Advanced Search

Inadmissibility Of Referral No. 99G/2016-Constitutionality Exception Relating To Certain Provisions Of The Law Of The Republic Of Moldova

Original Language Title: de inadmisibilitate a sesizării nr. 99g/2016 privind excepția de neconstituționalitate a unor prevederi din Codul contravențional al Republicii Moldova

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.
inadmissibility of referral No. 99g/2016-constitutionality exception relating to certain provisions of the law of the Republic of Moldova



Published: 17.02.2017 in Official Gazette No. 50-59 art no: 16 the date of entry into force: 06.09.2016 Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, PANŢÎRU, Mr. Mr. Talal Zadrahimi, judges, with the participation of Mr Darroch Avornic, Registrar, considering the appeal filed on august 8, 2016, recorded at the same time, examining the admissibility of the referral, taking into account the acts and proceedings of the dossier on 6 September, Acting in the Council room 2016, Pronounce the following decision: in fact 1. The origin of the case lies the plea of unconstitutionality of the law the following provisions of the code of the Republic of Moldova nr. 218-XVI dated 24 October 2008:-384 items (1) and 385;
-the phrase "decision" in paragraph 2 of Article 394;
-395 items (1), item 2) and 399;
-the phrase "is found by the police" in paragraph 4 of article 400;
-Article 427 (2);
-the phrase "accumulated or materials of operative investigation" in paragraph 1 of article 428;
-the phrase "If there are grounds to conduct the search or raising" in paragraph 1 and the phrase "the ends in case of removal of objects and documents" in paragraph 6 of article 429;
-the phrase "lies that has been committed" in paragraph (2) and the word "start" in paragraph 4 of article 440;
-articles (9) 443 and 460-462, exception raised by lawyer Gheorghe Malic in file No. 5r -268/16, pending the Court Center, mun. Chişinău.
2. The plea of unconstitutionality has been lodged with the Constitutional Court on 8 august 2016 by judge Abbott Abram within the Center Court, mun. 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.
A. the main dispute Circumstances 3. On 16 august, the agent is discovered within the General Police Inspectorate, mun. Chişinău, N.P., drew up a report concerning the contravention in respect of his decision Through I.P., I.P. was recognized guilty of committing contravenției provided for in article 242 paragraph 1. (2) amendments to the code and again with fine contravențională in size of 50 conventional units, with the application of 6 penalty points.
4. On 29 august 2012, I.P. filed a notice of opposition to the Center Court, mun. Chisinau, requesting the cancellation report of 16 august 2012 and the decision of the agent is discovered, as illegal, amendments to and termination of the process.
5. By decision of 23 December 2015, Center Court, mun. Chisinau, quashed the report of 16 august 2012 in respect of the contravention, and that confirms the decision of the administrative agent, with the cessation of the criminal process.
6. Disagreeing with the judgment of the Court of Justice Center, mun. Chisinau, providing agent and lawyers injured party said.
7. On 16 March 2016, College of Criminal Court of Appeal quashed the judgment of the Court of Chisinau Center, mun. Chisinau, 23 December 2015 and ordered the retrial of the same court in another completely.
8. Within rejudecării of the case by the District Court Center, mun. Chişinău, Gheorghe Malic, counsel for the injured party, raised the exception of non-constitutionality of some provisions of the code amendments referred to in § 1.
9. by the conclusion of 25 July 2016, the Court ordered the erection of the main exception and referral to the Constitutional Court for settlement.
B. relevant Legislation 10. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 20Accesul to justice "(1) Any person shall be entitled to effective satisfaction on the part of competent courts against acts which violate the rights, freedoms and legitimate interests.
(2) no law may restrict the access to justice. "
11. amendments to the relevant provisions of the Code of the Republic of Moldova nr. 218-XVI dated October 24, 2008 (Official Gazette, 2009, no.4-6, art. 15) are as follows: Article 384 Person in whose respect the administrative process has been started "(1) a person in whose respect the administrative process has been started and which, by final judgment, i settled a penalty or administrative contravention or the execution of criminal sanction applied is removed by final judgment is called the offender.
[…]”


Article 385Agentul that confirms the claim Agent is the representative of the public authority that decide, within the limits of its competence, in the manner prescribed by reason of contravention of this code.
(2) is hereby designated as the official agent of findings from the authorities referred to in article 1.400-423/8, empowered with powers in respect of the contravention and/or sanction. "


