Judgment No.7 of 16.04.2015
Judgment on constitutional review of certain provisions of the Law no. 325/2013 on professional integrity testing (Application no. 43a/2014)
The subject of complaint: Member of the Parliament
Type of judgment: constitutionality review of laws, regulations and decisions of Parliament
Provision: Provisions recognized in part constitutional / unconstitutional
1. The case originated in an application lodged with the Constitutional Court on 20 June 2014 under Article 135 para. (1) let. a) of the Constitution, Article 25 let. g) of the Law on the Organisation and Operation of the Constitutional Court and Article 38 para. (1) let. g) of the Constitutional
Jurisdiction Code by the Members of Parliament Galina Balmoş, Maria Postoico, Artur Reşetnicov and Igor Vremea on the constitutional review of the phrases "The Constitutional Court" and "The Courts of all levels" provided by the Annex to the Law no. 325 of 23 December 2013 on professional integrity testing.
2. On 31 July 2014, according to Article 31 para. (3) of the Constitutional Jurisdiction Code, the applicants have supplemented the application with additional arguments.
3. The applicants alleged that professional integrity testing of the employees of the Courts of all levels and of the Constitutional Court, including judges, by the employees of an institution which is under the control of the Executive (the National Anti-corruption Center) breaches the principles of the rule of law, separation of state powers and independence of the judiciary, as well as the right to a fair trial and the right to respect for private life, as guaranteed by Article 1 para. (3), Articles 6, 28, 116 para. (1) and para. (6), Article 123 para. (1) and Article 134 para. (2) of the Constitution and by Articles 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the European Convention").
4. On 11 September 2014, the Constitutional Court has declared the application admissible, without prejudicing the merits of the case.
5. The Court requested the opinion of the European Commission for Democracy through Law ("the Venice Commission"). On 15 December 2014, the Venice Commission communicated the Court its Amicus Curiae
Brief (CDL-AD (2014)039) on certain provisions of the Law on professional integrity testing, adopted at its 101st Plenary Session (Venice, 12-13 December 2014).
6. Moreover, in the process of examination of the application the Constitutional Court also requested the opinions of the President of the Republic of Moldova, of the Parliament, the Government and the Superior Council of Magistracy, both prior to and following the communication of the amicus curiae Brief by the Venice Commission (see below).
7. The applicants were not present during the public hearings before the Court to support the application. The Parliament was represented by Mr. Ion
Creangă, head of the General Legal Department within the Secretariat of the Parliament. The Government was represented by Ms. Cristina Țărnă,
Deputy Director of the National Anti-corruption Center, and y Ms. Natalia
Roșca, deputy Head of the General Legislative Department, Ministry of
A. National legislation
17. The relevant provisions of the Constitution (Official Gazette, 1994, no. 1) read as follows:
The State of the Republic of Moldova
"[...] (3) Governed by the rule of law, the Republic of Moldova is a democratic State in which the dignity of people, their rights and freedoms, the free development of human personality, justice and political pluralism represent supreme values that shall be guaranteed."
Human Rights and Freedoms
"(1) Constitutional provision on human rights and freedoms shall be interpreted and are enforced in accordance with the Universal Declaration of Human Rights, with the conventions and other treaties to which the Republic of Moldova is a party.
(2) Wherever disagreements appear between the conventions and treaties on fundamental human rights to which the Republic of Moldova is a party and its domestic laws, priority shall be given to international regulations."
Separation and Cooperation of Powers
"The Legislative, the Executive and the Judicial Powers are separate and cooperate in the exercise of the assigned prerogatives pursuant to the provisions of the Constitution."
Free Access to Justice
"(1) Any individual is entitled to effective satisfaction from the part of competent courts of law against actions infringing upon his/her legitimate rights, freedoms and interests.
(2) No law may restrict the access to justice."
Private and Family Life
"The State shall respect and protect the private and family life."
Restrictions on the Exercise of Certain Rights or Freedoms
"[...] (2) The exercise of the rights and freedoms may not be subdued to other restrictions unless for those provided by the law, which are in compliance with the unanimously recognised norms of the international law and are requested in such cases as: the defence of national security, territorial integrity, economic welfare of the country, public order aiming at preventing mass riots and crimes, protection of the rights, freedoms and dignity of other persons, prevention of disclosing confidential information or the guarantee of the power and impartiality of justice. [...]
(4) The restriction has to be proportionate to the situation that caused it and shall not affect the existence of the right or freedom."
Statute of the Judges
"(1) Judges sitting in the courts of law are independent, impartial and irremovable according to the law. [...]
(6) Sanctioning of the judges is carried out pursuant to the law."
Powers [of the Superior Council of Magistracy]
"(1) The Superior Council of Magistracy shall ensure the appointment, transfer, removal from office, upgrading and imposing of the disciplinary sentences against judges. [...]."
Statute [of the Constitutional Court]
"[...] (2) The Constitutional Court is independent of any other public authority and shall abide only by the Constitution. [...]."
18. The relevant provisions of the Law no. 325 of 23 December 2013 on professional integrity testing (Official Gazette, 2014, no. 35-41/73) read as follows:
"Professional integrity testing is made in order to:
a) ensure professional integrity, prevent and fight against corruption within public entities;
b) verify the public agents manner to observe work obligations and duties, and the conduct rules;
c) identify, assess and remove the vulnerabilities and risks which could determine or favor corruption acts, corruption related acts or deeds of corruptive behavior;
d) reject inappropriate influences in exercising the work obligations or duties of public agents."
" [...] professional integrity test - the creation and application by the tester of certain virtual, simulated situations, similar to those in the work activity, materialized through dissimulated operations, conditioned on the activity and behavior of the tested public agent, in order to passively monitor and establish the reaction and conduct of the tested public agent; [...]
justified risk - risk without which the socially useful purpose to objectively set the public agent s conduct within the professional integrity test cannot be reached, and the professional integrity tester who risks took measures to prevent damages of the interests protected by law. [...]."
Subjects of professional integrity testing
"(1) The subjects of professional integrity testing shall be public entities, public agents and professional integrity testers.
(2) Professional integrity tests shall apply to the public agents employed within the public entities provided in the annex.
(3) Professional integrity tests are made by the employees of the National Anti-corruption Center and of the Information and Security Service."
Guarantees and responsibilities
"(1) In case of a negative result of the professional integrity test, the tested public agents shall only be applied a disciplinary liability depending on the seriousness of the established deviations and according to the legislation regulating the activity of such public entities, observing the provisions of Art.16 para.(2).
(2) The results and materials of the professional integrity test may not be used as means of evidence in a criminal or minor offence trial against the tested public agent.
(3) The methods and means to test and set professional integrity tests shall not represent special investigation activities as provided by Law no.59 of March 29, 2012 on the special investigation activity.
(4) The use of the materials of the professional integrity test in a civil trial shall be approved as provided by the civil procedural legislation. The report on the professional integrity testing results and the materials of the professional integrity test may be used as evidence in a civil trial if they are pertinent, admissible and veridical, observing public interest, human rights and freedoms and the declassification conditions.
