On behalf of the Republic of Moldova, the Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU Mr. Igor DOLEA, Mr. Victor PALMER, Mr. Zadrahimi, judges, with the participation of Mrs Abdow Balaban, Registrar, considering the appeal filed on May 27, 2016 and recorded at the same time, examining the appeal referred to in public plenary, taking into account the laws and proceedings, Acting in the Council Chamber following the judgment, a decision: 1. The origin of the case lies the exception of non-constitutionality of article 22 paragraph 1. (4) of Law condominiului in housing no. 913-XIV of 30 March 2000, raised by Attorney Igor Callaway in file No. 3-40/16, on the role of Ciocana, Chisinau municipality Court. Chişinău.
2. The appeal was lodged with the Constitutional Court on 27 May 2016 by judge Natalia Ikin within Ciocana District Court. 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.
3. the author of the main exception claimed in essence that the contested provisions are contrary to the provisions of articles 16, 41 and 54 of the Constitution.
4. By decision of the Constitutional Court of 8 July 2016 referral concerning the non-constitutionality exception has been declared admissible, without prejudeca Fund case.
5. In the process of examination of the exception of unconstitutionality, the Constitutional Court requested the opinion of the Parliament, the President of the Republic of Moldova and the Government.
6. In the plenary session of the Court, the appeal was supported by lawyer Igor Chiriac, author of non-constitutionality exception. Parliament was represented by Mr. S. Bacay, head of a Department within the General Directorate of the Parliament Secretariat. The Government was represented by Mr. Ion Stratulat, Vice Minister of the Ministry of regional development and Construction, and Mr Igor Vieru, Deputy Chief of the legal Directorate of the Ministry of regional development and Construction.
The MAIN DISPUTE CIRCUMSTANCES 7. On 11 July 2014, m. p. he bought from SC "Ecosem Grup" SRL located in the apartment. Chisinau. He has not given his consent to be a member of the Association of co-owners in condominium No. 55/281, because lives abroad permanently and has not participated in the interests of these associations.
8. On 28 October 2015, m. p. has made a commitment to the Association of co-owners in condominium No. 56/286, which demanded information about the formation of the latter, with copies of constituent documents and other personal data, concerning his rights and interests.
9. Another approach, m. p. has called his exclusion from the Association of co-owners in condominium No. 55/286. Requests sent by m. p. Association of co-owners in condominium No. 55/286 has not reacted.
10. On 23 March 2016, his lawyer, Igor Callaway filed candidacies Ciocana, Chisinau municipality. Chisinau, a third trial against the Association of co-owners in condominium No. 56/286, which sought, inter alia, the termination of the membership of the Association of co-owners in condominium No. 55/286 of Mr. M 11. At its meeting of May 18, 2016, lawyer Igor Chiriac has asked for the lifting of the main exception to article 22 paragraph 1. (4) of Law condominiului in the housing stock.
12. By the same date, the Court has ordered the lifting of the exception of unconstitutionality and send referral to the Constitutional Court for settlement.
PERTINENT LEGISLATION 13. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 16Egalitatea "(1) respect and protect the human person constitutes a duty of the State.
(2) all citizens of the Republic of Moldova are equal before the law and public authorities, without distinction of race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, wealth or social origin. "


Article 41Libertatea of parties or other socio-political organizations "(1) all citizens are free to associate in parties and other socio-political organizations. They contribute to the definition and expression of the political will of citizens and, in accordance with the law, shall participate in the election.
(2) all parties and other socio-political organizations are equal before the law.
(3) the State shall ensure the protection of the rights and legitimate interests of parties and other socio-political organizations.
(4) parties and other socio-political organizations by their aims or activities they are engaged in fighting against political pluralism, the principles of the rule of law, sovereignty and independence, territorial integrity of the Republic of Moldova are unconstitutional.
(5) secret Associations are forbidden.
(6) the activity of parties consisting of foreign nationals is forbidden.
