The Interpretation Of Article 135 Para. (1) A) And G) Of The Constitution (Exception Of Unconstitutionality) (Notification No. 55B / 2015)

Original Language Title: pentru interpretarea articolului 135 alin. (1) lit.a) şi g) din Constituţia Republicii Moldova (excepția de neconstituționalitate) (Sesizarea nr. 55b/2015)

Read the untranslated law here: http://lex.justice.md/index.php?action=view&view=doc&lang=1&id=363662

the interpretation of Article 135 para. (1)
a) and g) of the Constitution
(exception of unconstitutionality)
(Notification no. 55b / 2015)


Posted: 11/03/2016
in the Official Gazette

Nr. 55-58
Article No. 9
Effective Date: 02/09/2016

On behalf of the Republic
Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA,
Mr. Victor POPA, Judges,
with Ms Ludmila Chihai, Registrar,
Considering the complaint filed on December 9, 2015
and registered on the same date
examining the notification referred to in plenary
given acts and on file
deliberated in plenary closed
Delivers the following judgment: PROCEDURE

1. The case originated notification is submitted to the Constitutional Court on 9 December 2015 under Article 135 para. (1) b) of the Constitution, 25 lit. d) of the Law on the Constitutional Court and 38 para. (1) d) of the Code of Constitutional by the Supreme Court for interpretation of Article 135 para. (1) g) of the Constitution.
2. Author of the notification requested the Constitutional Court that the interpretation of Article 135 para. (1) g) of the Constitution to explain:
"1) The Supreme Court has the right to refuse courts notifying the Constitutional Court on the plea of ​​unconstitutionality raised by them in the process, and taking into account the editorial art. 135 par. (1) g) of the Constitution?
2) What is the role of the Supreme Court in the referral to the Constitutional Court, by reference to the law courts of all levels to raise the exception of unconstitutionality?
3) courts are entitled to refuse the parties raise the objection of unconstitutionality? "
March. By the Constitutional Court decision of December 15, 2015 notification was admissible, without prejudging the merits.
4. In examining the notification, the Constitutional Court sought the views of Parliament, the President of Moldova, Government, Council of Magistrates, Judges Association of the Bar of the Republic of Moldova and Moldova.

Relevant legislation in May. The relevant provisions of the Constitution (OJ 1994, no. 1) are:
Article 1 Moldova State


"[...]
(3) Republic of Moldova is a democratic law, where human dignity, rights and freedoms, free development of human personality, justice and political pluralism represent supreme values ​​and are guaranteed. "
Article 20Accesul to justice


"(1) Everyone has the right to obtain effective protection from competent courts against acts that violate the rights, freedoms and interests.
(2) No law may restrict access to justice. "
Article 115Instanţele court


"(1) Justice shall be administered by the Supreme Court, the Courts of Appeal and judges. [...] "
Article 116Statutul judges


(1) Court judges are independent, impartial and irremovable under the law.
Article 134 Statute


"(1) The Constitutional Court is the sole body of constitutional jurisdiction in Moldova.
(2) The Constitutional Court is independent of any other public authority and obeys only the Constitution.
(3) The Constitutional Court guarantees the supremacy of the Constitution provides for the principle of separation of state power into legislative, executive and judicial power and ensures accountability to the citizen and the state of the citizen to the state. "
Article 135 Powers


"(1) The Constitutional Court:
a) shall, upon appeal, the constitutionality of laws and decisions of Parliament, Presidential decrees, decisions and orders of the Government and the international treaties to which Moldova is party ;
B) interpret the Constitution;
[...]
G) solve the pleas of unconstitutionality of legal acts, referred by the Supreme Court;
[...].
(2) The Constitutional Court operates initiative of subjects provided by the Law on the Constitutional Court. "
Article 140Hotărârile Constitutional Court



"(1) Laws and other regulations or parts thereof become null since the adoption of the corresponding decision of the Constitutional Court.
(2) Decisions of the Constitutional Court are final and can not be appealed. "
June. The relevant provisions of Law No. 317-XIII of 13 December 1994 on the Constitutional Court (Official Gazette 1995, no. 8, art. 86) are:

Article 4Atribuţiile [Constitutional Court]

"(1) The Constitutional Court:
a) exert upon appeal, the constitutionality of laws, regulations and decisions of the Parliament, Presidential decrees, decisions and orders of the Government and the international treaties to which Moldova is party ;
B) interpret the Constitution;
[...]
G) resolves exceptions of unconstitutionality of legal acts, referred by the Supreme Court;
[...]
(2) The powers of the Constitutional Court is provided by the Constitution and can not be contested by any public authority. "
July. The relevant provisions of the Code of Constitutional nr.502-XIII of 16 June 1995 (OJ 1995, no. 53-54, art. 597) are:
Article 2Autoritatea constitutional jurisdiction


"(1) sole authority of constitutional jurisdiction in Moldova is the Constitutional Court.
(2) The Constitutional Court guarantees the supremacy of the Constitution provides for the principle of separation of state power into legislative, executive and judicial power, ensures accountability to the citizen and the state of the citizen to the state. "