(5) The action of the professional integrity tester based on a justified risk, having the purpose of drawing the attention of the tested public agent shall not be a minor offence or offence if the professional integrity testing activity cannot be performed without involving this risk.
(6) If, during the performance of the professional integrity test, other illegal activities of the tested public agents or of third persons were established, the institution which made the professional integrity testing shall notify the competent body so that the measures established by the legislation in the field are taken."
Professional integrity testing initiation
"(1) Professional integrity testing is initiated by:
a) The National Anti-corruption Center - regarding all the public agents within the public entities provided in the annex, except for the Information and Security Service;
b) The Information and Security Service - regarding the employees of the National Anti-corruption Center;
c) the internal security subdivision of the Information and Security Service
- regarding its employees.
(2) The professional integrity testing initiation and the selection of the public agents to be subject to testing shall be made depending on:
a) the risks and vulnerabilities to corruption identified in the activity of such public entities;
b) the held information and the notifications received by the institution making professional integrity testing;
c) the motivated requests of the leaders of the public entities provided in the annex.
(3) The decision on making the professional integrity testing of public agents within a public entity shall be made by the coordinator of the professional integrity testing activity without informing in advance the management of the targeted public entity. If necessary, the professional integrity testers shall collaborate with the representatives of the public entity in which the tested public agent activates under the conditions of this law and of the special normative rules regulating the cooperation in the field."
Coordination of professional integrity testing
"(1) Professional integrity testing of public agents shall be coordinated by a person with a management function within the National Anti-corruption Center or the Information and Security Service.
(2) The coordinator of the professional integrity testing activity shall designate, on a confidential basis, for each professional integrity testing activity, professional integrity tester ensuring the performance of all professional integrity testing activities and in charge with drafting the professional integrity testing plan and submitting the reports with the results obtained further to testing activities.
(3) The professional integrity testing plan is a confidential document approved by the coordinator of the professional integrity testing activity and includes the following information:
a) the testing initiator and the motivated decision to initiate the testing;
b) the testing subjects;
c) the forecast dissimulated operations;
d) the place, duration, participants and the logistic assurance of the testing;
e) the simulated virtual situations, the behavior hypotheses and the action variants of the professional integrity tester and the tested public agent;
f) the actions based on a justified risk;
g) other information relevant for making the testing.
(4) The professional integrity tester may change the professional integrity testing plan ex officio and/or as necessary, in case of occurrence of additional information. The coordinator of the testing activity shall be informed of the occurred changes."
Means and methods to test and set professional integrity tests
"(1) Professional integrity testers shall perform their activity on a confidential basis.
(2) In exceptional cases, when making the integrity test, other persons may also participate, subject to their prior consent and to the submission of the guarantees that they shall not disclose the performed activity.
(3) For the objective assessment of the professional integrity test result, it shall be registered on a mandatory basis by the audio/video means and the communication means in the tester s possession or used by the tester.
(4) When making the professional integrity test, documents supporting a dissimulated activity or the used story, including cover documents, may be used.
(5) Within professional integrity testing activities, transportation means, audio/video recording means, communication means and other technical means to covertly obtain the information, the National Anti-corruption Center and/or the Information and Security Service is/are equipped with may be used. If necessary, when the use of the means the National Anti-corruption Center and/or the Information and Security Service is/are equipped with is ill-suited or impossible, means from other sources may also be used subject to the prior consent of their owner/holder, but avoiding to inform them of the real purpose of using such means.
(6) In order to ensure the exact evidence in the professional integrity test, in case the tested public agents claim or accept the receipt of certain goods, services, privileges or advantages, professional integrity testers may send goods, offer services, grant privileges and other advantages, which shall be indicated in advance in the professional integrity testing plan and coordinated according to Art.11."
Positive result of the professional integrity test
"(1) Shall be deemed as positive result of the professional integrity test the situation when the report on the testing results establishes that the tested public agent:
a) proved professional integrity;
b) communicated without delay to the management of the public entity the fact that a inappropriate influence was exercised upon them, that they were transferred goods, offered services, granted privileges or advantages.
(2) In case of a positive test result, the institution which made the professional integrity testing shall communicate such result to the management of the public entity in which the tested public agent activates, within 6 months from the testing date, ensuring confidentiality and conspiracy. The result communication shall be made through an official demarche without attaching the report on the professional integrity testing results or the copy of the audio/video recording of the made test.
(3) The leader of the public entity the tested agent is part of shall communicate the testing performance to the public agents within such entity without giving the name of the tested public agent, within 10 business days since the test result communication date."
Negative result of the professional integrity test
"[...] (2) In case of a negative test result, the institution which made the professional integrity testing shall send, within 10 business days since the test date, the report on the results of the professional integrity testing to the entity having functions to establish the disciplinary deviations perpetrated by such public agent, so that the disciplinary measures are applied according to the legal provisions.
(3) The institution which made the professional integrity testing shall provide access to the entity authorized to establish the disciplinary misconducts that were discovered to the audio/video recording of the made professional integrity test and to other materials confirming the negative test result. In order to ensure confidentiality and conspiracy, the image and voice of persons other than the tested public agent, the images of cars, restaurants and other backgrounds, and the sounds of the registered circumstances shall be presented so that they may not be recognized.
(4) Within 30 days from the receipt of the notification, the notified entity shall examine the materials on the negative professional integrity test and immediately inform the institution which made the test of the taken measures and the applied sanctions, providing a copy of such decision."
Article 16 Consequences of the negative result
of professional integrity test
"(1) The disciplinary sanctions as a result of the negative result of the professional integrity test, including the dismissal of the tested public agent, shall apply according to the legislation regulating the activity of the public entity where he performs his activity.
(2) The application of the sanction of dismissal shall be mandatory if during the test it was established that the public agent approved the breaches provided
under Art.6 para.(2) letter a). [...]."
Challenge of applied disciplinary sanctions
"The disciplinary sanction applied further to the negative result of the professional integrity test may be challenged by the tested public agent in the administrative dispute court as provided by the legislation."
Keeping the recordings made within professional integrity tests
"(1) The audio/video recordings made within professional integrity testing are kept:
a) in case of a positive result - until the information of the employees hired in the public entity the public agent subject to testing is part of;
b) in case of a negative result- until the court decision remains final and irrevocable or until the expiry of the term provided for challenging the sanction, if the institution which performed the professional integrity testing holds no information on a possible challenge.
(2) After the expiry of the terms established under para.(1), the audio/video recordings made within the professional integrity test shall be destroyed."
Article 19 Parliamentary control on
professional integrity testing
"(1) The parliamentary control on the professional integrity testing activity is exercised by the National security, defense and public order commission and the Legal, appointment and immunity commission.