(7) public functions whose holders may not be part of the political parties shall be established by an organic law. "
14. The relevant provisions of Law condominiului in the housing stock no. 913-XIV of 30 March 2000 (Official Gazette, 2000, no. 130-131, 915) are as follows: Article 5Proprietatea "owned by municipality in the condominium property includes all parts that are in use: the land on which is built the block (building blocks), walls, chimneys, terraces, roof chimneys, stairways, hallways, basements, cellars and technical floors, pipes, elevators machine and systems engineering, from inside or outside the housing (rooms), serving several housing (rooms), the land borders with the related elements of gardening, other objects intended for servicing real estate of condominiului. "


Article 21 obligations of the Association of co-owners "Association of co-owners is required: (a) to ensure enforcement of the provisions) of this law, other legislative acts and statutes of the Association;
b) to conclude, on behalf of the owners, contracts with providers of public services and, on the basis of them, contracts with owners/renters of homes or, where appropriate, to ensure that the process for concluding the contracts between service providers and owners/renters of housing;
(c) to ensure execution) to all members of the Association of their obligations regarding the maintenance and repair of real estate from the condominium;
d) to ensure proper technical condition and sanitary goods in condominium;
e) to ensure that the interests of all members of the Association to establish the conditions and the manner of possession, use and disposal of joint property to apportion expenditure between owners for the maintenance and repair of common property condominium;
f) to represent, in the cases provided for by law and the statutes of the Association, members of the Association's interests in relations with individuals and businesses. "Article 22Calitatea of membership of the Association of co-owners" (1) the members of the Association of co-owners are all owners of dwellings (premises) of the condominium.
(2) members of the Association of co-owners are automatically legal entities, State enterprises and/or municipal, to whom belongs the right of operative administration overhead costs or housing (rooms) of the condominium.
(3) a member of the Association of co-owners arises from the moment of its State registration in the established manner.
(4) persons who procure housing (rooms) in the condominium, after setting up the Association of co-owners, become its members immediately after the acquisition by them of the right of ownership of housing (the room).
[…].”
15. The relevant provisions of the Universal Declaration of human rights (adopted on 10 December 1948, in New York, to which Moldova joined by decision of Parliament no. 217-XII of 28 July 1990) are as follows: "Article 20 1. Everyone has the right to freedom of peaceful assembly and Association.
2. No one may be compelled to form part of an association. "
16. The relevant provisions of the European Convention for the protection of human rights and fundamental freedoms, as amended by the additional protocols to this Convention (done at Rome on 4 November 1950 and ratified by decision of Parliament of the Republic of Moldova No. 1298-XIII of 24 July 1997), are as follows: Article 11Libertatea of Assembly and of Association 1. Everyone has the right to freedom of peaceful assembly and to freedom of Association, including the right to establish unions with others and to join unions to defend one's interests.

2. The exercise of these rights may be subject to restrictions other than those prescribed by law and are necessary in a democratic society, for national security, public safety, order and prevention of crime, protection of health or morals or for the protection of the rights and freedoms of others. This article shall not preclude legal limitations to be imposed on the exercise of these rights by members of the armed forces, the police or the State administration. "
17. The relevant provisions of the International Pact concerning civil and political rights (adopted on 16 December 1966, to New York and ratified by the Republic of Moldova on 28 July 1990, by the decision of Parliament no. 217-XII) are as follows: Article 22 1. Everyone has the right to associate freely with others, including the right to form trade unions and to join them, to protect its interests.
2. the exercise of this right may not be subject to the restrictions provided by law than and which are necessary in a democratic society in the interests of national security, public safety, public order or to protect public health or morals or the rights and freedoms of others. This article shall not preclude the exercise of this right by members of the armed forces and police to be subject to legal restrictions.
3. Nothing in this article shall not permit States parties to the Convention of 1948, the International Labour Organization concerning freedom of Association and protection of the right of a Trade Union to take legislative measures affecting-or apply the law in such a way as to prejudice the guarantees-laid down by that Convention. "
LAW 18. Of constitutionality exception, the Court observes that it is aimed at essentially the membership of an Association of co-owners in the condominium.
19. Thus, the exception of constitutionality relate to a set of constitutional principles and elements, as well as interconexe right of Association and the principle of non-discrimination.
A. ADMISSIBILITY Of 20. By decision of 8 July 2016, the Court verified the meeting the following conditions for eligibility: (1) subject to the exception comes into the category of acts covered by article 135 paragraph 1. (1) (a). a) of the Constitution. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws, in this case the law condominiului in housing no. 913-XIV of 30 March 2000, is the responsibility of the Constitutional Court.
(1) Exception is raised by one of the parties or its representative, or indicates that it is lifted by the Court ex officio. -Constitutionality exception, being raised by Attorney Igor Callaway in file No. 3-40/16, on the role of Ciocana, Chisinau municipality Court. Chişinău, is made by the subject entrusted this right under article 135, paragraph 1. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016.
(2) the provisions of the contested to be applied to the settlement of the case. Note that the power of the Court to settle with the exception of unconstitutionality, which was 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.
