The Report on the compatibility of the legislation of the Republic of Moldova with the provisions of the European Convention on Human Rights
ARTICLE 1
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.
1. GENERAL CONSIDERATIONS
Article 26 of the Vienna Convention on the law of treaties of 1969 provides that "Every treaty in force is binding upon the parties to it and must be performed by them in good faith" - pacta sunt servanda bona fidae (The Convention entered into force for the Republic of Moldova on 25 February 1993). The States are bound to refrain from any act that may affect the object and the aim of the treaty.
This obligation bears a general character and being addressed to the State as a whole, in its capacity of international law subject, it is mandatory for all state authorities, notwithstanding their legislative, executive or judicial competence.
In order to enforce international treaties, the State firstly must not adopt laws or other type of regulations, contrary to the accepted conventional provisions, and in case of some eventual contradictions between its prior national legislation and the conventional norms, the obligation to do- i.e. to modify its domestic legislation in order to assure its appropriate compatibility, is incumbent on it. Meanwhile, the legislative body of the State shall complete if necessary the conventional provisions with domestic legislation.
In this regard, according to Article 8 of the Constitution of the Republic of Moldova:
"(1) The Republic of Moldova undertakes the obligation to observe the Charter of the United Nations and the treaties to which it is party to, to base its relations with other states on the unanimously acknowledged principles and the norms of international law.
(2) The entry into force of an international treaty, containing provisions contrary to the Constitution mush be preceded by a revision of the latter."
2. THE SCOPE OF THE ECHR
2.1 The application of the ECHR in time
Generally, according to the rule of non-retroactivity - "generally acknowledged international law principle" set under Article 28 of the Vienna Convention on the law of treaties from 1969, conventional provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty, unless a different intention appears from the treaty or is otherwise established.
Since one may not conclude from the text of the ECHR the retroactivity of its provisions, these become binding for the Republic of Moldova only from the moment of its entry into force. Meanwhile, in certain situations the application of the ECHR is possible even before its entry into force, for a certain State, such as, for instance in the hypothesis of interstate conflicts, where it is sufficient for the applicant State to have signed the Convention (application no. 788/60, Austria v. Italy).
The Convention is applied to the so called in progress situations, where the violation itself is committed before the entry into force of the Convention, but the violation or its consequences continue also after its entry into force for a certain party (De Becker v. Belgium, 1962; Loizidou v. Turkey, 1995).
If a State lodges a declaration by means of which it acknowledges the Court's authority, then this declaration shall have retroactive effect and shall apply from the moment of entry into force of the ECHR for this State. Nevertheless, there is the possibility to exclude the retroactive effect of the declaration, consequently, the acknowledgement of the Court's jurisdiction exclusively over the acts committed after the lodging of the mentioned declaration (Loizidou v. Turkey, 1995). The same thing is relevant for the declaration provided under Article 25 of the ECHR regarding the recognition of the Commission's authority (application no. 9581/81, X. v. France; application no. 9559/81, De Varga Hirsh v. France; Bozano v. France, 1986).
2.2 The subjects of the rights and freedoms acknowledged by the ECHR and the territorial application of the Convention
According to Article 1 of the Convention, the subject of the rights and freedoms defined by the Convention is "everyone" within "the jurisdiction" of the High Contracting Parties. The principle is equally applicable for the rights and freedoms defined by Protocols no. 1, 4, 6 and 7. The States party to the Convention must acknowledge these rights and freedoms not also to their own nationals, to those of other Contracting Parties, but both to the nationals of other states, which are not party to the Convention and to stateless persons (European Comm. HR, decision of 11 January 1961, application no. 788/60). In this sense, there is not necessary to exist a stable legal liaison such as citizenship, residence or domicile, since it is sufficient for the State to exercise certain prerogatives over the interested person. From this point of view, the ECHR, differing from classical international treaties, exceeds the framework of a simple reciprocity among Contracting States, creating objective obligations that benefit from collective safeguards (Ireland v. United Kingdom, 18 January 1978).
The term of persons "within the jurisdiction" of the Contracting Party extends over the actions of all state authorities, notwithstanding the fact if their acts have been committed on or outside the territory of the Contracting State. In this sense, one may assume the hypothesis that, from the point of view of the personal competence, the Contracting State is able to exercise its jurisdiction over its nationals which are abroad (Drozd and Janusek v. France and Spain,1992; Loizidou v. Turkey, 1995).
The general rule defined under Article 29 of the Vienna Convention on the law of treaties from 1969 prescribes that, a treaty is binding upon each party in respect of its entire territory. Taking into consideration that the ECHR provides that the rights and freedoms must be secured to every person "within the jurisdiction" of Contracting Parties, it results that a state, as is the case of the Republic of Moldova, cannot be responsible for the human rights violations committed on a territory over which it is not able to truly exercise jurisdiction. Article 63 of the Convention permits to exclude a certain part of a State's territory from the application of the Convention.
3. THE STATUS OF THE ECHR IN THE INTERNAL LEGAL ORDER OF THE REPUBLIC OF MOLDOVA
If we were to appraise the mechanism of practical application of international treaties in the internal legal order of the Republic of Moldova, we may state that it exists in the Republic of Moldova.
Therefore, among the regulations of the in force legislation relevant to this issue, we may quote, firstly, the constitutional ones. Article 4 of the Constitution reads as follows:
"(1) The constitutional provisions concerning human rights and freedoms shall be interpreted and shall be applied in conformity with the Universal Declaration of Human Rights, with convenants and other treaties to which the Republic of Moldova is party to.
(2) In case there are inconsistencies between convenants and treaties on fundamental human rights to which the Republic of Moldova is party to and its domestic legislation, priority shall have international provisions."
It is self evident that the term "its domestic legislation" mentioned in paragraph 2 of Article 4 of the constitution indicates doubtlessly that in the event of some contradictions between the ECHR with the provisions of the Constitution of the Republic of Moldova, priority shall be granted to the ECHR provisions. The direct application of the ECHR is possible also in the event of some flaws in the domestic legislation of the Republic of Moldova.
The solution based on the supremacy of the international law is suggested also by paragraph 2 of Article 8 of the Constitution, which read as follows:
"(2) The entry into force of an international treaty, containing provisions contrary to the Constitution mush be preceded by a revision of the latter."
The quoted provisions of para. 2 of Article 8 of the Constitution have to be interpreted as having a preventive role, meant to assure the coherence between the internal and international legal system, specifically, between the provisions of the Constitution and of international treaties, already before their entry into force for the Republic of Moldova.
The principle of supremacy of international law is set also by other legislative acts of the Republic of Moldova such as the Civil Code, the Code of Civil Procedure, Criminal Code, the Code of Criminal Procedure, the Family and Marriage Code, etc. It was also confirmed by point 3 of the Decision of the Plenary Session of the Supreme Court of Justice "On the application by the courts of law of some provisions of the Constitution of the republic of Moldova" no. 2 of 30 January 1996, which binds the courts of law:
"…in cases where the national legislation is contrary to the international act, to apply the provisions of the international act to which the Republic of Moldova is party."
The procedure to address notifications to the Constitutional Court of the Republic of Moldova by the Supreme Court of Justice, ex officio or at the request of courts of law of rising exceptional cases of unconstitutionality of normative acts, includes also "… international treaties to which the Republic of Moldova is party to, adopted after the entry in force of the Constitution."
Generally, an international treaty, as well as any other normative act, may not be mandatory for individuals ("enforceable") by constraint of the administration or by other individuals and may not be invoked in court, save under the condition to have been published as legally required. According to the provisions of the Law on the way of publication and entry into force of official acts no. 173-XII of 6 July 1994, the official publication of international treaties is prescribed to be performed exclusively in the Official Gazette of the Republic of Moldova.
In spite of the established rule, the application by the courts of law of an international treaty is not determined, according to the Decision of the Plenary Session of the Supreme Court of Justice of the Republic of Moldova aforementioned, by their official publication. . point 4 of this decision requires the verification by means of the Ministry of Foreign Affaires of the fact whether the treaty is in force.
In the event when the state does not exercise its function to publish official acts, the promotion of such a judicial practice, at least in the field of human rights, appears to be not only explainable, but also just.
On 24 September 1999 was passed the Law no. 595-XIV on international treaties of the Republic of Moldova, which presented an appropriate development of constitutional provisions in the matter of international treaties, especially, in what concerns the establishment of a clear mechanism for their application. Article 1 para. 2 (Scope) of this law reads as follows:
"…(2) The initiation, negotiation, signing, entry in force, application, suspension, denunciation or termination of international treaties to which the Republic of Moldova is party to shall be performed according to the international law rules, to the Convention on the law of treaties (Vienna, 1969), the Constitution of the Republic of Moldova, the present law, as well as according to the provisions of the treaties."
CONCLUSIONS
It is self evident that there are no difficulties in applying the ECHR in the internal legal order of the Republic of Moldova, including the event when its provisions are contrary to "the domestic legislation".
Article 2
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
a) in defense of any person from unlawful violence;
b) in order to effect a lawful arrest or to prevent the escape of a person unlawfully detained;
c) in action lawfully taken for the purpose of quelling a riot or insurrection.
Death penalty shall be abolished. No one shall be condemned to such penalty or executed.
Article 2 of the ECHR declares the right to life and regulates in the meantime the accepted limitations to this right. Paragraph 1 of this article refers with certainty to one of the most fundamental human rights.
The Convention binds the State to protect the right to life by law. Deriving from the structure of the article, we may draw the conclusion that it does not constitute an obligation to protect life of every person from any danger, but it sooner pursues that a person not to be deprived of life by an illegitimate act of an official person.
We deem appropriate to examine the following issues within the right to life: capital punishment, euthanasia, and abortion; the limitations permitted to be brought to the right to life, particularly, the use of force.
The right to life is enshrined in the Constitution of the Republic of Moldova. Paragraph 1 of Article 24 reads:
"The State shall guarantee to each person the right to life and to physical and psychical integrity."
Among legislative measures meant to assure the exercise of this right, the provisions of the Criminal Code of the Republic of Moldova (Articles 88-93) are of high importance, since they regulate criminal liability for murder. Meanwhile, the Parliament of the Republic of Moldova has abolished the death penalty, has forbidden euthanasia and has regulated issues related to abortion.
Paragraph 1 of Article 2 of ECHR justifies the application of such a penalty in case of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
Article 2 of the ECHR was amended by Protocol no. 6 on the abolition of the death penalty.
The Parliament of the Republic of Moldova has passed on 8 December 1995 the Law no. 677-XIII on the modification and amendment of the Criminal Code, of the Criminal Procedure Code and Criminal Sanction Enforcement Code, according to which death penalty was abolished. This sanction was commuted with life detention. De facto, death penalty ceased to be enforced in the Republic of Moldova still in 1990.
The Law no. 351-XV of 12 July 2001 amended para. 3 Article 24 of the Constitution of the Republic of Moldova and at the present moment it reads:
“…(3) Death penalty shall be abolished. No one may be convicted to such a sanction not executed unless for acts committed in war time or in case of imminent jeopardy of war, only under the terms of the law.”
This amendment of Article 24 has completed the process of bringing the legislation of the Republic of Moldova in line with the requirements of Protocol no. 6 of ECHR.
EUTHANASIA
In the Republic of Moldova the issue of euthanasia is regulates under the Law on health protection no. 411- XIII of 28 March 1995. Paragraph 1 and 2 of Article 34 of this law reads the following:
“(1) The patient’s request to terminate his life by medical means (euthanasia) may not be satisfied.
(2) The medical equipment maintaining the patient’s life in extreme cases may be disconnected only after ascertaining his biological death.”
Therefore, the Moldovan legislator considers that the decease of a person occurs once with his cerebral death. The actions of a doctor granting the patient assistance in terminating his life may be qualified as deliberate murder and shall fall under the incidence of the Criminal Code of the Republic of Moldova depending on the manner in which the patient’s life was terminated.
We consider the legislative regulations of the Republic of Moldova, as well as of the medical practice in this field to be according to Article 2 of the ECHR.
ABORTION
Within the framework of the right to life, the issue concerning the moment when life begins is extremely controversial.
The Convention refers to the “everyone’s right to life” without defining the term “everyone”. Up till the present moment, this term was clearly defined neither by the European Court of Human Rights nor by the European Commission. The doctrine and the practice of different states in this field still stays controversial.
If we were to take into account the rights of unborn children, acknowledged by state’s legislation, for instance in terms of succession rights, then we should consider the contradiction arising in cases when the right to life of an unborn child is counter balanced by the obligation to protect mother’s life.
At least from this point of view, Article 2 of the Convention should not be interpreted as an absolute prohibition of abortions. Meanwhile, examining the right to life of an unborn child, there must be taken into consideration the mother’s right to a decent life, which depend especially on the economical situation in the republic of Moldova and on the demographical situation.
In the legislation of the Republic of Moldova, abortion is regulated under the Law on health protection.
Article 32 of this law reads:
“(1) Women shall be entitled to decide personally on the issue of motherhood.
(2) The actions directed towards the termination of the pregnancy may be performed during the first 12 weeks of pregnancy only in public medico-sanitary unit.”
At the present moment, abortions are performed under the terms set in the Order of the Ministry of Health no. 152 of 3 August 1994.
The provisions of this order permit the termination of the pregnancy during the first 12 weeks, and during the during the period of 12-27 weeks – only if the mother has syphilis (de facto this provision is applicable in case of AIDS) or if it is ascertained that the fetus has certain pathologies, which would not permit him to live after birth.
After 27 weeks, it is possible to induce labor, which in fact would lead to fetus’ death, save exceptional cases when the childbirth may jeopardize mother’s life as established by medical indications.
Mother’s consent is required for the forced termination of the pregnancy.
While drafting regulations concerning termination of pregnancy, two aspects were taken into consideration:
- technical possibilities existing in the Republic of Moldova, which do not allow performance of abortions after the expiry of 12 weeks of pregnancy, without the risk of causing irreversible injuries to mother's health;
- physiological aspect of the human organism, according to which, the fetus born after 22 weeks theoretically can live.
CONCLUSIONS
We consider that the regulations existing in the field of capital punishment, euthanasia and abortion do not contravene Article 2, paragraph 1 of ECHR.
PERMITTED LIMITATIONS ON THE RIGHT TO LIFE
Limitations admitted by ECHR to the right to life refer especially to the case of the use of force.
Paragraph 2 of Article 2 of ECHR provides three exceptions when the right to life may be restricted. These exceptions, according to the European Court and Commission are exhaustive and are admissible when the use of force is absolutely necessary.
In every case of the use of force it should be strictly proportional to the authorized pursued aim. Proportionality, in compliance with the Commission's jurisprudence, is assessed depending on the nature of the aim, degree of danger to human lives and bodily integrity, inherent to the situation and the severity of the risk of the use of force to cause victims. According to ECHR deprivation of life for the protection of goods is considered as contrary to Article 2 of ECHR.
The Commission held that "the text of Article 2 as a whole proves that paragraph 2 does not define situations when it is admissible to intentionally cause death, but it, however, describes when it is possible to use the force that might lead to causing involuntary death. Thus, the use of force should be absolutely necessary in order to reach one of the objectives enshrined in sections a), b) or c)" (see application no.10444/82, Stewart v. United Kingdom, July 10, 1984).
In the case of Mecca and Others v. United Kingdom no.17/1994/464/545 from September 27, 1995, the Court held that "the term of absolutely necessary, provided in Article 2, paragraph 2 points out that it is necessary to use a severer criterion of necessity to determine whether the intervention of the State was necessary in a democratic society, as set forth in Articles 8 and 11 of ECHR. The used force should be proportional to the aims mentioned in sections a), b) and c) of Paragraph 2, Article 2 of ECHR."
Article 13 of the Republic of Moldova's Criminal Code defines the legitimate defense and therefore provides:
"It shall not be qualified as a criminal offence the deed, which, although meets the elements of a criminal offence, provided in the Special Part of this Code, was committed in legitimate defense, meaning pursuing the defense of the Republic of Moldova's interests, public interests, interests of a person or the rights of the person defending himself or of another person from a socially-dangerous attack, by casing an injury to the attacking person if the limits of the legitimate defense are not exceeded.
Excession of the legitimate defense limit shall be considered the obvious non-compliance of the defense with the nature and danger of the attack."
This legal provision referes not only to the relations existing between the State and its citizens, bu to mutual relations among individuals in general.
The doctrine, while commenting on the cases of the use of force in order to effect a lawful arrest or to prevent the escape of a person lawfully detained, points out that the use of arms to effect an arrest or to prevent an escape can not be performed with intention kill. Death might be caused under such circumstances only as an involuntary consequence as a result of the use of arms. However, the person against whom force is used must represent a real danger to the society and the criminal offence he's charged with, must be of increased severity.
Comments on autorization to cause death "in action lawfully taken for the purpose of quelling a riot or insurrection" underline that the authorities for the mainetance of public order, when using special means (arms inclusively), should act in self-defense (legitimate defense). For these reasons, paragraphs 2 (c) and 2 (a) of Article 2 correlate and mean that these authorities must find themselves in extremely severe situations, entailing the risk of causing considerable damages to people or goods.
In the Republic of Moldova there are a series of normative acts regulating the manner of the use of force by state authorities:
1. Law on police, from December 18, 1990, no.416-XII;
2. Law on control over indidual arms, from May 18, 1994, no.110-XIII;
3. Criminal Sanctions' Enforcement Code;
4. Law on state security bodies, from October 31, 1995, no.619-XII;
5. Law on the Republic of Moldova's state borders, from May 17, 1994, no.47-XIII;
6. Law on the non-state activity of detection-protection, from April 12, 1994, no.47-XIII;
7. Rules on the sale, acquisition, storage, bearing, use and transportation of individual arms and ancillary munition, aproved by the Republic of Moldova's Governmental Decree no.44 from January 18, 1995;
8. Provisional Regulation of the Financial Guard of the Republic of Moldova, approved by the Republic of Moldova's Governmental Decree no.225 from April 2, 1992.
The Law on police provides the following manner of the use of fire arms:
Article 17
"Police officers shall be entitled to hold, bear permanently and use fire arms.
The fire arm shall be used as an exceptional measure by the police officers in the following cases:
to defend citizens and for self-defense against assaults representing a real danger to their lives and health, as well as to prevent capturing by violent means of a fire arm;
to counteract an assault in group or an armed assault on police officers, other persons in the exercise of their duty or in the exercise of a public duty pusuing maintenance of public order and fighting against criminality, as well as to counteract assaults jeparizing their life and health;
to release hostages, if their life and health is endangered;
to counteract an assault in group or an armed assault on strategicly guarded objetcs, on dwellings and constructions of the citizens, on premises of public authorities, public organizations, enetrprises, institutions and organizations, if there is a real danger to the life and health of persons frominside, to counteract assaults on military and on-duty staff of the police stations;
to apprehend individuals opposing armed resistance or who were caught red-handed while committing a severe criminal offenece, or the offeneders escaping from arrest, as well as armed individuals who refuse to comply with the lawful request of dropping the arm, when it is impossible to break the resistance or to apprehend the offender by other way and means.
As assault to personal security of the police officer, aside with other actions, there shall be qualified also the approaching of the offender closer than 3 meters from the police officer, after warnining him to stop.
Shooting at the target shall be considered as application of an arm.
Police officers may use the arm to give an allarm signal, or to call for backup, to shoot an animal threatening the life and health of people
The arm may be used without warning in case of sudden assault, assault using combat techniques, transportation means, air crafts, fluvial vessels, in case of hostages' release, escape from arrest bearing an arm or with means of transportation, as well as escape from transportantion means during their movement.
It is prohibited to apply and use arms when this may affect other individuals.
In all the cases when the fire arm is used, the police officer has the duty to take all the possible measures to ensure the security of the citizens, so that the damage of their health, honor, dignity and goods is as limited as possible, as well as to grant emergency medical assistance to the victims. "
Article 14 of the same law provides that the application of fire arm should be anticipated by a warning reagarding the intention of applying it and granting of sufficient time to get a feed-back reaction, save for the cases in which the delay in the application of the fire arm might generate a direct danger to the life and health of citizens and of the police officers or which may bring about other severe consequences.
Concomitantly, it is provided that the fire arm shall no be applied against women, minors, aged persons, as well as against persons with obvious physical deficiencies, except for the cases when they commit an armed assault, oppose armed resistance or assault in group, threatening the life and health of people, if these actions can not be rejected by other way and means.
Regardless the fact that law establishes the cases when fire arms may be used by police officers, it nevertheless does not provide same restrictions for the use of arms as for the use of force, which is also regulated in Article 14 and which provides that in all the access when the use of force may not be avoided, the police officers have the duty to try to bring as limited damage as possible to the health, honor, dignity and goods of the citizens. Thus, it is not stipulated the principle that the arm may not be used with the intention to kill and that the death caused to a person must be unintended.
The rest of the normative acts quoted above, regulating the use of force and the use of fire arm provide similar conditions of the application of arm as the Law on police.
The Law on control over individual arms regulates more detailed the proportionality of danger and the fact that at the application of an arm it is necessary to cause as little damage as possible to the assaulted person.
CONCLUSIONS:
Considering the above-mentioned, we believe that the Republic of Moldova's legislation is, in principle, compliant with the provisions of Article 2, paragraph 2 of ECHR, which provides the admissible limitations of the right to live.
No one shall be subjected to torture or to inhuman or degrading treatment or puishment.
I. GENERAL CONSIDERATIONS
Article 3 refers to the prohibition of torture and of various forms of inhuman or degrading punishment or treatment. The rights protected under this article relate directly to an individual's personal integrity and human dignity.
Article 3 cover any act by which a person is deliberately caused severe physical or mental pain or sufferings, which has a purpose, such as the obtaining of information or concessions, or the infliction of a punishment for an act this or another individual have committed, to intimidate or exercise pressure over a third person, or for any other reason based on some form of discrimination, regardless which one, when such pain or suffering is caused by an official person or any other person acting in official capacity, or upon the instigation or with the explicit or implicit consent of such a person.
The criteria allowing to determine whether this right was breached present an incresed level of subjectiveness. The Commission and the Court interpreted these three essential concepts of Article 3 based on the degree of severityof particular treatments or punishments. For each of these notions, the Court and Commission defined the standards in two inter-State cases.
In the case of Denmark, France, Noeway, Sweden and the Netherlands v. Greece (the Greek case, 1969), the Commission distinguished the degrees of prohibited conduct as follows:
"Torture - inhuman treatment which has a purpose, such as the obtaining of informetion or concessions, or the infliction of a punishment.
Inhuman treatment or punishment - such treatment as delibertely causes severe sufferings, mental or physical, which, in the particulr situation, is unjustifiable.
Degrading treatment or punishment - treatment that grossly humiliates him before others or drives him to act against his will or his conscience."
In the case of Ireland v. the United Kingdom (1978), the Court slightly changed the standards:
"Torture - deliberate inhuman treatment causing very serious and cruel suffering.
Inhuman treatment or punishment - the infliction of intense physical and mental suffering.
Degrading treatment or punishment - ill-treatment designed to arouse in victims feelings of fear, anguish and inferiority capable of humiliating an debasing them and possibly breaking their physical or moral resistance."
The Court in Ireland c. the United Kingdom (1978), provided more comprehensive criteria to be considered when evaluating whether a State practice violates one of the provisions of Article 3. Listing such factors as sex, age and state of health of the victim,it noted that a given practice must reach a minimum level of severity in order to constitute a violation this article. For example, the Court stated that the term "degrading" does not mean merely disagreable or uncomfortable. Howerver, it went beyond the view expressed by the Commission in the Greek case (1969) by declaring that acts performed in private as well as before others could be degrading to the individual victim.
In order to qualify and evaluate a given case fin order to establish the presence of the elements of torture, inhuman punishment or treatment, it is necessary to know to what extent the person had suffered during the exposure to such treatment, as well as afterwards, therefore, to take into consideration the consequences of treatment as well.
In the case of Tyrer v. the United Kingdom (1978) the Court decided that "the suffering occasioned must attain a particular level before a punishment can be classified as "inhuman" within the meaning of Article 3". At the same time, the Court held that because any punishment involves dgrading elements, especially "the nature and the context of the punishment as such, the manner and method of its execution".
The inhuman or degrading treatment can be both physical and mental. The Commission stated that "the mental suffering leading to mental disorders falls under the scope of the prohibited treatment of Article 3 of the Convention" (application no.8978/80, X v. the Netherlands).
According to Article 15, paragraph 2 of the Convention, no derogation from Article 3 shall be admitted.
Article 24, paragraph 2 of the Republic of Moldova's Constitution are in total compliance with Article 3 of the Convention:
"(2) No one shall be subjected to torture or to inhuman or degrading treatment or puishment."
Violations of such nature, depending on the degree of severity, consequences caused and other circumstances, are sanctioned in the Republic of Moldova according to the respective articles of the Criminal Code. Particularly, such violations fall within the scope of Chapter II of the Code, dealing with criminal offences against life, health, freedomand human dignity. For example:
"Article 95
Severe deliberate injuring of the physical integrity, which is dangerous for life or have caused the loss of the eyesight, hearing, speaking ability organ or of another organ or the loss of its functioning, a mental disorder or another injury of health, accompanied by the stable loss of at least one third of the labor capacity, termination of pregnancy or irreversible mutilation of the face -
Shall be punished with deprivation of liberty for a term of three to ten years.
Severe deliberate injuring of the physical integrity, which caused the death of the victim, or was committed by means of torture, or was the result of systematic injuries, even if unsignificant, of the physical integrity, or was committed against a person in relation to the fulfillment by this person of his professional or public duties, -
Shall be punished with deprivation of liberty for a term of five to fifteen years.
The actions provided in this article, if committed by an extremily dangerous recidivist, -
Shall be punished with deprivation of liberty for a term of eight to twenty five years.
Article 96
Deliberate injuring of the physical integrity, which is not dangerous for life and have not led to the consequences provided in Article 95 of this Code, but which caused a lengthy affection of health or the loss of less than one third of the labor capacity -
Shall be punished with deprivation of liberty for a term of up to three years or fine amounting to fifty minimal wages.
Same actions, if committed by means of torture or against a person in relation to the fulfillment by this person of his professional or public duties, or by an extremily dangerous recidivist, -
Shall be punished with deprivation of liberty for a term of up to five years. "
Article 101/1 of the Criminal Code offers the following definintion of torture:
"Acvtions by which an individual is deliberately caused serious pain or sufferings, physical or mental, especially for the purpose of obtaining of information or concessions, or the infliction of a punishment for an act this or another individual have committed, to intimidate or exercise pressure over a third person, or for any other reason based on some form of discrimination, regardless which one, when such pain or suffering is caused by an official person or any other person acting in official capacity, or upon the instigation or with the explicit or implicit consent of such a person, except for the cases when the pain or sufferings result exclussively from Lawful sanctions, inherent to such sanctions or occasioned by them -
Shall be punished with deprivation of liberty from three to seven years."
Article 193 of the Criminal Code provides:
"Coercion by threatenings or other illegal acts to generate depositions during interrogation or coercion of the expert to give hisconclusion,or coercion of the translator to make a wrongfull translation, by the person conducting the criminal enquiry or investigation -
Shall be punished with deprivation of liberty up to three years.
Same actions, if accompanied by acts of violence on an individual or his humiliation -
Shall be punished with deprivation of liberty from three to ten years".
1. ILL-TREATMENT OF THE DETAINEES
Most cases of violation of Article 3 referred to the Court and Commission, regard detainees.
From the text of the article it may be inferred that no one may be subjected to inhuman treatment, regradless the fact whether he is free or imprisoned. Most violations of this kind were concerned with detainees. The detainees face a great danger of being subjected to inhuman treatment. To determine if a treatment is obviously inhuman, the Court, ruled in its judgement (case of Ireland v. the United Kingdom, 1978) that "the ill-treatment should reach a minimum level of severity, to qualify as a violation of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as duration of treatment, physical or mental consequences and, in some instances, the sex, age and health state of the victim."
In some cases, the use of severer measures for security reasons and the restriction of individual freedoms may be justified as far as detainees are concerned, if they represent an increased danger or risk to escape. In every single case one should consider the proportionality between security reasons and individual freedoms (application no.8463/78 Krocher and Moller v. Switzerland). The Commission found that the isolation in lock-up combined with complete social isolation amounted to inhuman treatment, which may not be justified by security risks (application no.7572/76 and 7587/76, Ensslin, Baader and Raspe v. Germany). In a similar manner it is possible to approach, under Article 3, the effect of detention on the health of the detainee and the issue of medical assistance in prison. The use of force against the detainee is regualted by Articles 2 and 3 of the Convention. The use of fire arm or special equipment by an official person was earlier touched upon in the context of Article 2.
Article 20 of the Criminal Code of the Republic of Moldova provides:
"Sanction is not just a punishment for the committed criminal offence, it also pursues the correction and re-education of the convicted in the spirit of honest attitude towards work, strict obedience to the laws, as well as prevention of committing of new criminal offences both by the convicted and by other persons. The sanction shall not pursue causing of physical sufferings or humiliation of human dignity".
Article 21 provides the categories of punishments for committing of criminal offences, excluding any kind of corporal punishment:
"Individuals who have committed criminal offences shall be imposed one of the following main sanctions:
1) deprivation of liberty;
(section excluded by the Law no.205-XIV from 25.11.1998)
3) deprivation of the right to exercise certain positions or a certain activity;
4) fine;
5) dismissal;
6) public reprimand.
Active in-service military men may also be applied as sanction the transfer to a disciplinary batallion.
Beside main sanctions, the convicted may also be imposed complementary sanctions:
1) confiscation of property;
2) demotion of the military or special rank
3) withdrawal of parental rights.
Deprivation of the right to exercise certain positions or a certain activity, dismissal and fine may be imposed both as main and as complementary sanction.
According to Article 23 of the Criminal Code, the sanction of deprivation of liberty "shall be imposed for a term of three months to fifteen years and for extremely severe criminal offences, for criminal offences with extremely severe consequences and for extremely dangerous recidivists, when provided by the Special Part of this Code, - for a term of up to twenty five years. In cases provided by the Special Part of this Code, life imprisonment may also be applied. In case of commutation of the life imprisonment with a milder sanction, as an act of pardon, deprivation of liberty for twenty five years shall be imposed ".
Enforcement of criminal sanctions as well as the protection of the legitimate rights and freedoms of the detainees in Moldova is regulated by the Criminal Sanctions Enforcement Code. The deprivation of liberty is defined as being the holding of the person in a penitentiary institution on the grounds and according to the procedure determined by the legislation. The aim of the deprivation of liberty is to limit the person's freedom of action and to observe the conduct of the detainee according to the requirements of the law. Limiting the freedom of detainee's actions and controlling his conduct do not undermine the relationships and positive social contacts with the society, including with members of his family, relatives and other close persons.
Article 10 of the Criminal Sanctions Enforcement Code provides for the following:
"(1) The manner and the conditions for the enforcement of the sanction and the non application of a conditional sanction shall be established based on the principle of respect for legitimate rights and interests of the detainee, of his human dignity.
(2) At the enforcement of the sanction and at the application of other criminal law measures, the infliction of physical sufferings and insults to the human dignity of the detainee shall be inadmissible.
Torture, coercive medical or other type of treatment capable to damage of health of the detainee are prohibited".
Article 68 of the Criminal Sanctions Enforcement Code indicates detention regime and its main requirement sets forth the following:
"(1) The established regime in the penitentiary represents the manner of enforcing the custodial sentence, that creates conditions for the application of other educational means.
(2) The main requirements of the detention regime are: isolation of detainees, their constant surveillance in order to exclude the possibilities of committing new crimes and other anti-social offences; control over the exact and strict fulfillment of their obligations, ensurance of their legitimate interests and rights, security of the detainees and personnel, separate detention for different categories of detainees, determined by the law, distinct detention conditions deriving from the character of the committed offence and social danger, personality and conduct of the detainees, change of the detention conditions proportional to the reeducation degree.
(3) The penitentiaries shall have an internal order strictly regulated by the statute.
(4)For the purpose of ensuring respect toward the internal order in the penitentiaries, searches shall be allowed.
(5) The administration of the penitentiary institution is entitled to control the objects and the clothes of the persons entering and going out in the penitentiaries, consequently the persons have access to the territory of the unit where the detainee works.
(6) The statute shall regulate a list of objects the detainee may dispose of. The detainee may not have other valuable objects or money except for those indicated in the list. In case valuable objects or money are discovered with the detainee, they shall be confiscated and transmitted to the benefit of the penitentiary according to a decision issued by the prison chief ".
In conformity with article 93 of the above-mentioned Code, the detainee who violated the enforcement regime of the custodial sentence may be subject to the following sanctions:
- warning or reprimand;
- the non scheduled duty to maintain of cleanliness in the rooms and on the territory of the penitentiary;
- deprivation of the right to receive parcels and current food packages;
- interdiction to buy food stuffs during a month;
- a fine amounted to the earnings gained in 7 days of work;
- return to the initial conditions of the detainee transferred back from common and resocialisation conditions;
- the transfer to the disciplinary isolation unit of the detainee from the correction colony;
- incarceration for a 15 days period with or without labor or training of the detainee;
- the transfer of the male detainees, who fraudulently violate the sanction enforcement regime from the correction colony - to cell rooms for a term of up till 4 months while for those from the prisons - in cells for a term of up till 6 months;
- the transfer of the female detainees who fraudulently violate the sanction enforcement regime - to cell rooms for a term of up till 3 months. The detainee transferred to the disciplinary isolation unit or to a lock-up may be applied any sanction, except for the repeated transfer to the disciplinary isolation unit or lock -up. The female detainee who has a baby child with her or is exonerated from labor due to the pregnancy may not be transferred to the disciplinary isolation unit, lock-up or to a room cell. "
Taking into account the Article 95 of the same Code at the application of sanctions one observes the circumstances when the violation was committed and the conduct of the detainee till the moment of breach. The sanction applied should correspond to the seriousness and character of the offence.
Chapter XII of this Code regulates the application of physical force, of special means and the fire arm with regard to the detainees sentenced to the deprivation of liberty. Article 99 of this chapter sets forth the conditions and the limits of physical force, special means and fire arm application. Article 100 regulates the physical force and special means application by the personnel staff of the penitentiaries:
"(1) In case of non submission of the detainees to the personnel of the penitentiary, when the detainees are furious, participate in groups at the violation of the detention regime, mass disorders, take control over transportation means or other similar actions, assault those from the surrounding as well as in cases of escape or when are ground to suppose that the detainee intends to escape or to commit other illegal actions, that he can harm others or himself as well as at the apprehension of those escaped from the penitentiary, the application of physical force or other means of combat or special means (handcuffs, binding facilities, rubber and plastic sticks, tear gas, audio-visual devices for the psychological influence, means for hindrance removal, devices for the forced opening and blocking of cars, fire vehicles with support barrels, watchdogs etc. as well as armored cars and other means of transportation and devices of the Ministry of Interior) shall be applied".
(4) In case the detainee is inflicted severe or less bodily harm, an act of physical force and special means application shall be drawn up.
(5) In all the cases when the application of physical force or other special means may not be avoided, the staff of the penitentiary is obliged to do everything possible to cause the smallest damage to the health and goods of the detainee, as well as to offer urgent medical assistance to the victims."
The Law on the penitentiary system no. 1036-XIII from December 17 1996 offers to the official persons from penitentiaries powers "to apply toward the offenders influencing and coercive measures provided for by the legislation" (Article 11 par.3). Concurrently the Law obliges the staff of the penitentiary system "to respect the norms of professional ethics, to have a human attitude toward the indicted and detained persons, to treat them respectfully, not to prejudice their personal dignity, to fulfill their legitimate claims" (Article 20 par. 1, letter a).
TREATMENT OF THE MILITARY MEN
According to the Disciplinary Regulation of Armed Forces adopted by means of the Law no. 776-XIII from March 13, 1996, when servicemen infringe upon the military discipline or public order they may be disciplinary sanctioned. The types of disciplinary sanctions depends upon the category of military men.
The following disciplinary sanctions may be applied to in service military men: warning, reprimand, severe reprimand, non granting of the permit from the unit, non scheduled duty appointment, a 10 days arrest, demoting from the position, reduction to a lower rank, removal of the sergeant rank (Article 46).
The following disciplinary sanctions may be applied to contract based military men: warning, reprimand, severe reprimand, arrest (except for female military men) up till 10 days, warning about the partial non compliance with the position, one step demotion from the position, reduction to a lower rank (Article 61).
All sanctions are applied on the basis of an order issued by the commander, who are specified, depending on the type of sanction that has to be applied and the military rank.
The military sanction should comply with the seriousness of the breach and the level of guilt. While determining the type of sanction on shall take into account the nature of breach, the circumstances when committed, its consequences, the prior conduct of the guilty person, as well as the working tenure and the his knowledge related to the service order (Article 74).
The arrest is one of most severe measures of influence and is applied as a rule, when other measures do not bring the expected result (Article 83).
4. PROTECTION OF CHILDREN FROM CORPORAL
PUNISHMENT
The Court has forbidden by virtue of its decisions the corporal punishments in schools, (cases Turkey v. United Kingdom, 1978, and Campbell, Cosans v. United Kingdom, 1982).
The legislation of the Republic of Moldova does not provide any corporal punishment neither for criminal actions, nor for other actions of any nature. Acts of violence against the person, including those against the children are sanctioned in compliance with the Criminal Code.
Children are protected by the Law on the children's rights no. 338-XIII from December 15, 1994. The Law guarantees the rights of the child to "physical and psychic inviolability ", directly stipulating: "No child shall be subject to torture, cruel, inhuman or degrading punishments" (Article 4 par. 1 and 2). The State protects the inviolability of the personality of the child, protecting him from any form of exploitation, discrimination, psychic and physical violence, non admission of the brutal, cruel and offending behavior, insults or harassment, involvement in criminal actions, initiation in alcohol consumption, illicit usage of drugs and psychotropic substances, gambling practices, begging, incitement or coercion to practice any illegal sexual activity, exploitation for the purpose prostitution or any other illegal practices, pornography or other materials of pornographic nature, including those coming from parents or surrogate legal guardians, relatives (Article 6). Every child is guaranteed the protection of his dignity and honor. (Article 7).
