The Exception Of Unconstitutionality Of Certain Provisions Of The Annex To The Law No. 793 Of February 10, 2000 (Access To Justice And Deputy Head Of The State Chancellery Office Territoriality) (Notification No. 69G / 2015)

Original Language Title: privind excepţia de neconstituţionalitate a unor prevederi din Anexa la Legea contenciosului administrativ nr. 793 din 10 februarie 2000 (accesul la justiție al șefului și adjunctului oficiului teritorialal Cancelariei de Stat) (Sesizarea nr. 69g/2015)

Read the untranslated law here: https://www.global-regulation.com/law/moldova/5967560/privind-excepia-de-neconstituionalitate-a-unor-prevederi-din-anexa-la-legea-contenciosului-administrativ-nr.-793-din-10-februarie-2000-%2528accesul-la-j.html

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On behalf of the Republic
Constitutional Court, sitting as the composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA,
Mr. Victor POPA, Mr. Veaceslav
Zaporojan judges
with Ms Ana Florean, Registrar,
Considering the complaint filed on June 9, 2016
and registered on the same date
examining the notification mentioned in open session given
regard to documents and materials,
deliberated in closed session
Delivers the following judgment: PROCEDURE

1. The case originated exception of unconstitutionality is the phrase "and his deputy 'in pt. 15 of Annex to the Law no. 793 of 10 February 2000 raised by lawyer Valeriu Stanescu, in case no. 3-74 / 15, before the Court Cimişlia.
2. The referral was submitted to the Constitutional Court on 9 June 2016 by Zinaida Arama, judge of the Court Cimişlia, under Article 135 para. (1) a) and g) of the Constitution, as interpreted by the Constitutional Court Decision no. 2 of 9 February 2016 and the Regulation on the procedure for examining complaints lodged with the Constitutional Court.
March. Author exception of unconstitutionality claimed, essentially, that the provisions of section. Annex 15 of the Administrative Litigation Law, which exempts the deputy head of the territorial office of the State Chancellery of appealing to the administrative court are contrary to Articles 1 para. (3), 20 and 54 of the Constitution.
4. By the Constitutional Court decision of June 14, 2016 notification was admissible, without prejudging the merits.
May. In examining the notification, the Constitutional Court requested the opinion of Parliament, the President of Moldova and the Government.
June. The public plenary of the Court the exception of unconstitutionality was presented by lawyer Valeriu Stanescu. The government was represented by Mr Eduard Serbenco, deputy minister of justice, and Natalia Petcu, senior consultant in the General Division for decentralization policies and local administration of the State Chancellery. Parliament representative did not attend the meeting of the Court.

CIRCUMSTANCES main proceedings 7. On 13 October 2015, the Deputy Secretary General of the State Chancellery issued Order no. 146-p, which released the Michael maggots from the position of deputy chief of Hincesti territorial office of the State Chancellery.
August. On 3 December 2015 maggots Michael submitted to the Court Cimişlia action in an administrative court against the State Chancellery, which sought the annulment of the release order, reinstatement, payment of compensations for the period of forced absence from work and moral damages.
September. The lawsuit asked the State Chancellery under Article halt the process. 4 letter a) and section. Annex 15 of the Law on administrative and art. 265 lit. a) of the Code of Civil Procedure, arguing that the action of maggots Michael is exempted from judicial control.
10. At the hearing on January 21, 2016 called for the lifting lawyer Valeriu Stănescu exception of unconstitutionality of the phrase "and his deputy" in section. 15 of the Annex to the Law no.
793 of February 10, 2000 and notifying the Constitutional Court.
11. By concluding Cimişlia District Court of 18 February 2016 has discontinued the civilian.
12. On 22 February 2016, the lawyer Valeriu Stanescu appealed on terminating the conclusion of 18 February 2016 on the grounds that the court first had to decide mainly on his approach on raising the objection of unconstitutionality.
13. On 12 April 2016 the Court of Appeal upheld the appeal and canceled the first instance for retrial because basically sending.
14. On 24 May 2016, the Court ordered the lifting Cimişlia exception of unconstitutionality and transmission of referral to the Constitutional Court for resolution.

