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Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of December 7, 2017 No. 33

About exceptional case of illegality of some provisions of Articles 327 of the h. (1) and 361 h. (2) item d) Criminal code (authority misuse or official position) (addresses No. 80g/2017 of and No. 129g/2017 of)

Constitutional court in structure:

Tudor Pantsyru, chairman,

Auryl to Beesh,

Igor Dolya,

Victoria Iftodi,

Vyacheslav Zaporozhan, judges,

with the assistance of the secretary of meeting Dumitra Avornik,

in view of the addresses provided and registered on June 8, 2017 and on October 9, 2017

having considered the specified addresses in open plenary meeting, considering acts and case papers,

having carried out discussion in the consultative room,

issues the following decree.

Points of order

1. Addresses about exceptional case of illegality formed the basis for consideration of the case:

- parts (1) article 327 of the Criminal code of the Republic of Moldova No. 985-XV of April 18, 2002, declared by the lawyer Mikhail Murzak in No. 1-648/17, being in production the vessels Chisinau, the sector Buyukan;

- syntagmas "the entailed damnification in considerable sizes to public concerns" in the h. (1) Art. 327 and syntagmas "entailed damnification in large sizes to public concerns" in the item d) h. (2) Art. 361 of the Criminal code of the Republic of Moldova No. 985-XV of April 18, 2002, declared by the lawyer Anton Antawn in No. 1-307/2014, being in production the vessels Chisinau, the main office.

2. Addresses were brought into the Constitutional court on June 8, 2017 by the judge in court of Chisinau, the sector Buyukan, Gennady Plemedyale and on October 9, 2017 the judge in court of Chisinau, the main office, Viorika Puyke, according to Art. 135 of the h. (1) the item and) and the item g) Constitutions, in the light of its interpretation by the Resolution of the Constitutional court No. 2 of February 9, 2016, and also Regulations on procedure for consideration of the addresses brought into the Constitutional court.

3. The author of the address No. 80g/2017 of, in fact, claims that provisions of Art. 327 of the h. (1) the Criminal code contradict article 54 of the Constitution and article 7 of the European convention. Author of the address No. 129g/2017g. claims that provisions of Art. 327 of the h. (1) and Art. 361 of the h. (2) the item d) the Criminal code contradict Articles 1 of the h. (3), 22 and 23 Constitutions.

4. Determinations of the Constitutional court of June 27, 2017 and on October 17, 2017, without decision in essence, addresses No. 80g/2017g. and, respectively, No. 129g/2017g. were recognized as acceptable.

5. Considering identity of the subject of addresses concerning syntagma to "public concerns" in the h. (1) Art. 327 and item d) h. (2) Art. 361 of the Criminal code, based on Art. 43 of the Code of the constitutional jurisdiction, the Constitutional court made the decision on consolidation of cases in one production.

6. During consideration of the case the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government, the Prosecutor General's Office and the Highest trial chamber.

7. In open plenary meeting of the Constitutional court of the address lawyers Mar­n Domente and Anton Antawn supported. The parliament was represented by Valery Kuchuk, the chief of service of representation in the Constitutional court and law enforcement agencies of general legal management of the Secretariat of Parliament. The government was represented by Eduard Serbenko, the state secretary of the Ministry of Justice.

Circumstances of the main disputes

1. Circumstances of criminal case No. 1-648/17

8. On December 13, 2016 V.B. was accused by the resolution of the prosecutor of Anti-corruption prosecutor's office of D. K. of crime execution on authority misuse or official position, the h provided by Art. 327. (1) the Criminal code, for the fact that, being the director of general Directorate for Regional Development Ministries of Construction and Regional Development, intentionally traded on official position for promotion of several legal entities managed by people close to it and promoted their participation in the public biddings, having caused thereby damage in considerable sizes to public concerns.

10. Criminal case on V.B.'s accusation in crime execution provided by Art. 327 of the h. (1) the Criminal code, on December 19, 2016 it was submitted to court of Chisinau, the sector Buyukan.

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