Any violation of the above mentioned provisions, depending on their seriousness entails criminal, administrative or disciplinary liability.
EXPULSION AND EXTRADITION
Expulsion and extradition of individuals may be considered under the umbrella of the compartment dealing with inhuman and degrading treatment. The Convention does not oblige the State to facilitate the foreigners or stateless persons the entrance into the country, neither does it prescribe to offer them political asylum. But deriving from the case law of the Commission one ca draw the conclusion that expulsion or extradition of a person may be regarded as a violation under the Article 3, in case this endangers the life and the health of the respective individual (Appl. No. 8088/77 v. Netherlands), or if the person has been separated from another person or group of persons attached by close connections with them. The fact of eventual criminal charges does not prohibit by itself the expulsion or the extradition of the person, except for the cases when it refers to false accusations.
In the case Soering v. United kingdom (1989) the Court found a violation under the Article 3, for, the detainee charged with murder could have been convicted to capital punishment if he had returned in the USA. The Court has also stated that the time before the enforcement of the capital punishment within a long term detention period ("the death row phenomenon") has infringed upon the right of the detained person in compliance with Article 3. In each individual case one should take into consideration the surrounding of the person convicted to death, as well as the expectation period for the enforcement of the sentence, age and the psychic state at the moment of committing the crime.
The Article 17 paragraphs (3) and (4) of the Constitution of the Republic of Moldova stipulates that "no citizen of the Republic of Moldova can be extradited or expelled from the country", while "foreign or stateless citizen may be extradited only in compliance of an agreement or under conditions of reciprocity or on the ground of a Court of Law decision".
The requirements for the entrance, exit and presence of foreigners and stateless persons on the territory of the Republic of Moldova are regulated by means of the Law on exit and entrance in the Republic of Moldova no. 269-XIII from November 9, 1994, Law on the legal status of foreign citizens and stateless persons in the Republic of Moldova no.275-XIII from November 10, 1994, as well as by the Regulation on the presence of foreign citizens and stateless persons in the Republic of Moldova approved by means of the Governmental decision no. 376 from June6, 1995.
The Article 23 Law on the legal status of foreign citizens and stateless persons in the Republic of Moldova provides the following:
(l) Foreign citizens and stateless persons may be expelled from the Republic of Moldova if:
a) their entrance and presence in the country are carried out infringing the legislation in force;
b) their presence on the territory of the State endangers the national security, order, health or public morals
(2) Foreign citizens and stateless persons may be extradited only on the grounds of an international Agreement or on conditions of reciprocity based on a decision delivered by a Court of Law.
In accordance with the above mentioned Rules "Expulsion of foreign citizens from the Republic of Moldova shall be performed by the internal affairs bodies on the ground of a Court decision" (p.61).
The right to asylum of foreign citizens and stateless persons in the Republic of Moldova is guaranteed by Article 19 of the Constitution noting that "the right to asylum shall be granted and denied under the Law in compliance with international treaties Republic of Moldova is a party to". For the purpose of coordinating the problem of the asylum seekers and refugees and in order to regulate the presence of these persons on the territory of the Republic of Moldova in terms of cooperation in this area with international specialized bodies and insurance of the temporary institutional provisions of international normative acts where the Republic of Moldova is a party to the Government of the Republic of Moldova adopted the Decision no. 185 from 03.03.2001 on coordination and monitoring the problems of asylum seekers and refugees.
6. DISCRIMINATION
The discriminatory treatment may constitute a violation under the Articles 3 and 14. In the case Asians from East Africa (Com. Rap. from 1973), the Commission decided that the refusal to offer the residence permit based on race and skin color runs counter the Article 3. In the case Abdulaziz, Cabales and Balcandali v. United Kingdom (1985) the Court specified that in order to have an alleged violation of the Article 3 there should be the States tendency to humiliate this respective person: the difference in treatment should reflect disdain or disregard toward the personality of the interested party and to tend to humiliate him or to offend.
The legislation of the Republic of Moldova does not know any provision that would suit the discriminatory treatment.
The Constitution of the Republic of Moldova prescribes that "all citizens of the Republic of Moldova before the Law and the public authorities, without any discrimination as to race, nationality, ethnic origin, language, religion, sex, political affiliation wealth or social origin" (Article 16). The incitement to "national, racial or religious hatred as well as to discrimination" are prohibited and sanctioned by law (Article 32).
Article 71 of the Criminal Code determines a Criminal sanction for premeditated actions directed toward the incitement of hatred and national or racial scission, toward prejudicing the national honor and dignity as well as the direct or indirect limitation of rights or establishing the direct or indirect privileges of the citizens deriving from their racial or national belonging. This article sets forth a tougher sanctions for the same actions accompanied by violence deceit, or threats committed by an official person or by a group of persons, or if these resulted in loss of human lives or another serious consequences.
7. MEDICAL INTERVENTION
The Law on health protection no. 411 from March 28, 1995 guarantees protection to the persons against possible forms of inhuman medical treatment that contradict the Article 3 of the Convention.
In this line of ideas the Law requires the consent of the patient for each proposed medical service - be it prophylactic, diagnostic, therapeutic, recovery. In the absence of an obvious refusal the consent shall be presumed or implicit for any service that does not subject the patient to a significant risk or if that does not infringe upon personal intimacy (Article 23 paragraph 1).
The medical and biological progress gave birth to new problems with a moral and legal connotation that directly or indirectly nay have things in common with Article 3 of the Convention. For instance those related to experiments on human embryos, artificial insemination and organs transplant.
In conformity with Article 30 of the above named Law "the extraction and the transplant of human tissues and human organs shall be performed only in medical - sanitary public units, under the norms provided by the legislation in force". In pursuit of the purpose to determine the conditions and to regulate the relationships connected to the organ transplant and human tissues and in order to guarantee the rights of the citizens to the protection of health, corporal integrity, protection of dignity and identity of all human beings as well as other fundamental rights and liberties concerning the protection of health there was adopted the Law no. 473 - XIV from 25.06.1999 on transplant of organs and human tissues.
The Article 33 also contains a reference provision to other normative acts: "the artificial insemination and the implantation of the embryo shall be done in public medical -sanitary units as prescribed".
The donation of blood is regulated by the Law on the donation of blood no. 1458 - XIII from May 25, 1995 beginning with it's preamble which states that "the blood donation is a manifestation of humanism and a benevolent charity act for the protection of people's health". The Law forbids the unwilling or coerced donation of blood (Article 1 paragraph 2).
Article 8 paragraph (3) of the Law on the prophilaxy of AIDS decease no. 1460 - XIII from May 25, 1993 regulates that the violation of rights and limitation of interests of the citizens of the Republic of Moldova and stateless persons permanently residing in the Republic of Moldova only due to the fact that the latter are HIV infected or AIDS sick is not allowed.
In accordance with Article 11 of the same Law "the foreign citizens, stateless persons from other countries who are HIV infected or AIDS sick shall be denied the access to the territory of the Republic of Moldova". Article 12 prescribes the expel from the country of foreign citizens and stateless persons with floating residence whose HIV infection (or AIDS decease) has been detected as a result of a test during their presence in the Republic of Moldova.
CONCLUSIONS
1. Throughout the last years the legislation of the Republic of Moldova on prohibition of torture, punishments or inhuman or degrading treatment has been to a great extent brought in compliance with the requirements of Article 3 of the Convention.
It is noteworthy that the process of bringing the Moldovan legislation in accordance with the Convention in this area has not been finalized.
ARTICLE 4
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labor.
3. For the purpose of this article the term "forced or compulsory labor" shall not include:
a) Any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
b) Any service of a military character or, in case of conscientious objectors in countries where they are recognized, service exacted instead of compulsory military service;
c) Any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
d) Any work or service which forms part of normal civic obligations;
Article 4 comprises 3 paragraphs: the first tow reefer separately to the interdiction of slavery and servitude on one hand and to the forced and compulsory labor on the other hand, while the third paragraph indicates the works and services that shall not be considered "forced or compulsory labor" in the sense of the present article.
1. SLAVERY AND SERVITUDE
The Commission and the European Court have reviewed few cases raising claims of violations found in Article 4.1. Most such claims have been raised by prisoners with a uniform lack of success on behalf of Strasbourg.
In the case of Van Droogenbroeck v. Belgium (1982) a recidivist, who had been placed at the disposal of the administrative authorities complained that being subjected to such supervision constituted prohibited servitude under Article 4.1 of the Convention. The Court disagreed noting that the restrictive measures were both of limited duration and subject to judicial supervision. It further noted that the measure did not affect the applicant's legal status to the extent required to meet the slavery or servitude standard.
Article 4 of the ECHR prohibits slavery and servitude in a categorical manner, but does not offer a definition of these terms. The relevant definition may be found in the texts of other international conventions we shall refer to as follows. Foe example in the content of the Relative Additional Convention on the abolition of slavery, slave's traffic, institutions and analogous practices of slavery (Geneva, 1956) the slavery is defined as "the state or the condition of an individual who is subject to the powers of the property right or to just some of them". There for, slavery may be qualified as a situation of an individual who is the property of another from the legal point of view. Slavery implies the non-acknowledgement of the legal personality.
The organs of the European Convention have made numerous references to the definition of the term servitude. According to the Commission it is the case when there is the obligation of the person to live and work on the ownership of other person, to render services including also those remunerated, but being in the impossibility to change certain conditions (Appl. no.7906/77).
Servitude as such is considered a particular form of slavery which due to it's nature is of a lower degree. In relation to the quoted case Van Droogenbroeck, the Commission noted that the servitude is a state implying "a specific severe form of the freedom denial" and which does not meet the requirements of the property rights of the persons, peculiar to slavery.
It should be stressed that according to paragraph 2 of the Article 15 of the Convention no derogation is allowed from the paragraph 1 of the Article 4 not even in the work time.
The Constitution guarantees the non-permission of slavery and servitude by the content of paragraph 1 of Article 23 providing that "everyone has the right to an acknowledged legal status". The legislation of the Republic of Moldova does not prescribe any condition favorable to slavery or servitude. In this context, one can state that the domestic legislation does not run counter the provisions of paragraph 1 of the Article 4 of the Convention.
2. FORCED OR COMPULSORY LABOR
The Strasbourg organs have reviewed a number of cases raising issues under Article 4.2 which prohibits forced or compulsory labor and Article 4.3 which sets forth exceptions to this general prohibition. However, as with cases arising under this article niter the Commission not the Court has yet found a violation of the prohibition against forced or compulsory labor.
The Constitution of the Republic of Moldova when guaranteeing the right and the protection of labor (Article 43) enshrined the prohibition of forced labor in Article 44. The first paragraph of this article states that "(1)forced labor is prohibited".
A similar norm is included in Article 2 paragraph 2 is included in the Labor Code of the Republic of Moldova.
3. EXCEPTIONS FROM THE PROHIBITION OF FORCED OR COMPULSORY LABOR
If paragraph 2 of the Article 4 prohibits forced or compulsory labor then paragraph 3 of the same article determines all the cases when forced or compulsory labor shall not be considered as such. The paragraph 3 itself does not impose any restrictions to the prohibition formulated in paragraph 2 stipulating concrete cases of prohibition instead. As the Court noted "paragraph 3 does not have a role meant to authorize restrictions to the exercise of the right guaranteed by paragraph 2, but to only to distinguish the content of this right; forming an entire whole with paragraph 2 mentioning the situations when labor is not considered forced or compulsory, thus, contributing to the interpretation of the paragraph 2" (case Van der Mussele v. Belgium, 1983).
The Constitution of the Republic of Moldova indicates activities and services that are not to be qualified as forced labor in paragraph 2 of the Article 44
"(2) Not to be regarded as forced labor are the following:
a) Military like duty or the activities designed to replace it, carried out by those who under the law are exempted from compulsory military service;
b) Work done by a convicted person under normal conditions, in custody or on conditional release;
c) Services such as require to deal with calamities or other dangers or as considered to be a part of normal civil obligations under the law.
Comparing the constitutional provisions with those of the Convention we can conclude that Article 44 of the Constitution of the Republic of Moldova meets all four requirements of the third paragraph Article 4 of the ECHR. There is a single distinction to be mentioned that the Constitution does not stipulate concretely the fact that the situations generated by calamities have to be a threat to life or well being of the community. In our view this does not seem to be an essential contradiction as regards the provisions of the Convention.
3.1 Labor imposed on convicted persons or on conditionally released persons
Paragraph 3 a) of the Article 4 provides that there shall not be considered as forced or compulsory labor any required from a person placed in detention under the conditions provided for by the Article 5 of the present Convention or when the person is conditionally released. An imperative condition for the work rendered by the persons held in detention to be under Article 4 paragraph 3 a) is that the detention of the person is lawful, thus, in full conformity with Article 5 of the Convention. Here it is not only about persons charged of having committed offences but it is about any person held under the conditions of Article 5 (juveniles, mentally ill, drug addicts, alcoholics). For example in the case De Wilde, Ooms and Versyp v. Belgium (1971) the Court noted that the labor imposed to the vagrants is in compliance with Article 4 paragraph 3 a). The persons placed in conditional release fall under the incidence of the same article.
The labor condition of convicted persons are regulated by the Criminal Sanctions Enforcement Code. Article 7 of this code has indicated the labor in favor of the community among the most important means of reeducation of the convicted persons.
Article 78 of the same code notes that the detainees work according to their labor capacity, since the administration of the penitentiary insures to the extent possible the involvement of the convicted person in labor activities, taken into consideration the sex, age, labor capacity, profession. The male detainees over 60 and the female over 55 years of age as well as handicapped of I and II degree work upon their wish. The under age convicted are involved in labor observing the labor legislation as well as that of public education.
Article 79 of the Code provides that the work of the convicted serving a liberty depriving sanction shall be organized with due observance of the rules of labor protection, security technique and labor hygiene. The detainees’ work is paid, except for the maintenance work of the penitentiary and of its territory, the duration of which may not exceed two hours per day and six hours per week (Articles 82 and 83 of the Code).
Article 56 provides that during serving the punishment of arrest the detainee shall not be engaged in work, except for the maintenance works of rooms. Same rules apply to the military men sanctioned with arrest (Article 120, paragraph 3).
The military men serving their conviction in the disciplinary units shall be mandatory engaged in labor, with due observance of the rules of labor protection (Article 132 of the Code). However, in this case the work is not remunerated.
The Statute serving the punishment by the detainees, approved by Governmental Decree no.923 from December 20, 1994, lists the kinds of work and positions in which the use of detainees work is prohibited (paragraph 33). These are works involving photocopying machines, radiotelegraphy and telephony, works related to the record-keeping and issuing of drugs and of explosive or toxic substances; service in the directions and sections of the institution, in the same rooms with the military staff, arms and documentation; positions involving civilians as subordinates, etc.
Alcoholics and drug addicts who are imposed coercive measures of a medical character, in compliance with Article 59 of the Criminal Code, shall be placed in medical institutions with a special regime of treatment and labor.
The Law no.205-XIV from 25.11.1998 excluded correctional work as a distinct criminal and administrative sanction.
3.2. Military and alternative service
Paragraph 3 b of Article 4 of ECHR provides that forced or compulsory labor shall not include any service of a military character or, in case of conscientious objectors in countries where they are recognized, service exacted instead of compulsory military service.
It is important to mention the conclusion reached by the Commission, which didn’t consider as forced or compulsory labor the duties fulfilled during military service of the four English young men, who had committed themselves to serve in the navy for year-year tours of duty, having the permission of their parents for that (case of W, X, Y and Z v. The United Kingdom, 1967).
The text of paragraph 3 b of Article 4 of ECHR does not provide the obligation of the States to recognize the refusal to fulfil the military service for conscientious objectors or to exonerate them from the obligation to fulfill another service, for periods of time equivalent to those fulfilled by military men.
The Republic of Moldova’s Constitution provides in Article 57, paragraph 2 that the military service shall be fulfilled within the military forces meant for national defense, guarding of borders and maintenance of public order, under the law.
The manner of serving in the military is regulated by the Law on military duties and service of the citizens of the Republic of Moldova, no.968 from March 17, 1992. The military service is considered as a distinct state service. In the compulsory military service, shall be enrolled male citizens from the age of 18 to 27 years. The duration of the compulsory military service shall be of 18 months. The citizens who are able from the medical perspective to satisfy the military service, during peace and wartime, shall be enrolled in the compulsory military service. The citizens, who are able from the medical perspective to satisfy the military service, during wartime, shall be recruited for mandatory military training. The citizens who are able from the medical perspective to satisfy the military service, during peace and wartime, but who refuse to fulfill the military service for religious and pacifist beliefs, are imposed to fulfill an alternative service.
The Law on alternative service, no.633 from July 9,1991 provides the manner of fulfilling the alternative service. According to Article 4, the alternative service is a state service of the citizens, bearing a civil, socially useful character and which substitutes the military service for conscientious beliefs. The duration of alternative service shall be of twenty-four months. The Republic of Moldova’s citizens fulfill the alternative service in enterprises, institutions and organizations located on the territory of the state, as well as in units dislocated on its territory.
Article 8 of the aforementioned law provide the fields of alternative service fulfillment:
- rescue and anti-fire units;
- ecological units;
- healthcare institutions from the social sphere;
- organizations of construction, renovation and construction works, for roads’ constructions and renovation;
- institutions from common dwelling households;
- in agriculture, organizations and enterprises for the production and procession of agricultural goods.
Citizens satisfying alternative service shall be remunerated at a 75% rate of the salary.
3.3. Labor imposed in case of an emergency or calamity
Paragraph 3 of Article 4 ECHR provides that forced or compulsory labor shall not constitute any service exacted in case of emergency or calamity threatening the life or well being of the community. To establish the violation of Article 4, paragraph 3 c, it is very important to interpret correctly the notions of “emergency” and “calamity threatening the life or well-being of the community”.
The legal doctrine notices that these notions might be interpreted in a much broader manner than, for instance, the notion of “public emergency” provided for in Article 15 of ECHR. Probably, the term of “community” is used in the meaning that such situations may not threaten the whole nation, but may bear a local character as well.
Neither the Court, nor the Commission had defined the above notions, sometimes even giving divergent opinions on them. In this sense, the case of Iversen v. Norway (application no.1468/62) in which, a Norwegian dentist argued that being forced to provide temporarily services in the northern part of Norway, constituted forced or compulsory labor. The opinions of the Commissions members split: some thought that the limited time, the proper remuneration, and the nature of services to be provided were consonant with applicant’s choice of profession, while others found that such impressed service could be justified on the grounds set forth in Article 4, par.3 c “emergency or calamity threatening the life or well-being of the community.”
The Republic of Moldova does not have a special law regulating the obligation of citizens to provide labor in case of emergencies or calamities.
These provisions are included in various legislative acts, which operate with different notions to define emergencies or calamities.
Most frequently used is the term of “exceptional situations”. For instance, the Law on civil protection, no.271 from November 9, 1994, qualify as exceptional situations natural and ecological calamities, damages and catastrophes, epidemics, epizooties, fires, as well as in case of use of modern means of annihilation. Article 13, paragraph 6 section (e) of this law, provides that the Republic of Moldova’s citizens, foreign citizens and stateless persons living on the territory of the state are obliged to participate actively at the liquidation of the consequences of exceptional situations, to grant multilateral aid to the casualties. The Law sets a series of rights and facilities for persons participating directly in the rescue operations of the population and at the liquidation of the consequences of exceptional situations.
The Law on the legal regime of the exceptional situations and special forms of governing, no.290 from October 4, 1990, uses the term of “exceptional circumstances” which include “natural calamities, serious damages and catastrophes, epidemics, epizooties, public massive disorders etc.” In case of the listed exceptional circumstances occurrence, the exceptional situation may be declared, in the conditions of which, the state authorities and administration may involve able-bodied citizens in the work of the enterprise, institution and organization, as well as in the units for the liquidation of the exceptional circumstances’ consequences, if labor security norms are observed.
The Law on alternative service commented above, provides that the citizens fulfilling alternative service may be engaged, based on a Governmental Decree, in the liquidation of catastrophes, natural calamities and of other extraordinary events.
Paragraph 1 of Article 12 of the Law on defense against fire, no.2 from November 9, 1994, provides that everyone is obliged to give all possible support in the prevention and extinction of fires.
3.4. Work or service which forms part of normal civic obligations
According to Article 4, paragraph 3 d, forced or compulsory labor shall not qualify any work or service which forms part of the normal civic obligations.
We already mentioned the case of Van der Mussele v. Belgium, in which the Court concluded that the fulfillment of a barrister of the obligation to represent indigent defendants without being compensated for the work or reimbursed for expenditures incurred, constituted a “normal civic obligation” in the meaning of Article 4, paragraph 3 d, because the Belgian system provides for such categories of defendants the right to an appointed counsel, guaranteeing the right to counsel under Article 6, paragraph 3 of ECHR.
The scope of Article 4, paragraph 3 d, also extends to activities such as the work of firemen, of the civic protection officers, the duty of these servants to provide in case of need extra hours of work, etc. These activities are regulated in the respective laws, to some of which we have already referred to earlier. The general principles of supplying extra hours of work are provided in the labor legislation.
Thus, Article 60 of the Labor Code provides that additional work shall be inadmissible and might be exercised only in the exceptional cases provided by law. Paragraph 5 of this article stipulates that the employer may use the additional work only in the following exceptional cases:
1) in the performance of works necessary for the defense of the country, as well as to prevent a calamity of public character, or of a natural calamity, of an accident in the production process and for the immediate liquidation of their consequences;
2) in the performance of works necessary for water supply, gas supply, lightning, canalization, heating, transportation and telecommunications – in order to liquidate accidental or sudden circumstances which hinder their proper functioning;
3) in case of necessity of finishing the work started, which due to the unforeseen or accidental delay, could not have been finished during the regular working hours, if the interruption of the work started may lead to the degradation or loss of the public property.
(section 4 was excluded by the Law no.263-XIV from 24.12.1998)
5) in order to continue the work in case of non-showing up of the worker at the shift if the work does not allow interruptions, case in which the employer has the obligation to take immediate measures of replacing the missing employee with another;
(section 6 was excluded by the Law no.263-XIV from 24.12.1998).
The following categories may not be admitted to additional work: disabled persons, pregnant women and mothers of children under the age of 3 years, mothers of children from the age of 3 to fourteen years (disabled children under the age of sixteen years) – without their prior consent; employees under the age of eighteen years; employees who perform their studies in secondary schools and colleges – during classes.
After having examined the Republic of Moldova’s legislation comparing it to the provisions of the Convention regarding prohibition of slavery, servitude, forced or compulsory labor, we reached the conclusion that in general lines, the respective national legal provisions do not come in contradiction with Article 4 of ECHR and the case-law of the Starsbourg organs.
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
a) the lawful detention of a person after conviction by a competent court;
b) the lawful arrest or detention of a person for non‑ compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law;
c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”
Article 5 pursues the protection of liberty of individuals, and namely the prohibition of any arbitrary arrest or detention. This article secures to everyone the right to liberty and security of person, save in six cases, expressly provided in the Convention. The State does not have the discretion to create additional categories of justification for detaining or imprisoning individuals, but must act within the confines established by ECHR. At the same time the State is obliged, based on Article 5, to not detain a person otherwise than “in compliance with the legal means”, but these legal means must not exceed the limits provided by Article 5, paragraph 1 of ECHR.
Most of the applications filed with the Commission and then reached the Court, alleged the violation of Articles 5 and 6 of ECHR. Out of 56 cases examined by the Court in 1995 – in 39 cases reference is made to the violation of Article 5 and 6. Both the Commission and the Court have a reach experience in the application of these two articles, which is permanently improving.
The jurisprudence of the European Court found the issue of determining the lawfulness of an individual’s detention or the finding of violation of Article 5 should be examined on a case-by-case basis, taking into account all the relevant circumstances. Thus in the case of Engel and Others v. The Netherlands (1976), the Court found that restricting soldiers to their barracks does not violate Article 5, because such restrictions were “not beyond the exigencies of normal military service”, whereas the same types of restrictions on civilians would be unacceptable. In the case of Guzzardi v. Italy (1980), the Court held that an individual forced to stay on an island and limited in social contacts, could be considered as deprived of his liberty. In contrast, the Court in the case Nielsen v. Denmark (1988) held that Article 5 did not apply where a custodial parent had committed a twelve-year-old child to a psychiatric hospital.
Article 25 of the Republic of Moldova’s Constitution provides:
“(1) Individual liberty and security of the person shall be inviolable.
(2) Search, apprehension or arrest of a person shall be admissible only in cases and according to the procedure established by law.”
According to Article 72 of the Constitution, the laws shall be passed only by the Parliament. In the Republic of Moldova, no internal normative act or the court are entitled to determine the cases or the procedure according to which a person may be deprived of his liberty. Illegal deprivation of liberty shall be incriminated as an offence by Articles 116 and 192 of the Criminal Code.
Article 5, paragraph 1 (a) of ECHR provides as one of the exception from the right of the person to liberty and security, “the lawful detention of a person after conviction by a competent court”.
In the case of Wemhoff v.the Federal Republic of Germany (1968), the Court clarified that a State may detain an individual even if he or she has lodged an appeal against the original conviction and sentence. This provision applies every time when after the delivery of a conviction sentence, deprivation of liberty is imposed. It is not important in which formdetention is manifested: as a hospitalization in a psychiatric institution and not as an imprisonment (case of X v. the United Kingdom, from November 5, 1981), or as a substitute for prior conviction (case of Cotalla v. the Netherlands, 1978), or as a disciplinary, not criminal offence, determined as such in the domestic legislation (case of Engel and Other v. the Netherlands, 1978).
The Republic of Moldova’s Constitution does not regulate this principle. Being given the importance of it and in order to bring the Constitution in compliance with Article 5 of ECHR, we believe it is necessary to include in Article 25 of the Constitution the provision that no one shall be deprived of his liberty, except for the cases: when the person is lawfully detained as a result of a conviction delivered by a competent court. This would exclude the possibility of occurrence of deprivation of liberties in contradiction of the above-mentioned principle and would prevent the violation of the individual’s right to liberty.
Articles 21 and 23 of the Criminal Code and the Code of Criminal Procedure provide the application by means of a court’s sentence of a liberty depriving sanction to persons who were acknowledged as guilty of committing a criminal offence.
Also by deprivation of liberty (administrative arrest up to 30 days) a court may sanctioned administrative offenders, if the Code of Administrative Offences provide such sanctions (Articles 22 and 23).
According to the Republic of Moldova’s legislation, the court is the sole authority to commute the fine as a criminal or administrative offence with deprivation of liberty or, if the case, with administrative arrest.
In this sense, the provisions of the Criminal Code, Criminal Procedure Code and of Administrative offences Code do not contradict Article 5 of ECHR.
According to Article 23 of the Criminal Code the Court may impose by sentence the sanction of deprivation of liberty and the place of this’ sanction’s serving, specifying as well the regime of the colony for correction by means of labor. Some of the provisions of the Criminal Sanctions Enforcement Code do not comply with Article 5 of ECHR for the following reasons:
1) According to Articles 93 and 113 of the Criminal Sanctions Enforcement Code, the detainee who breached the regime of serving the liberty depriving punishments, may be imposed the following sanctions:
- transfer to the disciplinary isolator up to 15 days or incarceration up to 15 days;
- confinement of a minor in a disciplinary isolator up to 7 days.
2) Article 135, paragraph 1, c) of the same Code provides:
- detention of the military convicted in a strictly isolated room up to 10 days.
4) According to Articles 95, 114 and 135 of the same Code, the sanctions pointed out above are disposed by the chief prison, indicating the duration of confinement.
According to the Criminal Sanctions Enforcement Code, the punished individuals are not entitled to appeal somehow the decision taken. These being said, one may reach the conclusion that the chief prison, who is nether a judge, nor bears the capacity of a magistrate, violates the provisions of Article 5 of ECHR, assuming the prerogative of changing the criminal sanction imposed by a competent court.
These sanctions, without any doubt, represent a severer deprivation of liberty than the one imposed by the ruling delivered by a competent court. These, due to the nature and severity of the sanctions applied. Moreover, that by an administrative act they switch for a considerable period of time.
We therefore find it necessary to amend the articles of the Criminal Sanctions Enforcement Code, so that the transfer to the disciplinary isolator, incarceration, transfer the detainee to a cell as well as the confinement of the military man in the strictly isolated room, be disposed by a judgment issued by a competent court or by a court order or of another magistrate, with due ensurance of a fair trial conditions, at the proposal of the prison administration or the management of another place of detention.
The European Court considered that maintenance of detention is not acceptable when the prison authorities are the one taking the administrative decision to lengthen a prisoner’s detention for alleged commission of a triable offence (Van Droogenbroeck v. Belgium,1982).
The term "competent court" used in Article 5 para. 1 a) designates the competent judicial body, which is independent from the executive and from the parties of a determined case.
Regarding disciplinary sanctions in the army, the Court, in its Engel v. Netherlands judgment, 1976, has found that holding in detention of a military man constitutes a deprivation of liberty within the sense of Article 5 of the Convention.
The Court found that only the strict detention, when the military man is locked down and isolated, represents a deprivation of liberty, since it is the only form of detention, different from normal military life conditions. As it has been underlined by the Court, there are different restrictions set for military men according to Article 5 of the ECHR, restrictions that the State should not violate. The Commission has considered that even the severe detention of military men (when he is obliged to be in special places for arrest, even if he is not locked up in a room), should also be equated to the deprivation of liberty within the meaning of Article 5 of the ECHR. Meanwhile, the European Court has indicated that one must take into account not only the aim, but also the consequences of detention, i.e. the issue if there exists a certain degree of isolation from society, which usually is considered as arrest or detention under arrest (guard).
According to the Disciplinary rules of Armed Forces, approved by the Law no. 776-XIII of 13 May 1996, military men may be subject to detention of up till 10 days in a common room or in a lock-up room as a disciplinary sanction. Generals, colonels and independent unit commanders, notwithstanding their military degree or their sex, shall not be subject to arrest.
Detention under arrest of military men may be applied by the officers vested on the basis of these Rules with such prerogatives, without any remedy to appeal this decision in court.
The persons vested with the prerogative to apply the arrest regarding military men, i.e to deprive military men of liberty, cannot be interpreted as a competent court, independent from the executive and from parties. In this respect, the Disciplinary Rules of Armed Forces run counter to Article 5 para. 1 a).
In order to solve this problem, we estimate that the arrest of the military man in a common room or in a cell, isolated, locked up, under armed guard and surveillance, may be applied by a judge or another competent magistrate (or a competent court) at the request of the military commander. The case shall thus be solved in a fair hearing, with the observance of the provisions of Article 6 of ECHR and of the procedure and of the interested person's rights, provide for in Article 5 paragraph 3 and 4 of ECHR.
Article 5, paragraph 1, letter b) the Convention set another exception to the fundamental right to liberty and security of a person: "the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law."
The Convention provides for the deprivation of liberty in order to secure the presence of a witness in court, to determine a man to be subject to tests investigating his paternity, or a person to be subject to a psychiatric expertise.
Both the Criminal Procedure Code (Article 59) and the Civil Procedure Code (Article 65) regulate the procedure of forced presentation of the witness before the court, based on a judgment, when the witness does not present himself for well founded reasons, which does not contradict the ECHR.
The Criminal Procedure Code and the Civil Procedure Code do not establish the term during which a person may be kept in custody in order to bring him as witness, the status of the person held in custody and the how he may defend his rights in this capacity (in the judicial practice of the Republic of Moldova, witness' rights are violated when as witnesses appear already convicted persons, which have been detained for a long time in investigation isolation units, where the detention conditions differ from the conditions of sanction enforcement established by the sentence).
In regard to the forced guarantee to bring the person to be subject to investigation tests of paternity or for the performance of a psychiatric expertise, the Civil Procedure Code does not provide for such a procedure, although ECHR permits it. The amendment of the Civil Procedure Code would be appropriate and would assure the verification of these circumstances at the consideration of cases when their investigation is mandatory.
Article 59 of the Criminal Procedure Code and Article 65 of the Civil Procedure Code prescribes that if the summoned witness does not present himself before the court in civil proceedings without well-founded reasons, or before the criminal investigator, the prosecutor or the court in criminal proceeding, he may be brought by force in order to give depositions as a witness.
Article 5 para. 1 letter c) of ECHR provides for the third exception: "the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so."
The Strasbourg case law has ascertained that Article 5 para. 1 letter c) provides that the State may hold in detention a person in order to bring him before a competent judicial authority on reasonable reasons to suspect him of having committed an offence or of feeling after having done so.
There must be underlines that the main criterion of this provision is the reasonable nature that affords States a certain margin of appreciation. The Court has decided regarding a violation of Article 5 para. 1 letter c) in the case Fox, Campbell and Hartey v. United Kingdom (1990), in which the United Kingdom had arrested and confined the applicants, which were suspected to be IRA terrorists, without offering sufficient facts or information to support the existence of reasonable ground to suspect them of having committed an offence.
The Court has admitted that having an initial justification, some elements of facts, such as the possibility to flee from the territory (Neumeister v. Austria, 1968; Stogmuller v. Austria, 1969 and Matznetter v. Austria, 1969) and the risk to commit another offence (Matznetter) may change in time. The court has also noted that if there is a "reasonable suspicion", this is not the only element that permits always the justification to keep in detention in the above mentioned cases. The court has decided that the possibility of a conditional release would decrease the risk from fleeing from the investigation and pursuit, which would render inadmissible the detention for this reason. In the Matznetter case, the Court has held that the risk of committing an offence constitutes a reason enough to maintain the detention, but observing the same argument (Stogmuller, Ringeisen v. Austria, 1971).
In the sense of this provision of the Convention, it results that there are 3 grounds to arrest and detain a person on the main condition to bring him before the competent judicial authority and namely:
- when there is a reasonable suspicion of having committed an offence;
- when there is reasonably considered necessary to prevent him from committing an offence:
- to prevent the person from fleeing after having committed an offence.
The list of these grounds to arrest and detain is exhaustive and may not be extended by the national legislation.
Assessing the compatibility of the national legislation with the ECHR in this respect, one should take into consideration the Recommendation no. 1245 of the Parliamentary Assembly of 30 June 1994, according to which a person may be arrested and detained if the offense that he had committed is sanctioned with deprivation of liberty, as well as the Recommendation no. R (80) II of the Committee of Ministers, which emphasizes that the arrest must be an extraordinary measure and it should not be mandatory.
The Criminal Procedure Code of the Republic of Moldova in Article 73 and 78 provides for the following grounds of pre trial detention:
- if there are sufficient reasons to presume that a person might hide from penal pursuit bodies or from the court of law;
- or might hinder the establishment of the truth in criminal proceedings;
- or to commit criminal offences;
- as well as to assure the enforcement of the sentence.
A condition necessary to apply the arrest on remand is that this measure to be applied to persons for having committed criminal offences for which the law prescribes a sanction of deprivation of liberty for a term longer of one year, and in exceptional cases, this measure may be applied regarding criminal offences for which the law prescribes a deprivation of liberty sanction for a term shorter than one year.
Article 25 paragraph 2 of the Constitution is in compliance with the provisions of the ECHR, indicating that the arrest and the detention of a person is permitted only in the cases and according to the procedure established by law.
Article 73 paragraph 1 of the Criminal Procedure Code regulates that the preventive measure, including the arrest pending trial, shall be applied in cases when there are sufficient reasons to presume that the indicted person might flee from penal pursuit or judicial authorities, or might hinder the establishment of the truth in criminal proceedings or to commit criminal offences, as well as in order to assure the enforcement of the sentence.
Article 104 of the Criminal Procedure Code indicates that in order to arrest a person suspected of having committed a criminal offence, same conditions are required as set under Article 73 paragraph 3 of the same Code.
Moreover, Article 73 and 104 of this Code restrict the list of detention or arrest cases, providing that these measures may be taken only in regard to persons suspected for having committed criminal offences for which the law sets a sanction of deprivation of liberty. These coincide with the ones of the Recommendation no. 1245 of the Parliamentary Assembly.
The arrest pending trial of minors may be applied only in exceptional cases, if it is required by the seriousness of the committed offence.
Article 78 of the Criminal Procedure Code lists over 70 criminal offences for which the arrest pending trial may be applied even only due to the reason that the offence bears a dangerous character.
Generally speaking, the domestic legislation does not run counter the provisions of Article 5 paragraph 1 letter c) of ECHR and of the aforementioned Recommendations. Nevertheless, the situation when the arrest pending trial may applied in order to guarantee the establishment of the truth in criminal proceedings, exceeds the reasons set in the Convention, and the cases when the person may be arrested only due to the reason that the offence bears a dangerous character does not comply with the Recommendation no. R (80) II of the Committee of Ministers.
The following exception provided under Article 5 paragraph 1 letter d) of ECHR from the general rule, allowing "the detention of a minor by a lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority."
In the case Bouamar v. Belgium (1988), the Court has noted that Belgian authorities could not invoke the educational supervision in order to justify the cell confinement of a child in a prison. In the case Nielsen v. Denmark (1988), an young Danish boy whose parents had divorced when he was a baby, preferred to live together with his father, circumstance existent for several years, contrary to the judgment by which the mother was entrusted to raise and educate him. Eventually, the mother requested the young man to be admitted into a public psychiatric hospital. Acknowledging the applicability of Article 5 of ECHR in regard to "everyone" and mentioning explicitly that Article 5 paragraph 1 letter d) protects minors, the Court has decided that this provision was not applicable to the case, since "the placement in the hospital did nor constitute a deprivation of liberty within the meaning of Article 5 , but it derived from the exercise of parental rights by a mother aware of her obligations."
The Criminal Code in Article 10 provides for the possibility of the court of law to apply in regard to persons under 18 years if age, who have committed a criminal offence that does not bear a severe social jeopardy, such coercion measures bearing a educative character provided under Article 60 of the Criminal Code, such as the placement of the minor in a special education institution or in a educative-medical institution. Article 23 of the Criminal Code provides for the possibility to set educative measures and supervision over a minor who has committed a criminal offence, indicating in paragraph 6 that minors may b deprived of liberty by the sentence of a court of law sending them for correction and reeducation in labor educative colonies with common or harsh regime. The arrest and the detention vagrant minors is not regulated by any law, nor by any department act, fact which is contrary to the ECHR, since it is a matter of depriving a person of his liberty.