24. the Court observes that the object of the exception of unconstitutionality is the provisions of article 22, paragraph 2. (4) of Law condominiului in housing stock, which provide that "persons who procure housing (rooms) in the condominium, after setting up the Association of co-owners, become its members immediately after the acquisition by them of the right of ownership of housing (building)".
25. the Court supports the author's arguments of unconstitutionality, exception according to which the contested provisions are to be applied to the settlement of the case, because under their empire were born of legal relations, which continues to produce effects and are determined to resolve the dispute concerning the membership of the Association of co-owners in the condominium.
(3) there is a previous judgment of the Court has as its object the contested provisions 26. Keep in mind that the Court have not been previously challenged the constitutionality.
27. Consequently, the Court considers the appeal regarding plea of unconstitutionality 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.
28. In the present case, the Court retains the author invokes the exception that provisions of article. 22 paragraph 1. (4) of Law condominiului in housing, in part related to the obligation of the owner of a House (rooms) of the condominium to become Member of the Association of co-owners, violates the provisions of articles 16, 41 and 54 of the Constitution, as well as art. 20 of the Universal Declaration of human rights, art. 11 of the European Convention for the protection of human rights and fundamental freedoms (hereinafter European Convention) and art. 22 of the International Covenant concerning civil and political rights.
29. Thus, in order to elucidate the issues addressed in the plea of unconstitutionality, the Court will operate with the provisions of article 41 combined with article 16 of the Constitution, and by reference to the case-law of the European Court of human rights (hereinafter the ECHR). At the same time, keep in mind that the provisions of article 54, the exception invoked by the author, are irrelevant in relation to the disputed rule.
B. Alleged violations of FUND CASE article 41 combined with article 16 of the Constitution. The author claims that the exception of unconstitutionality dowm. 22 paragraph 1. (4) of Law condominiului in housing are contrary to the provisions of article 16 of the Constitution, which provide that: (1) respect and protect the human person constitutes a duty of the State.
(2) all citizens of the Republic of Moldova are equal before the law and public authorities, without distinction of race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, wealth or social origin. "
31. Moreover, the author argues that the exception in article contrary to article 41 contested of the Constitution, according to which: "(1) all citizens are free to associate in parties and other socio-political organizations. They contribute to the definition and expression of the political will of citizens and, in accordance with the law, shall participate in the election.
(2) all parties and other socio-political organizations are equal before the law.
[…].”
1. the author of the non-constitutionality exception Arguments 32. The motivation of non-constitutionality exception, lawyer Igor Callaway claims that by applying the provisions of art. 22 paragraph 1. (4) of the Act shall be in the dwelling stock condominiului violates the freedom of association guaranteed by article 41 of the Constitution, because the owner of the home has not consented in association the Association of co-owners in the condominium. In addition, the exercise of the right to freedom of Association is the right person to be part of an association, but not through compulsion.
33. Equally, the author argues that the exception becoming automatically member of the Association of co-owners creates a situation of discrimination among owners of housing from housing and condominium owners who are not part of condominium and do not have such an association.
2. Arguments of the 34 authorities. In his opinion, Parliament noted that, taking into account the purpose of creating the Association of co-owners in the condominium, it is evident the need of holding membership of the Association of co-owners. Acquisition of membership of the Association is also justified in the case of housing, whereby the new owner becomes the successor of rights and take over all rights and obligations of the former owner in condominium.
35. In support of the constitutionality of art. 22 paragraph 1. (4) of Law condominiului in housing, Parliament pointed out that associations of co-owners in the condominium had been created by the legislator in order to accomplish a purpose of general interest, neaducând touch the principle of equality of all citizens before the law.
36. the President of the Republic of Moldova has claimed that since the object speţei is effectively placed on the eșichierul property, particularly property in condominium housing, condominium owners, however, to observe strictly the provisions of law concerning maintenance and repair of housing (rooms) and common property, payment services and payment for maintenance and repair of common property from residential block.
37. the review also mentioned that the owner of real estate in condominium is obliged to honour civil duties incumbent on him as a result of common ownership, property Division, within the limit of the share Party belongs.

38. According to the Government, the right allegedly being infringed don't involve a character absolutely. The State may result in restrictions on the exercise of the right to freedom of Association, and such restrictions must be prescribed by law, pursue a legitimate purpose and be necessary in a democratic society. The legislature, by imposing such restrictions, has sought to protect the rights and legitimate interests of the owners of dwellings from condominium and ensure real estate property administration and operation of associations of co-owners in the condominium.