Article 4Competenţa in the Constitutional Court

"(1) In exercising constitutional jurisdiction, the Constitutional Court:
a) shall, upon appeal, the constitutionality of laws and decisions of Parliament, Presidential decrees, judgments and orders of the Government and the international treaties to which the Republic Moldova;
B) interpret the Constitution;
[...]
G) resolves exceptions of unconstitutionality of legal acts, referred by the Supreme Court;
[...]
(2) subject to control only the constitutionality of normative acts adopted after the entry into force of the Constitution of the Republic of Moldova -
August 27, 1994. (3) The Constitutional Court shall examine exclusively legal matters. "| || Article 6Limitele competence


"(1) The Constitutional Court resolves only the issues within its competence. If issues arise during the examination of the competence of other organs, the Court resolves these materials or communicate that parties and interested bodies, giving explanations.
(2) The Constitutional Court itself determine the limits of competence.
(3) controlling the constitutionality of the challenged act, the Constitutional Court may issue a decision in respect of other normative acts whose constitutionality is entirely or partially constitutionality of the contested act. "
Article 7Prezumţia constitutionality of legislation


"All legislation and any international treaty to which Moldova is a party; is considered constitutional until its unconstitutionality shall be proved in the constitutional jurisdiction, securing all the guarantees provided by this Code. "
August. The relevant provisions of the Universal Declaration of Human Rights (adopted on 10 December 1948 in New York, to which Moldova joined by Parliament Decision No.217-XII of 28 July 1990) are:
Article 10


"Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations, or on the merits of any criminal charge against him."
September. The relevant provisions of the European Convention on Human Rights and Fundamental Freedoms, as amended by the Additional Protocols (signed at Rome on 4 November 1950 and ratified by the Parliament of Moldova nr.1298-XIII of 24 July 1997) are:

Article 6Dreptul to a fair trial


"1. Everyone has the right to a fair trial, publicly and within a reasonable period of his case by an independent and impartial tribunal established by law and the determination of rights and obligations of civil nature or on the merits of any criminal charge against him. Judgment shall be pronounced publicly but the courtroom may be prohibited to the press and the public throughout the process or a part thereof in the interests of morality, public order or national security in a democratic society, where the interests of juveniles or the protection of private life of the parties so require, or to the extent strictly required by the court when, in special circumstances where publicity would prejudice the interests of justice. [...] "THE LAW

10. From the content of the notification, the Court observes that it is essentially the role of the Supreme Court and courts in the process of referral to the Constitutional Court to resolve exceptional cases of unconstitutionality of the legislation.
11. In this regard, the Court notes that the notification relates to a number of factors and constitutional principles interrelated, and supremacy of the Constitution and ensuring the right to a fair trial.
A.
ADMISSIBILITY 12. In accordance with its decision of 15 December 2015 (see § 3 above), the Court held that under Article 135 para. (1) b) of the Constitution, Article 4 para. (1) b) of the Law on Constitutional Court and Article 4 para. (1) b) of the Code of constitutional complaints concerning interpretation of the Constitution the competence of the Constitutional Court.
13. Articles 25 letter d) of the Law on the Constitutional Court and 38 para. (1) d) of the Code of Constitutional Supreme Court granted the right to petition the Constitutional Court.
14. The Court notes that the power conferred upon it by that Article 135 para. (1) b) of the Constitution requires establishing the meaning of authentic and full of constitutional norms, which can be achieved by the literal or functional, as far as can be inferred from the Constitution, given the generic nature of rule and complex situations in which the standard must be applied and so on
15. The Court notes that the issues tackled in the notification relates to: 1) the relationship between courts and litigants to raise objection and 2) subjects the right to raise objection of unconstitutionality and to notify the Constitutional Court.
16. The Court notes that Article 135 para. (1) g) of the Constitution were previously interpreted by the Constitutional Court Decision no. 15 of 6 May 1997. In making this interpretation the Court was asked to explain the meaning of "exception of unconstitutionality" and "legal acts" in Article 135 para. (1) g) of the Constitution.
17. By that reasoning, the Court explained the phrase "legal acts" in Article 135 para. (1) g) in relation to the letter a) of the same article, that the objection of unconstitutionality to be high on normative acts listed in Article 135 para. (1) a) of the Constitution.
18. Also with reference to the concept of "exception of unconstitutionality", the Court held that "the constitutionality of a law, a rule of law in another bill, to be reported Parties may rely only if a dispute pending, so always by way of exception and never through action ".
19. With respect to the issues addressed in this case, the Court finds that although the judgment, by reiterating summary of the constitutional norm, it was established that the Constitutional Court is brought before the Supreme Court the exception of unconstitutionality, the Court was not required to rule all courts of the right to refer the constitutional court. The Court did not examine the relationship between courts and litigants to raise objection.