The decision to arrest, to hold in detention or to release vagrant minors may be adopted only by local bodies of the Ministry of Internal Affaires. The judicial control over the decisions to arrest. Hold in detention or release minors is not established. Similarly, interested parties are not entitled to any remedy before a court against this decision. This also does not comply with Article 5 of ECHR.
We propose that the issues of arrest, holding in detention or the release of vagrant minors to be regulated by the law with the observance of the fair trial principle. Additionally, the judicial control over the arrest, detention and release of minors and the right of interested persons to remedies before a tribunal (a competent court).
The Law on children's rights of 15 December 1994 has established that the distribution of children in "special education institutions shall be performed only in compliance with the judgement at the proposal of appropriate competent bodies with the local public administration bodies."
The way of placement and the conditions in the special education institutions or in a medical institution are not established by law, although the adoption of such a regulation is stringent.
The detention procedure and conditions of certain minors, who have not committed a criminal offence but which require placement in an institution under educational supervision are neither regulated by the law. The lack of such provision may lead to the violation of minor' rights or taking them outside any legal provisions.
Article 5 paragraph 1 letter e) sets another exception from the right to liberty and security: "the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants."
The Law on health protection of 28 March 1995, in Article 45 provides for the possibility to subject persons that had contact with persons with venereal diseases, if they flee from the medical exam and treatment, to a coercitive medical examination and treatment in the hospital of venereal diseases. After being warned by medical units, if these persons avoid coercitive medical examination, then they shall entail liability according to the legislation in force.
The same law prescribes the obligation of police bodies to bring in curative-prophylactic units at the request of medico-sanitary units the persons suffering from a venereal disease, and the persons that had contact with the latter.
According to the Law on social rehabilitation of chronic alcoholics, drug addicts of 7 February 1991, chronic alcoholics, and drug addicts who avoid treatment may be sent for mandatory treatment in narcological institutions of health protection bodies for a 4 month term and are brought there with the assistance of health protection forces and measures as well as of internal affairs bodies based on the medical report. And chronic alcoholics and drug addicts that breach systematically the public order or the rights of others despite social, disciplinary and administrative influence measures taken in regard to them, are sent based on a judgment to labor education and treatment in social rehabilitation institutions of the internal affairs bodies, the first time for a period of 6 months to 1 year, and if repeatedly then up to two years.
The release before the expiry of the term of patients from social rehabilitation institutions shall be performed based on a judgment.
Article 42 of the Law on health protection provides that persons of unsound mind that might jeopardize their own life or physical integrity as well as that of others, shall be submitted for coercitive medical treatment in a medico-sanitary unit under the terms of the law. The placement of such persons in hospitals is performed in an urgent regime with the assistance of police bodies, at the request of the psychiatrist. In such cases the psychiatric examination is performed during maximum 48 hours since the placement by a commission of specialists, constituted especially for this reason according to the instructions of the Ministry of Health, the ground and the manner of granting psychiatric assistance, including the forced placement in hospitals of unsound minded patients, as well as their rights are prescribed by the legislation in force.
The Criminal Code in Article 55-58 sets the grounds for the application of medical coercion measures in regard to mentally alienated persons, the placement conditions in a hospital for mental disorders, as well as the procedure to establish, to change and to cease the application of medical coercion measures in regard to mentally alienated persons., and Chapter 28 of the Criminal Procedure Code prescribes the application procedure of medical coercion measures.
Therefore, the provisions of the domestic legislation of the Republic of Moldova generally comply with Article 5 paragraph 1 letter e of ECHR. However, we should mention that the national legislation does not regulate the procedure of periodical verification (not less then once per 6 months) by the court of law on the lawfulness of keeping in psychiatric hospitals mentally alienated persons. There is neither any regulation on the periodical verification (not less then once per 6 months) of the need to continue the application the medical coercion measures, given that these measures are established by the court of law for an undetermined period. the court of law may change or cease the application of medical coercion measure according to Article 57 of the Criminal Code only at the initiative of the medical institution where the forced treatment is performed. This situation cannot be considered as according to ECHR.
Furthermore, Article 58 of the Criminal Code prescribes that is the deprivation of liberty sanction is applied in regard to a person, who became irresponsible after having committed the criminal offence and was placed in a hospital for mental disorders, after getting well, the period of medical coercion measures application is excluded from the term of the sanction.
On 16 December 1997 was adopted the Law on psychiatric assistance, which regulates the psychiatric assistance, including the examination of the psychiatric health, the diagnosing of mental disorders, the treatment and medico-social rehabilitation of persons suffering from this kind of disorders. By means of this law, the state secures to these persons social assistance, granted based on the principle of humanism, lawfulness and the observance of fundamental human rights.
In the Winterwerp v. the Netherlands case (1970), the Court has delivered new criteria which permit the defining of the term "persons of unsound mind" within the meaning of Article 5 paragraph 1 letter e). Firstly, the State must apply medical objective norms in order to establish the alienation status of an individual. Secondly, the status of alienation must amount to a sufficient degree in order to justify the placement, and thirdly, the State may not dispose of the placement of this person save for the duration of this mental disorder. The last criterion enshrines implicitly the right to perform periodic control over the placement justified by "alienation". Such a placement must not be established for an unlimited period. However, both the case Winterwerp v. the Netherlands and the case Ashingdane v. the United Kingdom (1985), the Court has decided that Article 5 paragraph 1 letter e) does not impose on the State the obligation to grant the placed person a special treatment, which would secure that by virtue of this provision, he will not be in detention for a period longer then necessary.
In the case Van der Leer v. the Netherlands (1990), the Court sustained that the Dutch government did not take into consideration Article 5 paragraph 1 and 4 when it approved the placement of the applicant in a psychiatric hospital without having informed the interested person of the existence of the placement decision and without having heard him on the situation, in Wassink v. the Netherlands (1990). The Court has decided that the absence of the court clerk at the judicial hearing was a violation of the domestic legislation and did not took into account the condition of lawfulness. In the case Koendjbihane v. the Netherlands (1990), the court has decided that the term of 4 months set to decide on the prolongation of a psychiatric placement comes in contradiction with Article 5 paragraph 4.
Neither in ECHR, nor in the case law of the European Court is there a strictly defined term of "vagrant". In the case De Willde, Ooms and Versyp (1991) the apprehension was performed on the basis of the legislation where the following definition could be found: "vagrants are persons who do not have a permanent residence, neither means for leaving and who, as a rule, do not have an occupation or a profession activity" . The Court decided that this appreciation fits the sense of "vagrancy". In the Republic of Moldova the detention of vagrants is regulated by departmental acts that run counter Article 5 of the ECHR: there is no legal procedure or legal control over the lawfulness of this detention. All the issues concerning the apprehension, detention and release of vagrants are decided by the Ministry of Interior bodies. The interested parties may not appeal these decisions in a competent court according to the jurisprudence of the European Court, also the principle of a fair trial is not respected, etc.
All these constitute violations of the ECHR provisions.
The 6th exception provided for the Article 5 paragraph 1 (f) of ECHR allows the deprivation of liberty in case "if it is about the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or a person against whom action is being taken with a view to deportation or extradition".
The Commission of the European Court have examined few cases of violations under Article 5 paragraph 1 (f), provision that allows detention on grounds of immigration, asylum and extradition. The apprehension and detention shall pursue one goal out of the three mentioned above, but not the simple fact to hinder the person to hide (case Asfar v. United Kingdom, 1977) or to impede the accomplishment of a concealed or forbidden rule (Bozano v. France, 1986).
In the case Zamir v. United Kingdom (1983) the Commission stated that its task consisted in making clear whether the apprehension of the person was effected for the purpose of its deportation based on the courts jurisprudence apprehension detention of foreigners may occur on the ground of initiating an investigation even for a long duration (case Caprino v/ United Kingdom, 1980 ).
The Code on Administrative offences in its Article 249 stipulates the term of apprehension of persons that have violated the border passing status instituted at the State border passing units - up to 3 hours for drawing up the minutes, up to 3 days for determining the identity and clarifying the circumstances of the case, bringing this information to the knowledge of the prosecutor in 24 hours or up till 10 days with the sanction of the prosecutor if the offender does not dispose of any documents of his identification. Such a regulation for arrest and detention of the person for to impede the letter to effect and an unlawful entry in the country does not comply with Article 1 (1) of the ECHR due to the reason that within the 10 days apprehension the domestic legislation requests the sanction of the prosecutor, thus violating the claims of independence of the law court and the decision of the prosecutor may not be appealed by the person held in custody.
The Code on Administrative Offences does not provide for an administrative arrest sanction who illegally transgress on the territory of the Republic of Moldova. Article 80 of the Criminal Code provides a deprivation of liberty sanction for the entrance on the territory of the Republic of Moldova or for transgression of the border without the required passport, or without an authorization from the pertinent authorities, the procedure of arrest and apprehension only is regulated in such cases by the Criminal Procedure Code referred to later.
The legislation of the Republic of Moldova does not dispose of a special procedure of arrest or detention of a person in view of deportation or extradition, although such a procedure needs to be regulated by means of a law, fact the would insure the freedom and security of these persons.
The 2nd paragraph of Article 5 of ECHR states that "everyone who is arrested shall be informed promptly in a language which he understands, of the reasons for his arrest and of any charge against him".
This norm insures the information of the person apprehended about the reasons of apprehension, thus giving the possibility to asses the lawfulness of the State's action. In the event the person disagrees with the action he should have the possibility to appeal it in a competent court, in conformity with paragraph 4 of Article 5 of ECHR.
One can conclude from the practice of the European Court that the right of the person to be informed promptly, in a language that he understands of the reasons for his arrest is applicable to all the cases of deprivation of liberty, comprised in Article 5 paragraph 1 of ECHR and not only for the case of letter (c) paragraph 1of Article 5.
The European Court found a violation of Article 5paragraph 2 in the case Van der Leer v. Netherlands, (1990), for the Dutch authorities did not inform the applicant of the reasons of her placement in a psychiatric hospital, moreover they did not bring to her knowledge that in realty she was deprived of her freedom. Both for criminal as for civil cases the European Court found that the delivered information should not be detailed enough as in the case of Article 6 paragraph 3 of ECHR, for the right of a fair trial (case Fox, Campbell and Hartley, 1990; case X. v. United Kingdom, 1981; case Mc Veigh, O'Neill and Evans, 1981).
The interested person should be informed promptly of the reasons of his arrest. In the case of Ireland v. United Kingdom the European Court has found a violation under paragraph 2 of Article 5 for the apprehended persons were not informed of the reasons of the detention, being communicated only that their detention was done based on exceptional legislation (case Ireland v. United Kingdom, 1978).
The Constitution of the Republic of Moldova in Article 25 provides that the arrest may not exceed 72 hours and the arrested person is being promptly informed of reasons of his apprehension arrest as for the charges, the criteria of promptness being also valid.
The Criminal Procedure Code by means of Article 104 emphasizes upon the obligation of the criminal pursuit body to inform promptly the person of the reasons of apprehension only in the presence of a chosen or ex-officio lawyer. The term of pre-trial arrest may not exceed 72 hours after the expiry of which the criminal pursuit body shall be granted a warrant of arrest or shall release the person.
As a result the provision of the Criminal Procedure Code regulating the requirements as regards the information brought to the apprehended or arrested person do not run counter the Article 5 paragraph 2 of the ECHR.
Article 5 paragraph 3 of ECHR prescribes the following "everyone arrested or detained in accordance with the provisions of paragraph 1 c) of this Article shall be brought promptly before a judge or other officer authorized by law to exercise judiciary power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned to appear for trial."
The Court has stated that may not hold the individual in custody without bringing him before the judge and moreover without the intention to do so. (case Lawless v. Ireland, 1961).
Article 5 Paragraph 3 of the ECHR which requires that every person detained under Article 5 paragraph 1 (c) must be promptly brought before a judge encompasses both procedural and substantive protection for such persons.
As the Court held in the case of Schiesser v. Switzerland (1979) the judge or the judicial authority before whom an individual is brought must, in fact, listen to that individual.
The Court has held that that for a state official to exercise the role of both the prosecutor and investigator does not meet these requirements (Skoogstrom v. Sweden, 1984; Huber v. Switzerland, 1990). The term "promptly' in Article 5. 3 represents a more stringent standard than does the term "speedily" in Article 5.4 Although neither the Commission not the Court has set a firm minimum standard, both organs found that periods from 4 days and 6 hours eleven and 6 days and 11 were too long (cases Brogan v. United Kingdom, 1988; and respectively the cases De Jong, Balejet and Van der Bring v. Holland, 1984 ) in oreder to comply with the term "promptly".
Article 25 paragraph 4 of the Constitution provides that "persons may be arrested only under a warrant issued by a magistrate for a maximum time limit of 30 days. The arrest person may contest the lawfulness and lay a complaint before a judge within the hierarchically higher court. The time limit of detention may be prolonged only by the judge or by the court with at least 12 months under the law ".
In compliance with the Articles 78 and 79 of the Criminal Procedure Code arrest shall be done based on an arrest warrant issued by the judge for a time period of 30 days the most. The term of arrest may be prolonged depending on complexity of the case and seriousness of the offence, as well when there is a danger of flight from the jurisdiction or the risk of exercising pressure over witnesses or the removal and deterioration of evidence at the criminal pursuit of at the trial, to up to 6 months, and in the exceptional cases up to 12 months. The prolongation of the term of arrest of the person shall be ordered by the judge upon a grounded request of the prosecutor.
In conformity with Article 104 paragraph 3 of the Criminal Procedure Code the prosecutor may order for the person to be released if the within 24 hours while drawing up the report for the arrest, no request for the issuance of an arrest warrant was submitted to the court.
In the text of the Recommendation no. 1245 (1994) the Parliamentary Assembly noted that the national legislation shall not establish the maximal term for the pretrial detention that may not exceed 6 months in cases of less serous offences and 18 months in cases of serious crimes.
The Moldovan legislation does not run counter the above-indicated Recommendation in as far as the maximal term of pretrial detention is concerned.
Article 5 paragraph 4 of the ECHR stipulates the following: "everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful".
In compliance with the Constitution of the Republic of Moldova "the lawfulness of the arrest warrant may be contested under the limits of the law in the hierarchically superior court"
The Commission and the European Court has clearly explained the difference between detention, that results from a sentence delivered by a competent court, in the light of the Article 5 paragraph 1(a) and other forms of detention that derive from the provisions of the Article 5 paragraph 4. As a determining criteria they have chosen the introduction of new elements or the change of the situation of the detained person that will allow him to insist to review the grounds that were at the basis of a lawful arrest. In the case Winterwerp v. Netherlands (1979) the Court stated that a person under detention may have the right "to take proceedings" requesting the reexamination at reasonable intervals the lawfulness of his detention. In the case Bezicheri v. Italy (1989) the Court clarified that the intervals for the review of decisions to detain on remand must be relatively short, whereas the intervals for review in psychiatric detention cases might be somewhat longer without running afoul of the Convention. In this instance an interval of five and a half months for examination of a second application for release from detention on remand was too long. In the case of Dc Jong, Baljet and Van der Brink v. Netherlands (1984) the Court found that a delay of between six and eleven days was too long to wait for an initial review of the detention decision. The Court stated that in this sense the2 other cases referring to the review of the psychiatric detention decisions, the Court has also considered that the intervals of 4 months (Koendjbiharie v. Netherlands, 19990) and 8 weeks (E. v. Norway, 1990) to be a too long delay. The European Court and the Commission have founded that certain attributes of fairness must also be present. In the case Sanchez-Raisse v. Switzerland 1986, the Court held that the equality of arms principles applies in habeas corpus proceedings: there must be an adversarial procedure. In the case Lamy v. Belgium, 1989 the Court held that an accused must have access to the files used by the investigation authorities in their review of the decision to detain the accused on remand. And in the case of Bouamar v. Belgium (1988), the court stated that when a very young person contests his detention he may be entitled to legal assistance in order to respect his fundamental procedural rights under Article 5.4
Article 25 paragraph 6 of the Constitution provides that if the reasons for arrest or detention have ceased to exist, the release of the person concerned must follow without delay.
In compliance with the text, the articles 6, 195/1, 915/2 of the Criminal Procedure Code provides for procedures of contesting the legality of the arrest or detention. Article 6 paragraphs 3,5 and 8:
- if the person was not informed of his rights may serve as a reason for contesting the lawfulness of the arrest or detention;
- any person deprived of the liberty by arrest or detention on reprimand shall be entitled to contest this in a competent court, in the shortest term possible, the legality of the arrest or his detention and to be released if these are illegal;
- any person who is the victim of an arrest or detention that is contrary to the content of the present Article shall be entitled to ask for reparation of damages under the law.
Article 95 of the same Code establishes the possibility the lay complaints against the actions of the criminal pursuit bodies and the prosecutor by the suspect, indicted person, lawyer, aggrieved party, civil party, respondent, as well as by other persons whose legitimate rights and interests have been violated by means of the contested decisions, in the event such a request was not solved by the prosecutor. The complaint shall be examined by the judge in the same activity area of the prosecutor's office within a 10 days term from the moment of taking knowledge on the refusal of the complaint or from the expiry of the 10 days term of lodging the complaint with the prosecutor if the latter did not respond. The complaint shall be examined by the judge in a court's hearing within 10 days from its arrival bringing this to the knowledge of the applicant and the prosecutor. The non appearance of the applicant at the trial shall not impede the judge to examine the case, still the judge may consider his presence mandatory. If the judge considers the complaint as ill founded, he shall issue a conclusion so that the prosecutor removes the discovered violation of the rights and liberties of the natural person, legal entity, in other cases the complain shall be denied. This conclusion may be appealed in cassation.
Article 25 of the Constitution "Individual freedom and personal security
“(1) Individual freedom and personal security are declared to be inviolable.
(2) Searching, detaining in custody, or arresting a person shall be permitted only if based on the authority of law.
(3) The period of detention in custody may not exceed 24 hours.
(4) Persons may be arrested only under warrant issued by a judge for a maximum time limit of 30 days. The arrested person may contest the legality of the warrant and lay a complaint before a judge who is bound to reply by way of a motivated decision. The time limit of detention may be extended to 6 months and in exceptional cases, if approve by decision of the Parliament to 12 months.
(5) The person detained in custody or arrested shall be informed without delay of the reasons for his detention or arrest as well as of charges brought against him which may take place only in the presence of a lawyer, either chosen by the defendant or appointed ex officio.
(6) If the reasons a detention in custody have ceased to exist, the release of the person concerned must follow without delay.
From the practice of many European countries the conclusion may be drawn that the bodies empowered to hold persons in custody have the right to keep the person 48-72 hours in order to present evidence for the justification of the warrant or the appearance of the person before the judge who shall decide whether the warrant of arrest for the person apprehended does not constitute a violation of Article 5 of ECHR. The fact of granting by means of Constitution of ordinary law to the authorities vested by law to detain the person under the Article 5 paragraph 1 let c) would create real possibilities for these bodies to exercise their powers guaranteeing of the right to freedom and security of the person under ECHR.
Article 5 paragraph 5 provides that "everyone who has been the victim of arrest or detention in contravention of the provisions of the Article shall have an enforceable right to compensation".
Article 5 paragraph 5 shall be applied when it is possible to request a compensation of the for the deprivation of liberty inflicted by violation of the provisions of the paragraphs 1-4 of Article 5. But the fact of receiving the compensation does not deprive the person of the status of victim, having as a goal to determine whether in that particular case one has taken into account the guarantees provided for in the Article 5 (case Woukam Moufedo v. France, 1987 ). These provisions shall be applied when the victim succeeded to prove that there was a material and moral damage (case Wassink, 1990). In is worth mentioning that the provision that stipulates the right to compensation constitutes an redeemed right by the interested party with regard to internal authorities, as it is the case for any specified right in the first ECHR title. Article 50, on the other hand, confers on the European Court the competence to "afford just satisfaction" to an individual in certain circumstances. The court has held that these two provisions do not operate on a mutually exclusive basis and that the disposition of the claim under Article 5.5 does nor preclude the possibility of the Court review the matter under Article 50 (case Brogan and Other v. United Kingdom) (1988) and Ciulla v. Italy (1989).
Article 53 of the Constitution:
"(1) Any person whose rights have been trespassed upon in any way by public authority through an administrative ruling or lack of timely legal reply to an application is entitled to obtain acknowledgement of those rights, cancellation of the ruling and reparation of damages
(2) The State is under patrimonial liability as provided by the law for any prejudice or injury caused in lawsuits through errors of the police or the judiciary ".
These constitutional provisions are of a general and do not specify the nature of the damage (material or moral) and the compensation for the inflicted damage. The legislation of the Republic of Moldova does provide for the reparation of moral damages in cases of unlawful deprivation of liberty of individuals, fact the certainly runs counter the provisions of the Article 5 paragraph 4 of ECHR and the case law of the Court.
Article 6
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b. to have adequate time and facilities for the preparation of his defense;
c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
The Court and Commission interpret Article 6 broadly, on the grounds that it is of fundamental importance to the operation of democracy. The Court stated in the case Delcourt v.Belgium (1970) that in a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that the restrictive interpretation of Article 6 para. 1 would not correspond to the aim and the purpose of that provision.
Paragraph 1 of Article 6 applies to both civil and criminal proceedings, whereas the second and the third paragraphs apply exclusively to criminal case.
Article 6 para. 1 lists a number of elements comprising the fair administration of justice. Fundamental to the entire process is access to a procedure with all the attributed of a judicial from of view: the State cannot restrict or eliminate judicial review in certain fields (Golder v. the United Kingdom, 1975).
Acces to a judicial forum must be substantive, not just formal. For instance, in the case Airey v. Ireland (1979), the Court found that a refusal to grant legal aid to an indigent woman seeking judicial separation from her abusive husband violated her right of access to court under Article 6 para. 1. However, the Commission and Court have accepted that administrative authorities properly exercising judicial discretion may enjoy a wide margin of appreciation (Ettl and others v. Austria (1987), Obermeier v. Austria (1990) and Skarby v. Sweden (1990)), as long as they meet the substantive requirements of Article 6.
The Commission and the court interpret the notion of “civil rights and obligations ” quite broadly. For instance in the Konig v. Federal Repulic og Germnay (1978) is refers to the withdrawal of right to run a private medical clinic and to continue to exercise the medical profession, in Le Compte and others v. Belgium (1981) case it concerns disciplinary proceedings before professional association, in Feldbrugge v. Netherlands (1986) it regards the proceedings brought before social courts in order to obtain a widow’s supplementary pension under industrial accident insurance.
Following its reasoning in the case Delcourt v. Belgium (1970), the Court held that Article 6 para. 1 contemplates a substantive rather thant formal conception of the term “criminal charge” in Article 6 para.1 (Deweer v. Belgium (1980)). Thus, the Commission and the Court interpret the nature of a criminal charge quite broadly. In case of Eckle v. Federal Republic of Germany (1982), the Court stated that a criminal charge may be characterized as an “official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence.”
The most important of the unarticulated principles of Article 6 is the “equality of arms”. In the case of Neumeister v. Austria (1968), the Court held that both parties in a criminal proceeding must be represented at all points in the examination of a case, in the case of Bonisch v. Austria (1985), that expert witnesses for both sides must be heard, and in the case of Feldbrugge v. Netherlands (1986), that each party must be given the opportunity to oppose the arguments of the other.
In the role of prosecutors in criminal proceedings has also been examined on several occasions. Where such participation could be considered to be to the detriment of the accused, the Commission has found a violation of Article 6 (Pataki and Dunshirn v. Austria, 1963).
Related to a independent and impartial tribunal, in the case of DeCubber v. Belgium (1984), it was not acceptable for the investigating judge and the trial judge to be the same person, and in the Piersack v. Belgium case (1982), the same result obtained where the president of the tribunal had earlier been the public prosecutor on the case being adjudicated.
The factor which the Commission and Court have examined when determining whether a given proceeding has met the “reasonable time” standard are the complexity of a given case, the way the authorities handled the matter, aspects of the applicant’s own conduct which may have contributed to any delays, and special circumstances which may have justified prolonging the proceedings.
In respect to the publicity requirement, in the case Le Compte and others v. Belgium (1981), the Court held that the right to publicity may not necessarily be violated if both parties to a proceeding consent to its being held in camera, in general.
Paragraph 1 of Article 6 provides that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
The right to a fair trial in the Republic of Moldova is guaranteed by the Constitution.
Article 6 of the Constitution enshrines the principle of separation of state powers:
“In the Republic of Moldova the legislative, executive and judicial powers shall be separated and shall collaborate in the exercise of the prerogatives entrusted to them, according to the Constitution.”
Article 7 enshrines the principle of supremacy of the Constitution:
“The Constitution of the Republic of Moldova shall be its Supreme Law. Any law or legal act that run counter the provisions of the Constitution shall not have legal power.”
Article 20 of the Constitution provides:
“(1) Every person shall be entitled to an effective remedy in the competent courts of law against the acts that infringe upon his rights, freedoms and legitimate interests.
(2) No law may restrict the access to justice.”
Article 114 of the Constitution prescribes that justice is rendered in the name of the law only by courts of law.
Article 115 establishes the judicial system in the Republic of Moldova:
“(1) Justice shall be rendered by the Supreme Court of Justice, Court of Appeals, tribunals and circuit courts.
(2) For certain categories of matters may be established under the law specialized courts.
(3) The establishment of extraordinary courts shall be forbidden.
(4) The organization of courts of law, their competence and procedure before them shall be provided for by organic law.”
Therefore, the constitution of the Republic of Moldova is in compliance with Article 6 of the Convention, securing to everyone access to justice and he exercise of the right to a fair trial.
Article 7, paragraph 1 of the Criminal Procedure Code reiterates the constitutional provision, indicating that justice in criminal matters is rendered in the name of the law only by courts of law. The same provision is reflected in Article 6 of the Civil Procedure Code. Regarding civil proceedings.
Article 4 of the Law on judicial organization no. 514 of 6 July 1995 and Article 1 of the Law on the status of judges no. 544 of 20 July 1995 also comprise these provisions.
Consequently, no institution other than the court of law may undertake the function to render justice in the Republic of Moldova. Thus, the Constitution and the laws of the Republic of Moldova, establishing higher restrictions of this principle than as laid in the Convention, which acknowledges the right to render justice to quasi-judicial institutions, do not contradict the ECHR.
Control of constitutionality of laws
According to the provisions of Article 134 of the Constitution of the Republic of Moldova and of Article 1 of the Law on the Constitutional Court no. 317 of 13 December 1994, “the Constitutional Court shall be the sole authority of constitutional jurisdiction in the Republic of Moldova”.
As prescribed by Article 31 of the Law on the Constitutional Court, subject to the constitutionality control are only normative acts adopted after the entry in force of the Constitution of the Republic of Moldova, adopted on 29 July 1994.
In the Republic of Moldova there are numerous normative acts adopted after the entry into force of the Constitution, the constitutionality control of these acts is performed by ordinary courts of law while considering specific cases, observing Article 7 of the Constitution:“Any law or legal act that run counter the provisions of the Constitution shall not have legal power”.
Thus, the constitutionality control of normative acts it he transition period id performed both by the Constitutional Court and by ordinary courts of law.
We care to mention that individuals do not have direct access to address notifications to the Constitutional Court for the performance of the constitutionality control of normative acts (Article 25 of the Law on the Constitutional Court and Article 38 of the Code of constitutional jurisdiction), and it is not in compliance with Article 6 of the Convention.
The European Court in its judgments in Deumeland case (29 May 1986), Riss case (23 April 1987), Bock case (29 March 1989) has mentioned that Article 6 is applicable also to constitutional proceedings when the judgment of the Constitutional Court may influence the result of a matter, to which Article 6 of the Convention is applicable. For these reasons, the national legislation should open the access of individuals to the Constitutional Court in certain cases.
The judicial system in the Republic of Moldova
After 27 August 1996, in the Republic of Moldova there is a new judicial system, constituted on the basis of Chapter IX of the Constitution, the Law on judicial organization, the Law on the status of judges, Law on military courts no. 83 of 17 May 1996, Law on economical courts no. 970 of 24 July 1996, Civil and Criminal Procedure Code.
The judicial system works through:
1) County, municipal and circuit courts, which consider the merits of civil, criminal and administrative matters falling under their competence.
2) 5 tribunals which try:
a) the merits of civil and criminal cases, falling under their competence as prescribed by law;
b) the appeals against judgments on civil and criminal matters;
c) the appeals is cassation against judgments, for which the law does not provide the remedy of appeal, on civil, criminal and administrative matters.
3) A Court of Appeals which tries:
a) the merits of civil and criminal matters, falling under its competence;
b) the appeals against tribunal judgments on the merits of civil and criminal matters, as well as against judgments of the military court;
c) the appeals in cassation against tribunal judgments delivered on appeals.
4) A Supreme Court of Justice which tries:
a) the merits of criminal matter falling under its competence (for instance, cases on criminal offences committed by the President of the country, by members of the Government, by Constitutional Court, Supreme Court of Justice and court of Appeals judges, etc.);
b) the appeals in cassation against judgments delivered by the Court of Appeals, by the Supreme Court of Justice on the merits of matters, against Court of Appeals judgments delivered on appeals;
c) matters subject to extraordinary remedies, falling under its competence;
d) adopt explanatory decisions on the judicial practice.
In the judicial system have been created specialized courts- military and economical court. Although both the Constitution and the Law on judicial organization provide for a sole judicial system in the state, in which the specialized courts were to be included, being equated in regard to issues of their organization and activity to tribunals, save certain cases; the Law on economic courts in fact has created a parallel judicial system. This economic judicial system comprises the circuit economical court, which tries the merits of economical cases given by the law under its competence and the Economical Court of the Republic of Moldova, which is the supreme economic court, which tries the merits of certain economic matter, as well as the appeals against economical court’s judgments and appeals in cassation against its own decision, delivered on appeals.
So, in economical matters, tried by economical court, the parties are not entitled to ordinary remedy against judgments in the supreme hierarchical court – the Supreme Court of Justice, thus Article 6 of the Convention is not observed.
Independence and impartiality of courts of law
Article 116 para. 1 of the Constitution of the Republic of Moldova provides:
“(1) Judges from courts of law shall be independent, impartial and irremovable,under the terms of the law.”
Article 1 of the Law on the status of judges prescribes:
“(1)The judicial power shall only be exercised by the court represented by the judge, the sole bearer of this power.
(2) A judge shall the person constitutionally vested with justice-making functions, which are performed by him/her on a professional basis.
(3) The courts' judges shall be independent, irremovable, according to the law and subjected only to it.”
Article 116 of the Constitution provides that the judges of the Supreme Court of Justice are appointed by Parliament at the proposal of the High Council of Magistrates. The judges from other courts of law are appointed by the President of the country also at the proposal of the High Council of Magistrates. Judges are appointed at first for a 5 year term, then until they reach 65-year age ceiling. In order to be appointed as judge at a tribunal, judge at the Court of Appeal and at the Supreme Court of Justice he shall have a tenure as judge of at least 5, 7 and 15 years accordingly. The promotion, and transfer of judges is performed only with their consent at the proposal of the High council of Magistrates. Sanctions may be applied to judges only in the terms of the law.
The provisions regulating the disciplinary procedures of judges and applicable sanctions, including the conditions and the procedure for judge’s dismissal are comprised in the Law on the status of judges, in the Law on the Disciplinary Board and the disciplinary responsibility of judges no. 950 of 19 July 1996 and the Law on the High Council of Magistrates no. 947 of 19 July 1996.
The judge’s independence is guaranteed by the fact that their wages are established by law, being calculated proportionally to the President’s wage and may not be decreased.
Judges may not join or be members of political parties or other socio-political organizations or carry out activities of political nature.
Article 13 of the Law on judicial organization enshrines the inadmissibility of interference in rendering justice, prescribing the following:
“(1) The interference in the justice-making process is prohibited.
(2) The exercising of pressure on judges with the purpose of impeding the complete and objective consideration of the case or of influencing the judicial decision, brings about administrative or criminal liability, in accordance with the law.
(3) The meetings, demonstrations or other actions carried on at a distance of less than 25 meters from the premises where justice is made, if such are conducted with the purpose of exercising pressure on the judges, are qualified as interference in their activity.”
Both the Criminal and Civil Procedure Code provide for grounds and means to recuse the judge when doubts arise regarding his impartiality to consider the case.
Right to a fair hearing
Article 117 of the Constitution of the Republic of Moldova provides:
“Legal hearings in courts of law shall be public. Cases may be heard in camera only in the cases established by law with the observance of all procedure rules.”
The constitutional principle of publicity of judicial hearings is regulated also in Article 12 of the Criminal Procedure Code and in Article 10 of the Civil Procedure Code, which provide that in camera judicial hearings are permitted based on a motivated decision of the court in cases when the interest of maintaining the confidentiality of a secret protected by law requires it, in cases of criminal offences committed by persons under 16 years, of sexual criminal offences and in other cases in order to prevent the disclosure of information on private life of participants to the proceedings; in cases when victim’s, witness’ security and of other persons participants to the proceedings, their family or close relative require it.
According to Article 10 of the Law on the judicial organization, judicial hearings are public. Considering cases in camera is permitted only in the cases established by law, with the observance of the legislation in force. Judgments shall be delivered in public. The examination of cases is performed by virtue of the adversiality principle.
Both criminal and civil procedure provide for the mandatory character for the court to create equal conditions for the exercise of the rights set in the law for the participants at the trial.
Article 215 of the Criminal Procedure Code provides that participants to the trial enjoy equal rights before the court in respect of evidence presentation, participation at their examination and the formulation of requests. The Criminal Procedure Code does not provide for the prerogative of the court to present evidence ex officio. The court is entitled and is bound to take all measures provided in the law for complete and objective examination of all evidence presented by parties or administered at their request.
Reasonable term
The requirement of the Convention for the consideration of a case in a reasonable term is subjective and differs from one case to another.
In civil cases this term starts to run since the moment when the law suit is filed and in cases of prejudicial proceedings even prior to this moment.
In criminal cases this term starts to run from the moment when the criminal file is opened. The reasonable term comprises also the term for the consideration of remedies, both of the appeal and of the appeal in cassation.
The maximum term of the arrest pending trial, as a preventive measure is provided under Article 79 of the Criminal Procedure Code, is generally of 6 months. But in exceptional cases it may be prolonged up till 12 months. The prorogation of this term for a period exceeding 12 months is forbidden, and the indicted person should be immediately released in this case. Article 116, 144 an 196 of the Criminal Procedure Code do not set a specific term for the examination of the matter in court. And, deriving from their content, as well as fro other articles of the code, one may draw the conclusion that the court is bound to examine the matter as promptly as possible, completely and objectively.
The practical duration of the reasonable term depends on the complexity of the case, on the way the authorities handled the matter, aspects of the participant’s own conduct.
Paragraph 2 of Article 6 provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
Article 21 of the Constitution of the Republic of Moldova is entirely in compliance with the ECHR provisions, indicating that any person indicted for having committed an offence shall be presumed innocent till found guilty on legal ground during a public trial securing all necessary safeguards of his rights.
The provisions of the Criminal Procedure Code have been brought in line with these constitutional provisions (Article 4 and 41 on the presumption of innocence and Article 54, 56, 57 on certain cases of termination of criminal proceedings by the court of law).
The procedure of termination of criminal proceedings was also brought in compliance with para. 2 of Article 6 of ECHR by means of the Law of the Republic of Moldova of 10 April 1996, amending Article 186 an 191, para, 1 point 3 of the Criminal Procedure Code. According to these provisions in the event of circumstances set in Article 185 of the Criminal Procedure Code (cessation of criminal proceedings on grounds of non-rehabilitation), the criminal investigator draws up a motivated report on the need to cease criminal proceedings. The file along with the report are sent to the prosecutor during 24 hours and the prosecutor addresses by means of an ordinance to the court of law informing it on the need to cease criminal proceedings.
From the above mentioned it drives that only the court of law may decide on the guilt of the defendant. But the Criminal Procedure Code provides for cessation procedures of criminal proceedings, which are contrary to the presumption of innocence principle. Therefore, according to Article 51 of this Code, the prosecutor, as well as the criminal investigator or the penal pursuit bodies, without instituting criminal proceedings, may transmit by means of a motivated ordinance the materials regarding persons who had committed acts containing the essential elements of crime, for them to be examined in a commission for minors or to entrust them on personal guarantee for reeducation and correction. These provisions are contrary to paragraph 2 of Article 6 of ECHR, since the above listed official persons are not judges or magistrates, and by means of their ordinance they declare a person guilty for having committed criminal offences, without having his guilt established by a court of law.
We consider that the refusal to institute criminal proceedings or to cease criminal proceedings by virtue of mentioned grounds must be decided not by the prosecutor, or the criminal investigator or the penal pursuit bodies, but by a competent tribunal
According to Article 52, 55 of the Criminal Procedure Code the prosecutor, the criminal investigator or the penal pursuit bodies are entitled to cease criminal proceedings in respect of persons who have committed offences not presenting a serous social danger or in respect of persons that have actively contributed to crime detection.
These provisions are also contrary to the presumption of innocence principle for the same reasons as referred to while commenting on Article 51.
We mention that the wording of Article 52 creates the possibility for abuse of official bodies competent to cease criminal proceedings.
From our point of view, Articles 52, 55 of the Criminal Procedure Code need to be reformulated, in order to exclude the possibility to cease of criminal proceedings for the prosecutor, criminal investigator or penal pursuit bodies, and to defer these competences to the court of law,
According to paragraph 2 of Article 6 of ECHR the influence of the presumption of innocence is laid down in the judgment. In this context, according to the Strasbourg case law, the judgment of acquittal must not contain any innuendo on the guilt or the presence of doubts when the person was not found guilty by the court.
As set in Article 6, paragraph 3 letter a) of ECHR everyone charged with a criminal offence is entitled to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.
