Decision of the
No. 35 of 12.21.1995
After having examined the notification, the arguments of the parties delivered during the open session, as well as the compliance of the contested provisions with the provisions of the Constitution,
In his notification, Mr. V. Nedelciuc, a deputy in the Parliament of the
Therefore, the notification observes,
the provisions of Article 1.4 of the aforementioned Law contradict Articles 1
and 2 of the Constitution of the
After examining the complete text of
organic Law no. 344-XIII of December 23, 1994, as well as the provisions of the
Constitution, the Constitutional Court rejects the interpretation of Article 1.4
provided in the notification, according to which the right to
self-determination granted to the Gagauz minority
diminishes the substance and the extent of national sovereignty. First, this
right is granted through an organic law not to the Gagauz
minority, but to the population of Gagauzia, which is
inhabited by members of several other nationalities (Moldovans,
Russians, Ukrainians, Bulgarians). Secondly, the
construal of the article alleged to be unconstitutional must take into consideration
the provisions of other articles of Law no. 344-XIII of
Article 1.1 of said Law provides that Gagauzia, as an autonomous territorial unit, is an integral part of the Republic of Moldova; Gagauzia is administered under the Constitution of the Republic of Moldova and the laws passed by the Popular Assembly (Halc Toplusu) of Gagauzia, which must not contravene the provisions of the Constitution and the laws of the Republic (Article 2); the soil, subsoil, waters, the fauna and the flora, other natural resources, as well as movable and immovable assets on the territory of Gagauzia are the property of the people of the Republic of Moldova and, at the same time, make up the economic basis of Gagauzia (Article 6). The construal of the provisions of Article 1.4 of Law no. 344-XIII of December 23, 1994, corroborated with the aforementioned provisions of the same Law, naturally leads to the conclusion that said provisions do not disagree with the provisions of Articles 1 through 3 and 127 of the Constitution of the Republic of Moldova concerning the sovereignty and the inalienable nature of the territory and property of the Republic of Moldova.
It is also worth noting that the provisions
of Article 1.4 are applicable only in the event the state of
The argument in the notification pointing to the fact that the constitutions of other unitary, democratic states do not grant to autonomous regions a right to external self-determination is also indefensible. Indeed, the basic laws of other states do not provide for such rights, but the circumstances themselves are different in those states.
Article 111.1 of the Constitution
stipulates that a special autonomy status may be granted to localities left of
Considering all of the above, the
It is worth noting that Article 1 of the International Covenant on Civil and Political Rights adopted by the UN General Assembly on December 16, 1966 and ratified by the Republic of Moldova on July 28, 1990, provides that all peoples have the right freely dispose of their natural wealth and resources. Therefore granting the population of Gagauzia, which is an integral part of the Republic of Moldova, a right to external self-determination through an organic law does not disagree with international law either.
of the above and in accordance with Art. 26 of the Law on the
THE CONSTITUTIONAL COURT RESOLVES AS FOLLOWS:
1. The provisions of Article 1.4 of
Law no. 344-XIII of
2. This decision shall be
communicated to the President of the
3. This decision is final and shall
be published in the Official Gazette of the
Separate opinion of
Constitutional Court Judge Gheorghe Susarenco concerning
the constitutionality of Article 1.4 of Law no. 344-XIII of
In examining the case, the Constitutional Court should have ruled whether paragraph (4) of Article 1 of the Law on the special legal status of Gagauzia (Gagauz-Yeri), reading “In the event of a change in the status of the Republic of Moldova as an independent state, the people of Gagauzia shall have a right to external self-determination”, disagrees with the provisions of the Constitution, which stipulates that “the Republic of Moldova is a sovereign and independent, unitary and indivisible state.”
In examining the case, the following provisions of the Constitution should be considered: paragraph (1) of Article 1, stipulating that the Republic of Moldova is a sovereign and independent, unitary and indivisible state; Article 2, providing that national paragraph (1) of Article 3, providing that the territory of the Republic of Moldova is inalienable; paragraph (1) of Article 8, in accordance with which the Republic of Moldova shall respect the United Nations Charter and the treaties to which it is a party; and paragraph (1) of Article 10, providing that the state is founded upon the unity of the people of the Republic of Moldova, and that the Republic is the common and indivisible homeland of all its citizens.
The notification correctly points out that changes in the status of the country, and therefore the complete or partial surrender of state sovereignty, including sovereignty over the entire territory or a part thereof, are exclusively constitutional matters. Yet paragraph (4) of Article 1 of the Law on the special legal status of Gagauzia (Gagauz-Yeri) diminishes the substance and the extent of national sovereignty, which is exercised by the people of each state at all moments and throughout the state’s entire territory.
