Inadmissibility Of Referral No. 61G/2016 Regarding Unconstitutionality Of Exception To Article 17 Paragraph 1. (1) (A). (C) Administrative Courts) Of The Law No. 793-Xiv Of 10 February 2000 (The Deadline For Contesting The Claim In The Court Of Laws, Admi

Original Language Title: de inadmisibilitate a sesizării nr. 61g/2016 privind excepţia de neconstituţionalitate a articolului 17 alin.(1) lit. c) din Legea contenciosului administrativ nr.793-XIV din 10 februarie 2000 (termenul de contestare în instanța de judecată a actelor admi

Read the untranslated law here: https://www.global-regulation.com/law/moldova/5967557/de-inadmisibilitate-a-sesizrii-nr.-61g-2016-privind-excepia-de-neconstituionalitate-a-articolului-17-alin.%25281%2529-lit.-c%2529-din-legea-contenciosului-a.html

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    The Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Mr. Talal Igor DOLEA, GEOGRAPHIC LOCATION, Mr. Victor POPA, judges, with the participation of Mrs. Ludmila Chihai, Registrar, considering the appeal filed on May 23, 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 plea of unconstitutionality of article 17 paragraph 2. (1) (a). (c) administrative courts) of the law No. 793-XIV of 10 February 2000, raised by Nicolae Girbu in civil No. 3-108/2016, pending before the Court, mun. Chişinău.
2. The appeal was lodged with the Constitutional Court on 23 May 2016 by judge Ghenadie Bîrnaz, 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 24 June 2014, under an order of the State ecological Inspectorate, Nicolae Girbu was dismissed from public office of the internal auditor within the internal audit Service of the State ecological Inspectorate, as disciplinary sanction applied for committing an disciplinary.
4. On 23 July, 2014, Nicolae Girbu has made a prior request to the State ecological Inspectorate, by requesting the annulment of the order of 24 June 2014, restoring the public function, the payment of wages for the forced absence from work and moral injury. Letter from the State ecological Inspectorate, which was rejected by the previous request of the claimant, the upstart from august 26, 2014.
5. On 22 September 2014, disagreeing with the answer, Nicolae Girbu filed at Court Râșcani, mun. Chisinau, a third trial against the State ecological Inspectorate. During the meeting of March 22, 2016, Nicolae Girbu has called for the lifting of non-constitutionality exception to article 17 paragraph 1. (1) (a). (c) administrative courts) of the law No. 793-XIV of 10 February 2000.
7. by the conclusion of 28 April 2016, the Court suspended the process, raising the unconstitutionality and the passing exception of referral to the Constitutional Court for settlement.
B. relevant Legislation 8. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are the following:% quot% article 20 access 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.
[…]”


 Article 43 the right to work and protection of labor "(1) everyone has the right to work, to free choice of work, to fair and satisfactory conditions of work and to protection against unemployment.
[…]”


Article 53 of the injured person's right for a public authority "(1) any person aggrieved in a of a public authority through an administrative ruling or by his/her legal reply to an application, is entitled to obtain acknowledgement of those rights, the cancellation of and reparation for the damage.
[…]”


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. "
9. The relevant provisions of law No. 158-XVI dated 4 July 2008 concerning the public function and status of civil servant (Official Gazette, no. 2008, 230-232, art. 840) are as follows: Article 60Termenul action and challenging disciplinary sanction "(1) the period of disciplinary penalty may not exceed one year from the date of application, with exceptions provided by law.
(2) If, during this period, the public servant will not be subjected to a new disciplinary sanctions, it is considered that was not applied to disciplinary sanction.
(3) administrative disciplinary punishment Act can be attacked by a public servant in the Administrative Court in the manner provided by law. "
10. The relevant provisions of the law on administrative courts no. 793-XIV of 10 February 2000 (republished: M.O., 2006 Special Edition) are as follows: Article 16 filing the Administrative Court "(1) any person who considers himself aggrieved in his own right, recognized by law, by an administrative act and is not satisfied with the response received from the prior request or did not receive any response within the time limit prescribed by law , has the right to refer the matter to the competent administrative court to annul, in whole or in part by that Act and reparation for the damage caused.
(2) the action may be brought before the Administrative Court directly in the cases expressly provided for by law and in cases where it is not considered in any of his/her term through legal or by prior rejection of the application on the recognition of those rights, and reparation for the damage caused.
(3) the plaintiffs in actions arising from administrative reports, are exempted from payment of the State fee. "