20. The Court also notes that Decision No. 15, which were interpreted art. 135 par. (1) g) was delivered on 6 May 1997 until the ratification by Moldova of the Convention for the Protection of Human Rights and Fundamental Freedoms (July 24th 1997), in which commitments were made to ensure effective remedies for human rights .
21. The Court reiterates that, according to no. 55 of 14 October 1999 concerning the interpretation of certain provisions of Article 4 of the Constitution, "this provision carries legal consequences, assuming first that law enforcement bodies, including the Constitutional Court [...] are entitled to apply in the examining actual cases international law [...], with the event of a conflict, the provisions of international priority. "
22. In the same vein, in Case no. 10 of 16 April 2010 to review the judgment of the Constitutional Court no. 16 of 28 May 1998 "On the interpretation of Article 20 of the Constitution" in the wording of Resolution no. 39 of 9 July 2001, the Constitutional Court stated that "international legal practice [...] is mandatory for Moldova, as a State party to the Convention for the Protection of Human Rights and Fundamental Freedoms".
23. Also examining the authorities, the Court found a different approach regarding the applicability of the rules governing the institution exception of unconstitutionality, which generates deficiencies in the application.
24. Given these circumstances, the Court finds that Article 135 para. (1) a) and g) of the Constitution needs to be interpreted, so that the notification can not be dismissed as inadmissible. The Court notes that were seized and legal jurisdiction to rule on the interpretation of art. 135 para. (1) a) and g) of the Constitution. Therefore, the Court will further examine the merits of the referral.
25. Given the fact that under Article 135 para. (1) of the Constitution to review the constitutionality of laws and other normative acts of Parliament, the President of Moldova and the Government is exercised under subparagraph a) of Article constitutional mentioned the letter g) via the objection of unconstitutionality issues raised in the referral will be examined in relation to both constitutional provisions.
26. Thus, to elucidate the issues addressed in the complaint, the Court will operate, in particular with Article 135 paragraph. (1) a) and g) in conjunction with Articles 20, 115, 116, 134 and 135 para. (2) of the Constitution, using all methods of legal interpretation.
B.
MERITS OF THE CASE 1. Arguments author
27 referral. Author of the notification stated that Article 135 para. (1) g) of the Constitution sets a task of the Constitutional Court solve the pleas of unconstitutionality of legal acts, referred by the Supreme Court.
28. According to the author of the notification, the development and application of constitutional institution exception of unconstitutionality of art. 12/1 para. (1) of the Civil Procedure Code states that if in the judgment of the case shows that the rule of law to be applied or which has already been applied is inconsistent with the Constitution of Moldova and reviewing the constitutionality of the enactment is for the Constitutional Court, the court shall make a referral to the Constitutional Court, which is transmitted through the Supreme Court.
29. Also, according to art. 7 paragraph. (3) of the Criminal Procedure Code: "If the adjudication, the court finds that the legal standard to be applied is contrary to the Constitution and is exposed in a legal act which may be subject to constitutional control proceedings are suspended, inform the Supreme Court, which, in turn, notify the Constitutional Court. "
30. According to the author of the referral, although the exception can be raised in any court, art. 135 par. (1) g) of the Constitution assigns the Supreme Court the power to notify the Constitutional Court the exception of unconstitutionality.

31. Author of the notification considers that creates a situation in which, on the one hand, the courts are entitled and at the same time obliged to raise the exception of unconstitutionality, and on the other hand, notifying the Constitutional Court may be made only by the Supreme Court .
32. Or, if they are to be interpreted in the way that the Supreme Court decides, ultimately, at its discretion to refer the constitutional court, the objection of unconstitutionality institution loses its effectiveness, being itself distorted the content.
33. The author believes that referral constitutional norm that establishes the competence of the Supreme Court to appeal the Constitutional Court on the plea of ​​unconstitutionality to be interpreted so as to allow its application in the sense of the possibility of lifting the objection of unconstitutionality by the courts.
34. Also, by instituting Constitutional Court is required to hear and determine the correlation between the litigants and the court raising objection of unconstitutionality. Or exception can be raised both by the court and the parties in the case or their representatives.
35. At the same time, practical approach attesting situation where parties on raising the objection is rejected by the court settlement. Procedural rules that stipulate that the court decide, by closing, lifting the exception, interpreted in the sense that it, in its discretion, decide to ask the Supreme Court notifying the Constitutional Court.
36. The refusal of courts to the Court, at the request of the parties in the process, raises issues of exclusive competence of the Constitutional Court on constitutional jurisdiction.
2. Arguments authorities
37. In his written opinion, the President of Moldova considers that the strict sense of art. 135 par. (1) g) of the Constitution reveals that the exceptions of unconstitutionality raised by the courts, are brought to the attention of the Constitutional Court of the Supreme Court.
38. The president of the Republic of Moldova, the Supreme Court is not entitled to refuse courts notifying the Constitutional Court on the plea of ​​unconstitutionality raised by them in the process. Supreme Court refusal would mean, on the one hand, violating the principle of judicial independence enshrined in art. 116 of the Constitution, and on the other hand, the assumption of exceptional privilege that belongs to the Constitutional Court, established by art. 135 par. (1) g) of the Supreme Law. Thus, the Supreme Court's role is to inform the Constitutional Court's conclusion that court on raising the objection of unconstitutionality of the legal act to be applied to the trial.
39. However, in its written opinion, the Moldovan president claims that examining motivated efforts of the parties, the courts should have the right to reject them when seeking manifestly delay the process. Reason for refusal could also serve that was previously criticized the law declared constitutional by the Constitutional Court.
40. Parliament stated in the Constitution states that the right to petition the Constitutional Court, under Article 135 para. (L) letter g), belongs exclusively to the Supreme Court. Parliament also argues that notifying the Constitutional Court is a discretion of the Supreme Court. According to the uniform practice of the Supreme Court, following exceptions sent by the courts, which notifies the Constitutional Court for control constitutionality or reject them.