In the case of Brozicek v. Itlay (1989), the Court found a violation of the right to be informed where a resident in a country was charged with a criminal offence in another country and was served with papers to that effect in the language of the second country. In spite of his requests for translation of the charges into “one of the languages of the United Nations”, the second country proceeded to try him in absentia and ultimately to find him guilty, without ever responding to his request.
The Constitution of the republic of Moldova reflects this principle in Article 25 para. 5: “The person detained in custody or arrested shall be informed promptly on the reasons of his detention or arrest, as well as on the charges against him, which may take place in the presence of a lawyer, either chosen or appointed ex officio.”
These provisions regulate only the cases when the person is detained in custody or arrested, while the ECHR refers to a person charged with a criminal offence.
As established in Article 411 and 130 of the Criminal Procedure Code, the suspect or the indicted person must be informed in detail in a language he understands about the nature and the reason the charge brought to him, his rights being explained to him. These provisions are fully in compliance with Article 6 para. 3 letter a) of ECHR.
Article 6 para. 3 letter b) provides that everyone charged with a criminal offence is entitled to have adequate time and facilities for the preparation of his defense.
In the case of Jespers v. Belgium (1981), the applicant complained of violations of sections b and c of Article 6.3. The Commission defined “facilities” as including the opportunity for an accused to acquaint himself with the results of investigations carried out throughout the proceedings, whenever they occur and however they are defined. However, the Commission went on to say that an individual could not invoke this definition in order to imply a right of unlimited access to the investigating authorities’ files on a case.
Article 26 para. 1 of the Constitution prescribes that the right to defense is secured.
Article 411 and 42 of the Criminal Procedure Code grant to the suspected or charged person with a criminal offence the right to present evidence, to have a council, to take knowledge of verbatim records of investigation acts, performed with his participation, to take knowledge of the materials sent in court for the confirmation of the lawfulness and of the grounds of the arrest to which he was subjected to, to make requests.
After the completion of the penal investigation or of the preliminary investigation, as set in Article 178 of the Criminal Procedure Code, the charged person is entitled to take knowledge of all file materials with the participation of the council. The charged person and his council must not be limited in time for taking knowledge of all file materials.
According to Article 179 of the Criminal Procedure Code, the charged person is entitled to have meetings with his council in the presence of other persons, to request the performance of some criminal pursuit acts, to bring and attach to file different evidence, etc.
According to Article 181 of the v, the charged person and his council may ask in an oral or written form the performance of supplementary acts of penal investigation.
Therefore, we ascertain that the above-scrutinized provisions are fully in compliance with the provisions of Article 6 para. 3 letter b) of ECHR and the Court’s case law.
Article 6 para. 3 letter c) of ECHR prescribes that everyone charged with a criminal offence is entitled to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
The Court has held that the right to be given legal assistance for free when the interests of justice so require is not an alternative to the right to defend oneself, but an independent right to which objective standards apply. If a given case raises legal issues that require the application of a certain level of professional expertise, the State cannot demand that an accused attempt to address such issues himself (Pakelli v. Federal Republic of Germany, 1983).
According to Article 26 para. 3 of the Constitution of the Republic of Moldova, throughout the trial the parties shall be entitled to be assisted by a council, chosen or appointed ex officio. We have referred to this aspect under Article 6 para.3 letter b) of ECHR.
The right to defense is enshrined in Article 13 of the Criminal Procedure Code, according to which throughout criminal proceedings parties are entitled to be assisted by a council, chosen or appointed. The penal pursuit bodies are bound to assure the suspected or charged person legal aid if he does not have a council.
Article 45 of the Criminal Procedure Code provides for the charged person’s right to defend himself.
The referred to provisions comply with the ECHR provisions.
It is also necessary to mention that para. 6 of Article 43 of Criminal Procedure Code regulates that if the suspected, the charged person or the defendant did not hire a council, the head of the legal aid office or of the bar is obliged at the request of the court or of penal pursuit bodies to secure the ex officio participation of a council for the defense of the suspected or charged person or of the defendant.
Article 6 para. 3 letter d) of ECHR regulates that everyone charged with a criminal offence is entitled to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
The Court has consistently found violations of Article 6 para. 3 letter d) where convictions have been based on the testimony of anonymous witnesses unavailable for questioning by the defense (Kostovski v. Netherlands, 1989; Windisch v. Austria , 1990).
The legislation of the Republic of Moldova does not contain any provision that would grant the suspected or charged person the right to question a witness during pretrial proceedings. A single exception from these rule are Article 142, 143 of the Criminal Procedure Code, by virtue of which the criminal investigator is entitled to confront persons among the depositions of which exist essential contradictions. The confrontation may also take place between the charged person and witnesses or aggrieved parties, during the confrontation, these persons are entitled to address questions one to another.
Article 251, 253, 255, 262 and 263 of the Criminal Procedure Code regulate the right of the charged person to question witnesses during the hearing of witnesses, of aggrieved parties, of experts in court, which is entirely in compliance with the ECHR.
In what concerns the charged person’s right to request the questioning of witnesses in his defense and to obtain the summoning and questioning of defense witnesses in the same conditions as set for accusation witnesses, the legislation of the Republic of Moldova entirely complies with the ECHR provisions. Article 411, 42, 178, 181, 215, 216, 222, 238 of the Criminal Procedure Code grant to the suspected or charged person the right to request the summoning and questioning of witnesses in his defense during the preliminary investigation of during the trial.
Meanwhile, we care to mention that the regulation under Article 26 of the Criminal Procedure Code, according to which the depositions made by witnesses during the preliminary or criminal investigation shall be read before the court when the witness is not present and his absence is justified either by the absolute inability to appear before the court, or for reasons to secure personal safety or national security, is contrary to Article 6 of ECHR, because the defendant does not have the possibility to question this witness at the preliminary investigation and is deprived of this right in court.
Article 6 para. 3 letter e) of ECHR provides that everyone charged with a criminal offence is entitled to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
In the case of Luedicke, Belkacem and Koc v. Federal Republic of Gernamy (1978), the Court stated that this provision applies to “all those documents or statements in the proceedings… which it is necessary for him to understand in order to have the benefit of a fair trial”.
Article 118 of the Constitution of the Republic of Moldova reads as follows:
“(1) The judicial hearings shall be performed in the Moldovan language.
(2) Persons that do not know or do not speak Moldovan are entitled to take knowledge of all file materials, to address to the court by means of an interpreter.”
The same principle is regulated by Article 11 of the Criminal Procedure Code, according to which persons that take part at the trial and which do not speak the language of the trial, are secured the right to make declarations, requests, to take knowledge of all file materials, to address to the court in their mother tongue to enjoy the services of an interpreter. Criminal pursuit acts and court acts shall be handed out to the defendant, being translated in this mother tongue or into another language that he speaks.
According to Article 87 para. 2 of the Criminal Procedure Code, the charged person is assisted for free by an interpreter. The above mentioned provisions refer also to case in which are involved persons with hearing and speaking deficiencies.
Therefore the legislation of the Republic of Moldova is completely in compliance with the provisions of Article 6 para.3 letter e) of ECHR.
ARTICLE 7
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations.
Article 7 of ECHR enshrines the principle of lawful incrimination, non-retroactivity of the criminal law, as well as the principle according to which a person may not be punished for having committed a criminal offence with a more severe sanction that the one prescribed by the law in force at the moment when it was committed.
The principle of the criminal offence and of the sanction to be provided for in the law, the principle of non-retroactivity of the criminal law are tightly related among themselves and have been reflected in the Criminal Code, which is the only source of criminal law in the Republic of Moldova. Only illegal acts which are prescribed in this Code (nullum crimen sine lege) are considered to be criminal offences and only for them are established penalties (nulla poena sine lege). The illegal acts which do not entail criminal liability, considered as administrative offences are included under the Code of administrative offences.
Therefore, Article 6 of the Criminal Code reads as follows:
“The criminal character of an act and application of penalty for it shall be established by the law in force when this act has been committed.
The law, which removes the punishment for a certain act or which establish a milder punishment for it, shall have retroactive effect, meaning that it has effect also on the acts committed before its entry in force.
The law which established a punishment or a more severe punishment for an act, shall have retroactive effect.”
And Article 8 of the Code on administrative offences provides:
“ The person that has committed an administrative offense shall be held liable under the terms of the law in force at the moment and in the place where the administrative offence was committed.
The acts that establish a milder sanction or that remove responsibility for committing an administrative offense shall have retroactive effect, meaning that they extend over administrative offences committed before the entry in force of these acts.
The acts which establish responsibility or a more severe sanction for administrative offences shall not have retroactive effect.”
Thus it derives that both codes comprise provisions that prescribe the above mentioned principles.
In the same context, being directly related to the principle of lawfulness and humanism, the non-retroactivity principle of the criminal law is considered as an essential legal principle of high importance, recognized as constitutional principle.
Article 22 of the Constitution of the Republic of Moldova reads as follows:
“Non-retroactivity of the law
No one shall be sentenced for actions of omission, which at the moment when have been committed did not constitute a offence. No harsher penalty that the one applicable when the offence was committed shall be applied”
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well‑being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
1. Right to private life
In its report in the case of Van Oosterwijk v. Belgium (1979), the Commission delineated the right to respect for private life under Article 8 of the Convention as: "the right to privacy, the right to live as far as one wishes protected from publicity."
It comprises also, to a certain degree, the right to establish and develop relationships with other human beings especially in the emotional field, for the development and fulfillment of one's own personality. In its report in the case of Brüggemann and Sceuten v. the Federal Republic of Germany (1977), the Commission alluded to the parameters within which the right to private life must be exercised. The claim to respect for private life is automatically reduced to the extent that the individual himself brings his private life into contact with public life or into close connection with other protected interests.
In the cases of Dudgeon v. the United Kingdom (1981), Norris v. Ireland (1988) and Modinos v. Cyprus (1993), the Court held that a State's prohibition of homosexual acts between consenting adults constituted an unjustifiable interference with the right to respect for private life under Article 8.
In both the Rees v. the United Kingdom (1986) and the Cossey v. the United Kingdom (1990) cases, the Court has held that the State is under no obligation under Article 8 to alter official birth records to accommodate changes of sex.
The Republic of Moldova's Constitution regulates in Article 28 the principles provided in Article 8 of ECHR, indicating that the State shall respect and protect private and family life.
The legislation of the Republic of Moldova complies to a great extent with the requirements of Article 8 of the Convention. The Law from June 15, 1995 abrogated paragraph 1 of Article 106 of the Criminal Code, which provided criminal liability for homosexual relations between individuals of the same gender, consenting to such relations. However, the law prohibits homosexual relations with a minor, by physical or psychic compulsion, by taking advantage of the victim's state of incapacity, and provides criminal liability for it.
It may seem that the restrictions provided by the Moldovan legislation are narrower than the cases indicated in paragraph 2 of Article 8 of the Convention. It means that Article 106 of the Criminal Code do not incriminate homosexual relations in public, which infringe upon morals and public order.
We consider that it is not a way too liberal interpretation of these issues, because such actions are prohibited by the State by qualifying them as criminal offences (aggravated hooliganism), provided in Article 218, paragraph 2 of the Criminal Code.
Another restriction imposed by the State and which, in our view, does not contradict Article 8 of ECHR is the prohibition of voluntary sexual intercourse with a female minor under the age of 16 years (actions incriminated in Article 103 of the Criminal Code). These prohibitions do not violate the right of individuals to private life, because they are provided for the purpose of protecting the health of the female minor, which corresponds in fact to the requirement of paragraph 2 of Article 8.
The legislation of the Republic of Moldova has no provisions regulating changes of sex and therefore - no provisions regulating any limitations in this sense.
2. Surveillance and date collection and protection
In the cases of Klass and Others v. the Federal Republic of Germany (1978) and Malone v. the United Kingdom (1984), the applicants complained that secret surveillance against them, in the course of criminal investigations, violated their rights to privacy and correspondence. The Court held that the State's need to protect against "imminent dangers" threatening "the free democratic constitutional order" were legitimate State aims under the "necessary in a democratic society in the interests of national security and for the prevention of disorder or crime".
In the case of Leander v. Sweden (1987) the applicant complained that the Swedish Government's retention of secret information about him and the invocation of that information to deny him a public job constituted a violation of Article 8. The Court noted that neither does the Convention guarantee a right of access to public service nor did the State's actions in this case "constitute an obstacle to his leading a private life of his own choosing".
In the case of Gaskin v. the United Kingdom (1989) the British authorities had refused to supply a young man who had spent virtually his entire childhood in a series of foster homes, with all the records relating to his time in public care, on the grounds that the information therein had originally been provided in confidence and that consent could not be obtained from those who had supplied it. The Court nevertheless found a violation of Article 8 in that no procedure existed whereby an independent authority could take a final decision to release records in instances where a contributor either could not be found or unreasonably withheld his consent.
The Constitution of the Republic of Moldova provides in Article 34:
"(1) The right of individuals to access any information of public interest may not be restricted.
(2) Public authorities, according to their competencies, shall be bound to ensure the correct information of the citizens on public affairs and issues of personal interest.
(3) The right to information shall not prejudice the measures of protection of citizens and national security."
The legislation of the Republic of Moldova complies greatly to Article 8 of the Convention whereas data collection and protection is concerned.
According to the Law on operative investigation activity no.45 from April 12, 1994, operative investigation service is entitled to collect data. The persons cooperating with the operative investigation service have the obligation of keeping the secrecy of information, which became known to them during the operative investigation activity. The data on persons infiltrated in criminal organizations, on special agents working undercover or who had offered confidentially assistance to these bodies, may supplied only with the written consent of these persons and only the cases provided by the law.
The Law on state secret no.106 from May 17, 1994, refers first of all to the national defense and security, but such declaration is not enough to say that the protection of data is fully regulated. This law gives a clear definition of what is a state secret and what is not. In particular, the law recognizes as state secrets the data on persons who work or used to work confidentially with the intelligence service, counter-intelligence and operative investigation services. According to this law, the material damage caused to the data holder connected with making such data secret, has to be covered by the State. The data holder is entitled to appeal in court the actions of the official person, who, in his opinion, breached his rights. The law prohibits making secret the data of violation of human right and fundamental freedoms.
Article 6 of the Law on postal service no.463 from May 18, 1995 provides that persons engaged in postal service are obliged to ensure confidentiality. It is prohibited to violate the secret of correspondence or to reveal its content and of other postal expeditions. Article 31 of the Law on postal service prohibits the postal operators to communicate to a third person, except for the expeditor, addressee and the person empowered with right of reception, information regarding the postal expedition and to transmit the postal expedition to a third person in order for him to get knowledge of it. We consider that Article 32, paragraph 1 of the Law on postal service, according to which the post office is entitled to open the postal expedition if it may not be delivered or re-addressed because of the lack of the expeditor's and addressee's indication of addresses, contradict Article 8 of the Convention. We find this as an interference with the private life of individuals, violating the confidentiality of correspondence, guaranteed in Article 30 of the Constitution.
According to Article 4, paragraph 2 of the Law on telecommunications no.520 from July 7, 1995, the persons working in the field of telecommunications have the duty to ensure confidentiality of talks. It is forbidden to disclose the content of phone talks, of other communications, performed by telecommunication means, as well as disclosure of information on services rendered to persons other than the expeditor, the addressee or the appropriately authorized person. It is forbidden to commute in an unauthorized manner to telecommunication means, which are part of public telecommunication networks. We consider that Article 4, paragraph 4 of this law, according to which, for the purpose of ensuring the national security or in criminal cases with severe consequences, communications may be intercepted, under the law, by state authorized bodies, is not contradicting paragraph 2 of Article 8 of ECHR. To ensure the interests of national security, public safety or the economic well‑being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others, communications may be intercepted under the law, by state authorized bodies.
The Law on press no.243 from December 30, 1994, in Article 4 prescribes that periodicals and press agencies shall publish, according their own assessment, any type of materials and information taking into consideration that the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions and penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The Law prohibits the publication of information on adoption without the consent of the adoptive parents and in case of their death, without the consent of the adopted or of the guardianship authority.
Periodicals and press agencies shall not be entitled to reveal their source of information or the pseudonym of author without his consent. The source of information or the author's pseudonym may be revealed only if the broadcast material meets the constitutive elements of a crime and only based on a court order (Article 18). To exercise his professional duties, the journalist shall be entitled to ask the keeping of the author's confidentiality (Article 20).
According to the Law no.982 of 11 May 2000, on the access to information, everyone shall be entitled to seek, receive and take knowledge of official information. The exercise of these rights may be limited for certain reasons, corresponding to the principles of international law, including the protection of national security or of the person's private life. It is also provided that the exercise of these rights shall not involve any kind of discrimination based on race, nationality, ethnical origin, language, religion, sex, opinion, political belonging, wealth or social origins. No restrictions on the freedom of information shall be imposed, unless the source of information is able to prove that the restriction is governed by organic law and is necessary in a democratic society for the protection of human rights and legitimate interests or of national security and that the infliction brought to these rights and interests would be greater than the public's interest in that information. The information containing personal data is only such data referring to an identified or identifiable person, the disclosure of which would constitute a violation of privacy, and it classifies as confidential information about a person. In the meaning of this Law, there shall not be considered as confidential information the data related exclusively to the identification of persons (data contained in identity cards). If the person to whom personal data refer to does not consent to its disclosure, the access to such data may be authorized only by a court's judgement, which established that the disclosure would be in the public interest, therefore would refer to the protection of health of the population, to public security, protection of environment. If the international treaty or agreement to which the Republic of Moldova is a party to provide other rulings than those enshrined in the domestic law, the international treaty or agreement shall apply.
3. Right to family life
The European Court has an expended practice concerning the right to family life. In the case of Marchx v. Belgium (1979) it was mentioned that the blood ties between a child and his mother is guaranteed, regardless the age of the mother and whether she is or not married. Also, the ties between near relatives, for instance those between grandparents and grandchildren are protected.
In the case of Johnstone and Others v. Ireland (1986) it was pointed out that the cohabitation of a man, a woman and of their child, regardless their marital status, has to be protected.
In the case of Keegan v. Ireland (1994) the ties between a child and his natural father, even if after the child's birth the father did not live together with the child's mother or if their relation ended once the child was born, were acknowledged. It was also stated that the legal relation between married persons and their child (the case of Berrehab v. the Netherlands, 1988; Gul v. Switzerland, 1996) should be protected as must be the adoptive family (the case of X v. France, 1983).
According to the position of the European Court, the respect for family life includes:
- the right to have legal family ties (the case of Kroon v. the Netherlands, 1994);
- the right to spend time together of children and parents (the case of Berrefab v. the Netherlands, 1988);
- the right to exercise the rights and duties of parent, such as the right to decide where the child should live, follow education or be placed for healthcare (the case of Nielsen v. Denmark);
- the right to take measures in order to bring back together the parent and the child when they are separated as a consequence of applying the measure of protecting the child.
The protection of family life is related not only to social, moral or cultural aspects, but also to material interests, such as inheritance (the case of Marckx, 1979).
These principles are regulated in the following articles of the Republic of Moldova's Constitution:
"Article 48
(1) The family is the natural and fundamental constituent of society and as such is entitled to be protected by the State and the society.
(2) The family is founded on the freely consented marriage of husband and wife, on the spouses' equality of rights and on the duty of parents to ensure their children's upbringing and education.
(3) The law shall establish in which conditions a marriage may be concluded, terminated or annulled.
(4) Children have the duty to look after their parents and help them in need.
Article 49.
(1) The State shall support formation and development of families and the fulfillment of their duties, by economic and other means.
(2) The State shall protect the motherhood, the children and the young and shall therefore stimulate the development of the necessary institutions.
Article 50
(1) Mothers and children have the right to receive special protection and care. All children, including those born out of wedlock, shall enjoy the benefits of the same social assistance."
The Republic of Moldova's legislation on family relations between spouses will be analyzed within the comments on Article 12, while speaking of Article 8, we will refer only to family relations between parents and children.
The Family Code regulates the paternity, protecting in such a way the interest of the child.
According to Article 46 of the Code, the mutual rights and duties of parents and children result from the origin of children, certified under the law.
According to Article 48 of the Code, if the child is born from parents who are not married and in the lack of a common statement of both parents or of the child's father, paternity shall be established by the court, based on the statement of one of the parents, of the child's guardian or of the child himself when he reaches the full age.
The Code guarantees the parents equal rights and duties towards their children, regulates the participation of each parent at the child's upbringing and communication with the child if his parents live apart. The law also guarantees the right of grandparents, brothers and sisters of the child to communicate with him.
In such a way, the legislation of the Republic of Moldova guarantees the rights and duties of parents and of their children, as well as of the relatives towards children, regardless the marital status of the child's parents - which is in compliance with the provisions of ECHR and the European Court case-law.
The Family Code provides limitations on the exercise of the parental rights.
Article 67 provides that parents may lose parental rights if they avoid to fulfill their duties, including the payment of alimony; refuse to take the child from the maternity or from another healthcare, education, social assistance institution or from another similar institution; abuse of the parental rights, treat the child cruelly, applying physical or psychic violence, molest the child; exert a negative influence on the child due to the abuse of alcoholic drinks; suffer from chronic alcoholism or drug-addiction; they have committed intended crimes against the life or health of the child or spouse. According to Article 68, the loss of parental rights may be imposed only by a court's judgement.
According to Article 71, at the request of the guardianship authority, the court may decide on the separation of the child from his parents, without imposing the loss of parental rights, and placement of the child under the guardianship's authority's supervision, if the child's staying together with his parents represents a danger to his life and health. At the parents' request, the court may return them the child, if this is not contrary to the child's interests.
Article 72 provides that in case of separation of the child from his parents, without imposing the loss of parental rights, the parents loose their right to communicate with the child, to participate personally at his upbringing and to represent his interests. The parents from whom the child was taken away, are entitled to have meetings with him, in some cases, only if they have the permission of the guardianship authority.
We consider these restrictions as not coming in contradiction with paragraph 2 of Article 8 of ECHR.
For the adoption of the child, the consent of his parents shall be given (Article 124). The consent of the parents is not necessary for the adoption of the child, if these: lost their parental rights; have been declared as lacking legal capacity; have been declared as disappeared; are unknown; do not live together with the child and avoid in an ill-grounded manner to support and bring up the child for a period of over 6 months. If the child is under guardianship, the written permission of the guardian shall be also required. Such permission may be expressed by the guardian orally in front of the court (Article 126).
For the adoption of the child who has reached the age of 10 years, his consent is also required, which should be expressed before the court. As an exception, the child may be adopted without his consent if till the moment of adoption he has lived in the family of the adoptive parents and has no knowledge of the fact that these are not hi natural parents (Article 127).
4. Correspondence
Article 30 of the Constitution provides:
"(1) The State shall ensure the privacy of letters, telegrams, other postal expeditions, of the telephone conversations and of the use of other communication means.
(2) Derogation from paragraph (1) may be determined by law, when this is necessary for the interests of national security, economic well-being of the State, public order and for crime prevention."
The Criminal Code of the Republic of Moldova provides in Article 135 criminal liability for the violation of the confidentiality of correspondence.
The European Court held that the right to respect for correspondence may be breached, for instance, by the police or by other investigation bodies through surveillance of phone talks (the cases of Klass and Others v. the Federal Republic of Germany (1978) and Malone v. the United Kingdom (1984), Hurvig and Kruslin v. France (1990).
Article 154 of the Criminal Procedure Code allows the criminal investigator to seizure and levy correspondence from postal and telegraphic offices, only with the prosecutor's authorization or based on a court's order, if such measure, in a democratic society, is necessary for the interests of national security, public safety, economic well-being of the State, public order, crime prevention, protection of health and morals or for the protection of human rights and interests of others.
Articles 156-1 and 156-2 of the same Code permit the interception of conversations held per telephone and other telecommunication means by the suspect, accused, defendant or other persons involved in the criminal offence, as well as recording of such conversation, compliant to the decision of the criminal investigation body. Interception may be made by the investigator based on the authorization of the prosecutor or based on a court order, for a 6 moths term the most, if such measure, in a democratic society, is necessary for the interests of national security, public safety, economic well-being of the State, public order, crime prevention, protection of health and morals or for the protection of human rights and interests of others.
According to Article 6, paragraph 2, sections j), l), m) and p) of the Law on operative investigation activity, investigation bodies of the Intelligence and Security Service and of the Ministry of Internal Affairs, are entitled to perform the following operative investigation measures:
- to control postal parcels;
- to tap phone and other talks;
- to gather intelligence from technical channels of communications.
Also, according to paragraph 2 of Article 6 of the same law, operative investigation bodies of the Intelligence and Security Service, Ministry of Internal Affairs and of the Ministry of Defense, are entitled, during operative investigation measures to use informational systems, audio, video, recording, photographic devices and other modern technical means.
The above derogation from the constitutional guarantees from the secret of correspondence, in general lines, comply with Article 8 of ECHR.
4. Inviolability of home
Article 8 guarantees everyone the right to respect for his home.
The Strasbourg jurisprudence noted in the case of Chappel (1989) that the entry in one's premises to pursue with criminal investigation may be considered as an interference with the private life and a violation of the right to respect for home.
Article 29 of the Constitution:
"(1) Home and residence shall be inviolable. No one shall be entitled to enter or stay in one's premises or residence, without his consent.
(2) Derogation from paragraph (1) may be determined by law, in the following situations:
a) to carry out an arrest warrant or to enforce a court's judgement;
b) to remove a danger threatening the life, physical integrity or the assets of a person;
c) to prevent the spread of epidemics.
(3) Searches and investigation on the crime scene may be disposed and carried out only under the law.
(4) Searches during night-time, except for flagrant crimes, shall be forbidden."
Article 136 of the Criminal Code incriminates illegal search, evacuation or other acts violating the inviolability of home of the citizens, qualifying these acts as crimes against inviolability of home.
Article 147-151 of the Criminal Procedure Code provides that search shall be performed based on a founded ordinance of the investigator, only with the authorization of the prosecutor. In emergency cases, the search may be conducted without such authorization of the prosecutor, followed by subsequent notification of the prosecutor.
According to Article 6, section i) of the Law on operative investigation activity, operative investigation bodies of the Intelligence and Security Service, Ministry of Internal Affairs and of the Ministry of Defense, are entitled to search rooms, buildings, plots of land and transportation means without the authorization of the prosecutor. According to Article 9, section 3, presentation of operative investigation documents to the prosecutor is necessary to get his approval on the conduction of operative investigation measures.
According to the European case-law, the provisions on the protection of home may be applied for the protection of office. The object of private life protection does not restrict to a determined "circle" inside which the individual lives his private life that he chose, excluding totally the outside life, which is not part of this circle. Respect for private life should include, to a certain extent, the right to establish and develop relations with other persons. The right of interference, though, must be exhaustive when professional activities, business affairs or offices are involved (the case of Niemietz v. Germany, 1992).
Considering the Strasbourg jurisprudence, we reached the conclusion that the performance of search or of operative control provided in section i) of Article 6 of the Law on operative investigation activity may be carried out only based on an authorization issued by the court, and in emergency cases of flagrante delicto - with the permission of the prosecutor, followed by the notification of the court in order to justify the actions performed. This mechanism could ensure the legality and fairness of such actions.
Article 9guarantees the right of everyone to the freedom of thought, conscience and religion. This right includes freedom to change his religion or belief and freedom, either alone or in the community with others, and in public or private, to manifest his religion or belief, in worship, teaching practice and observance.
ECHR regulates and makes a distinction between the freedom of thought, conscience and religion, providing directly the freedom of the person to his religion or belief.
Concurrently, paragraph 2 of the Article 9 of the ECHR protects the rights indicated in the paragraph 1 determining all the cases when the exercise of these rights is limited and namely:
- public safety;
- protection of order;
- protection of public health and morals;
- protection of rights and freedoms of others.
The above mentioned restrictions shall be provided for by the law and to represent measures necessary in a democratic society.
The terms "thought, belief, and religion" aim at a large spectrum of intellectual and spiritual activities. Therefore, the Commission and the Court have particularly carefully examined the observations with regard to the Article 9 and in several cases have formulated their concept explaining the meaning of these terms. The Commission has given the explanation of the freedom of thought as the freedom of thoughts and opinion both of religious as well as of other nature, emphasizing in the same time, that these can be considered as being equal to the freedom to manifest these thoughts. The State or the society takes knowledge of thoughts and opinions of the individual only if the latter makes them public.
For the purpose of guaranteeing the freedom of thought, the bodies from Strasbourg are in favor of a neutrality option of the states, meaning that these should not bind their citizens to a particular ideology or religion.
ECHR provisions do not forbid the creation or the presence of a state church, thus not implying the obligation of the citizens of the respective state to become members or followers of these church. The freedom of thought is related to the freedom of the person to join a religion or another.
Thoughts become notorious when they are expressed in one way or another. In this line of ideas, the thought is tightly connected with the language in which it is expressed and the restrictions imposed in the field of language used to express thoughts shall not be considered as restrictions imposed on the freedom of thought (Case Belgian linguistics 1968).
Paragraph (1) of the Article 32 of the Constitution of the Republic of Moldova stipulates that:
"(1) All citizens are guaranteed the freedom of thought… "
The exercise of the right to the freedom of thought has certain specific peculiarities when it comes to the religious education, for this respective decision shall be taken by the parents, but even in this particular case the slant that derives from the ECHR provisions is that together with the religious education there shall exist also the possibility to be exonerated from this education.
The right of the individual to the freedom of thought shall be examined connected to the Article 2 of the protocol 1 of the ECHR, for, this freedom should be understood like respect toward the rights of the parents who ensure the education of their children in accordance with their religious and philosophical beliefs. Freedom of thought should be understood as a spiritual continuity factor within the family, the parents having the natural right to organize the education of their children following their ideas and concepts.
Paragraph (9) of the Article 35 of the Constitution provides for that:
"The priority right to choose the educational area of the children lies with the parents"
Paragraph (5) of the Article 8 of the Law on children rights no. 338-XIII from December 1994 stipulates that the parents and the surrogate legal guardians are entitled to educate the child according to his own beliefs.
The Commission does define the term conscience, but emphasizes that it may be based on religious and non-religious beliefs. (case X. v. Austria, 1962).
Paragraph 1 of the Article 31 stipulates that "the freedom of conscience is guaranteed and its manifestations should be in a spirit of tolerance and mutual respect".
Subjecting this constitutional provision to an examination, we can state that it was being expressed laconically, meaning that each individual enjoys the freedom of conscience, this freedom being guaranteed. In this respect, freedom of conscience means the possibility of the person to share or not a religious belief, to belong or not to particular religion, to perform or not a ritual required by the respective belief. The freedom of expression has a complex content and comprises several aspects, existing only together with other freedoms, - freedom of thought, freedom of religion. Similarly, being an essential freedom it determines the existence and the content of other freedoms, as well as the freedom of speech, press, association, because these liberties are the means of expressing thoughts and opinions, that derive from the conscience of the person.
The quoted constitutional norm, except the freedom of conscience provides also for an obligation - to manifest this freedom in a spirit of tolerance and mutual respect toward persons who share different opinions.
A fact that shall be taken into consideration in as far as the freedom of conscience is concerned is the attitude toward the military and alternative service stipulated by the Resolution no.337 (1967) of the Parliamentary Assembly and the Recommendation no. R(87) of the Committee of Ministers saying that "The person called to serve in the army, who out of conscience opinions refuses to be involved in as far as the utilization of weapons is concerned shall have the right to be exonerated from from military service. Such persons may be subject to an alternative service".
The Law of the Republic of Moldova on alternative service no.633 from July 9, 1991 regulates the procedure of substitution of the military service with the alternative service, and the manner of serving in the alternative service for the purpose of fulfilling the civil obligation with regard to the society, this being compatible with the right of the citizens to the freedom of thought, conscience, religion and beliefs.
The Article 3 of this Law provides for the following:
"The citizens of the Republic of Moldova are entitled to refuse to serve in the military service (mandatory military service) due to religious or pacifist reasons. Citizens exonerated from military service (mandatory military service) due to religious or pacifist beliefs shall be obliged to serve in the alternative service".
Based on the provisions of the law, the pacifist along with the religious beliefs are a justified ground for the refusal to serve in the army. The pacifism has been recognized by the Commission as a belief falling under the incidence of the Article 9, although the fact of distributing leaflets was not considered as a manifestation of the pacifist beliefs (case Arrowsmith v. United Kingdom, 1975).
The Commission and the Court have examined several cases of violation the freedom of religion provided for in the article 9. Without giving expressly a definition of the characteristic traits of religion, under Article 9, the Commission has examined 2 categories of issues that determine concretely the elements that are not protected by this article, first of all it is established that it shall not be mandatory for a state to allow a religious sect to choose its own concrete form of legal structure, for, some members may anytime manifest their religious beliefs outside this structure (case no. 8652/79). Secondly, the Commission mentioned that an individual may not invoke the freedom of religion clause in order to justify an act that dose not comply with the practices of its own religion (case no. 10180/82).
The Commission concluded that the State shall create the respective mechanisms, that will facilitate the person's quitting of a church, in the same respect, it has assessed that the state can not oblige an individual to pay the membership dues to the state church by means of paying taxes, or in any other way (cases 9781/82).
After the Republic of Moldova has declared itself independent, measures have been undertaken for the creation of the required legal framework in order to guarantee the freedom of religion, to create the necessary premises so that all citizens have the possibility to practice the religion they have chosen.
Article 31 of the Constitution provides:
" (2) The freedom of religious worship is guaranteed and religious bodies are free to organize themselves according to their own statutes under the rule of law.
(3) In their mutual relationships religious cults are forbidden to use any manifestation of hatred.
(4) Religious cults are autonomous, with regard to the State and shall enjoy its support, including that aimed at providing religious assistance in the army, in the hospitals, in penitentiaries, in homes for the elderly and orphanages".
From the content of the quoted article one can see a legal settlement of the relationship between the state and religious cults. In this way, the separation between the state and the church has been enshrined, the autonomy of religious cults and their support on behalf of the state is guaranteed.
Another reality that acquired a form of legal expression in the constitutional norm in the one connected to the interactions among religious cults. The issue under discussion being very delicate itself, having a story of its own was solved by means of a constitutional provision that forbids any manifestation of hatred among the cults.
Taking into consideration the fact that religious beliefs make their way into the legal circuit only on the condition that they are externalized, communicated, expressed while the Constitution allows the activity and free organization of cults under the law.
The Law of the Republic of Moldova on cults no. 979 from March 24, 1992 regulates the manner of implementation of the right to the freedom of religion and the organization of cults. It stipulates that every person is entitled to freedom of thought, conscience and religion. This right should be manifested in a spirit of tolerance and mutual respect and incorporates in itself the freedom to change the religion or the belief, to practice the religion or the belief either alone or in the community with others, in public or private, to manifest his religion or belief, in worship, teaching practice and observance of the rites. The exercise of the right to freedom of religion or belief may be restricted under the law only on the condition when these are measures that in a democratic society are necessary for the public safety, maintenance of order, protection of health or morals, or for the protection of rights and liberties of other individuals. In conformity with the law no one shall be persecuted for his religious belief or non belief while the religious belief or the non belief shall not impede anyone his political and civil rights and shall not exonerate from the obligations prescribed in the legislation, no individual shall be coerced to practice or not to practice a cult or another, to contribute to one or another cult.
Article 200 of the Code of administrative offences provides administrative liability for infringing the legislation on cults. In accordance with this article the following perpetrations shall be considered as administrative offences:
- coercion to practice or not to practice the religious exercise of one or another cult, to contribute or not to contribute to the expenses of one of the cults;
- confessional intolerance, manifested by means that harm the free exercise of another cult recognized by the state;
- the exercise, on behalf of a registered or unregistered cult or on own behalf of certain practices or rites, that run counter the legislation into force;
- disclosure of the secret of confession by a servant of cults;
- the organization of political parties according to the confessional criteria;
- employment of foreign citizens for religious activities, as well as practicing certain activities and religious rituals by foreign citizens without the consent of public authorities;
- violation of the exclusive right of the cults to publications and religious objects.
State and cults relationships. The Law on cults regulates that in order to organize and to be functional the cults should be recognized by means of a governmental decision, in this line of ideas, the cult shall present to the Government for examination and approval its statute, comprising information about the fundamental organization and administration principles of religion. As a consequence, the registration of cults is in compliance with the requirements formulated by the Commission regarding the identification of the religion before the competent national authorities.
The law on cults establishes that the cults shall freely organize the education for the training of personnel, the seminarists and theology students shall benefit by all rights and privileges provided for pupils and students of the state education. The moral-religious education within all state schools is optional and non-binding, except for the cases provided for by the agreements of cooperation between the state and cults.
The optional and non-binding character of the religious education is also regulated in the Law on education no. 547 from July 21, 1995 that stipulates that pupils and students may attend an optional course that raises the problems of moral-religious education.
The right to freedom of religion of the individual presumes the freedom to propagate his beliefs by means of education, by respecting the right of other to choose his own religion. Another point, in this context would be the issue of proselytism. In the case Kokkinakis v. Greece, 1993, ECHR has stated that the freedom of conscience and religion may not be separated from the right to express in community and in public. The Court stressed that only illegal actions and excessive attempts to convert a person to another religion may be sanctioned.
Article 11 of the Law on cults stipulates that abusive proselytism shall be prohibited.
Article 143 of the paragraph 1 of the Criminal Code sets the limits for the organization and unfolding of all religious rituals, stating that organizing and leading a group that exercises an activity of preaching religious beliefs together with the performance of the religious rituals that is accompanied either by causing damages to the citizens' health or by the assault of the person or a persons' rights, or is accompanied by the instigation of the citizens to refuse to participate in social activities or at the carrying out of the citizens' obligations entails criminal liability. Paragraph 2 of the same article also prescribes criminal liability for active participation at the activity of the group indicated in the paragraph 1, as well as for systematic propaganda directed toward the committal of the above listed actions.
Article 144 of the same Code provides for criminal liability for the hindrance to practice religious rituals, in case they do not disturb public order and are not accompanied by assaults against citizens’ rights.
As mentioned earlier, the state has the obligation do offer support to the cults, by means of facilitating religious assistance in the army, in hospitals, in penitentiaries, homes for the elderly and orphanages.
