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To Control Notification Constitutionality Of Some Provisions Of The Civil Code And The Code Of Civil Procedure Of The Republic Of Moldova (Rights And Freedoms Of Persons With Mental Disabilities) (Complaints No. 49A/56A/63G/90 G/2016)

Original Language Title: pentru controlul constituționalității unor prevederi din Codul civil și Codul de procedură civilă ale Republicii Moldova (drepturile și libertățile persoanelor cu dizabilități mintale) (sesizările nr. 49a/56a/63g/90g/2016)

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    On behalf of the Republic of Moldova, the Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Mr. Talal Igor DOLEA, GEOGRAPHIC LOCATION, Mr. Victor PALMER, Mr. Zadrahimi, judges, with the participation of Mrs. Sadik Munteanu, Registrar, having regard to the complaints filed on 25 April 2016, 5, 2016 2016, 24 May and 26 July 2016 and registered to the same data, examining the complaints mentioned in the public plenary considering the acts and works dossiers, acting in the Council Chamber, Pronounce the following judgment: 1. The origin of the case lies in Constitutional Court appeals lodged on 25 April and 5 may 2016 2016, under articles 135 para. (1) (a). of the Constitution, 25) lit. I) and g) of the law on the Constitutional Court, 38 para. (1) (a). I) and g) and 39 of the code of constitutional jurisdiction, by Ombudsman Nuala and Mihail deputies in Parliament, Tudor Deliu, Octavian Grama and Grigore Canon, as well as the exceptions of constitutionality raised by Attorney Darry Sachchida NAND in file No. 2-358/2016, pending at the regional court in Rezina, and Lilia Pan, part in file No. 2-931/2016, pending at the Center Court, mun. Chişinău.
2. Exceptions to the non-constitutionality were Constitutional Court on 24 may 2016 by Andrei B, judge of the District Court on July 26 and Rezina 2016 by Victor S, Center Court, judge. Chişinău, 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 Ombudsman has called on notification constitutionality control, in the light of article 20 combined with article 16 paragraph 1. 54 (2) and paragraphs 1 and 2. (1) and (3) of the Constitution, the following provisions of the code of civil procedure: a) art. 57 paragraph 3. (2) the sentence "procedural steps performed by the person lacks the ability to use are null and void";
b) art. 58 para. (2) the phrase "or of adults with limited exercise capacity";
c) art. 58 para. (21)-the phrase "or declared unable adults";
d) art. 58 para. (6)-the phrase "as well as of adults declared unable in the manner established by law";
e) art. 169 para. (1) (a). e) plaintiff and/or plaintiff lacks capacity, except as provided for in article 10. 59 paragraph 1. (2)”;
f) art. 170 para. (1) (a). c)-"the request has been lodged by a person incapable";
g) art. 267 lit. b)-"the request has been lodged by a person incapable";
h) art. 306 para. (2) the sentence "the problem of quoting the person deciding in each case, according to her health".
4. Representatives of Parliament Talal Deliu, Octavian Grama and Gregory have requested notification constitutionality control Canon article 24 of the civil code, which regulates the procedure for declaration of incapacity and the institution of guardianship by individuals in the light of articles 4, 16, 20, 25, 27, 28, 38, 46 and 54 of the Constitution.
5. Sachchida NAND has asked the Lawyer Dumitru on notification constitutionality control articles 57 paragraph 3. (2) paragraphs 1 and 2, 58. (21), 170 para. (1) (a). c 267), lit. b, para. 306) (1) paragraphs 1 and 2 and 308. (2) of the code of civil procedure, in the light of articles 4, 7, 8, 16, 20 and 54 of the Constitution and international treaties ratified by the Republic of Moldova.
6. Lilia Pan, in the civil part No. 2-931/2016 pending the Court Center, mun. Chişinău, requested notification constitutionality control of article 24 of the civil code, in the light of articles 4, 16, 20, 25, 27, 28, 38, 46 and 54 of the Constitution.
7. By decision of the Constitutional Court of 29 April 2016, referral No. 49A/2016 was declared admissible without prejudeca Fund case. By decision of the Court of 14 June 2016 were declared admissible complaints No. 56A/63g/2016 and 2016. Also, by decision of the Court of 6 September 2016, referral No. 90 g/2016 was declared admissible without prejudeca Fund case.
8. Considering object identity, pursuant to article 43 of the code of constitutional jurisdiction, the Court of Appeals ruled in a connecting single file.
9. In the process of examination of complaints, the Constitutional Court of the Republic of Moldova requested the views of the President, Parliament, Government, Supreme Court of Justice, the UN Office in the Republic of Moldova and the Moldovan associations-"Institute for human rights in Moldova" (hereinafter referred to as "IDOM"), "Centre for the promotion of the rights of persons with Mental Disabilities" (hereinafter "MDAC"), "the Alliance of Organizations for the disabled" (hereinafter "AOPD") and the "Centre of legal assistance for people with Disabilities" (hereinafter referred to as "CAJPD").
10. At the meeting of the Court, the Ombudsman was represented by Ms. Olga V, Secretary general of the Office of the Ombudsman. Deputies in Parliament and Tudor Deliu, Octavian Grama and Grigore Canon were represented by Mr. Peter Mail. Equally, the exception of constitutionality No. 63g/2016 was supported by Attorney Darry Sachchida NAND.
11. The Government was represented by Mr. E. Taha, Deputy Minister of Justice, and Andrei Șveț, head of the legal Directorate of the Ministry of Health. Parliament was represented by Mr Valeriu Kuchuk, Senior Adviser in the Directorate-General of the Secretariat of the Parliament.
The MAIN DISPUTE CIRCUMSTANCES 1. Circumstances of the civil case No. 2-358 12/2016. On February 14, 2011 Court issued a judgment Râbniţa whereby V.S. has been declared incapable pursuant to article 24 of the civil code (hereinafter "CC"). March 23 2011 Town Hall the commune has ordered the establishment of guardianship Lalova in respect thereof and the appointment of a guardian.
13. Subsequently, the guardian has requested his inpatient hospitalization V.S. in an institution specializing in assistance with mental illness. August 1, 2011 Ministry of labour, social protection and family has ordered placement in badiceni village of Cocieri, Dubasari.

14. On 18 April 2016 Attorney Darry Sachchida NAND has lodged in his interests to V.S. Rezina District Court concerning the legal capacity of the plaintiff restitution. At the same time, counsel requested the Court Sachchida NAND Das the Court raising the constitutionality exception to the provisions of articles 57 paragraph 3. (2) paragraphs 1 and 2, 58. (21), 170 para. (1) (a). c 267), lit. b, para. 306) (1) paragraphs 1 and 2 and 308. (2) of the code of civil procedure (hereinafter "CPC").
15. By the conclusion of the Court of 12 may 2016 Rezina was willing to suspend the process, raising the non-constitutionality exception, and referral to the Constitutional Court for remittance settlement.
2. The circumstances of the civil case No. 2-931/2016 16. On 24 May 2011 E.C. was declared incapable by a court judgment, Center. Chişinău, in accordance with the provisions of article 24 of the CC.
17. On 30 November 2011, by sector, of city mun. Chişinău, Lilia Pan was appointed guardian over his son E.C. 18. On April 18, 2016 Lilia Pan filed a request in court, asking for the restoration of the ability of his son, and also the erection of non-constitutionality exception to article 24 CC.
19. by the conclusion of 14 July 2016 to Center Court, mun. Chişinău was willing to suspend the process, raising the non-constitutionality exception and presentation of the referral to the Constitutional Court for settlement.
PERTINENT LEGISLATION. The relevant provisions of the Constitution of Moldova, adopted on 29 July 1994 (republished in the Official Gazette, no. 2016, 78, art. 140), are as follows: Article 1 the State of the Republic of Moldova "[...]
(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 4 human rights and 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. "


