The Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Mr. Victor PALMER, Mr. Zadrahimi, judges, with the participation of Mrs. Ludmila Chihai, Registrar, having regard to the appeal, filed on 16 March 2017 and recorded at the same time, examining the admissibility of the referral, taking into account the laws and proceedings, Acting on 31 March 2017 in the Council Chamber the next decision, a decision: in fact 1. The origin of the case lies the plea of unconstitutionality of the provisions of article 11(2). (3) of law No. 139 of 2 July 2010 concerning copyright and related rights, raised by Aljonathan, lawyer in file No. 2a -3303/16, pending at the Court of appeal.
2. The plea of unconstitutionality has been lodged with the Constitutional Court on 16 March 2017 by the Panel of judges (Michael Lara, Anatolie lying, Liudmila Popova) of the Chisinau Court of appeal, 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, as well as the regulation on the procedure for the examination of complaints lodged with the Constitutional Court.
A. the main dispute Circumstances 3. On 13 June 2016, Court has given a judgment which rejected an application for a summons to court filed against "E.T. Amazon.com. Inc. ", in which the complainant has requested a finding of breach of copyright and receipt of compensation.
4. Subsequently, the judgment of the Court of 13 June 2016, has been challenged by E.T. to the Court of appeal.
5. On 15 February 2017, in the meeting of the Court, counsel for the Aljonathan has called for the lifting of non-constitutionality exception of article 11(2). (3) of law No. 139 of 2 July 2010 concerning copyright and related rights.
6. By the conclusion of the Court of appeal of 15 February 2017 Chișinău was willing to suspend the process of referral to the Constitutional Court and the remission order.
B. relevant Legislation 7. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are the following: ' article 4 human rights and freedoms "(1) constitutional provisions for human rights and freedoms shall be interpreted and applied in accordance with the Universal Declaration of human rights, and with other conventions and treaties endorsed by the Republic of Moldova is a party.
(2) If there are inconsistencies between covenants and treaties regarding fundamental human rights to which Moldova is a party and its internal laws, international regulations have priority. "


Article 8Respectarea of international law and international treaties "(1) the Republic of Moldova pledges to respect the Charter of the United Nations and the treaties to which it is a party, to base its relations with other States the unanimously recognized principles and norms of international law.
(2) the entry into force of an international treaty containing provisions contrary to the Constitution shall be preceded by a review of it. "


Article fundamental property 9Principiile "(1) the property is public and private. It consists of material and intellectual goods.
(2) no property may be used to the detriment of the rights, freedoms and dignity.
[...] "


Article 46Dreptul to private property and its protection "(1) the right to private property, as well as loans and advances to the State are guaranteed.
(2) no one may be expropriated for reasons dictated by public necessity, as established by law and in advance.
[...] "
8. The relevant provisions of law No. 139 of 2 July 2010 concerning copyright and related rights (Official Gazette, 2010, no. 191-193, 630) are as follows: property 11Drepturile exclusive "(1) the author or other holder of copyright has the exclusive right to perform, allow or prohibit the capitalization of the work, including by: a) the reproduction of the work;
(b) distribution of the original or of) copies of the work;
c) renting copies of the work, except in the case of works of architecture and of applied art;
d) importation of copies of the work for distribution, including copies made with the consent of the author or other holder of copyright;
It's a public demonstration of the work);
f) interpretation of the work to the public;
g) communication to the public of the work through the airwaves, including satellite (tv broadcaster), or cable;
h) simultaneous broadcasts and without changes, through cable, MMDS or work transmitted via airwaves or cable;
I) making available interactive scheme of the work;
j) translation of the work;
k) transformation, adaptation, arrangement or any other modification of the work, except when performing the actions listed under (a). a)-k) does not fit into the form of expression of the work and for which penalties cannot be established.
(2) the author or other holder of exclusive economic rights of the author shall be entitled to an equitable remuneration. The amount and manner of payment of remuneration to the author for each case and method of use of the work shall be determined in the contract or in the contracts which collective management organizations economic rights they have concluded with the users.
(3) the right of distribution as referred to in paragraph 1. (1) (a). b) runs with the first sale or first other transfer of ownership of copies of the work's original times in Moldova.
[...] "
In the author's Arguments exception. constitutionality 9. In the non-constitutionality exception, reasoning the author argues that the contested provisions, which establish that the right of the author of the original work is exhausted with the first sale or first other transfer of ownership of copies of the work's original times for Moldova without having included the phrase "with the authorization of the author" contrary to articles 4, 8, 9, and 46 of the Constitution and article 6 para. (2) O.M.P.I. Agreement concerning copyright.