The exercise of the right to religion within penitentiaries is regulated by the of Criminal Sanctions Enforcement Code:
"Article 17. Freedom of conscience
(1) The indicted person is guaranteed the freedom of conscience. He is entitled to practice any religion an not to practice any.
(2) The priest may be invited to the person who serves a custodial sanction at the request of the latter.
(3) The solemnization of the religious rituals shall be benevolent. It shall neither run counter the internal order nor to infringe the rights of those who serve their punishments."
The statute for the enforcement of the sanction by the indicted persons from December 20 from 1994 in its article 44 provides that the indicted persons shall be allowed to practice any religion or not to practice any and also that the administration of the seclusion places shall make available to the believers a special room, creating conditions necessary for the meetings with clergymen and the performance of rituals. The detainees shall be allowed to use the religious scripts, to receive literature, to keep correspondence with similar idea followers, to meet and to perform religious rituals during the time specially designated for that.
The paragraph 2 of the Article 9 of the ECHR provides that freedom of religion or belief may not be restricted except for the cases provided for by the law and that constitute necessary measures in a democratic society for the protection of public safety, order, health and public morals, or for the protection of the rights and liberties of others, in this context the Constitution of the Republic of Moldova does not include special regulations regarding any restriction of the manifestation of religions or beliefs, the article 54 regulates generally the restrictions in the exercise of several rights and liberties.
Article 54 of the Constitution:
(1) No laws that would oppress or diminish the fundamental human and citizen's rights and freedoms may be adopted in the Republic of Moldova.
(2) The exercise of certain rights and freedoms may be restricted only under the law and only if these comply with the unanimously recognized norms of the international law, and are required for the interests of national security, territorial integrity, economic welfare of the country, public order, for the purpose of prevention of the mass disturbances and crimes, protection of the rights, liberties and dignity of other persons, for the hindrance of disclosing confidential information or to guarantee the impartiality and authority of justice.
(3) The provisions of the paragraph (2) shall not allow the restriction of the rights proclaimed in the articles 20-24.
(4) The restrictions enforced must be proportional to the situation that caused it and may not affect the existence of the right or the liberty.
One can come to the conclusion that the constitutional provisions, in general, in as far as the restrictions in the exercise of several rights do comply with those stipulated in the paragraph (2) of the article 9 of ECHR.
Case law of the European Court and Commission on Human Rights
In a democratic society the freedom of expression relates on one hand to the right of every person to express freely and unhindered his opinions and on the other hand there is the obligation of each individual to respect the interests of other persons and of the state. Emphasizing frequently the importance of the freedom of expression the Commission and the Court stressed the fact of weighing the different interests. The Court was precise about the eminent role that the law has when it comes to the freedom of expression in a democratic society:
"Freedom of expression is one of the essential foundations of a democratic society, one of the basic conditions for its progress and for each individual's self-fulfillment development of each individual. Of particular importance, in this context, in the progress of a democratic society is the freedom of press to impart information and ideas and the right of the public to receive them".
The freedom of expression is applicable not only to "information" or "ideas" that are favorably or regarded as inoffensive or as a matter of indifference but also to those that offend, shock and or disturb the State unquiet or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" does not exist. (Handyside v. United Kingdom, 1976, Sunday Times, 1979).
The Commission also expressed its position regarding the restrictions of the freedom of expression as a sanction, stating:
"Where the penal sanction in question involves deprivation and restriction of the right to freedom of expression, it runs counter to the whole plan and method of the Convention to seek its justification in Articles 2,5, and 4 dealing with the right to life, to liberty and to security of the person and to freedom from forced labor, rather than in Article 10, which guarantees the right to freedom of expression " (De Becker v. Belgium, 1962 ).
It is worth mentioning that between the Article 10 there is a tight connection with other articles of the Convention, particularly with Articles 8, 9, and 11, Article 3 of the Additional Protocol 1. The Article 8 protects the right to a private life, Article 9 - freedom of conscience, Article 11 - freedom of assembly, Article 3 of the Additional Protocol 1 - the obligation of the Contracting Party to organize free elections that insure the free expression of the people's opinion in the election of the legislative body.
By virtue of a decision from July 10, 1986 the Commission recognized that the right to private life guaranteed by Article 8 may be violated by publications made in public mass media means.
The Commission also stated that in case of such a violation, the State shall have a fair balance between the Article 8 and 10 of the Convention.
Freedom of expression (Article 10) and freedom of association (Article 11) are closely connected. Die to these reasons the Article 11 is assessed as "lex specialis" compared to Article 10 considered "lex generalis" (Plattform Arzte fur das Leben, 1988; Ezelin, 1991). In many cases the articles 8,9,10,11 are applied together.
1.1The meaning of the term "expression"
Nor the commission neither the Court have defined the term "expression", but in the same time elaborated and developed the character of the expression protected by the Article 10. In the concept formulated by the Commission and the Court the term "expression" that is to be found in the Article 10 includes both ideas as well as other types of information. These are nor only opinions, philosophical ideas and political speeches, but also factual information or those broadcast radio and TV programs (Geillustreede Pers, 1976).
The Court has appreciated the term "expression" asunder Article 10 encompasses artistic expression that "affords the opportunity to take part in the public exchange of cultural, political, social information and ideas of all kinds" (Muller, 1988; Otto-Preminger, 1993). The Court holds to the opinion that those who create, interpret, disseminate or present an artistic piece of art contribute to the exchange of ideas and opinions of a particular importance for a democratic society. Here comes the obligation of the State not to create unjustified impediments to their freedom of expression.
Article 10 of the ECHR offers also protection to commercial information like in cases Liljenberg 1983, Marct Intern 1989, 1991; Voorhof, 1991 where the Court has concluded that "this category of information may not be excluded from the incidence of the Article 10, paragraph 1 that is not applicable exclusively to certain types of information, ideas or forms of expression".
The Article 10 has been applied in the case Casado Coca: a lawyer was sanctioned disciplinary by the Board of Lawyers from Barcelona for the fact that he published in a local newspaper information about their professional services. The Court held that there was no breach of Article 10: this information has been published for advertisement, but in the same time lawyers were offering the persons who needed legal advise information that made their access to justice easier. (Casado Coca, 1994).
Although the Commission is not of the opinion that commercial "speech" as such is outside the protection conferred by Article 10. 1, it considers that the level of protection must be less than that accorded to the expression of ''political" ideas, in the broadest sense, with which the values underpinning the concept of freedom of expression in the Convention are chiefly concerned (Church of Scientology, 1979; Markt Intern, 1987, 1989 and 1991; Hempfing, 1991; Colman, 1992; Casado Coca, 1994).
The bodies from Strasbourg decided that the freedom of commercial speech may not be restricted if it includes information of general interest for the public (Application no. 18424 791, Roda Korsets Ungdomsf Orbund, Onesta and Moderata Sarlingspatiep, Prosa - Vagnharad, 1993). The restrictions regarding the advertisement should be coherent and clearly cut in order to give the possibility to the mass media, commercial officers and their counselors to elaborate a certain type of conduct in this area.
1.2The right to receive and to impart information
In the case Sunday Times v. United Kingdom, 1979 the applicants had prepared for publication a news article outlining the scientific research and testing procedures followed by a pharmaceutical company prior to its marketing of the sedative thalidomide. At the proposed time of publication, it had been considered (through means independent of news coverage) that many babies had suffered severe birth defects because their mother had taken the drug during pregnancy. Some of the affected families in the United Kingdom had negotiated out-of-court settlements with the pharmaceutical company, other were still in the negotiation process, and a few families were in early stages of the litigation. On receiving a copy of the proposed newspaper article, the pharmaceutical company applied for and was granted an injunction against its publication. The injunction was upheld at the highest domestic court level, on the ground that publication of the article would constitute contempt of court, by interfering with or prejudicing the course of justice in the pending legal proceedings. The Court from Strasbourg stated that even the Court allows certain restrictions for maintaining the authority and impartiality of the Judiciary, in this case this restriction was not justified in a democratic society, for the public (families which suffered because of the disaster of thalidomide) had the right to be informed about the effects of this medicine. The Court noted that the taken measures were not proportional to the right of the individual to be informed.
The court applied this principle also in the case of Lingens v. Austria (1986). In this case, an editor of a magazine had published two articles criticizing the then Chancellor of Austria and questioning his suitability to exercise political power. The Chancellor then brought two private defamat PROTOCOL No.7
ARTICLE 2
"1. Everyone convicted of a criminal offence by a tribunal shall be have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal."
The right to appeal provided in Article 2 of Protocol No.7 is one of the characteristic principles of the fair trial, acknowledged in civilized countries and designed to prevent potential abuses of power and errors of justice.
The Convention requires that the right to appeal to be guaranteed. The sentence may be delivered only by a court of law.
The Republic of Moldova's Constitution and laws provide and safeguard the principles enshrined in Article 2 of ECHR.
Thus, Article 119 of the Constitution provides:
"The interested parties and competent state bodies shall be entitled to exercise appeals against courts' judgements."
According to Article 115 of the Constitution, the courts competent to try criminal case are:
- Supreme Court of Justice
- Court of Appeals
- Tribunals
- Circuit courts.
For certain categories of cases, specialized courts may be established. Establishment of extraordinary courts shall be prohibited.
The right to appeal is guaranteed by the existence of the three levels of jurisdiction of the courts' system, provided in the Constitution and in the Civil and Criminal Procedure Codes:
- Tribunals
- Court of Appeals
- Supreme Court of Justice.
According to the legislation of the Republic of Moldova, any judgement, sentence delivered by courts may be appealed by ordinary appeal or recourse. Chapter 22 of the Code Administrative Offences provides that the courts' judgements issued in administrative cases may be challenged by means of complaints or protests.
The right of the tried persons to file ordinary appeals and recourses against court's proceedings, orders, decisions and judgements is provided in Articles 306 - 335-9 of the Criminal Procedure Code.
While delivering the sentence or decision, the judge has the obligation under the law to explain the individual, in a clear language and explicitly, the procedure and terms of filing the appeal.
Considering the above-mentioned, we found that in the Republic of Moldova it is possible to appeal any sentence of conviction delivered by circuit county, sector and municipal courts, tribunals, military court, Court of Appeals and Supreme Court of Justice, by means of an ordinary appeal or recourse.
In this respect, the legislation of the Republic of Moldova is in full compliance with article 2 of Protocol No.7 of the Convention.
The only exception to this principle is contained in Article 273 of the Code of Administrative Offences, which provides that the decision of the court shall stay final in case of the administrative offences provided in Articles 200-7 (contempt of the court), 200-8 (insult of a judge), 200-10 (failing to comply with the interlocutory judgement (decision) of the court or with the proposals of judge) and 200-11 (non-enforcement of the court's judgement).
We consider that these exceptions do not contradict the provisions of Article 2, paragraph 2 of Protocol No.7, because these violations, being qualified as administrative offences represent minor offences, in the meaning of the Convention.
PROTOCOL No.7
ARTICLE 3
"When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law orthe practice of the State concerned, unless it is proved that the non-disclosure of the unkown fact in time is wholly or partly attributable to him."
Article 53, paragraph 2 of the Republic of Moldova's Constitution provides:
"(2) The State shall bear patrimonial liability, according to the law, for damages caused by miscarriage of criminal justice by investigation bodies and courts."
The manner of reparation of the damages caused by miscarriage of criminal justice by investigation bodies and courts is provided in the Law no.1545-XIII from February 25, 1998 on the manner of reparation of the damages caused by illegal actions of criminal investigation and preliminary enquiry bodies, of prosecutors and courts. According to this law (Article 1), the moral and material damages, must be compensated, if suffered by individuals as a result of:
a) illegal apprehension, illegal application of the repressive measure of arrest, illegal holding criminally liable, illegal conviction;
b) illegal conduction of investigation or trial of the criminal case, search and distraint of property, illegal dismissal, as well as other acts of procedure limiting the rights of naturalor legal persons;
c) illegal imposing of administrative arrest, illegal confiscation of property, illegalimposing of fine;
d) illegal performance of operative measures of investigation;
e) illegal levy of accounting and other documents, of money, seals as well as freezing of banking accounts.
The caused damage shall be fully compensated, regardless the guilt of the official persons from criminal investigation and preliminary enquiry bodies, of prosecutors and courts.
The reparation of damages caused by miscarriage of justice is provided by the Civil Code. Article 478 stipulates that the dammages caused to a natural or legal person caused by illegal acts of criminal investigation and preliminary enquiry bodies, of prosecutors and courts shall be compensated fully by the State, regradless the guilt of the official persons from criminal investigation and preliminary enquiry bodies, of prosecutors and courts, according to the law.
In compliance with Article 4 of the Law, the right to reparation of damages appears when:
a) an aquital sanction is delivered;
b) cessation of criminal proceedings due to the lack of criminal offence, of the elements of criminal offence or evidence proving that the natural person participated in the committing of the criminal offence;
c) addoption by the court of the decision to repeal the administrative arrest or correctional work due to the rehabilitation of the natural person;
d) addoption by the European Court of Human Rights or by the Committee of Ministers of the Council of Europe of a judgement concerning the reparation of damages or friendly settlement between the injured person and the representative of the Republic of Moldova's Government at the European Court of Human Rights. The friendly settlement concluded shall be approved by the Government of the Republic of Moldova.
e) illegal conduction of operative measures of investigation before the institution of criminal proceedings, on the condition that, within 6 months since the performance of such measures, the decision to institute criminal proceedings was not taken or repealed.
In case of reparation of the material and moral damages caused to a natural or legal person, he/it shall be repaired or restituted (Article 5 of the Law):
a) the salary or other income resulted from work, which represents his main source of existence, of which he was deprivated by illegal actions;
b) the pension or allowance the payment of which was ceased as a resul of illegal arrest and keeping under arrest;
c) property (including pecuniary depositis and incurrent interest, state securities and incurent benefits) which was confiscated or transferred to the benefit of the State by the court or levied by the criminal investigation or preliminary enquiry bodie, as well as the distrained property;
d) illegally imposed fines by the enforcement of the court's sentence and the incurrent trial expenses supported be the natural person;
e) sums of money paid for legal council;
f) expenses supported due to medical treatment, determined by the application of illegal actions (ill-treatment);
g) sums of money equivalent to the moral damages suffered;
h) expenses supported in connection with the summoning before the investigation body, prosecutor's office or court;
In our view, the existing national legislative framework complies with the requirements provided by the Convention.
PROTOCOL No.7
ARTICLE 4
"1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquited or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the Convention."
As one of the principles of criminal liability, the principle of intolerance of double incrimination for the same deed (non bis in idem) provides the general rule according to which a person, once tried by final judgement may not be liable to be tried or punished again for the same deed. The application of the rule non bis in idem depends on the existence of a prior final judgement and the identity of person and deed between the two acses involved.
Article 5, section 9 of the Criminal Procedure Code of the Republic of Moldova provides the following:
"The criminal proceedings may not be institutied, or if instituted must cease:
9) in case of a person, who was already delivered a final sentence, in connection with the same charges or a resolution of the courtof cessation of the criminal proceeding on the same grounds."
Article 234, section8 of the Code of Administrative Offences provides:
"The proceedings in case of an admnistrative offence may not be institutied, or if instituted must cease:
8) in case of existence of a decision issued by the competent body, about the same person held administrativly liable, for the same deed, concerning the imposing of an administrative sanction or of existence of an unrepealed judgement on the cessation of the proceeding on the administrative case, as well as the existence of a criminal case on the same deed."
Thus, we may conclude that the provision of the non bis in idem principle in the national legislation is in compliance with the provisions of Article 4 of Protocol No.7 of ECHR. The Moldovan legislator has included this prnciple in the Criminal Procedure Code and in the Code of Adminditrative Offences as being one of the grounds for the inadmission of institution of proceedings, contributing therefore to the protection of individuals against eventual arbitrary actions of the State authorities. It is inadmissible for a person to be sanctioned twice for the commission of the same act. Article 351 par.3 of the Criminal Procedure Code provides that in case of use of extraordinary remedies against final criminal sentences it is possible to declare contestation in cassation if there are two final sentences delivered to the same person for the same deed. Article 369-2, par.1 section e) of the same Code provide that final sentences of convistion, aquital or decisions on the cessation of the proceedings may be remedied by recourse in cassation if the convicted person had been prior convicted by final sentence for the same deed. These provisions are used as additional measures of protection of the individual's rights and freedoms.
ion actions against the applicant, both of which were successful. The applicant claimed that the decisions of the Austrian courts infringed his freedom of expression under Article 10. The Court agreed, noting that:
"Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society, which prevails throughout the Convention. The limits of the acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to the scrutiny of his every word and deed by both journalists and the public at large … Article 10.2 enables the reputation of others … to be protected, and this protection extends to politicians too… but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues".
In the case of Handyside v. United Kingdom (1976) the court considered whether the conviction of an individual who had published a reference book for schoolchildren that contained advice on sexual and other matters constituted a violation of his rights under article 10. The Court held that the State was acting correctly by virtue of the Article 10 paragraph 2, invoking the "protection of morals". The same conclusion was reached in the case Muller and other v. Switzerland where the applicants complained that the Swiss Government confiscated several sexually explicit paintings and the artist was fined for publishing obscene materials that constituted a violation under the Article 10. In finding the State actions justified under the second paragraph, the Court accepted that State have a wide margin of appreciation in determining what is 'necessary' for the 'protection of morals'.
1.3Licensing of broadcasting facilities
Article 10 paragraph 1 guarantees the freedom of speech and information, and namely freedom of opinion and the freedom to receive and impart information or ideas without the interference of the public authorities and frontiers. But in the same time the protection of mass media is not unlimited. Therefore, the above mentioned paragraph States may not have to justify their licensing requirements or practicing restrictions to broadcasting enterprises (Bulinger, 1985; Cohen Johnatan, 1989; Korff, 1988; Velu and Ergec, 1990; Velaers, 1991; Bonn, 1993). Recalling the conclusions of the Groppera Radio, 1990 case, one could mention that the licensing broadcasting facilities may be justified only based on technical reasons and may not be subject to a policy of censorship. Article 10 of the Convention affords the States to regulate through a system of licensing the organization of broadcasting on their territories, particularly as regards technical aspects. A system of broadcasting licensing should leave sufficient space for the private initiative for the purpose of reducing the State monopoly in the broadcasting area (Sacchi, 1976; de Clerck, 1986; Nydahl, 1993).
Although the Article 10 prescribes that licensing is a permitted measure, nevertheless, this does not empower the State to impose alone conditions for licensing. The licensing requirement should take into account the public's interest to receive information and also the fact that restrictions have be necessary in a democratic society.
In the case Autronik v. Switzerland (1990), a Swiss telecommunications company was refused governmental authorization to receive uncoded television programs from a Soviet satellite, in the absence of Soviet consent. The Court first note that reception of television programs comes within the scope of the right to receive information under Article 10.1 It also noted that the relevant Swiss legislation was sufficiently accessible to the specialized public for which it was intended. In finding a violation of Article 10, however the Court held that because the broadcasts at issue were intended for the general use of the public and because the Swiss Government accepted that there was no risk of obtaining secret information through receipt of the broadcasts, the restrictions imposed were not necessary in a democratic society as they exceeded the State's margin of appreciation.
The Court expressed its opinion referring to the monopoly of the mass media. The Austrian authorities did not permit the activity of private television and radio stations in this area. The Court noted that this monopoly is not necessary in a democratic society, consequently, this is a violation under article 10. The Court has justified its decision invoking the reason that audio-visual mass media is widely spread that therefore the principle of pluralism shall be applied. (Informationverein Lentzia and other v. Austria, 1993) . In several cases the Court decided that the Convention does not guarantee the right of everyone to the mass media sources. (Application no. 9297/81, X Association v. Sweden).
1.4The rights of public employees
The Strasbourg jurisprudence lists numerous applications of the public employees who complain of the curtailment of their rights under article 10 due to their particular employment status. The Strasbourg organs have consistently held that the State may restrict it's employees rights to freedom of expression to the extent that their views relate to the employees duties or job functions.
In the case of the Engel and Others v. Netherlands (1976) a military man was prohibited the publication and distribution of a paper criticizing certain senior officers. The Court noted that the persons serving in the military forces enjoy the right to express their opinions but underlined that the proper functioning of an army is hardly imaginable without legal rule designed to prevent servicemen from undermining military discipline and in this case the restriction was justified in the interest of public order, for the case of disorders in the army may have consequences on the order of the entire society. The Court mentioned underlined that protection of order in the army is of a particular importance.
In this very case, there was no thus a question of depriving them of their freedom of expression, but only of punishing the abusive exercise of that freedom on their part.
In Application 9401/81, a high-ranking civil servant with history of psychiatric disturbance claimed that his transfer from one government post to another constituted a violation of Article 10 in that the transfer occurred after he had publicly accused the State of subjecting him to surveillance. The Commission agreed that this measure was justified, because otherwise "it would diminish the Ministry's prestige and credibility to leave a person that gave the impression of being mentally deranged as Head of that Division".
In two applications the Commission found that the Government could restrict the exercise of the rights of legal practitioners under Article 10. In one, the applicant lawyer had made "insulting or tendentious statements" (Appl. No. 10414/83); in the other, the applicant judge has distributed leaflets containing political comments on certain public prosecutions. (Appl. No. 10279/83). The commission found that the Government's disciplinary measures against the two applicants were acceptable under the Article 10.2, in light of the special duties and responsibility that attach to lawyers and judges.
1.5Access to employment
The Commission and the Court have addressed the issue of dismissal or denial to access to employment of those exercising their rights to freedom of expression under Article 10.
In the cases of Kossiek v. Federal Republic of Germany (1986) and Glasenapp v. Federal Republic of Germany (1986) two professors were on probationary appointment, period during which one of them expressed views sympathetic to those of the far political left, the other one to the far political right, both being declined the permanent civil service. The Court noted in both cases that the European Convention does not guarantee the access to civil service appointments.
In the case Vogt v. Germany, 1985 The Commission and the Court have addressed the issue of dismissal of a teacher from a public lyceum invoking the lack political loyalty in compliance with the Constitution. Ms. Vogt was a member of the CPG which had anti-constitutional objectives, exercising political activities favorable to this party, these being considered by the German authorities as being incompatible with the public servant status. The applicant claimed of a violation of her right of freedom of expression and freedom of association, invoking the Articles 10,11 and 14 together with the Article 10 (1). The dismissal of the applicant for the non fulfillment of the obligation of political loyalty has been examined by the Court and qualified as an intervention in right of freedom of expression. The Court examined many circumstances for, to consider the dismissal of a teacher as an exaggerated sanction: the consequences on the reputation, loss of the means for the living, the impossibility to find a similar position in Germany. The absence of the CPG prohibition was the ground for the to consider the activity of the applicant perfectly lawful. The Commission decided that the dismissal of the applicant was disproportional with the legitimately pursued goal, thus, violating Article 10 of the ECHR.
1.6The right to receive information
The Court has examined an individual's right under Article 10 to receive information relating to governmental decisions on civil service employment. In the case of Leander v. Sweden (1987)., the Swedish Government had denied the applicant a public appointment on the grounds that he did not meet the security requirements of the post. He requested information about the contents of the Government's file on him in order to clarify or rebut any inaccuracies: The Government denied the request. The Court upheld this refusal in part on the grounds that access to public employment is not a protected right under the Convention and that the provision included in the Article 10 about the ''freedom to receive information '' and under the circumstances of the present case "does not confer on the individual a right of access to a register containing information on his personal position, not does it embody an obligation on the Government to impart such information to the individual".
2. Legislation of the Republic of Moldova
After having examined the case law of the Commission and the Court we shall present the legal framework of the Republic of Moldova on issues related to the article 10. Due to the wide range of issues, we will refer to the laws indirectly regulating this area.
Firstly, it is important to examine the Constitution of the Republic of Moldova.
Article 32 Freedom of opinion and expression
(1) All citizens are guaranteed the freedom of opinion as well as the freedom of publicly expressing their thoughts and opinions by way of word, image, or any other means possible.
(2) The freedom of expression may not harm the honor, dignity or the rights of other people to have and express their own opinions or judgements.
(3) The law shall forbid and prosecute all actions aimed at denying and slandering the State or the people. Likewise shall be forbidden and prosecuted the investigation to sedition, war, aggression, ethnic, racial or religious hatred, the incitement to discrimination, territorial separatism, public violence, or other actions threatening constitutional order.
Article 33 Freedom to create
(1) The freedom to create scientific and artistic works is guaranteed. Creative work may not be subject to censorship.
(2) The law shall protect the rights of citizens to their intellectual property, and to the material and moral interests related to various forms of intellectual creation.
(3) The State shall support the preservation, development and propagation of national and world achievements in culture and science.
Article 34 The right of Access to Information
(1) Having access to any information of public interest is everyone's right, that may not be curtailed.
(2) According to their established level of competence, public authorities shall ensure that citizens are correctly informed both on public affaires and matters of personal interest.
(3) The right of access of information may not prejudice either the measures taken to protect the citizens or the national security.
(4) The state and private media are obliged to ensure that the correct information reaches public opinion.
(5) The public media shall not be subject to censorship.
(1) All citizens shall be entitled to address to public authorities by means of petitions only on the behalf of applicants.
(2) Legally established organizations shall be entitled to address petitions exclusively on the behalf of the collective body they represent.
According to para. 2 of Article 10 of the Convention, the State may restrict the exercise of the right to freedom of expression and of information, invoking the reasons listed in the above mentioned paragraph: in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
In the context of the aforementioned article of the Convention and in order not to neglect this article, these limitations must be prescribed by law (Herczegfalvy, 1992), must pursue one of the legitimate aims provided under paragraph 2 of Article 10 and must be “necessary in a democratic society” (Weber, 1990).
The case law of the European Commission and Court show clearly that neglecting one of the above listed conditions shall lead to the ignoration of Article 10, paragraph 2 of the Convention.
It may seem that the legitimate aims, indicated under Article 10 paragraph 2 of the Convention could justify the establishment of restrictions for the freedom of expression, listed in Article 32 of the Constitution.
Nevertheless, analyzing the content of this article, one may draw the conclusion that the interdictions on materials containing libel and slander to the State and the people leave a too narrow field for discussion or a reasonable critique, which are essential feature of democracy and constitutes a threat for the freedom of expression.
The European Court for Human Rights, considering specific cases (Sunday Times, 1979; Open Door, 1992) has mentioned that restrictions must be sufficiently precise and accessible for the comprehension of their aim and content with a reasonable degree of certainty. Doubts arise whether the provision of Article 32 para.3 of the Constitution regarding “other actions threatening the constitutional order” constitutes a precise, understandable and accessible restriction for it to be observed. The imprecise character of this provision may serve as ground for it to be considered incompatible with the requirements of Article 10 paragraph 2 of the Convention.
The restrictions concerning the instigation to war of aggression, to national, racial and religious hatred, incitement to discrimination, territorial separatism, to public violence are established for reasons that do not run counter the Convention and might be considered as necessary in a democratic society.
2.2. Freedom of the press
As we have emphasized above, one of the most important issues that derive from Article 10 is the freedom of the press to publish information and ideas, exercising in this way its role of “watchdog” (Lingers, 1986; Barthold, 1985; Thorgeirson, 1992; Jersild, 1993; Prager Oberschlick, 1994).
The Constitutional Court has assessed that the provisions or Article 7 and 71 of the Civil Code do not restrict the exercise of the freedom of thought, of opinion and of expression, prescribed by the Constitution, since these provisions do not regulate this kind of relationships, but regard social relationships related to the right to defense, guaranteed by Article 26 para. 1 and 2 of the Constitution. According to this constitutional article, each person is entitled to react independently, by legitimate means to the violation of its rights and freedoms, provision that has found its expression in Article 7 of the Civil Code.
Pursuing the constitutional goal of Article 32 para. 2, according to which the freedom of expression may not harm the honor, dignity or the right of another person to have an opinion, the legislator by means of Article 71 of the Civil Code, has established the procedure of payment of moral damages in the form of a compensation, the amount of which is established in the respective cases by the court of law.
The Court has also estimated that the provisions of these articles correlate with the Law on the press no. 243-XIII of 26 October 1994, which in Article 4, in its new version established by Art. II of the Law no. 564- XIV of 29 July 1999, prescribes that periodicals and press agencies shall publish, according their own assessment, any type of materials and information taking into consideration that the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions and penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
(The Decision of the Constitutional Court no. 25 of 8 June 2000)
The Convention permits restrictions brought to the freedom of expression for the protection of the reputation and of the rights of other persons. But such restrictions must be “necessary in a democratic society” and must particularly be proportionate to the legitimate aim the law pretends to pursue.
2.3. Broadcasting
The freedom of expression is guaranteed also by the Law on broadcasting no. 603- XIII of 3 October 1995:
“Article 2:
(1) In the Republic of Moldova the right to the freedom of expression of ideas and of opinions, to the free communication of information by means of television and radio broadcasting, as well as the right to a complete, genuine and prompt information shall be guaranteed by law in the spirit of constitutional rights and freedoms.
(2) The pluralism of opinions and the copyright shall be guaranteed by the state.
(3) The broadcasting institutions shall not be subject to censorship.”
The freedom of broadcasting expression implies the strict observance of the Constitution and may harm neither the person’s dignity, honor, private life nor the right to one’s own image.”
According to Article 10, the State may require the licensing of broadcasting, television, or cinema enterprises. Reminding the conclusions of the Groppera Radio case, 1990, we can mention that the licensing may be justified only for technical reasons and may not be subject to a censorship policy. Article 10 of the Convention permits the States to regulate by licensing the broadcasting organization on their territory, particularly regarding the technical aspects. Licensing broadcasting facilities must leave sufficient space for private initiative in order to reduce State’s broadcasting monopoly. Analyzing the Law on broadcasting in this context, it seems that it does not come in contradiction with the Convention.
Article 3: “The freedom of broadcasting expression implies the strict observance of the Constitution and may harm neither the person’s dignity, honor, private life nor the right to one’s own image.”
The Law prescribes that the television and radio broadcasting communication shall be performed based on a broadcasting license or of an authorizing decision, issued by the Coordinating Broadcasting Council. The Council comprises 9 members appointed in equal ratio by the President of the Republic, by Parliament and by Government for 5 years. According to the Law (Article 31), the members of the Council shall stand as guarantees of the interest public and shall not represent the authority that appointed them.
Article 15 (4) establishes that the separation criteria and the provisions from the broadcasting license must assure the pluralism of opinions, the equal treatment of participants, the quality and the diversity of programmes, the stimulation of free competition, creation and national broadcasting production, the independence and the impartiality of broadcasted programmes.
The broadcasting enterprises are bound not to interfere with the reception of programmes of other broadcasting enterprises and the functioning of telecommunication lines, not to disclose the name of the author that used a pseudonym or the source of information that requested to stay anonymous, not to disseminate pornographic materials and materials that promote violence.
Consequently, we can conclude that the content of the Law on broadcasting meets the requirements of the Convention.
2.4. Criminal Code
The Criminal Code contains several criminal offences that restrict somehow the exercise of the freedom of expression.
“Article 117. Libel
The libel in a publication printed or multiplied by other ways in an anonymous letter, -shall be sanctioned either with 3 years of deprivation of liberty, or with a fine amounting up to fifty minimal wages.
The libel, followed by severe consequences or along with the indictment of committing a criminal offense against the state or another severe criminal offence, - shall be sanctioned with deprivation of liberty from 6 months till 5 years.”
“Article 71. Violation of national and racial equality
The deliberate actions, public instigations, including by means of written and electronic mass-media, directed towards the incitement of hatred or national, racial or religious enmity, towards the abase the national honor and dignity, as well as the direct or indirect limitation of rights or by establishing direct or indirect advantages of citizens depending on their racial or national belonging, - shall be sanctioned with deprivation of liberty for a term of up to 3 years or with a fine amounting up to 250 minimal wages.
Same actions, accompanied by violence, deceit or threats, as well as if they were committed by a official person, - shall be sanctioned with deprivation of liberty for a term of up till 5 years or with a fine amounting up to 500 minimal wages.
The actions indicated under first and second part of this article, committed by a group of persons or if they had as consequence the loss of human lives or other severe consequences, - shall be sanctioned with deprivation of liberty for a term of up to ten years.”
“Article 68. War propaganda
War propaganda in any form, - shall be sanctioned with deprivation of liberty for a term of three to eight years.”
“Article 72. Disclosure of state secret
The disclosure of information, which constitute a state secret, by a person, to whom this information had been entrusted or to whom this information became known due to his job or position, if it does not constitute treason or espionage, - shall be sanctioned with deprivation of liberty for a term of 2 to 5 years.
The same act, if it had severe consequences, - shall be sanctioned with deprivation of liberty for a term of 5 to 8 years.”
“Article 205. Indecent assault on a representative of the power or on a representative of a public organization, which maintains public order
The indecent assault on a representative of the power or on the representative of a public organization, which maintains public order, while they discharge their duties, - shall be sanctioned with a fine amounting up to 30 minimal wages or involves the application of public influence measures.
Same act, committed publicly, - shall be sanctioned with a fine of up to 70 minimal wages.”
“Article 2051. Indecent assault on the police officer
The indecent assault on the police officer, meaning the deliberate insult on his honor and dignity, the indecent assault on another officer of internal affaires bodies or on a person discharging his professional or public duties of maintaining public order and fighting crime, expressed in action, in an oral or written form, committed repeatedly during one year after the application of administrative sanctions for similar actions, - shall be sanctioned either with deprivation of liberty for a term of up to 6 months or with a fine amounting up to 30 minimal wages.”
“Article 2052. Calumny against a law enforcement officer
The calumny against a law enforcement officer, meaning the actions related with the dissemination of deliberate false and defamatory information on his professional activity, including the calumny by means of printing or other multiplication method, by means of mass-media, by anonymous methods, - shall be sanctioned with deprivation of liberty for a term of up to 3 years or with a fine amounting up to 30 minimal wages.”
“Article 223. Manufacturing or sale of objects bearing a pornographic character
The production, distribution and advertising of writings, publications, images or other objects bearing a pornographic character, as well as trading them or their storage for the purpose of sale or dissemination, committed during the period of one year since the application of the administrative sanction for similar actions, - shall be sanctioned either with deprivation of liberty up till 1 year, or with a fine amounting up to 30 minimal wages, in any case along with the levy of pornographic objects and of their production means.”
“Article 2231. The manufacturing or dissemination of works that promote violence and cruelty
The manufacturing, dissemination, display or storage for the purpose of dissemination or display of some video and cinema movies or of other works that promote violence and cruelty, committed during the period of one year since the application of the administrative sanction for similar actions, - shall be sanctioned either with deprivation of liberty up till 2 years, or with a fine amounting up to 30 minimal wages with the confiscation of works and of means for their manufacturing and display.”
The restrictions to the freedom of expression, prescribed by the Criminal Code are established by the law in the interest of national security, protection of rights, health, morals and others’ reputation. These restrictions may be considered as necessary in a democratic society and do not exceed the framework of limitations authorized by Article 10 paragraph 2 of the Convention.
At present, according to the requirements of the Council of Europe, there is to be a adopted by the Parliament of the Republic of Moldova a new Criminal Code.
2.5. The Code of administrative offences
“Article 472. Slander
The slander, meaning the deliberate dissemination of false information, defamatory for one person, - shall be sanctioned with a fine amounting to 10-15 minimal wages or with administrative arrest for a term of up till 30 days.”
“Article 473. Outrage
The outrage, meaning the deliberate abasement of the honor and dignity of a person by action, in an oral or written form, - shall be sanctioned with a fine amounting to 7-15 minimal wages or with administrative arrest for a term of up till 15 days.
The outrage, brought in a publication or in a work multiplied in a different way, as well as the outrage brought to a person subjected to an administrative sanction for the same violation, - shall be sanctioned with a fine of 10-15 minimal wages or with administrative arrest for a term of up till 30 days.”
“Article 1714. Manufacturing or sale of objects bearing a pornographic character
The manufacturing, import, distribution and advertising of writings, publications, images or other objects bearing a pornographic character, as well as trading them or their storage for the purpose of sale or dissemination, - shall be sanctioned with a fine amounting to 10-20 minimal wages for natural persons and with a fine amounting up to 50 minimal wages for an official person, with the confiscation of the pornographic objects.”
“Article 1715. The manufacturing or dissemination of works that promote violence and cruelty
The manufacturing, import, dissemination, display or storage for the purpose of dissemination or display of some video and cinema movies or of other works that promote violence and cruelty, - shall be sanctioned with a fine amounting to 10-20 minimal wages for natural persons, and with a fine amounting up to 50 minimal wages for official persons, along with the confiscation of works and of means serving for their manufacturing and display.”
The restrictions to the freedom of expression, prescribed by the Code of administrative offences are established by the law in the interest of protection of rights, honor, dignity and other’s morals. These restrictions may be considered as necessary in a democratic society and meet the requirements of the Convention.
2.6. Restrictions established for the reception and the communication of information in different legislative acts
Law on the state secret
The Law on the state secret no. 106-XIII of 17 May 1994, establishes rules for the use, for the removal of the qualification of secret and for the protection of information that constitutes state secret in the interest of state security.
The state secret represents information protected by the state in the field of its military, economical, technical-scientific, foreign policy, reconnaissance, counter intelligence and investigation operational activity, the dissemination, disclosure, loss, theft or destruction of which may jeopardize state security.
The persons guilty of violating the legislation regarding the state secret bear disciplinary and criminal liability.
The restrictions established by the Law on the state secret are in accordance with the spirit of the Convention, that permits restrictions in the interest of national security.
Law on the public service
The Law on the public service regulates the service in the central and local administrative authorities listed in annex no.1 integrated in this law. The public official is bound to keep the state secret and any other secret protected under the law, as well as information on citizens that he/she takes knowledge of while discharging his/her duties, if this is provided by the law. The non-fulfillment of these obligations entails disciplinary liability, which constitutes one of the grounds for the cessation of the public service. The disclosure of the state secret constitutes a criminal offence and brings about criminal liability.
The restrictions set on the communication of information prescribed by this law are imposed by legitimate aims: defense of national security, hindrance to disclose confidential information, protection of other’s rights, therefore they may be considered as necessary in a democratic society and should not come in contradiction with Article 10 of the Convention.
