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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of August 12, 2021 No. 25

About exceptional case of illegality of some provisions of Article 287 of h (1) the Criminal code (ambiguity of the regulations providing hooliganism as crime) (the address No. 208g/2020 of year, No. 44g/2021 of year, No. 49g/2021 of year and No. 76g/2021 of year)

Name of the Republic of Moldova

Constitutional court in structure:

Domnika Manole, chairman,

Nicolae Roshka,

Liouba Shova,

Sergey Tsurkan,

Vladimir Tsurkan, judges,

with the assistance of the assistant judge Marcella Lupu,

in view of the addresses registered on December 18, 2020, on February 26, 2021, on March 4, 2021 and on April 1, 2021

having considered the specified addresses in open session,

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 of following provisions of the Criminal code accepted by the Law No. 985-XV of April 18, 2002 formed the basis for consideration of the case:

- Article 287 of h (1) in general;

- syntagmas "hooligan actions" in h (1) Article 287;

- the provisions "the intentional actions which are roughly disturbing the public peace" and "and equally in the actions differing on the content in exclusive cynicism or special impudence" in h (1) Article 287.

2. In the address No. 208g/2020 of the exceptional case of illegality is declared by the lawyer Larissa Maxim in the interests Marcella Ilico and Denis Gerasimenkov charged in the matter of No. 1-4/2020, to Belts which is in production of court, the main office. The address is brought into the Constitutional court by the judge in court of Belts, the main office, Igor Mozgovoy, according to the procedure of Article 135 of h (1) the item and) and the item g) Constitutions.

3. In the address No. 44g/2021 of the exceptional case of illegality is declared by the lawyer Tudor Osoyanu for the benefit of defendants Vladimir Martin, Konstantin Osoyanu, Ion Rotar and Mikhail Rotar in the matter of No. 1-174/2021, being in production the vessels Chisinau, the sector Buyukan. The address is brought into the Constitutional court by the judge in court of Chisinau, the sector Buyukan, Serdzhiu Stratan, according to the procedure of Article 135 of h (1) the item and) and the item g) Constitutions.

4. In the address No. 49g/2021 of the exceptional case of illegality is declared by the lawyer Angela Prokopcuka for the benefit of defendants Valery Dumbrevyanu and Vladimir Dumbrevyanu in the matter of No. 1a-441/2017, to Belts which is in production of Appeal chamber. The address is brought into the Constitutional court by the judicial structure of Appeal chamber of Belts consisting of judges: It is scarlet to the Rotor, Ruslan Burdenyuk and Dumitra Pushk according to the procedure of Article 135 of h (1) the item and) and the item g) Constitutions.

5. In the address No. 76g/2021 of the exceptional case of illegality is declared by Adrian Muntyanu, party litigant No. 1-62/17, to Chimishliya who is in production of court, the main office. The address is brought into the Constitutional court by the judge in court Chimishliya, the main office, Ion Volkovski, according to the procedure of Article 135 of h (1) the item and) and the item g) Constitutions.

6. Considering the fact that subject of all specified addresses is the question of ambiguity of the regulations qualifying hooliganism as crime, the Constitutional court made the decision to combine them in one production, according to the procedure of article 43 of the Code of the constitutional jurisdiction, having assigned it number 208g/2020 of.

7. 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, Institute of criminal reforms, faculty of the right of the State university of Moldova and Institute of legal, political and social researches.

8. In open session of the Constitutional court the address No. 44g/2021 of was supported by the lawyer Viorel Berliba, the address No. 49g/2021 of was supported by the lawyer Angela Prokopchuk, and the address No. 76g/2021 of was supported by Adrian Muntyanu.

9. The parliament represented Rada Rada, the main consultant of service of representation in the Constitutional court and law enforcement agencies of the head legal department of the Secretariat of Parliament.

Actual circumstances

A. Circumstances of the main disputes

On criminal case No. 1-4/2020 (the address No. 208g/2020 of)

10. In production of court of Belts, the main office, there is criminal case on accusation Marcella Ilico and Denis Gerasimenkov in crime execution, stipulated in Article 287 h (2) the item b) [hooliganism] of the Criminal code.

11. According to the indictment, being near shop on Ulitsa Aleksandr persons Boone No. 5 in the city of Belts, having roughly disturbed the public peace by defiant behavior and expression of explicit disrespect for society, integrated by the actions differing in special impudence and cynicism, persons accused struck to the victims multiple blows. The actions which are presumably made by defendants were qualified under Article 287 of h (2) by the item b) the Criminal code as the intentional actions which are roughly disturbing the public peace, integrated using violence to people or to threats of its application, and equally in the actions differing on the content in exclusive cynicism or special impudence, made by two or more persons.

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