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 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 51 Protection of disabled persons "(1) the disabled persons shall enjoy special protection from the whole society. The State shall ensure that normal conditions for medical treatment and rehabilitation, education, training and social integration. […]”


Article 54Restrângerea the exercise of certain rights or freedoms "(1) in the Republic of Moldova cannot be adopted laws suppressing or violating fundamental rights and freedoms of man and citizen.
(2) the exercise of rights and freedoms may not be subject to restrictions other than those prescribed by law and which correspond to the widely recognized norms of international law and are necessary in the interests of national security, territorial integrity, economic well-being of the country, public order, in order to prevent mass unrest and crime, protection of rights, freedoms and dignity of other persons, preventing the disclosure of confidential information or to ensure the authority and impartiality of the judiciary.
(3) the provisions of paragraph (2) do not allow the restriction of the rights stipulated in articles 20-24.
(4) the restriction must be proportional to the situation that caused it, and may not affect the existence of that right or freedom. "
21. The relevant provisions of the civil code of the Republic of Moldova nr. 1107-XV of 6 June 2002 (Official Gazette, 2002, no. 82-86, 661) are as follows: article 24 Declaration of incapacity of the natural person (1) a person who due to a mental disorder (mental illness or mental disabilities) may not be aware of or may be directing his actions declared by the Court as incapable. Over her guardianship shall be established.    (2) the legal acts in the name of physical person declared incapable are concluded by the guardian.     (3) if the grounds in which the individual has been declared incapable are gone, the Court declared as able. On the basis of judgement, Trusteeship of the person shall be cancelled. "
22. 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. 2013, 130-134, art. 415) are as follows: Article 5Accesul to justice "(1) 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.
(2) any person may refuse judicial defense of the reason of nullity of laws, imperfection, collision or obscurity of the law. "


Article 57Capacitatea of the civil procedural rights "(1) the ability to have civil procedural rights and obligations (ability to use procedural civil rights) is recognized equally to all individuals and organizations who enjoys, according to law, the right of appeal to court to safeguard the rights, freedoms and legitimate interests.
(2) lack of ability to use process may be invoked at any stage of the process. Procedural steps performed by the person lacks the ability to use are null and void. "


Article 58Capacitatea of the civil procedural rights of



"(1) the ability to exercise in full volume, personally or through a representative of the procedural rights and obligations on trial (exercise capacity of civil procedural rights) have individuals from the age of 18, as well as legal persons, and, in the cases stipulated by law, entities that do not have legal personality but have their own governing organs.
(2) procedural steps performed by minors aged between 14 and 18 years of age or older adults with limited exercise capacity are hit by relative nullity. Minor's legal representative or trustee of the adult with limited exercise capacity may confirm all such acts or only some of them. The Court will grant a time limit for confirmation documents. If the acts are not confirmed within that period, it shall order the cancellation thereof.
(21) the procedural steps taken for minors aged 14 years or older adults are unable to declare null and void. This provision does not apply where the person declared as being unable to dispute this ruling.
(3) the minor who has attained the age of 16 years may exercise their procedural rights personally and to fulfill the obligations of procedural independently in the event of outbreaks of full exercise capacity (emancipation) or the conclusion of marriage.
(4) the rights, freedoms and legitimate interests of minors aged between 14 and 18 years of age, and adults limit in exercise capacity are defended in court by their parents or persons who adopted him/her, their curators, the Court being obliged to enter into such minors or adults limit the issues in exercise capacity.
(5) in the cases provided by law, the causes why born from the civil legal relations, marriage, family, work and other legal relations, minors sued by his personal rights, freedoms and legitimate interests. The Court finds the need to introduce in the trial of the minor's legal representative.
(6) the rights, freedoms and legitimate interests of minors up to 14 years of age, and adults declared unable in the manner established by law, are protected in court by their legal representatives-parents, înfietori, tutors, curators, educational institutions, administration of curative institutions or social welfare. "


Article 169Refuzul to get the request in court "(1) the judge refuses to accept the request of the Court if: [...]
e) plaintiff and/or defendant lacks the ability to use, except in cases referred to in article 59 paragraph 2. 2. (2) within 5 days of the date the request for allocation by the Court, the judge shall, by a reasoned conclusion, failing which the application and remit the applicant's conclusion and application with all supporting documents. The conclusion of the appeal can be appealed.
(3) the judge's Refusal to receive the request in court excludes the possibility of asking the Court repeated the same complainant, the same action against the same defendant, with the same cause of action and same grounds. "


Article 170Restituirea of the application of call in court "(1) the judge shall refund the application of call in judgment if: [...]
(c)) the request was lodged by a person incapable; […]”


 Article 267Temeiurile of removal application "Court removing the demand role where [...]
(b)) the request was lodged by a person incapable unless the claim relates to challenging the judgment declaring failure; [...]”


Application of article 302Depunerea "[...]
(2) the person declaring the incapacity due to mental disorders (mental illness or mental disabilities) can be switched on at the request of her family members, close relatives (parents, children, brothers, sisters, good), regardless of the fact that reside either in common with it, or at the request of the guardianship and Trusteeship, the psychiatric institution (psihoneurologie). [...]”


Article 306Examinarea application "(1) the examination of an application to the Court to limit the person's ability of exercise takes place in the presence of a mandatory exception to this obligation constitutes unsatisfactory health certified by medical institutions, in accordance with the legislation in force, and in the presence of the petitioner and the guardianship and Trusteeship body.
(2) the examination of the application for a declaration of failure by the person takes place with the participation of a representative of the guardianship and Trusteeship and the petitioner. The problem of quoting the person deciding in each case, depending on her health condition.
(3) the petitioner is exempted from payment of expenses resulting from pricinii on the limitation of the person in exercise capacity or declaration of her disability.
(4) If it becomes apparent that her family members who filed the request for limitation of exercise capacity or declaration of incapacity they have acted in bad faith, the Court may compel the payment of all costs and to repair damage caused in this way. "


Article 308Anularea of the limited exercise capacity and capacity declaration ' [...]
(2) in the case referred to in article 1. 24 para. (3) of the civil code, the Court, at the request of the person declared incapable, guardian, family members of the person, of the psychiatric institution (psihoneurologie), the organ of guardianship and Trusteeship and the basis of the report of the forensic psychiatric expertise, starts a process and issue a ruling declaring capable person însănătoşită. Pursuant to this decision, the guardianship instituted over the person shall be cancelled. "


Article 369 of the Refund Application "(1) the Court of Appeal handed back by means of a discharge, if request: d) the application for appeal was filed by a person who is not entitled to declare the appeal, except to the extent that the application made by the person incapable refers to challenging the decision on declaring the incapacity; [...]”
23. The relevant provisions of the law on the social inclusion of persons with disabilities No. 60 of 30 March 2012 (Official Gazette, no. 155-159, art. 508) are as follows: Article 8Egalitatea and nondiscriminarea persons with disabilities



