Advanced Search

Inadmissibility Of Referral No. 16 G/2016 Regarding Exception Of Unconstitutionality Of Certain Provisions Of Law No. 845-Xii Of 3 January 1992 On Entrepreneurship And Enterprises, Law No. 231 Of 23 September 2010 On Trade In

Original Language Title: de inadmisibilitate a sesizării nr. 16g/2016 privind excepţia de neconstituţionalitate a unor prevederi din Legea nr. 845-XII din 3 ianuarie 1992 cu privire la antreprenoriat și întreprinderi, Legea nr. 231 din 23 septembrie 2010 cu privire la comerțul in

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.
inadmissibility of referral No. 16 g/2016 regarding exception of unconstitutionality of certain provisions of law No. 845-XII of 3 January 1992 on entrepreneurship and enterprises, law No. 231 of 23 September 2010 on trade and regulation on the organisation and operation of the inspection of the Ministry of Finance, approved by Government decision No. 1026 from 2 November 2010



Published: 27.05.2016 in Official Gazette No. 140-147 art Nr: 45 date of entry into force: 23.03.2016 Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Mr. Victor POPA, judges, with the participation of Mr. Bjørn Maximum, Registrar, considering the appeal filed on 14 March 2016, recorded at the same time, examining the admissibility of the referral, taking into account the acts and proceedings of the dossier , Acting on 23 March 2016 in Council Pronounce the following decision: in fact 1. The origin of the case lies the appeal lodged with the Constitutional Court on 14 March 2016 by Dorin Munteanu, Centre Court under judge, mun. 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, regarding the plea of unconstitutionality of article. 12(3). (5) of the law on entrepreneurship and enterprises, art. 22 paragraph 1. (21) of the law on trade and subpct, item 5. 3). c) of the regulation on organization and operation of the inspection of the Ministry of finance raised by James A. Attorney in file No. 10-63/16 on Center Court role, mun. Chişinău.
A. reasons for the removal of non-constitutionality exception 2. The reasons for the removal of non-constitutionality exception, as they were exposed by the author, can be summarized as follows.
3. the provisions of article 93 para. (2) of the criminal procedure code lay down an exhaustive list of items which can be used as evidence in criminal proceedings, and the provisions of articles 52 and 53 of the code of criminal procedure provide for powers of attorney as part of a criminal trial.
4. At the same time, according to art. 2 (2). (4) of the code of criminal procedure, the legal procedural nature rules in other laws may be applied only provided that their inclusion in the code.
5. At the same time, the provisions of art. 12(3). (5) of the law on entrepreneurship and enterprises, art. 22 paragraph 1. (21) of the law on trade and subpct, item 5. (3) (a). c) of the regulation on organization and operation of the inspection of the Ministry of Finance attributed by law enforcement powers additional to those provided for in the code of criminal procedure, namely the arrangement of the Financial Inspection of the economic and financial control within the context of a criminal trial.
6. In the author's opinion, the provisions of non-constitutionality exception challenged are contrary to article 1 para. (3) and article 4 para. (2) of the Constitution.
B. relevant Legislation 7. The relevant provisions of the Constitution (Official Gazette, no. 1, 1994) are as follows: Article 1 the State of the Republic of Moldova "(1) the Republic of Moldova is a sovereign, independent, unitary and indivisible State.
(2) the form of Government of the State is the Republic.
(3) the Republic of Moldova is a democratic State of law, in which human dignity, rights and freedoms, the open development of human personality, justice and political pluralism represent supreme values and are guaranteed. "Article 4Drepturile and human freedoms" (1) constitutional provisions for human rights and freedoms shall be interpreted and applied in accordance with the Universal Declaration of human rights, and with other conventions and treaties endorsed by the Republic of Moldova is a party.
(2) If there are inconsistencies between covenants and treaties regarding fundamental human rights to which Moldova is a party and its internal laws, international regulations have priority. "
8. The relevant provisions of law No. 845-XII of 3 January 1992 on entrepreneurship and enterprises (Official Gazette, 1994, nr. 2, art. 33) are as follows: Article 12Controlul on the entrepreneurship "1. Undertaking, irrespective of the legal form of organization, provides accounting and statistics in the manner established by the legislation in force.
