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10.04
2018

The Court delivered a positive opinion on the initiative on revision of the Constitution (Complaint no.35c/2018)

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On 10 April 2018, the Constitutional Court delivered an Opinion on the initiative on revision of Articles 50 and 51 of the Constitution (complaint no.35c/2018).

Circumstances of the case

The case originated in a complaint lodged with the Constitutional Court on 26 March 2018 by a group of Members of Parliament.

The complaint was examined by the Constitutional Court in the following composition:

Mr. Mihai POALELUNGI, President,

Mr. Aurel BĂIEȘU,

Mr. Igor DOLEA,

Mr. Victor POPA,

Mr. Veaceslav ZAPOROJAN, judges.

Conclusions of the Court

The Court noted that the disability of persons is considered a problem of the entire society, which strengthens the sense of responsibility of the community towards creating a friendly physical environment and attitudes for them.

At the international level, the protection and the promotion of the rights of persons with disabilities is governed by the UN Convention on the Rights of Persons with Disabilities. The objective of this Convention is to promote, to protect and to ensure a full and equal enjoyment of fundamental human rights and freedoms by all persons with disabilities, as well as to promote respect for their inherent dignity.

According to Article 4 of the Constitution, constitutional provisions on human rights and freedoms are interpreted and applied in accordance with the Universal Declaration of Human Rights, with the conventions and other treaties to which the Republic of Moldova is a party.

By ratifying the Convention on the Rights of Persons with Disabilities, the Republic of Moldova has committed to enforce its provisions and to adjust national legislation and practices to the Convention, and has undertaken to promote and to protect the legitimate rights and interests of persons with disabilities at the domestic level. The Convention establishes a new paradigm of disability, marking the transition from the medical model to the social one, which is based on inclusion.

Thus, in its case-law, the Court has pointed out that, in light of new approaches to the international instruments, legal mechanisms designed to ensure the protection of the interests of incapacitated persons must be sufficiently permissive for the adoption of optimal legal solutions for the different degrees of incapacity and on a case by case basis (HCC No. 27 of 13th November 2014, § 82).

The Court also noted that, at the domestic level, Article 51 of the Constitution provides that persons with disabilities must benefit from special protection from the entire society, and the State must provide them with normal conditions of treatment, rehabilitation, education, training and social integration.

The Court held that the amendments proposed by the draft law on the amendment of Articles 50 and 51 of the Constitution, i.e. the inclusion of the concept of "persons with disabilities", are intended to remove the pejorative meaning of the expression "handicapped persons".

The Court had not noticed any inconsistence with the Constitution or any legal inaccuracy. The Court also noted that the draft amendment of the Constitution respects the limits imposed by Article 142 (2) of the Constitution; it does not imply the suppression of citizens' fundamental rights and freedoms or of their guarantees.

Opinion of the Court

Stemming from the above stated arguments, the Constitutional Court found that:

- the initiative advanced by a group of Members of Parliament is submitted by an authorized subject and, in this respect, complies with the provisions of Article 141 (1) b) of the Constitution.

- the draft amending the Constitution does not violate the limits of the review imposed by Article 142 (2) of the Constitution and may be examined by the Parliament;

- the draft amending the Constitution of the Republic of Moldova can be adopted following at least 6 months after the date of submission of the initiative to amend the Constitution.

The opinion of the Court is final, cannot be appealed, shall enter into force on the date of its deliverance, and shall be published in the Official Gazette of the Republic of Moldova.

This is an English language courtesy translation of the original press-release in Romanian language.

 
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