(1) Persons with disabilities have the right to be recognised, wherever they are, as individuals with equal rights before the law.
(2) persons with disabilities shall enjoy legal capacity equally with others in all aspects of life, and where appropriate, and protection measures and legal assistance in the exercise of legal capacity under the laws in force.
(3) persons with disabilities have the inalienable right to respect for human dignity regardless of disability or other health condition, regardless of race, nationality, ethnic origin, language, religion, sex, sexual orientation, views, political affiliation, wealth, social origin or any other reason.
(4) persons with disabilities enjoy all civil rights, political, social, economic and cultural, and fundamental freedoms sanctioned by the Constitution of the Republic of Moldova, through the UN Convention on the rights of persons with disabilities (ratified by the law No. 166 of 9 July 2010), this law and other normative acts.
(5) persons with disabilities, in addition to equal rights with other people, they have equal obligations and responsibilities under the legislation of the Republic of Moldova.
6. Discrimination against persons with disabilities in any distinction, exclusion, restriction or preference, marginalization, and the refusal to create favorable conditions and reasonable adjustment, leading to failure or aggravation of recognition, or of carrying out civil, political rights, economic, social or cultural, is prohibited and is punishable under the laws in force.
(7) the State, through the structures of the Central and local public authorities and institutions specializing in the defence of human rights (Ombudsman), ensures the right of persons with disabilities to enjoy legal capacity equally with others in all aspects of life and guarantee their equal and effective legal protection against discrimination on any grounds.
(8) in order to ensure equality and elimination of discrimination of persons with disabilities, the State promotes the adaptation measures.
(9) specific Measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination.
(10) the Minors with disabilities shall enjoy fully all the rights and fundamental human freedoms under conditions of equality with other children.
(11) In all actions concerning children with disabilities will be taken into consideration with priority to the interests of the child.
(12) the State shall undertake measures to ensure that all categories of disabled persons, including women and girls with disabilities, are not subject to discrimination and shall enjoy all the rights and fundamental human freedoms.
(13) the State guarantees the exclusion of any form of discrimination on grounds of disability. "
24. The relevant provisions of the European Convention for the protection of human rights and fundamental freedoms (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 the following:% quot% article 6 Right to a fair trial 1. Everyone has the right to its proceedings in a fair, publicly and within a reasonable time by an independent and impartial court established by law, which shall decide upon the infringement of his rights and obligations with civil engineering, [...] "


Article 8 right to respect for private and family life "1. Everyone has the right to respect for his private life and family life, his home and his correspondence.
2. It is not permitted in a mixture of public authorities exercising that right only in so far as this is provided for by law and constitutes, in a democratic society, a measure necessary for national security, public safety, the economic well-being of the country, order and preventing criminal offences, the protection of the health, morals, rights and freedoms of others. "


Article 14Interzicerea discrimination ' exercise of the rights and freedoms recognized in the present Convention shall be ensured without distinction and, in particular, on race, colour, sex, language, religion, political opinions or any other opinions, national or social origin, membership of a national minority, wealth, birth or any other situation. "
25. The relevant provisions of the UN Convention on the rights of persons with disabilities (adopted at New York on 13 December 2006 and ratified by the Republic of Moldova Law No. 166 of 9 July 2010) are as follows: Article 1Obiective "[...] Persons with disabilities include individuals who have physical, mental, intellectual or sensorial, permanent interaction with other obstacles can impede their effective participation in social life, in the same manner as other citizens. "


Article 4Obligaţii General 1. The participating States shall assume responsibility for ensuring and promoting the enjoyment of human rights and fundamental freedoms for all persons with disabilities and without any kind of discrimination on grounds of disability. To this end, the participating States undertake to: (a) take all legislative measures), administrative and other appropriate measures for the implementation of the rights recognized in this Convention;
(b) take all appropriate measures), including measures relating to legislation, to modify or abolish laws, rules and customs, which constitute the existing discrimination against persons with disabilities; [...]”


Article 5Egalitatea and non-discrimination 1. States parties recognize that all persons are equal before the law and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.
2. States parties shall prohibit all types of discrimination on grounds of disability, and guarantee to all persons with disabilities equal and effective legal protection against discrimination of any kind.
3. In order to promote equality and eliminate discrimination, States parties shall take all appropriate measures to ensure a reasonable adaptation.
4. specific Measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under this Convention. "



Article 12Recunoaştere equal before the law "1. States parties reaffirm that persons with disabilities have the right to the recognition, wherever they are, their legal capacity.
2. States parties shall recognize that persons with disabilities enjoy legal assistance on equal terms with others, in all areas of life.
3. States parties shall take all appropriate measures to ensure accessibility for persons with disabilities to the support they may need in the performance of their legal capacity.
4. States parties shall ensure that all measures relating to the exercise of legal capacity provide for appropriate and effective protection to prevent abuse in accordance with international law on human rights. Such a protection will ensure that measures relating to the exercise of legal capacity respecting the will and preferences of the person, will not pose a conflict of interest and did not have an improper influence, are proportional and tailored to the person's situation, apply for the shortest time possible and are subject to periodic revision by a competent authority, independent and impartial tribunal or by a legal body. Protective measures shall be proportionate to the degree to which such measures affect the person's rights and interests.
5. In accordance with the provisions of this article, States parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to manage your own income and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their belongings. "


Article 13Accesul to justice "1. States parties shall ensure effective access to Justice Act for people with disabilities, in conditions of equality with others, including through the provision of procedural adjustments and age-appropriate, in order to facilitate an active role as direct and indirect participants, including as witnesses, in all legal proceedings, including the investigative stages and other preliminary stages.
2. To support effective access to Justice Act of persons with disabilities, States parties shall promote appropriate training for those working in the field of the administration of Justice, including police and prison personnel. "
26. The relevant provisions of Recommendation No. R (99) 4 of 23 February 1999, the Committee of Ministers on the legal protection of incapable adults are as follows: principle 2 "1. Protective measures and other mechanisms designed to ensure legal protection of personal and economic interests of incapable adults should be sufficiently broad and flexible to allow for the adoption of appropriate legal solutions of different degrees of disability and the variety of situations.
2. Protective measures or other appropriate legal mechanisms should be provided for in case of emergency.
[...]
5. The totality of the proposed protective measures should also include provisions limiting to a specific act and without requiring the conferral of a representative or an authorized representative with full powers. "


Principle 3 "1. The legislative framework should, to the maximum possible, to recognize that different degrees of disability may exist and that inability may vary over time. As a result, a measure of protection should not automatically lead to a restriction of legal capacity total. However, a limitation of the latter should be possible when clearly there is a need of the protection of the person concerned.
2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, to test, or not to give its consent to a particular health intervention, or to take any other decision, at any time, as far as its capacity allows it. "
LAW 27. In response, the Court observes that they essentially aimed at restricting the rights and freedoms of persons with mental disabilities, in particular the restriction of access to justice.
28. Thus, the referral relate to the elements and principles with constitutional value interconexe, as well as free access to justice, the principle of equality of all before the law and the limits of restricting the rights and freedoms of persons, in relation to the obligation of the State to ensure respect for and protect the human person.
A. ADMISSIBILITY Of 29. In accordance with its decisions 29 April 2016 2016, 14 June and 6 September 2016, 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), referral to the constitutionality of laws regarding, in particular the civil code and the code of civil procedure, the competence of the Constitutional Court.
30. Articles 25 lit. I) and g) of the law on the Constitutional Court and 38 para. (1) (a). I) and g) of constitutional jurisdiction Code empowers the Ombudsman and Deputy in Parliament with the right to refer the matter to the Constitutional Court.
31. We also resolve exceptions constitutionality of the exclusive competence of the Constitutional Court.
32. the Court remember that constitutionality is subject to article 24 of the civil code, as well as some of the provisions of articles 57 paragraph 3. (2), 58 (2), (21) and (6) paragraph 1, 169. (1) (a). 170 e), para. (1) (a). c 267), lit. b, para. 306) (1) to (2) and 308 para. (2) of the code of civil procedure, the EC shall limit access to justice for persons with mental disabilities.
33. As part of the legal norms were being challenged in abstracto, and seized on the path of non-constitutionality exception, the Court will examine the conditions for the admissibility of exceptions.
34. As regards the provisions of article 58 paragraph 1. (2) and (6), para. 169 (1) (a). e) and 306 para. (2) of the CPC, challenged only by the Ombudsman, the Court considers that the appeal in this part cannot be rejected as inadmissible and there is no reason to suspend the process, in accordance with the provisions of article 60 of the code of Constitutional Jurisdiction.