10. The author claims that the exception property consists of material and intellectual goods, so the right author works is considered a property right. Therefore, the author claims that, in case of exhaustion of the right of distribution after the first sale or other transfer of ownership of the operation of the original or any copy of Opera without the authorization of the author, the right to property is violated.
B. Assessment Of The Court 11. Examining the admissibility of the referral regarding constitutionality exception, the Court notes the following.
12. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution) the constitutionality of laws, in particular of the law nr. 139 of 2 July 2010 concerning copyright and related rights, the competence of the Constitutional Court.
13. the Court finds that the plea of unconstitutionality, being raised by her lawyer Benedict Baltag, in file No. 2a -3303/16, pending the appellate court of Chișinău, 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.
14. 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 contested norms 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.
15. In the present case, the Court remember that constitutionality exception object is article 11(2). (3) of law No. 139 of 2 July 2010 concerning copyright and related rights, which provides: "(3) the right of distribution as referred to in paragraph 1. (1) (a). b) runs with the first sale or first other transfer of ownership of copies of the work's original times in Moldova. "
16. the Court notes that the author claims that the exception provisions challenged in the absence of the phrase "with the authorization of the author" contrary to constitutional provisions of articles 4, 8, 9, and 46.
17. the Court noted that, in this question, critique of unconstitutionality lodged do not show a real contrarietate ratio between legal norm and the fundamental texts invoked contested, but rather highlights a legislative lacuna, which, in the author's interpretation of the exception, has consequences detrimental to the fundamental right to property.
18. Thus, with regard to the author's patrimonial right over the work, the Court finds that the disputed rule is to be applied and interpreted in conjunction with article 11 para. (1) of law No. 139 of 2 July 2010 concerning copyright and related rights, which establishes that the author or other holder of copyright has the exclusive right to perform, allow or prohibit the valorization of work.
19. Therefore, in the context of the rule invoked, any use of the work as well as reproduction, distribution of the original or copies of a work, or demonstration of the public's interpretation of the work, etc., shall not take place without being authorized by the author of the work.
20. At the same time, with reference to the allegation of the exception of the copyright O.M.P.I. of 20 December 1996, ratified by the Republic of Moldova by the decision of Parliament no. 1452-XIII of 28 January 1998, the Court mentioned in article 2 (2). (1) of law No. 139 of 2 July 2010 concerning copyright and related rights, which lays down that ' where an international treaty to which the Republic of Moldova is a party establishes rules other than those provided for in this law, the rules of the international treaty shall be applied ".
21. the Court finds that the author's allegations relating to the exception sintagmа "with the authorization of the author", as a condition of the exhaustion of the right of distribution, have the character of proposals de lege ferenda. In this regard, the wording of the exceptions as grounds of arguments related to the modification of the legal text can not be a blasted real exception of unconstitutionality. In exercising its role as guarantor of the Constitution, the Constitutional Court cannot be converted into positive legislator without violating constitutional provisions of such article 60 paragraph 1. (1), under which Parliament is the sole authority of the laws of the State.
22. In conclusion, the Court referred to note that the plea of unconstitutionality which this case is unfounded and 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 item 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 the provisions of article 11(2). (3) of law No. 139 of 2 July 2010 concerning copyright and related rights, raised by Aljonathan, lawyer in file No. 2a -3303/16, 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.

The PRESIDENT of the CONSTITUTIONAL COURT Alexandru Tanase