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Legal Provisions Prohibiting Multiple Citizenship for Contract Military Members – Unconstitutional
Constitutional Court of Moldova (CCM) ruled on 31 January 2017 that the ban on holding the citizenship of another State than that of Moldova for contract military members and students of higher education military institutions is unconstitutional.
CCM noted that these limitations are not proportional to the aim of ensuring loyalty for the State, it thus affecting the right to work and to study, which is contrary to Article 16 in conjunction with Articles 35 and 43 of the Constitution. The Court thus underscored that the duty of loyalty of servicemen to the State is ensured by constitutional and legal provisions, and not by the established prohibition.
Thus, in line with Article 56.1 of the Constitution, devotion to the country is sacred, and under para. 2 of this article, “Citizens entrusted with holding of public offices, as well as military personnel, are accountable for the loyal fulfilment of their duties towards the State, and in cases provided by the law shall take the oath as required by the law.”
The Court held that the military oath taken before the Republic of Moldova represents an assumption of responsibility for the respect of military regulations and the law, and violation of the constitutional and legal duty triggers legal liability.
Therefore, the serviceman may be held liable for treason, disclosure of State secrets, surrendering as voluntary hostage, unlawful leave of the battlefield or the refuse to use the weapon.
In its ruling, the Court examined international and national provisions related to this issue, referring to the caselaw of the European Court of Human Rights, which found that by choosing to pursue a military career, members of armed forces accept of their own accord a system of military discipline that implies certain limitations of the rights and freedoms of members of the armed forces. These restrictions, however, are only acceptable in the event a real threat for the operational efficiency of armed forces arises, and assertions on the existence of such a risk shall be “supported by examples.”
In line with Article 17 of the European Convention on Human Rights, Moldova is under the duty to ensure that Moldovan citizens who hold other citizenships enjoy the same rights and duties as other citizens of Moldova.
Also, according to international provisions, Article 25 of the Law on citizenship of Moldova provides for all the Moldovan citizens who hold the citizenship of another State the enjoyment of the same rights and obligations as other citizens of Moldova.
The Court also issued an Address to the Parliament with a view to tackle the legal lacks of the current legislation in this regard.
This judgment of the Court was delivered following a complaint lodged by the Ombudsman Mihail Cotorobai asking for a constitutional review of certain provisions of the Law on the status of servicemen.
The complaint was examined by the Constitutional Court of Moldova in the following composition: Mr Alexandru TĂNASE, President and Mr Aurel BĂIEŞU, Mr Igor DOLEA, Mr Tudor PANȚÎRU, Mr Victor POPA, Mr Veaceslav ZAPOROJAN, judges.
This press-release is also available in its original version – in Romanian language.