41. Parliament also believes that the role of the Supreme Court in achieving its right to petition the Constitutional Court is to strengthen the information to the Constitutional Court to finalize the content of the notification and to represent the court raised an objection before the Constitutional Court. Thus, under Article 135 para. (L) g) of the Constitution, the primary responsibility to ensure the rights and freedoms stipulated in the Constitution and provided the European Convention on Human Rights, and other international treaties returns the Supreme Court, as the promoter of the Constitutional Court judicial authorities.
42. In his written opinion, the Government states that in accordance with art. 135 par. (1) g) of the Constitution, the right to petition the Constitutional Court to examine a plea of ​​unconstitutionality, belongs exclusively to the Supreme Court. As a result, courts of appeal and courts have no right to refer the matter to the Constitutional Court only through the Supreme Court.
43. The Government considers that de facto Supreme Court has the role of intermediary between other courts and the Constitutional Court, thus fully exercising that power, the Supreme Court is required to verify whether the notification submitted meets the content to a problem of constitutionality . Moreover, the opinion states that the objection of unconstitutionality may be brought by any party or by the court of its own motion, if during the identified provisions that are inconsistent with the Constitution.
44. According to media, the Superior Council of Magistracy notices that the plea of ​​unconstitutionality may be raised only in a trial by the court of its own motion or at the request of the parties at any stage of the proceedings, both at the examination of the dispute first court and the dispute in order to examine appeals - the appeal and appeal.
45. However, the Superior Judicial Council noted that in accordance with art. 25 of Law no. 317-XIII of 13 December 1994 on the Constitutional Court, the Supreme Court is the subject that has the right to petition the Constitutional Court, the courts are not included as subjects entitled to notify the Constitutional Court.
46. According to the Superior Council of Magistracy, the Supreme Court is the subject that has the right to petition the Constitutional Court if it is raised objection of unconstitutionality by the courts. In these circumstances, referrals court on constitutionality to be submitted to the Supreme Court, which will inform, as appropriate, the Constitutional Court.
47. Also, in the opinion of the Superior Council of Magistracy, the Supreme Court shall be entitled to refuse courts notifying the Constitutional Court regarding the waiver of the objection of unconstitutionality, after checking the validity of notifications sent by the courts to preclude situations where the object of the has already been examined by the Supreme Court or the Constitutional Court not to allow delays in the examination of cases, unfounded invoking the exception of unconstitutionality by the parties involved in the judicial process.
March. Findings of the Court 3.1. General principles 3.1.1. 48
supremacy of the Constitution. The fundamental principle of supremacy of the Constitution is enshrined in Article 7 of the Constitution, according to which the Constitution is the supreme law. No law or other legal act that contravenes the Constitution has no legal power.
49. Supremacy of the Constitution is guaranteed by the Constitutional Court defined by the constituent legislator as the sole authority of constitutional jurisdiction, independent of any other public authority. The Constitutional Court is one of the most important pillars of the system of constitutional guarantees that ensure democratic functioning of society and respect for human rights and fundamental freedoms. According to the European model of control of constitutionality, excluding any exercise of constitutional review by the ordinary courts.