(1) Exception is raised by one of the parties or its representative, or indicates that it is lifted by the Court ex officio 35. Being raised by parties in civil Courts on the role Playing and the Center, mun. Chisinau, exceptions on some provisions of the constitutionality of articles 57 paragraph 3. (2) paragraphs 1 and 2, 58. (21), 170 para. (1) (a). c 267), lit. b, para. 306) (1) paragraphs 1 and 2 and 308. (2) of the civil procedure code and article 24 of the civil code are formulated by the subjects entitled with that right, 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.
(2) the provisions of the contested to be applied to resolving the causes of 36. Note that the power of the Court to settle, with the exceptions of unconstitutionality that had 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.
37. the Court notes that the exceptions are the constitutionality of article 24 of the civil code and some of the provisions of articles 57 paragraph 3. (2) paragraphs 1 and 2, 58. (21), 170 para. (1) (a). c 267), lit. b, para. 306) (1) paragraphs 1 and 2 and 308. (2) of the code of civil procedure in effect at the time comes up.
38. Furthermore, the Court noted that, in the process of examination of complaints the Constitutional Court, the contested provisions of articles 58 (21) 267, lit. b, para. 306) (1) paragraphs 1 and 2 and 308. (2) of the code of civil procedure were amended and supplemented by law No. 201 of 28 July 2016, in force since September 9, 2016.
39. Analyzing the essence of the amendments and additions introduced by the said Law, as well as in the light of article 6 of the code of constitutional jurisdiction, the Court will examine the provisions challenged in the light of the changes and additions that have been made.
40. At the same time, the Court finds that the provisions of paragraphs 1 and 2. (1) of article 1. 306 from CPC, invoked by the author referral No. 63g/2016, refers to the examination by the Court of the request for limitation of the capacity of the person in respect of which the curatorship may be imposed. The Court noted that the folder was raised exception is aimed at restoring the full capacity to exercise a person with mental disorders in terms of which was previously established guardianship.
41. In Judgement No. 2 of 9 February 2016 Court pointed out that the exception of constitutionality means a procedural action, through which the Constitutional Court is seised on the mismatch with the provisions of the applicable legal provisions in case the court deduced.
42. Therefore, the exception of constitutionality raised in referral No. 63g/2016 is inadmissible in part of paragraph 1 of article 306 of the CPC, because it does not affect the civil case in which the exception was raised.
43. Furthermore, the Court observes that paragraphs 1 and 2. (2) of article 9. 308 from CPC, invoked by the author referral No. 63g/2016, restoration of the Court only exercise capacity at the request of the guardian, to family members of the person, of the psychiatric institution (psihoneurologie), the organ of guardianship and Trusteeship and the Prosecutor.
44. Subsequently, by law nr. 201 of 28 July 2016, this norm has been amended in the sense in which the person incapable he was granted the right to claim restitution in capacity and cancellation of guardianship.
45. In this context, the Court underlines the findings of the European Court of human rights, according to which any person declared incapable or partially incapable-has the right of access to a court to request restoration of his legal capacity (see Kędzior c. Poland, no. 07, 45026 16 October 2012, § 85;  Doris Mikhaylenko c. Ukraine, nr.  49069/11 30 may 2013, § 37 and 40).
46. The right to request the Court to declare the lawful legal incapacity is one of the most important rights of the person with mental disorders, since such a procedure, once started, is decisive for both the exercise of the rights and freedoms of everyone affected by the State of incapacity, and in connection with restrictions that could be imposed upon the freedom of the person. However, from the perspective of the Convention, deprivation of legal capacity is an issue as important as the deprivation of liberty.
47. In the light of the above principles and of the completeness, the Court notes that the question of constitutionality, in this part of the referral No. 63g/2016, was remedied by the amendments that have been made. For this reason, the Court suspended the process for notification constitutionality control provisions of article 308 (2) of the CPC.
48. With reference to other provisions challenged, the Court accepts the arguments of the authors of non-constitutionality exception, under which they are to be applied to resolving the causes on the role of the courts, because under their empire were born to legal relations which continue to have effect and shall be decisive for the settlement of the issue concerning the ability of persons with psychiatric disorders.
(3) there is a previous judgment of the Court has as its object the contested provisions 49. The Court finds that the contested provisions have not previously been the object of constitutionality. 
50. Following its previous case-law, the Court will address the issue of the constitutionality of the impugned provisions, reported the circumstances of disputes, in the light of the constitutional rules cited by the authors of exceptions, taking account both of the principles enshrined in the Constitution and in national law, and the ruling in the European Court.
51. Consequently, the Court considers that the notices cannot be rejected as inadmissible and there is no other grounds for interruption of the process, in accordance with the provisions of article 60 of the code of constitutional jurisdiction.
52. the Court notes that the authors have argued that exceptions provisions challenged are contrary to articles 4, 7, 8, 16, 20, 25, 27, 28, 38, 46 and 54 of the Constitution. 

53. In this context, the authors note that, although they could invoke those articles, essential referrals is violating the free access to justice under the conditions in which all citizens are equal, regardless of their health status and the degree of disability.
54. In addition, the Court observes that the contested provisions refers to the obligation of the State to ensure the protection of persons with disabilities, as provided for in article 51 of the Constitution.
55. Therefore, in order to elucidate its compliance with the provisions of the contested constitutional provisions, the Court will operate with the provisions of articles 20 and 51 para. (1) combined with articles 16 and 54 of the Constitution, taking into account the reasoning set out in its previous case-law of the European Court and the principles guaranteed by the relevant international instruments.
B. FUND of the CASE ALLEGED VIOLATIONS of articles 20 and 51 para. (1) COMBINED with article 16 and article 54 of the CONSTITUTION 56. The authors of the report said that the provisions challenged in breach of article 20 of the Constitution, according to which: "(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. "
57. Likewise, as noted supra, the impugned provisions of the Court to be examined including through article 51 paragraph 1. (1) of the Constitution, according to which: (1) Individuals with disabilities shall enjoy special protection from the whole society. The State shall ensure that normal conditions for medical treatment and rehabilitation, education, training and social integration. [...]”
58. The authors of the complaints claimed that the provisions on notification constitutionality control subject to come in conflict with article 16 of the Constitution, according to which: (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. "
59. In the opinion of the authors of the report, contrary to the provisions of the contested and article 54 of the Constitution, which States: "(1) in the Republic of Moldova cannot be adopted laws suppressing or violating fundamental rights and freedoms of man and citizen.
(2) the exercise of rights and freedoms may not be subject to restrictions other than those prescribed by law and which correspond to the widely recognized norms of international law and are necessary in the interests of national security, territorial integrity, economic well-being of the country, public order, in order to prevent mass unrest and crime, protection of rights, freedoms and dignity of other persons, preventing the disclosure of confidential information or to ensure the authority and impartiality of the judiciary.
(3) the provisions of paragraph (2) do not allow the restriction of the rights stipulated in articles 20-24.
(4) the restriction must be proportional to the situation that caused it, and may not affect the existence of that right or freedom. "
1. Arguments of the authors complaints-with reference to the contested rules of the code of civil procedure. The motivation of referrals No. 49A/2016 and 63g/2016, the authors noted that any interested person, including the disabled, has the right to address the Court in the manner provided by law to protect their rights, freedoms and legitimate interests. However, the judiciary in civil causes shall be administered in accordance with the principle of equality of all persons, regardless of citizenship, race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, social origin, Office, home, place of birth and other circumstances.
61. Thus, the authors of the complaints concerned noted that the principle of free access to justice must be applied regardless of the person's State of health and is materialized through the possibility of lodging an application in the courts, and the legitimate character of the claims formulated to be appreciated only by the Court.
62. According to them, through ratification of the Covenants and treaties on human rights, the State of the Republic of Moldova has committed itself to respect, promote and realize the right to equality and to provide effective legal protection to all persons present on its territory, including persons with mental disabilities.
-With reference to the contested rules of the civil code 63. The authors of the report No. 56A/2016 and 90 g/2016 assert that guardianship institution does not represent a measure of the effective protection of persons with mental disorders.
64. The authors of the report consider that the institution of guardianship, governed by art. 24 of CC entails deprivation of people with overall mental disorders exercise capacity, although in most cases it would take less restrictive measures. Also, the establishment of guardianship shall not examine the degree or severity of impairment the person discernment to be declared incapable.
65. The authors of the report considered that in the case of persons with severe psychiatric disorders, not keeping the necessary capacity to make decisions, to be an individualized approach for each case in order to facilitate decisions taking into account the will and preferences of the person.
66. Deprivation of a person with mental disorders exercise capacity can only take place as a result of the assistance measures less restrictive when the procedure for deprivation of capabilities provides sufficient safeguards against potential abuse of influence and conflicts of interest between the person concerned and future legal representatives and only if it is applied for a short period and will be reviewed periodically by the competent authorities as to whether they are necessary and proportionate rights and interests of the data subject.
67. In conclusion, the authors report No 3768/85. 56A/2016 and 90 g/2016 considers that disproportionate restrictions on the establish guardianship rights and interests of persons with psychiatric disorders.
2. The arguments relating to the authorities-the contested rules of the code of civil procedure