(2) The National Anti-corruption Center and the Information and Security Service submit to the each of the commissions mentioned under para.(1), on an annual basis, until January 30, one report on the professional integrity testing activities, to include:
a) the number of made professional integrity tests;
b) the results of professional integrity tests;
c) the number of challenges of applied disciplinary sanctions.
(3) The National security, defense and public order commission and the Legal, appointment and immunity commission may request, within their competence limits, any additional information on the activity of testing the professional integrity of public agents if they deem that the submitted reports are incomplete."
whose employees are subject to professional integrity testing
The Secretariat of the Parliament
The Administration of the President of the Republic of Moldova The State Chancellery, including its territorial offices
The authorities of the central specialized public administration (ministries, other central administrative authorities subordinated to the Government and the organizational structures in their competence area)
The Superior Council of Magistracy, the colleges and bodies in its subordination The Constitutional Court
The Courts of all levels
The Prosecution bodies of all levels The Intelligence and Security Service
The State Protection and Security Service The Center for Human Rights
The Court of Accounts
The Central Electoral Commission
The National Integrity Commission
The National Financial Market Commission The National Bank of Moldova
The National Center for the Protection of Personal Data The Audiovisual Coordinating Council
The Competition Council
The Council for preventing and eliminating discrimination and ensuring equality
The National Agency for Energetic Regulation
The National Agency for Regulation in Electronic Communications and Information Technology
The National Social Insurance House
The State Archive Service, including the state central archives The National Council for Accreditation and Attestation
The Supreme Council for Science and Technological Development The Civil Service Center
The Special Currier State Service
Local public administration authorities."
19. The relevant provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms (signed at Rome on 4 November 1950 and ratified by the Republic of Moldova by the Parliament Decision no. 1298-XIII of 24 July 1997) read as follows:
Right to a fair trial
"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. [...]."
Right to respect for private and family life
"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 wellbeing 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. To recognize constitutional the provisions of the Law no. 325 of 23 December 2013 on professional integrity testing, except for:
- Article 2 let. b) and d);
- the phrase „justified risk - risk without which the socially useful purpose to objectively set the public agent s conduct within the professional integrity test cannot be reached, and the professional integrity tester who risks took measures to prevent damages of the interests protected by law." from Article 4;
- Article 9 para. (5);
- Article 10 para. (2) - (3);
- Article 11 para. (1) - (2) and (4);
- Article 12 para.(3) - (6);
- the words „without giving the name of the tested public agent," from
Article 14 para. (3);
- Article 16 para. (2);
which are declared unconstitutional.
2. The present judgment is final, cannot be subject to any appeal, shall enter into force at the date of its enactment and shall be published in the Official Gazette of the Republic of Moldova.
60. The Court notes that the guarantees of the right to a fair trial in criminal matters provided by the European Court are equally applicable to disciplinary proceedings (see, inter alia, Vanjak v. Croatia, 14 January 2010). The Court took into account both the severity of charges against the public agent and the seriousness of consequences, i.e. job loss, despite the fact that the law provides for disciplinary and not criminal liability.
61. The Court also notes that the guarantees of a fair trial do not apply exclusively to legal procedures stricto sensu, but extend also to the preceding and subsequent stages.
3.1. General Principles
- Guarantees of the Right to a Fair Trial
62. Free access to justice is enshrined as a fundamental right under Article 20 of the Constitution, Article 6 para. (1) of the European Convention and Article 14 para. (1) of the International Covenant on Civil and Political Rights.
63. According to the Constitution, free access to justice is conceived as the right of every individual to an effective protection by the competent courts against acts that violate the rights, freedoms and legitimate interests of the individual and guarantee that no law may restrict access to justice.
64. The Court mentioned in its Judgment no. 14 of 15 November 2012 that "the principle of free access to justice is to be regarded not only as a fundamental guarantee for an effective exercise of the rights and freedoms of the individual, but as an imperative norm which should confer proper meaning to the concept of "rule of law"".
65. The Court notes that access to justice, as an inherent aspect of the right to a fair trial, cannot be perceived without the guarantees required by Article 6 para. (1) of the European Convention.
- Presumption of Innocence
66. Presumption of Innocence is enshrined in Article 21 of the Constitution and Article 6 para. (2) of the European Convention and shall be guaranteed throughout the criminal or the disciplinary proceedings.
67. The Court notes that the provision requiring the existence of
"reasonable grounds" based on objective criteria is incident in case of use of undercover agents both in criminal and in disciplinary proceedings. Moreover, the European Court has consistently held in its case law that the presumption of innocence is applicable not only in criminal proceedings, but also in cases where domestic courts had to decide on the guilt. The aim of this presumption is to prevent any issuance of opinions regarding the guilt of the applicant prior to his conviction according to the law. It is sufficient that, in absence of concrete grounds and of a final decision of a court, there should exist such an opinion which suggests that the public authority considers the applicant guilty (see Allenet de Ribemont v. France, 10 February 1995, §.41, and Minelli v. Switzerland, 25 March 1983, § 28).
- Right Not To Be Judged on the Basis of Evidence Gained by Incitement
68. In its case law on the involvement of undercover agents and, in particular, on their use as agents provocateurs in (criminal) investigative proceedings the European Court analysezes and assimilates their activity with acts of incitement to commit crimes.
69. Therefore, according to the European Court case law, incitement occurs where things are not limited to an essentially passive investigation of criminal activities of a suspect, rather an influence is exercised such as inciting to commit an offence that otherwise would not have been committed (see Pareniuc v. Moldova, 1 July 2014, §. 38; Teixeira de Castro v. Portugal, 9 June 1998, § 38).
70. The guiding principles which can be derived from the European Court case law (see, in particular, Furcht v. Germany, 23 October 2014,
§§47-53; Bannikova v. Russia, 4 November 2010, §§36-50; Ramanauskas
v. Lithuania, 5 February 2008, §§50-61; Khudobin v. Russia, 26 October 2006, §128; Texeira de Castro v. Portugal, 9 June 1998, §36) can be summarized as follows:
- involvement of an undercover agent requires prior reasonable grounds to suspect that the person envisaged is involved in a similar criminal activity or has committed a similar criminal act before;
- authorization of an undercover agent s activity must be legal from the point of view of formalities; an administrative decision that does not contain full information regarding the purpose and reason for the application of such methods is not sufficient;
- as to the scope of the involvement of an undercover agent, s/he may (only)
be allowed to join an ongoing criminal act and must abstain from inciting the person envisaged to commit a criminal act (agent provocateur), for example by
"intensively" offering a sum of money for the commitment of a criminal offence.
71. According to the European Court case law, the public interest cannot justify any use by the court of evidences gained by incitement, as it would expose the public agent to the risk of being abridged from the start of the right to a fair trial (see Teixeira de Castro v. Portugal, §§ 35-36 and 39; Khudobin v. Russia, 26 October 2006, § 128; and Vanyan v. Russia,
15 December 2005, §§ 46-47).
3.2. Application of Principles in the Present Case
72. The Court will consider whether the Law on professional integrity testing ensures the right of tested public agents to a fair trial.