50. Constitutional jurisdiction procedure consists of checking the conformity of acts that fall within the jurisdiction of the Constitutional Court, the Constitution, aiming to achieve the principle of supremacy of the Constitution.
51. Under Article 135 para. (1) of the Constitution to review the constitutionality of laws and other normative acts of Parliament, the President of Moldova and the Government is exercised under point a) and via the objection of unconstitutionality, letter g) of the constitutional article said.
3.1.2 Comparative Law Aspects of the institution exception of unconstitutionality
52. Increasing concern, and understanding the importance of respecting human rights helped develop mechanisms to protect these rights by constitutional courts.
53. Starting from the subsidiary nature of the ECHR mechanisms, Member States are obliged to extend human rights protection mechanisms at national level in accordance with the commitments deriving from the process to streamline the ECHR assumed Conferences in Interlaken (18-19 February 2010), Izmir (26-27 April 2011) and Brighton (19 to 20 April 2012).
54. Exception of unconstitutionality is a defense, through which the calling party before a court invoked the unconstitutionality of a legal rule. Exception of unconstitutionality, with its peculiarities, is a means of indirect access of people to the constitutional court by court.
55. The Venice Commission, the Study on individual access to constitutional justice, adopted at the 85th plenary session of 17-18 December 2010 (CDL-AD (2010) 039), said:
"56. Preliminary procedures are among the most common types of indirect individual access. If an ordinary court has doubts whether the normative act applicable in a particular case violates the Constitution, it addresses the Constitutional Court with a request for a preliminary ruling of constitutionality. The benefit of this is that the ordinary courts are well informed and capable of making a valid complaint. Ordinary ordinary courts serve as an initial filter and can help minimize the number of abusive or repetitive requests. Moreover, the preliminary examination of applications complements the abstract constitutionality, because in this case may control in relation to a specific case in which the provision is applied or will apply. [...]
[...]
59. "Exception of unconstitutionality" can be considered a very effective means to access individual common law if a court is obliged to submit a preliminary application [...] "
56. The Court notes that in some countries, such as Austria, Belgium, Bosnia and Herzegovina, Croatia, Czech Republic, Georgia, Romania, Lithuania, Latvia, Germany, Poland, Hungary, etc., all common law courts may raise before the Constitutional Court interlocutory matters.
57. In respect of the submission of the notification only by the Supreme Court, the Venice Commission in the aforementioned study, he said:
"62. While [...] is an effective means for reducing the number of preliminary applications and in accordance with the logic of exhaustion means of defense (individuals must comply sequence courts), it leaves parts of the trial in a potentially unconstitutional for a long time, where lower courts are bound to apply the law, even if they have serious doubts about its constitutionality. In terms of human rights, more appropriate and effective would be to provide all courts right of access to the Constitutional Court. It should be noted that there are alternative solutions. In Germany, for example, all courts must consider the issue on constitutional law and forced to turn to the Constitutional Court if they are convinced that a particular rule is unconstitutional [...]. "
3.1.3. The right to a fair trial
58. Under Article 20 of the Constitution, everyone has the right to obtain effective protection from competent courts against acts that violate the rights, freedoms and interests. No law may restrict access to justice.
59. In Case No. 14 of November 15, 2012 the Court held:

"50. [...] The principle of free access to justice is to be regarded not only as a fundamental guarantee for the effective exercise of the rights and freedoms of individuals, but also as a peremptory norm called to give meaning to the concept of "rule of law". However, according to Article 1. (3) of the Constitution, the Republic of Moldova is a democratic law, where human dignity, rights and freedoms, free development of human personality, justice and political pluralism represent supreme values ​​and are guaranteed .
51. From the perspective of governance rights and fundamental freedoms, it is noted that according to art. 15 of the Supreme Law, which guarantees the principle of universality, Moldovan citizens enjoy the rights and freedoms enshrined in the Constitution and other laws and obligations set out in them. "
60. The Court notes that access to justice is an inherent aspect of the right to a fair trial principle complex, comprising several relations and fundamental rights, which can guarantee its full exercise. Without effective access to a court would be illusory rights afforded individuals.
61. The right of access to justice is understood as a right of access specifically and effectively, which implies that litigants to benefit from a clear and concrete possibility to challenge an act constituting a breach of his rights.
62. The Court notes that, for effective protection of human rights is not enough to devote substantive rights and constitutionally specify the minimum conditions for achieving equitable justice, conditions reunited with organic law on the organization and functioning of courts. It is necessary also to establish some kind of procedural guarantees to strengthen mechanisms to protect these rights. Through these procedural safeguards, the right to a fair trial is to be ensured, therefore, effectively and efficiently.
63. The Court emphasizes that the right to a fair trial requires eo ipso presumption of conformity to normative acts interpreted and applied by the court in the act of justice with constitutional norms and international law.
64. In this context, the Court holds that it can not resolve a dispute involves promoting a law through unconstitutional rules.
3.2. Applying the principles in this case 3.2.1. General on 65
exception of unconstitutionality. The Court notes that, in order to ensure respect for fundamental rights and freedoms guaranteed by the Constitution in the settlement of disputes by the courts of common law, the constituent legislator in Article 135 para. (1) g) of the Constitution, the Constitutional Court established that solves exceptional cases of unconstitutionality.
66. Raising the objection of unconstitutionality institution offers the possibility of settling court cases, in the trial of a case, parties, or judge, faced with uncertainty regarding the constitutionality of rules to be applied.
67. Exception of unconstitutionality is developed by procedural rules (Article 12/1 of the Code of Civil Procedure and Article 7 of the Criminal Procedure Code), according to which, if in the judgment of the case shows that the rule of law to be applied or which has already been applied in contradiction with the Constitution of the Republic of Moldova, the court raises the objection of unconstitutionality and transmit the Supreme Court, which notify the Constitutional Court.
68. In Case No. 15 of 6 May 1997 concerning the interpretation of Article 135 para. (1) g) of the Constitution Court stated:
'3.3. Exception of unconstitutionality expresses an organic connection, the problem of constitutionality and logic between the main substance of the dispute. It can be claimed that the initiative incident parties or ex officio by the court. The main elements of the objection of unconstitutionality are:
- requirements of a unconstitutionality;
- Triangular relationship between the existence in process whose rights or interests have been harmed by a rule possibly unconstitutional, the court, before which relies unconstitutional, the Constitutional Court, called to settle the objection of unconstitutionality;

