For The Constitutionality Of Certain Provisions Of The Governmental Decision Nr. 79 Of 23 January 2006 On The Approval Of The List Of Narcotic Drugs, Psychotropic Substances And Plants Containing Such Substances Were Detected In Illicit Trafficking, An...

Original Language Title: pentru controlul constituţionalităţii unor prevederi ale Hotărârii Guvernului nr. 79 din 23 ianuarie 2006 privind aprobarea Listei substanţelor narcotice, psihotrope şi a plantelor care conţin astfel de substanţe depistate în trafic ilicit,  precum şi can

Read the untranslated law here: https://www.global-regulation.com/law/moldova/5967625/pentru-controlul-constituionalitii-unor-prevederi-ale-hotrrii-guvernului-nr.-79-din-23-ianuarie-2006-privind-aprobarea-listei-substanelor-narcotice%252c.html

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$20 per month, or Get a Day Pass for only USD$4.99.
for the constitutionality of certain provisions of the governmental decision nr. 79 of 23 January 2006 on the approval of the list of narcotic drugs, psychotropic substances and plants containing such substances were detected in the illicit traffic and the quantities thereof (Referral No. 30a/2015)



Published: 22.01.2016 in the Official Gazette No. 13-19 art Nr: 1 date of entry into force: 13.10.2015 In the name of the Republic of Moldova, 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. Maddox Bro, Registrar having regard to the appeal lodged on 10 July 2015 and registered on the same date examining the appeal referred to in public plenary, taking into account the laws and proceedings, Acting in plenary sitting, Pronounce the following judgment: 1. The origin of the case lies the appeal lodged with the Constitutional Court on 10 July 2015 of the Parliament Deputy, Ms. Elena Bodnarenco, under articles 135 para. (1) (a). of the Constitution, 25) lit. g) of the law on the Constitutional Court and 38 para. (1) (a). g) of the code of constitutional jurisdiction, for the constitutionality of certain provisions of the governmental decision nr. 79 of 23 January 2006.
2. Government decision No. 79 of 23 January 2006 provides the list of narcotic, psychotropic substances and plants containing such substances were detected in the illicit traffic and the quantities thereof in order to determine the proportions of "small", "large" and "particularly large".
3. The author of the referral alleged, inter alia, that the establishment of narcotic substances proportions of Government decision contrary to articles 6, paragraph 1, 60. (1), 72 66, para. (3) (a). 102 n) and para. (2) of the Constitution and represents an interference of the Executive in the powers of Parliament.
4. In the process of examination referral, the Constitutional Court requested the opinion of the President, Parliament, Government, the Prosecutor-General.
5. The author of the referral was not present at the plenary session of the Court. Parliament was represented by Mr Valeriu Kuchuk, lead counsel in the General Legal Division of the Parliament Secretariat. The Government was represented by Mr. Oleg Babin, Deputy Minister of Internal Affairs, and Sergiu Ţurcanu, head of the legal Directorate of the Inspectorate-General of police.


In FACT 6. The article 1341 of the penal code, the legislator defines addiction and psychotropic substance, the precursor, and put in charge of the Government establishing the list of narcotic, psychotropic substances and precursors.
7. On 23 January 2006, the Government adopted the judgment No. 79, which endorsed both list narcotic, psychotropic substances and plants containing such substances were detected in the illicit traffic and the quantities thereof.
8. Thus, by that judgment, the Government not only the list of narcotic, psychotropic substances and plants containing such substances, but also their quantities, which in turn contributes to the qualification of the offences and the individualisation of punishment on criminal or, where appropriate, establishing criminal liability.


PERTINENT LEGISLATION 9. The relevant provisions of the Constitution (M. A., 1994, nr. 1) are as follows: Article 6 Separation and cooperation of powers "in the Republic of the legislative, Executive and judicial powers are separate and cooperate in the exercise of their prerogatives under the Constitution."