- Predictability of Law
73. The Court notes that the Law no. 325 of 23 December 2013 operates with the notion "public agents". Article 4 of the Law defines "public agents" as the "employees of the public entities listed in the Annex which is an integral part of this Law".
74. The Court observes that, although the National Anti-corruption Center initially collected declarations of acceptance for integrity testing from 421 out of 425 judges, having carried out trainings on the application
of the Law no. 325 of 23 December 2013, according to the acknowledgements of this institution on its official website; following the request submitted by the Constitutional Court to the Venice Commission for an opinion on the interpretation of the provisions of this Law, the NAC denied, including through an official letter sent to the Venice Commission, that the judges are subjects to this Law. This opinion is contrary to the opinion submitted by the Government referring to this application.
75. The Court also notes that, by the letter no. 06/3441 of 5 September 2014 requesting the adjournment of the hearing on this case, NAC has recognized that during the trainings it found that the notion "public agents - the employees of the public entities provided in the Annex forming an integral part hereof" has been interpreted differently. According to NAC, "this situation became confused due to the changes that were made to the draft law following its approval in the first reading by the Parliament". NAC also recognized that, "[a]although professional integrity testing of judges is carried out by the National Anti-corruption Centre, the application of disciplinary sanctions in case of a negative result of the test falls on the manager of the public entity, for judges namely the Superior Council of Magistracy, which is the competent body to apply disciplinary sanctions".
In this context, "The Centre elaborated a draft law intended to approximate the provision of several laws with the Law no. 325 of 23 December 2013, it also expressly clarifies the circle of persons that are subjects to the above mentioned law in order to remove any ambiguous interpretations, as the case of judges was".
76. On the other hand, following the communication of the of the Venice Commission amicus curiae Brief, NAC announced that "The judges from the Republic of Moldova were fooled by the National Anti-corruption Centre with a view to the application of the Law on professional integrity testing" (see the interview "How NAC fooled the judges?", offered by the deputy director of NAC, Ms. Cristina Țărnă - http://ziarulnational.md/cum-i-a-pacalit-cna-pe-judecatori/). The Court considers that suchlike actions raise doubts about the professional integrity of persons admitting such behavior and about the real goal they pursue when applying the provisions of the challenged Law.
77. This inconsistency in actions clearly indicates that particular provisions of the Law no. 325 of 23 December 2013 are unclear even for the authority responsible for its implementation (the NAC), causing interpretation doubts about its scope.
78. Since there were enacted no amendments to the Law no. 325 of 23 December 2013, these ambiguities were not clarified so that the confusions about the circle of the referred subjects persists.
- Presumption of Innocence
79. The Court holds, as a principle, that the first contact of the tester with the public agent within a simulated situation could be justified only if there are preliminary and objective grounds to suspect that a certain public agent is inclined to commit acts of corruption. Per a contrario, if impeccable professional behavior of the public agent has never raised any suspicion as to his or her potential corruptibility, there is no societal need to cast a general shadow of suspicion on this particular public agent just because the public entity for which he/she works or other colleagues carrying out similar job might have shown leniency towards corruption.
80. The Court observes that, in order to verify the fairness of trial, the authorities shall prove existence of an indication that the offence had been committed by the tested public agent and without any involvement of state authorities.
81. In this context, the Court notes that, according to Article 10 para. (2) of the Law no. 325 of 23 December 2013, initiation of the testing procedure and selection of public agents to be subjected to testing depends only on the fact that a given public entity has generally shown existence of
"risks and vulnerabilities to corruption" in the past (let. a), or on the fact that NAC holds "information" and has received "notifications" (let. b), or if there are "motivated requests" from the management of a public entity. It should be noted that none of the legal provisions listed in Article 10 para.
(2) provide objective indications that would imply corruptive behavior of the individuals selected for testing.
82. The Court notes that the legal provisions allow both testing focused on target groups and random testing, so that the integrity tester has unlimited discretion in carrying out this task.
83. The Court observes that, according to the Law no. 325 of 23 December 2013, in order to initiate the testing procedure it is not necessary to comply with the conditions of reliability and reasonableness based on objective criteria or a similar concept allowing suspicion that a certain public agent could be inclined to corruptive behavior.
84. Therefore, the general text of Article 10 para. (2) let. a)-c) of the Law no. 325 of 23 December 2013 does not comply with the requirement on the existence of reasonable and objective grounds for the initiation of the testing procedure. In this respect, the opinion of the Constitutional Court does not differ from the opinion shared by the Venice Commission in its amicus curiae Brief.
85. The Court also observes that, as it results from the provisions of Articles 4 and 10 para. (2) of the Law, its key concept can be resumed to the fact that at the initial stage of each professional integrity test, professional integrity tester contacts the public agent using a false identity, within "simulated situations (...) materialized through dissimulated operations" (Article 4 of the Law), based on a scheduled confidential
"professional integrity testing plan" [Article 11 para. (3) of the Law]. The purpose of these actions is quite clear: the tester, a potential briber, exposes the public agent to a fictional corruptive behavior, in other words - the initiative belongs to the tester.
86. In the same context, the Court notes that, in order to protect NAC testers, Article 4 of the Law no. 325 of 23 December 2013 defines the term
"justified risk", the rationale of which in essence is that the tester is allowed to enter into potentially criminal behavior, due to the fact that he/she does so for the good of the society and because less interfering measures would not make it impossible to reach the goal of the test. Consequently, Article 9 para. (5) of the Law provides for a legal fiction ("shall not be"), meaning that any action of the tester which is covered by the principle of a "justified risk" and is intended against a public agent tested is not a criminal offence (even though it really took place). Thus the disputed concept of "justified risk" not only allows for criminal behavior to instigate the public agent, but casts a general shadow of suspicion on the integrity of every public agent from the Republic of Moldova, as the extent of corruption in this state is well-known.
87. The Court also notes that, due to the negative result of the professional integrity test, the public agents are disciplinary sanctioned under the law regulating the activity of the public entity where they perform their functional activity, including the dismissal of the tested public agent [Article 16 para. (1) of the Law].
88. The Court shares the opinion expressed by the Venice Commission that the disciplinary sanction imposed as a result of the negative result of the professional integrity test can be challenged by the public agent only in the administrative court, in the manner prescribed by the law (Article 17 of the Law). Therefore, the real protection of the aggrieved public agent begins only after he/she has been disciplinary sanctioned in the first instance so that the presumption of innocence is in fact neglected by the provisions of the Law no. 325 of 23 December 2013.
- Effective Defence
89. There is no occurrence of such terms as "defence" or "legal assistance to the aggrieved public agent" or other similar notions in the text of Law no. 325 of 23 December 2013. The Law is too sparse as to the rights of the aggrieved public agent. As a matter of fact, the only explicitly mentioned right of a public agent who has failed a professional integrity test is "to be informed of the manners to legally challenge the disciplinary sanctions applied as a result of professional integrity testing results"
(Article 6 para. (1) of the Law).
