of August 4, 2020 No. 21
About exceptional case of illegality of Art. 84 of the Insolvency act No. 149 of June 29, 2012 (the obligation not to leave the territory of the country or the residence in insolvency processes) (the address No. 25g/2020 of year)
Name of the Republic of Moldova
Constitutional court in structure:
Domnika Manole, chairman,
Vladimir Tsurkan, judges,
with the assistance of the assistant judge Dina Mustyatsa,
in view of the address,
registered on February 20, 2020,
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 Art. 84 of h formed the basis for consideration of the case (2) the Insolvency act No. 149 of June 29, 2012, provided at the request of the party of process of Korneliu Masur, within the case No. 2i-1273/18, considered by court of Chisinau (the main office).
2. The address about exceptional case of illegality was brought into the Constitutional court by the judge the vessels Chisinau (the main office) Alexander Cheban, according to Art. 135 of h (1) the item and) and the item g) Constitutions.
3. The author of the address believes that provisions of Art. 84 of h (2) the Insolvency act contradict Art. 25 of h (1) and Art. 27 of the Constitution.
4. Determination of the Constitutional court of June 15, 2020, without decision in essence, the address was acknowledged acceptable.
5. During consideration of the address the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government, the Prosecutor General's Office, the Union of the authorized managing directors of Moldova, Chamber of Commerce and Industry of the Republic of Moldova.
6. Authors of the address, Korneliu Masur and lawyer Marchel Burlaka participated in open plenary meeting of the Constitutional court. From Parliament the main consultant of service of representation took part in the Constitutional court and law enforcement agencies of general legal management of the Secretariat of Parliament Rada Rada. From the Government there were Doreen Lishman, the state secretary of the Ministry of Justice, Andrey Cherny, the head of legal department of the Ministry of Economy and Infrastructure.
Circumstances of the main dispute
7. The appeal chamber Chisinau the decision of July 12, 2013 initiated in the relation of CO to "Management Consulting Service" of Ltd company insolvency process. The this decision according to Art. 88 of h (1) the Insolvency act Korneliu Masur, the legal managing director and the single member of CO to "Management Consulting Service" of Ltd company, was appointed the debtor's representative.
8. Determination of October 17, 2013 the Appeal chamber Chisinau applied insolvency proceeding to the poor debtor.
9. The liquidator of CO to "Management Consulting Service" of Ltd company took a legal action, considering insolvency matter, with the statement for application concerning Korneliu Masur, based on Art. 84 of h (2) the Insolvency act and the solution of creditor meeting of March 14, 2014, measure according to which he is forbidden to leave the residence without special leave of court.
10. Determination of April 29, 2014 Appeal chamber Chisinau, based on Art. 84 of h (1) the Insolvency act, forbade Korneliu Masur departure from the country without the special leave of court considering insolvency matter.
11. The highest trial chamber determination of June 25, 2014 rejected the writ of appeal of Korneliu Masur and upheld determination of Appeal chamber Chisinau of April 29, 2014.
12. Korneliu Masur demanded to lift on May 27, 2019 ban on departure from the country. The decision of June 1, 2019 the court of Chisinau rejected its statement, however noted that in exceptional cases - for health reasons or on other reasonable excuses - Korneliu Masur can ask the exit visa from the country.
13. Korneliu Masur submitted on October 7, 2019 the application with request temporarily to lift ban, proving the statement by the need for medical treatment abroad. The decision of November 12, 2019 the court of Chisinau granted the application and resolved it for the period from November 1, 2019 to February 1, 2020 departure from the territory of the Republic of Moldova, with the note that it shall be on judicial sessions and that since February 2, 2020 action of prohibition is resumed.
14. The lawyer Marchel Burlaka sent on October 7, 2019 for the benefit of Korneliu Masur request about exceptional case of illegality of Art. 84 of h (1) [responsibility of the debtor in the procedure of insolvency] the Insolvency act.
15. The court of Chisinau (the main office) satisfied with determination of November 18, 2019 request and sent the appeal about exceptional case of illegality to the Constitutional court for permission.
16. Applicable provisions of the Constitution:
Article 23 Right of Each Person to Knowledge of the Rights and Obligations
"(1) Each person has the right to recognition of its legal personality.
(2) the State provides the right of each person to knowledge of the rights and obligations. For this purpose the state publishes all laws and other regulations and provides their availability".
Article 27 Movement Right to Liberty
"(1) the movement Right to liberty over the country is guaranteed.
(2) the right to settle or stay in any settlement of the country, to leave the country, to emigrate from it is provided to Each citizen of the Republic of Moldova and to return to it".
Article 54 Restriction of Implementation of the Rights or Freedoms
"(1) In the Republic of Moldova the laws prohibiting or diminishing the rights and fundamental freedoms of man and citizen cannot be adopted.
(2) Implementation of the rights and freedoms is not subject to any restrictions, except those which are provided by the law, meet the universally recognized norms of international law and protection of the rights, freedoms and advantage of other persons, prevention of disclosure of information obtained confidentially or ensuring authority and impartiality of justice are necessary for the benefit of homeland security, territorial integrity, economic well-being of nation, public order, for the purpose of prevention of mass riots and crimes.
(3) part Provisions (2) restrictions of the rights proclaimed in Articles 20-24 do not allow.
(4) Restriction shall correspond to the circumstance which caused it and cannot affect existence of the right or freedom".
17. Applicable provisions of the Insolvency act No. 149 of June 29, 2012:
The article 84 Responsibility of the Debtor in the procedure of insolvency
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