RELEVANT LAWS 15. The relevant provisions of the Constitution (republished in the Official Gazette, 2016 No. 78, Article 140) are as follows:
Article 1 Moldova State


"[...] (3) 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." || | 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 54 Restriction of certain rights or freedoms

"(1) In the Republic of Moldova can not adopt laws that would suppress or weaken fundamental rights and freedoms of man and citizen.
(2) The exercise of rights and freedoms can not be subjected to any restrictions other than those prescribed by law and which meet generally accepted principles of international law and am required national security interests, territorial integrity, economic welfare, public order, to prevent mass riots and crimes, protecting the rights, freedoms and dignity of others, preventing disclosure of confidential information or guarantee the authority and impartiality of the judiciary.
(3) The provisions of paragraph (2) do not restricting the rights proclaimed in Articles 20 to 24.
(4) The restriction must be proportionate to the situation that caused it and can not touch the existence of the right or freedom. "
16. The relevant provisions of Law no. 793-XIV of 10.02.2000 (republished in MO, special edition of 3 October 2006) are:

Article 3Obiectul administrative court action

"(1) The object of the action in administrative court is the administrative acts with normative and individual character, which is hurt by a legal rights of a person, including a third party, issued by:
a) public authorities and assimilated authorities under this law;
B) subdivisions of public authorities;
C) officials of bodies specified in subparagraph a) and b).
[...].

Article 4Actele exempt from judicial review

"I can not be challenged in the administrative courts:
a) exclusively political acts of Parliament, the President of Moldova and the Government and individual administrative acts issued by Parliament, the President of Moldova and Government in exercise of powers expressly provided by constitutional norms or laws pertaining to the selection, appointment and dismissal from public office responsible for the protection of the general interests of the State or public institutions of public officials, representative of a particular political or public special according to the list appended to this part of this Act;
[...] "

AnexăLista public officials, representative of a political or public interest
particularly
exempted from appealing to the administrative court

"[...]
15. The head of the territorial office of the State Chancellery and his deputy
[...] "
17. The relevant provisions of the Regulation on the organization and functioning of territorial offices of the State Chancellery, approved by Government Decision no. 845 of 18 December 2009 (OJ 2009, no. 189-190, art. 923), are:
"5. General management of the Office shall be the Head of the Office, which is the government in the territory. The Head Office is appointed and dismissed by the Government at the proposal of the Secretary General of the Government. [...]
15. Head Office in its activity is assisted by deputy heads of the Office, appointed and dismissed by government decision on a proposal from the Secretary General of the Government. [...]. "

THE LAW 18. From the content of the notification, the Court notes that it aims essentially exempt from addressing the administrative court of persons holding a public dignity.
19. Thus, the notification relates to a range of factors related constitutional principles, such as access to justice and limits restricting this right.
A.
ADMISSIBILITY 20. By decision of 14 June 2016, the Court examined the admissibility following conditions are met:
(1) Subject plea falls into the category of documents contained in Article 135 para. (1) a)
21 of the Constitution. Under Article 135 para. (1) a) of the Constitution, the constitutionality of laws, namely the Law no. 793-XIV of 10 February 2000 the competence of the Constitutional Court.

