Inadmissibility Of Referral No. 77G/2016 Regarding Exception Of Unconstitutionality Of Certain Provisions Of Law No. 64Din 23 April 2010 Concerning Freedom Of Expression (Prior To Court Proceedings Applying)

Original Language Title: de inadmisibilitate a sesizării nr. 77g/2016 privind excepţia de neconstituţionalitate a unor prevederi din Legea nr. 64din 23 aprilie 2010 cu privire la libertatea de exprimare (procedura prealabilă adresării în judecată)

Read the untranslated law here: http://lex.justice.md/index.php?action=view&view=doc&lang=1&id=366205

    The Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Mr. Victor POPA, judges, with the participation of Mrs. Abdul Fahim, Registrar, considering the appeal filed on 23 June 2016, recorded at the same time, examining the admissibility of the referral, taking into account the laws and proceedings, Acting on 8 July 2016 in the Chamber Council Pronounce the following decision : in fact 1. The origin of the case lies the exception of offline-stituționalitate of articles 15, 16, 17, 18 lit. g) of law No. 64 of 23 April 2010 concerning freedom of expression, raised by the lawyer Alexandru C civil No. 2-2830 inch Corp./15, on the role of the Court of Botanica, Chisinau municipality. Chişinău.
2. The exception of constitutionality was lodged with the Constitutional Court on 23 June 2016 by judge Svetlana Garștea-Bria, 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 20 July 2015 Abbey C filed a civil action against Dumitru Harea regarding moral damage caused by the breach of professional honour and dignity.
4. In the process, his representative argued Keith Darrow failure by Abby C prior to the procedure, provided for in the law on freedom of expression, and has requested the removal of the application role.
5. On 2 December 2015, Attorney Abbey C filed a court judgment with regard to constitutionality exception to articles 15, 16, 17, 18 lit. g) of the law on freedom of expression.
6. by the conclusion of 20 January 2016, the Court rejected as baseless the approach of Alexander C about the rise of non-constitutionality exception.
7. Throughout the process, Alexander C submit a repeated approach concerning the lifting of non-constitutionality exception, citing the judgment of the Constitutional Court of 9 February 2016 on the interpretation of article 135 paragraph 1. (1) (a). g) of the Constitution.
8. by the conclusion of 16 June 2016, the Court accepted the approach and has ordered the lifting of non-constitutionality exception and transmission of referral to the Constitutional Court.
B. relevant Legislation 9. The relevant provisions of the Constitution (republished in d. o., 2016, no. 78, art. 140) are as follows: Article 4Drepturile and human 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 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 32Libertatea of opinion and of expression "(1) any citizen shall be guaranteed freedom of thought, opinion, and freedom of expression in public through Word, image or any other means possible.
(2) the freedom of expression may not harm the honour, dignity or rights of other people to express their own opinions.
(3) it is prohibited and punishable by law and defamation to challenge State and people, the urge to war of aggression, hatred or national, racial and religious incitement to discrimination, territorial separatism, public violence, and other manifestations encroaching upon the constitutional regime. "


Article 54 the restriction of the exercise of certain rights or freedoms "(1) in the Republic of Moldova cannot be adopted laws suppressing or violating fundamental rights and freedoms of man and citizen.
(2) the exercise of rights and freedoms may not be subject to restrictions other than those prescribed by law and which correspond to the widely recognized norms of international law and are necessary in the interests of national security, territorial integrity, economic well-being of the country, public order, in order to prevent mass unrest and crime, protection of rights, freedoms and dignity of other persons, preventing the disclosure of confidential information or to ensure the authority and impartiality of the judiciary.
(3) the provisions of paragraph (2) do not allow the restriction of the rights stipulated in articles 20-24.
(4) the restriction must be proportional to the situation that caused it, and may not affect the existence of that right or freedom. "
10. The relevant provisions of law No. 64 of 23 April 2010 concerning freedom of expression (Official Gazette, 2010, no. 117-118, article 355) are as follows: 15Cererea ' Article prior (1) any person who considers himself defamed may, by prior request, author information and/or the legal person that has spread a correction or rectification defamatory information, granting of the right of reply or the expression of apology and compensation for the injury caused. In case of death of the person defăimate the request is submitted prior to the person concerned.
(2) the application must be lodged prior within 20 days from the date on which the person became aware, or ought to know about defamatory information. This is a limitation period. At one year from the day of defamation, the person may not claim his reinstatement within the time limit for the submission of the application.
[…].”


