from the Government Decision no. 43/2021 is based only on a general reference to the report of the Committee for Exceptional Situations.

Parliament Decision no. 49/2021 confers on the Government, the Commission for Exceptional Situations and other structures responsible for this field powers that are not justified by data or information that would describe a certain state and would link this state of affairs with the measures that can be taken to improve the state of things related to the epidemiological situation.

C. Findings of the Court

36. The Court notes that Parliament's Decision no. 49 of March 31, 2021 must meet the quality standard of the law, within the meaning of Article 23 of the Constitution. From the analysis of the text of the Judgment, the Court does not observe the violation of the requirements of the quality of the law.

37. The Court notes that it established in Judgment no. 17 of 23 June 2020 general principles applicable to the state of emergency. Among other things, the Court noted in that judgment:

„94. As to whether the balance of power in the state is changing in the context of the state of emergency, the Court notes that the Constitution does not provide many details on the state of emergency. The Basic Law stipulates that the Parliament declares a state of emergency, siege and war [article 66 let. m)], that the regime of state of emergency, siege and war is regulated by organic law [article 72 par. (3) lit. m)], that during this period the Parliament cannot be dissolved [article 85 par. (4)] and the Constitution cannot be revised [Article 142 para. (3)]. Thus, the Constitution does not expressly establish what follows after the declaration of a state of emergency, which authority is responsible for managing the state of emergency or what is the role of the Parliament, the President of the Republic and the Government during this period. Also, the Constitution does not stipulate whether the state of emergency, siege or war increases the attributions of one power in the state and diminishes the attributions of another power.

95. Therefore, in the absence of exceptions expressly provided for in the Constitution, the Court notes that both in ordinary situations and during a state of emergency, siege or war, the balance of power must be the same. The constitutional organization of the Republic of Moldova, based on the principle of separation and collaboration of branches of power in the state and the exact delimitation of the competences of public authorities involved in the exercise of state power, cannot be changed following the declaration of a state of emergency.

Even in these exceptional circumstances, the Constitution does not allow any derogation from this order and a fortiori does not allow the concentration of the branches of state power in a single authority. This clause was established by the constituent to prevent the emergence of dictatorship, given the country's historical past and the fact that most abuses are committed against the background of emergencies.

In the opinion of the Venice Commission, experience has shown that the most serious human rights violations tend to occur in the context of an emergency, or states may be predisposed, under the pretext of a state of emergency, to use their power to derogate. for other purposes or to a greater extent than is justified by the exigencies of the situation (Opinion No 359/2005 on the protection of human rights in emergencies, CDL-AD (2006) 015, § 12; Opinion No 838 / 2016 on the draft constitutional law of France “On the protection of the Nation”, CDL-AD (2016) 006, §§ 51, 71).

96. On the other hand, no provision of the Constitution can be interpreted as allowing the blocking of its institutions. Too restrictive an interpretation, severely limiting the possibilities for restoring constitutional order, would be an impediment to the functioning of democracy and the rule of law (see JCC No. 14 of 2 May 2017, § 188; JCC No. 28 of 17 October 2017, § 99; DCC No. 112 of December 4, 2017, § 25).

38. The Court notes that the declaration of a state of emergency is a prerogative which belongs exclusively to Parliament (Rule 66). m) of the Constitution]. At the same time, this competence must be exercised with caution, given the impact it has on the fundamental rights of individuals. First, in order to declare a state of emergency, Parliament must base its decision on data requiring urgent action by the authorities.

Secondly, the decision to declare a state of emergency must be a last resort measure, in response to an exceptional danger, which means that the usual measures or restrictions on the protection of safety, health and public order must be insufficient. The danger in question must be effective or imminent, and its effects must involve the whole nation to an extent that endangers its existence (see also the Venice Commission's Opinion on the draft Constitutional Law on the Protection of the Nation ”From France, adopted at the 106th plenary session (Venice, 11-12 March 2016), CDL-AD (2016) 006, § 27).

39. According to the Opinion amicus curiae no. 1020/2021 of 23 March 2021, CDL-AD (2021) 016), adopted by the Venice Commission, Article 1 para. (3) of the Constitution stipulates that “the Republic of Moldova is a rule of law, democratic [...]”. One of the central elements of the rule of law is legal certainty. Legal certainty does not preclude a change in the rules of the political process, but any such change must be made in a clear and transparent manner and not on an ad hoc basis.

Following that reasoning, it can be concluded that non-compliance with a precise rule laid down by Parliament's Rules of Procedure, without prior amendment of that rule, is contrary to the principle of legal certainty and is therefore unconstitutional. This logic allows the Constitutional Court to give direct effect to provisions ignored by Parliament in a particular case.

Consequently, although Parliament may have broad autonomy if it decides to explicitly amend Parliament's Rules of Procedure and does so through the appropriate procedure, the Constitutional Court may be stricter if Parliament simply ignores one of its own important rules at adoption of a law. Also, according to the Commission, the Constitutional Court can give effect to Parliament's Rules of Procedure, but only on condition that it can demonstrate that a breach of a provision of Parliament's Rules of Procedure would also amount to a breach of one of the fundamental constitutional principles on the law-making procedure. see §§ 34 and 39 of that Opinion).

40. With regard to compliance with the procedure for declaring a state of emergency, the Court notes that the Constitution does not provide Parliament with sufficient tools to independently collect information on possible dangers which could seriously affect the functioning of the State or the ordinary life of the population.