2. the undertaking shall, in accordance with the law, make available to the public authorities the necessary information for establishing and functioning of the republican system of accumulation and processing of information.
3. The undertaking is not entitled to present the data that constitutes a trade secret public administration authorities, with the exception of law enforcement and those who control these data shall be provided within the limits of their powers. List of data which constitutes a trade secret leads the enterprise. List of data which cannot constitute a trade secret shall be determined by the law on commercial secret.
4. control bodies, tax authorities, protection of nature, antimonopoliste and other bodies of public administration authorities to which they are assigned control over the activity of the Enterprise shall carry out such supervision within the limits of their competence and in the manner established by law.
The result of the control shall be communicated to the company.
5. at the request of law enforcement authorities, on the basis of the ordinances issued under the conduct of the prosecution, financial Inspection carried out economic and financial control to legal persons governed by public law, legal persons governed by private law and natural persons engaged in entrepreneurial activity, on the theme laid down in statutory instruments of law enforcement. "
9. The relevant provisions of law No. 231 of 23 September 2010 on trade (Official Gazette, 2010, no. 206-209, art. 681) are as follows: Article 22Controlul of the State of trade activities "(1) State Control of activities in the field of trade is economic-financial and technical (specialized).
(2) economic and financial Control is exercised by the finance Inspection under the Ministry of finance and the employees of the Ministry of internal affairs. The purpose of this check is to verify the correct indication of the movement of goods and services in commercial accounting documents (statistical and financial reports), compliance with the laws of the respective commodity, the correctness of the payment for goods and services purchased, price discipline and respect for the products of social importance.
(21) at the request of law enforcement authorities, on the basis of the ordinances issued under the conduct of the prosecution, financial Inspection carried out economic and financial control to legal persons governed by public law, legal persons governed by private law and natural persons engaged in entrepreneurial activity, on the theme laid down in statutory instruments of law enforcement agencies.
(3) technical inspection (specialized) is exercised by the organs of control functions of Central and local public administration in accordance with the legislation in force. Every organ of central and local public administration bodies exercising control within the limits of its functional duties: a) State service for supervision of public health supervision of health products/services, authorizes health catering enterprises;
b) veterinary Agency and for the safety of products of animal origin carried out surveillance of veterinary health products of animal origin, authorizes veterinary tîrgurile animal and agricultural markets (market Hall);
c) National Agency for food safety inspection of completion of the measures taken for quarantine, quarantine and plant protection subject to objectives;
(d) Consumer Protection Agency) carries out market surveillance of products and services regarding compliance with prescribed requirements and/or reported, including metrological standards, compliance with the requirement of the indication of prices and consumer protection legislation;
e) licensing Chamber and local public administration bodies (the economic structures of the workers councils of district and municipal) controlling the compliance with the conditions prescribed commercial unit in the authorization or license shall also verify compliance with the rules for the marketing of products and services within the limits of their powers;
f) subdivisions of the Ministry of Internal Affairs profile control traders where acts by these injurious acts provided for by the criminal law or administrative provisions in force, as well as in the case of a request from the authorities with control functions. "
10. The relevant provisions of the code of criminal procedure of the Republic of Moldova nr. 122-XV of 14 March 2003 (reprinted in the Official Gazette, no. 263-269, 855) are as follows: Criminal Procedure Article 2Legea