Article 16Procedura examination prior to application "(1) the application shall be examined within the prior five days by author information and, where appropriate, by the legal person which has spread this information.
(2) if it is found that the information referred to in the application is false or not prior is based on sufficient factual basis, the legal person which has spread the information or request prior information author, being forced to carry out, where applicable, the correction or rectification defamatory information, granting of the right of reply or the expression of apology and compensation, upon request, of the damage caused.
(3) the correction or rectification, the granting of the right of reply or the expression of apology is effected within 15 days from the date of examination of the application, and whether the information was spread by the media and publication or issue which has spread this information appears less frequently than once every 15 days, in the next issue or issue.
(4) payment of compensation pursuant to a prior application shall be made within 15 days from the date of the preliminary examination of the application or within another period agreed by the parties.
(5) In case of refusal to satisfy all or part of the claim, the person aggrieved may lodge a claim in court.
(6) In case of refusal of the application on the ground of prior frame skipping of the limitation period, the person aggrieved may, simultaneously with the filing of the original judgment, reinstatement within the time limit for the submission of the application. "


Article 17Termenul apply in court "(1) the application of the judgment in respect of defamation may be filed within 30 days. That period shall run from the date of receipt): the answer to the request;
b) date of expiry for the examination of the application.
(2) the period specified in paragraph 1. (1) limitation period.
(3) a person may be questioned the limitation period if it omitted the term justified grounds and has filed an application for a summons to court within 30 days from the date of the reasons which justify the reinstatement period.
(4) where, together with the filing of the application, have not been submitted claims relating to compensation for damages, the Court shall reject the application for compensation for damages have been filed later. "


Article 18Forma and contents of the request of the Court "(1) the application of the judgment shall be made in compliance with the conditions laid down in article 166 and 167 of the code of civil procedure.
(2) Citing the circumstances of fact and law on which it is based, the plaintiff claims will indicate if the information: (a) they are concerned);
b) if the information was disseminated by the defendant;
c) if information act disparaging character;
d) if the information is based on essentially false facts;
e) whether or not a public person for the purposes of this Act and if the information relates to the quality of his person;
f) if the information relates to a matter of public interest;
g) where he was met by a prior procedure;
h) if information has caused damage to defamatory material and moral, and that is the extent of such damage;
(I) other circumstances relevant for) examination of the case.
[…].”

11. The relevant provisions of the code of civil procedure of the Republic of Moldova nr. 225-XV of 30 May 2003 (reprinted in the Official Gazette, no. 13, 130-134, art. 415) are as follows: Article 5Accesul to justice "(1) Any interested person has the right to address the Court, in the manner established by law, to defend their rights violated or contested, freedoms and legitimate interests.
(2) any person may refuse judicial defense of the reason of nullity of laws, imperfection, collision or obscurity of the law.
(3) surrender of one of the parties to address the Court through the conclusion of an agreement in advance has no legal effect, except in the case of concluding an agreement for resettlement, according to the law, the dispute at the arbitral judgment. "


Article 166Forma and contents of the request of the Court ' (1) Whoever claims a right against another person, or has an interest for the establishment of the existence or nonexistence of a right must submit a request to the competent court of the judgment.
(2) in the application of the judgment indicates: [...] h) particulars respecting the procedure for the resolution of the dispute prior to out of court if such a dispute is carrying out the procedure laid down by law, regulation or agreement of the parties;
[…]”.


Article 167Actele which is attached to the request of the Court "(1) at the request of the judgment shall be annexed: [...]
d) documents confirming compliance with the procedure prior to the dispute resolution, if compliance with this procedure is prescribed by law or the contract parties;
[…]”.


Article 170 calling Refund application to court "(1) the judge shall refund request in court if: (a) the applicant has not complied with) the procedure for the settlement of prior pricinii on the way out of court, prescribed by law for the relevant class of contract issues or parties;
[…]
(4) the application for a Refund of the Court does not exclude the possibility of asking the Court repeated the same complainant, the same action against the same defendant, with the same subject matter and the same grounds if applicant has done away with violations.
[…]”.


Article 267 Basis pumping out demand on the role "the Court brings out the demand of the role where: (a) the applicant has not complied with) the procedure provided for by law or by contract of the parties, prior to pricinii settlement out of court; […]”.


Article 268Procedura and the effects of the removal of the demand on the role [...]
(3) After removing the circumstances which lead to the removal of the application of the person concerned on the role, the Court may make a new application in accordance with the General provisions.
[…]”.


Article 347 of contents application "[...]
(3) on application, the lender shall submit evidence of compliance with the prior procedure of referral to the Court.
[…]”