39. The Government also believes that the Association of condominium owners was established by law in order to achieve a purpose of general interest, namely the administration of buildings with several apartments, taking into account the interests of the truthfulness of related good conviețuiri.
3. Assessment of the Court 3.1. General principles 40. Note that the Court, in accordance with its case-law, the right to Association, enshrined in article 41 of the Constitution provides for the possibility of citizens to associate freely in parties or socio-political parties or other types and forms of organization, which does not have profit and do not seek to obtain or dividing benefit.
41. In Judgement No. 28 of 21 February 1996, the Court held that: "[the right to Association] provides for the possibility of citizens to associate freely in parties or socio-political formations, [...] or other kinds and forms of organizations [...], in order to participate in the political, scientific, social and cultural, or to accomplish a range of common legitimate interests. "
42. the Court shall retain that freedom of Association in any other structures or organisations is guaranteed by international laws, through art. 4 of the Constitution, which provides that 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.
43. freedom of Association is established in article 20, from the Universal Declaration of human rights, which States that everyone has the right to freedom of peaceful assembly and Association and that no one may be compelled to form part of an association. Similar regulations are contained in art. 11 of the European Convention and in article 1. 21 of the International Covenant concerning civil and political rights.
44. However, in its jurisprudence, the European Court held that the obligation to join a [Organization] which has the status of a public institution, being established by law or pursuant to law, performing an activity in the public interest and pursuing a goal of general interest does not constitute an Association for the purpose of article 11 of the Convention (see, mutatis mutandis, to C., Bota of Romania, no. 24057/03, decision of 12 October 2004, Le Compte, Van Leuven and De Meyere c. Belgium, nr. 6878/7238/75 and 75, judgment of 23 June 1981, § 64-65).
45. Moreover, in the case of Vialas Simón c Spain (decision of 8 July 1992), the European Court has pointed out that compulsory membership of citizens in institutions governed by public law is not contrary to art. 11 of the Convention, whereas the provisions of this article do not provide protection in terms of official institutions.
46. In the context of those rules, the Court observed that in certain circumstances the legislature may establish special forms of Association to protect some interests and which, in the light of the goals that we pursue are not, in fact, entered in the concept of free association, as it is prescribed by art. 11 of the European Convention.
3.2. Application of the principles in this question 47. The court notice that a particular form of Association of owners of dwellings is introduced by Law condominiului in the housing stock.
48. the Court reveals that the provisions of this law shall govern the relations of ownership in condominium, how to create, use, and disposal of immovable property and rights on her condominium, real estate property management, as well as the establishment, registration, operation and liquidation of associations of co-owners in the condominium.
49. Condominiul represents a unique complex of real estate, including land in bounds set and blocks (block) of housing, other real estate objects located on it, in part, housing, accommodation with destination other than that of housing, is a privately owned, State or municipal, and the rest is common property indiviză.
50. In this regard, according to art. 355 paragraph 2. (1) of the civil code, whether in a building there are spaces intended for housing or with another destination having different owners, each of whom hold a right of common ownership shares, forced and perpetual, on the parts of the building, which, being intended for the use of premises, may not be used other than in the ordinary.
51. At the same time, art. 349 of the civil code establishes, co-owners will share the benefits and burdens of ownership will support common shares their proportional share.
52. In this context, the Court notes that, in the case of a building with several dwellings, individual housing owners hold a right of co-ownership and forced over spaces with another destination than the housing.
53. At the same time, the Court notes that, according to art. 5 of Law condominiului in the housing stock owned by municipality in the condominium property shall include all parts that are in use: the land on which is built the block (building blocks), walls, chimneys, terraces, roof chimneys, stairways, hallways, basements, cellars and technical floors, pipes, elevators, engineering equipment and systems inside or outside housing (rooms), serving several housing (rooms), the land borders with the related elements of gardening other objects intended for servicing the real estate condominiului.
54. Moreover, the Court observes that article. 12(3). (4) and (5) of the law condominiului the housing provides that owners shall contribute towards the expenditure for maintenance and repair of common property in condominium, and will be used by the owner of the dwelling (the room) or refusal to use the property of the municipality shall not constitute grounds for the release, in whole or in part, of the common expenses for the maintenance and repair of common property in condominium.
55. From those mentioned, the Court points out that the existence of spaces in common ownership and the impossibility of their administration by necessity requires all owners of an organized structure, as is the Association of co-owners in the condominium, to act on behalf of and for the common interest of all the truthfulness.