(2) exception is raised by a party or its representative, or indicate that it is raised by the court of its own motion
22. Being raised by lawyer Valeriu Stanescu file no. 3-74 / 15, which is pending before the Court Cimislia notification on the objection of unconstitutionality formulated by the legally authorized subject, as established by the Constitutional Court Decision no. 2 of 9 February 2016 and the Regulation on the procedure for examining complaints lodged with the Constitutional Court.
(3) The provisions challenged to be applied to solving the case
23. The Court held that the power to handle exceptions of unconstitutionality, which was vested 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.
24. The Court observes that the object of the objection of unconstitutionality is the provisions of pt. 15 of Annex to the Law no. 793 of 10 February 2000 to be applied to the case.
(4) There is an earlier judgment of the Court covering
25 contested provisions. The Court emphasizes that the contested provisions in the current newsroom were not subject to review constitutionality.
26. The Court therefore considers that the notification can not be dismissed as inadmissible and there is no other reason to stop the process, in accordance with Article 60 of the Constitutional Jurisdiction Code.
27. Meanwhile, although the dispute before the court is concerned only the position of deputy head of the territorial office of the State Chancellery, respectively exception of unconstitutionality was raised only this, the Court notes that, given the fact that both " head "and" deputy head "of the territorial office of the State Chancellery are subject to the same rules of appointment, pt. 15 of the Annex to the administrative litigation Law to be fully examined.
28. Thus, to elucidate the issues addressed in the complaint, the Court will examine the alleged violation of Article 20 of the Constitution in respect of the observance of the principle of free access to justice, taking into account the principles enshrined in its case, and the European Court of Human Rights (hereinafter - the European Court).
B. MERITS OF THE CASE
ALLEGED VIOLATION OF ARTICLE 20 OF THE CONSTITUTION
29. According to the author exception of unconstitutionality, constitutional provisions submitted infringes Article 20 of the Constitution, which states:
"(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. "
A. Arguments exception of the non-stituţionalitate author
30. In motivating the exception of unconstitutionality, the author claims that the exemption deputy head of the territorial office of the State Chancellery of appealing to the administrative court violates the access to justice, enshrined in Article 20 of the Constitution.
31. The author mentions that exception, although after amendments introduced by Government Decision no. 333 of March 23, 2016 and the deputy head of the territorial office of the State Chancellery are appointed by the Government, before they were appointed by the Secretary General of the State Chancellery.
32. The author of the objection demonstrates that the inclusion of the section. 15 of the Annex to the Administrative Litigation Law of the function of deputy head of the territorial office of the State Chancellery, which until changes in 2016 was appointed by order of the Secretary General of the Government, contrary to art. 4 letter a) the Administrative Litigation Law, according to which only individual administrative acts issued by the Government are exempted from judicial control.
B. arguments authorities

33. In his opinion, the Moldovan president said people exempt from judicial review, included in the Appendix to the Administrative Litigation Law, is divided into two categories, namely officials exponents of a particular political interest and of a particular public interest. Given that Parliament has so far not adopted the legal framework relevant to the delimitation of these categories of officials, the President believes that in this case the Court is to decide whether the function judgment in this case is an official public character special.
34. According to the Government, deputy head of the territorial office of the State Chancellery is a public dignity function exercised by warrant and obtained indirectly by appointment under the law and under Article 22 para. (3) of Law no. 199 of 16 July 2010 on the status of public functions dignitary's mandate may be terminated early dismissal or dismissal thereof.
35. The government maintains that since those stated in the Law on administrative hold public responsibilities to protect the general interests of the State or public institution, restricting access to administrative justice to these people is justified.
36. In his opinion, Parliament stated that Article 20 of the Constitution are primarily concerned with the protection of civil rights and obligations, and not to protect political obligations. Given that Article 43 of the Constitution enshrines the right person to work, and Article 39 para. (2) of the Constitution - ensuring access to public office, Parliament argues that these are two distinct rights, and if an individual aggregate, they represent one political right.
C. The Court's assessment
1. General principles on access to justice for persons
37 public dignitaries. The Court emphasizes that the principle of free access to justice, enshrined in Article 20 of the Constitution, is the faculty of any person to bring an action in court, involving correlative obligation of the state to solve this action.
38. By generality of its wording, Article 20 allows any person - citizen of Moldova, foreign citizens - access to justice. At the same time, it allows access to justice for the protection of any right or legitimate freedoms and any interest, whether it results from the Constitution or other laws.
39. Access to justice is enshrined as a fundamental citizens' right, both by Article 6 paragraph 1 of the European Convention and Article 10 of the Universal Declaration of Human Rights as well as Article 14 paragraph 1 of the International Covenant on the Rights civil and political rights.
40. At the same time, both in the jurisprudence of the Constitutional Court and in the European Court found unanimously that access to justice is essentially an absolute and may be limited when the limitations are reasonable and proportionate to the aim pursued.
41. The European Court stressed that the limitations set by national law may not affect the substance, but must pursue a legitimate aim and be a proportionate relationship between measures established and purpose.
42. In the context of the clarified, the Court holds that access to justice as an inherent aspect of the right to a fair trial can not be charged unless required by Article 6 paragraph 1 of the European Convention, which guarantees may be waived only insofar cited supra.
43. With reference to access to justice State officials, Vilho Eskelinen and others in Case vs. Finland, the European Court established that: "For a respondent State to invoke the Court's official status of an applicant in order not applying the protection provided by Article 6, two conditions are necessary. First, the domestic law of the country concerned must expressly exclude access to a court with reference to the post or category of employees concerned. Secondly, this derogation should be the basis for objective reasons relating to the interests of the State ".

