CCM verified the constitutionality of the provisions on access to State secrets

On 14 December 2017, the Constitutional Court delivered its judgment on the exception of unconstitutionality of certain provisions of Law no.245-XVI of 27 November 2008 on State secrets, Law no.320 of 27 December 2012 on police activity and the policeman statute and Regulation on securing secrecy within public authorities and other legal entities, approved by Government Decision no.1176 of 22 December 2010 (Complaint no.98g/2017).

Circumstances of the case

The case originated in the exception of unconstitutionality raised by lawyer Igor Hlopeţchi in the case-file no.3-485/17, pending before the Chişinău Court, based in headquarters, on the review of constitutionality of certain provisions referring to the termination of the service relationship in connection to the refusal to grant the right to access State secrets.

The author of the complaint argued that the challenged provisions are contrary to Articles 4, 6, 8, 15, 16, 20, 21, 23, 26, 28, 34, 39.2, 43 and 54 of the Constitution.

The Constitutional Court ruled on the complaint in the following composition:

Mr Tudor PANŢÎRU, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mrs Victoria IFTODI,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN, justices

Conclusions of the Court

Hearing the reasoning of the parties and examining the casefiles, the Court held that under Article 43 of the Constitution, every person shall enjoy the right to work, to freely choose his/her profession and workplace.

In its case-law, the Court noted that the right to work shall be exercised under the law, and the failure to comply with legal provisions results in the impossibility to perform a type of activity or exercise certain positions.

In the present case, the Court found that, pursuant to the provisions of Article 26.5 of the Law on State secrets, the appointment or employment of a person in a position that involves working with information on State secrets or access to State secrets, is not allowed without the decision of the Security and Intelligence Service, the only specialized body in the field of State security.

At the same time, Article 27.5 of the same law provides that in case a person is not granted the right of access to State secrets, he/she is to be transferred to another job or to another position, which has nothing to do with the information on State secrets, and in case of impossibility of transfer, he/she shall be fired.

The Court ascertained that Article 25.1 of the Law on State secrets provides exhaustively for cases in which the Security and Intelligence Service may refuse the person in granting him/her the right of access to State secrets.

The Court held that the restriction of the right to accede to a position, following the refusal of the Security and Intelligence Service to grant the right of access to State secrets, is applied in order to safeguard the "other right", in particular, to protect national security. Therefore, this purpose corresponds to the legitimate aim referred to in the second paragraph of Article 54 of the Constitution.

The Court noted that the text "presents danger to the security of the Republic of Moldova" is contained in several legislative acts and is defined in Article 1 of the Law no. 618-XIII of 31 October 1995 on State security.

In the particular context of national security measures, the European Court of Human Rights itself stated that the requirement of predictability could not be the same as in many other areas, since the notion of "national security" cannot be the subject of an exhaustive definition, and may have a broad meaning, with a great margin of appreciation left to the executive power. However, it cannot exceed the limits of the meaning of the term itself.

The Court noted that the provisions of the Constitution do not forbid the termination of employment, provided that it is accompanied by guarantees and the principle of proportionality is being respected. This measure, by itself, does not contradict the right to work, due to its nature and specificity, since the legislator considers it necessary, due to certain reasoning.

Thus, the Court underlined that the dismissal of a person in the case of the SIS refusal to grant the right of access to State secrets, on the basis of legal grounds, operates only if it is impossible to transfer him/her to another job or to another position.

Similarly, the Court noted that, under Article 25.2 of the Law on State secrets, the decision on the refusal to grant the right of access to State secrets, adopted by the head of the public authority, may be challenged in the hierarchical superior body or in a court of law.

The Court underlined that while the assessment of the risk of access to State secrets lies with the Security and Intelligence Service, however, the court of law will have full jurisdiction to establish and examine the substantive grounds on which the refusal was based. The jurisdiction of the court of law must include the possibility of rejecting the arguments of the authorities relating to the presence in a person's actions of a threat to the security of the State in case where it considers that such assessments are arbitrary or unfounded. This view is shared by the European Court of Human Rights in its case-law (see case of Miryana Petrova v. Bulgaria).

In view of the above, the Court held that the challenged legal provisions did not affect the provisions of Article 43 combined with Articles 23 and 54 of the Constitution. However, the establishment of criteria for the exercise of certain activities cannot be a priori regarded as an infringement upon the constitutional right to work.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court rejected the complaint and declared constitutional:

- Articles 25.1.c, 26.4 and 27.5 of Law no.245-XVI of 27 November 2008 on State Secrets;

- Article 47.1.s of Law no.320 of 27 December 2012 on the activity of police and the policeman status [repealed by Law no.94 of 2 June 2017 amending and supplementing certain legislative acts];

- item 109 of the Regulation on securing secrecy within public authorities and other legal entities, approved by Government Decision no.1176 of 22 December 2010.

The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Journal of Moldova.

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