90. From the perspective of Law no. 325 of 23 December 2013, the rights of the public agent under suspicion only seem to become effective at a very late stage, namely when the disciplinary sanction has already been imposed by the first instance (by the disciplinary body).
91. The Court notes that Article 26 of the Constitution and Article 6 para. (3) of the European Convention provide the rights of the charged person, including the right to access the evidence during criminal proceedings. This right is also applicable to the disciplinary proceedings against public agents.
92. Article 6 para. (3) of the European Convention provides in let. b) that
"adequate time and the facilities to prepare [the] defence" are essential procedural guarantees. These requirements are impaired by the regulations in Articles 6 para. (1) and 15 para. (2) of Law the no. 325 of 23 December 2013.
93. Furthermore, whereas once the specific professional integrity testing procedure has finally changed over into ordinary disciplinary proceedings pursuant to Article 15 para. (2) of Law no. 325 of 23 December 2013, the aggrieved public agent is entitled to choose a defence lawyer and to present his or her own evidence. However, even in the case of late deferral to disciplinary proceedings, the public agent is deprived of the right to
"adequate facilities to prepare his /her deference" under Article 6 para. (3) let. b) of the European Convention, and of the right to "examine or have examined witnesses against him" under Article 6 para. (3) let. d) of the European Convention. In this regard, the Court agrees with the amicus curiae opinion of the Venice Commission.
94. The aggrieved public agent personally or possibly through a legal adviser is de facto hindered from an effective assessment of evidence, as for instance, examination of the professional tester as a key witness, and assessment of material proof such as written documents and videotapes, since all these major means of evidence within professional integrity testing procedure are classified as "confidential" under Articles 13 para. (2) and 15 para (3) of Law no. 325 of 23 December 2013.
95. Furthermore, this lack of possibility to effectively assess the evidence due to confidentiality rules could also infringe upon the judge s right to an effective remedy. This is due to the fact that, first, the public agent under suspicion of a disciplinary offence in relation to the professional integrity test fails to benefit from effective access to the key evidence and second, the Law. no. 325 of 23 December 2013 does not leave any discretion to the disciplinary bodies since the dismissal from office is imperative, whenever the concerned judge has "admitted" or "approved" a breach of his or her anti-corruption obligations.
- Foreseeability of Statutory Offences
96. The Court notes that, due to the closeness of disciplinary proceedings against public agents with criminal proceedings - especially because the professional integrity testing is carried out by a criminal prosecution body, the criminal procedure principles of foreseeability of statutory offences and of their narrow interpretation, also apply, mutatis mutandis, to disciplinary proceedings provided by the challenged law.
97. The provisions of Article 6 para. (2) let. a) of the Law according to which public agents should "not admit in their activity any corruption acts, corruption-related acts and deeds of corruptive behavior", are of a generic, hybrid and vague nature and even overlap. The terms used in the Criminal Code of the Republic of Moldova, namely "criminal offences committed by officials" in Article 324 (bribe) et seq. differs from the wording of Article 6 para. (2) let. a) of the Law no. 325 of 23 December 2013. Indeed this wording is much more clear and thus allows an unequivocal understanding of prohibited behavior.
98. This difference in wordings could have been tolerated if Article 6 para. (2) let. a) of the Law no. 325 of 23 December 2013 was understood as simply referring to the corruption offences provided by the Criminal Code of the Republic of Moldova. This is, however, not the case. First, the concept of a public agent "not admitting" corruption in his or her activity is not clear in the aggregate. "Admission" is not one of the forms of participation provided in Articles 41 - 49 of the Criminal Code. The same is valid for the ambiguous concept of "corruption-related acts".
99. "Admission" of a criminal offences (namely, of the corruptive behavior) is a blurred term which bear serious risks related to the foreseeability of what would and what would not be considered as a disciplinary offence within professional integrity testing.
100. This fact is much more serious as Article 16 para. (2) of Law no. 325 of 23 December 2013 provides for the dismissal from office, as a mandatory disciplinary sanction, if during the test there has been established that the public agent "admitted" the breaches provided under Article 6 para. (2) let. a).
- Principle of Proportionality Between the Offence and the Sanction
101. The Court notes, as a principle, that interfering actions of public administration authorities should always follow the principle of proportionality. With reference to criminal and disciplinary sanctions, this principle requires inter alia a reasonable proportion between the seriousness of the offence, on the one hand, and the quality and size of the sanction, on the other.
102. At first glance, the Law no. 325 of 23 December 2013 contains such a guarantee, since Article 9 para. (1) states that "the tested public agents shall only be applied a disciplinary sanction depending on the seriousness of the deviations established and according to the legislation regulating the activity of such public entities, upon complying with the provisions of Article 16 para. (2)". However, the reserve from the last sentence is crucial, as Article 16 para. (2) provides for "mandatory" dismissal from office whenever the public agent simply "admitted the breaches provided under
Article 6 para. (2)". Thus Article 6 para. (2) offers a broad and generic definition of what anti-corruption obligations of public agents are ("not to admit in their activity any corruption acts, corruption-related acts and deeds of corruptive behavior").
103. The factual consequence following the combination of Article 6 para. (2), Article 9 para. (1) and Article 16 para. (2) of Law is that whenever a public agent "admits" any kind of "corruption-related act" in his or her professional surrounding, s/he shall be "mandatory" dismissed from office. However, this leaves the door wide open for potentially arbitrary decisions.
104. The Court notes that Article 16 para. 2 of the Law no. 325 of 23 December 2013 is problematic not only from the point of view of the principle of predictability and the principle of narrow interpretation, but from the point of view of its automatic nature, namely "mandatory" dismissal from office as a result of committing a "breach".
105. Although the Court admits that the grounds listed in Article 6 para.
(2) of the Law may in certain cases be so grave that a sanction or dismissal from office of a public agent is proportionate / adequate, automatic dismissal from office for any "breach" does not ensure compliance to the principle of proportionality between the offence and the sanction. A public agent s minor infringement of the anti-corruption legislation could, in principle, also be subject to disciplinary sanctions with less serious outcome than an automatic dismissal, for example, with a temporary reduction in premiums.
- Powers of NAC to Assess Professional Activity of the Employees of Other Public Entities
106. The Court also notes that Article 10 of Law refers to "the risks and vulnerabilities to corruption" as a ground for carrying out the testing procedure. Concurrently, according to the Law no. 1104 of 6 July 2002, prevention and combat of corruption, of corruption related acts and of deeds of corruptive behavior are the exclusive competence of the National Anti-corruption Center. On the other side, Article 2 let. b) of the challenged law provides that testing must be carried out in order to "verify the manner in which the public agents observe functional obligations and duties, and the rules of conduct".