68. In the opinion of the President of the Republic of Moldova shall be stated that the State may restrict access to justice in particular cases such as that of the persons declared incapable, establishing special rules of procedure and certain ways of exercising civil procedural rights. Such a restriction must be proportional to the situation which it has determined and necessary in order to ensure justice and authority to protect the rights, freedoms and dignity of the persons declared incapable, and others.
69. Thus, in the opinion of the President, people with psychiatric disabilities must enjoy the right to lodge applications in trial, appellate and review, as well as any other applications during the examination of the case, which the Court to examine them in the light of the health of the persons concerned and the obligation of the parties to make use in good faith of their procedural rights.
70. In the opinion of the European Parliament, noted that the issues addressed in our Newsletter No. 49a/2016 and nr. 63g/2016 is located at final stage of settlement on the way.
71. Thus, on 28 July 2016 was adopted Law No. 201 for the modification and completion of some legislative acts, in place since September 9, 2016, which have introduced important changes to the provisions of the code of civil procedure with respect to access to justice for persons with psychiatric disorders. Also on 3 November 2016 Parliament approved on first reading a draft law on the amendment of the legislation in relation to exercise capacity, establishing multiple safeguards in order to ensure the legal protection of persons with mental disabilities, in accordance with the provisions of relevant international laws and case law of the European Court.
72. The Government just mentioned that the draft law on modification and completion of some legislative acts approved in the first reading by Parliament on 3 November 2016, establish a different concept with regard to the legal status of persons with mental disabilities and provides for reforming healthcare measures concerning them.
73. In the opinion of the Supreme Court of Justice, Declaration of absolute nullity of laws of civil procedure prepared by persons incapable can lead to abuse in that it rejects the possibility examination of the circumstances of each particular case, thus violated the principle of proporţionalitaţii. For these reasons, the refund or removal of pending requests to call forwarded to court incapable persons constitutes a disproportionate measure in the light of the provisions of art. 54 of the Constitution.
74. The Supreme Court of Justice considered that, in consonance with the principles of equality and respect for human dignity, the requirement of representation in court to declare only adults incapable persons set out in paragraph 1 of article 58. (6) the CPC, particularly when there are conflicts of interest between the incapable adults and legal representatives, constitute measures which are contrary to the Constitution.
-With reference to the contested rules of the civil code 75. In his opinion, the President of the Republic of Moldova stated that measures for the protection of persons with mental disorders should not automatically lead to the restriction of legal capacity total. However, a limitation of capacity should be possible when the need for protection of the person concerned.
76. Consequently, the President argued that art. 24 CC aims to establish a form of protection of persons declared incapable by the Court against the abuses which can be committed by others. At the same time, in his opinion, it is inadmissible statement of inability of the person only on the basis of psychiatric diagnosis.
77. In its opinion, Parliament noted that being deprived of exercise capacity is an institution designed for the protection of persons with mental disabilities, being dictated by the fact that the person with mental disorders is not able to understand the essence of civil legal acts and the consequences which it may end.
78. The Parliament argued that the exclusion of the whole of the supervision and the imposition of another protective mechanism, as support given to persons with mental disabilities, could lead to unpredictable consequences. It also deprived the person of exercise capacity cannot be regarded as contrary to constitutional rules cited by the authors of the complaints on the grounds that this collapse is available exclusively through a decision of the Court, and the Court is obliged to take into account all the circumstances of each case, and even if the person is suffering from mental disorder, the Court may decide not to declare it incapable. Finally, Parliament supported the constitutionality of the provisions of article 24 of the civil code.
79. In the opinion of the Government mentioned that the draft law referred to supra, approved in first reading by the Parliament, in full compliance with the provisions of the UN Convention on the rights of persons with disabilities (hereinafter referred to as CRPD).
80. The Supreme Court of Justice has noted that the Parliament adopted on 30 March 2012 Law on social inclusion of persons with disabilities, taking into account the provisions of the CRPD, establishing appropriate social services needs of persons in this category, to provide support to realize the choices to be made and to be able to communicate one's own intentions to others.
81. In his opinion, the Supreme Court of Justice has emphasised the need for the application of this law in order to comply with the obligations assumed by ratifying the CRPD and the State to protect the values of equality, dignity, individual autonomy and independence of people with disabilities. It was also mentioned that people with mental disorders should have legal capacity and are assisted in the process of decision-making through mechanisms based on the particular circumstances of each case, and where the legal capacity to be limited, the measures must comply with the principle of proportionality.
3. The views of the organizations in the field of the protection of persons with disabilities