- Under the exception of unconstitutionality (which is broader, including not only laws but also other legislation).
3.4. [...] Words "exception of unconstitutionality 'under that provision Article 135 para. (1) g) of the Constitution may be interpreted as an initiation procedure by the ordinary courts of law, the parties or on its own initiative, to control compliance of a law or other enactment in whole or in part in most cases with constitutional norms. [...] "
69. The power to resolve exceptional cases of unconstitutionality, which was vested with the Constitutional Court by Article 135 para. (1) g) of the Constitution requires establishing the correlation between the laws and the Constitution, taking into account the principle of the primacy and relevance of its contested provisions for resolution of the dispute in the courts.
70. The name "exception" is rooted in the fact that the normative acts of the public authorities enjoy a presumption of constitutionality and unconstitutionality allegations of the parties to the proceedings, the judge or uncertainty in this regard, is an exceptional situation.
71. Thus, the exception of unconstitutionality is a procedural action defense by the Constitutional Court before it on inconsistency with the Constitution of the legal provisions applicable in the case before the court.
72. However, from that time through the institution before the objection of unconstitutionality is subject to constitutional review applied to a specific case the court concluded, the procedure of solving the objection of unconstitutionality is a concrete control of constitutionality. The reason establishing that control is based on censorship and interference in the constitutional court application by an ordinary court which rules on the constitutionality of doubt.
73. In this context, based on the nature of the objection of unconstitutionality, so it can be raised on existing acts, contained in Article 135 para. (1) a) of the Constitution and the acts that are no longer in force, whether under their empire were born legal relations which continue to produce effects, and the norm is applicable legal relations is significant disagreement in the case.
3.2.2. Ordinary judge's role in raising the objection of unconstitutionality
74. The Court notes that the procedure for settling constitutional challenge involves the two distinct phases:
(1) judicial stage, preceding what is invoking the exception of unconstitutionality in a proceeding before a court and the judge's pronouncement on this procedural incident, possibly completed by notifying the Constitutional Court;
(2) of contentious stage itself, which consists in resolving the objection of unconstitutionality by the Constitutional Court.
75. The Court notes that the first step, the determining role belongs to an ordinary judge, which ultimately disposes the exception of unconstitutionality. It can be called "first constitutional judge," which notifies the law enforcement aspects of unconstitutionality.
76. Therefore, when the ordinary judge finds or is invoked by the parties some uncertainty regarding the constitutionality of the act applies, it is obliged to initiate the process of exercising constitutional control.
3.2.3. Report dispute between the judge and the objection of unconstitutionality raised
77. The Court notes that the plea of ​​unconstitutionality may be raised by:
(1) the court of its own motion, that respecting the principle of supremacy of the Constitution, no right to impose a rule on the constitutionality of doubt;
(2) the parties to the proceedings, including their representatives, rights and interests which may be affected by application of a rule unconstitutional in the case.
78. As an instrument for the defense of fundamental rights and freedoms exception of unconstitutionality may be invoked in a process triggered only if it affects the outcome of the case pending before the court.

79. Thus, concrete constitutional control by way of exception the only instrument through which the citizen has the opportunity to act to defend itself against the legislator, where, by law, their constitutional rights are being violated.
80. The Court notes that the right of access of citizens through plea of ​​unconstitutionality to the Constitutional Court is an aspect of the right to a fair trial. This indirect route, allowing citizens access to constitutional justice offers also the possibility of the Constitutional Court, as a guarantor of the supremacy of the Constitution, to exercise control over legislative power with regard to respect fundamental rights and freedoms catalog.
81. Under the law, when accepting the plea of ​​unconstitutionality, the court order, upon the suspension process. The Court notes that the suspension process pending resolution by the Constitutional Court the exception of unconstitutionality is necessary to exclude the application of the rules contrary to the Constitution in any proceedings.
82. The Court notes that the ordinary judge will not rule on the merits of the complaint or the constitutionality of the contested rules, but will be limited exclusively to the verification meeting the following conditions:
(1) fall into the category acts under the exception contained in Article 135 para. (1) a) the Constitution;
(2) exception is raised by a party or its representative, or indicate that it is raised by the court of its own motion;
(3) the contested provisions to be applied to solving the case;
(4) there is an earlier judgment of the Court covering contested provisions.
83. The Court notes that verification challenged the constitutionality of the rules is the exclusive competence of the Constitutional Court. Thus, ordinary judges are not entitled to refuse the parties notifying the Constitutional Court, but only under the conditions mentioned in paragraph 82. 84
. In Case Ivanciuc v. Romania (decision nr.18624 / 03), the alleged refusal of the court to notify the Constitutional Court with a plea of ​​unconstitutionality, the European Court said: "It is according to the operation of such a mechanism that checks whether the judge can or must submit a preliminary application, ensuring that this must be resolved to enable to settle the dispute it is required to know. That said, it is conceivable that, in some circumstances, the refusal expressed by a national court, to be decided ultimately would undermine the principle of fairness of the proceedings, as set out in Article 6 § 1 of the Convention, especially when such a refusal is arbitrary touched (Coëme and others v. Belgium, no. 32492/96, 32547/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 114, ECHR 2000-VII and Wynen v. Belgium, no. 32576/96, § 41, ECHR 2002-VIII) ".
85. However, in the case Pronina v. Ukraine (no. 63566/00) The European Court held that the European Convention guarantees the right of access to a court with jurisdiction to invalidate or ignore a legal provision, or to give an interpretation it official. It also noted that Art. 6 of the Convention guarantees the right to a national or international court is hearing an interlocutory matter. At the same time, compared to the legal system of Ukraine, where individuals can not refer directly to the constitutional court, but only by first instance courts, which have a discretion on referral, the European Court held that the courts had failed to consider the applicant's request in terms of compatibility with constitutional provisions and therefore ignoring this aspect, although it was specifically important and relevant, led breach of art. 6 § l of the Convention.
86. The Court notes that, by ignoring the plea of ​​unconstitutionality and resolve the dispute without a prior resolution of the objection by the constitutional court, the judge would acquire powers unfit ordinary court.
87. Given the above, any judicial body called to settle a dispute in the event of doubt on the constitutionality of a provision has both the power and the obligation to address the Constitutional Court.