107. The Court notes that assessment of professional activity of the employees must be the competence of the public entities where they work. It is an improper competence of the National Anti-corruption Centre. The principle of separation of powers derives from the principle of Good governance. The link between these two principles is indissoluble. Once the NAC acquires, under Article 2 of the Law, the competence of verifying observance of work functions and obligations of the public agents employed, for example, by the courts or by the Parliament, there are established the pre-requisites for breaching the two aforesaid principles.
Intervention of a body that is part of the executive body into administrative matters of a body belonging to the judiciary is unacceptable in light of the principles of separation of powers and Good governance.
108. Moreover, this provision enshrines a broader category of obligations which may be subject to integrity testing and the breach of which may lead to a negative result of the integrity test and disciplinary sanctions "work obligations and duties and the rules of conduct".
- Right Not To Be Judged on the Basis of Evidence Gained by Incitement
109. Article 4 and Article10 para. (2) of the Law does not provide sufficiently reasonable grounds or a comparable concept concerning the initiation of an individual integrity testing procedure.
110. It is also questionable whether the (confidential) "professional integrity testing plan" established by NAC (or ISS) under Article 11 para.
(3) of Law no. 325 of 23 December 2013 does not satisfy the minimum requirements for the formal authorization of the activity of undercover agents.
The Court notes that the Law no. 325 of 23 December 2013 allows the use of a false identity by the integrity testers and admits incitement by the public agents to commit offences. Thus, they should be considered as agents provocateurs (see, mutatis mutandis, Vanyan v. Russia, 15 December 2005, §47). This view is shared also by the Venice Commission in its amicus curiae brief.
3.1. General Principles
117. The right to respect for private life is enshrined in Article 28 of the Constitution, Article 8 of the European Convention and Article 17 of the International Covenant on Civil and Political Rights.
118. Although the Constitution guarantees in general terms intimate, family and private life, the extent of these rights has to be established in accordance with the interpretation given by the European Court in its case law.
119. The concept of the European Court expressed in its case law indicates that private life includes two aspects: the right of the person to live as he wishes, hiding from indiscrete sights, as well as right to develop relationships with peers; thus it can be stated that the concept of privacy encompasses two main elements: intimate private life and social private life.
No reason permits exclusion of activities of a professional nature from the notion of "private life" (see Niemietz v. Germany, §29; Halford v. United Kingdom, §§42-46).
120. According to Article 54 para. (2) of the Constitution, interferences or restrictions of certain rights must be provided by the law, must be in compliance with the unanimously recognized norms of the international law and are requested in such cases as: the defence of national security, territorial integrity, economic welfare of the country, public order aiming at preventing mass riots and crimes, protection of the rights, freedoms and dignity of other persons, prevention of disclosing confidential information or the guarantee of the power and impartiality of justice.
121. In its case law the Court noted that, although the right to respect and protect intimate, family and private life is not absolute, any interference with it must be in accordance with the law, in compliance with the unanimously recognized norms of the international law, shall be proportionate with the situation that caused it and must not endanger the existence of the right itself.
122. It is for the Court to investigate, taking into account the circumstances of each case, whether the fair balance between the fundamental right of the person to respect private life and the general interest sought to be realized by the state was complied with.
123. Article 28 of the Constitution and Article 8 of the European Convention protect individuals against arbitrary interferences by public authorities with their right to private and family life, the respect for the home and for their correspondence. This implies negative obligations of state authorities, namely the obligation not to interfere with the exercise of these rights by individuals in an unlawful way.
124. The European Court had mentioned that the States do not enjoy an unlimited discretion to subject to secret surveillance persons within their jurisdiction. The European Court was aware of the danger of undermining or even destroying democracy under a pretext of defense (see Klass and Others v. Germany, §§49-50). Due to this fact, irrespective of the system of surveillance adopted there must exist adequate and effective guarantees against the abuse which may be committed by the public authorities.
125. In order to be compatible with the requirements of Article 8 of the European Convention, the secret surveillance systems must contain certain safeguards established by law and applicable when the activity of the bodies authorized to survey is reviewed. The procedures for the review must observe as much as possible the values of democratic society, especially the rule of law, which is expressly referred to in Preamble to the Convention. The rule of law implies that any interference by the executive authorities with an individual s rights should be subject to an effective control which should be effectively ensured by the judiciary, which offers the best guarantees of independence, impartiality and proper procedure (see
Klass and Others v. Germany, § 55).
126. Moreover, the European Court noted in Iordachi and Others v. Moldova (§34) that in absence of such a judiciary control, the mere existence of legal provisions entailing wiretapping or of other communications represents, for all who might be subjected to it a threat of being surveilled, and thus a violation of art. 8 of the Convention.
127. Protection of the right to privacy implies from the states the fulfillment of certain positive obligations inherent in order to ensure an effective respect for private and family life. That is the state is required to enact appropriate and sufficient legal means aimed to fulfill these positive obligations.
128. According to European Court case law, the phrase "in accordance with the law" not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to person concerned and predictable (see Rotaru v. Romania, 4 May 2000, § 52).
129. In order to satisfy the requirements of Article 8 of European Convention, the wording of the law should be formulated with sufficient precision "to enable the concerned persons to foresee, to a reasonable extent, the consequences which a given action may entail" (see Margareta and Roger Andersson v. Sweden, 25 February 1992, §75).
130. In Vetter v. France of 31 August 2005 the European Court of Human Rights found violation of Article 8 of European Convention because the applicable law providing for wiretapping did not indicate with reasonable clarity the scope and the manner in which the discretion of authorities was exercised in allowing monitoring of private conversations; the applicant therefore did not enjoy the minimum degree of protection (§27).
3.2. Application of Principles in the Present Case
131. The Court notes that, according to Article 12 para. (3) of the challenged law, in order to objectively assess the results of the professional integrity test, the latter shall be recorded on a mandatory basis by audio/video means and the communication means in the tester s possession or used by the tester. The audio/video recording means, the communication equipment and other technical means for undercover acquiring of information are the equipment of the National Anti-corruption Centre and of the Intelligence and Security Service.
132. The law sets out in a general manner the right of testers to use any technical means for undercover acquiring of information within the public agents professional integrity testing.
133. The Court notes that according to Article 9 para. (3) of the Law no. 325 of 23 December 2013, "The methods and means to test and record professional integrity tests shall not represent special investigation activities as provided by Law no.59 of 29March 2012 on special investigation activity".
134. On the other side, the term "dissimulated means" it is not very explicit and it is not clear how the means for undercover acquiring of information differ as compared to the means used by the testers within special investigation activities.
135. Article 9 para. (3) of the Law no. 325 of 23 December 2013 allows application od undercover means and, therefore, interference in the private life of the public agents without judicial control.