Article 22Neretroactivitatea of law no one may be sentenced for actions or omissions which, at the time they were committed, did not constitute an offence. It also will not apply to any punishment harsher than the one that was applicable at the time of committing the Act offense. "


Article 60 of the Parliament, the Supreme representative and legislative body "(1) Parliament is the Supreme representative body of the people of the Republic of Moldova and the sole authority of the laws of the State."
[...]


Article 66Atribuţii "Parliament shall have the following powers: to) adopt laws, decisions and motions."
[...]


Article 72 Categories of laws [...]
"(3) by organic law shall regulate: [...]
n) offences, punishments and their execution arrangements. "
[...]


Article 102 acts of Government [...]
"(2) the decisions shall be adopted for organizing the execution of the laws."
[...]
10. The relevant provisions of the Criminal Code of the Republic of Moldova No. 985-XV of 18 April 2002 (reprinted in m. o., 2009, no. 72-74, art. 195) are as follows: Article 1341 narcotic, Psychotropic Substances and precursors "(1) by psychotropic substance addiction or substance shall mean natural or synthetic origin and preparation containing such a substance that causes mental and physical dependency to their abusive consumption.
(2) by analog of narcotics or psychotropic substance (s) means the substance that, according to its composition and effect which it produces, shall be assimilated to psychotropic substance or addiction.
(3) by means of the precursor substance of natural origin or synthetic material used as raw material in the manufacture of narcotic drugs or psychotropic substances.
(4) the lists of narcotic, psychotropic substances and precursors shall be approved by the Government.
(5) in the case of theft, extortion or other properties, actions illegal narcotic, psychotropic substances, analogs thereof, and with plants containing narcotic or psychotropic substances, large or small proportions, particularly large quantities shall be determined according to small, large or very large narcotics, psychotropic substances and of plants containing narcotic or psychotropic substances. "


Article 217Circulaţia illegal narcotics and psychotropic substances, theirs analogs or their disposal without end "(1) Sowing or cultivation of illicit plants containing narcotic or psychotropic substances, processing or use of such plants, committed in large proportions and without purpose of disposal, shall be punished by a fine of from 200 to 400 conventional units or work with community service of up to 100 hours , and a legal entity shall be sanctioned with a fine in the amount from 2000 to 4000 conventional units with deprivation of the right to exercise a certain activity or with liquidation of legal person.
(2) the manufacture, preparation, processing, retrieval, experimentation, acquisition, transformation, storage, dispatch, transporting the narcotic and psychotropic substances, theirs analogs, or their large committed and without purpose of disposal, shall be punished with fine in size from 400 to 700 conventional units or work with community service of up to 150 hours, or with imprisonment of up to 1 year , and a legal entity shall be sanctioned with a fine in the amount from 4000 to 6000 conventional units with deprivation of the right to exercise a certain activity or with liquidation of legal person.
3. the actions referred to in paragraph 1. (1) or (2), committed: b) of two or more persons;
B1) of a person who has reached the age of 18 years with the attraction of minors;
c) with the use of narcotics, psychotropic substances or their, theirs analogs whose movement for medicinal purposes is prohibited;
d) with the use of the service;
e) territory of educational institutions, social rehabilitation institutions, prisons, military establishments, in places in places of education activities, training of minors or other youth cultural and sports actions or in the vicinity thereof, shall be punished with imprisonment up to 4 years with depriving the right to occupy certain positions or to exercise a certain activity for a period of 2 to 5 years , and a legal entity shall be sanctioned with a fine in size from 6000 to 8000 conventional units with deprivation of the right to exercise a certain activity or with liquidation of legal person.
(4) the measures provided for in paragraph 1. (1), (2) or (3), committed: b) in very large, are punishable by imprisonment from 1 to 6 years with depriving the right to occupy certain positions or to exercise a certain activity for a period of 2 to 5 years, and a legal entity shall be sanctioned with a fine in size from 6000 to 10000 conventional units with deprivation of the right to exercise a certain activity or with liquidation of legal person.
(5) a person who has committed the actions referred to in article 217 or 2171 is released from criminal liability if he has contributed actively to the discovery or counteracting the crime of illegal circulation of narcotics and psychotropic substances, theirs analogs, or their appropriate, through voluntary teaching regarding self-denunciation, narcotic and psychotropic substances, theirs analogs, or their indication of the source of these substances, at disclosure to persons who have contributed to the Commission of the offence , to indicate the funds, assets or income resulting from the crime. Cannot be regarded as voluntary surrender of narcotic, psychotropic substances or their lifting them to theirs analogs detaining the person, as well as the conducting of criminal detection and raising them. "