88. At the same time, the Court notes that according to the law, the conclusion refusing to raise the objection can not be contested separately by appeal, but with substance. In these circumstances, although the plea of ​​unconstitutionality may be raised at any stage of the process until judgment and in any court in order appeals procedures (judges, Court of Appeal, Supreme Court), the Court holds that in order of speeding up the process, the parties must be able to challenge procedural separate appeal judge ordinary conclusion rejecting the request for waiver of the objection. For these reasons, the Court will issue an Address to Parliament to regulate proceedings challenging those decisions.
3.2.4. The right of the court to raise the exception of unconstitutionality and to notify the Constitutional Court
89. According to art. 135 par. (1) g) of the Constitution, the Constitutional Court resolves exceptional cases of unconstitutionality brought before the Court of Justice.
90. In Case No. 15 of May 6, 1997 the Court emphasized that the "exception of unconstitutionality is a procedure to open by the ordinary courts of law, the parties or on its own initiative, to control compliance of a law or other regulations in full its partially or in most cases with constitutional norms ".
91. The Court held that the exception is raised by the courts to ask the Constitutional Court to review the constitutionality of normative acts contained Art. 135 par. (1) a), namely laws and decisions of the Parliament, Presidential decrees, decisions and orders of the Government.
92. In this regard, the Court notes the reasons given in the Decision no. 15 of 6 May 1997 that the plea of ​​unconstitutionality to be high on normative acts listed in Article 135 para. (1) a) of the Constitution.
93. The Court notes that the provisions of art. 135 par. (1) g) of the Constitution reveals one of the powers of the Constitutional Court to exercise control constitutionality of laws and other normative acts affecting examination of a dispute by an ordinary court, the review procedure is initiated by way of exception.
94. Therefore, the constitutional court exercised by the letter g) of Article 135 of the Constitution to be reported to the general power to exercise control constitutionality of legislation contained in subparagraph a) of the same article.
95. Based on the rationale and essence of the institution "exception of unconstitutionality", except for the right to build belongs to all courts or judges within them.
96. The Court notes that, according to art. 115 of the Constitution, justice shall be administered by the Supreme Court, the Courts of Appeal and judges. Similarly, under Article 116 of the Supreme Law, judges in courts of all levels are independent and subject only to the law.
97. The independence of judges is one of the fundamental principles of organization and realization of justice. In law enforcement, judicial independence exclude the notion of hierarchy, subordination. Its role is to settle disputes in an objective manner, according to the law, and the power by themselves, judges can not receive orders, instructions or suggestions of any kind on their work judicial nor inside or outside the judiciary . International principles states explicitly that judges must make decisions freely and act without restriction and without being subjected to influences, inducements, pressures, threats or interferences unlawful direct or indirect, from any quarter people come and in what reason. The judge, as holder of judicial authority, must be able to exercise its function with full independence in relation to the constraints / forces of social, economic and political, and even relative to other judges in relation to judicial administration.
98. Consequently, the Court holds that judges should have sufficient powers and be able to exercise them for the tasks. Litigation involving judicial independence requirement without any interference, including from a higher court.

