Inadmissibility Of Referral No. 58G/2016 Regarding Exception Deneconstituţionalitate Provisions In Article 36 Paragraph 1. (5) Enforcement Of Dincodul (Collection Of The Enforcement Expenses By The Bailiff)

Original Language Title: de inadmisibilitate a sesizării nr. 58g/2016 privind excepţia deneconstituţionalitate a unor prevederi din articolul 36 alin. (5) dinCodul de executare al Republicii Moldova (încasarea cheltuielilor de executare de către executorul judecătoresc)

Read the untranslated law here: https://www.global-regulation.com/law/moldova/5967555/de-inadmisibilitate-a-sesizrii-nr.-58g-2016-privind-excepia-deneconstituionalitate-a-unor-prevederi-din-articolul-36-alin.-%25285%2529-dincodul-de-executa.html

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    The Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Mr. Tudor PANŢÎRU, Mr. Victor POPA, judges, with the participation of Mr. Eugeniu Osipov, Registrar, considering the appeal filed on May 19, 2016, recorded at the same time, examining the admissibility of the referral, taking into account the laws and proceedings, Acting on 14 June in the Council room 2016 the next decision, a decision: in fact 1. The origin of the case lies the exception of offline-stituționalitate of "the amounts to be paid as expenses of execution shall be levied on the basis of a conclusion issued by the bailiff, without summoning the parties. The conclusion is an enforceable document. "in article 36 paragraph 1. (5) of the enforcement code of the Republic of Moldova, nr. 443 of 24 December 2004, built by Noviţchi in the band Obasi nr. 25-994/15, pending at the Court of Botanica, Chisinau municipality. Chisinau.
2. The appeal was lodged with the Constitutional Court on May 19, 2016 by judge Jose Virgiliu within Botany, Court. Chisinau, 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 October 29, 2015, the bailiff ordered Nicholas Dicaprio through a discharge receipt from Cathy Kenny enforcement expenditures, composed of fees, charges and expenses, the total amount of 1253.25 lei, for the execution of an enforceable document of 18 November 2008, issued by the regional court in Ialoveni.
4. On 11 November 2015, Cathy Kenny filed at District Court of Botanica, Chisinau municipality. Chisinau, a request that has requested cancellation of the conclusion of the bailiff of 29 October 2015 on payment of expenses.
5. At the hearing of the Court of 26 April 2016, his lawyer, Olesea Noviţchi, has called for lifting the main exception to "the amounts to be paid as expenses of execution shall be levied on the basis of a conclusion issued by the bailiff, without summoning the parties. The conclusion is an enforceable document. "  Article 36 para. (5) of the enforcement code, citing violations of the provisions of articles 26, 114 and 115 of the Constitution.
6. by the conclusion of 26 April 2016, Botany, Court. Chisinau, has admitted the request and sent the lawyer to refer to regarding the plea of unconstitutionality in the Constitutional Court for settlement.
B. relevant Legislation 7. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 26Dreptul of the defence "(1) the right of defence is guaranteed.
(2) everyone has the right to respond independently by appropriate legitimate means to an infringement of his rights and freedoms.
(3) throughout the trial the parties have the right to be assisted by a lawyer, either chosen or appointed ex officio.
(4) any interference with the activity of those carrying out the defence within legally established confines shall be punished by law. "


Article 114Înfăptuirea justice "Justice shall be administered solely by the name of the law courts."


Article 115Instanţele judgments "(1) justice shall be administered by the Supreme Court of Justice, the Court of appeal and the courts of law.
(2) For certain categories of cases can operate according to the law, judges.
(3) the establishment of extraordinary courts is prohibited.
(4) the Organization of the courts, their jurisdiction and procedure Court are established by an organic law. "
8. The relevant provisions of the code of execution of the Republic of Moldova nr. 443-XV of 24 December 2004 (reprinted in the Official Gazette, 2010, no. 214-220, art. 704) are as follows: Article 2Principiul legality "bailiff ensures enforcement of the enforceable documents strictly in accordance with the present code and other normative acts."


Enforcement of article 36Cheltuielile "[...]
(5) the applicant is entitled to claim reimbursement of costs of executing requests advanced by submitting a bailiff and the presentation of evidence of payment of the costs. The amounts to be paid as expenses of execution shall be levied on the basis of a conclusion issued by the bailiff, without summoning the parties. The conclusion is an enforceable document. Where expenditures were not advanced, the bailiff shall issue a concluding their collection under the slip of the enforcement expenses.
[…]
(7) the conclusion of enforcement expenses on payment of or refusal to issue such a decision can be appealed in the manner referred to in article 66 of this code. "


Article 44Drepturile and obligations of parties "(1) In the execution of the process, the parties have the right to: [...]
k) to appeal the bailiff acts;
[…]”