44. Taking into account the requirements set by the European Court in Case Vilho Eskelinen etc. vs. Finland, the Court examined the categories of documents for the appointment or dismissal of public officials who are exempted from judicial control (10 from 16.04.2010 HCC, HCC no. 29 of 21.12.2010).
45. The Court found that, according to art. 4 letter a) the Administrative Litigation Law, the legislature officials divided into two categories: 1) officials exponents of a particular political interest and 2) officials exponents of public concern.
46. The Court held that the first category includes persons holding political office within political institutions that are eminently political figures and the exercise should show loyalty and consistency to achieve political goals. Thus, the Prime Minister, ministers must show consistency, loyalty and attachment to political governance program, which were sworn to fulfill these positions. Realizing the objectives of building a democratic state can limit the legal protection of special rights of these people work in the ordinary courts or specialized. If this category of people access to justice, as the case may be limited, the second category of officials, especially those called for tenure, require a certain degree of independence. Depending duties of these individuals do not behave direct engagement in political activity of the state, they are conducted only by law, the procedure of establishing and their dismissal from office is expressly provided in the special laws. Thus, in order to fulfill in good faith the public functions and the full exercise of the mandate for which they were elected or appointed, if there is a labor dispute, such persons shall enjoy the guarantees of a fair trial.
47. In this respect, taking account of the fact that the art. 135 par. (1) a) of the Constitution empowers the Constitutional Court to review the constitutionality of all acts of Parliament, Government and President of Moldova without making a distinction between legislative acts and individual, the Court concluded that the acts of an individual nature, issued by the Parliament, the President of Moldova Government, referring to officials exponents of particular public interest, elected or appointed during the term, subject to review constitutionality can do in terms of form and procedure for adoption.
48. The Court also points out that the Address Resolution no. 29 of 21.12.2010 noted the need for the legislature to operate in the Appendix to the Administrative Litigation Act distinguishes between state officials, representative of a particular political interest, and state officials, representative of a particular public interest, to exclude misinterpretation of the law and violation of art. 20 of the Constitution, change that to date has not been operated.
2. Applying the principles to the present case
49. The Court finds that the Annex to the Administrative Litigation Law establishes the list of public officials, representative of a particular political or public interest, which are exempt from appealing to the administrative court. According pt. 15 of Schedule are exempt from appealing to the administrative court and "the head of the territorial office of the State Chancellery and his deputy".
50. The Court notes that, according to art. 4 letter a) the Administrative Litigation Law, only administrative acts individually related to the election, appointment and dismissal from public office of public officials, representative of a political or public interest particularly, given by Parliament, the President of Moldova and the Government, can be exempt from judicial review.
51. The Court notes that according to section. 15 of the Regulation on the organization and functioning of territorial offices of the State Chancellery, approved by Government Decision no. 845 of 18 December 2009, prior to the amendments made by Government Decision no. 333 of 23 March 2016, the Office deputy was appointed and dismissed by the Secretary General of the Government.
52. The Court finds that, by Government Decision no. 333 of 23 March 2016 pts. 15 of the Regulation on the organization and functioning of territorial offices of the State Chancellery has been altered so the deputy being appointed and dismissed by government decision on a proposal from the Secretary General of the Government.

