The Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Victor PALMER, Mr. Tudor PANTÎRU, Mr. Zadrahimi, judges, with the participation of Mr. Marcel Lupu, Registrar, considering the appeal filed on 26 October 2016, recorded at the same time, examining the admissibility of the referral, taking into account the laws and proceedings, Acting on 18 November 2016 in Council the next decision, a decision: in fact 1. The origin of the case lies the plea of unconstitutionality of article 26 para. (7) of the law on the Constitutional Court, raised by lawyer Gheorghe Ulianovschi in file No. -1557/1A 16, located on the role of the Court of appeal.
2. The plea of unconstitutionality has been lodged with the Constitutional Court on 26 October 2016 by the judge of the Court of appeal, Lagan brinza, pursuant to article 135 paragraph 1. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016, and of the regulation on the procedure for examining complaints lodged with the Constitutional Court.
A. the main dispute Circumstances 3. On February 15, 2016, the lawyer Gheorghe Ulianovschi filed at Court Râșcani, mun. Chişinău, in the interests of the detainee, an application for I.G. revision of judgments of conviction for the Commission of offences covered by article 3. 190 paragraphs 1 and 2. (5) of the penal code. The application for review was based on article. 458 para. (3) paragraph 4) of the criminal procedure code, according to which review may be required if the Constitutional Court has recognized as unconstitutional the provision of the law applied in the case at issue.
4. The request for review has been invoked the judgment of the Constitutional Court No. 12 of 14 may 2015, whereby paragraph 1 of article 287. (1) of the criminal procedure code has been declared unconstitutional. Rule declared unconstitutional provided that the resumption of prosecution after the termination of the criminal proceedings, after the closing of the criminal, or after removing the person as may be ordered by the hierarchically superior prosecutor Ordinance if, subsequently, it was found that there was in fact the cause of the taking of such measures or circumstance that has disappeared was based on the termination of criminal proceedings closing of the criminal, or removing the person underneath.
5. by judgment of the Court of Râșcani. Chişinău on 8 July 2016 application for review was dismissed. The Court has noted that art. 286 paragraph 2. (1) the CPP was applied to resume criminal proceedings by order of the Prime Deputy General Prosecutor of 26 April 2011 up to declaring this article unconstitutional by the Constitutional Court by decision No. 12 of 14 may 2015. The Court also stated that, under art. 26 para. (7) of the law on the Constitutional Court, the Constitutional Court rulings take effect only for the future.
6. The sentence of the Court of Râșcani. Chişinău on 8 July 2016 has been challenged with appeal.
7. On 8 September 2016, lawyer Gheorghe Ulianovschi has called for the lifting of non-constitutionality exception of art. 26 para. (7) of the law on the Constitutional Court.
8. by the conclusion of 10 October 2016, the Court ordered the erection of the main exception and referral to the Constitutional Court for settlement.
B. relevant Legislation 9. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 20Accesul to justice "(1) Any person shall be entitled to effective satisfaction on the part of competent courts against acts which violate the rights, freedoms and legitimate interests.
(2) no law may restrict the access to justice. "


Article 119Folosirea to appeal against court decisions, stakeholders and the competent State bodies may pursue remedies, in accordance with the law. "


Article 140Hotărârile of the Constitutional Court "(1) the laws and other normative acts or some parts thereof become null and void from the moment of adoption of the corresponding decision of the Constitutional Court.
(2) decisions of the Constitutional Court are final and cannot be appealed. "
10. The relevant provisions of the law on the Constitutional Court No. 317-XIII of 13 December 1994 (Official Gazette, 1995, nr. 8, art. 86) are as follows: Article 26Actele of the Constitutional Court [...]
     "(7) the decisions of the Constitutional Court shall produce effect only for the future."
11. The relevant provisions of the code of criminal procedure of the Republic of Moldova nr. 122-XV of 14 March 2003 (reprinted in the Official Gazette, no. 13, 248-251, art. 699) are as follows: Article 458Cazurile of the penal process "review [...]
(3) review may be required where: [...] 4) Constitutional Court recognized as unconstitutional the provision of the law applied in the case at issue.
[…]”
In the author's Arguments exception. unconditional-stituționalitate 12. The author argues that the exception rule art. 26 para. (7) of the law on the Constitutional Court, according to which "the decisions of the Constitutional Court shall produce effect only for the future," violates the right to request the revision of judgments in cases where the rule applied to the dispute was declared unconstitutional.
13. Thus, the author argues that in the absence of retroactive effect of the contested norm contrary to articles 4, 7, 20, 54, 119 and 140 of the Constitution.
B. Assessment Of Court 14. Examining the admissibility of the referral regarding constitutionality exception, the Court notes the following.
15. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws, in particular of the law nr. 317-XIII from 13 December 1994 regarding the Constitutional Court, is the responsibility of the Constitutional Court.
16. the Court finds that the appeal relating to the exception of unconstitutionality, being raised by lawyer Gheorghe Ulianovschi in file No. -1557/1A 16, located on the role of the Court of appeal, is sought by the regulated subject to this law, pursuant to article 135 paragraph 1. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016.