82. In the opinion of the UN Office in Moldova, guardianship is a mechanism to override the decision of a person with mental disorders, which exposes the person to the risk of abuse on the part of guardian, although without automatically individual fundamental rights, contrary to the provisions of article 7. 12 of the CRPD. Although they were designed as protective measures, both guardianship institution as well as the Declaration of incapacity are deficient and places the person lacking legal capacity in a situation of vulnerability.
83. In the opinion of that State be presented must establish an alternative mechanism of support in decision-making by people with psychiatric disorders. It also claims that, according to international standards, any measure of protection of persons in this category may be used only with the consent of their informed and voluntary and without achieving fundamental rights and inalienable.
84. In conclusion, the UN Office points out that people with any type of disability, including by reason of mental disorder, should benefit from the recognition of the legal capacity/personality on equal terms with others.
85. In the opinion of the Court, presented the MDAC argues that the existing system of guardianship in Moldova violates the right to private life and articles 5 and 12 of the CRPD provides substitution because the will of the person declared incapacitated with the will of other individuals in the decision-making process. Likewise, the MDAC should be introducing an alternative scheme for the grant of support in making decisions to protect persons with disabilities who need support in exercising their legal capacity.
86. complaints lodged with the MIHR support and noted that the existence of a mental disorder cannot be the sole reason to justify the deprivation of legal capacity of the person with such disorders. According to IDOM, establishment of guardianship in respect of persons declared incapable constitutes an inadequate measure of protection in the Republic of Moldova, contrary to the provisions of article 12 of the CRPD by the fact that the persons concerned are "substituted" in decision-making by their guardians, without consulting their opinion and preferences of the person under guardianship.
87. in addition, MIHR believes that persons with mental disabilities and intellectual should be given the opportunity to exercise their civic rights and responsibilities, in so far as they are capable of this. Thus, the right to recognition of legal capacity, whether it be of full legal capacity, or assisting in decision-making, would allow people with disabilities to conviețuiască and integrate into society.
88. CAJPD supports the position of the authors of the report, namely that rules on the constitutionality of the controlled persons declared incapable are deprived of the right to address the Court, which results in extreme violation of the principle of equal and free access to justice. Likewise, CAJPD argues that the Declaration of invalidity of the acts drawn up by persons unable, according to the contested rules from CPC, constitute a disproportionate interference, which has the effect of achieving the existence of the right to free access to justice for these people.
89. Also considers that the provisions of CAJPD of the civil code lay down the requirements relating to the ability of the person to be guardian, but fails to regulate a clear mechanism governing the removal of the person's guardian when its interests conflict with the interests of the person placed under guardianship.
90. considers that measures the AOPD Trustees and a declaration of incapacity provided for in the civil code and the civil procedure code are incompatible with the provisions of article 4 of the Constitution and article 12 of the CRPD.
4. Assessment of Court 18. General principles relating to the protection of persons with disabilities to 91. The Court noted that, according to article 16 of the Constitution, respect and protect the human person constitutes a duty of the State. All citizens of Moldova are equal before the law and the public authorities.
92. Special protection on behalf of the whole of society benefits from persons with disabilities, the State being obliged to provide normal conditions for medical treatment and rehabilitation, education, training and social integration (art. 51 of the Constitution).
93. the Court reveals that the category of persons with disabilities include individuals with physical disabilities, mental, intellectual or sensory impairments which, in interaction with various barriers may impede their full and effective participation in society on equal terms with others (art. 1 CRPD).
94. For the protection of the rights of persons with disabilities, international instruments establish numerous guarantees.
95. According to article 1 of the Universal Declaration of human rights, all human beings are born free, equal in dignity and rights. Article 6 of the Universal Declaration and article 16 of the International Covenant on Civil and Political Rights guarantees every person the right to have a legal personality recognised everywhere.
96. Similarly, CRPD guarantee persons with disabilities the right to the recognition, wherever they are, their legal capacity, with the ability to limit only in certain cases, by implementing protective measures commensurate to the specific situation in which they are located (article 12 paragraph 1. (1) and (4)). Under the Convention, States parties shall take all appropriate measures to ensure accessibility for persons with disabilities to the support they may need in the performance of their legal capacity. Also, they are to ensure that all measures relating to the exercise of legal capacity provide for appropriate and effective protection to prevent abuse in accordance with international law on human rights. Such a protection will ensure that measures relating to the exercise of legal capacity respecting the will and preferences of the person, will not pose a conflict of interest and did not have an improper influence, are proportional and tailored to the person's situation, apply for the shortest time possible and are subject to periodic revision by a competent authority, independent and impartial tribunal or by a legal body.

97. At the european level, equal opportunities policy is promoted and the Council of Europe for the purpose of granting the possibility for all individuals to exercise their social rights dimension in which they hold (social, economic, cultural and political).
98. the Committee of Ministers of the Council of Europe in its recommendation No 22. R (99) 4 of 23 February 1999 on the principles of the legal protection of incapable adults calling declared States lay within their legislative framework that can have varying degrees of disability and that inability may vary over time. As a result, a measure of protection should not automatically lead to a restriction of legal capacity total. Likewise, the Recommendation is that a limitation of legal capacity would only be possible when clearly there is a need of the protection of the person concerned.
99. Recommendation No. R (2009) (3) with regard to the monitoring of the protection of human rights and dignity of persons with mental disorders, adopted by the Committee of Ministers on 20 May 2009, stipulates that persons with mental disorders must be permitted to exercise civil and political rights where this is possible and can be applied in practice (Principle No. 2-"civil and political rights").
100. Furthermore, in accordance with the provisions of international law. 60 of 30 March 2012 with regard to social inclusion of persons with disabilities States that persons with disabilities have the right to be recognised, wherever they are, as individuals with equal rights before the law, and that they shall enjoy the legal capacity equally with others in all aspects of life, and where appropriate, and protection measures and legal assistance in the exercise of legal capacity provided for by the legislation in force.
101. Moreover, in its judgment No. of 13 November 27, 2014, the Court noted that, in terms of new approaches to international legal instruments, mechanisms designed to ensure the protection of the interests of persons unable to be wide enough to allow for the adoption of appropriate legal solutions to different degrees of disability and the variety of situations. At the same time, the Court stressed the need to increase as far as possible the autonomy of persons suffering from psychiatric disorders in the activities, in accordance with the standards enshrined in international laws.
4.2. Application of the principles in this question 4.2.1. With reference to the rules of the civil code 102 challenged. In the present case, the Court note that, in accordance with the provisions of the contested article 24 CC the person as a result of a mental disorder (mental illness or mental disabilities) may not become aware of his actions, or steer may be declared incapable by the Court, and upon herself the guardianship shall be established.
103. the Court points out that, while such persons may be declared incapable by a court act, exercise capacity deprivation may not result in achievement of human dignity, which is the subject of an absolute protection from the State by article 1 para. (3) of the Constitution. However, in terms of guaranteeing the dignity of all persons, the possibility of a stand-alone activities in society by providing opportunities to develop and protect their own rights and freedoms will be default insured persons incapable (HCC No.27 November 13, 2014).
104. the Court reveals that human dignity can be seen from two perspectives: firstly-as a value intrinsic and inalienable, and secondly-as a "right of personality", which includes psychological life of each values human beings, thereby causing its position in society, and to impose respect for each person. In this "right of personality" derives the existence of minimum guarantees for every person to have the ability to operate freely within society and to develop their personality in the social and cultural environment.
105. According to international laws, respect for the dignity of the human being, for individual autonomy, including the right to make their own choices, and independence of the person, is a fundamental principle.
106. Thus the Court reveals that the said principles are key elements which underlie the concept of legal capacity.
107. The civil code of the Republic of Moldova shall recognize civil capacity of all persons. Thus, any person who holds the capacity of use and, except as required by law, exercise capacity. The civil Code also stipulates that no one may be restricted in your ability to use or deprived, in whole or in part, on the ability of the financial year, except in the cases and conditions expressly prescribed by law.
108. In the light of the provisions of the CRPD, the Court finds that, although people with mental disabilities have the right to the recognition, wherever they are, their legal capacity, it is possible to apply protective measures on them, adapted to the particular situation of the person (art. 12 para. (4)) 109. So, keep in mind that guardianship Court can be established when the restrictions involved are proportional to the level of disability of the person with mental disorders, and only for a specified period of time, with the assessment of the need to maintain the competent authority which established it.
110. the Court noted that the inability of the exercise must not be declared automatically by reason of mental disorder, there is a risk the achievement of the rights and interests of those people who at certain times (situation) can realize and can commit their actions or could develop other abilities, with the help of a qualified support.
111. With regard to the proportionality of the measures of protection, the Court in its case-law, pointed out that it is necessary to have a strict control on measures with a negative impact on a person's individual autonomy and that the consideration of alternative measures to the deprivation of legal capacity is a factor to be taken into account when considering the proportionality of such measures (M.S. c. Croatia No. 36337/25 April 10, 2013, § 97).