Article 348 refusing to receive the request "[...]
(2) the judge refuses to accept the request and if: [...] e) has not been complied with the procedure required by law prior to referral to the Court.
[…]”
12. The relevant provisions of the European Convention for the protection of human rights and fundamental freedoms (done at Rome on 4 November 1950 and ratified by decision of Parliament of the Republic of Moldova No. 1298-XIII of 24 July 1997) are as follows: Article 6Dreptul to due process "1. Everyone has the right to a fair hearing, publicly and in a reasonable period of its cause, by an independent and impartial court established by law, which shall decide upon the infringement of his rights and obligations, be civil on the determination of any criminal charges against him.
[...]”
13. The relevant provisions of the Universal Declaration of human rights are the following (adopted at New York on 10 December 1948, and ratified by the Republic of Moldova by the decision of Parliament no. 217-XII of 28 July 1990), are as follows: "Article 10 everyone is entitled, in full equality, to be heard in a fair and public hearing by an independent and impartial tribunal, which will decide whether his or her rights and obligations either on the determination of any criminal charges against them. "
14. The relevant provisions of the International Pact concerning civil and political rights (done at New York on 16 December 1966 and ratified by the Republic of Moldova by the decision of Parliament no. 217-XII of 28 July 1990), are as follows: 1 Article 14 ". All people are equal before the courts and the courts of Justice. Any person shall be entitled as a dispute in which it is to be examined in a fair and public hearing by an independent tribunal competent and impartial, established by law, which shall decide upon the determination of any criminal charges against them, either on the complaints relating to the rights and obligations of its civilian character.
[...]”.
In the author's Arguments exception. unconditional-stituționalitate 15. In the non-constitutionality exception, reasoning the author argues that the imposition of the law concerning the freedom of expression of a prior mandatory procedures previously in the Court of appeal, constitutes an encroachment of free access to justice.
16. the lack of mentioning that the Author devotes an extrajudicial phase provided for in articles 15, 16, 17, 18 lit. g) of the law on freedom of expression, rights and interests cannot be recovered through action.
17. According to the author, the provisions of the contested exception in breach of articles 4, 5 and 32 of the Constitution.
B. Assessment Of Court 18. Examining the admissibility of the referral regarding constitutionality exception, the Court notes the following.
19. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws is the responsibility of the Constitutional Court.
20. the Court finds that the plea of unconstitutionality, being raised by a lawyer in the civil Alexandru C No.2-2830 inch Corp./15, which is on the role of the Court of Botanica, Chisinau municipality. Chişinău, is made by the subject entrusted this right under 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.
21. 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.
22. the Court finds that the contested provisions relating, in essence, the issue of mandatory prior to completing the procedure, provided for in the law on freedom of expression, previously in the Court of appeal. 
23. Of the referral, the Court observes that the author has claimed that the exception being challenged are contrary to articles 4, 5 and 32 of the Constitution.
24. With reference to the alleged infringement of the provisions contested by the principle of free access to justice, the court notice that article 20 of the Constitution guarantees every person the right to effective satisfaction on the part of competent courts against acts which violate the rights, freedoms and legitimate interests.  No law may restrict the access to justice.
25. Through the limits permitted by article 19. 4 of the Constitution to apply and interpret constitutional provisions for human rights and freedoms in accordance with international acts to which Moldova is a party, the court notice that, in the light of art. 6 § 1 of the European Convention, as well as through the European case-law of the Court, the right of access to justice can involve limitations, including procedural, as long as they are reasonable and proportionate to the aim pursued.
26. the Court notes that the need to ensure effective access to justice cannot be regarded as constituting an obstacle, however, to establish, by law, conditions of eligibility for those who wish to submit their judgment of the courts.
27. In the same context, the European Court noted that access to justice may be limited, in particular through the establishment of the conditions for admissibility, the State enjoys a certain margin of appreciation. Such limitation must pursue a legitimate aim, ensuring a proportionality between the legitimate interest of the person and the aim pursued (Guérin v. France, 29 July 1998, § 37). However, the limitations must not reduce to zero the essence of this right. The rules of procedure are designed to ensure the proper administration of Justice and, in particular, to ensure the security of legal relations, and those involved in the proceedings should expect that such rules should be applied (Miragall Escolano and others v. Spain, 25 January 2000, § 33).

28. In Judgement No. 14 of 15 November 2012 Constitutional Court examined the institution "prior procedure" and noted that: "[...] through the establishment of the procedure of prior dispute resolution was not aimed at restricting the free access to justice, which, obviously, the person concerned shall benefit from the provisions of the law, but excluding the establishment of a climate of order, indispensable to carry on constitutional law held by the art. 20 of the Constitution, thus preventing the abuses and thus ensuring the protection of the rights and legitimate interests of other parties. "
29. Moreover, the Court stated that "[...] through the establishment of prior proceedings the legislator sought to implement in practice the principle of resolution of the disputes between the parties celerităţii. Likewise, the procedure may constitute a prior sense of efficiency necessary for the settlement of certain categories of litigation. "
30. According to the Court's conclusion in the same judgment, the Court of the conditioning of the referral procedure prior completion cannot be qualified as an encroachment of free access to justice, in the meaning of constitutional provisions prohibited, as long as the person concerned may submit to the Court a request for the judgment.
31. Regarding the constitutionality of provisions of criticism challenged in relation to article 32 of the Constitution, the Court observes that the contested provisions not concerned the right to freedom of opinion and expression. Therefore, the constitutional provisions enshrined in article 32 of the Constitution are not incidental in this case. 32. Taking into account the fact that the institution of the proceedings was subject to prior examination of the Constitutional Court, the Court of contentious note that referral 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. b) and 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 articles 15, 16, 17 and 18 lit. g) of law No. 64 of 23 April 2010 concerning freedom of expression, raised by the lawyer Alexandru C civil No. 2-2830 inch Corp./15, pending at the Court of Botanica, Chisinau municipality. Chişinău.
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