inadmissibility of referral No. 52 g/2016 regarding constitutionality exception provisions of article 104 of the law on the insolvency of nr. 149 of 29 June 2012 (competence of the Court of insolvency)



Published: 27.09.2016 in Official Gazette No. 337 art no: 76 date of entry into force: 14.06.2016 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 Darroch Avornic, Registrar, considering the appeal filed on May 3, 2016, recorded at the same time, examining the admissibility of the referral, taking into account the acts and proceedings of the dossier , acting on 14 June 2016 into Council Pronounce the following decision: in fact 1. The origin of the case lies the plea of unconstitutionality of the phrase "insolvency court" in article 104 of the law on the insolvency of nr. 149 of 29 June 2012, raised by Alexei in the Damascene 2ri No. 130/16 on the role of the Supreme Court of Justice.
2. The appeal was lodged with the Constitutional Court on 3 may 2016 by the Panel of judges within the Supreme Court of Justice (Tatiana Valentin, Valentina Clevadi, Tamara, Iurie Babcock Chișca-Sternioală and Oleg Doneva) 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, and of the regulation on the procedure for examining complaints lodged with the Constitutional Court.
A. the main dispute Circumstances 3. By judgment of 24 March 2014, the Chisinau Court of appeals has filed insolvency process in terms of SC "Proacvacom" SRL, as manager being designated "Thought Anatolie".
4. On 13 October 2014, the Court ordered insolvency insolvency process in terms of SC "Proacvacom" SRL, with the passage of the bankruptcy and liquidation of debtor, mass.
5. On 18 June 2015, the debtor filed Alexei Damascus SC "Proacvacom" a request for validation of a debt, citing the contract for provision of legal services on 25 august 2011 and the additional agreement to the contract dated 26 august 2011.
6. On 10 December 2015, Anatolie, liquidator Thought SC "Proacvacom" Ltd., has deposited with the Chisinau Court of appeals a court claim against Alexei Damascus, by requesting the annulment of the legal acts in question.
7. By decision of 8 February 2016, the Court of appeal conducts declared invalid contract providing legal services on 25 august 2011 and the additional agreement to the contract dated 26 august 2011.
8. On 22 March 2016, Alexei Damascus said the appeal against the judgment of the Court of appeal in Chișinău on 8 February 2016.
9. On 25 April 2016, Damascus has asked Alexei raising exception of unconstitutionality of the phrase "in the Court of insolvency". 104 of the law of the insolvency.
10. by the conclusion of 27 April 2016, the Supreme Court has suspended the trial and ordered the transmission main exception to the Constitutional Court for settlement.
B. relevant Legislation 11. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 4Drepturile and human freedoms "[...]
(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. "


Article 20 access to justice "[...]
     (2) no law may restrict the access to justice. "


Article 119Folosirea to appeal against court decisions, stakeholders and the competent State bodies may pursue remedies, in accordance with the law. "
12. The relevant provisions of the Insolvency Law nr. 149 of 29 June 2012 (Official Gazette, no. 193-197, art. 663) are as follows: Article 5Competenţa of the Court "(1) the application of the insolvency process, such appeal shall be examined by the Court (the Court of insolvency) in accordance with the jurisdictional competence laid down in the code of civil procedure and in this law.
(2) the Court of insolvency has exclusive jurisdiction in judging, in the process of insolvency, litigation pertaining to debit table. If the applicant invokes the existence of a dispute concerning the right of the table, the insolvency debtor is going to judge this case in a separate process, in contentious proceedings, in accordance with the code of civil procedure.
[...]
(5) the main competences of the Court of insolvency under this law are: [...] judgment actions) introduced by the insolvency administrator/liquidator on the nullity of the juridical acts entered into by the debtor previously started the process;
[...]”


Article 104Anularea legal acts ' throughout the period of observation, of the insolvency proceedings, the procedure of bankruptcy and/or of the restructuring procedure, the administrator/liquidator may be introduced in court proceedings with a view to the annulment of the following legal acts if they affect the debtor's assets: a fictional legal act) any fraudulent or concluded by the debtor in the last three years against filing of insolvency proceedings which affected the rights of creditors;
b) transfers free of charge from the debtor made in the last 3 years preceding submission of the application started, with the exception of acts for the performance of certain moral obligations or acts for the public good (sponsorship), in which the donor's generosity is proportional its heritage;
c) transactions concluded in the last 3 years preceding submission of the application started, in which the debtor's performance is obviously higher than that;
d) transfers of property from the debtor to a creditor on behalf of a debt or for the benefit of the latter, made in the last 4 months of filing of the application started, having the effect of increasing the amount of money that the lender would receive in the event of the liquidation of the debtor;
e) property transfers from the borrower by a lender on behalf of a debt or for the benefit of the latter, made in the last 4 months of filing of the application, the lender introductory not entitled or which grows to maturity;
f free) a lien or a mortgage, any other collateral for a debt that was secure connection changes over the last 4 months of filing of the previous application or a claim for the introduction of a shareholder or member of a debtor in a similar period, if such claims have not matured before the insolvency proceedings started;
g) any acts concluded and guarantees granted by the debtor after submission of the application to get started. "
13. The relevant provisions of the code of civil procedure of the Republic of Moldova nr. 225-XV of 30 May 2003 (reprinted in the Official Gazette, no. 13, 130-134, art. 415) are as follows: Article 355Competenţa of the judicial courts in the causes for declaring insolvency, "the application for a declaration of insolvency is filed at the appeal court of common law jurisdiction in accordance with the provisions of this code and other laws."


