Advanced Search

Inadmissibility Of Referral No. 96 G/2016Privind The Exception Of Constitutionality Of Articles 161 And 162 Of The Code Of Execution And Of Articles 426 Paragraphs 1 And 2. (3) And 444 Of The Code Of Civil Procedure (Challenging The Bailiff Acts

Original Language Title: de inadmisibilitate a sesizării nr. 96g/2016privind excepția de neconstituționalitate a articolelor 161 și 162 din Codul de executare și a articolelor 426 alin. (3) și 444 din Codul de procedură civilă (contestarea actelor executorului judecătoresc

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.
    The Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Mr. Talal Igor DOLEA, GEOGRAPHIC LOCATION, Mr. Zadrahimi, judges, with the participation of Mrs. Eugenia Mîța, Registrar, considering the appeal filed on 28 July 2016, recorded at the same time, examining the admissibility of the referral, taking into account the laws and proceedings, Acting on 6 September 2016 in Council the next decision, a decision: in fact 1. The origin of the case lies the plea of unconstitutionality of articles 161 and 162 of the code of execution of the Republic of Moldova nr. 443-XV of 24 December 2004 and Articles 426 paragraphs 1 and 2. (3) and 444 of the code of civil procedure no. 225-XV of 30 May 2003, raised by Ion Șiman in file No. 2R -1248/16, pending at the Court of appeal.
2. The appeal was lodged with the Constitutional Court on 2 august 2016 by Eugenia Fahoy, judge within the Court of appeal, 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.
A. the circumstances of the case 3. In the procedure of the Court of appeal lies the request submitted by Ion Șiman concerning the conclusion of the Court of appeal against Botany, mun. Chişinău, which ordered the cessation of the process of the Court concerning disputes over the actions of the bailiff.
4. On 9 July 2015 Ion Șiman filed an application challenging the actions of the bailiff, who, through the conclusion of a court judgment of 6 November 2015, was allowed in part, being ordered cancellation of acts issued by the bailiff. By decision of the Court of appeal of 19 January 2016 Chișinău conclusion of the Court judgment was quashed and remitted back toward the cause. 
5. On 22 April 2016, by the conclusion of the Court of Botanica, Chisinau municipality. Chişinău, opposition against the bailiff was rejected as out of time.
6. Conclusion of the Court judgment was appealed to the Court of appeal by Ion Șiman, which on June 15, 2016, the raised exception of constitutionality of provisions of articles 161 and 162 of the code of execution and to Articles 426 paragraphs 1 and 2. (3) and 444 of the code of civil procedure.
7. By 30 June 2016 appeals court has upheld the lifting of non-constitutionality exception and has ordered the referral concerning the transmission except the Constitutional Court settling for unconstitutionality.
B. relevant Legislation 8. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 20Accesul to justice "(1) Any person shall be entitled to effective satisfaction on the part of competent courts against acts which violate the rights, freedoms and legitimate interests.
(2) no law may restrict the access to justice. "


Article 46 Right to private property and its protection "[...]
(4) goods intended for, used or resulted from crimes times offence may be confiscated only in accordance with the law.
(5) the right of private property for the protection of the environment and the maintenance of good neighbourly relations, as well as other tasks which, according to the law.
(6) the right to inherit private property is guaranteed. "


Article 53Dreptul of the person aggrieved by a public authority "(1) any person aggrieved in a of a public authority through an administrative ruling or by his/her legal reply to an application, is entitled to obtain acknowledgement of those rights, the cancellation of and reparation for the damage.
(2) the State shall be held liable for patrimonial law, for damage caused through errors committed in criminal proceedings by the investigating bodies and courts. "


Article 117Caracterul of the judicial debates "in all courts of law are public meetings. Cases may be heard behind closed doors only sitting in the cases established by law, in compliance with all established legal procedures. "
9. The relevant provisions of the code of execution of the Republic of Moldova nr. 443-XV of 24 December 2004 (reprinted in the Official Gazette, 2010, no. 160-163, art. 584) are as follows: Article 161Persoanele which are entitled to challenge the acts of execution "(1) the enforcement of laws, the bailiff can be appealed by the parties and other participants in the process of execution, as well as third parties who consider that by enforcing laws he has violated a right recognized by law. Enforcing laws drawn up by the bailiff may not be challenged if for their committal have gone more than six months.
(2) application for challenging acts shall be submitted to the Court in the bailiff's Office is located or, in the case of the Chisinau municipality, the Court in whose constituency the Chamber of bailiffs of the established competence of the bailiff.
(3) an application referred to in paragraph 1. (2) is not subject to tax in that other State. "


Article 162Termenul of appeal against acts issued by the bailiff "(1) the Act of execution issued by the bailiff may be challenged by the participants in the process of executing within 15 days from the date of his times of refusal to perform certain acts, if the law does not stipulate otherwise. Third parties which did not participate in the enforcement process may challenge the enforcement acts drawn up by the bailiff, within 15 days from the date on which it must have been times know about these acts.
(2) the person may be entitled under the terms of the term for contestation of the Civil Procedure Code. The person cannot be reinstated if the term from the date of issue or refusal to issue of the contested act had gone more than six months. "
10. 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 of the RM, no. 13, 130-134, art. 415) are as follows: Article 426Depunerea and examining the appeal against the closure of the [...]
(3) an appeal against the closure of the merger shall be within 3 months in a totally of 3 judges, on the basis of the dossier and materials attached to the appeal without examining the admissibility and without the participation of the parties. "