112. The Court has noted that the limitation of legal capacity must be applied by the national authorities only in a last resort, when they considered, after a careful evaluation, that any other alternative less restrictive measures were not effective (Ivinović c. Croatia No. 13006/13, September 8, 2014, § 44).
113. Moreover, the European Court has established in case-law to the necessity of a "custom solution" in the case of a declaration of incapacity of individuals. In the case Shtukaturov c. Russian Federation, the European Court held that the defendant State legislation provide for full legal capacity or incapacity for adults with mental disorders, without instituting any intermediate situation such as partial legal capacity limitation, except in respect of persons dependent on alcohol or narcotic drugs. Consequently, the European Court found that the national legislation in question does not provide a "custom solution" in the case of adults with mental disorders due to the fact that the existing legislation at the time of the judges did not offer another choice than to deprive the person totally legal capacity or incapable to declare it (see Shtukaturov No. 44009/05 judgment of 27 March 2008 , § 95).
114. In the light of those laid down, the Court finds that a measure of protection for the person with mental disorders need to be flexible and to provide a suitable solution according to each situation or degree of incapacity. Furthermore, the Court noted that such a measure should not automatically imply deprivation of the legal capacity of the person with mental disorders.
115. Consequently, the court notice that in respect of the persons referred to are necessary to the imposition of protective measures and alternatives.
116. In the present case, the Court finds that the national legislation does not provide for the possibility of limiting the capacity of partial exercise or institurii provisional measures in respect of persons with psychiatric disorders. According to civil legislation, limiting the ability of exercise may be ordered only in respect of persons who consume alcohol, abusive drug or other psychotropic substances.
117. At the same time, the Court finds that, according to current regulations, the institution of guardianship deprives the person of the right to take any action on his own behalf (legal acts) that would target her.
118. Note that the Guardianship Court, as a special measure for the protection of persons with mental disorders, to be applied only in respect of those persons who may not be aware of or direct the actions in their entirety. Equally, such a measure should be taken as a last resort, after exhausting other measures less restrictive, actually found by the courts of law in the examination of the application for a declaration of incapacity and the subsequent assessment of the need to maintain a State of incapacity, and only to the extent that does not deprive the person entirely right to conclude legal acts minor or exercise other activities inherent in his personality.
119. At the same time, the Court points out that the establishment of guardianship and the legal representative must take into account the person's preferences.
120. In the context of those mentioned, note that Court guardianship institution itself is not unconstitutional, but in order to be consistent, the Constitution is to be interpreted in the sense in which the Declaration of incapacity for exercise at the persons to whom it is missing entirely discernment, in respect of which the application of other protective measures less restrictive proves to be ineffective.
4.2.2. In reference to the disputed rules of the code of civil procedure 121. The Court indicates that the contested provisions of the code of civil procedure aimed at limiting access to justice of persons declared incapable and persons with limited exercise capacity.
122. in accordance with the respective legal provisions, not declared incapable adults can defend in court its own rights, freedoms and legitimate interests, applications lodged by them are not examined by the Court, being returned or removed from the role, and procedural steps taken by them are hit by absolute nullity (art. 58 para. (21) and (6), art. 170 para. (1) (a). c), art. 267 lit. b) CPC).
123. At the same time, procedural steps taken by people with limited exercise capacity are hit by relative nullity (art. 58 para. (2) of the CPC).
124. Likewise, summoning (presence) of the persons with mental disorders is not imperative in the procedure for examining the application for a declaration of incapacity to exercise and is carried out by the Court depending on the health of the persons concerned (art. 306 para. (2) CPC).
125. the court notice that, according to art. 20 paragraph 1. (2) of the Constitution, no law may restrict the access to justice. Any person may apply to the judiciary for the protection of rights, freedoms and legitimate interests.
126. At the same time, keep in mind that access to justice is not an absolute right and admit certain limitations. Limitations imposed by the legislator must not be such as to affect the very substance of the right of access to justice.
127. the Court noted that, according to the CRPD, States parties to the Convention should ensure effective access to Justice Act for people with disabilities, in conditions of equality with others, including through the provision of procedural adjustments and age-appropriate, in order to facilitate an active role as direct and indirect participants, including as witnesses, in all legal proceedings, including the investigative and other stages of the preliminary stages (art. 13, para. (1)) 128. In this case, referring to the disputed rules, which establish restrictions for adults declared unable to defend in court his own rights, freedoms and legitimate interests, the Court shall indicate the following.
129. Deprivation of the exercise capacity determines the rights and obligations for others. Thus, for adults deprived of exercise capacity, ending legal acts on their behalf, their legal representatives under the conditions provided by law.

130. In this regard, note that Court decisions made by legal representatives on behalf of incapacitated persons do not always reflect the will and their preferences. However, after declaring the incapacity of a person, it becomes totally dependent on his tutor in all spheres of life, the measure is often applied for an indefinite period of time, and most of the laws affecting the rights of incapacitated person cannot be challenged in a way other than via the guardian.
131. For these reasons, the Court concludes that, although laws granted to persons declared incapable are entitled to challenge the application of the guardianship and legal capacity to require restitution remains impossible defense in the Court of law other rights, freedoms and legitimate interests of adults declared incapable. Thus, the granting of such possibilities only legal representatives would be inappropriate in cases where their interests diverge, creating premises for possible abuses.
132. In particular, D.D. c. Lithuania (judgment of 14 February 2012, § 118) and H.m. c. Croatia (cited supra, § 80 and 107), the European Court has noted that, in cases where the person is in conflict with her guardian and "where conflict can have a major impact on the legal situation of the person", it is essential that he should be entitled to access to a court.
133. With reference to the persons declared incapable, the European Court, in its jurisprudence, found that 17 of the 20 studied legal systems provide for direct access in some cases to court for any person declared incapable (see Stanev c. Bulgaria, nr. 17/06 36760 January 2012, § 88-89).
134. At the same time, the European Court noted that it would not be contrary to article 6 of the Convention, the fact that the provision in the national legislation of certain restrictions on the right of access to court, in order to not overload the courts with requests or groundless.
135. At the same time, the European Court found that the problem of overloading of the courts can be avoided by other means less restrictive than the denial of automatic access to courts, for example, by limiting the frequency of submission of such application or through the introduction of a system of preliminary examination of the admissibility of the application on the basis of the dossier (see Stanev cited supra, § 242). However, since mental health condition is a condition that limits a person to act on their own in society, including in relations with the authorities, then the more that person must be guaranteed access to the simplest action such as, for example, filing a complaint with the Court. This possibility is granted to a person with mental disorders is in perfect accordance with the right to freely choose naturally subjective, whose essence lies in the freedom to act according to his own desires and choices ".
136. The Court observed that there are situations where the wishes of a person with mental faculties may be validly replaced with those of another person acting in the context of protective measures and that sometimes it is difficult evaluating true desires or preferences of the person concerned. However, even if a person has been deprived of legal capacity, this fact does not necessarily mean that you cannot understand the situation in which they are located (see supra, § Stanev cited 130). However, the importance of procedural rights vary according to the purpose of the action that a person wishes to enter in the Court.
137. the Court observes that the provisions of the code of civil procedure lay down absolute nullity of the acts of persons declared procedural incapable without paying the judgment court of possibility to examine them and to decide on their validity in the light of the circumstances.
138. Also note that Court applications to call forwarded to court these people are left by the Court without examination, being returned or removed from the role.
139. the Court noted that law No. 201 of 28 July 2016 were operated additions to articles 58 para. (21) and 267 lit. b) CPC, which lay down only the validity of procedural acts performed by the persons declared incapable by which it contests the judgments declaring their incapacity.
140. the Court notes that these changes are consistent case-law of the European Court, in which it was determined the need for the establishment of adequate redress for the mentally handicapped (Center for legal resources, in the name of Urban V c. Romania on 17 July 2014, § 151; C.b. c. Romania from 20 April 2010 § 65-67;
B. c. (No. 2) of 19 February 2013, § 97).
141. At the same time, the Court emphasizes that through these general provisions amendments of absolute nullity of acts drawn up by persons incapable or withdrawal of pending applications had not been modified.
142. Under these conditions, adjusting from international standards, the Court points out that the procedural acts drawn up by persons incapable may not be an absolute start flattened them into nonentities. Likewise, it is necessary and the need for examination by the Court of requests in court according to the circumstances, even without compulsory involvement (the agreement) of the legal representative of the person incapable, where the problem can be deducted towards the dispute dealt with only with the assistance of the person who submitted it.
143. For these reasons, the Court concludes that article 58 paragraph 1. (21) and (6), 170 para. (1) (a). 267 c) and subparagraph (c). b) unduly limits the CPC and in a manner disproportionate access directly to the Court of the persons declared incapable to defend their legitimate rights and interests.
144. Furthermore, the Court finds that, according to art. 58 para. (2) acts prepared by the CPC, adults with limited exercise capacity are hit by relative nullity. At the same time, the Court notes that, in the case of procedural acts drawn up by those individuals are not confirmed by the Trustees, they are struck by the absolute nullity of the

