inadmissibility of complaints nr. 74A, 75a//2016 2016 2016 and 86a/notification constitutionality control law. 136 of 17 June 2016 on status of the Chisinau municipality



Published: 03.02.2017 in Official Gazette No. 30-39 art no: 8 date of entry into force: 06.09.2016 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, having regard to the complaints filed on 21 June and 22 June 2016, 2016 and July 20, 2016, recorded at the same examining the admissibility of complaints referred to, taking into account the laws and proceedings, Acting on 6 September 2016 in the Chamber Council Pronounce the following decision: in fact 1. On 21 June and 22 June 2016 2016, deputies in Parliament and Mr. Eugen Carpov Iurie Leanca and Vasile Grigore Novac and Bae have addressed the Constitutional Court two appeals, requesting the control of constitutionality of the law No. 136 of 17 June 2016 on status of the Chisinau municipality.
2. On 20 July, 2016 Deputy Vasile Bae completed the appeal lodged on 22 June 2016 and an additional request to exercise control on notification constitutionality the law on status of the Chisinau municipality as a whole has cited alleged some provisions of non-constitutionality of articles 6, 7, 10, 12, 14, 15, 19, 20 and 25 of the Act.
3. Considering object identity, pursuant to article 43 of the code of constitutional jurisdiction, the Court of Appeals ruled in a connecting single file.
A. the reasons complaints 4. Reasons for complaints, as exhibited by their authors, can be summarized as follows.
5. On 17 June, 2016, the Moldovan Parliament adopted the law No. 136 of 17 June 2016 on status of the Chisinau municipality, governing the specific peculiarities of organization and functioning of public administration authorities from Chișinău.
6. Thus, the law includes provisions relating to the composition, competence and functioning of the municipal Council, the Mayor and the deputy mayors, as well as the status of pretor.
7. the Deputy Iurie Leanca and Eugen Carpov argue that by adopting law No. 136 of 17 June 2016 on status of the Chisinau constitutional provisions contained in article 11. 38 on the right to vote and the right to stand as a candidate, art. 109 concerning basic principles of local public administration and art. 112 concerning the village and municipal authorities.
8. Deputies in Parliament and Vasile Grigore Novac Bae believes that legal provisions are contrary to the constitutional provisions of the disputed art. 16 with regard to equality, article. 23 concerning the right of everybody to know their rights and duties, art. 38 on the right to vote and the right to stand as a candidate, art. 46 on the right to private property and its protection, art. 54 with regard to restrictions on the exercise of certain rights or freedoms and article. 109 regarding the basic principles of local public administration.
B. relevant Legislation 9. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are the following: 109Principiile the core of local public administration "(1) the public administration in administrative-territorial units is based on the principles of local autonomy, of decentralization of public services, of the eligibility of local public administration authorities and of consulting the citizenry on local problems of special interest.
(2) concerns the Autonomy of both the Organization and functioning of local public administration and the management of the communities they represent.
(3) application of principles enunciated cannot affect the character of a unitary State. "
10. The relevant provisions of law No. 136 of 17 June 2016 on status of the Chisinau municipality (Official Gazette, no. 2016, 306-313, art. 645) are as follows: 6Competențele municipal Council "[...]
(2) the municipal Council has the following powers: 1) in the field of the organisation of the work of the municipal public administration: a) on the proposal of the Mayor approves the general maximum personnel staffing and organizational structure of the Town Hall of the municipality, municipal subdivisions of the public administration sector, prices, wage their staff, the total amount of expenditure necessary to ensure their activity in accordance with the provisions of the municipal budget, as well as for the establishment , reorganization or liquidation of branches;
[…]
(c) approves the proposal) Mayor, rules of organisation and operation of the Chisinau City Hall, the regulations on the organisation and functioning of public administration municipal subdivisions and prices by sector; where, on 2 consecutive meetings, the municipal Council to exclude the agenda draft decisions approving such regulations or repel them, Mayor issue available on the application of provisional pending approval by the City Council, under this Act, the regulations in question;
d) choose a proposal from Mayor, deputy mayors, and shall issue, in terms of this law;
[…]
(5) for the purposes of the organisation and management of joint activities, in accordance with the tasks provided for in this law, the municipal Council and Mayor together form based on parity, the following commissions: the Commission for the administration of the reserve fund, the Commission for holding land auctions, the Commission for privatisation of real estate (residential and non residential), the Commission for the designation of representatives and members of management boards in companies limited by shares, etc. Decisions of committees shall be taken by a majority of the total number of members. "