The competent authority to collect information on the real situation in the country, including information on possible social dangers and to assess the need to declare a state of emergency is the Government, which ensures the implementation of domestic and foreign policy and exercises general management of public administration (Article 96 para. . (1) of the Constitution], and the President of the Republic of Moldova if the need for a state of emergency is imposed, inter alia, by ensuring national security or public order [Articles 77 and 87 of the Constitution].

Thus, although Parliament may declare a state of emergency, this power becomes active when the need to declare a state of emergency is duly requested and motivated by the competent public authority. Otherwise, the provisions of Articles 1 para. (3), 6 and 73 of the Constitution.

41. At the same time, the Court notes that Parliament's power to declare a state of emergency is not unlimited. As this measure involves substantial limitations on fundamental rights, alters the social order and confers additional powers on the executive branch, the Court notes that Parliament must provide convincing reasons in its judgment. Parliament must justify the extent to which the ordinary powers of the executive are insufficient to overcome the crisis situation and, on the other hand, the extent to which the powers of the executive can be compensated for.

42. This obligation of Parliament results from the general constitutional obligation of the authorities to state reasons for their own decisions, which can be deduced from Article 54 of the Constitution and the standards of European constitutionalism, dictated by the culture of justification, in which every exercise of power must be justified.

43. Moreover, according to the Venice Commission, States have a margin of discretion in assessing whether there is an exceptional public danger and whether derogations are necessary. It is for the national authorities to determine, in the light of the gravity of the situation and taking into account all relevant factors, whether and when an exceptional public danger threatens the existence of the nation and whether a state of emergency must be declared in order to combat it.

Similarly, it is for the national authorities to determine the nature and extent of the derogations needed to overcome the emergency. However, although States enjoy a wide margin of appreciation in this area, their prerogatives are not unlimited […] (Opinion on the legal framework governing traffic restrictions at the 107th plenary session (Venice, 10-11 June 2016), CDL-AD (2016) 010, § 67).

44. In the present case, the Court observes that, in adopting the judgment under appeal, the Parliament relied on the draft judgment registered by Members. In the informative note of the draft decision, which occupies one page, reference is made to the rate of infection of the population with SARS-CoV-2 virus and to the Report of the Commission for Exceptional Situations of the Republic of Moldova. However, no arguments are offered to justify including the duration of the state of emergency, i.e. two months, according to Article 1 of the contested judgment.

45. Furthermore, the Court notes that, in declaring a state of emergency and extending the executive's powers to combat the pandemic, Parliament did not state the extent to which the executive's ordinary powers were insufficient to overcome the crisis and the extent to which the executive's powers could be compensated. in question.

46. ​​In addition, the information note does not contain a statement of reasons which reflects the standard of proportionality, for example, as regards the total prohibition on the holding of meetings, public demonstrations and other mass actions, provided for in Article 2 (5) of the judgment under appeal.

47. At the same time, the Court notes that when establishing a state of emergency, Parliament must not merely provide arguments relating to the restriction of fundamental rights once a constitutional procedure has been initiated which may be obstructed by the establishment of a state of emergency.

The Court emphasizes that the Basic Law must be read and respected in its entirety, and any Parliament's decision establishing a state of emergency must also refer to the constitutional proceedings initiated and directly affected by this measure, i.e. the procedure for dissolving the Parliament or the procedure for revising the Constitution.

48. The Court observes that, in the context of the declaration of a state of emergency by the Parliament, it had before it a complaint concerning the finding of the circumstances justifying the dissolution of the Parliament, lodged on 29 March 2021, before the adoption of the contested judgment of the Parliament.

The circumstance in question should have motivated the authors of the draft Decision to argue the greater weight of the purpose of establishing the state of emergency for a period of two months compared to the purpose of a possible dissolution of the Parliament. This argument had to refer to the insufficient nature of other legal measures, compared to the measures required by the state of emergency, to achieve the intended purpose.

49. The Court emphasizes that, if the usual legal measures are sufficient, there is no need to establish a state of emergency and to obstruct constitutional proceedings.

50. The Court notes that, from a constitutional point of view, the state of emergency is an exceptional situation. The exceptional nature requires appropriate reasons, and the establishment of the state of emergency derives its legitimacy from the reasons underlying it. The Court finds that there is no adequate reasoning in Parliament's judgment on the declaration of a state of emergency, in view of the obstruction of a possible dissolution of Parliament. Therefore, the judgment in question also infringes Article 85 of the Constitution.

51. Because the judgment of the Parliament was adopted in breach of the rules of procedure and because it does not meet the minimum requirement as to the quality of the statement of reasons for the decision to declare a state of emergency, the Court finds that it is contrary to (3), 6, 27, 40, 46 and 73 in conjunction with Article 54 and Article 85 of the Constitution.

For these reasons, based on articles 135 par. (1) letters a) and 140 of the Constitution, 26 of the Law on the Constitutional Court, 6, 61, 62 letters a) and 68 of the Code of Constitutional Jurisdiction, Constitutional Court

DECIDES:

1. The complaints submitted by Mr Octavian Țîcu, Mr Sergiu Litvinenco and Ms Veronica Roșca, Members of the Parliament of the Republic of Moldova, are partially accepted.

2. The Decision of the Parliament regarding the declaration of the state of emergency no. Is declared unconstitutional. 49 of March 31, 2021.

3. The notifications in the part referring to the Government Decision regarding the proposal for declaring the state of emergency no. 43 of March 30, 2021.

4. This decision is final, may 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                                                                                           Domnica MANOLE

Chisinau, April 28, 2021

HCC no. 15

File no. 81a / 2021