Article illegal Circulation 2171 narcotic, psychotropic substances or their purposes of theirs analogs alienation "(1) Sowing or cultivation of plants containing narcotic or psychotropic substances, processing or use of such plants without a permit, committed for the purpose of disposal, shall be punished with fine in size from 900 to 600 conventional units or by imprisonment of up to 2 years , and a legal entity shall be sanctioned with a fine in size from 3000 to 5000 conventional units with deprivation of the right to exercise a certain activity or with liquidation of legal person.
(2) the manufacture, preparation, processing, retrieval, experimentation, procurement, processing, storage, transportation, dispatch, distribution or other illegal operations with narcotics, psychotropic substances or their analogues, performed with the purpose of sale or disposal of illegal narcotics, psychotropic substances or their, theirs analogs are punishable with imprisonment from 2 to 5 years, and a legal entity shall be sanctioned with a fine in the amount from 4000 to 6000 conventional units with deprivation of the right to exercise a certain activity or with liquidation of a person legal.
3. the actions referred to in paragraph 1. (1) or (2), committed: a) a person who has committed the same actions;
b) of two or more persons;
B1) of a person who has reached the age of 18 years with the attraction of minors;
c) with the use of narcotics, psychotropic substances or their, theirs analogs whose movement for medicinal purposes is prohibited;
d) with the use of the service;
e) territory of educational institutions, social rehabilitation institutions, prisons, military establishments, in places in places of education activities, training of minors or other youth cultural and sports actions or in the vicinity thereof;
f) large, is punishable with imprisonment from 3 to 7 years with depriving the right to occupy certain positions or to exercise a certain activity for a period of 3 to 5 years, and a legal entity shall be sanctioned with a fine in size from 6000 to 8000 conventional units with deprivation of the right to exercise a certain activity or with liquidation of legal person.
(4) the measures provided for in paragraph 1. (1), (2) or (3), committed: b) of a criminal group organized or a criminal organization or in their favor;
d) in very large, are punishable by imprisonment from 7 to 15 years with depriving the right to occupy certain positions or to exercise a certain activity for a period of 2 to 5 years, and a legal entity shall be sanctioned with a fine in the amount from 8000 to 10000 conventional units with its liquidation. "


Article 2174Sustragerea or narcotics or psychotropic substances, extortion (1) evading or narcotics or psychotropic substances, extortion is punishable by a fine of from 500 to 2000 conventional units or with community service work from 200 to 240 hours, or with imprisonment from 3 to 5 years.
(2) the same actions committed: b) of two or more persons;
c) with the use of the service;
d) by ingress into the room, in another room for storage or in housing;
e non-hazardous) with violence for the life or health of the person or with the threat of a such violence;
f) in large proportions, are punishable by imprisonment from 5 to 10 years with (or without) a fine in the amount from 1000 to 3000 conventional units.
3. the actions referred to in paragraph 1. (1) or (2), committed: a) an organized criminal group or by a criminal organization or in their favor;
b) with violence dangerous for the life or health of the person or with the threat of a such violence;
c) in very large, are punishable by imprisonment for 10 to 15 years with application of a fine in size from 3000 to 5000 conventional units. "
11. The relevant provisions of the code of administrative offences of the Republic of Moldova nr. 218-XVI dated October 24, 2008 (Official Gazette, 2009, no.4-6, art. 15) are as follows: Article 85Procurarea or keeping illegal drugs or other psychotropic substances in small quantities times eating such substances without a doctor's prescription "(1) the illegal Acquisition or retention, disposal, without purpose of drugs or other psychotropic substances in small quantities, as well as their consumption without the doctor's prescription is sanctioned with a fine of from 3 to 10 conventional units or with work community service of up to 40 hours.
(2) Is removed for administrative liability provided for in this article of a person who has voluntarily surrendered or other narcotic substances, psychotropic substances held illegally or who addressed or agree to apply voluntarily to a medical institution to be given the necessary assistance in connection with illegal consumption of narcotic substances and/or other psychotropic substances. "