Article 7Convocarea of the municipal Council in meetings "[...]
(6) the duration of a meeting, from opening until closing, including intermittently, may not exceed one month. At the end of this period, the meeting shall be considered closed by law, and the draft decisions of law shall be considered unreviewed put on the agenda of the next meeting and shall be considered as a priority. "


Article 10Examinarea of the draft decision and the decisions of the municipal Council "[...]
(2) a draft decision, signed on the reverse of each file of the author or author's ruler subdivision-endorsed mandatory under the law on local public administration and law. 317-XV of 18 July 2003 concerning the normative acts of the Government and of other authorities of Central and local public administration. The approval of the draft decision shall be confirmed by signature on the reverse of each file of the Act by the head of subdivision responsible for the field covered by the draft decision, by the head of the subdivision or entity covered by the project, the head of the subdivision and legal branch the Vice Mayor or Deputy Mayor Mayor if branch is missing or if it does not have powers delegated by the Mayor. Draft decisions that involve financial expense endorsed mandatory and by the head of the subdivision responsible for finance.
[…].”


Article 12Secretarul Council "[...]
(4) the amendment, suspension and termination of service of the Secretary shall, in accordance with the law, by the City Council, on a proposal from the mayor or of a third of the number of Councillors elected, by a decision adopted by a majority vote of Councillors elected.
[…]”


Article 14Primarul general "(1) the Mayor is representative authority of the Chisinau municipal Council and Executive, elected by universal, equal, direct, secret and freely expressed suffrage.
(2) the Mayor is head of the municipal government. Mayor may attend meetings of the municipal Council and has the right to rule on all issues subject to debate.
[…]”


Article 15Atribuțiile Mayor "(1) the mayor shall exercise the following powers: 1) executive management activity: a) ensures the execution of the decisions taken by the municipal Council; where it considers that Council decision motivated municipal mayor is illegal, refer the matter to the Office of the State Chancellery and/or administrative court;
b) amends, suspends called and cease employment relationships or work, in compliance with the law, with City Hall staff, praetors, vicepretorii and Secretaries, heads of sector pricing public administration municipal subdivisions (DGs, directorates, services, etc.), public service leaders, heads of public institutions, managers of enterprises; establishes basic powers thereof; lead and monitor their activities, contributing to the continuous training;
c) establishes and delegate duties deputy mayors;
[…]
f) exercise, on behalf of the municipal Council, the functions of supervisory authority, oversees the work of guardians and curators;
[…]

h) delegate in the course of their work shifts employees, praetors, heads of enterprises, managers of municipal subdivisions and economic entities founded by decision of the municipal Council;
[…]
2) in ensuring technical and administrative support for the work of the municipal Council to convene meetings: ordinary) extraordinary and without delay of the municipal Council, municipal Council proposes to review matters relating to the administration of the municipality, to be included in the agenda as a priority;
[…]
3) in the field of normative and administrative regulation of the activity of natural and legal persons on the territory of the municipality Chisinau: a) issuing permits and other permissive documents prescribed by law and having the right to revoke or suspend them for reasons duly justified;
[…]
c) finds and features, including removal and forced eviction, advertising panels installed unauthorized, commercial stationary units and mobile units provisional all kinds of objects and installations of any type, located on public land illegally; has, within the limits of its competence, illicite trade activity, including itinerant trade, carried out in violation of the legislation;
[…]
4) management of municipal heritage: [...] e) ensures the assignment and allocation of housing available and issued vouchers for public fund allocation of municipal housing and housing stock issued and damaged (for restoration); ensure control of maintenance and management of the housing stock in the municipality;
[…]
(g)) at its disposal, in the territory of the city of Chisinau, on the cutting, grubbing-up trees and bushes from the green spaces of public property and/or their resettlement in coordination with eco-friendly Agency Chisinau;
5) in cooperation with the central public administration: [...] c) advises public institutions concerning steps the decoration of the inhabitants of the municipality with State honours; shall submit their representations on awarding of State officials or other servants and employees of public administration municipal economic entities founded by decision of the municipal Council;
[…]”