Article 394Instanţa who administered justice in criminal causes "[...]
(2) in contravention Cause controversy completely consisting of a single judge who pronounces on the case through the Fund.
[…]”


Article 395 of the Court's competence "(1) Court judge: [...]
2) appeals against decisions of the competent authorities to address the causes of offence, the Prosecutor.
[…]”


Article 399Competenţa claim agent "(1) by reason of the contravention shall be appended the agent decide whose territorial RADIUS has been committed that offence. It can apply the sanctions provided for in the special part of the second book in the limits of its competence and service the year only.
(2) the claim Agent may find irregularities whose findings, the settlement and sanctions are attributed to the competence of other organs. In such cases, the agent will submit their respective bodies and reports of irregularities. "


Article 400Ministerul of internal affairs "[...]

(4) the Offences referred to in articles. 54/1, 62-68, 75, 76, 88, 92, 181, 227, 233, 237, 243, 317, 320, 322-325, 330/332 1/4, para. (1), article 334/1, art. 277/1 para. (3), 335-337, 351-353 is found by the police.
[…]”


Article 427Temeiurile for lifting objects and documents "[...]
(2) the seizure of documents containing information constituting State secret, commercial, banking, picking up information regarding telephone calls shall be carried out with the authorization of the Court.
[…]”


Article 428Temeiurile for making the case "(1) the finding of the violation is entitled to carry out search warrants if the accumulated samples or materials of operative investigation follows a reasonable assumption that in a certain room, at home or in another place or at a particular person can learn what tools were used to commit the contravention, or money gained from irregularity as well as articles or documents which may have importance for consideration.
[…]”


Article 429Percheziţia and lifting objects and documents "(1) in the case of offences which come under the jurisdiction of the offences, if there are grounds to conduct the search or clearance, can pick up objects and documents that have importance for the question, which is in the clothes, the other things of the person or on her body.
[…]
(6) the minutes shall be terminated in case of removal of objects and documents. A copy of the minutes shall be delivered against a signature, the person to whom it pertains, or its legal representative.
[…]”


Article 440Procesul of the offence and the duties of the staff member's claim "[...]
(2) the claim Agent is invoked through a complaint or denunciation from matter to times when that Office was committed a wrongful act, or when such a deed was recorded in the check according to job duties and in cases stipulated by law.
[…]
(4) Administrative Process to start only on the basis of the complaint of the victim in the case of prior offences referred to in article 69, 104-108.
[…]”


Article 443Conţinutul report about the subject "[...]
(9) the rezolutivă of the minutes will include providing the agent's decision to sanction the offender or submit the case to the Court, with a recommendation, where it considers it necessary, with regard to the sanction, or termination of the process, and the time limit for contesting the claim in court.
[…]”


Article 460Deliberarea the Court "(1) the Court shall decide upon the case based on the deliberation room, advocating the judgment on the factual and legal aspects of the case.
(2) the judgment shall be signed by the judge and shall be delivered in open court immediately after deliberation. "


Contravention of article 461Încetarea of the process in court "where, in the course of the prosecution of the case, any of the grounds referred to in articles 441 and 445, the Court shall terminate the process of administrative offences."


Article 462Hotărârea "(1) a court judgment will be legally founded and motivated.
(2) the judgment shall consist of introductory part, the descriptive part and device.
(3) the introductory part shall include: a) date and place of issuance of the judgment;
(b) the name of the Court);
c) name and surname of the judge, the Registrar and the parties, the parties meeting participation;
d) data on the offender's person (name, surname, date and place of birth, address);
e) contravention of rule in which the theme was started the process of administrative offences.
(4) the document includes: a) the circumstances noted in proceedings;
b) samples based on the conclusion and the reasons for the rejection of samples;
c) contravention on rule is based upon the settlement of the case.
(5) the device comprises: a) halting administrative process solution; or b) solution with regard to the person's guilt in committing the violation charged and, where applicable, in determining the administrative penalty, the application of the measure or the Elimination of the penalty execution.
(6) in addition to those referred to in paragraph 1. (5) the device shall include, as appropriate, with respect to: (a) ascertaining bodies);
b) mode and the term of the judgement;
(c) other matters concerning fair) to settle criminal case. "
In the author's Arguments exception. constitutionality 12. The exception of unconstitutionality, reasoning the author referral argues essentially that, in the absence of explicit legal provisions in the amendments to the Code, which governs the procedure for review by the courts of appeals against decisions of protocols and assessment concerning agents causes contravention, the courts adopted "by analogy" solutions over complaints that do not arise from the law on minor offences in breach of the right to a fair trial. It considers that the rules contained in Chapter VII, art. 460-462 of the code amendments shall require only the procedure of trial in contravention of, which were within the competence of the Court, provided for in art. 395 of the same code, and no procedure for examining complaints in any appeal.
13. The author mentions that the exception provisions of art. 394 para. (2) amendments to the code are not correlated with those of art. 460 para. (1) of the same code, it is not clear by which the procedural act must rule the Court, considering that the first rule establishes that the judge will rule on the case by decision of the Fund shall, while the last one provides that the Court will rule on the case by a contravention.