A comparative analysis of the text
of the aforesaid Law and of the provisions of the Constitution concerning the
notion of the “people of the
The people – as a higher-level human community distinct from other collectivities – is not an exclusively ethnic or biological phenomenon. It is a complex reality and, equally, the product of a complicated historical process, grounded on a community of shared ethnic origin, language, culture, religion, mental life, lifestyle, traditions and ideals, and most of all on a common historical past and on the desire of individuals who inhabit a certain territory to live together.
Article 10 of the Constitution explicitly
acknowledges these facts: the foundation of the state is the unity of the
people of the
The Moldovan state recognizes and guarantees to persons of different nationalities the right to identity. In the spirit of genuine democracy and of an unique, irreversible form of government, Article 10.2 of the Constitution stipulates that the state acknowledges and guarantees the right of every citizen to preserve, develop and express their ethnic, cultural, linguistic and religious identity.
This right, recognized by the state and guaranteed under the Constitution, should not degenerate into the creation of privileges. It is therefore necessary that protection measures taken by the state to guarantee the preservation, development and expression of the identity of individuals belonging to ethnic groups different from the majority comply with the principles of nondiscrimination and equality with the other citizens of the state.
The mention in the Preamble of the Law on the special legal status of Gagauzia (Gagauz-Yeri) of the notion of “Gagauz people”, which is later expanded in Article 1.4 of the Law into the “people of Gagauzia”, and who enjoys a right to external self-administration in the event of a change in the status of the Republic of Moldova, harms, in my view, the sovereignty of the unitary Moldovan state and is unconstitutional.
A further argument in favor of
declaring the provisions of Article 1.4 of said Law unconstitutional is the
fact that the provision “in the event of a change in the status of the
Paragraph (1) of Article 1 of the Constitution stipulates, in establishing the structure of the Moldovan state, that the latter is “unitary and indivisible”. It is unitary in the sense that, being organized on the basis of the principle of unity, it has a sole centre of impulses, an unique collection of institutions with powers of public and judicial decision; in other words, there is only one legislative body, only one executive and only one judicial authority. It is indivisible in the sense that it cannot be segmented, it cannot be the object of any division, whether total or partial.
These principles are not a part of the battery of propaganda rhetoric, which is worse than the actual lack of principles. These political and legal dimensions are detailed and brought together into a system of constitutional guarantees which ensures their operational power: (a) establishing the equality of citizens without any discrimination before the law and the public authorities (Article 16.2); (b) setting forth the principle of the decentralization of public services (Article 109) in public administration in the territorial-administrative units; (c) acknowledging the right to cultivate the mother tongue and use it before criminal prosecution authorities and courts (Article 118.2); (d) guaranteeing the right to association, including association in political parties, without restrictions based on ethnic origin (Article 41); (e) establishing the fundamental right to freedom of conscience and the autonomy of religious cults from the state (Article 31); establishing an obligation to interpret and enforce the constitutional provisions concerning the rights and liberties of citizens in agreement with the Universal Declaration of Human Rights, with agreements endorsed by the Republic, as well as stipulating the primacy of international law over domestic law in the event of incompatibilities between human rights treaties and covenants to which Moldova is a party and domestic law.
Article III of the Constitution,
which stipulates that “special forms and conditions of autonomy under special
statutes adopted through organic laws may be granted to localities left of the
Sovereignty is not a magic word. It expresses the state’s right to decide. It cannot be a pretext for the reign of arbitrariness, voluntarism, arrogance or self-comforting.
The Constitutional Court’s references to the International Covenant on Civil and Political Rights adopted by the UN General Assembly on December 16, 1966 is insufficient to show that granting the people of Gagauzia the right to external self-determination does not disagree with international norms since, as noted, the Constitution acknowledges the unity of the people of the Republic of Moldova, which cannot be divided in several peoples, including “the people of Gagauzia”.
The Covenant, alongside other international documents, has to be corroborated with the states’ duty to defend human rights. The right to self-determination is considered an individual right. Strict legal logic mandates that every collective right or liberty be interpreted as an individual right or liberty which can only be exercised in association.
In view of the above, I believe that the notification of Mr. Vasile Nedelciuc, a deputy in the Parliament, is well grounded and that the provisions of Article 1.4 of the Law on the special legal status of Gagauzia (Gagauz-Yeri) of December 23, 1994 no. 344-XIII are unconstitutional because they disagree with Article 1.1, Article 2, Article 3.1, Article 8 and Article 10.1 of the Constitution of the Republic of Moldova.