53. The Court notes that although art. 4 of the Administrative Litigation Law expressly states that can not be challenged in the administrative court only acts of Parliament, the President of Moldova and the Government, the Law are exempt from addressing the court and people were appointed and dismissed from office by departmental administrative acts, namely the act of Secretary general of Government (deputy) appointment and dismissal of deputy territorial office of the State Chancellery.
54. The Court points out that the inclusion of this feature in the list of public officials, representative of a particular political or public interest, whose acts of appointment or removal shall be exempt from judicial review, the legislature did not take into account all legal provisions. In this regard, the Court notes that the prohibition to challenge the court order the Secretary General of the Government is contrary to Article 20 of the Constitution.
55. The Court notes that although the following amendments introduced by Government Decision no. 333 of March 23, 2016 the Regulation on the organization and functioning of territorial offices of the State Chancellery, like Head Office, and his deputy is appointed and dismissed by government decision, the Court will determine if it meets the constitutional provisions excluding from judicial review provisions appointment and dismissal of the head and deputy territorial office of the State Chancellery, taking into account the status of this function and the reasons given in constitutional jurisprudence.
56. Thus, in its case law (No. 10 of 16.04.2010 HCC, HCC no. 29 of 21.12.2010), the Court justified limiting the ways to protect the rights of the officials working special exponents of a particular political interest, but not remember this justification for people exponents of particular public interest, depending on the tasks which does not involve direct engagement in political activity of the state.
57. In this regard, the Court held that the acts of an individual nature, issued by the Parliament, the President of the Republic of Moldova and the Government with respect to persons, conditions of appointment and dismissal of which are determined by law, will be subject to review constitutionality in terms of form and the adoption procedure.
58. Referring to the present case examined, the Court notes that, according to Law no. 199 of 16 July 2010 on the status of public functions, and the deputy head of the territorial office of the State Chancellery are people dignitary. At the same time, the Court finds that the regulatory framework for these functions does not establish criteria for the appointment or dismissal.
59. The Court notes that territorial offices of the State Chancellery are subdivisions of the State Chancellery aimed at achieving territorial administrative control of the legality of acts of local authorities.
60. Under the law on local government, local authorities work the first and second levels is subject to the administrative, including the legality and appropriateness control, conducted by the State Chancellery through its regional offices.
61. Thus, given the functional skills, the Court notes that those functions do not fall into the category of political functions, to justify the exclusion of people from the protection they hold special rights work.
62. The Court notes that persons are trained in special working relationship. As a result, although they are appointed and removed from office by Government decision in the absence of strictly defined criteria, they receive special rights and guarantees of employment, resulting from the general rules of labor law and taking into account the peculiarities of administrative contracts.
63. The Court notes that, unlike the provisions of appointment and dismissal of other officials of State Government decision on the chief and deputy territorial office of the State Chancellery may not be subject to constitutional review. Or in its case, the Court said that will be submitted to constitutional provisions for the appointment or removal of persons exponents of particular public interest, designated office during a term, for which the law sets out clear criteria for appointing and dismissing. The Court also points out that this function is not none enshrined at constitutional level.

64. In view of the foregoing, the Court finds that the exemption provisions of appointment and dismissal of the chief and deputy territorial office of the State Chancellery from contesting in administrative court deprive these people of the right of access to justice and, in a finally, the right to a fair trial, contrary to Article 20 of the Constitution.
For these reasons, pursuant to Article 140 para. (2) of the Constitution and Article 26 of the Law on Constitutional Court, Articles 6, 61, 62 lit. a) and 68 of the Code of Constitutional Court Constitutional

DECIDES:

1. It recognizes the exception of unconstitutionality of lawyer Valeriu Stanescu file no. 3-74 / 15 pending before the Court Cimişlia.
2. It unconstitutional paragraph 15 of Annex to the Law no. 793-XIV of 10 February 2000. 3
. 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.