Article 17Termenele the Court of appeal in administrative law "(1) the application requesting the annulment of an administrative act or the recognition of those rights may be lodged within a period of 30 days, where the law otherwise. That period shall run from the date of receipt): the response to the request of the prior or the date of expiry provided for by law for the resolution;
(b) the notification of refusal) to settle a claim requesting recognition of those rights or the date of expiry of the time prescribed by law for the resolution of such claims;
(c) notification of the administrative act), if the law does not stipulate the procedure.
[…]”
In the author's Arguments exception. unconditional-stituționalitate 11. In the non-constitutionality exception, reasoning the author argues that the rule in article 17 paragraphs 1 and 2. (1) (a). c) of the law on administrative courts is ambiguous as regards the time limit for appeal in the Administrative Court, which hinder access to justice.
12. Furthermore, the author alleges that the contested exception provisions contrary to the provisions of paragraph 1 of Article 355. (1) (a). of the labour code), according to which the application for the solution of individual labour dispute shall be submitted to the Court within three months from the date when the employee became aware, or ought to know about the violation of his right. In the context of the time limit established in Article 355 paragraph 2. (1) (a). of the labour code), was invoked as a violation of article 16 of the Constitution, according to which all citizens of the Republic of Moldova are equal.
13. In conclusion, the author argues that the disputed rule exception provisions articles 16, 20 para. (1), 43, 53 and 54 of the Constitution.
B. Assessment Of Court 14. Examining the admissibility of the referral regarding constitutionality exception, the Court notes the following.
15. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution) the constitutionality of laws, in particular the law on administrative courts, the competence of the Constitutional Court.
16. the Court finds that the appeal relating to the exception of unconstitutionality, raised by Nicolae Girbu in file No. 3-108/2016, pending before the Court, mun. 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.
17. Note that Court the prerogative to address the exceptions of unconstitutionality, which has been vested in it by article 135 paragraph 1. (1) (a). g) of the Constitution, requires correlation of laws and the Constitution, taking into account the principle of the supremacy of its provisions and to address the relevance of the contested dispute in the courts.

18. the Court note that the object of non-constitutionality exception is article 17 paragraph 2. (1) (a). c) of the law on administrative courts, in accordance with which the application requesting the annulment of an administrative act or the recognition of those rights may be lodged within a period of 30 days, where the law otherwise, flowing from "notification of the administrative act, if the law does not stipulate the procedure."
19. The Court notes that the referral, author, criticizing laws exception enunciated above, relied on the alleged infringement of articles 16, 20 para. (1), 43, 53 and 54 of the Constitution.
20. the Court points out 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. the Court considers it necessary to point out that a legal provision may constitute the object of the constitutional jurisdiction only where the alleged constitutional rules have impact on the contested rules.
22. In this regard, referring to the alleged violation of articles 16, 43, 53 and 54 of the Constitution, the Court noted that the author of the non-constitutionality exception has not shown causality between these provisions and challenged.
23. With regard to infringements of the provisions of article 20 of the Constitution, in its case law the Court held that the right of access to justice cannot be an absolute right, it can involve limitations, including procedural, as long as they are reasonable and proportionate to the aim pursued.
24. the Court points out that the exercise of free access to justice and the right to a fair trial cannot take place only within a specific legal framework established by the legislator, subject to certain requirements in order to prevent any abuses and delaying resolution of the causes of the deduced the judgment.
25. the Court observes that the contested rule establishes the time limit for instituting the Court judgment on the annulment of an administrative act and the time from which the time limit begins to run. Thus, if the law does not stipulate the procedure for prior, the application requesting the annulment of an administrative act or the recognition of those rights may be lodged within 30 days of the notification of the administrative act in the administrative court.
26. Furthermore, the Court observes that article 60 paragraph 1. (3) of the law on public function and status of public functionary provides that administrative disciplinary punishment Act can be attacked by a public servant in the Administrative Court in the manner provided by law.
27. Thus, in the light of the provisions of the Court, keep in mind that the provisions of article 17 paragraph 2. (1) (a). c) of the law on administrative courts clearly do not affect the free access to justice and the right to a fair trial, enshrined in article 20 of the Constitution, because it eliminates the opportunity to benefit from the rights and procedural safeguards established by law, within a process judged by an impartial and independent court established by law, within a reasonable time.
28. At the same time, the Court notes that, in essence, to refer to a review of the rule includes contested in relation to other legal provisions, which go beyond the scope of constitutional jurisdiction.
29. Therefore, pursuant to those exposed to supra, the Court noted that the exception of constitutionality 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. (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 appeal regarding plea of unconstitutionality of article 17 paragraph 2. (1) (a). (c) administrative courts) of the law No. 793-XIV of 10 February 2000, raised by Nicolae Girbu in civil No. 3-108/2016, pending before the Court, mun. 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