17. the Court reiterates that the prerogative to address the exceptions of unconstitutionality, which has been vested in it by article 135 paragraph 1. (1) (a). g) of the Constitution, requires correlation of laws and the Constitution, taking into account the principle of the supremacy of its provisions and to address the relevance of the contested dispute in the courts.
18. In the present case, the court notice that constitutionality exception object is article 26 para. (7) of the law on the Constitutional Court, according to which: "the decisions of the Constitutional Court shall produce effect only for the future".
19. the Court shall retain that through art. 26 para. (7) of the law on the Constitutional Court was established a general rule concerning the effect of future decisions.
20. At the same time, the court notice that criminal and procedural law-civil procedure law-Constitutional Court judgments assigned to retroactive character, through the possibility of revising judicial decisions irrevocable if the rule applied to the dispute was declared unconstitutional.
21. in Judgement No. 16 of 25 June 2013, the Court held that the penalties the court decisions constitutional jurisdiction cannot prevail where the basis for judgments are made legal provisions that are contrary to fundamental rights and freedoms and by effect is declared unconstitutional.
22. In its judgment, the Court referred to supra note that the principle of stability of legal relations does not involve passing a law through rules unconstitutional. Opportunity to review of a judicial decision handed down in violation of the Constitution constitutes the only way to counter the effects of a law that violates constitutional principles, guaranteeing fundamental rights and freedoms.
23. In the present case, the Court finds that the application for review was based on the judgment of the Constitutional Court No. 12 of 14 may 2015, whereby they were declared unconstitutional the provisions of art. 287 para. (1) of CPC, the provisions in question were applied until declaring them unconstitutional.
24. In the judgment referred to supra, the Court held that the resumption of prosecution may take place only where new facts occur or newly discovered a fundamental flaw in pursuing the foregoing circumstances affect judgment, transformed into art. 287 para. (4) of the CPP. In addition, and in accordance with the European Convention two situations may result in the reopening of a criminal, namely: 1) there are new or newly discovered facts; 2) there is a fundamental flaw.
25. In accordance with those laid down in the said judgment, the court notice that, if the Ordinances of the prosecution are not based on circumstances art. 287 para. (4) of the CPP, they are hit by absolute nullity and not produce legal consequences.
26. Furthermore, the Court finds that the detainee, Defender to resume prosecution, asked the judge, allowed the erection of non-constitutionality exception of art. 287 para. (1) of CPC, and his request was rejected.
27. Thus the court notice that rejection by the Court of constitutionality exception to removal. 287 para. (1) of CPC, which were subsequently declared unconstitutional, and the permanent settlement of the dispute the person was deprived of an effective remedy of the defence of the rights and legitimate interests.
28. In this respect, more so to be made clear that the solution of the Constitutional Court, handed down the decision No. 12 of 14 may 2015, not prevent, but on the contrary to be harnessed through the request for revision of the judgment, where the serious consequences of the infringement continues to occur.
29. In the context of those exposed, the court notice that article 26 para. (7) of the law on the Constitutional Court are not applicable in the case of calls for revision of a judgment having as a basis the existence of a ruling by the Constitutional Court which declared unconstitutional the provision of the law applied in question. Or, in this case to be applied directly to the provisions of paragraph 1 of article 458. (3) paragraph 4) of the code of criminal procedure.
30. Consequently, the Court noted that the exception of non-constitutionality of art. 26 para. (7) of the law on the Constitutional Court cannot be accepted for examination.
For these reasons, pursuant to article 26 of the law on the Constitutional Court, articles 61 para. (3) and 64 of the code of constitutional jurisdiction and the PT 28 lit. d) of the regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court DECIDES: 1. To be declared inadmissible the appeal regarding plea of unconstitutionality of article 26 para. (7) of the law No. 317-XIII from 13 December 1994 regarding the High Constitutional Court, lawyer Gheorghe Ulianovschi in file No. 1A -1557/16, pending at the Court of appeal.
2. this decision is final, cannot be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.