(1) criminal procedure shall be governed by the provisions of the Constitution, international treaties to which Moldova is a party and of this code.
(2) the General principles and rules of international law and the international treaties to which Moldova is a party constitute an integral elements of criminal law and directly give rise to human rights and freedoms in criminal procedure.
(3) the Constitution of the Republic of Moldova has supremacy over national criminal procedural legislation. No law governing the conduct of the criminal trial has no legal power if it is in contradiction with the Constitution.
(4) Legal Norms having the character of other procedural national laws may only be applied provided that their inclusion in this code.
(5) The criminal process may not have legal power laws and other normative acts that invalidate or restrict human rights and freedoms, violates judicial independence, adversarial, and contravene the rules unanimously recognized provisions of international law, the international treaties to which Moldova is a party. "


Article 93Probele "(1) the samples are in fact items acquired in the manner established by this code, the finding of the existence or nonexistence of the crime, identifying the perpetrator, the finding of guilt, and to establish other circumstances important for the fair resolution of the case.
(2) as evidence in criminal proceedings shall be factual elements observed through the following means: 1) statements of the accused, the suspect, the accused, the injured party, the civil party, the party responsible, civilmente witness;
2) expert report;
3) felonies bodies;
4) the minutes concerning the actions of criminal investigation and judicial research;
5) documents (including official ones);
6) audio or video recordings, photographs;
7) findings of scientific-technical and forensic;
procedural acts 8) records of special measures of investigation results and the annexes to them, including the verbatim record, photographs, recordings, and more.
(3) the factual elements can be used as evidence in criminal proceedings if they were obtained by the prosecution or by the other party in the lawsuit, in compliance with the provisions of this code.
(4) the data actually obtained through special investigative activity may be admitted as evidence only if they were given and verified through the means referred to in paragraph 1. (2) in accordance with the provisions of procedural law, while respecting the rights and freedoms or with the restriction of certain rights and freedoms approved by the Court.
(5) the data actually obtained by common international teams for carrying out criminal prosecution may be admitted as evidence only if they were administered through the means of evidence listed in paragraph 1. (2).”
11. The relevant provisions of the regulation on organization and operation of the inspection of the Ministry of Finance, approved by Government decision No. 1026 from 2 November 2010 (Official Gazette, 2010, no. 221-222, Article 1151), are as follows: "5. The basic functions, the light of the conduct of inspection (control of) financials 1) basic functions of financial Inspection: the inspection of financial operations) and transactions for compliance with the regulatory framework in the field of economic and financial budget;
b) detection of damages/irregularities to the entities subject to inspection (control), on financial matters provided for in this Regulation.
2) in the process of carrying out financial inspectărilor (controls), financial Inspection cooperates, where necessary, with other inspection and control authorities.
3) Inspection (control) is being carried out: (a) financial) according to the schedule drawn up on topics proposed by public authorities and included in the risk assessment, coordinated with the Ministry of finance;
b) at the request of the apparatus of Moldovan President, Parliament, Government, the Court of Auditors and the Ministry of finance;
c) at the request of law enforcement authorities, on the basis of the ordinances issued under the conduct of criminal prosecution, legal persons governed by public law, legal persons governed by private law and natural persons engaged in entrepreneurial activity and public associations on the theme laid down in statutory instruments of law enforcement agencies;
d) on the basis of petitions and requests, including information received from Central and local public authorities, concerning the violation of financial discipline in the work of the entities specified in section 6 of this regulation.
In the cases referred to in point (d)) of this submenu is for, to carry out the inspection (control) to the financial Ministry of finance decides. "
In the author's Arguments exception. constitutionality 12. In the non-constitutionality exception, reasoning the author argues that the contested rules assign financial Inspection Authority to carry out, within the framework of a criminal trial, economic and financial controls at the request of law enforcement agencies.
13. At the same time, the author mentions that according to art. 2 (2). (4) of the code of criminal procedure, the legal procedural nature rules in other laws may be applied only provided that their inclusion in the code.
14. Moreover, the author argues that the exception art. 93 of the code of criminal procedure provides exhaustive factual elements which can be considered as evidence in the context of a criminal trial and the results of the inspection of financial control is not found in this list.
15. At the same time, the author mentions that the non-constitutionality exception financial Inspection under the Ministry of finance is not indicated in the code of criminal procedure as a body responsible for realization of criminal actions.
16. Finally, the author contends that the contested rules exception violates article 1 para. (3) and article 4 para. (2) of the Constitution.
Assessment Of Court 17. Examining the appeal regarding constitutionality exception as regards admissibility, the Court notes the following.
18. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws and Government decisions, in particular the law on entrepreneurship and enterprises, the law on interior trade and regulation on the organisation and operation of the inspection of the Ministry of Finance, is the responsibility of the Constitutional Court.
19. the Court noted that, being raised by advocate A. Raja in file No. 10-63/16, which is located on the Center Court, mun. -Constitutionality exception, is sought by the regulated subject to this law, 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.
20. the Court note 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.
21. the court notice that the object of non-constitutionality exception is article 12 para. (5) of law No. 845-XII of 3 January 1992 on entrepreneurship and enterprises, article 22 para. (21) of law No. 231 of 23 September 2010 on trade and subpct, item 5. (3) (a). c) of the regulation on organization and operation of the inspection of the Ministry of finance.
22. the Court notes that the contested provisions provide for the economic and financial control by the financial Inspection at the request of law enforcement authorities, on the basis of the orders issued under the pursuit of criminal prosecution.
23. the Court notes that the author has invoked non-constitutionality exception the alleged breach of article 1 para. (3) and article 4 para. (2) of the Constitution.
24. 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.
25. In this regard, 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.
26. Analyzing the exception by reference to the constitutionality of the arguments presented, the Court observes that the author supports exception substantially that the disposition of the law enforcement bodies to carry out the financial-economic financial Inspection in the context of a criminal trial under the said laws contrary to the code of criminal procedure.
27. Thus, the Court finds the lack of cogent arguments referral that would demonstrate to what extent the impugned legal provisions violating constitutional norms invoked.

28. Therefore, pursuant to those exposed to supra, the Court finds that, in the absence of incidence of disputed constitutional norms on the provisions, the appeal does not meet the conditions for eligibility and cannot be accepted for examination.
For these reasons, pursuant to article 26 of the law on the Constitutional Court, articles 61 para. (3) and 64 of the code of constitutional jurisdiction and item 28 lit. d) of the regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court D E C I D E: 1. It is hereby declared inadmissible the appeal regarding plea of unconstitutionality of article 12 para. (5) of law No. 845-XII of 3 January 1992 on entrepreneurship and enterprises, article 22 para. (21) of law No. 231 of 23 September 2010 with respect to trade and the 5 subpct. 3). c) of the regulation on organization and operation of the inspection of the Ministry of Finance, approved by Government decision No. 1026 from 2 November 2010, raised by James A. Attorney in file No. 10-63/16, pending the Court's role as the Center, mun. 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.