Article 19Cabinetul Mayor "(1) the Mayor's Cabinet is a subdivision within City Hall, performing secretarial activities, advice and monitoring and is headed by the Chief of the Cabinet.
(2) persons employed within the Mayor's Cabinet have the status of staff in the Cabinet Office people with public functions are called and released from Office by the Mayor-general and covered by law No. 80 of 7 May 2010 on the status of persons with Cabinet functions of public dignitaries.
(3) the Mayor's Cabinet has the following powers: a) advice the Mayor on issues specific to the fields of activity of the municipal public administration;
b) is mayor in dealings with citizens, local and Central Government, other institutions and organizations, natural persons and legal entities in the country and abroad, on the basis of the tasks set by the Mayor;
c) assists, directs and ensures collaboration between subdivisions, as well as between them and the authorities, institutions and public administration services;
d) exercise and other duties laid down in the rules of organization and operation thereof, approved by the Mayor. "


Article 20Pretorul "(1) the praetor is person with relation to public dignitaries, called and dismissed by the Mayor, under law No. 199 from July 16, 2010 on the status of persons with dignity.
(2) the praetor is representative of the sector and the mayor shall drive in the legislation in force, the provisions of the general rules of the Mayor and the Organization and functioning of the city.
(3) the praetor is assisted by the vicepretori, who are people with dignity in public functions, appointed and dismissed by the Mayor's proposal to pretor.
(4) the termination of the mandate before term pretor and vicepretorului takes place in accordance with the provisions of art. 22 paragraph 1. (3) of the law on the status of persons with dignity. "


Article 25Organizarea of public services "(1) the City Council shall have the right, on the proposal of the Mayor, to organize public services on the territory of the municipality in areas of activity established for decentralised administrative-territorial units of the first and second levels, according to the specifics and needs, in compliance with the law and within the limits of available funds.
[…]
     (4) the municipal Council may decide, on a proposal from the Mayor, public contracting services from individuals and legal entities under private law in compliance with the law. "
In the authors ' Arguments AS to the referrals.) and Arguments of Deputies Eugen Carpov Iurie Leanca (referral No. 74a/2016) 11. The authors argue that the law of referral on the status of Chisinau a number of powers of the municipal Council (e.g. pretorilor, vicepretorilor, appointment of Heads of subdivisions, etc.) were transferred to the Mayor. In this way, were significantly limited the powers of the municipal Council, which is contrary to articles 38, 109 and 112 of the Constitution.
b) Arguments and Vasile Grigore Novac members support Bae (complaints No. 75a/86a/2016 and 2016) 12. The authors of the report argue that the contested law is based on the principle of separation of powers of the executive authority of the deliberative authority contrary to art. 109 of the Constitution and article. 3 of the European Charter of local self-government, which establish the principle of subordinating the Mayor relative to City Council. Moreover, the law restricts the role of the City Council and shall be subject to the Mayor. Thus, it is limited to legislative initiative entitled advisors, as well as in decision-making pertaining to its jurisdiction.
13. Moreover, it contests municipal Council to approve the maximum personnel staffing and organizational structure of the Town Hall of the municipality, Regulation on the organisation and operation of the Chisinau City Hall, to appoint and dismiss mayors, Council Secretary function only at the recommendation of the Mayor.
14. At the same time, the authors of the report noted that by empowering the Mayor with the power to appoint, suspend and terminate employment relationships with the staff of the City Hall municipal Council is deprived of any form of control over the activity of the structures of Chisinau.
B. Assessment Of The Court 15. Examining the admissibility of petitions, the Court notes the following.
16. the Court note that under articles 135 para. (1) (a). the Constitution of 4), para. (1) (a). a) of the law on the Constitutional Court and of the implementing regulation. (1) (a). the constitutional jurisdiction of the code), referral to the Parliament concerning the constitutionality of laws, in particular of the law nr. 136 of 17 June 2016 on status of the Chisinau municipality, the competence of the Constitutional Court.
17. the Court notes that articles 25 lit. g) of the law on the Constitutional Court and 38 para. (1) (a). g) of the code of constitutional jurisdiction authorizing Deputy with right to refer the matter to the Constitutional Court.
18. Note that the prerogative Court was vested in it by article 135 paragraph 1. (1) (a). the Constitution requires) of the correlation between the rules and the Constitution, challenged in the light of the principle of the supremacy of the latter.
19. the Court notes that the contested provisions govern essentially the powers of the municipal Council, the municipal Council in convening the meeting, the municipal Council of draft decisions, the powers of the Mayor and its cabinet.
20. the authors note that the Court of appeals have invoked that law challenged contrary to articles 16, 23, 38, 46, 54, 109 and 112 of the Constitution.
21. the Court notes that a legal provision may constitute the object of the constitutional jurisdiction only where the alleged constitutional rules have impact on the contested rules.
22. In this regard, referring to the invocation of article 16, 23, 38, 46 of the Constitution, the Court retains the lack of a causal link between the impugned provisions and constitutional rules invoked. Moreover, the complaints do not include arguments that make possible the comparison of actual legal provisions criticized by the wording of the reference cited and which would support the constitutional violations. Thus, considering that, in the present case, the authors have made the mere enumeration of constitutional norms allegedly violated, without presenting reasons or arguments in support of the allegations, the Court finds that the complaints reported to these constitutional provisions cannot be retained.