Article 356Examinarea application "Request for a declaration of insolvency is judge in the Court in accordance with the General rules of this code, with the exceptions and additions set by insolvency law."
In the author's Arguments exception. neconsti-tuționalitate 14. In the non-constitutionality exception, the motivation of the author's claim that the disputed rule exception distinguish unreasonably procedural rights of creditor whose claim has not been validated and the liquidator, assuming the right to submit to the Court in civil actions in the Court, with the use of different remedies. Thus, the contested provision establishes the right of the liquidator to introduce insolvency in court actions for the purpose of cancellation of legal acts, however, in the case of submission of a similar action by the creditor whose claim has not been validated, the competence of its common law court returns.
15. Moreover, the author argues that the appeal against a ruling issued under the terms of article 104 of the law on insolvency is ab initio deprived of effectiveness, the appeal being limited by the conditions of admissibility (article 432 and 433 of the code of civil procedure) and the limits of his trial (Article 442 of the code of civil procedure).
16. According to the author, the provisions of the contested exception violated the provisions of articles 4 paragraph 2. (2), 20 para. (2) and 119 of the Constitution, and article 13 of the European Convention for the protection of human rights and fundamental freedoms.
B. Assessment Of Court 17. Examining the admissibility of the referral regarding constitutionality exception, 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, in this case of insolvency law nr. 149 of 29 June 2012, is the responsibility of the Constitutional Court.

19. the Court finds that the appeal relating to the exception of unconstitutionality, being raised by Alexei in the Damascene 2ri No. 130/16 on the role of the Supreme Court of Justice, is formulated 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.
20. the Court reiterates that the prerogative to address the exceptions of unconstitutionality, which has been vested in it by article 135 paragraph 1. (1) (a). g) of the Constitution, requires correlation of laws and the Constitution, taking into account the principle of the supremacy of its provisions and to address the relevance of the contested dispute in the courts.
21. the court notice that constitutionality exception object is represented by the words "in the Court of insolvency" in article 104 of the law of the insolvency. 
22. In the author's opinion the exception, rule criticized constitutional breach of art. "". (2) concerning human rights and freedoms, art. 20 paragraph 1. (2) free access to justice and art. 119 with respect to the use of rights of appeal.
23. While examining the plea of unconstitutionality as it was formulated, the Court notes that the text of the Bill criticized trial jurisdiction determines the insolvency court requests the administrator/liquidator for the purpose of cancellation of legal acts if they affect the debtor's assets.
24. Note that the principle of Constitutional Court of the free access to justice, as guaranteed by art. 20 of the Constitution, means that any person may have recourse to the courts if they consider that their rights, freedoms or legitimate interests have been violated.
25. At the same time, the free access to justice is not an absolute right, but requires, by its very nature, a rule in the State, which has a certain margin of appreciation in determining the limitations of it, so long as it does not affect the very substance of the right (Ashingdane v. uk, judgment of 28 May 1985, § 57; Buijen v. Germany, judgment of 1 April 2010, § 59).
26. In this regard, referring to the role of the State in establishing the competence of the courts, the Constitutional Court in Judgement No. 16 of 28 May 1998, the Court held that: "3. [...] determination of "competent court", its place in the hierarchy of courts, jurisdiction and remedies, the determination of categories of causes related to (or beyond) their competence are exclusive prerogatives of the legislature.
[…]”
27. the Court observes that article. 355 of the code of civil procedure sets for appeals courts of common law jurisdiction adjudication of applications for a declaration of insolvency.
28. At the same time, art. 5 para. (2) the insolvency law provides that an insolvency court has exclusive jurisdiction in judging, in the process of insolvency, litigation pertaining to debit table. In addition, the Court observed that in the second sentence of the same paragraph shall be specified when the interested party alleging the existence of a dispute concerning the right of the table, the insolvency debtor is going to judge this case in a separate process, in contentious proceedings, in accordance with the code of civil procedure.
29. the Court finds that the provisions of article 104 of the law provide that the insolvency administrator/liquidator to introduce in court proceedings with a view to the annulment of some legal acts if they affect the debtor's assets. In this context, the Court notes that the ad ministratorul/liquidator has active procedural legitimation to formulate the action for annulment of fraudulent borrower concluded at the expense of creditors.
30. Thus the establishment by law of separate proceedings for trial of actions with a view to the cancellation of some legal acts concluded by debtor insolvency process previously started, is justified by the concern of the legislator to regulate judiciously aspects that are related to insolvency. Moreover, within the framework of the procedure of bankruptcy, the administrator/liquidator has a position and a special situation for all the parties and from all other participants in the proceedings, not being a party to the lawsuit, but a participant in the proceedings, with the role and duties determined by law. It does not act on personal grounds, but also in the interests of the proper conduct of the entire proceeding, in the interest of the debtor be insolvent, for its heritage reunification, as well as in the interest of the creditors so they can capitalize on the claims as much and as fast as possible.
31. Therefore, the Court may not notice that in this case, by establishing special rules of procedure and of different remedies, the legislator has encroached on the substance of the right of free access to justice, guaranteed by art. 20 of the Constitution. Or, the creditor can claim this right in the fullness of its substance, and with the guarantees provided by law, and the protection of formulându-which it considers relevant and useful to the cause.
32. As regards the alleged infringement of the provisions of article 119 of the Constitution, the Court finds that it is unfounded, since no provision of the Supreme Law of the European Convention and does not cover the right to the exercise of rights of appeal in any matter. Moreover, article 119 of the Constitution sets out that the judgments against the interested parties may exercise their rights of appeal "according to law".
33. In the light of the above, the Court noted that the appeal 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. (3) and 64 of the code of constitutional jurisdiction and the PT 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 the phrase "insolvency court" in article 104 of the law on the insolvency of nr. 149 of 29 June 2012, raised by Alexei in the Damascene nr. 16 130/2ri, pending at the Supreme Court of Justice.
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.