99. The Court notes that at present, although the objection of unconstitutionality is filed to the Constitutional Court through the Supreme Court, the legal framework does not establish the role and limits of intervention between the constitutional court and the court which raised the exception.
100. Whilst examining existing practice, the Court finds that although the exception of unconstitutionality is raised in proceedings before the court to lower level presentation plea to address the Supreme Court of Justice for referral to the Constitutional Court, Supreme Court ruling on the constitutionality of the norm whose legal exception is raised, mentioning the incident that the rule "is not contrary to the Constitution", returning exception of unconstitutionality (see the judgments of the Supreme Court of Justice no. 7 out of 10 March 2013, no.21 of 11 November 2013).
101. In other cases, the Court found a restriction by object Supreme Court the exception of unconstitutionality, which exceeds the limits of its jurisdiction (see § 19-20 of HCC No. 11 of 30 October 2012).
102. Supreme Court holds that the law enshrines the exclusive competence of the Constitutional Court without specifying exhaustively the subjects entitled to appeal. The only express constitutional provision governing one of the subjects entitled to notify the Constitutional Court, namely the Supreme Court, is Article 135 par. (1) g). Circle of subjects empowered with the right to petition the Constitutional Court, under Article 135 para. (2) of the Constitution, the legislative framework is established infraconstitutional.
103. The Court notes that, while the right to raise objection of unconstitutionality belongs judges of courts of all levels and given the formal role of the Supreme Court and lack of competence to rule on exceptions unconstitutionality of superior courts, the provisions of points a) and g) of par. (1) of article 135 of the Constitution can not be interpreted as restricting the rights of other ordinary courts to notify the court of constitutional jurisdiction.
104. In Case No. 9 of 14 February 2014, the Court noted that the evolutionary interpretation of the powers of the Constitutional Court is to enable increasing and extending the constitutional court. Therefore, a restrictive interpretation of the purposes mentioned fundamental rule to limit, eliminate or reduce the powers of the Constitutional Court, would result in order to improve its hijacking of constitutional democracy, pursued by the constituent legislator himself.
105. Also with reference to the role of judicial interpretation, in Case no. 32 of 29 December 2015, the Constitutional Court has the findings of the Venice Commission Report on the constitutional amendment adopted in the framework of the 81st plenary session (CDL-AD (2010) 001, 11 to 12 December 2009, that :
"110. the numerous constitutional systems abundantly shows that substantial changes can occur even without changing the text, due to judicial interpretation. [...] Although there is no European examples where the courts have played a crucial role in shaping the constitution there is still in Europe a number of courts that have contributed substantially to the development of their constitutions by interpreting and implementing dynamic. This concerns in particular the countries endowed with "constitutional courts", a model that, in recent years has been adopted by almost all countries in Central and Eastern Europe. [...]
112. the Venice Commission repeatedly welcomed and endorsed the model of "constitutional courts", which is now widespread in Europe. This model is generally favorable judicial constitutional interpretation. Such courts can legitimately contribute to the development of their national constitutional systems. [...] "106
. The Court notes that, pursuant to art. 135 par. (1) g) of the Constitution, the constitutional court to be notified by the Supreme Court where the exception of unconstitutionality is raised in a proceeding before it.

107. Meanwhile, pursuant to art. 135 par. (1) a) and lit. g) of the Constitution, notification on reviewing the constitutionality of rules to be applied in any proceedings shall be submitted directly to the Constitutional Court by the judges / panels of judges in the Supreme Court, courts of appeal and courts, the role of which is cause. Such an interpretation ensures the constitutional principle of independence of all judges in processing cases and supremacy of the Constitution in the defense of fundamental rights and freedoms. Conclusions

108. The Court notes that edictarea and correct, uniform and on the principles of constitutional law represents the pillar of the rule of law, and therefore the objection of unconstitutionality is a constitutional guarantee of the rights and freedoms conferred on citizens to defend them against possible violations of the legislature by establish rules contrary to the Constitution. The Constitutional Court, acting as the guarantor of the supremacy of the Constitution, becomes the guarantor of these rights and freedoms.
109. Thus, to ensure the application of this constitutional mechanism, on the objection of unconstitutionality shall adjudicate exclusively upon notification by the constitutional court judges in all courts.
For these reasons, under Article 140 of the Constitution, 26 of the Law on Constitutional Court, 6, 61, 62 lit. b) and 68 of the Code of Constitutional Court Constitutional

DECIDES:

1. Under Article 135 (1) a) and g) in conjunction with Articles 20, 115 116 and 134 of the Constitution:
- if there is uncertainty regarding the constitutionality of laws, decisions of the Parliament, Presidential decrees, decisions and orders of the Government, to be applied in any proceedings pending before the court is obliged to notify the Constitutional Court;
- Plea of ​​unconstitutionality may be raised before the court by either party or its representative and the court of its own motion;
- Notification on reviewing the constitutionality of rules to be applied in any proceedings shall be presented directly by the Constitutional Court judges / panels of judges in the Supreme Court, courts of appeal and courts, the role of which is due ;
- Ordinary judge does not rule on the merits of the complaint or the constitutionality of the contested rules, limited solely to verify meeting the following conditions:
(1) fall into the category acts under the exception contained in Article 135 para. (1) a) the Constitution;
(2) exception is raised by a party or its representative, or indicate that it is raised by the court of its own motion;
(3) the contested provisions to be applied to solving the case;
(4) there is an earlier judgment of the Court covering contested provisions.
2. Pending the adoption by Parliament of regulations implementing this decision, the notification regarding the exception of unconstitutionality presented the Constitutional Court by judges / panels of judges in the Supreme Court, courts of appeal and courts, the role of which is due in under direct application of Article 135 (1) a) and g) of the Constitution, as was explained above, in accordance with the considerations referred to there and Regulation on the procedure for examining complaints lodged with the Constitutional Court.
March. This decision is final, can not be subject to any appeal, shall enter into force upon adoption and shall be published in the Official Gazette of the Republic of Moldova.