Article 87Cultivarea illegal plants containing narcotic substances, psychotropic substances or other "illegal Cultivation of plants containing narcotic substances or other psychotropic substances without purpose of disposal, if the deed does not constitute a criminal offence, shall be sanctioned with a fine of 30 to 50 conventional units applied to a physical person, with fine from 100 to 300 conventional units applied to person with responsibility with fine from 300 to 400 conventional units applied legal entity with/without deprivation, in all cases, the right to engage in a certain activity for a period of 6 months to a year. "


In LAW 12. From the contents of the referral, the Court observes that it is aimed at essentially the hierarchy and legal force of the normative acts issued by the Parliament and Government, as well as the powers of the legislature and the executive authorities in the adoption and approval of laws aimed at criminal policy of the State.
13. Thus, the appeal relates specifically to the principle of legality and the fields of competence of the executive and legislative power, examined in the light of the principle of separation of powers and cooperation. The ADMISSIBILITY 14. In accordance with its decision of 4 September 2015, the Court noted that, under article 135 paragraph 1. (1) (a). the article of the Constitution). (1) (a). a) of the law on the Constitutional Court and to article 4 para. (1) (a). the Constitutional Jurisdiction of the code), the constitutionality of the Government's controlling decisions.
15. Articles 25 lit. g) of the law on the Constitutional Court and 38 para. (1) (a). g) of the code of Constitutional Jurisdiction authorizing Deputy in Parliament with the right to refer the matter to the Constitutional Court.
16. the Court observes that the object of constitutionality is the Government decision nr. 79 of 23 January 2006 in part providing for narcotics and psychotropic substances, quantities.
17. Note that the contested provisions of the Court have not been the object of notification constitutionality control.
18. Consequently, the Court considers that the appeal cannot be rejected as inadmissible and there is no other reason to interruption of the process, in accordance with the provisions of article 60 of the code of constitutional jurisdiction.
19. Furthermore, the Court notes that the prerogative which was granted to it under paragraph 1 of article 135. (1) (a). the Constitution requires) of the correlation between the rules and the Constitution, challenged in the light of the principle of the supremacy of the latter.
20. Therefore, in order to elucidate its compliance with the provisions of the contested constitutional provisions, the Court will operate, in particular, with the provisions of articles 72 and 102 combined with article 6 of the Constitution.
B. FUND CASE i. alleged infringement of articles 72 and 102 combined with article 6 of the Constitution. The author of the referral alleges that the provisions subject to constitutionality violates article 72 paragraph 1. (3) (a). n) of the Constitution, according to which: [...]
"(3) by organic law shall regulate: [...]
n) offences, punishments and their execution arrangements. "
[...]
22. in addition, the author invokes violations of article 102 referral para. (2) of the Constitution, which reads: [...]
"(2) the decisions shall be adopted for organizing the execution of the laws."
[...]
23. In the opinion of the author of the referral provisions subject to constitutionality, violates and article 6 of the Constitution, according to which: "in the Republic of the legislative, Executive and judicial powers are separate and cooperate in the exercise of their prerogatives under the Constitution."
1. Arguments of the author of the referral. The author of the referral contends that, pursuant to art. 1341 of the penal code, the Government was entitled to approve only the list of narcotic, psychotropic substances and plants containing such substances were detected in the illegal traffic, but not their quantity. Through the approval of the Government and quantities brandished the powers of the legislature.