23. As regards the alleged infringement of article 54 of the Constitution, the Court noted that it lays down limits for restrictions on the exercise of fundamental rights and freedoms of man and citizen laid down in title II of the Constitution. Or subject referrals do not constitute on certain rights and freedoms of the person, but the powers of local public authorities (public administration authorities of Chisinau), which is beyond the scope of article 54 of the Constitution.
24. With reference to the alleged infringement of articles 109 and 112 of the Constitution, please note the following.
25. According to the constitutional provisions contained in article 109, the public administration in administrative-territorial units is based on the principles of local autonomy, of decentralization of public services, of the eligibility of local public administration authorities and of consulting the citizenry on local problems of special interest.
26. At the same time, according to article 112 paragraph 2. (1) public administration authorities through which local autonomy is in the villages and in the cities, are local councils and mayors elected.
27. In its case law the Court held that local autonomy shall mean the right of communities to meet their own legal interests without interference of the central authorities, it constitutes a complex database tasks within the competence of local public administration bodies. Tasks submitted by those bodies are stipulated by the law, and the State exerts, through specific forms, control over how they are run.
28. Through local autonomy means right and actual capacity of local communities to address and administer within the law, under their own responsibility and in favour of the local population, an important part of public affairs.
29. the Court notes that, under the provisions of the law being challenged, the public administration of the Chisinau municipality is carried out by the municipal Council, municipal councils and communes (commune) as representative and deliberative authorities of Chisinau population, and by the Mayor of Chisinau municipality, mayors of cities, villages (communes), as representative and executive authorities. The interrelationships of the municipal public administration authorities and those of cities, villages (communes) of Chișinău is founded on the principles of legality, subsidiarity, autonomy, transparency and cooperation in resolving the problems of municipal interest.
30. Thus, the Court noted that both the municipal Council and the Mayor, are general authorities of local public administration, represented by direct vote of the citizens, which confers, in equal measure, legitimacy, and through which, according to the Constitution, local self-government is carried out at the municipal level.
31. the Court finds that the legislature has determined the powers of local authorities of the municipality of Chișinău by the consecration of certain powers in resolving the problems of local interest. At the same time, the law excludes the involvement of central authorities in local decisions.
32. Therefore, in the context of constitutional rules contained in articles 109 and 112, the court notice that laws criticized are not such as to affect the principles of local public administration.
33. In the light of the above, the Court noted that complaints do not fulfil the conditions of admissibility and, accordingly, cannot be accepted for examination.
For these reasons, pursuant to article 26 of the law on the Constitutional Court, articles 61 para. (3) and 64 of the code of constitutional jurisdiction and the PT 28 lit. d) of the regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court DECIDES: 1. To be declared inadmissible complaints deputies in Parliament, Mr. Iurie Leancă, Eugen Carpov, Novac and Vasile Bae, on notification constitutionality control law. 136 of 17 June 2016 on status of the Chisinau municipality.
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