56. Therefore, given that none of the owners may not engage in exclusive mode ownership share-parts indivize from the joint ownership of the common parts, forced upon is justified solution to create associations of co-owners.
57. Moreover, in accordance with article 5. 391. (1) of the Act, the condominiului Housing Association of co-owners shall be established for the maintenance, operation and repair of housing (rooms) that belong to the common property and condominium association members, with public services and other services, for the representation and defence of their interests, and under art. 21 lit. d) and (e)) of the same law, the Association of co-owners is required to ensure proper technical and sanitary condition of common goods as well as condominium will ensure that the interests of all members of the Association to establish the conditions and the manner of possession, use and disposal of the property of the municipality.
58. At the same time, taking into account the purpose of the creation of the Association of co-owners, provided for in art. 391. (1) of the Act set out supra, note that Court legislator has established regulations governing membership of the Association of co-owners, establishing in article 11. 22 paragraph 1. (4) of the law that people who purchase the condominium, housing association of co-owners after become members immediately after the acquisition by them of the right of ownership of the home.
59. the legal provisions set out, the Court points out, membership in this Association is inherently linked to the ownership of the dwelling.
60. Thus, becoming the owner of the apartment, the person becomes part owner of the common parts of this building with several apartments and a member of the Association of co-owners in the condominium.
61. The need for the emergence of such associations is dictated by the fact that there is a building in which are located several dwellings, and for operation of dwellings is the imperative need to be administered a number of goods which cannot belong exclusively to a single owner.
62. the Court notes that, if the person decides to buy a dwelling in a residential block, accept the default to a collectivity, to be managed and common goods.

63. In this regard, note that the Court, in this case, the person shall not be associated in a charity or association in a party, therefore, the Association of co-owners in condominium isn't based on the concept of free association.
64. Also note that Court so as not to end up damaging the common elements of the building, it requires the involvement of the State in order to establish binding rules of Association for the purposes of administering and managing common property.
65. the Court indicates that pairing in the condominium is an effective tool for solving management problems properly and common property management, which is based on sharp instruments governing relations between the co-owners, including powers and mechanisms of tasks incumbent upon each participant in these ratios.
66. In this regard, note that Court by the formation of associations of co-owners in the legislature condominium pursued aim of protecting some general interests. However, administration and management of the property in good condition cannot achieve common than under an associative structures. Therefore, the imposition of the creation of associations of co-owners by law is not an end in itself, but it is a way of ensuring the maintenance process of living places for the common interest of all the truthfulness.
67. The Court thus concludes that in certain circumstances the legislature may establish special forms of Association and, owing to the objective which they pursue, they cannot be regarded as associations within the meaning of the right to freedom of Association. However, the Association of co-owners is exactly this situation.
68. the Court notes that the Association of owners of a housing block is a common regulatory mechanism in European legal systems. Thus, a review of the rules in the european condominiului law shows that some States recognize as "Association" collectivity of all condominium owners from either by establishing the obligation to form an Association (Estonia, Belgium), either by assigning by law the status of legal person of the Community (France) or by recognizing that all owners make up a ' Community ' on whose behalf it acts an admin, the community as a quasi-civil association with partial (Italy , Germany).
69. on the basis of the arguments supra, note that the Court, in essence, the Association of co-owners in a condominium form of Association is specific and not based on the principles of freedom of association contained in art. 41 of the Constitution.
70. With reference to the author's allegations concerning the existence of the exception of unconstitutionality of a situation of discrimination in relation to housing owners, who are not part of condominium and have no such association, the Court notes that the supervision of the constitutionality of the provision does not affect the principle of equality of all before the law, because in that case such owner becomes subject to a different type of legal relations related to the exercise of the right of ownership of common property.
71. For these reasons, the Court note that the provisions of article 22, paragraph 2. (4) of Law condominiului in housing cannot be qualified as contrary to constitutional provisions.
For these reasons, under articles 135 para. (1) (a). a) and g) and 140 of the Constitution, 26 of the law on the Constitutional Court, 6, 61, 62 lit. ) and (e)), and 68 of the code of constitutional jurisdiction, the Constitutional Court DECIDES: 1. reject the plea of unconstitutionality raised by Attorney Igor Callaway in file No. 3-40/16 pending in District Court, Kingston upon Hull. Chişinău.
2. Recognizes the constitutional article 22 (4) of Law condominiului in housing no. 913-XIV of 30 March 2000.
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.