On 14 September 2016, the Constitutional Court of Moldova delivered its judgment on the exception of unconstitutionality of Articles 55.2 and 55.8 of the Law No. 320 of 27 December 2012 on the activity of police and the policeman status and of items 59.2, 59.5 and 65 of the Disciplinary statute of the policeman, approved by Government Decision No. 502 of 9 July 2013.

Circumstances of the case

The case originated in the exception of unconstitutionality of Articles 55.2 and 55.8 of the Law No. 320 of 27 December 2012 on the activity of police and the policeman status and of items 59.2, 59.5 and 65 of the Disciplinary statute of the policeman, approved by Government Decision No. 502 of 9 July 2013, raised by the lawyer Doina Ioana Străisteanu in the case No.3a-383/16, pending before the Chișinău Court of Appeal.

Pursuant to the challenged provisions, the hearing of the policeman within a workplace investigation and the recording of his claims are mandatory. Also, the application of the sanction does not preclude criminal, administrative or civil liability.

The author claimed, in essence, that the provisions of Articles 55.2 and 55.8 of the Law No. 320 of 27 December 2012 on the activity of police and the policeman status and of items 59.2, 59.5 and 65 of the Disciplinary statute of the policeman, approved by Government Decision No. 502 of 9 July 2013, violate the right against self-incrimination and the right against double jeopardy, and thus are in breach of to Articles 21 and 54.3 of the Constitution.

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

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mr Tudor PANȚÎRU,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN, judges 

Conclusions of the Court 

Hearing the reasoning of the parties and examining the casefiles, the Court held that the right to silence, being an element of the right of the defense, constitutes an inherent requirement of fair trial and is connected with the presumption of innocence. At the same time, according to the caselaw of the European Court „the right to silence is not absolute."

The Court underscored that the guarantees of a fair trial in criminal matters, established by the European Court, are equally applicable in disciplinary proceedings. Additionally, in its caselaw the Court held 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 (Judgment of Constitutional Court No.7 of 16 April 2015).

The Court noted that the workplace investigation for disciplinary misconduct constitutes a stage within disciplinary proceedings. Under the penalty of absolute nullity, no disciplinary sanction shall be applied prior to carrying out a preliminary disciplinary research. The purpose of carrying out the workplace investigation prior to taking the decision to impose a disciplinary penalty correlates with the idea of employee's protection against the dominant position of the employer, in view of limiting any element of arbitrariness and abuse.

The Court held that an essential element of the workplace investigation is the hearing of the employee. During the workplace investigation he is entitled to defend and provide to the committee entitled to carry out the investigation all the evidence and the reasoning he deems necessary.

The Court ascertained that Article 7 of the Convention on Termination of Employment at the Initiative of the Employer of the International Labour Organization No.158 of 22 June 1982 also provides that the employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity.

The Court held that the provisions of Article 55.2 of the Law on the activity of police and the policeman status, that lays down the duty to hear the policeman within disciplinary proceedings, constitutes a duty of the employer which aims to ensure the right of the employee to defend himself, granting him the opportunity to give explanations before the disciplinary body, concerning the facts he is being charged with.

At the same time, the Court found that contrary to provisions contained in Article 55.2 of the Law, the provision of item 59.2 of the Disciplinary statute of the policeman, approved by Government Decision No. 502 of 9 July 2013, provides that it is the duty of the employee to submit written explanations regarding the committed infringement, and in case of a refusal to provide explanations, item 59.3 require the person to justify the refusal in written form.

The Court held that these provisions clearly affect the right to silence of the employee. Therefore, the Court found it necessary to reiterate that the right to silence implies the right of a person against self-incrimination or confession.

In light of the foregoing, the Court found that the provisions contained in the Disciplinary statute of the policeman, approved by Government Decision No. 502 of 9 July 2013, are contrary to the legal provisions, affecting the right of a person against self-incrimination, contrary to the guarantees enshrined in the Constitution and in the European Convention.

Referring to the allegations of the author of the complaint that the challenged provisions according to which „the penalty does not exclude criminal, administrative or civil liability" infringe upon the principle of non bis in idem, the Court held that, in its case law the European Court found that the provisions of Article 4 of Protocol No.7 to the European Convention do not apply to the situation of ideal concurrence of crimes, i.e. when one and the same unlawful act is treated as two distinct crimes, as the text does not prevent the same person from being made subject - for the same act - to both criminal proceedings and to an action of a different character, for instance, to a disciplinary procedure. Such an opinion was also expressed in the Explanatory Report to the Protocol No.7.

The Court noted that both the disciplinary misconduct and the crime are impermissible acts, with antisocial consequences, committed with guilt, but which differ in terms of their subject's degree of social danger and the competency in establishing the offense and guilt. While in criminal law, the form and degree of culpability are relevant to the legal classification of the act, in labour law these represent criteria for determining disciplinary penalties applicable to employees.

Proceeding from the above, the Court held that the provision of Article 55.8 of the Law on the activity of police and the policeman status and item 65 of the Disciplinary statute of the policeman do not affect Article 21 of the Constitution.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court:

- partially admitted the exception of unconstitutionality raised by the lawyer Doina Ioana Străisteanu in the case No.3a-383/16, pending before the Chișinău Court of Appeal;

- declared constitutional the Articles 55.2 and 55.8 of the Law No. 320 of 27 December 2012 on the activity of police and the policeman status and items 59.5 and 65 of the Disciplinary statute of the policeman, approved by Government Decision No. 502 of 9 July 2013;

- declared unconstitutional the items 59.2 and 59.3 of the Disciplinary statute of the policeman, approved by Government Decision No. 502 of 9 July 2013;

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 the Republic of Moldova.