25. Thus, according to the author of the referral, the quantification of the amount of illegal drugs in circulation which, according to the Government decision, can be in ' small proportions "," large "and" particularly large ", which depends on the qualification of the offence or contravention of law infringement, less serious, serious, serious, exceptionally, contrary to the provisions of article 7. 72 para. (3) (a). n) of the Constitution, considering that is not made by Parliament by an organic law, but through the decision of the Government.
26. At the same time, the author argues that if the organic law is not laid down huge content of the notions "small", "large" and "particularly large", the facts referred to in art. 2174, 2171, 217 of the penal code, as well as art. 85, 87 of the code of administrative offences, cannot be considered as delictuoase.
2. Arguments of the authorities. Parliament, in its opinion, said that the establishment of the Government decision of narcotic, psychotropic substances and plants containing such substances, found in illicit trafficking, no influence in terms of the institutional bodies of the State in combating illicit traffic in drugs. According to international practice, the regulation of competence regarding the establishment or quantities of psychotropic drugs is different in european countries, but the competence of executive bodies shall prevail.
28. In the opinion of the President of the Republic of Moldova by the proportions of large, small, or unusually large can be established by decision of the Government. The penal code, which is unique to the State criminal law, comprises only the principles and general provisions of criminal law and the facts constituting the offence and sentencing offenders.
29. The public tender to the Court Government representative supported the constitutionality of the challenged Act, stating that article 2 para. (3) of the law on narcotics and psychotropic substances circulation and their precursors empowers the Government with the sole power to set the rules for the movement of narcotic drugs, psychotropic substances and their precursors. Considering the speed with which develops drugs market, namely by modifying operative, made by decision of the Government, it is possible to include new substances in the list of prohibited preparations, and their qualification as narcotics, psychotropic substances or precursors.
30. According to a report by the Prosecutor General stated that, through art. 1341 para. (4) of the penal code, the legislature has delegated the responsibility to express the Government's approving the lists of psychotropic substances and narcotic drugs, and with the approval of the lists is to understand both the categories, types and characteristics of the respective substances and their quantities.
3. Assessment of the Court 3.1. 3.1.1. General principles The principle of legality in criminal law 31. The court notice that, according to article 72 of the Constitution, establishing the offences, punishments and the regulation of their execution is the responsibility of Parliament.
32. In its previous jurisprudence the Court has noted that one of the fundamental elements of the rule of law and of the rule of law is the principle of legality. Legality, as the basic tenet of the rule of law, determines conformity rule or legal act with higher standards that determine the conditions of the legal rules concerning the procedure edictarea. The rule of law is ensured by the entire legal system, including the criminal, they are characterized by certain features of its own, distinctive in relation to other categories of norms, what differentiates between them by character and their structure, through the scope of incidence. Criminal law acts of a general nature, it shall determine the situations and facts which are applicable to incriminând for nedeterminaţi and subjects without having the particular character or concrete (HCC No. 14 of May 7 2014).
33. the Court shall retain that pre-eminence of law, in criminal matters, the principle of legality of offences and punishments and the extensive application of the principle of inadmisibilităţii of criminal law, at the expense of the person, in particular by analogy.
34. the Court noted that the principle of legality of criminal within the meaning of rule nulum crimen sine lege, put in charge of the legislature two obligations: 1) provide in a legislative text the acts considered offences and penalties relating to pay (lex scripta); 2) to draw up the text of the law clearly (lex Brawl).