Law on telecommunications
The Law on telecommunications forbids persons that carry out an activity in the field of telecommunications to disclose the content of phone talks, of other communications, performed by telecommunication means, as well as the disclosure of information on services rendered to persons other than the sender, the addressee or the appropriately authorized person.
Law on health protection
The Law on health protection obliges doctors, other medico-sanitary staff, pharmacists to keep the secrecy of the information on the disease, on the patient’s private and family life, about which they took knowledge of while discharging their duties, save cases when there is a danger of contagious diseases to spread, when there is a motivated request of investigation or judicial bodies; the violation of these professional duties entail the responsibility established by law.
The Law on health protection does not prescribe the obligation not to disclose the information on artificial insemination. It is necessary to include in this law the provision that the donor for artificial insemination not to be entitled to request the identification of the mother or of the child or to be acknowledged as the father of the child.
All persons involved in the artificial insemination must be bound by law not to disclose this kind of information.
Law on AIDS prophylaxis
This law obliges the medical personnel and other persons, that by virtue of their professional duties hold information on medical examinations regarding the HIV infection and AIDS and their results, to keep in secret this information. The disclosure of this secret entails their administrative liability.
Law on the commercial secret
The Law on the commercial secret establishes the legal basis for the protection of the commercial secret, the liability of natural persons and of legal entities for its disclosure. Natural persons and legal entities that have access to a commercial secret are bound to respect strictly the requirements on the non-disclosure of the information to competitors. The disclosure of the commercial secret entails disciplinary, material, administrative and criminal responsibility, if the information constituting commercial secret held by the entrepreneur in secret, had been entrusted in the established manner to the person that has disclosed them without its consent and their disclosure brought damages. Mass-media is not entitled to ask from entrepreneurs information that contains commercial secrets.
The imposed restrictions pursue the legitimate aim of protecting the commercial secret and of avoiding unfair competition, and thus does not run counter to the Convention.
Family and Marriage Code
This code guarantees the secret of adoption. It is forbidden to communicate, without the consent of adoptive parents, and in case of their death, without the consent of the guardianship bodies, any information on the adoption, as well as to issue extracts from the registers of civil status acts, from which one may conclude that the adoptive parents are not the natural parents of the adopted. The disclosure of the adoption secret contrary to the will of the adopter constitutes a criminal offense and entails criminal responsibility.
The restriction may be justified according to Article 10 para. 2 of the Convention as being instituted for the protection of rights of others.
Law on financial institutions
The Law on financial institutions provides that the bank administrators, staff and agents, currently working or prior having been employed, are bound to keep the commercial secret, not to use in personal or third party’s interest, other than the bank where they are employed or have been employed, the information they took knowledge of while discharging their professional duties and not to permit the access of other persons to this information.
Law on notary office
This law obliges notaries to keep the secrecy of notary actions both while carrying out professional duties and after the cessation of the activity.
Code of Criminal Procedure
Article 46 of the Code of Criminal Procedure prescribes that lawyers are not entitled to disclose information that has been communicated to them by virtue of exercising defense.
Law on the bar
This law establishes the confidential character of the relation client-lawyer.
Civil Code
“Article 7. Protection of honor and dignity
Any natural person or legal entity shall be entitled to demand in court the denial of information that harm its honor and dignity, if the one that disseminated this kind of information does not prove them to be truthful.”
In case that this information has been disseminated by means of mass-media, the court of law shall oblige its board of editors to publish in a term of 15 days since the coming in force of the judgment, a retraction in the same column, on the same page, in the same programme or cycle of shows.
In case that such information is expressed in a written document issued by an institution, the court of law shall oblige that institution to replace this document.
“Article 71. Reparation of moral damages.
The moral damage, caused to one person as result of disseminating untruthful information that harms its honor and dignity, shall be repaired in favor of the applicant by the natural person or by the legal entity that had disseminated this information.”
The amount of the compensation shall be established by the court of law in each case separately, from 75 till 200 minimal wages, if the information had been disseminated by a legal entity, and from 10 till 100 minimal wages, if the information had been disseminated by a natural person.
The prompt publication of excuses or of a retraction for the information specified under paragraph 1 of the present article, till the delivery of the judgment, shall serve as ground for the decrease of the compensation amount or for the exemption from its payment.”
We have already referred above on the provisions of the Criminal Code that protect the person from libel and of the Code of administrative offences that protect the person from calumny and outrage. The aim of the restrictions brought to the freedom of expression is to defend the reputation and rights of others. These restrictions should not come in contradiction with Article 10 of the Convention.
The Law on the legal regime of the emergency situation and of special forms of administration in the Republic of Moldova no. 290- XII of 1 October 1990, point 14 of Article 3 permits the limitation or the prohibition to use devices of multiplication, of radio and tele-transmission, of audio and video recording, the levy of technical means of sound amplification, the establishment of control over mass-media.
According to Article 15 of the Convention, the freedom of expression may be restricted by the state in time of war or other public emergency threatening the life of the nation, but this restriction cannot infringe upon the existence of this liberty.
The right to assembly represents the possibility of persons to associate freely in political parties and in other socio-political organizations. This possibility is guaranteed under Article 41 of the Constitution of the Republic of Moldova, which reads as follows:
"(1) All citizens may associate freely in political parties and in other socio-political organizations. They shall contribute to defining and expressing the political will of citizens and under the terms of the law shall take part at elections.
(2) The political parties and other socio-political organizations shall be equal before the law.
(3) The State shall assure the observance of legitimate rights and interests of political parties and of other socio-political organizations.
(4) Political parties and other socio-political organizations which by virtue of their goals or by their activity, strive against political pluralism, against the rule of law, against sovereignty and independence, against the territorial integrity of the Republic of Moldova shall be unconstitutional.
(5) Secret associations shall be forbidden.
(6) The activity of political parties established by foreign citizens shall be forbidden.
(7) Public positions that may not be held by a member of a party shall be established by organic law."
The right to assembly cannot be an absolute right. Therefore, Article 41 of the Constitution sets certain limitations.
Under paragraph 4 are declared unconstitutional any political party or socio-political organization which by virtue of their goals or by their activity, strive against political pluralism, against the rule of law, against sovereignty and independence, against the territorial integrity of the Republic of Moldova. This paragraph pursues the protection of some political, legal and state values, which may be affected neither by the abusive exercise of the right to assembly. According to paragraph 5, association bearing a secret character are prohibited. This interdiction pursues the protection of constitutional democratic values against some obscure forces that may wish to infringe upon them. The prohibition of the activity of political parties formed by foreign citizens does not run counter the ECHR, since Article 16 of the Convention permits the limitation of the political activity of aliens.
The constitutional restrictions should not constitute an infringement on the exercise of the right to freedom of assembly guaranteed under Article 11 of the Convention.
The Law on political parties and other socio-political organizations no. 718-XII of 17 September 1991 provides that political parties and other socio-political organizations, under this law, are free associations of citizens, constituted on the community of concepts, ideals and aims, which contribute to the exercise of the political will of a certain part of the population by legally taking over the state power and to participate at its exercise. Other socio-political organizations imply fronts, leagues, mass political movements, etc.
Political parties and other socio-political organizations shall be constituted according to the territorial principle, the creation and the activity of their organizational-structural units within labor collectives is forbidden. Political parties and other socio-political organizations may not be created from the initiative of the state and of its official authorities and persons.
Political parties and other socio-political organizations are registered at the Ministry of Justice. In case they breach the Constitution or the Law on political parties and other socio-political organizations, the Ministry of Justice is entitled to suspend their activity. During election campaigns, the activity of political parties and of other socio-political organizations may be suspended only by the Supreme Court of Justice. The Constitutional Court decides upon issues of constitutionality of a political party.
The above mentioned law does not permit the creation of political parties and of other socio-political organizations of foreign states, as well as their subdivisions and organizations, it also forbids the creation and the activity of paramilitary political parties and of other socio-political organizations, of political parties and other socio-political organizations that militate/strive against the political pluralism, against the rule of law and which pursue the aim to overrule or to change by means of violence or other anticonstitutional means the state organization, to undermine the sovereignty and the territorial integrity of the Republic of Moldova, which make war propaganda, instigate social, inter-ethnical and religious hatred and enmity, by authoritarian and totalitarian leadership means, which infringe upon inherent human rights, which carry out other activities that breach the constitutional organization of the Republic and which are incompatible with generally acknowledged rules of international law.
Any limitations and discrimination in their rights of citizens due to reasons of affiliation to a political party or to other socio-political organizations are forbidden.
From our point of view, these restrictions do not exceed the limits established by the Convention for the right to the freedom of assembly.
The Law on political parties and other socio-political organizations, according to Article 41 para. 7 of the Constitution, regulates the public positions that may not be held by members of political parties or of other socio-political organizations. According to this law, the following categories of public servants may not be members of a political party or of other socio-political organizations: military men, officials of internal affaires bodies, of state security authorities, from customs service, judges, public prosecutors, investigators, ombudsmen, state inspectors, as well as the staff of state media.
The members of political parties and of other socio-political organizations, enrolled in the military service as prescribed by law, appointed in position in state security, internal affaires authorities, in the prosecutor's office, in the system of state control, shall suspend their membership for the entire period of service or of holding the respective position.
The education system shall be unideologized. Teaching and disseminating in any school any program ideas or objectives of political parties or of other socio-political organizations shall be forbidden.
Similar restrictions are established also in other laws, which respectively do not violate Article 11 paragraph 2 of the Convention, granting States the right to place restrictions on the exercise of the rights enshrined under para. 1 by members of the armed forces, of the police, and of some public officials, which must be politically neutral, fact deemed necessary in a democratic society in the interests of national security or public safety.
Regarding the norms of the national legislation related to the right to freedom of peaceful assembly, which is protected under Article 11 of the Convention and is considered as an essential element of the political life and of public liberties (Rassemblement Jurassien v. Switzerland, 1979; Ezelin, 1991), we would like to mention the following:
The assembly must be peaceful. Article 11 does not guarantee the right to freedom of assembly is the aim of the participants is to generate disorder. Examining the application no. 8191/78, the Commission has emphasized the role of a peaceful assembly and has assessed that the existence of a prior authorization necessary to hold a public assembly does not represent a violation of Article 11:
"Where the latter are concerned, their subjection to an authorization procedure does not normally encroach upon the essence of the right. Such a procedure is in keeping with the requirements of Article 11 para. 1, if only in order that the authorities may be in position to ensure the peaceful nature of a meeting, and accordingly does not as such constitute interference with the exercise of the right " (Application no. 8191/78).
In another case it was estimated that the authorization for an assembly may be considered as necessary in a democratic society in order to regulate properly the traffic and to maintain the order on the main public ways (Anderson,1988).
The Commission has ascertained that the temporary interdiction, given by the government, for any public manifestation in a certain town, was admissible under Article 11 para.2, since there was a risk to find the public safety and order threatened if a certain manifestation had taken place. The jeopardy of a disorder was obvious and could not be prevented in another way (application no. 8440/78). The Commission did not consider as violation of Article 11 the interdiction of a demonstration due to the excessive noise that violates the rights of others (application no. 1381/88 v. Austria) or in the case when the participants to the demonstration have blocked public ways, organizing the so called "seated strike" (application no. 13 859/87, G. v. Germany; application no. 13 235/87; application no. 13 858/88, C.S. v. Germany).
The Commission and the Court acknowledge the practical difficulties related to public assemblies and grant States a certain discretionary power to cope, either by issuing manifestation authorizations, or ensuring police protection for controversial manifestations, or by any other way.
The freedom of peaceful assemblies is enshrined in Article 40 of the Constitution of the Republic of Moldova, which reads as follows:
"Meetings, demonstrations, manifestations or any other assemblies shall be free and may be organized and deployed only peacefully, with not any type of weapons."
The quoted article provides that the freedom of assembly may be exercised in different forms and by different means: meeting, demonstrations, manifestations or any other assemblies.
Article 40 of the Constitution prescribes three important rules concerning assemblies, which namely are:
a) the freedom of assembly;
b) the peaceful character of assemblies;
c) the prohibition of any type of weapons at assemblies.
Other rules bearing a different character are established by the Law on the organization and unfolding of assemblies no. 560-XIII of 2 July1995, which regulates in more details the constitutional principles.
This law regulates the manner of exercising the freedom of assembly, of organizing and unfolding, according to the Constitution, meetings, demonstrations, manifestations, marches, picketing, strikes unfolding in public places, outside economical units or place of work, or of other assemblies of citizens the unfolding of which is not regulated by another law.
Comparing the above mentioned law to the case law of the Court and Commission, we ascertain that the following provisions meet the requirements of the Convention: the prior declaration of assemblies, the assembly conditions, the duties of key factors from the mayor's office to create conditions for the unfolding of legitimate assemblies and to assure the protection of the organizers and of the participants to the assembly, to protect the rights and liberties of others, to assure the safety of the public order during the assembly, the intervention of the police in case of losing the peaceful character of assemblies or to neutralize the actions that disturb the public order, jeopardize the life and the physical integrity of persons, of police officers or that threaten with devastation or destruction of public or private assets.
The prohibition of assemblies that instigate a war of aggression, national, racial or religious hatred, incitement toward discrimination, territorial separatism, public violence does not run counter the Convention.
The forms under which the freedom of assembly may be exercised are provided in Article 40 of the Constitution and in the above mentioned law. The diversity of forms under which this freedom may be exercised and the open and receptive character of the constitutional and legal provisions, deriving from the expression "or other assemblies", prove that all forms are protected to the same extent and it is up to the organizer of the assembly to decide which form to choose. Moreover, the law does not set the circumstances when the assembly may be performed under one form or under another.
The Criminal Code and the Code of administrative offences provide several cases when a person may entail liability for the abuse in exercising the right to assembly.
These restrictions may be justified by the need to protect public order, the rights and the liberties of others and they should not be contrary to the provisions of the Convention.
3. Trade unions
3.1. Right to form and join trade unions
Article 11 of ECHR protects the right of individuals to associate with others in trade unions and to join them for the protection of their interests. According to the Court's and Commission's jurisprudence the requirements of article 11 are met if trade unions may be formed and their membership recognized. Paragraph 1 of Article 11 refer both to the positive right of being a trade union member, as well as to the negative right of not being a trade union member (see Young, James and Webster v. United Kingdom, 1981; application no.9520/81).
The positive right of freely joining a trade union was also discussed on the occasion of examining application no.10550/83. The Commission stressed on the State's obligation not to interfere with the forming and joining of trade unions. The Commission explained that the "right to form trade unions involves, for example, the right of trade unions to draw up their own rules, to administer their own affairs and to establish and join trade union federations; trade unions decisions in these domains must not be subject to restrictions and control by the State."
The Commission did note, however, that in some circumstances the State might need to step into trade union matters in order to protect individuals against any abuses from the behalf of trade unions:
"Such abuse might occur, for example, where exclusion or expulsion was not in accordance with union rules or where the rules were wholly unreasonable or arbitrary or where the consequences of exclusion or expulsion resulted in exceptional hardship such as job loss because of a closed shop."
The right of individuals to form and join trade unions for the protection of his interests is guaranteed in Article 42 of the Republic of Moldova's Constitution:
"(1) Every employee has the right to form and join trade unions for the protection of his interests.
(2) Trade unions shall be formed and shall carry out their activity according to their statutes and in compliance with the law. They shall contribute to the protection of professional, economic and social interests of employees."
The Constitution does not provide any grounds for the limitation of this right, while Article 11 paragraph 2 of ECHR does.
According to the Constitution (Article 72 (3) the establishment and functioning of trade unions shall be regulated by organic law - the Law on trade unions no.1129-XIV from July 7, 2000. This law regulates social relationships arising from the exercise by the citizens of their constitutional right to form and join trade unions, sets the legal framework of trade unions' forming and guarantees of their activity, rules on their relationships with public authorities, employers and employers' associations.
3.2. Right of trade unions to protect the interests of their members
While safeguarding the freedom of trade unions to protect the professional interests of their members, ECHR does not oblige the State in Article 11 to guarantee a special treatment of trade unions. The Court held that the State may choose its own means of dealing with these associations.
In the case of the National Union of Belgian Police, 1975, the applicant union complained that the Belgian Government's consultation with several large public employees' unions, to the exclusion of the Belgian Police Union, constituted a violation of Article 11 of the ECHR. The Court held that the right to be consulted was not indispensable for the effective enjoyment of trade union rights in the Swedish Engine Drivers' Union case, 1976, the Court decided that Article 11 protects the right of the union to be heard during the course of collective bargaining. In the case of Schmidt and Dahlström v. Sweden, 1976, which refereed to the right to strike, the Court noted that ECHR safeguards the trade unions' freedom to protect the professional interests of their members by a collective action. In the same case the Court assessed the right to strike as one of the most important means of collective actions, but there are others. Such a right, which is not expressly enshrined in Article 11, may be subject under national law to regulation of a kind that limits its exercise in certain instances. In this context, the Court refereed to the European Social Charter.
In all these cases the Court held that the State must authorize the right of trade unions to protect the professional interests of their members by means of collective actions and that Article 11 gives the States the discretion to choose the means of guaranteeing such protection by trade unions to their members.
The Republic of Moldova's legislation safeguards the right of trade unions to protect the interests of their members by means of collective actions. This right is provided in Article 43 (4) of the Constitution, which stipulates that the right to bargaining in labor matters and the mandatory character of collective agreements shall be guaranteed. The same right is provided in Article 15 of the Law on trade unions no.1129-XIV from July 7, 2000.
The Law on collective labor agreement no.1303-XII from February 25, 1993 protects the right to collective bargaining with participation of trade unions as representatives of employees at the signing of collective labor conventions and agreements. The law has no provisions that would limit the right of trade unions in this sense.
The right of employees to collective protection from the behalf of trade unions is granted by the Law on the settlement of collective labor disputes no. 1298-XII from February 24, 1993 and by Article 21 of the Law on trade unions no.1129-XIV from July 7, 2000.
In collective labor disputes employees are represented by trade unions. If a given unit has not formed a trade union or if not all employees are trade union members, employees will be represented by representatives appointed by them. If the collective labor dispute is not settled by direct mediation, the trade union or the employees' representatives may go on strike. The strike is the ultimate solution by which an employer may be convinced to satisfy the employees' requirements.
The right to strike is acknowledged by Article 45 of the Constitution:
"(1) The right to strike shall be guaranteed. The strikes may be called only for the purpose of protecting professional, economic and social interests of employees.
(2) The law shall set the conditions for the exercise of the right to strike, as well as the liability for illegal call of strikes."
The Constitution provides a limitation concerning the purpose of strike. However, this does not contradict the ECHR.
Declaration, unfolding and termination of a strike shall be exercised under the conditions set forth in Chapter III of the Law on the settlement of collective labor disputes and in Article 22 of the Law on trade unions no.1129-XIV from July 7, 2000.
The legal requirements towards initiation of strikes provide that a strike may be called only if prior to that all other legal possibilities of settling the collective labor dispute have been exhausted and yet the claims were not satisfied. The Law prohibits the strikes pursuing the annulment of the labor agreement's dissolution by the employer, employment or change of a person's position. Also, it is not allowed to go on strike in order to amend the provisions of the collective labor agreement, of another agreement reached earlier or the final decision of an arbitration commission, which ruled on a collective labor dispute, during the entire term of their application. The strike may not pursue the achievement of political goals.
According to the Law on the settlement of collective labor disputes the strike is not admissible if its unfolding truly jeopardizes the life and health of the people, in public authorities, law enforcement bodies for maintenance of the public order and state security, railway and urban public transportation units, civil aviation, telecommunications, energetics, units involved in the direct production of means of defense, industrial units with on-going working schedule if their stalling may cause sever consequences.
Illegal calling of strikes shall entail criminal or administrative liability.
The Law on public service provides that the public servant is not entitled to participate in strikes which disturb the well-functioning of the respective public authority, on the activity of which the society's supply with vital goods and services depends on.
The Law on legal regime of emergency situations and special forms of administration in the Republic of Moldova provides that strikes may be banned under emergency situations.
The restriction of the right to strike does not contradict the Court's case-law, which, while examining some cases, held that the exercise of this right may be restricted in certain instances by the domestic legislation (see the case Schmidt and Dahlström v. Sweden, 1976).
The Republic of Moldova's legislation allows trade unions to protect the interests of their members by other means as well. Thus, the Law on the organization and unfolding of meetings provides the right of trade unions to hold various meetings. While speaking of any means which may be used in order to protect the professional interests of the trade union members, one should refer to the Law on trade unions.
ARTICLE 12
Beginning with the marriageable age the man and the woman have the right to marry and to found a family according to the national laws governing the exercise of this right.
ARTICLE 5
Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of it's dissolution. This Article shall not prevent States from taking such measures as are necessary in the interest of the children.
Article 12 of the ECHR regulates the right to marry and to found a family stating that it appears starting with the marriageable age. The Convention does not formulate any restriction in the exercise of this right leaving the determination of the age factor that allows its accomplishment on behalf of national laws. As a result, each member State of the Convention decides in particular the appropriate age for a person to marry and found a family.
Based on the previsions of Article 12 we can conclude that a single right is at stake. This not only due to the fact that the expressions "right to marry and found a family" the conjunction "and" is used, but last from the content of the last part of the article "according to the national laws governing the exercise of this right". Out of these reasons we shall not make a distinction further on between the right to marry and to found a family, niter shall we analyze them separately.
The right stipulated by the Article 2 is acknowledged by every men and woman. Under the sane chapter the Court specified that this is valid for the traditional marriage between two persons of different sex (case Cossey v. United Kingdom 1990).
The Convention together with the indication that national laws have to regulate the right to marry and to found a family did not in any way favor it's exercise, thus leaving for the domestic legislation a wide scope for the regulation of these issues, taking into account the traditions and the specifics of each State.
Groso modo, the provisions of Article 12 of the Convention are reflected in paragraph 2 of Article 48 of the Constitution of the Republic of Moldova:
"The family is founded on the freely consented marriage of husband and wife, on the spouses equality of rights and on the duty of parents to ensure their children's upbringing and education".
If to subject to analysis the constitutional formulation, we can deduce that this article enshrines the right of the person to marry and to found a family on the basis of the following principles:
1. The family is based on marriage;
2. Persons who marry shall have their consent freely expressed;
3. Marriage takes place between men and woman;
4. At the foundation of the family the men and women enjoy the same rights.
Requirements for concluding marriage and other issues related to this procedure are regulated by the Family Coda of the Republic of Moldova (Law no. 1316 -XIV from October 26, 2000) that provides the following:
Article 11. Conditions for concluding marriage
(1) For the purpose of marriage the mutual free consent personally and unconditionally expresses by the man and the woman who are to get married, as well as their marriageable age shall be required.
(2) Persons who want to marry are obliged to inform each other about the state of their health.
Article 16. Marriageable age
The minimal marriageable age for men is 18 and for women - 16 years of age.
In the same Code all the cases are listed when the marriage is prohibited by law. So, Article 15 does not allow marriage between:
a) Persons of whom at least one is already married;
b) Direct relatives till the 4th degree inclusively, brothers and sisters including those who have a common parent;
c) Adopting and adopted person;
d) Adopted person and a relative of the adopting person till the second degree inclusively;
e) Guardian and under age person placed under his guardianship during this period;
f) Persons among who at least one was deprived of legal capacity;
g) Persons convicted to deprivation of liberty during the period when both serve their punishment;
h) Persons with the same sex.
The right to found a family can not be perceive without the right of the spouses to live together. An exception are the families of the convicted persons. In the report of the Commission on the case Draper v. United Kingdom (1980) there was formulated a remark according to which the States may not prohibit the convicted persons to marry, but they can prohibit the latter already married to live together.
In the Republic of Moldova the procedure of concluding a marriage that involves convicted persons is regulated by the Instruction on the Manner of Civil Acts Registration, approved by the Decision of the Government no. 430 from November 30, 1983. This normative act regulates the manner of filling in the declaration for marriage, certification of authenticity of signatures and data on the convicted person who intends to marry, the place of registration of marriages. The registration shall be performed according to the general rules with the presence of the persons who are marrying, by the Civil Officer, in a room specially designed by the administration of the institution. The registration of marriage between the convicted persons that may leave the seclusion places shall be performed within the Civil Registration body.
Article 15 paragraph (1) let. g. of the Code prohibits marriages between the convicted, situation that contradicts the practice of the Commission (the above mentioned Draper case).
The Criminal Sanctions Enforcement Code that provides not only the manner of sanction enforcement, but also the exercise of the rights of the Convicted does not contain any stipulation with regard to their marriage (except for Article 159 that allowed the convicted to death persons to marry and to divorce; this article has been repealed due to the abolition of the death penalty).
The Strasbourg organs have addressed other issues regarding the provisions of Article 12. For example the Commission allowed the prohibition of bigamy due to the reason that the relationship between a man and two women do not fit the legal framework of the society that adhered to the monogamy principle (Johnston v. Ireland, 1986). In another case the Commission has assessed that the relations between single parents with their children are not to be examined under Article 12, enjoying the protection of Article 8 instead (Marckx v. Belgium 1979).
The comments of this article do guarantee the right to marry and to found a family between the "man" and "woman" thus its provision does not protect homosexual couples. The legislation of the Republic of Moldova does not contain any regulation on marriage between couples involving persons of the same sex.
The right of the foreign citizens to marry and found a family is provided by Article 15 of the Law on the legal status of foreign citizens and stateless persons in the Republic of Moldova no. 275 - XIII from November 10, 1995 "foreign citizens and stateless persons enjoy the right to marry and dissolve marriage with citizens of the Republic of Moldova with other persons in compliance with the legislation in force. They enjoy the rights and have similar obligations in family relationships like the citizens of the Republic of Moldova ".
The provisions of Article 12 are tightly connected with Article 5 of the Protocol 7 that establishes the equality in rights and obligations of the spouses. We do not have any case law available from Strasbourg concerning the Article 5 of the Protocol 7 except for several statements delivered by the Court about Article 8, Article 12 and 14 that are only justified by the application of this article.
For example Article 12 does not envisage any provisions related to the spouses right to divorce or to remarry. The Regulations of Article 5 of Protocol 7 allow the spouses to enjoy equal rights also in cases of marriage dissolution. It is obvious that in the case F. v, Switzerland (1987) the Court derived from the provisions of Article 5 Protocol 7 when stating that the temporary prohibition for a man to marry for the 4th time only on the ground that the latter has married and divorced three times in 18 years is a violation of the right to marry, thus, a violation under Article 12.
Subjecting to an analyses Article 5 of the Protocol 7 we come to the following conclusions:
1) this Article is valid only for spouses this meaning only for persons related to each other by the act of marriage in conformity with the law;
2) the equality between spouses presumes not only rights but also obligations;
3) rights and obligations of the spouses have a civil character thus, are not related to other legal domains (fiscal, criminal, administrative, etc.);
4) both the rights and the obligations that appear between the spouses as well as those with their children, count;
5) this relationships are generated by marriage, during the marriage and at the divorce.
It is worth mentioning that the Convention affords possible derogations due to the fact of opening the possibility of the States to take the necessary measures in the interest of their children.
Deriving from the requirements and principles listed above we shall pursue to a study of the legislation of the Republic of Moldova as regards to this issue.
While giving comments to Article 12 we have already quoted paragraph 2 of the Article 48 from the Constitution of the Republic of Moldova that provides inter aliam that the family is founded on free consent between husband and wife and on their equality of rights.
The stipulations of the Family Code include a more detailed wording of the constitutional principles about the family.
The conditions generating rights and obligations of the souses are separately indicated in Article 2 paragraph 2 and Article 9 of the Code.
Article 2 paragraph 2 provides for the following:
"Only marriage concluded within state civil registration bodies give birth to rights and obligations of the spouses stipulated by the present code ".
Article 9 states that:
(1)" Marriage shall be concluded at the civil registration bodies".
(2)The legal rights and obligations of the spouses appear on the day of marriage registration by the civil bodies.
The equality principle of the spouses in family relations is regulated by Article 16 of the same code
(1)"All the problems of family life shall be solved by the spouses together according to the principle of their equality in family relationships.
(2)Each of the spouses shall be entitled to continue or to independently choose the occupation and profession.
(3)The spouses shall determine their place of residence freely and independently.
(4)The relationships between spouses are based on respect and mutual help, on common obligations for the support of the family, maintenance and education of the children."
Articles 19, 20, 21, 22, 23, 24, 25 and 26 of the Family Code regulate the legal status of the spouses' assets. Indicating for each the following:
Article 19
(1)The goods acquired by the spouses during the marriage shall be regarded as common property.
(2)The legal status of the spouses goods is valid to the extent it was not specified by the prenuptial contract.
Article 20
(1)The goods acquired by the spouses during the marriage shall belong to both of them as common property in conformity with the legislation.
(2)Common property of the spouses are goods obtained from:
a) Revenues gained by each of the spouses from:
- labor activity;
- entrepreneurial activity;
- intellectual activity;
b) Awards, indemnities and other payments, except for compensations (financial aid, reparation for health prejudices, etc.);
c) Other common means.
(3)Common property of the spouses are movable and immovable assets, real estate, deposits, payments and participation shares at the social capital of financial institutions or companies that have been built, established, procured or done on common means as well as other goods acquired during the marriage notwithstanding that the fact that these have been procured or deposited on the account of one of the spouses.
(4)The common property right shall extent also on the spouse who did not have an own revenue dealing with household, education of children or out of other solid grounds.
(5)Common property of the spouses are the goods obtained beginning with the day of marriage registration till the date of its dissolution. The law court is entitled to declare the goods acquired by one spouse within the period when spouses kept secret households as his own property, on the request of the interested spouse who is not guilty of the dissolution of marriage.
Article 21
(1) The spouses based on common agreement posses, use and dispose of common goods.
Article 22
(1)Goods belonging to each spouse before the marriage and as well as those received as gifts, obtained by means of heritage or based on other free of charge agreements, by one of the spouses during the marriage shall be considered as personal property of each of the spouses.
(2)Objects of personal use (clothes, shoes and other objects), except for valuable jewels and other assets of luxury shall be considered as personal property of the spouse who is using them, regardless of the time and the manner of acquisition.
Article 23
Goods that belong to each of the spouses may be recognized by the court as common property if it is found that during the marriage on the account of common means of the spouses or based on means of one of the spouses, or as a result of labor of only one of the spouses the value of these groups has considerably increased (capital renovation, reconstruction, new endowment, rearrangement, etc.).
Article 24
(1)Each spouse holds responsibility for his own obligations upon goods from his personal property and his share from the spouses common property that may be determined by the court of law upon the request of the creditor.
(2)The spouses shall be liable deriving from their entire patrimony for the obligations undertaken in the interest of the family, even if only by one of them, as well as for the reparation of damage inflicted as a result of committing by one of them of an offence, in case by virtue of this act they have increased their common goods.
Article 25
(1)The division of common property of spouses may be carried out both during the marriage as well as after its dissolution at the request of any of the spouses.
(2)The common property of the spouses may be divided based on an agreement between them.
(3)In case of a litigation the determination of each spouse share from their common property as well as their natural division shall be done by the court.
(4)While dividing the common property of the spouses the law court shall at the request of the spouses indicate the goods that are to be transmitted to each of them. In the event one of the spouses is transmitted an amount of goods exceeding his share the other spouse may have a pecuniary or other nature compensation.
(5)Goods procured for underage children (clothes, shoes, school supplies, musical instruments, toys, etc.) shall be transmitted free of charge to the spouse children are living with.
(6)Deposits done by the spouses for their underage children shall be considered as property of the latter and shall not be take into account at the division.
(7)In case common goods have been divided during marriage, these become personal goods of the spouses, as for the goods that have not been subject to division as well as goods acquired afterwards by the spouses, these become their common property.
(8)The term of limitation for the division of common property of the spouses whose marriage has been dissolved is 3 years.
Nevertheless the goods of the spouses may fall under the incidence of a special regime of regulations and namely of a contractual agreement. This is provided by articles 27, 28, 29, 30, 31 and 31 of the Code. Article 27 states that the prenuptial contract is the benevolently concluded agreement between persons who want to marry or between spouses where patrimonial rights and obligations of these during marriage and/or in case of its dissolution is expressly determined.
Article 58 of the Family Code states that parents have equal rights and obligations with regard to the children, regardless whether these children are born within or outside the marriage, whether the children live together or separated from parents. The rights and obligations of the parents with the exceptions listed with the present code cease from the moment of reaching the full age or together with the full legal capacity of the child. The same principle is feasible also in cases of marriage dissolution. Article 74 of the Code prescribes that the parent who lives together with the child is not entitled to hinder the contact between the child and the other parent who lives separately, except for the cases when the behavior of the latter is unfavorable to the interest of the child or are dangerous for his physical and psychic state.
Moreover, the code allows a derogation from the principle encompassed in Article 5 of the Protocol 7. Consequently the provisions of Article 34 of the Family Code imposes restriction upon the right of the husband to request the annulment of marriage, emphasizing that if the consent of the wife is lacking, the husband may not solicit the dissolution of marriage during the pregnancy of the latter and also within 1 year after the birth of the child, in case the child was born alive and is living.
By virtue of the above mentioned norm the legislator pursuit the goal to protect the interests of already born children and of those not yet born, in a situation where the spouses have expressed the intention to divorce. We hold to the opinion that this derogation from the spouses equality principle regarding the right to divorce is in full compliance with the stipulation of Article 5 of Protocol 7, according to which the State may take necessary measures in the interest of the children.
Even in spite of these fact certain contradictions between the legislation of the Republic of Moldova and the provisions of the Article 12 of the Convention and Article 5 of the Protocol 7 of ECHR would have arisen in those circumstances and under Article 1 paragraph 3 of the Code the international regulations would have been applied.
ARTICLE 13 guarantees everyone whose rights and freedoms as set forth in the ECHR are violated the right to an "effective remedy" against these violations before a "national authority".
According to this article the right to remedy is not guaranteed in case of all the rights' and freedoms' violation, but only of those acknowledged by the Convention. Therefore, it is a subjective right and it operates simultaneously with other rights of the Convention.
Unlike Article 5 paragraph 4 of ECHR, which provides the right of individuals to a remedy before courts, the remedies claimed based on Article 13 may be brought not only before courts, but before other national authorities as well.
The term "national authority" in the meaning of Article 13 must be understood as both judicial and non-judicial authority.
In the case of Silver (paragraph 113 b) the Court pointed out that the authority provided in Article 13 may not necessarily be a court, but the powers it holds shall guarantee an effective assessment of the remedy brought before it.
The national authorities may be: quasijurisdictional authorities, such as the Ombudsman (see the case of Leander v. Sweden, 1987); administrative authorities - a minister or a chief officer in charge of a prison (see the case of Boylc and Rice v. United Kingdom, 1988); political authorities - parliamentary commission (see the case of Class v. Germany, 1978).
It is necessary to mention that in the European Court's case-law the an application based on Article 13 of the Convention is admissible only if the applicant is personally convinced of his rights' violation. For these reasons, the remedy should be well founded, specified and defensive.
Article 13 does not describe what should be the effect of the remedy. It guarantees the right to effective means of defense, therefore it grants only the possibility to use a remedy and not necessarily its favorable solution.
The Commission and the Court have afforded the discretion of assesing and interpreting to the High Contracting Parties of the Convention in determining what constitutes "effectiveness". In the above-mentioned Leander case, the Court held that the term "remedy" could in fact comprise an "aggregate of remedies". In the case of Abdulaziz, Cabales and Balcandali v. United Kingdom (1985), the Court noted that although the relevant domestic regulations had in fact been correctly applied by the authorities, the applicants had no "effective remedy" in British law against violation of their rights under Article 8 of the Convention.
Article 20 of the Republic of Moldova's Constitution grants everyone the right to effective satisfaction by competent courts of law against acts violating their rights, freedoms and legitimate interests. The Constitution also provides the right of citizens to address petitions. Paragraph (1) of Article 52 provides:
"(1) All citizens shall be entitled to address to public authorities by means of petitions only on the behalf of applicants."
The procedure of examining the remedies against the acts of persons exercising professional duties is provided in the legislation on civil procedure, criminal procedure, administrative offences, as well as in the laws on petitioning, public service etc.
On 10.02.2000 the Parliament of the Republic of Moldova passed the Law on administrative jurisdiction no.793-XIV, which sets forth the procedure of filing and examining applications by the courts against illegal acts of public authorities. The law also provides which acts may and which may not be appealed in administrative courts.
Article 273 of the Code of Administrative Offences provides the right to appeal the decision taken on a case of administrative offence by the person against whom this decision was taken as well as by the injured party of his representative. According to Article 274 of the same Code the decision of the authority (official person) on the case of administrative offence may be appealed in court, the ruling of which will be final.
Chapter XX of the Criminal Procedure Code provides the procedure of filing and examining complaints against the acts of the criminal investigation authority, of the investigator and of the prosecutor. The complaints against the acts of the criminal investigation authority and of the investigator are examined by the prosecutor, while the complaints against the acts of the prosecutor conducting the preliminary enquiry or some prosecution acts are examined by the hierarchically superior prosecutor.
According to Article 18 of the Law on the Prosecutor's office of the Republic of Moldova no.902-XII from January 29, 1992, one of the key tasks of the prosecutor's office is to protect and defend social, economic, political, personal rights and freedoms of the citizens provided in the Constitution and other laws. To fulfill these tasks, the prosecutor is entitled to appeal in recourse (cassation (trans. note) the illegal acts issued by the central and local public authorities, as well as the illegal acts and actions of the decision factors.
The Law on petitioning no.191-XIII from July 19, 1994 regulates the procedure of examining the petitions addressed to the public authorities, enterprises, institutions and organizations by Moldovan citizens, foreign citizens and stateless persons, whose rights were infringed upon on the Republic of Moldova's territory.
According to Article 6 of this Law the petitions concerning issues of national security, rights and legitimate interests of large groups of citizens or containing proposals for the amendment of the legislation, of the public authorities' decisions shall be addressed to the President of the Republic of Moldova, to the Parliament and to the Government.
