Name of the Republic of Moldova
of May 8, 2018 No. 11
About exceptional case of illegality of some provisions of Art. 233 of the h. (1), h. (2) and h. (3) the Code about offenses (imposing of penalty for management in state of intoxication the vehicles which are not requiring availability of the car driver license) (the address No. 42g/2018)
Constitutional court in structure:
Mihai Poalelunzh, chairman,
Auryl to Beesh,
Victor of Pop,
Vyacheslav Zaporozhan, judges,
with the assistance of the secretary of meeting Marcella Lupu,
in view of the address provided
and registered on April 4, 2018,
having considered the specified address 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. The address about exceptional case of illegality of following provisions of Art. 233 of the Code about offenses formed the basis for consideration of the case:
- "the most admissible level established by the law" in part (1);
- "minimum admissible level established by the Government" in part (2);
- "penalty in the amount of 400 to 500 conventional units or assignment of punishment in the form of unpaid work for benefit of society for a period of 20 till 40 o'clock or arrest for offense for the term of 15 days" in part (3), provided according to the petition of the lawyer Georgy Tkacha, within case No. 4-545/2017, of Ungen considered by court.
2. The address about exceptional case of illegality was brought into the Constitutional court on April 4, 2018 by the judge of court Ungen Anatoly of Rusu, according to provisions of Art. 135 of the h. (1) the item and) and g) Constitutions, in the light of its interpretation by the Resolution of the Constitutional court No. 2 of February 9, 2016.
3. The author of the address notes that the challenged provisions of the h. (1) and h. (2) Art. 233 of the Code about offenses conflict to Art. 1 of the h. (3), Art. 22 and Art. 23 of the Constitution, and provision of the h. (3) this Article violate Art. 16 of the Constitution.
4. Determination of the Constitutional court of April 12, 2018, without decision in essence, the address was acknowledged accepted concerning implementation of the constitutional control of the challenged provisions of the h. (3) Art. 233 of the Code about offenses, and acknowledged unacceptable concerning the h. (1) and h. (2) this Article.
5. During consideration of the case the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government, department according to the criminal law of faculty of the right of the State university of Moldova and Council for the prevention and elimination of discrimination and ensuring equality.
6. In open session of the Constitutional court from Parliament the chief of service of representation took part in the Constitutional court and law enforcement agencies of general legal management of the Secretariat of Parliament, Valeriu Kuchuk. From the Government Eduard Serbenko, the state secretary of the Ministry of Justice participated.
7. In open session of the Constitutional court the representative of Parliament made the proposal to stop proceeedings based on Art. 60 of the item c) of the Code of the constitutional jurisdiction. In his opinion, the question which is brought up in the address about exceptional case of illegality concerns the correct application of the law, but not its constitutionality which permission is not included into competence of the Constitutional court.
Circumstances of the main dispute
8. The stating subject of the National inspectorate on patrol constituted on July 17, 2017 the protocol on making of the offense provided in Art. 233 of the h concerning N. Kulyuk. (3) the Code about offenses [management in state of intoxication, the caused alcohol, the vehicle which is not requiring availability of the car driver license], and together with proofs submitted to it to degree of jurisdiction of Ungen.
9. The decision of October 12, 2017 the court of Ungen recognized N. Kulyuk guilty of making of the offense provided by Art. 233 of the h. (3) the Code about offenses, the penalty in the amount of 400 conventional units also imposed on it.
10. Without having agreed with the judgment of Ungen of October 12, 2017, N. Kulyuk made the writ of appeal which the Appeal chamber of Belts satisfied with the decision of November 29, 2017, and submitted the case to the first instance on review in other judicial structure.
11. During judicial session of February 27, 2018 the lawyer George Tkach provided request about exceptional case of illegality of the provisions specified in §1 this resolution.
12. Determination of March 29, 2018 the court of Ungen suspended proceeedings and sent the appeal about exceptional case of illegality to the Constitutional court for permission.
13. Applicable provisions of the Constitution:
Article 1 State Republic of Moldova
(3) the Republic of Moldova - the democratic constitutional state in which advantage of the person, its rights and freedom, free development of the human person, justice and political pluralism are the supreme values and are guaranteed".
Article 16 Equality
"(1) the Respect and protection of the personality constitute paramount obligation of the state.
(2) All citizens of the Republic of Moldova are equal before the law and the authorities irrespective of race, nationality, ethnic origin, language, religion, floor, views, political affiliation, property status or social origin".
Article 22 Irreversibility of the Law
"Nobody can be condemned for actions or failure to act which at the time of their making did not constitute crime. Punishment heavier cannot be also imposed, than that which could be applied at the time of crime execution".
Article 25 Right to liberty and security of person
"(1) Right to liberty and security of person inviolably.
Article 46 Right of Private Property and its protection
"(1) the Right of private property, and also the debt obligations undertaken by the state are guaranteed.
(2) Nobody can be deprived of the property differently as in case of the social necessity established by the law on condition of fair and preliminary compensation.
(3) Legally got property cannot be seized. Legality got is meant.
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