136. The court notes that the notion of technical means for undercover acquiring of information as used in the Law submitted for the constitutional review overlaps with the notion audio/video recording means, the communication equipment and other technical means provided in Article 132/2 of the Criminal Procedure Code, means that can be ordered only by the instruction judge (para (1)) or by the prosecutor (para. (2)) for a 30 days term, with a possibility to be
prolonged on reasonable grounds up to 6 months. These measures, despite the fact that are provided for criminal cases, may be employed only in cases when there is a reasonable doubt referring to the preparation and commitment of serious, extremely serious or exceptionally serious crimes
(Article 132/1 of the Criminal Procedure Code).
137. The court holds that the use of such means, including audio/video recording means with a view to obtain data for the integrity testing constitutes, in essence, one of special investigation methods, according to art. 132/2 of the Criminal Procedure Code. Given the fact that in criminal matters referring to the facts with a higher social risk such means can be used only upon the authorization of the instruction judge, it is more impetuous that such intrusions are not justified without judicial authorization as referred to disciplinary offenses which constitute facts which social risk rate lower than that of the crimes.
138. To the extent to which the concepts with which the law operates (technical means for undercover acquiring of information) are not predictably specified, and the circle of information over which control is performed is uncertain, the Court considers that the challenged Law does not provide guarantees allowing effective protection against the risks of abuse, as well as against any illegal access and use of personal data. While special investigation means are defined by the Criminal Procedure Code, the concept of technical means for undercover acquiring of information may also represent similar special means, given the regulatory framework of the law and the definitions it contains, so that carrying out of such supervising activities cannot be permitted unless authorized by a judge.
139. Absence of such authorization is equivalent to insufficiency of procedural safeguards required in order to protect the right to private life, as well as other rights enshrined in article 28 of the Constitution and Article 8 of the European Convention.
140. The challenged law fails to provide clear and precise rules on the time and manner in which professional integrity testers use intrusive means, on the ground of undefined notion of "justified risk" (see §86 supra).
141. Thus the unpredictable nature of this legal provision can be observed both from the point of view of the means for undercover acquiring of information, the type of data accessed and collected, as well as evaluation of the relevance of data collected that might create premises of any discretionary use by NAC or ISS.
142. Moreover, the Court observes that the methods and means to test and record professional integrity tests may be used, according to Article 12 para. (5) of the Law no. 325 of 23 December 2013 during professional integrity testing, a period that is longer than that of the integrity test. However, as it is clear from the legal definition provided by Article 4 of the challenged Law the professional integrity testing period is longer than the period of the integrity test, due to the fact that it consists of the process of planning, initiating, organizing and carrying out professional integrity tests. Therefore, audio/video recording means, the communication equipment and other technical means for undercover aquiring of information might be used for a period that is not provided by the law.
143. Thus, the legal provisions do not establish a time limit for professional integrity testing of public agents.
144. In the same context, the Court observes that under Article 11 of the Law no. 325 of 23 December 2013, professional integrity testing of public agents is coordinated by a person holding management position within the National Anti-corruption Center or the Intelligence and Security Service. The coordinator of professional integrity testing activity, on confidential basis designates for each professional integrity testing activity a professional integrity tester which ensures carrying out of all professional integrity testing activities and is in charge with drafting the professional integrity testing plan and submission of the reports accompanied by the results obtained following testing activities.
145. Consequently, the decision regarding professional integrity testing which further implies the use of means and methods for testing and recording that may constitute serious interferences with the public agents private life - is not authorized by a judge or an authority that offer the largest guarantees of independence and impartiality, as it should be under the rule of law (see Klass and Others v. Germany, para. 55).
146. The Court considers that data that are covered by the provisions of the challenged law are likely to lead to quite definite conclusions regarding the private life of individuals whose data were collected, conclusions that can target the habits of everyday life, places of permanent or temporary residence, daily trips or other travelling, activities performed, social relations of these people and their social environments.
147. The fact that retention of data and their subsequent use under the circumstances when the registered public agent is not informed on this may imprint on the consciousness of persons concerned the feeling that their private life is subject to continuous supervision.
148. The Court holds that following the appointment of an executive body performing activities in the field of information as national authority responsible for integrity testing, there is a serious risk to frustrate the purpose of the Law on professional integrity testing the sense of employing the powers conferred by this Law by the information services with a view to obtain information and data, that might consequently violate constitutional rights to privacy, family and private life. Thus, examining the tasks set forth by the law that has been submitted for constitutional review it is evident the intention of the legislative to provide CNA and ISS with the competence of collecting all data on the professional activities of public officials, whatever their nature is. However, while the CNA and ISS are militarized structures that are hierarchically subordinated to the management of these institutions, meaning under direct military and administrative control, is obvious that such entities do not meet the requirements regarding the guarantees that are necessary in order to respect the fundamental rights to privacy, family and private life.
149. Although Government Decision no. 767 of 19 September 2014 on the implementation of the Law no. 325 of 23 December 2013 states that the processing of personal data concerning public officials and third parties, carried out in violation of legal provisions on the protection of personal data, involve civil, contravention or criminal liability, as the case may be, the Court notes that through primary rules it is necessary to establish a genuine mechanism for the control of personal data that shall be processed and used.
150. The Court emphasizes that such retention and preservation of data clearly represents a limitation of the right to personal data protection and consequently of the constitutionally protected fundamental rights related to intimate, family and private life, privacy of correspondence and freedom of expression. Such limitation may take place only under Article 54 of the Constitution providing for the possibility of restricting the exercise of certain rights or freedoms unless it is provided by the law, and if they are required, as the case may be, in the interests of national security, territorial integrity, economic welfare of the country, public order aiming at preventing mass riots and crimes, protection of the rights, freedoms and dignity of other persons, prevention of disclosing confidential information or the guarantee of the power and impartiality of justice. A limitation measure shall only be ordered if it is necessary in a democratic society, it should be proportional to the situation which has caused it, it has to be applied without any discrimination and without any prejudice to the existence of a right or a freedom.
151. The lack of a precise legal rule which would exactly regulate the manner of storing and use of the data collected, offers possibility for potential abuses by the competent authorities. Moreover, the legal framework regulating such a sensitive area should clear, predictable and absent of confusion, so that any possibility of arbitrariness or abuse of those called to apply the law is avoided at the largest extent possible.
152. Entrusting such persons with the obligation to withhold and store personal data consequently requires explicit regulation of measures that are appropriate, firm and unequivocal, capable of ensuring citizens confidence that their manifestly personal data that been made available are recorded and sored under the rules of confidentiality. In this respect, the law merely lays down the obligation that, following the expiry of the deadlines provided (not exhaustively defined), all audio/video recordings took within the professional integrity test shall be destroyed (Article 18 para. (2) of the challenged law).
153. The Court notes that the challenged law fails to provide a genuine mechanism of control to ensure these institutions with a permanent and an effective verification on the compliance with the legal requirements, so that the cases when ISS or NAC violate the legal provisions referring to the type of data withhold, the term of their storing, their destruction in cases provided by law or the bodies and institutions that are allowed access to this data can be easily reported. Therefore, the legal provisions focus primarily on the due diligence in the area of professional integrity, but relativize the guarantees for the security of data withholding and storage, since the NCA and ISS are not imposed any standards in order to ensure the level of security that can be effectively controlled by the institutions provided by the law. Failure to legally provide a real control mechanism over the activity of personal data holders by an independent authority is equivalent to lack of the guarantees as it is required by the provisions of Article 20 and Article 28 of the Constitution allowing for effective protection of the data withhold against the risks of abuse and any access or illegal use of this data.