35. The European Court, in its case law, has consistently noted that the principle of the rule of law requires that any interference by the authorities in the individual's rights, which the European Convention protects them, be subject to a strict control. A norm is clear, accessible and predictable only when it is drafted with sufficient precision, so as to enable any person to give his correct demeanour and be able, with appropriate counselling, to provide, to an extent reasonable, the consequences which may arise from a norm (Silver s.a. v. the United Kingdom, 25 March 1983).
36. once the State adopts a solution, it must be implemented with clarity and coherence in order to avoid possible legal insecurity and uncertainty for subjects of law relating to the measures for the implementation of this solution (Păduraru vs. Romania, December 1, 2005, § 92).
37. In this regard, the European Court noted that the principle of legality of offences and punishments and the principle that the criminal law may not be applied extensively to the detriment of the accused, in particular by analogy, mean that an offence must be clearly defined by law. This condition is fulfilled when the individual may know, starting with the provision of the relevant rule and the interpretation of what is given in the case-law, what acts and omissions are likely to engage criminal responsibility (Kokkinakis v. Greece, of 25 May 1993).
38. At the same time, given the fact that criminal law is a strict, lex revealed that it may abound in incriminating texts or explanatory. Unlike other laws, criminal law should be interpreted by applying grammatical interpretation in conjunction with the teleological, which seeks explanation on the meaning of the legal rule on the basis of the finality of it.
39. Despite the accuracy of its criminal law, expressed through a lex Brawl, is a branch of law specifically sensitive due to the excess of the normative text should be subject to interpretation (especially in the case of objects, or the subjective side of the composition of the offense), including on the basis of norms of reference or interpreted.
40. the principle of legality, the formal relations between mainly sets the rules and the scope of their laws, which must therefore be different rules for the rules concerning their applicability.
3.1.2. the regulatory Limit of 41 Government. The Court reiterated that article 6 of the Constitution enshrines the principle of the separation of powers and cooperation, according to which the Republic of Moldova the legislative, Executive and judicial powers are separate and cooperate in the exercise of their prerogatives under the Constitution.
42. the Court recalls that, under the terms of the separation and cooperation of powers, the Government, under art. 102 paragraph 1. (2) of the Constitution, shall adopt decisions in order to organize the execution of the laws.
43. In its jurisprudence, the Court noted that Government decisions are consequential laws adopted by Parliament. The Government, as the Supreme executive body, in the exercise of their constitutional duties and those arising from the law on Government, organizes the execution of the laws, in issuing the ruling to clarify a law to make it clear as possible and to implement it as correct (HCC No 18 of October 6, 2005).
44. In the context of those mentioned, note that Court through penal law the legislature may empower the executive regulation of normative issues that interfere with the primary criminal rule.
45. In this regard, it is necessary that empowerment can be delineated the possible facts that are the subject of criminalisation, by the rules of legal interpretation.
3.2. International Regulations in the field of narcotic or psychotropic substances 46. Regulations in the field of drugs and their movements are to be found in the single Convention on narcotic substances, over done at New York on 30 March 1961; The 1971 United Nations Convention in respect of psychotropic substances; The United Nations Convention of 1988 against illicit traffic in narcotic drugs and psychotropic substances.
47. United Nations conventions classifies drugs according to their dangerousness for health, risk of abuse and their therapeutic value.
48. within the European Union framework decision preamble 2004/757/JHA of 25 October 2004 EU laying down minimum provisions concerning the constituent elements of the offences and penalties in the field of illicit drug trafficking provides that "in order to determine the level of sanctions, should be envisaged concrete elements such as quantities and type of drugs trafficked, [...]", and in accordance with article 4 Member States shall take the necessary measures to ensure the application of the death penalty, including when ") offence involves large quantities of drugs."