Article 7 provides that petitions touching upon other issues than those mentioned in Article 6, shall be addressed to official bodies and persons, competent to examine them. The petitions challenging acts, decisions, actions or inactions of an administrative authority or official person who breached the rights and legitimate interests of the applicants shall be addressed to the immediate hierarchically superior authority. The petitions against the decisions of the organizations, which do not have a hierarchically superior authority, as well as the decisions of the county (raion) executive authorities, municipal mayoralties shall be brought before the court of law.
The aforementioned Law does not apply to the consideration of petitions provided by the legislation of civil procedure, criminal procedure, administrative offences and labor.
In compliance with the Law on ombudsman, the activity of ombudsmen pursues the ensurance of the guarantees of the citizens' constitutional rights' and freedoms' observance by the public authorities and official persons at all levels.
It is important to stress that the domestic law provides not only the right to an effective remedy but also the right to reparation of damages suffered by someone due to a public authority. According to Article 53 paragraph (1) of the Constitution, the individual, whose rights were breached by a public authority by means of an administrative act or by the non-settlement of his application within the legal term, shall be entitled to the acknowledgement of the claimed right, the annulment of the act and reparation of damages.
In conformity with Article 12 of the Law on petitioning, the authority or official person to whom the petition was addressed, shall be obliged to guarantee the reinstatement of the rights infringed upon, the payment, under the law, of the damages caused and the enforcement of decisions taken after the petition's settlement.
After performing the study of compatibility of the national legislation with the requirements of Article 13 of the Convention, the working-group reached the conclusion that generally there are no essential contradictions between them.
At the same time, we found necessary to improve the legal framework regulating the right of individuals to an effective remedy before a national authority.
Both national and international law address principles of equality and non-discrimination. These principles may have a formal aspect as regards consistent treatment off all individuals by the law, and a material aspect concerning the equal distribution of rights among individuals in a given society. For each aspect, the law makes some distinctions between the beneficiaries of these rights and it is important to know when these distinctions become prohibited discrimination.
Commission and Court have allowed the States a wide margin of appreciation to determine the circumstances in which certain distinctions are appropriate (see the case of Lithgow and Others v. United Kingdom, 1987).
It is important to stress that the Convention protects the rights of individuals and not groups of such - conclusion which may be reached from the reading of Article 14. Therefore, only the party who is directly affected by the by a violation of one or more of the rights protected under the Convention may bring a claim before the European Court. It is not admissible to file an application on behalf of another party, even in "group" applications, each individual within the group must allege the violation of his rights.
If the State grants any differential treatment of individuals in similar situations, without an objective and reasonable justification, such differentiation is considered as a violation of the Convention, as in the case of Marks v. Belgium (1979) when the Court found the violation of Article 14. The mother and her natural child claimed violations of Article 1 of the Protocol No.1, Article 8 and Article 14, in the operation of the Belgian legal regime applicable to children born out of wedlock. The Court held that the situations of both mother and child were sufficiently analogous to those between a married woman and her child that the State could not justify the treatment it had imposed.
Another example is the case of Darby v. Sweden (1990), where the applicant claimed that the Swedish law requiring non-resident workers to pay a church tax from which resident workers could be exempted, constituted a violation of Article 9, Protocol No.1, Article 1 and Article 14. The Court held that such a restriction violated Article 1 of Protocol No.1 in conjunction with Article 14.
The Commission and Court have sometimes been reluctant to consider alleged violations of Article 14 in cases in which they have already found one or more violations of substantive rights guaranteed under other articles of the Convention, for example in the case of Johnston and Others v. Ireland (1986), the natural daughter of an unmarried couple claimed that certain Irish laws violated her rights to family life under Article 8 in conjunction with Article 14.
Finding the violation of Article 8, the Court declared it was unnecessary to examine the case in the light of Article 14.
According to the Constitution, Republic of Moldova is a democratic state of law, in which human dignity, rights and freedoms, free development of human personality are supreme values and shall be guaranteed (Article 1).
Article 16 of the Constitution is the guarantee for the implementation of the declared rights and fundamental freedoms. This Article provides:
"(1) Respect and protection of individuals is the supreme duty of the State.
(2) All citizens of the Republic of Moldova shall be equal before the law and public authorities, without any distinctions based on race, nationality, ethnical origin, language, religion, sex, opinion, political belonging, property or social origin".
It should be mentioned that in compliance with Article 19 of the Constitution the foreign citizens and stateless persons shall enjoy the same rights and have the same duties as the citizens of the Republic of Moldova, save the exceptions provided by law.
Guarantees of equality in the exercise of the rights and freedoms provided by the Constitution are reflected in the National legislation.
Thus, the Elections Code no.1381-XIII from November 21, 1997 provides that all the Republic of Moldova's citizens, who have reached the age of 18 until the elections' day shall participate in the elections, without any differences based on race, nationality, ethnical origin, language, religion, sex, opinion, political belonging, property or social origin (Articles 3 and 11 of the Code).
This principle is enshrined as well in the Law on public service no.443-XIII from May 4, 1995:
"Article 13 paragraph (1)
The right to be employed in the public service belong to all the citizens of the Republic of Moldova, regardless race, nationality, sex, confession, who reside permanently on the territory of the Republic, who hold the necessary qualification and who are able from the medical point of view to run a public office, and restrictions provided in Article 11 shall not apply to them."
A similar provision is contained in the Law on the legal status of foreign citizens and stateless persons in the Republic of Moldova no.275-XIII from November 10, 1994, which provides in Article 5 paragraph (3) the following:
“Foreign citizens and stateless persons shall be equal before the law and public authorities, without any distinctions based on race, nationality, ethnical origin, language, religion, sex, opinion, political belonging, property or social origin.”
Article 3 of the Law on the rights of child no.338-XIII from December 15, 1994 provides: “All children shall be equal in rights regardless their race, nationality, ethnic origin, sex, language, religion, beliefs, property or social origin.”
Article 8 of the Criminal Procedure Code stipulates:
“While making justice in criminal cases all citizens shall be equal before the law and court, the race, nationality, ethnical origin, language, religion, sex, opinion, political belonging, property or social origin, as well as other circumstances.”
The Civil Procedure Code in its Article 6 provides:
“In civil cases justice shall be made only by courts based on the principle of equality of all the citizens before the law and court, the race, nationality, ethnical origin, language, religion, sex, opinion, political belonging, property or social origin, as well as other circumstances.”
According to Article 8 of the Law on the courts’ system no.524-XIII from July 6, 1995: “All citizens of the Republic of Moldova shall be equal before the law and the judicial authority, without any distinctions based on race, nationality, ethnical origin, language, religion, sex, opinion, political belonging, property or social origin, as well as other circumstances.”
Article 17 of the Labor Code provides:
“No direct or indirect limitation of the rights or granting of direct or indirect privileges upon employment based on sex, race, nationality, language, social origin, material situation, home, attitude towards religion, beliefs, belonging to public associations, as well as based on other circumstances not related to the professional qualifications of employees, shall be admitted.”
From the above-mentioned one may conclude that the Republic of Moldova’s legislation sets forth principles of equality and non-discrimination and does not contravene Article 14 of ECHR.
ARTICLE 15
1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.
Article 15, particularly paragraph 1, is a general clause of derogation by virtue of which may be restricted the exercise of the rights set in the Convention.
Para. 2 of Article 15 lists a series of articles of the Convention from which no derogation is authorized. These articles are called “the hard core” of the Convention, formed of inalienable rights constituting a form of jus cogens. It concerns rights bearing an essential character: Article 2, right to life (save death resulting from illegal acts of war), Article 3, prohibition of torture and inhuman and degrading treatment or punishment; Article 4 para. 1 on the prohibition of slavery and forced labor and Article 7 establishes the principle of criminal law non-retroactivity. The addition protocols have amended the articles from which no derogation is authorized. We refer to Article 3 of Protocol no. 6 on the abolition of death penalty and Article 4 of Protocol no. 7 on the rule non bis in idem. In this respect we may state that the “hard core” of the rights protected under ECHR is susceptible of extension in the future.
On the other hand, some provisions of the Convention implicitly are not subject to derogation. It is the case particularly of Article 14 on non-discrimination, Article 17 on the prohibition of abuse of rights and Article 18 concerning the aim set by the Convetion in matter of restrictions. Article 13 of the Convention on the right to an effective remedy may also be included in this category of rights.
Unlike other derogation clauses set in the Convention, such as those established under para. 2 of Article 8 – 11, the provisions of Article 15 do not permit other derogations than temporary ones. The temporary character of derogation may be derived from the provisions of para. 3 of Article 15, according to which the State that sets derogations from the rights set forth in the Convention, must inform the Secretary General of the Council of Europe on the date when derogation measures shall cease to operate.
Article 15 states very strict conditions, which states must observe when establishing derogation from the ECHR. These are provided under para. 1 of this article, constituting two elements: war and other public emergency threatening the life of the nation, fact which determines it to go beyond the reasons established by Article 8-11 of ECHR: national security, public safety, protection of order and prevention of crimes, protection of health or morals, protection of the rights and freedoms of others.
The doctrine mentions that in the context of Article 15 war must be analyzed from a material point of view and not only formally, i.e. “an armed interstate conflict presenting a certain intensity”. The term other public emergency threatening the life of the nation is mush broader and less precise.
The competence of the Court to verify if the conditions set by Article 15 for the exercise of emergency right to derogation are met was confirmed in the Lawless case. Meanwhile both the Court and the Commission had the occasion to define the sense of the terms used by the ECHR in the context of Article 15 (Lawless and the Greek affair). Consequently the normal and habitual meaning of the words “In time of war or other public emergency threatening the life of the nation” is sufficiently clear: “ they designate in fact a crisis situation or exceptional and imminent jeopardy that affect the entire population and represents a danger for the life organized in communities forming the State.”
In the case Ireland v.the United Kingdom, the Court has added another important specification, according to which could be concluded that the public emergency regarded in Article 15 does not have to extend mandatory on the entire territory and may be restricted only to one part of its territory.
In the Republic of Moldova the constitutional permitted restrictions on human rights are enshrined in Article 54 of the constitution, reading as follows:
“(1) In the Republic of Moldova may not be adopted laws that undermine or diminish the fundamental human rights and freedoms.
(2) The exercise of rights and freedoms may not be subject to other restrictions than those set by the law, which correspond to generally acknowledged international law provision and are necessary in the interests of national security, territorial integrity, economical wealth of the country, public order, prevention of mass disorders and crime, protection of the rights, freedoms and dignity of others, hindering the disclosure of confidential information or the guarantee of judicial authority and impartiality.
(3) The provisions of para. 2 do not permit restrictions of the rights set in Article 20-24.
(4) the restriction must be proportionate to the situation which determined it and may not infringe upon the existence of a right or freedom.”
In the same time, Article 55 of the Constitution provides that each person shall exercise his constitutional rights and freedoms in good faith, without infringing upon the rights and freedom of others.
The first possible contradiction which may arise between the application of the cited constitutional provisions and of the provisions of Article 15 of ECHR is that the conditions set in article 54 of the Constitution may serve as ground for the limitation of all human rights, while the restriction set in ECHR are precisely defined and may not be extended, as it was already emphasized, on certain categories of rights set in the Convention. Meanwhile, one may notice that certain derogation conditions, provided under Article 54 of the Constitution, by virtue of which may be performed the restriction of ECHR rights, create the impression to be excessive. We deem necessary to mention that this hypothesis comes in contradiction, from the formal point of view, with Article 21 of the Constitution, which declares the presumption of innocence.
When the Republic of Moldova became member of the Council of Europe, it has officially undertaken the commitment, according to which Article 54 and 55 of the Constitution of the Republic of Moldova shall not be applied in a manner that would limit contrary to the ECHR fundamental human rights.
In the light of the provisions of para. 2 Article 4 of the Constitution, the limitation of human rights which is not according to the international provision, in fact would be excluded, being given the priority of international law over internal law. This interpretation may be derived also from the Decision of the Plenary Session of the Supreme Court of Justice of 30 January 1996, which refers to the aspects of the direct application of the Constitution and of international treaties by court of law in the Republic of Moldova.
It is worthwhile to mention that the provisions set under Article 54 and 55 have been brought to a big extent in compliance with the provisions of the ECHR.
In the same context, it is necessary to take in regard the provisions of para. 1 of the same constitutional article, constantly applied in the already formed practice of the Constitution Court of the Republic of Moldova in this respect, according to which:
“(1) the constitutional provisions on human rights and freedoms shall be interpreted and applied in compliance with the Universal Declaration of Human rights, with convenants and other international treaties to which the Republic of Moldova is party to.”
It is self-evident that in the category “other international treaties to which the Republic of Moldova is party to” includes the European Convention on Human. Rights
ADDITIONAL PROTOCOL NO. 1
ARTICLE 1
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws, as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
1. GENERAL CONSIDERATIONS
As it was repeatedly mentioned in the case law of the Strasbourg organs and in the doctrine, Article 1 contains three distinct provisions tightly connected. The first provision bears a general character and declares the principle of peaceful enjoyment of possessions for legal and natural persons. The second provision refers to the conditions when one may be deprived of his property. The third provision enshrines the State’s power to regulate the use of property, to secure the payment of taxes, or other contributions and penalties.
After a brief analysis of the state of affaires in the regulation field of property relationships in the Republic of Moldova, we shall endeavor to prove to what extent these regulations are compatible with the three mentioned provisions.
2. THE REFORM OF PROPERTY RELATIONSHIPS IN THE REPUBLIC OF MOLDOVA
The main direction of the economical transformation in the Republic of Moldova was focused on the reform of property relationships by means of privatization – the transition from state monopoly (monopoly which constituted in 1991 around 90%) to a combined economy primarily with a private sector.
The inception of the property relationship reform was marked by the adoption of the Law on the property of 22 January 1991 no. 459-XII, which for the first time has enshrined the right to private property, and of the Law on privatization of 4 July 1991 no. 627- XII, which has established the basic principles, the content and the transformation manner of state property into private property.
The privatization process in the Republic of Moldova takes place in stages, for each of which a Program is adopted by means of a law. At the first stage (1993 - 1994) an important part of state assets (around a third) have been transmitted for free to the population. As a an acquisition means of state assets served the national patrimonial titles- bearer securities distributed to all citizens of the state, having a value proportional to their work experience and meant to ensure a fair distribution of the state property to all social categories.
At the second (1995-1996) and third (1997-1998) the state assets subject to privatization have been proposed to legal and natural persons from the Republic of Moldova, as well as to foreign investor in exchange for financial means.
The privatization was organized in such a way that in 1997-1998, private property would constitute two thirds of the entire national economy.
Although during the process of privatization have been committed many errors and violations of the legislation (see, for instance the Decision of Parliament on the results of the State Program of privatization for 1995-1996 implementation, Official Gazette 1997 no. 18, art. 183), and some essential changes occurred in the national economy: the consolidation of the private sector, the creation stock and real estate markets, etc.
The changes occurred during the period after the inception of reforms have created the premises to declare in the Constitution that the economy of the Republic of Moldova is a market economy based on private and public property, engaged in free competition (Article 126); the market, economical initiative, and fair competition are the fundamental factors of the economy (Article 9).
Enshrining these fundamental principles the legislator nevertheless did not bring in line with the Constitution the provisions of legislative acts in the field of property relationships. Consequently, the Law on property comes in contradiction with the Constitution in regard to the types of the right to property, since apart from the two above mentioned types of property, this law also declares the existence of a third type of property – collective property (including the property of collective farms, kolhoz), which is an artificial legal construction. The provisions on property of the Civil Code of 1964 also run counter to the Constitution, being long ago outdated.
3. THE OBSERVANCE OF THE RIGHT TO PROPERTY\
3.1. The object of the right to property
As mentioned in the doctrine, the study of the case law of Strasbourg organs indicates an extension of the scope of Article 1, in the sense that, apart from the traditional object of the right to property – tangible and intangibles assets, this provision also regards such economical interests as other real rights (for instance servitudes, easements), claim rights (particularly opposable to the state); interests that derive from authorization to carry out certain economical activities; stock and shares in companies; goodwill, etc.
The general norm that establishes the scope of property right objects is comprised in Article 9 of the Constitution, and it says that property is constituted of material and intellectual property goods. This scope is expressed in more details in the Law on property, as well as in the laws on intellectual property and on the performance of economical activities:
- Law on the copyright and other related rights of 23 November 1994 no. 461-XIII;
- Law on the invention patents of 18 May 1995 no. 293- XIII;
- Law on entrepreneurship and enterprises of 3 January 1992 no. 845-XII;
- Law on joint stock companies of 2 April 1997 no. 1134-XIII;
- Law on the stock market of 18 November 1998 no. 99-XIV.
In what concerns the exercise of the right to property by carrying out economical activities, inclusively by means of companies, and the regulation of patrimonial relationships in this field, we emphasize the necessity to adopt a law on this matter, since the provisions in force at the level of a Governmental Regulation (The Rules on companies in the Republic of Moldova, adopted by the Governmental Decision no. 500 of 10 September 1991) contain numerous flaws and do not meet the present requirements.
Respectively, the legislation lacks the terms of “business fund” – the totality of tangible and intangible assets reunited by the trader for the efficient exercise of his trade. In the Rules on companies is established that the value of the associate stock is equal to the amount of his contribution to the authorized capital. This provision excludes the possibility of assessment of assets incorporated in the business fund (clientele or its habit, the rights of intellectual property on the trade name, trade mark, brand, etc.), fact that deprives the associate that alienates his stock, of an important sum of money, which shall lack from the price.
Both Strasbourg bodies have clearly stated that the right to peaceful enjoyment of ones possessions encompasses only existent possession and does not imply the right to acquire property (Marckx judgment of 13 June 1979). However, the doctrine has expressed it opinion that the right to acquire property itself may be considered as “possession”, taking into consideration an economical interest.
Regarding the aforementioned, we would like to refer to the access of foreign nationals to land property concerning the aspect of observing the non-discrimination principle under Article 14 of the Convention. In this context, we outline the contradictions between the Law on property, which excludes the right to property over land for foreign legal and natural persons (Article 38) and the Law on the normative price and the sale manner of the land of 25 July 1997 no. 1308- XIII, which provides the right of foreign investors to by plots of land (Article 4 para. 3).
3.2. The protection of the right to property in the legislation of the Republic of Moldova
The fundamental principles of the protection of property right in the Republic of Moldova are defined under Article 127 of the Constitution:
“(1) The State shall protect property.
(2) The State shall guarantee the exercise of the right to property in the forms requester by the owner, if these are not contrary to society interests.”
Developing the mentioned principles, the Law on property declares the guarantee for all owners of equal development conditions for different types and forms of property, the guarantee of the sustainability of property relationships and their protection (Article 40).
The protection means of the property right are prescribed in chapter 13 of the Civil Code and in Article 41 of the Law on property. According to the mentioned provisions, the owner is entitled to claim his assets from an alien illegal possession, as well as to request the removal of other violations of his rights, even if these violations are not related to his deprivation of property, by addressing in court or to elected arbitration.
We care to mention that the law entrusts these rights to other persons as well that, without being owners, hold possessions by virtue of other rights, such as the right of economical management.
We emphasize that the right of economical management is a legal institution introduced by the legislator in order to designate the prerogatives of state companies over the assets entrusted to them in order to carry out their activity. In this context arises the issue of determining the legal nature of this institution.
At the present moment the law does not make a clear distinction between the prerogative of the state and of the state company, since, under the terms of the law, both subjects hold same prerogatives to possess, to use and to dispose of the respective assets. Consequently, a question appears: who is the real owner of the assets: the state or the state company?
The raised issue acquires a bigger practical importance in the context of the protection of bankrupt state company creditor’s rights. The situation becomes more complicated due to the fact that the provisions from the Civil Code, which forbid the enforcement of assets - assets of public state property in the strategic sectors of the economy, components of the ongoing technological process (Article 95), have not been canceled, although they contradict the Law on state companies of 16 June 1994 no. 146- XIII, that provides for the state company to bear liability for its undertakings in the amount of all its assets (Article 1, para. 4).
4. DEPRIVATION OF PROPERTY
The deprivation of the owner of his possessions may take place in two circumstances:
a) deprivation for reasons public interest with the payment of a fair compensation for expropriation;
b) deprivation as penalty for violation of the law – confiscation.
Article 1 of the first Protocol provides that the deprivation of possessions may occur only if three conditions are met:
1) the measures of deprivation must be based on a reason of public interest;
2) to be provided for by the national law;
3) to be provided for by the general principles of international law.
On the other hand, the Commission and the Court have observed in their judgment that the expropriation of possessions must be accompanied by an appropriate compensation: “…in the respective legal systems of the High Contracting Parties, a deprivation of possessions for a reason of public interest shall not be justified without the payment of a compensation, save exceptional circumstances…” (Lithgow and others of 8 July 1986).
The fundamental norms regarding the deprivation of possessions are laid down in the Constitution (Article 46):
“(2) No one may be subject to expropriation unless for a reason of public interest, provided for by the law with the payment of a prior and fair compensation.
(3) The possessions legally acquired may not be confiscated. The legal character of its acquisition shall be presumed.
(4) The assets for, used or resulted from a criminal or administrative offence may be confiscated only under the terms of the law.”
The above mentioned principles find their development and concretization in a series of laws. Article 42 of the Law on property provides that the cessation of the property right over a plot of land or over other real estate assets situated on this plot based on the decision of the competent state authority, as well as other restrictions to the right to property over these assets, shall be permitted in the cases provided for in the legislative acts, with the reparation of all damages caused to the owner. Article 44 of the same law prescribes that in case that some legislative acts are adopted, by virtue of which the property right ceases, all damages caused to the owner shall be repaired by state administrative authorities based on a judgment of a court of law.
Examining the condition that the property title has to comply with general international law principles, formulated in paragraph 1 of Article 1, the Strasbourg organs emphasize on the protection of foreign nationals’ interests, analyze the reference to international law as an obligation to compensate foreign national in case of nationalization, expropriation, etc.; since the foreign nationals are not protected by the principles of the domestic law, to which refers Article 1, since it is a matter of regulations on the diplomatic treatment and protection of foreign nationals (James judgment of 21 February 1986).
The fundamental provisions of protection the property of foreign nationals are formulated under Article 128 of the Constitution, with provides that in the Republic of Moldova the property of other states, of international organizations, or foreign nationals and of stateless persons shall be protected, and under Article 126 para. 2 letter h), which declares the inviolability of foreign investments of legal and natural persons.
The mentioned principles are developed particularly in the Law on foreign investments of 1 April 1992 no. 998- XII which regulates,inter alia, the expropriation conditions of foreign investments:
“Foreign investments may not be expropriated, nationalized or subject to other similar measures other that based on the law or by virtue of a law and only in the interest of protecting national interests and with the payment of a compensation. The compensation must correspond to the value of the alienated investment according to the assessment, performed exactly before the expropriation, nationalization or other similar measures became public. It shall be paid in a term of three months from the moment when the respective measure is applied, including the interest rate, calculated from the date of payment. The amount of the compensation shall be paid to the empowered person in the currency in which the investment had been performed and may be transferred with no restrictions abroad.”
We have to mention that the quoted provision must be brought in line with the Convention in what concerns the moment when the compensation is paid: according to Article 46 para. 2, the compensation must be prior.
The confiscation of the property, as a sanction of the state for having committed criminal or administrative offences, is regulated (depending on the committed violation) either by the Criminal Code or by the Code of administrative offences. According to the Criminal Code, for instance, this penalty consists in the forced and uncompensated levy in the interest of the state property of assets prepared for or used for committing the criminal offences or obtained as consequence of the criminal offense, as well as the revenues obtained from the use of the criminally obtained goods and values (Article 33).
5 . STATE’S POWER TO REGULATE THE USE OF ASSETS, TO SECURE THE PAYMENT OF TAXES OR OTHER CONTRIBUTIONS OR PENALTIES
Property is defined as a right of a person to use and to dispose exclusively and absolutely of an asset, in the limits determined by law.
In order to secure “the fair balance between individuals and public interest”, principle repeatedly invoked in the case law of the Strasbourg organs, the state establishes certain rules for the exercise of the right to property by individuals. The most important of them are enshrined in the Constitution.
The right to property must not be exercised abusively: “property may not be used in the detriment of others’ rights, freedoms and of the human dignity” (Article 9 para. 3 of the Constitution).
The right to private property obliges the observance of tasks established for the protection of the environment and the guarantee of good neighboring, as well as for the observance of other tasks, incumbent to the owner as provide for in the law (Article 46 para. 5).
Article 126 declares that the state must guarantee:
- the protection of national interests in the economical, financial and currency involving activity;
- the rational exploitation of natural resources in conformity with national interests.
Meanwhile, the scope of goods, which, in the interest of protecting social interests, constitute the exclusive object of public property was defined: any kind of underground resources, the air space, the waters and the forests may be use only in public interest, natural resources of the exclusive economical zone and of the continental plateau , communication ways, as well as other goods established by the law (Article 127 para. 4).
As a condition for the use of possession under the terms of para. 2 of Article 1 of the Protocol may be considered the establishment of certain rules and restrictions on the exercise of certain types of economical activity in order to guarantee the public interests and safety. The Law of 30 July 2001 no.451-XV “On the licensing of some types of activity” sets the list of activities subject to authorization by means of licenses issued by the competent state bodies, their issuance and canceling manner.
5.2. Taxes or other contributions or penalties
The collection of taxes or other contributions is an objective condition for the existence of the state and one of its essential prerogatives. In heir case law the Strasbourg bodies have mentioned that taxes and other contributions must be based on the law, and the authorities imposing them must act within the ambit of their competence. The European assessment of fiscal legislations is performed in the light of the “fair balance” principle between the private and public interest and it implies the verification of the proportionality between the amount of the tax and the financial capacity of the subject. The case law of the Commission and of the Court has emphasized that taxes and other contributions must not be discriminatory: “a financial obligation derived from the tax raising may have a negative effect on the protection of possessions, if they constitute an excessive burden for the person or that worsen radically his financial situation” (Decision of the Commission of 2 December 1985 no. 1136/84, the case Svenska Management Gruppen AB v. Sweden).
Starting with 1993, in the Republic of Moldova is performed a fiscal reform.. At the present moment the main laws in the tax domain are:
- Law on the basis of the fiscal system of 17 November 1992 no. 98-XII;
- Fiscal Code;
- Law on the management of the income tax and on the application of Title I and II of the Fiscal Code of 24 April 1997 no. 1164-XIII;
- Law on the application of Title III of the Fiscal Code of 17 December 1997 no. 1417-XIII;
- Law on the application of Title IV of the Fiscal Code of 16 June 2000 no. 1056-XIV;
- Law on the state fee of 3 December 1992 no. 1216-XII.
Taxes and other contributions are classified in direct and indirect, republican and local. At the present moment, the legislation of the Republic of Moldova provides for 9 republican taxes and for 6 local taxes. The establishment, the modification and the annulment of taxes fall under the ambit of competence of Parliament. However, there is a series of local taxes, the regulation of which the legislator entrusted to the local public administration bodies.
In this context we care to mention that at the present moment there are numerous instructions, regulations and normative acts issued especially by the Ministry of Finance, that regulates these relationships, many of which are not published. Consequently, the principle of law accessibility, set by the Strasbourg bodies and applied in the are of possessions, is guaranteed to a large extent (above quoted Lithgow), and according to which individuals must have access without any difficulty to all necessary information on the content and the application conditions of the law.
Regarding the observance of the “fair balance” principle between the private and public interest in the tax area, we may outline that according to the legislation in force enterprises must pay taxes and other contributions amounted up to 70-80 % from its benefit, meanwhile economical doctrine and world practice prove that the ceiling must be set at 45-50 %, above which taxation becomes an excessive burden for the entrepreneur, leading to the decrease in production and the mass tax evasion. Penalties as pecuniary sanctions for having committed criminal and administrative offences may be applied only in the cases and under the terms set by the law (Criminal Code, Code of administrative offences, Customs Code, Law on the State Fiscal Service of 22 January 1992 no.876-XII, etc.) The law sets the amount of penalties: for criminal offences – 5000 minimal wages (currently around 20 thousand US dollars) and for administrative offences – 3000 minimal wages (Article 29 of the Criminal Code and, respectively, article 26 of the Code of administrative offences).
CONCLUSIONS
The analysis of the Moldovan legislation that regulates the property relationships allow us to conclude that the regarded legislative provisions, in general terms meet the requirements of Article 1 of Additional Protocol no. 1. Nevertheless, some flaws, contradictions, inconsistencies and faults persist in these provisions. These flaws may be removed with the adoption of some new laws, on one hand, and by the review of the existent legislation, on the other hand.
Among the laws of high importance that need primarily to be adopted, we would mention first of all a new Civil Code, since the provisions of the code in force, adopted in 1964 are completely outdated, and practically, the large part of them do not function any more, others representing hindrances in the development of reforms. One counts on the fact that in the nearest future the final version of the Civil Code is to be adopted.
ARTICLE 2
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
1. GENERAL CONSIDERATIONS
The present article sets the guarantee of the State to any person within its jurisdiction the right to education by organizing an accessible education system. Meanwhile, the right to education, being distinct from its negative definition, presumes that the State shall not undertake any actions meant to hinder the exercise of this right.
The State shall organize and shall create necessary conditions for the functioning of an education system, which would contribute to the exercise of the right to education of everyone, for the multilateral development of the personality. The right to education, being the main means of formation, education and self-affirmation of each person in society, may be considered as a fundamental right. The most important aspect of the right to education is, doubtlessly, the education of the young generation.
Making an analysis of Article 2 of the first Additional Protocol, we may distinguish two categories of obligations, which are incumbent on the State in the exercise by everyone of the right to education:
1) the passive obligation- expressed in that the State shall not refuse to anyone th right to education;
2) the active obligation - expressed in the guarantee of the State to observe this right.
The term "education" means an organized process of teaching and training, by means of which the person reaches a certain level of physical, intellectual and spiritual training, set by the State, and receives a document certifying the performed studies.
The term "education system" comprises the totality of education institutions of different type and property forms, with diverse curriculum, state educational technologies and standards for different levels and directions, as well the leadership education bodies, the institutions and enterprises subjected to these.
Article 2 of the first Protocol is to be examined in the light of Article 14 of the ECHR, according to which the enjoyment of the right to education ( as well as other rights and freedoms of he ECHR) shall be secured without discrimination on any ground such a s sex, race , color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Observance and securing the right to education, the State must secure also equal opportunities to everyone, which implies the prohibition of discrimination or advantages, thus granting to the education process a democratically character.
2. THE EDUCATION SYSTEM IN THE REPUBLIC OF MOLDOVA AND SECURING THE RIGHT TO EDUCATION
As the Court has assessed in the case Belgian Linguistics, the exercise of the right to education includes the following aspects:
1) the access to an education institution;
2) the person's right to obtain an official acknowledgement of studies according to state's in force rules;
3) the language in which the education process unfolds.
Article 35 of the Constitution of the Republic of Moldova reads as follows:
"(1) The right to education shall be secured by mandatory general education, by high school and vocational education, by superior education as well as by other education and training forms.
(2) The State shall ensure in the terms of the law everyone's right to choose the education and training language.
(3) The study of the state official language shall be ensured by education institutions of all levels.
(4) State education shall be free of charge.
(5) Education institutions, including non-state, shall be created and shall carry out their activity in the terms of the law.
(6) Superior education institutions shall enjoy autonomy.
(7) High school, vocational and superior state education shall be eqaully accessible to everybody, on a meritorious basis.
(8) The state shall guarantee in the terms of the law the freedom of religiuous education. Th state education shall be laic.
(9) The right to choose the area of education for their children primarily belongs to the parents."
These constitutional provisions are developed and analyzed in the Law on education no. 547 of 21 July 1995, the Law on rights of children no. 338 of 15 December 1994, the Law on the functioning of spoken languages on the territory of the Republic of Moldova no. 3465 of 1 September 1989.
Article 3 of the Law on education prescribes that education in the Republic of Moldova constitutes a national priority.
Article 6 of the same law declares:
"(1) The right to education shall be guaranteed, notwithstanding the nationality, sex, age, social status and origin, political or religious belief, criminal convictions.
(2) The State shall assure equal access opportunities to state high school, vocational and superior education institutions, depending on aptitudes and qualities."
At the present moment in the Republic of Moldova, depending on the content of the education and on the psychophysical features of age, there exists the following education system:
I. Pre school education
II. Primary education
III. Secondary education:
1. general secondary education:
a) gymnasium education;
b) high school (lyceum) education : average general culture education;
2. vocational secondary education
IV. Higher education:
1. Short term education (college);
2. University
V. Post graduate education.
The education system also includes other education forms such as:
- special education;
- complementary education;
- education for adults.
The first sentence of Article 2 of the first Additional Protocol guarantees, firstly the access to the existent school education in the respective State, characterized by its mandatory and free of change nature. This provision, not being explicitly expressed in Article 2 of Protocol no. 1, it derives from the following provisions of international acts relevant in this regard:
- the International Convenant on economical, social and cultural rights of 16 December 1966;
- the International Convention on the rights of children of 20 November 1989.
The Republic of Moldova is party to these international acts since 25 February 1993.
The right to education is characterized by its mandatory nature up till a certain level of education. In this context it is at the same time a right and an obligation. The mandatory general education due to its mandatory nature is free of charge.
As it was mentioned in the doctrine, the establishment of a free of charge and mandatory general education system is a preliminary and essential condition for the exercise of the right to education. Without the establishment of such an education system the efficiency of Article 2 of Protocol no. 1 may be nothing but illusory.
According to Article 35 of the Constitution and paragraph 5 of Article 4 of the Law on education, the state education is free of charge. These provisions allow us to conclude that state education of all levels is free of charge. In the republic of Moldova some superior education state institutions accept student on contractual basis, paying for their studies, fact that bring forward the question: does this practice comply with the above mentioned provisions of the Constitution and of the Law on education?
At the present moment, a stringent problem of state education in our country is the deficiency of financial means from the state budget. In this condition, a solution of this problem is to find alternative financial means. As legal premises for the use of such sources may serve the provisions of Article 61 paragraph 4 of the Law on education, which prescribes that the state institutions from the education system may benefit from such financial sources as: means obtained from the vocational training of the staff, from works of scientific research carried out on a contractual basis, revenues obtained from the trade of manufactured objects in the education process, as well as the rent of rooms, constructions, equipment, donations and revenues obtained from international collaboration, as well as donations from legal and natural persons.
We consider that the principle of state free of charge education, declared in the Constitution and the Law on education must be regarded as an obligation undertaken by the State to secure to everyone equal opportunities of access to state education institution depending on aptitudes and qualities. On the other hand, we care to mention that in matter of superior education, the Commission has assessed that the establishment of accession ratios, as well as standards for admission do not violate Article 2 of Protocol no. 1 (application no. 8844/80, application no. 5492/72). In this context we believe that neither legal provisions nor the practice of paid contract student admission to superior education institutions violate the ECHR.
Although Article 2 of Protocol no. 1 regards all existent forms of education in the state, we deem appropriate to express in general terms the features of the pre-school, primary and gymnasium education, which constitutes the necessary basis for continuing the studies at the next level of education.
Being the first step in the education and training system, the pre-school education for children from 3 to 6/7 years is organized in pre-school education institutions or in kindergarten- primary schools, depending on the development level of the child and on parents' options. The preparation of pre-school children for school is mandatory from 5 years and is preformed in preparing groups, either in kindergarten or in schools. At the parents' request this preparation may be performed in the family (Article 17 of the Law on education).
The next step of the education system is he primary education, which comprises grades I- IV and which is performed in primary schools that may function as separate units or within general secondary schools. Children have to go to school starting from the age of 7 (Article 18 of the Law on education).
The gymnasium education is mandatory and it comprises grades V- IX (Article 19 of the Law on education).
According to Article 9 of the Law on education, the duration of mandatory general education is of 9 years and the mandatory attendance at school ceases at the end of the education year when the student turns 16.
Article 24 of the same law provides that the organization of artistic and sport education for children with aptitudes in music, choreography, painting, drama and sport.
A high importance present the establishment of guarantees of the States in the education and teaching area of physically handicapped children or mentally handicapped, as well as for orphans or for those left without parental care (Article 49 an 51of the Constitution, Article 33 of the Law on education and Article 10, 23, 24 of the Law on children's rights).
A significant element of the right to education may be considered the language in which the education is performed. In the case Belgian Linguistics, the Court has specified "the right to education shall make no sense if it does not encompass for its subjects the right to receive knowledge in their national language or languages, depending on the case."
Therefore Article 18 of the Law on the functioning of spoken languages on the territory of the Republic of Moldova prescribes that the State shall create the necessary conditions for the exercise of the right to education and teaching in the mother tongue of citizens of other nationalities, that live in the republic.
Article 10, paragraph 1 of the Law on children's rights also secures to every child the right to free of charge education in the official language or in another language.
Another dimension of the right to education is the official acknowledgement of th State of the obtained studies under the terms of the law.
Article 10 of the Law on education provides for the issuance to persons, which have passed graduation exams, certificates of studies, where it is mentioned the level and the step of the graduated education, the area and the professional qualification degree.
2.1 The observance of religious and philosophical convictions of parents
The second part of Article 2 of Protocol no.1 establishes the observance by the State of parents' rights to choose the education of their children according to their religious and philosophical convictions. This implies not only parents' natural right, but also an obligation incumbent on them to take care of raising and educating their children.
Article 8 paragraph 5 of the Law on children's rights provides the parents' right or that of persons legally replacing them, to educate the child according to their own convictions.
According to article 60 of the Law on education, among parent's and guardians' rights, might be mentioned the right to choose the education institutions for children, the right to be elected in some administrative bodies of the education institution.
Meanwhile the State shall respect parents' freedom to choose for their children the education institution, other than those of public authorities, but in compliance with the minimal norms that the State prescribes or approves of in matter of education and to secure the religious and moral education of children according ot their own convictions.
The Law on education provides that private education shall be organized and shall function on a non-profit principle and shall observe strictly the state's educational standards. The funds of these institutions are supplied by their founders, from education fees and other legal sources (Article 36).
The Law on education does not contain any explanations regarding the organization and functioning manner of private education institutions on a non-profit basis. On the other hand, we may state that some of these institutions, created 4-5 years ago, even before the adoption of the Law on education, have been founded and continue to exist in the form of limited liability companies and are registered in the Commercial State Register, fact that generates new confusions, since the non-profit principle is alien to the activity of economical companies. In this context we assess the opportunity to appraise the conformity of this principle with the need of developing alternative education forms.