Article 66Încheierile bailiff "[...]
(2) the termination of bailiff law is enforceable from the moment of issue and can be challenged within 10 days from the date of such communication, the Court in the bailiff's Office is located or, in the case of the Chisinau municipality, the Court in whose constituency the Chamber of bailiffs of the established competence of the bailiff If the law does not provide otherwise. Challenging the discharges of the bailiff may not be a ground for the suspension of execution, except in the cases provided for in this code. "
In the author's Arguments exception. unconditional-stituționalitate 9. The exception of unconstitutionality, reasoning the author claims that the proceeds unilaterally forced execution expenses, through a bailiff, to discharge the debtor a right to deprive to argue a position, to present evidence, to take cognizance of the evidence brought by the bailiff in the execution of expenditure.
10. in addition, the author considers that the exception collection enforcement expenditure involves a dispute between the parties unequivocally the procedure of execution, since one of the parties might object with respect to the amount of the sums received by way of execution or the merits of the charges alleged expenses are written off. However, the provisions of article 36 para. (5) of the enforcement code provides bailiff right to charge the costs of enforcement in the absence of a judicial decision irrevocable, which violates the right of the debtor to a fair trial.
11. Thus, the author claims that the non-constitutionality exception provisions contrary to the provisions of the contested articles 26, 114 and 115 of the Constitution.
B. Assessment Of The Court 12. Examining the admissibility of the referral regarding constitutionality exception, the Court notes the following.
13. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws, in this case the executing Code of the Republic of Moldova, nr. 443-XV of 24 December 2004, is the responsibility of the Constitutional Court.
14. the Court finds that, having been raised by lawyer Obaid Noviţchi in file No. 25-994/15, on the role of the Court of Botanica, Chisinau municipality. Chisinau, referral concerning the plea of unconstitutionality is made by the subject in charge with 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.
15. 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.
16. the Court note that exception object unconstitutionality is the text "the amounts to be paid as expenses of execution shall be levied on the basis of a conclusion issued by the bailiff, without summoning the parties. The conclusion is a document enforceable ' in article 36 paragraph 1. (5) of the enforcement code.
17. the Court notes that article 36 para. (5) of the enforcement Code establishes the procedure for the collection of costs of enforcement by the bailiff.
18. the Court notes that the author contends that the contested exception are contrary to articles 26, 114 and 115 of the Constitution.
19. the court notice that a legal provision may constitute the object of the constitutional jurisdiction only where the alleged constitutional rules have impact on the contested rules.
20. In this connection, the Court indicates that, according to article 24 para. (2) of the law on the Constitutional Court and article 39 of the code of constitutional jurisdiction, the appeal shall be reasoned and contain subject matter and circumstances based on their subject matter requirements.

21. Note that Court bailiffs are invested with the authority to carry out tasks in the public interest, namely the enforcement of enforceable documents civil, procedural documents and lists of public authority having conclusive force specifies the instrument (see article 1-3 of law No. 113 of 17 June 2010 on bailiffs).
22. the Court finds that the conclusion on payment of expenses of enforcement, issued according to law, meets the elements of a legal administrative act, therefore, the bailiff has not resolved a dispute, but merely sets out the amounts to be paid as expenses.
23. Furthermore, the Court notes that, in accordance with article 36 para. (7) paragraphs 1 and 2, 44. (1) (a). 66 k) and paragraphs 1 and 2. (2) of the enforcement code, the conclusion of the bailiff on payment of expenses of enforcement can be challenged within 10 days from the date of the communication, in court. Thus, the person who considers himself injured in his rights-obligation of the borrower or lender-may make an opposition to the Court, the costs of enforcement would not be laid down in accordance with the provisions laid down by law, access to justice of the parties not being restricted.
24. In this context, the Court note that constitutional provisions contained in art. 114 concerning the administration of Justice and art. 115 concerning the courts have no incidence in this cause.
25. With regard to the alleged violation of article 26 of the Constitution, which provides for the right of defence, the Court finds the lack of relevant and cogent arguments by which author exception would show to what extent the impugned legal provisions violating constitutional norms invoked.
26. Moreover, the Court may not withhold criticism made of the text of the law in relation to the constitutional provisions concerning the right to legal defence, whereas the text of what is subject to the exception does not prevent participants from the enforcement procedure to be assisted by a lawyer.
27. Therefore, the court notice that, in the absence of the incidence rules in articles 114 and 115 of the Constitution upon the provisions challenged, and in the absence of provisions in the determination that criticized detract the right to defence, the appeal regarding constitutionality exception does not meet the conditions for eligibility and cannot be accepted for examination.
Under article 26 para. (1) and 31 of the law on the Constitutional Court, articles 61 para. (1) and (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 plea of unconstitutionality of the text "the amounts to be paid as expenses of execution shall be levied on the basis of a conclusion issued by the bailiff, without summoning the parties. The conclusion is an enforceable document. "in article 36 paragraph 1. (5) of the enforcement code of the Republic of Moldova, nr. 443 of 24 December 2004, raised in the Attorney Noviţchi Olesea nr. 25-994/15, pending at the Court of Botanica, Chisinau municipality. Chisinau.
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