14. Furthermore, the author alleges that the provisions of the code of administrative offences provides no clarity with regard to the concept of recognition, because it belongs in the article. 385, in the category of participants in administrative process, while having powers of finding and/or sanction in the circumstances specified in article 7. 400-4238, which shows that he may be biased, contrary to the requirements of a fair process. In the author's opinion, the claim agent, through art. 399, may be regarded as a separate entity from the authorities and specialized bodies, as specified in art. 400-423/8, thus not being determined by the local jurisdiction. Furthermore, art. 400 paragraph 1. (4) of the code of administrative offences, without regard to General provisions, stipulates that certain offences are found, so police, criticized the police uses the general notion.
15. Furthermore, the author alleges that, given that the current code of administrative offences has established a distinct function and initiate proactive evaluation of the assessment, the provisions of article 427 paragraph 1. (2) paragraphs 1 and 2, art. 428. (1) paragraphs 1 and 2, art. 429. (1) and (6) and article 437 para. (2) and (4) of the code of administrative offences are not predictable, clear and proportionate and do not provide any guarantees against abuse from elementary, which does not provide the requirements process considerations.
16. The author claims that it's not clear the purpose pursued by the legislator, when, at art. paragraph 1, 443. (9) of the code of administrative offences, referred to the contents of the part rezolutive of the minutes. However, a report cannot have rezolutivă side.
17. Finally, the author alleges that the provisions of art. 384 paragraph 2. (1) amendments to the code creates an uncertainty regarding the guilt of the person subject to criminal proceedings, without the guilt to be established within the legal order, in violation of the presumption of innocence. However, the contested regulation, is called both the offender in respect of which a trial law, and the person's guilt was found and, as a final decision, he has established an administrative penalty as well as the person whose contravention or the execution of criminal sanction applied is removed by means of a final decision.
18. According to the author, the main exception laws criticized provisions of articles 20, 21, 23, 53 and 54 of the Constitution.
B. Assessment Of The Court 19. Examining the admissibility of the referral regarding constitutionality exception, the Court notes the following.
20. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws, in particular the amendments to the Code, is the responsibility of the Constitutional Court.
21. the Court finds that the appeal relating to the exception of unconstitutionality, being raised by her lawyer Gheorghe Malic in file No. 5r -268/16 on Center Court role, mun. Chişinău, is made by the subject entrusted this right under article 135, paragraph 1. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016.
22. The subject of constitutionality exception, as formulated by the exception, is composed of the following provisions of the amendments to the Code: 384 paragraph 2. (1), article 385, the phrase "decision" in article 8 para. (2) paragraphs 1 and 2, art. 395. (1) (2)), article 399, "is found by the police" in article 1 paragraph 2, 400. (4), article 427 paragraph 1. (2) the words "accumulated or materials of operative investigation" in article 428 paragraph 1. (1), the phrase "If there are grounds to conduct the search or lifting" of article 429 para. (1), the phrase "the ends in case of removal of objects and documents" of article 429 para. (6), the words "lies that has been committed" in article 1 paragraph 1, 440. (2) the word "start" in article 1 paragraph 1, 440. (4) paragraphs 1 and 2, art. 443. (9) and article 460-462.
23. the Court notes that the exception of unconstitutionality author argued that these provisions are contrary to the provisions of the constitutional law of art. 20 free access to justice, article. 21 with regard to the presumption of innocence, art. 23 concerning the right of everybody to know their rights and duties, the injured person's 53 concerning the right of a public authority, as well as those of art. 54 relating to restrictions on the exercise of certain rights or freedoms.
24. the Court reiterates that the prerogative to address the exceptions of unconstitutionality, which has been vested in it by article 135 paragraph 1. (1) (a). g) of the Constitution, requires correlation of laws and the Constitution, taking into account the principle of the supremacy of its provisions and to address the relevance of the contested dispute in the courts. Thus, the exception of unconstitutionality, as a tool for the defense of human rights and fundamental freedoms, may be raised only as an incident in the examination of the main action. Therefore, the contested rule is to have impact on the resolution of the case on the role of the Court.
25. At the same time, the Court points out that, according to art. 24 para. (2) and paragraphs 1 and 2. (4) of the law on the Constitutional Court and the 39 of the code of constitutional jurisdiction, the appeal must be motivated to include subject matter and circumstances based on their topic requirements, legal norms and to expose the arguments, which shows that the contested provision violates the Constitution, as well as the direct causal link between the contested norm and arguments.
26. Examining the exception of constitutionality, the Court finds that it is unfounded, since the author invokes essentially the unconstitutionality of certain provisions of the code of administrative offences, determined by an alleged necorelare of legislative solution contained in these rules, some of which, in fact, unrelated to any settlement of the case. However, examination of the constitutionality of a legislative text takes into account the compatibility of this text with the provisions allegedly violated constitutional, and not comparing provisions of multiple legal notices to each other and to report the findings resulting from this comparison to the provisions of the Constitution principles times.