49. Thus, under international regulations, it is pointed out that for sentencing the quantity of drugs constitutes a determining criterion. The amount constitutes a main criterion in differentiating the legal circulation of narcotic drugs or psychotropic substances the illegal.
50. The establishment of the amount of these substances differ from State to State, which may use several criteria to distinguish between quantities, namely on the basis of criteria: "small" or "large"; According to the monetary value of the substances; According to the daily dose used; Depending on the weight of the active chemical substance involved.
51. in addition, in some countries the quantities covered by subsidiary sancţionatoare law acts (e.g. Austria, Greece, Portugal). In other States the legislature did not mention a single quantitative threshold, but only established the difference between possession for own use and for the purpose of disposal, setting the amount to be borne by the Court (e.g. France, Germany, Spain, Ireland, Sweden).
2.1. Application of the principles in this question 52. The court notice that penal law criminalizing illegal movements of psychotropic substances and narcotic drugs.
53. According to article 134/1, para. (5) of the penal code: "lists of narcotic, psychotropic substances and precursors shall be approved by the Government." By Government decision No. 79 dated 23 January 2006 was approved the list of narcotic, psychotropic substances and plants containing such substances were detected in the illicit traffic and the quantities thereof.
54. the Court noted that the legislation of the Republic of Moldova establishes criminal liability according to the material element (the objective side ways), purpose (purpose of disposal or none), and the proportions of small, large or very large.
55. Thus, the legislature established the "proportion" narcotics and psychotropic substances, and the plants they contain, as a mandatory qualification of offences referred to in articles 217, 2171, 2174 of penal code and a photographic plastic counterpart under articles 85, 87 of the code of administrative offences.
56. the Court notes that, according to art. 1341 para. (5) of the penal code, in the case of theft, extortion or other properties, actions illegal narcotic, psychotropic substances, analogs thereof, and with plants containing narcotic or psychotropic substances, large or small proportions, particularly large quantities shall be determined according to small, large or very large narcotics, psychotropic substances and of plants containing narcotic or psychotropic substances.
57. Thus, the Court shall specify the quantity of narcotic drugs, psychotropic and constitutes a criterion in differentiating the illegal movement of legal and contribute to the qualification of the offences.
58. the court notice that the legislature has to assess the extent of the Narcotics, psychotropic substances or plants containing them in similar quantities. Or, if the proportions are legal criteria of appreciation, then quantities are medical or physical criterion of assessment.
59. the Court finds that the decision of the Government No. 79 of 23 January 2006 was approved so the list of narcotic, psychotropic substances and plants containing such substances, found in illicit trafficking, as well as their quantity.
60. the Court shall retain the criminal norm that elucidate the direction involves determining the circumstances that gave rise to the adoption thereof and of the aims pursued by the legislator through adoption.
61. Thus, the Court stated that the content of the phrase "lists of substances", contained in paragraph 1 of article 1341. (4) of the penal code, to be understood to mean the Government's jurisdiction to regulate both psychotropic and narcotic substances categories and quantities thereof. Approval of the list of these substances without quantitatively regulation, would eviscerate the whole essence of the Government, which would thus be inapplicable.
62. Also note that Court and the notion of "quantity" of narcotics, psychotropic substances and plants containing narcotic or psychotropic substances within the meaning of art. 1341 para. (5) of the penal code and articles of the special part of the criminal law should be interpreted, including systemic conjunction with governmental decision nr. 79 of 23 January 2006.
63. With reference to article 6. 1341 para. (4) of the penal code, the Court noted that the existence of provisions interpreted in criminal constitute an expression of regulatory target, being a special way for the formulation of legal and criminal regulations.
64. without challenging the principle of codification of the criminal law, recourse to the provisions of the criminal code interpreted ensures stability of the criminal law, so that its contents must not be in direct proportion to the frequent amendments to normative acts, as well as subsequent systemic linkage with other regulations apply.
65. the Court noted that, given the fact that the examination is carried out on the field is in constant evolution and targeting not just rules in matters of criminal law, but also those relating to the protection of public health, the legislature may delegate to the Executive the power to regulate, through subordinate law acts, list of narcotic, psychotropic substances and their quantity.
66. At the same time, taking into account the fact that the legislative process involves several stages lasting jurisdictional Government's rationale follows from the need for prompt intervention in the regulatory framework with a view to regulating this area in the event of new substances with similar effects.
67. Furthermore, the Court finds that art. 2 (2). (3) of law No. 382 of 6 May 1999 relating to the movement of narcotic drugs and psychotropic substances and their precursors, and empowers the Government with the power to lay down rules for the circulation of narcotic drugs, psychotropic substances and precursors.
68. the contested judgment, the Court Analog points out that injury ranks shall be established by Regulation of the Ministry of Health No. 99 of 27 June 2003 by forensic appraisal of the gravity of the injury, and the security rules of the movement or operation of means of transport shall be determined on the basis of traffic Regulation, approved by Government decision No. 357 of 13 May 2009, although the injurious facts are incriminated in the correlative criminal rules.
69. Having regard to the foregoing, the Court forfeited amount psychotropic and narcotic substances, plants containing them forms a structural element sine qua non of their list, and Government Decree No. 79 of 23 January 2006 is not contrary to articles 72 para. (3) (a). n) and 102 of the Constitution.
Under article 140 of the Constitution, 26 of the law on the Constitutional Court, 6, 60, 61, 62 letter a) and 68 of the code of constitutional jurisdiction, the Constitutional Court DECIDES: 1. dismisses the appeal of parliamentarian Elena Bodnarenco for constitutionality governmental decision nr. 79 of 23 January 2006.
2. Recognizes the constitutional Government decision nr. 79 of 23 January 2006 on the approval of the list of narcotic drugs, psychotropic substances and plants containing such substances were detected in the illicit traffic and the quantities thereof.
3. 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 No. 25 Alexandru Tanase. Chisinau, October 13, 2015.