145. In the light of the findings above concerning the need to ensure the free access to justice for persons declared incapable, the Court finds that the annulment of the proceedings prepared by adults with limited exercise capacity constitutes a disproportionate restriction on the more since adults dependent on certain substances may realise his actions and steer in certain circumstances and/or from time to time.
146. With reference to the provisions challenged by the art. 57 paragraph 3. (2) and article 3. 169 para. (1) (a)) that the CPC acts drawn up by the person lacks the ability to use are void, and the application of the judgment is refused by the Court, the Court shall retain the following.
147. the Court noted that the ability to have civil procedural rights and obligations (ability to use procedural civil rights) is recognized equally to all individuals and organizations who enjoys, according to law, the right of appeal to court to safeguard the rights, freedoms and legitimate interests. Note that the provisions of the contested court refers both to individuals and legal persons.
148. procedural Capacity to use natural and legal persons coming within the capacity of use stipulated by the civil code (art. 18 and 60). Thus, the ability of an individual occurs at the moment of birth and ceases with the death of the person. As concerns the capacity of a legal person, it shall be acquired from the date of registration and shall cease on the date of her removal from the register of State. 149. In this context, note that Court sanction of invalidity of the procedural acts drawn up by people lacking the ability to use should not be confused with prohibition of deprivation and limiting the ability of an individual (art. 23 CC).
150. As regards the contested rule in article 24. 306 para. (2) CPC establishes that the person quoting the Court, depending on her health, in the context of the examination of the application for a declaration of incapacity for exercise, the Court shall indicate the following.
151. The European Court has repeatedly stressed the importance of the participation of a person with mental disorders examining regarding the ability of the sa, since it has a double role as an interested party and at the same time as the main object of examination in the Court. In particular, the European Court has noted that the presence of the person in respect of which it is intended to adopt a decision concerning the legal capacity is required to submit his defence, and to allow the judge to form an opinion regarding his mental faculties (see Shtukaturov, cited supra, § 72; Kovalev c. Russian Federation, no. 78145/01, may 10, 2007 § 35-37).
152. Furthermore, the European Court held that judges at the time of the adoption of decisions which have serious consequences for privacy of individuals, as are those of deprivation of legal capacity, ought in principle to have a direct contact with those people (X and Y c. Croatia, nr. 5193/09, November 3, 2011 § 84).
153. In these spețe, the European Court has established that the decisions of judges to examine the causes on the basis of documentary evidence only, without seeing and hear the plaintiffs, were not reasonable and violated the guarantees provided for in art. 6 § 1 of the Convention.
154. In the light of the principles laid down, Court reveals the need to ensure the effective participation of the person concerned to the process of examination of the application requesting a declaration of incapacity of the latter. The Court noted that, in the case where the person is not possible, for objective reasons, the Court is expected to ensure the hearing of its whereabouts, finding her place, if necessary, the impossibility of communication with it.
155. the Court shall retain the status of a person with mental disorders should not impede the effective participation of the latter in the process of examining the Declaration of unfitness of the exercise, at least not until this impossibility to be ascertained with certainty by the Court (judge) as a result of undertaking all necessary measures.
156. In the light of the above, the Court concludes that the restriction is likely referred to in articles 58 para. (2), (21) and (6), 170 para. (1) (a). 267 c) and subparagraph (c). b) of the code of civil procedure had a decisive impact on the exercise of the rights and freedoms of persons with psychiatric disorders. Of these reasoning, the Court finds that the legal provisions referred to transgress the principle of proportionality and affect the essence of the right to free access to justice, notwithstanding article 20 combined with article 16 and article 54 of the Constitution.
For these reasons, pursuant to articles 140 of the Constitution, 26 of the law on the Constitutional Court, 6, 61, 62 lit. of the 68 of the code) and constitutional jurisdiction, the Constitutional Court DECIDES: 1. Appeals allowed in part the Ombudsman Nuala and Mihail deputies in Parliament, Tudor Deliu, Octavian Grama and Grigore Canon, as well as the exceptions of constitutionality raised by Attorney Darry Sachchida NAND in file No. 2-358/2016, pending at the regional court in Rezina, and Lilia Pan in file No. 2-931/2016, pending at the Center Court, mun. Chişinău.
2. To recognize constitutional:-article 24 of the civil code of the Republic of Moldova nr. 1107-XV of 6 June 2002, in so far as it is interpreted in the sense in which the Declaration of incapacity for exercise at the persons to whom it is missing entirely discernment, in respect of which the application of other protective measures less restrictive proves to be ineffective;
-the sentence "procedural steps performed by the person lacks the ability to use are void." in article 57 paragraph 3. (2) paragraph 1 of article 169. (1) (a)) of the code of civil procedure of the Republic of Moldova nr. 225-XV of 30 May 2003.
3. It is hereby declared unconstitutional: MediaWiki "or adults with limited exercise capacity" and "or adult curator with limited exercise capacity" in article 58 paragraph 1. (2);
-the words "or adults declared unable" in article 58 paragraph 1. (21) to the extent that the procedural acts performed by persons incapable are hit by absolute nullity;

-the phrase "as well as of adults declared unable in the manner established by law" from paragraph 1 of article 58. (6) in so far as it prohibits participation in the trial of persons declared incapable, and does not allow the Court to take into consideration the will of them;
-Article 170 para. (1) (a). c) and article 267 lit. (b)), to the extent that in any event it is prohibited the application of the judgment of an individual incapable;
-the sentence "the problem of quoting the person deciding in each case, depending on her State of health." in article 306 para. (2) in so far as it allows the court examination of the application for a declaration of incapacity for financial year without hearing the person in a situation where it is not possible to move the seat of the Court, of the code of civil procedure of the Republic of Moldova nr. 225-XV of 30 May 2003.
4. process for notification constitutionality control stops article 308, paragraph 2, of the code of civil procedure of the Republic of Moldova nr. 225-XV of 30 May 2003.
5. 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