27. In this context, the Court notes that article 395 of the code of administrative offences stipulates expressly limiting the jurisdiction of the Court, and in paragraph (1), item 2) sets out the jurisdiction of the Court to judge appeals against decisions of the competent authorities to address the causes of offence and the Prosecutor. "
28. In this regard, in terms of the competence of the Court, the provisions of articles 452 and 458 para. (1) of the code of administrative offences, the Court finds that the Court, the judge will cause administrative in open court, oral, and controversy, is bound to lead: the truthful nature of) imputed violation; b) existence causes contravention of the Act removes the character; c) whose guilt of the person in respect of administrative process has been started; (d) the existence of extenuating circumstances) and/or aggravating; e) necessity to sanction and, where appropriate, the administrative sanction; f) other important aspects of the case to resolve.
29. Thus, from the analysis of the articles quoted above, the Court shall act that the Court in the judgment of the appeal against decisions of the competent authorities to address the causes of offence is obliged to examine all aspects of the contravention under cause, fully and objectively, with due regard for the right to a fair trial and defense.  
30. Consequently, the Court cannot withhold criticism of unconstitutionality with reference to art. 20 of the Constitution, which guarantees to every person the right to effective satisfaction on the part of courts against acts which violate the rights, freedoms and legitimate interests, since the laws do not restrict criticism of the free access to justice of persons concerned and not in contradiction with the right to a fair trial.
31. The Court also notes that the author did not show exception causation of the contested constitutional provisions invoked, contained in articles 21, 23, 53 and 54.
32. In the light of the above, the Court noted that the appeal regarding plea of unconstitutionality is unfounded and cannot be accepted for examination.
For these reasons, pursuant to article 26 of the law on the Constitutional Court, articles 61 para. (3) and 64 of the code of constitutional jurisdiction and the PT 28 lit. d) of the regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court DECIDES: 1. To be declared inadmissible the appeal regarding plea of unconstitutionality of the following provisions of the code of administrative offences of the Republic of Moldova nr. 218-XVI dated 24 October 2008:-384 items (1) and 385;
-the phrase "decision" in paragraph 2 of Article 394;
-395 items (1), item 2) and 399;
-the phrase "is found by the police" in paragraph 4 of article 400;
-Article 427 (2);
-the phrase "accumulated or materials of operative investigation" in paragraph 1 of article 428;
-the phrase "If there are grounds to conduct the search or raising" in paragraph 1 and the phrase "the ends in case of removal of objects and documents" in paragraph 6 of article 429;
-the phrase "lies that has been committed" in paragraph (2) and the word "start" in paragraph 4 of article 440;
-articles (9) 443 and 460-462, exception raised by lawyer Gheorghe Malic in file No. 5r -268/16, pending the Court Center, mun. Chişinău.
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.