PCC-01/30a, October 13, 2015 Chisinau

Moldovan Parliament ADDRESS on October 13, 2010, by decision No. 25, the Constitutional Court recognized that the constitutional provisions of the governmental decision nr. 79 of 23 January 2006 on the approval of the list of narcotic drugs, psychotropic substances and plants containing such substances were detected in the illicit traffic and the quantities thereof.
The Court noted that the content of the phrase "lists of substances", contained in article 134/1 para. (4) of the penal code, to be understood to mean the Government's jurisdiction to regulate both psychotropic and narcotic substances categories and quantities thereof. Approval of the list of these substances without quantitatively regulation, would eviscerate the whole essence of the Government, which would thus be inapplicable.
The Court noted that, taking into account the fact that the legislative process involves several stages lasting jurisdictional Government's rationale follows from the need for prompt settlement of regulatory framework in this area in the event of new substances with similar effects.
At the same time, to exclude erroneous interpretations, the Court considers it necessary to supplement art. 134/1, para. (4) of the penal code so that it doesn't just refer to the approval by the Government of the "list" narcotic, psychotropic substances and precursors, as well as their quantity.

At the same time, the Court finds that, in addition to "narcotic, psychotropic and precursors", the penal code includes regulations sancționatorii regarding "the narcotic psychotropic substances or" (articles 1341, 217, 2171, 2172, 2173, 2175, 2176 of the penal code). Under art. 134/1, para. (2) of the penal code by "analog" means the substance that, according to its composition and effect which it produces, shall be assimilated to psychotropic substance or addiction.
The Court shall retain, international conventions do not distinguish the concept of "analog" of narcotic drugs or psychotropic substances. They lay only narcotic and psychotropic categories, categories that are found and in Government Decree No. 1088 on October 5, 2004 and Government Decree No. 79 of 23 January 2006.
Thus, with the emergence on the market of a substance that is known to cause mental and physical dependency from her abusive consumption, it is included in the list of narcotic, psychotropic substances and plants containing such substances. Pending the completion of the corresponding list, this substance may not be, under any species iuris, stupefying, psychotropic substance no (tertium non datur).
Thus, the Court finds that in the present rules of the penal code that refer to "the narcotic or psychotropic" are devoid of content and without legal effect, which, in the context of those mentioned, determines their exclusion from criminal law.
In view of the above, the Court recognized that the deficiencies mentioned supra will be removed by the legislature.
Court asks Parliament to examine, in accordance with the provisions of article 281 of the law on the Constitutional Court, this address to be communicated the results of its examination within the time limits prescribed by law.