Article 444Procedura of adjudication of the appeal



"The appeal will be examined without notification to the participants in the process. The Panel of 5 judges may decide to invite certain participants or their representatives in order to rule on questions of legal application of Appeal invoked. "
In the author's Arguments AS a. referral 11. The author claims that the reasoning of the exception provisions of articles 161 and 162 of the code of execution, whereby the right to challenge the bailiff acts respecting the term of 6 months from the date of issue thereof, violates the right of free access to justice, guaranteed by article 20 of the Constitution.
12. Also with reference to Articles 426 paragraphs 1 and 2. (3) and 444 of the code of civil procedure, the author argues that examining the appeal without the participation of the parties does not comply with the principle of the public character of court meetings, enshrined in article 117 of the Constitution.
13. Thus, the author indicates that the non-constitutionality exception of articles 161 and 162 of the code of execution and in Articles 426 paragraphs 1 and 2. (3) and 444 of the code of civil procedure contravene articles 1 para. (3) ". (1), 7, 20, 26, 46, 53, 117 and 120 of the Constitution.
B. Assessment Of Court 14. Examining the admissibility of non-constitutionality exception, please note the following.
15. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws is the responsibility of the Constitutional Court.
16. the Court finds that the plea of unconstitutionality, being raised by Ion Șiman in file No. 2R -1248/16, pending at the Court of appeal, 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.
17. In the present case, the Court retains the author invokes the exception that articles 161 and 162 of the code of execution and in Articles 426 paragraphs 1 and 2. (3) and 444 of the code of civil procedure essentially violates the provisions of articles 1 (1). (3) ". (1), 7, 20, 26, 46, 53, 117 and 120 of the Constitution.
18. Thus, as regards the allegation of infringement of articles 1 (1). (3), (4) and 7 of the Constitution, in its case-law the Court has noted that these acts constitute a generic character and general-imperatives, which underlie any regulations and cannot constitute separate and individual landmarks.
19. the Court may not withhold criticism of the text of the law in relation to the provisions of article 20 of the Constitution concerning freedom of access to justice. The Court points out that, by its wording, article generality. 20 of the Constitution allows for access to justice for the protection of any rights or liberties and any vested interest, so any interested person has the right to address the Court, in the manner established by law, to defend their rights violated or contested, freedoms and legitimate interests.
20. In this regard, the Court recalls that access to justice is not an absolute right, may be limited by certain conditions imposed by the Fund and by the legislator.
21. Thus, with regard to the provisions of the enforcement Code, the Court shall retain that they do not prevent justițiabilul to challenge the execution Act, establishing only certain time limits to be respected.
22. Note that Court imposing deadlines serve a better administration of Justice, as well as the necessity of application of and respect for human rights and procedural guarantees of the parties. An obligation on the parties to exercise their rights within the deadlines set by law give content rule of law and constitutes an expression of the celerității and fermității regarding the procedure of execution of judgments.
23. With regard to the adjudication of an appeal against judicial discharges without participation of the parties, as provided for in art. 426 paragraph 1. (3) of the code of civil procedure, the court notice that on several occasions, the European Court held that the procedures that involve only questions of law may satisfy the requirements of article 6 of the Convention, even though the appellant had not had an opportunity to be heard personally by the Court of appeal or the appeal, provided that there was a public hearing in first instance , and the absence of a "public hearings" before a second or third instance may be justified by particular characteristics of the procedure in question (e.g. speed trial process).
24. At the same time, the Court noted that the provisions of article 444 of the code of civil procedure, which govern the procedure for adjudication of the appeal against decisions of the Court of appeal, are not applicable to the case, or, in the case of actual control exercised on the path of non-constitutionality exception, examine the disparity with the provisions of the applicable legal provisions in case the Court inferred, as interpreted by the decision No. 2 of 9 February 2016.
25. By analysing the overall constitutionality exception, the Court observes that it does not meet the conditions for eligibility and cannot be accepted for examination.
For these reasons, pursuant to articles 26, paragraph 2. (1) and 31 of the law on the Constitutional Court, articles 61 para. (1) and (3), 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 DECIDES: 1. To be declared inadmissible the appeal regarding constitutionality exception of articles 161 and 162 of the code of execution of the Republic of Moldova nr. 443-XV of 24 December 2004 and Articles 426 paragraphs 1 and 2. (3) and 444 of the code of civil procedure of the Republic of Moldova nr. 225-XV of 30 May 2003, raised by Ion Șiman in file No. 2R -1248/16, pending at the Court of appeal.
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.

The PRESIDENT Of The CONSTITUTIONAL COURT Alexandru Tanase