3. OBSERVANCE OF THE RIGHT TO EDUCATION IN PARTICULAR SITUATIONS
We shall analyze right to education of some categories of persons, taking into consideration their specific status:
a) the right to education of foreign nationals and stateless persons;
b) the right to education of persons held in detention places.
3.1. The right to education of foreign nationals and stateless persons
The legal status of foreign nationals and of stateless persons in the Republic of Moldova as well as their stay conditions on the territory of the state are regulated by:
- the Law on the legal status of foreign citizens and stateless persons in the Republic of Moldova no. 275- XIII of 10 November 1994;
- the Law on migration no. 418 of 19 December 1990.
According to Article 5 para. 1 of the Law on the legal status of foreign citizens and of stateless persons in the Republic of Moldova, foreign citizens and stateless persons enjoy same rights, freedoms and duties as the citizens of the Republic of Moldova (with the exception provided by the law).
In Article 12 of the same Law it is prescribed that foreign citizens and stateless persons enjoy same rights to education as the citizens of the Republic of Moldova. Foreign nationals and stateless persons may be admitted to education institutions enjoy their rights and duties, according the legislation in force and under the terms set by these institutions. This legal provision is related also to the relevant policies of the state in the access area of foreign nationals on the territory of the republic. The establishment of a migration quota by the state may not be considered as a violation of the right to education of foreign nationals.
The Law on migration (Article 10) provides that the status of immigrants and repatriated persons shall be granted by the State Migration Service. The same Service issues the immigrant certificate and the work permit (both for a determined period of time and a permanent authorization).
According to Article 7 of the same law, immigration in order to get education shall be regulated according to international agreements to which the Republic of Moldova is party to, as well as according to signed contracts between superior education institutions and legal or natural foreign persons. The persons sent for education in the Republic of Moldova from other states must present justifying documents (invitation) from the respective education organization or institution.
3.2 Right to education of persons held in detention places
The Commission has assessed that the State is not bound by a positive obligation, which would provide for the creation of some education structures in detention places. In such cases might arise the question on the applicability of the equality criterion to the access of persons to education, established by the Court in the Belgian affair, including the treatment granted to persons held in detention places.
In this respect the Commission has specified that Article 2 does not bind a State to guarantee superior or specialized education for detainees, because this “regards primarily an elementary education, necessary for higher education such as the technological ones”.
In the Republic of Moldova one of the tasks of the penitentiary system is to engage convicted persons in work, to assure an average general education and vocational training, as well as their spiritual and cultural-esthetic (Article 2 of the Law on the penitentiary system).
We may acknowledge here the ensurance of conditions for obtaining the following education:
a) average general education;
b) vocational training;
c) higher education.
Taking into account the fact that in reeducation colonies are distributed under aged persons, the State grants the necessary support to these persons for them to be able to exercise their right to education, so that when the complete serving their sentence to be offered a chance to become active members of the society.
Article 116 of the Criminal Sanction Enforcement Code provides that in the aim of correcting and preparing convicted persons for independent life and work, there is organized an unique education system based on general schools and on education in production workshops set in reeducation colonies.
According to Article 90 of the Criminal sanction Enforcement Code, the convicted persons are granted the possibility to acquire professions. In order to pass the exams, the detainees are exempted from work in the terms of the labor legislation. In his interest, the administration of the penitentiary institution shall guarantee for detainees special rooms, with an adequate material basis, with scientific and technical literature, as well as highly qualified staff (Article 42 of the Statute for the enforcement of sanctions by convicted persons).
In regard to higher education, article 11, point 15 of the Law on the penitentiary system provides for the power of the penitentiary institution administration to grant support to convicted persons in order for them to obtain higher education in the distance education system.
This article provides guaranteeing by the State of the right of every citizen to free expression of the opinion in the choice of the legislature. By different from other articles of the Convention due to its nature and wording, Article 3 of the Additional Protocol is characterized by providing a simple commitment of the States, comprising of the following elements:
- organization of elections of the legislature;
- the respective elections to take place at reasonable intervals;
- elections to be free and by secret ballot;
- elections to be held under conditions which will ensure the free expression of the opinion of the people.
These 4 elements characterizing the right to vote, as a political right, may be considered as being the foundation for holding elections in a democratic state.
1. Exercise of the right to vote
Considering the correlation between the right to elect and the right to be elected, we shall examine the exercise the right to vote from a double perspective:
- of the right to elect; and
- of the right to be elected.
To this end, Article 38 of the Constitution provides:
“(1) The people’s will shall be the basis of the state power. This will shall be expressed by free elections held periodically by universal, equal, direct, secret and freely expressed ballot.
(2) The citizens of the Republic of Moldova shall be entitled to vote at the age of 18 years, reached until the day of elections, except for those who are legally prohibited to vote.
(3) The right to be elected shall be guaranteed to the citizens of the Republic of Moldova who are entitled to vote, under the law.”
Considering the text of Article 3 of the additional Protocol, which provides the commitment of the State to hold elections in the “legislature”, we shall pursue to analyze the right to vote in the context of its exercise during the elections of the Parliament, which, in compliance with Article 60 paragraph (1) of the Republic of Moldova’s Constitution, is the shall be the supreme representative authority of the people of the Republic of Moldova and the sole legislative authority of the State.
The basic provisions regarding the elections of the Republic of Moldova’s Parliament are enshrined in the Constitution and in the Elections Code no.1381-XIII from November 21, 1997.
According to Article 61 of the Constitution and Title III “Elections of the Parliament” of the Elections Code no.1381-XIII from November 21, 1997, Article 73, paragraph (1), the Parliament shall be elected by universal, equal, direct, secret and freely expressed ballot.
Article 3 of the Additional Protocol provides that the elections of the legislature should be held at “reasonable intervals”. Neither the Court, nor the Commission specified the duration of such intervals, indicating only that this duration must not be too long, explaining in such manner the criteria of reasonable. The determination of the periods of electing the legislature is left at the discretion of the States. According to Article 63, paragraph (1) of the Constitution and Article 73, paragraph (1) of the Elections Code, the Parliament shall be elected for a 4 years mandate. At the same time, the mandate of the Parliament may be extended by organic law, in case of war or catastrophe (Article 63, paragraph (1) of the Constitution).
Elections Code
Article 76. Determination of the elections day
The elections of the deputies in the Parliament shall take place at least 3 months from the expiry of the Parliament’s mandate.
The date of the Parliament’s elections shall be determined by the Republic of Moldova’s Parliament in a decision, at least 3 months before the date of elections.
In case of the Parliament’s dissolution, the same Presidential Decree shall determine the date of the new Parliament’s elections. Anticipated elections shall take place in 45 days the most after the coming into force of the Decree.
The cases when the Parliament may be dissolved are provided in Article 85 of the Constitution.
Article 3 of the Additional Protocol also provides the freedom of elections of the legislature by secret ballot. Similar provisions are included in Article 38 and 61 of the Constitution and Articles 1, 2, 11 and 12 of the Elections Code.
The text of the Convention does not require a special electoral system, such as simple majority or proportional representation, leaving a wide margin of appreciation of the States in establishing their own system. According to Article 73, paragraph (2) of the Elections Code the elections of the Parliament shall take place in a single national electoral constituency.
According to Article 4 of the Elections Code, during any election every citizen shall be entitled to a single vote.
To ensure the secrecy of ballot, the places designed for that shall be endowed with a sufficient number of booths, inside which the voter shall be alone and shall vote personally without any outside influences (Article 52). If the voter does not have the possibility to fill in personally the ballot, he shall be entitled to invite another person except for the members of the voting sections, members representing the electoral competitors and persons authorized to assist at the electoral operations (Article 54 paragraph (1).
The universal character of the right to vote is expressed by the possibility of all citizens of the Republic of Moldova who have reached the age of 18 until the elections' day to participate in the elections, without any differences based on race, nationality, ethnical origin, language, religion, sex, opinion, political belonging, property or social origin (Articles 3 and 11 of the Code).
Together with the right to elect, Article 3 of the Additional Protocol provides the right of the citizen to be elected in the legislature. Article 75 of the Elections Code provides that the right to be elected in the legislature belong to the citizens of the Republic of Moldova, who have reached the age of 18, reside permanently on the territory of the state and fulfill the requirements set forth by the Code.
Besides the above-mentioned cases, Article 55 provides that when the voter due to health-related or other reasons is not able to show up at the voting place, the electoral commission, upon his request, appoints at least two members of the commission to go to the location of the voter in order for him to exercise his right, with a special ballot box and other materials necessary for voting.
Granting the political parties, social-political organizations, electoral blocs, independent candidates the possibility to hold freely, without any interference, of the pre-electoral campaign by means of assemblies, meetings at home, individual talks, broadcasting, press, visual and other types of agitation, which exclude the violation of public order, as well as the manner of presenting the electoral programs and their bringing to the knowledge of voters are provided in Articles 45-47 of the Code.
2. Restrictions of the right to vote
Neither the Court, nor the Commission indicated the categories of individuals to whom restrictions in the exercise of the right to vote may apply. Strasbourg admitted the existence of certain limitations on the right to vote, because it ain’t an absolute right. Therefore, the specific limitations on the right to vote lie with discretion of every State and are established in its own domestic law.
To this end, Article 13 of the Elections Code provides the right to vote may not be exercised by:
a) persons under 18 years;
b) alienated persons and persons declared by the courts as lacking legal capacity;
c) persons convicted to deprivation of liberty by a final court’s judgement.
Persons who may not be elected are:
a) in-service military men;
b) persons under 18 years;
c) alienated persons and persons declared by the courts as lacking legal capacity;
d) persons convicted to deprivation of liberty by a final court’s judgment;
e) persons with active criminal record.
Besides these categories of persons, paragraph (10 of Article 16 of the Law on the legal status of foreign citizens and stateless persons in the Republic of Moldova provides that foreigners and stateless persons shall not enjoy the right to elect and to be elected in the legislature, executive and other eligible authorities, nor to participate in universal suffrage.
3. Liability for the violation of the legislation regarding the exercise of the right to vote
In case of illegal actions during the elections, the national legislation provides both criminal and administrative liability.
Thus, the Criminal Code qualifies as criminal offences violating the legislation on elections, the following deeds:
- hindrance of pre-electoral campaign (Article 133);
- spreading purposefully false information about a candidate during the elections of the deputies in the Parliament (Article 133/1);
- hindrance of the right to vote (Article 133/2);
- falsification of the results of voting (Article 133/3);
- falsification of the electoral documents or purposefully wrongful counting of votes (Article 134).
According to Article 200/1 of the Code of Administrative Offences, the following illegal deeds are considered as administrative offences violating the electoral legislation: non-supplying by the official persons of the information and materials necessary to the electoral commissions, as well as non-compliance with their decisions; annihilation, dirtying, deterioration in any ways of the posted electoral lists, programs and platforms or of any other poster or advertisement of electoral agitation; posting of electoral agitation materials in other places than allowed; organization by the decision factors of electoral meetings with the selling and drinking of alcoholic beverages and not taking of the necessary measures for the normal unfolding of these meetings; the acknowledged writing in the electoral lists of the name of persons who do not enjoy the right to vote under the law, of faked persons or the deliberate writing of the name of the same person in several lists, as well as the unjustified refusal to record and settle the challenges of electoral operations; not bringing to the public’s knowledge by the members of the electoral commissions of the names of the candidates, the use of funds from abroad or undeclared publicly, hindrance of access to the voting place of the persons bearing this right; the refusal to comply with the orders of the chairperson of the electoral commission of the voting section regarding the maintenance of order at the voting place and on the territory around it; unjustified not handing of the ballot to the voter included in the list or handing to one person several ballots; unfounded leaving of the voting place before the finding of the results of elections and the drawing op of the minutes by the members of the electoral commission of the voting section; continuation of the electoral agitation the day immediately before the elections and in the day of elections; taking out of the ballot handed over for voting from the premises of the voting section; falsification of signatures on the list of supporters of the independent candidate. The administrative sanction provided for these administrative offences is the fine.
PROTOCOL No.4
ARTICLE 1
No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation.
As it was mentioned in the doctrine, this provision refers to any obligation arising from a contract, either patrimonial - an obligation of payment, as well as an obligation of selling or buying, or another kind – a promise to give, to do or not to do something.
The general rule, providing liability for non-compliance with contractual obligations, is set forth in Article 215 of the Civil Code: the person who did not comply or complied unduly with an obligation, shall restitute the entire amount of damages cased to the other party: expenses supported, the loss or deterioration of goods, missed income.
The Criminal Code also contains some provisions imposing the sanction of deprivation of liberty for committing certain actions related to the fulfillment of certain contractual obligations:
- the use of means taken on credit against the objectives indicated in the contract of credit and non-reimbursement of a credit (Article 155-3)
- breach of contracts of pledge (Article 155-5);
- projecting, execution, transmission and use of buildings accompanied by intended violation of the legislation of constructions (Article 157);
- manufacturing or sail of bad-quality, incomplete, standards’ incompliant products (Article 159);
- deceit of clients (Article 160-2);
- artificial increase and maintenance of high prices for goods (Article 161-3).
The provision of Article 1 Protocol No.4 refers to involuntary non-fulfillment of contractual obligations, meaning the case when the person does not comply with an obligation due to inability. Therefore, purposeful, intended non-fulfillment of contractual obligations does not fall under the scope of this provision. The intention, even if it were not fraudulent to elude the fulfillment of a contractual obligation, would deprive individuals of the possibility to invoke on his favor Article 1 of Protocol No.4.
In the light of the above-mentioned, we can allege that Article 1 of Protocol No.4 does not refer to the offence provided in Article 159 of the Criminal Code, because it expressly provides the intended character of the actions – purposeful sail of bad-quality, incomplete, standards’ incompliant products in a trade enterprise. This affirmation is equally true for the office provided in Article 162-2, because the deceit of clients, in its essence, is an acknowledged, intended action, as well as the artificial increase and maintenance of high prices for goods (Article 161-3). Also intention is required in committing the offence provided in Article 155-3: the use of means taken on credit against the objectives indicated in the contract of credit and non-reimbursement of a credit and interests within the term and under the conditions provided in the contract of credit.
Speaking of Article 155-5, we’d like to mention that it contradicts the Moldova’s domestic legislation on pledge no.449-XV from 30/07.2001. Thus, Article 155-5, paragraph 2 of the Criminal Code qualifies embezzlement, alienation, substitution or hiding of pledged assets as criminal offences. Meanwhile, the Law on pledge gives the possibility to substitute and alienate the pledged good, on the condition of maintenance of pledge (Articles 58 and 59).
Referring to the offence provided by Article 157: projecting and execution of constructions of any category, destination, regardless the property right, accompanied by intended violation of legal prescriptions concerning quality of constructions or project documentation, of the legal and other normative provisions, transmission and use of buildings accompanied by intended violation of the legislation concerning the manner of transmission of constructions or of the technical prescriptions of exploitation of buildings, as well as unauthorized interventions in the already existing constructions, affecting the resistance structure, technical building-related networks and equipment of vital need to the constructions. One should mention that this provision explicitly sets the intended character of the actions forming the objective element of the criminal offence.
We consider it necessary to eliminate contradictions existing between the provisions of Article 155-5 of the Criminal Code and the provisions of the Law on pledge.
PROTOCOL no. 4
ARTICLE 2
1. Every one lawfully within the territory on a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the existence of these rights other than such as are in accordance with law and area necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of the others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.
1. THE FREE MOVEMENT WITHIN A THE TERRITORY OF A STATE AND THE FREE CHOICE OF RESIDENCE
1.1 Free movement on the territory of a state
Paragraph 1 of the Article 4 of the Protocol no. 4 of the ECHR provides that: "Everyone lawfully within the territory of a State have the right to liberty of movement …"
The term "everyone" encompasses all persons that are lawfully on the territory of the State: citizens of this State, migrants, employees, foreign citizens, stateless persons, etc.
One of the natural liberties of human beings is that of movement that means to go and to come, thus "to circulate freely".
This right proclaimed by the ECHR contains two different hypothesis: first - free circulation within a State; and the second - free inter-State circulation.
The idea to regulate the freedom of circulation within the territory of a State does not derive exclusively from the present text, it has been firstly formulated by the international society in the Article 13 of the Universal Declaration of Human Rights stating that : "every person has the right to circulate freely… within the State". It is common knowledge that the Universal Declaration contains intentions and guidelines and in no case binding legal norms. It was necessary to elaborate international conventions after the Universal Declaration that would have conveyed to the free circulation within a state an internationally recognized legal character.
However, one should underline that liberty of circulation within a State refers only to individuals and not to their goods, thus, it does not regulate the free circulation of goods. The right of free circulation may be exercised on the whole territory of the state: land, internal waters, territorial seas, as well as air space.
This right is granted on the condition that the person "is lawfully" on the territory of the state, and namely the entry on the territory of the State was effected complying to its national legislation. In practice, this disposition is applicable to foreign citizens and stateless persons and may not be used with regard to the citizens of the state because the interdiction imposed on a person to enter on the territory of the state having its citizenship runs counter the Article 3 paragraph 2 of the present Protocol.
Paragraph (1) of the Article 27 of the Constitution of the Republic of Moldova stipulates that "the right of liberty of movement is guaranteed".
The Constitution enshrines the right of all persons to liberty of movement. But in the same time it notes that the foreign citizens and stateless persons enjoy the same rights and obligations like the citizens of the Republic of Moldova, with the exceptions prescribed by the law.
The Law on the legal status of foreign citizens and stateless persons in the Republic of Moldova no. 275-XIII from November 10, 1994. In its Article 16 we find: "The foreign citizens and stateless persons enjoy the right to liberty of movement on the territory of the Republic of Moldova … as established by the legislation into force".
In conclusion, it becomes clear that even the foreign citizens and stateless persons are lawfully on the territory of Republic of Moldova, the legislator has left a possibility to introduce for the future certain restrictions on their liberty of movement within the State.
Currently, the legislation of Republic of Moldova does not provide for any special restrictions regarding the right to free movement for foreign citizens and stateless persons.
1.2Freedom to choose the residence
Paragraph 1 of the Article 4 of the Protocol no. 4 of the ECHR provides that: "everyone lawfully within the territory of a state … has the right to choose free his residence" .
The term "residence" used in the above mentioned text is extremely vague and does not specify the concretely which are the residences meant: multiple, secondary, more or less permanent. Moreover this term was not very clearly defined by the Commission or the Court.
According to the working group the term "residence" includes mandatory the main residence or the permanent place of residence. In as far as the other types of residence are concerned it has to be determined whether the texts encompasses them as well.
Paragraph (2) of the Article 27 of the Constitution of the Republic of Moldova provides for the following:
"(2) Every citizen of the Republic of Moldova is guaranteed the right to choose the his home or place of residence anywhere within the national territory…"
As one can easily see out of this constitutional norm, the Moldovan legislator makes use of two terms:
"home", "residence".
The term "home" was defined by the Article 17 of the Civil Code that notes that:
"Home is the place, where a citizen has its permanent and main residence. The underage persons who did not reach the age of 15 years while the citizens placed under guardianship have their home at their parents, adopters, and guardians".
Also in the legislation it is not explained the term "residence" neither the difference between these two notions.
Deriving from the established practice, we can conclude that "home" is the place where the person has permit of stay and has to live or is living, while the term "residence" is the place where the person lives de facto or where the person is temporary present without a permit of stay.
The right to the free choice of the home of residence is confirmed by a constitutional norm that refers only to the citizens of Republic of Moldova. The right to a home in the Republic of Moldova for the foreign citizens and stateless persons is regulated by the article 6 and 16 of the Law on the legal status of the foreign citizens and stateless persons in the Republic of Moldova :
Article 6
"(1) Foreign citizens and stateless persons have the right to a home in the Republic of Moldova on the basis of valid identity acts.
(2) Foreign citizens and stateless persons temporary arrived in the Republic of Moldova have the right to a home in the republic as prescribed by the legislation into force."
Article 16
" Foreign citizens and stateless persons enjoy the right… to establish their home as provided by the legislation into force".
As a result when it comes to cases of choosing a home on the territory of Republic of Moldova by foreign citizens and stateless persons, the Moldovan legislator has left space for eventual restrictions.
Another Law that regulates the rights of foreign citizens and stateless persons who are lawfully on the territory of Republic of Moldova is the Law on migration no. 418-XIII from December 19, 1990.
The Article 10 of the Law stipulates that:
1. The status of immigrant and the status of repatriate is granted by the State Migration Service.
2. The certificate of immigrant and the labor permit shall be granted and annulled by the State Migration Service as prescribed by the Government.
3. The certificate of immigrant and the labor permit are divided in:
a) certificate of immigrant and labor permit with a fixed term;
b) permanent certificate of immigrant and labor permit.
4. The labor permit with a fixed term shall be granted to those immigrants who unfold a temporary labor activity on the territory of Republic of Moldova for a term of up to 3 years.
5. The permanent labor permit shall be granted to immigrants who enjoy the right to reside permanently in the Republic of Moldova as well as to those who are high qualified specialists, particularly solicited by the country.
6. The immigrant whose labor permit has expired shall be entitled to lodge a request in order to obtain another permit under the law.
7. After having obtained a certificate for immigrant or after the confirmation or repatriation, the immigrant or the repatriated person shall be obliged to go, within a 3 days term (except for weekends or holidays) territorial registration bodies for the record and documentation of the population of the Informational Technologies Department in order to prepare the documents.
In conformity with the Law on the legal status of foreign citizens and stateless persons of the Republic of Moldova that stipulates that all stateless persons residing in the Republic of Moldova enjoy the right to dwelling like the citizens of the Republic of Moldova, the latter do not have any restrictions on renting and buying floor space.
2. LIBERTY OF INTER-STATES MOVEMENT
Paragraph 2 of the Article 2 of the Protocol 4 of ECHR provides that: "everyone shall feel free to leave any country, including his own".
This paragraph is doubtlessly related to the paragraph 1 of the Article. The right to "leave any country, including his own" is granted to "any person" . This right may be exercised regardless of the place.
ECHR does not define concretely the sense of the notion "his country" - it seems that it is about the country of citizenship or country of residence.
Paragraph (2) of the Article 27 of the Constitution or Republic of Moldova stipulates that: "Every citizen of the Republic of Moldova is guaranteed the right… to travel in and out of the country or to emigrate at will".
In this way the respective norm enshrines the right to free inter-state movement to the citizens of the Republic of Moldova only.
Article 19 paragraph (1) of the Constitution of the Republic of Moldova
" except for the cases where the law provides otherwise foreign citizens and stateless persons enjoy the same rights and obligations as the citizens of the Republic of Moldova".
Relevant for this case and similar to the right to free movement within the territory of the country and to free home and residence, the Moldova legislator admits the possibilities to introduce restrictions with regard to foreign citizens and stateless persons.
The Law on the entry and exist in the Republic of Moldova no. 269-XIII from November 1994 guarantees the citizens of the Republic of Moldova,
the foreign citizens and stateless persons the right to entry and exist to the Republic of Moldova and is also regulating the manner according to which the acts on entry and exist are issued as well as for the settlement of litigations on the issuance of acts.
Article 1 of the Law stipulates:
"(1) The citizens of Republic of Moldova and the stateless persons resided on its territory have the right to travel in and out of the Republic of Moldova based on passports issued by the competent authorities.
(2) Foreign citizens may travel in and out to the Republic of Moldova on the basis of the acts of national identity into force and on the acts that permit the entrance and exit to Republic of Moldova.
(3) The manner of entrance on the territory of another state shall be regulated by the legislation of the latter".
3. RESTRICTIONS ALLOWED TO BE IMPOSED ON THE RIGHT TO FREE MOVEMENT, WITHIN THE STATE AND INTER-STATE, AS WELL AS TO THE FREE CHOICE OF THE PLACE OF RESIDENCE.
Paragraphs 3 and 4 of the Article 2 Protocol no.4 of the ECHR foresee several restrictions that are allowed to be imposed to the right of free movement within the state, and inter-state as well as to the right to the free choice of the residence.
The permitted restrictions imposed to the three indicated rights in the Article 2 of the Protocol no. 4 have been included throughout the ECHR in the articles 8, 9, 10 and 11 also being explained in the process of commenting the these articles. We hold for necessary to mention that these restrictions shall be "provided by the law" and "to constitute necessary measures in a democratic society".
In it not advisable to stress somewhat special the restriction authorized by the paragraph 4 of this text. For it provides a restriction to the right of free movement and the free choice of the residence on a restricted territory - limitation practiced by all the states.
A normative act that regulates the restrictions allowed to be imposed on the right of free movement on the territory of the Republic of Moldova as well as inter-state, for the free choice of the residence is the Law on the entrance and exit to the Republic of Moldova.
Article 8 of the Law stipulates the following:
"The applicant may be denied the issuance of the passport if:
a) this constitutes a danger for the national security;
b) the person has committed against the humanity;
c) the person is serving a punishment based on a law court judgement or is criminally liable;
d) has committed a breach of the import-export rules or the transition of the objects upon which restrictions are imposed;
e) the persons serves in foreign army or on a contract basis;
f) the person has premeditatedly communicated false information about himself;
g) the person has patrimonial obligations toward the State, natural persons, legal entities".
Article 9 of the same Law provides:
The foreign citizen or the stateless person may be denied the issuance of the invitation or the stay permit in the case if:
(1) this constitutes a danger to the national security, order, health and public morals;
(2) the person has committed serious offences against the peace, serious offence of other nature, crimes against the humanity, if these were defined as such by the international acts;
(3) during a prior stay in the Republic of Moldova , the person has violated the legislation of the Republic of Moldova;
(4) has communicated premeditatedly false information about him;
The working holds to the opinion that the above mentioned provisions are in compliance with the paragraph 3 Article 2 of the Protocol 4 of the ECHR.
The Law on migration regulates on the territory of our Republic all the processes that of migration and immigration of the population. According to the Article 4 of this Law the Parliament of the Republic of Moldova, upon the proposal of the Government determines the immigration share for each calendar year for rayons and towns, percentage that shall not exceed 0,05 % of the total number of permanent population from Moldova.
Article 15 of the above mentioned Law enshrines the rights of the citizens of the Republic of Moldova to change their place of residence and to unfold professional activity in any place of the country and outside the boundaries of the Republic of Moldova.
The work group believes that the regulations do not run counter to the Article 2 of the Protocol 4 of the ECHR. In the same time it is important to give a concrete definition to the term "objective causes". (article 9). By virtue of which the Parliament may restrict or suspend the immigration. This reference should be made based on the Article 2 of the Protocol 4 of the ECHR for not to allow derogations from re regulations stipulated by it.
The Law on the State border no. 108-XIII from May 17, 1994 regulates the restrictions the movement and the stay on the area of the state border. Article 14 of this Law provides the following:
"(1) The entry (passing) of persons and transportation means to the border zone shall occur at the presentation of acts of identity, of individual or collective permits, issued by the commander of the sub unit of the borderman. "
ARTICLE 3
"1. No on shall be expelled by means either of an individual or of a collective measure, from the territory of the State of which he is a national.
2. No one shall be deprived of the right to enter the territory of the State of which he is a national. "
Article 3 of Protocol No.4 of ECHR should be referred to Article 12-4 of the International Pact on Civil and Political Rights, providing that: "no one shall be arbitrary deprived of the right to enter the territory of his own country". It is obvious that the protection offered by the Protocol is much broader:
- on one hand, it includes, besides the right to enter the territory, the right not to be expelled;
- on the other hand, the rule provided in the Protocol is much more categorical, and seems not to admit exceptions, because the word "arbitrary", used by the Pact, allows a State to have a ground to refuse his national to enter on its territory.
In the Explanatory Report of the Committee of Experts (document no. H(71) 11) it is mentioned that the right of an individual to enter the territory of the State of which he is a national, should not be interpreted as an absolute right to stay on this territory: as an example the Report calls the situation when a person, who committed a crime was extradited by the State of which he is a national, and then he fled from the prison of the applicant State - this person may not claim the unconditional right to a refuge in his country of origin.
In a case v. Germany and Austria, a German citizen who was convicted to a four years of imprisonment in Austria and temporarily expulsed in Germany, during a criminal proceeding claimed that his return to Austria in order to serve the conviction would be contrary to Article 3 of Protocol No.4 of ECHR. However, the Commission assessed that it was not about an expulsion - measure obliging a person to stay out permanently of a State of which he is national, without having any possibilities to return back - and that it was an extradition measure involved - prohibited neither by Article 3 of Protocol No.4, nor by any other provisions of ECHR (application no.6189/73).
In another case, a Turkish national and his wife - French citizen, were convicted by the French authorities for the violation of laws on drugs. Besides, the husband was denied the access on the territory of France. In the application filed with the Commission, the spouses alleged the violation of Article 3 of the Protocol and argued that the measure imposed to the husband had the direct effect of de facto expulsion of his wife of French nationality, who was forced to leave the country in order to join her husband in Turkey, because spouses, in compliance with the Civil Code, have the mutual obligation to live together.
Nevertheless, the application was found inadmissible, because not all domestic remedies were exhausted and therefore the Commission did not rule on the merits of the case (application no.11939/86, Kilicarslan v. France).
The rights enshrined in Article 3 of the Protocol - the right to enter the territory of a State and the right not to be expelled, meaning the possibility to stay on the territory - are acknowledged only to the citizens of that State. Protocol No.4 does not deny the rule of the international law, according to which a State never has the obligation to accept on its territory the presence of a person, who is not its citizen.
Paragraph 3 of Article 17 of the Republic of Moldova's Constitution provides: "Citizens of the Republic of Moldova may not be extradited or expelled."
Paragraph 2 of Article 27 of the Republic of Moldova's Constitution provides: "Every citizen of the Republic of Moldova shall be guaranteed the right to establish his home or residence in any region of the country, to exit, emigrate and return in the country."
Thus, the Constitution prohibits in an imperative manner the expulsion of citizens of the Republic of Moldova and enshrines their right to return.
The legislation of the Republic of Moldova has no limitation on these rights.
PROTOCOL No.7
ARTICLE 2
"1. Everyone convicted of a criminal offence by a tribunal shall be have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal."
The right to appeal provided in Article 2 of Protocol No.7 is one of the characteristic principles of the fair trial, acknowledged in civilized countries and designed to prevent potential abuses of power and errors of justice.
The Convention requires that the right to appeal to be guaranteed. The sentence may be delivered only by a court of law.
The Republic of Moldova's Constitution and laws provide and safeguard the principles enshrined in Article 2 of ECHR.
Thus, Article 119 of the Constitution provides:
"The interested parties and competent state bodies shall be entitled to exercise appeals against courts' judgements."
According to Article 115 of the Constitution, the courts competent to try criminal case are:
- Supreme Court of Justice
- Court of Appeals
- Tribunals
- Circuit courts.
For certain categories of cases, specialized courts may be established. Establishment of extraordinary courts shall be prohibited.
The right to appeal is guaranteed by the existence of the three levels of jurisdiction of the courts' system, provided in the Constitution and in the Civil and Criminal Procedure Codes:
- Tribunals
- Court of Appeals
- Supreme Court of Justice.
According to the legislation of the Republic of Moldova, any judgement, sentence delivered by courts may be appealed by ordinary appeal or recourse. Chapter 22 of the Code Administrative Offences provides that the courts' judgements issued in administrative cases may be challenged by means of complaints or protests.
The right of the tried persons to file ordinary appeals and recourses against court's proceedings, orders, decisions and judgements is provided in Articles 306 - 335-9 of the Criminal Procedure Code.
While delivering the sentence or decision, the judge has the obligation under the law to explain the individual, in a clear language and explicitly, the procedure and terms of filing the appeal.
Considering the above-mentioned, we found that in the Republic of Moldova it is possible to appeal any sentence of conviction delivered by circuit county, sector and municipal courts, tribunals, military court, Court of Appeals and Supreme Court of Justice, by means of an ordinary appeal or recourse.
In this respect, the legislation of the Republic of Moldova is in full compliance with article 2 of Protocol No.7 of the Convention.
The only exception to this principle is contained in Article 273 of the Code of Administrative Offences, which provides that the decision of the court shall stay final in case of the administrative offences provided in Articles 200-7 (contempt of the court), 200-8 (insult of a judge), 200-10 (failing to comply with the interlocutory judgement (decision) of the court or with the proposals of judge) and 200-11 (non-enforcement of the court's judgement).
We consider that these exceptions do not contradict the provisions of Article 2, paragraph 2 of Protocol No.7, because these violations, being qualified as administrative offences represent minor offences, in the meaning of the Convention.
PROTOCOL No.7
ARTICLE 3
"When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law orthe practice of the State concerned, unless it is proved that the non-disclosure of the unkown fact in time is wholly or partly attributable to him."
Article 53, paragraph 2 of the Republic of Moldova's Constitution provides:
"(2) The State shall bear patrimonial liability, according to the law, for damages caused by miscarriage of criminal justice by investigation bodies and courts."
The manner of reparation of the damages caused by miscarriage of criminal justice by investigation bodies and courts is provided in the Law no.1545-XIII from February 25, 1998 on the manner of reparation of the damages caused by illegal actions of criminal investigation and preliminary enquiry bodies, of prosecutors and courts. According to this law (Article 1), the moral and material damages, must be compensated, if suffered by individuals as a result of:
f) illegal apprehension, illegal application of the repressive measure of arrest, illegal holding criminally liable, illegal conviction;
g) illegal conduction of investigation or trial of the criminal case, search and distraint of property, illegal dismissal, as well as other acts of procedure limiting the rights of naturalor legal persons;
h) illegal imposing of administrative arrest, illegal confiscation of property, illegalimposing of fine;
i) illegal performance of operative measures of investigation;
j) illegal levy of accounting and other documents, of money, seals as well as freezing of banking accounts.
The caused damage shall be fully compensated, regardless the guilt of the official persons from criminal investigation and preliminary enquiry bodies, of prosecutors and courts.
The reparation of damages caused by miscarriage of justice is provided by the Civil Code. Article 478 stipulates that the dammages caused to a natural or legal person caused by illegal acts of criminal investigation and preliminary enquiry bodies, of prosecutors and courts shall be compensated fully by the State, regradless the guilt of the official persons from criminal investigation and preliminary enquiry bodies, of prosecutors and courts, according to the law.
In compliance with Article 4 of the Law, the right to reparation of damages appears when:
f) an aquital sanction is delivered;
g) cessation of criminal proceedings due to the lack of criminal offence, of the elements of criminal offence or evidence proving that the natural person participated in the committing of the criminal offence;
h) addoption by the court of the decision to repeal the administrative arrest or correctional work due to the rehabilitation of the natural person;
i) addoption by the European Court of Human Rights or by the Committee of Ministers of the Council of Europe of a judgement concerning the reparation of damages or friendly settlement between the injured person and the representative of the Republic of Moldova's Government at the European Court of Human Rights. The friendly settlement concluded shall be approved by the Government of the Republic of Moldova.
j) illegal conduction of operative measures of investigation before the institution of criminal proceedings, on the condition that, within 6 months since the performance of such measures, the decision to institute criminal proceedings was not taken or repealed.
In case of reparation of the material and moral damages caused to a natural or legal person, he/it shall be repaired or restituted (Article 5 of the Law):
i) the salary or other income resulted from work, which represents his main source of existence, of which he was deprivated by illegal actions;
j) the pension or allowance the payment of which was ceased as a resul of illegal arrest and keeping under arrest;
k) property (including pecuniary depositis and incurrent interest, state securities and incurent benefits) which was confiscated or transferred to the benefit of the State by the court or levied by the criminal investigation or preliminary enquiry bodie, as well as the distrained property;
l) illegally imposed fines by the enforcement of the court's sentence and the incurrent trial expenses supported be the natural person;
m) sums of money paid for legal council;
n) expenses supported due to medical treatment, determined by the application of illegal actions (ill-treatment);
o) sums of money equivalent to the moral damages suffered;
p) expenses supported in connection with the summoning before the investigation body, prosecutor's office or court;
In our view, the existing national legislative framework complies with the requirements provided by the Convention.
PROTOCOL No.7
ARTICLE 4
"1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquited or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the Convention."
As one of the principles of criminal liability, the principle of intolerance of double incrimination for the same deed (non bis in idem) provides the general rule according to which a person, once tried by final judgement may not be liable to be tried or punished again for the same deed. The application of the rule non bis in idem depends on the existence of a prior final judgement and the identity of person and deed between the two acses involved.
Article 5, section 9 of the Criminal Procedure Code of the Republic of Moldova provides the following:
"The criminal proceedings may not be institutied, or if instituted must cease:
9) in case of a person, who was already delivered a final sentence, in connection with the same charges or a resolution of the courtof cessation of the criminal proceeding on the same grounds."
Article 234, section8 of the Code of Administrative Offences provides:
"The proceedings in case of an admnistrative offence may not be institutied, or if instituted must cease:
8) in case of existence of a decision issued by the competent body, about the same person held administrativly liable, for the same deed, concerning the imposing of an administrative sanction or of existence of an unrepealed judgement on the cessation of the proceeding on the administrative case, as well as the existence of a criminal case on the same deed."
Thus, we may conclude that the provision of the non bis in idem principle in the national legislation is in compliance with the provisions of Article 4 of Protocol No.7 of ECHR. The Moldovan legislator has included this prnciple in the Criminal Procedure Code and in the Code of Adminditrative Offences as being one of the grounds for the inadmission of institution of proceedings, contributing therefore to the protection of individuals against eventual arbitrary actions of the State authorities. It is inadmissible for a person to be sanctioned twice for the commission of the same act. Article 351 par.3 of the Criminal Procedure Code provides that in case of use of extraordinary remedies against final criminal sentences it is possible to declare contestation in cassation if there are two final sentences delivered to the same person for the same deed. Article 369-2, par.1 section e) of the same Code provide that final sentences of convistion, aquital or decisions on the cessation of the proceedings may be remedied by recourse in cassation if the convicted person had been prior convicted by final sentence for the same deed. These provisions are used as additional measures of protection of the individual's rights and freedoms.