154. The challenged law fails to contain clear and precise rules on the content and application of the measure related to withhold and use of data recorded, so that the persons whose data were withhold could benefit from sufficient guarantees that are likely to ensure effective protection against abuse and any illegal access or usage. The law thus fails to provide objective criteria that would limit the number of people permitted access and use of data withheld to the required minimum, that access to the data stored is not subjected, in any case to the condition of prior review by a court or independent administrative entity that would limit this access and the use of these data to the extent required precisely to achieve the goal pursued.
155. The Court considers that the legal guarantees concerning storage and use of data withhold are not sufficient and adequate to blow off the fear that personal rights are violated, so that the expression of these is performed in an acceptable manner.
156. In conclusion, the Court considers that the adopted measures are not of a specific and predictable nature, the interference of the state in the exercise of constitutional rights to intimate, family and private life, although provided by the law, is not expressed in clear, exact and comprehensive wording in order to provide confidence of citizens, the character providing for the extreme necessity in a democratic society is not fully justified and the proportionality of this measure is not ensured by regulating adequate guarantees.
157. Thus, limitation of the exercise of such personal rights in consideration of some collective rights and public interests regarding national security, public order or the prevention of corruption, break the fair balance that should have existed between individual rights and interests, on the one hand, and the interests of the society, on the other hand; the challenged law fails to provide sufficient guarantees which would ensure effective data protection against the risk of abuse, as well as against any illicit access and use of personal data.
158. The challenged law is thus formulated in a general manner, it is imprecise, it fails to contain objective criteria for the initiation of professional integrity testing and admits undercover acquiring of information without judicial control. Therefore, the Court finds an incompatibility with Article 1 para.(3) and Article 28 of the Constitution.
3.1. General Principles
- The Principle of Separation and Collaboration of Powers
167. The principle of separation and collaboration of powers enshrined in Article 6 of the Constitution is a fundamental principle for efficient organization and functioning of state institutions in order to exclude any mutual interference
168. According to the constitutional principle, the legislative, the executive and the judiciary cannot compete among each other, they must exercise their competences within the limits of the Constitution through mutual collaboration with a view to exercise state power.
169. The establishment of the principle of separation of powers aims to create a system of government that would put an end to the abuses of one power over another.
170. In its judgment no. 23 of 9 November 2011 on the interpretation of Article 116 para. (4) of the Constitution, the Court noted that:
„19. The principle of institutional balance which is now called "checks and balances" is at the basis of democracy and implies the balance of powers and their mutual check, so that the state powers have approximately the same weight, that is to be balanced, in order to limit each other and thus to avoid the state power to be used in an abusive manner.
20. This system of checks and balances is the sine qua non requirement of a modern democracy, preventing omnipotence of the legislative, executive or judiciary."
- Independence of the Judiciary
171. Independence of the judiciary is a pre-requisite of the rule of law and the fundamental guarantee of a fair trial [Opinion no. 1(2001) of the Consultative Council of European Judges (CCJE) on the Standards Concerning the Independence of the Judiciary and the Irremovability of Judges]. Judges are „charged with the ultimate decision over life, freedoms, rights, duties and property of citizens" (recital to UN basic principles, echoed in the Beijing declaration and Articles 5 and 6 of the European
Convention). „Their independence is not a prerogative or privilege in their own interests, but in the interests of the rule of law and of those seeking and expecting justice."
172. According to the Opinion no. 1(2001) of the CCJE on the Standards Concerning the Independence of the Judiciary and the Irremovability of Judges, „it is a fundamental tenet of judicial independence that tenure is guaranteed until a mandatory retirement age or the expiry of a fixed term of office: see the UN basic principles, paragraph; (...)".
173. Moreover, the same Opinion provides that „ existence of exceptions to irremovability, particularly those deriving from disciplinary sanctions, leads immediately to consideration of the body and method by which, and basis upon which, judges may be disciplined ...".
3.2. Application of Principles in the Present Case
174. Article 116 para. (1) of the Constitution of the Republic of Moldova provides that „Judges sitting in the courts of law shall be independent, impartial and irremovable under the law". According to Article 116 para. (5), „Sanctioning of the judges shall be carried out according to the law".
175. Article 123 para. (1) of Constitution states that „The Superior
Council of Magistracy shall ensure the appointment, transfer, removal from office, upgrading and imposing of the disciplinary measures on the judges".
176. Disciplinary liability of judges is regulated by the Law no. 178 of 25 July 2014 that provides disciplinary offences, sanctions, competencies and examination proceedings.
177. In light of the findings concerning the guarantees of the right to a fair trial and of the right to respect of private life, taking into account the ambiguities concerning the scope of the law, the Court does not consider it necessary to examine these issues separately in relation to judges.
178. At the same time, additionally to the above mentioned arguments, the Court points out that under the principle of separation of powers and independence of the judiciary, sanctioning or dismissal of a judge from office can only be carried out through self-administration mechanisms of the judiciary. In this regard, the Constitutional Court shares the opinion expressed by the Venice Commission in the amicus curiae Brief.
179. In general, one of the essential components and requirements for the existence of an efficient authority in fighting corruption is the existence of an adequate and stable legal framework that would regulate its competences. There are several aspects of the independence of this authority including political, functional, operational and financial ones. Its freedom in decision-making and freedom on taking appropriate measures are the most important elements, especially for effective and efficient investigation of allegations, in the absence of undue influences or obligations.
180. In this context, the Court notes that NAC lead by a director that is appointed and dismissed at the proposal of the Prime Minister, is a body under the control of the executive and therefore it cannot meet the requirements of independence and impartiality. Thus any use of this institution for the integrity testing of judges represents direct contradiction with Articles 116 para. (1) and Article 123 para. (1) of the Constitution. The same applies, mutatis mutandis, in case of the Intelligence and Security Service, when it performs testing of NAC employees.
181. Therefore, the Court notes, as a principle, that professional integrity testing may be applied to all professional categories of public agents. No professional category is, by its nature, excluded from professional integrity testing.
However, this procedure must respect the guarantees of the right to a fair trial and of the right to respect for private life, as well as those referring to the separation of powers and independence of the judiciary, following the reasons provided in this judgment. In its actual wording, some provisions of Articles 2, 4, 9, 10, 11, 12, 14, 16 examined in this judgment not only infringe upon the fundamental rights to respect for private life and to a fair trial, but annihilate these rights. Moreover, these provisions admit discretionary and uncontrolled intervention of a body under the Executive into the activity of the judiciary, which is inadmissible and contrary to the Constitution.