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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of November 23, 2021 No. 36

About exceptional case of illegality of Art. 66 of h (7) and Art. 84 of h (13) the Code about audiovisual media services (exception of advertizing and TV shop of the relayed programs) (the address No. 25g/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 Christina Kikhay,

in view of the address,

registered on February 9, 2021,

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. 66 of h formed the basis for consideration of the case (7) and Art. 84 of h (13) the Code about audiovisual media services, JSC MOLDTELECOM provided at the request of claimants, TV-BOX LLC, ARAX-IMPEX LLC, JSC JV ORANGE MOLDOVA and STV IT COMPANY LLC within the case No. 3-621/2020, considered in court of Chisinau, the sector Ryshkan.

2. The address about exceptional case of illegality was brought into the Constitutional court by the judge the vessels Chisinau, the sector Ryshkan, Marchel Gandrabur according to Art. 135 of h (1) the item and) and the item g) Constitutions.

3. Determination of the Constitutional court of May 13, 2021, without decision in essence, the address was acknowledged acceptable.

4. During consideration of the address the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government, Council for television and radio, Competition council.

5. At open session of the Constitutional court there were authors of the address - Igor Andriyesh, the representative of JSC JV ORANGE MOLDOVA, Silvia Bozhoga, the representative of ARAX-IMPEX LLC, Doreen Ratsa, the representative of TV-BOX LLC, to Alexander Muntyan, the managing director of STV IT COMPANY LLC, to Alexander Fedorov, the representative of JSC MOLDTELECOM, the representative of Parliament Valeriu Kuchuk, the representative of the Government Yulian Rusu and the representative of Council for television and radio Grigor Kitsanu.

Actual circumstances

A. Circumstances of the main dispute

6. Council on television and radio the Decision No. 4/20 of February 13, 2020 according to Art. 84 of h (5) the item f) the Code about audiovisual media services inflicted sanctions in the form of penalty on JSC MOLDTELECOM, TV-BOX LLC, ARAX-IMPEX LLC, JSC JV ORANGE MOLDOVA and STV IT COMPANY LLC for non-compliance with provisions of Art. 66 of h (7) the Code and item 4.1 of subitem and) Requirements to permission to relaying.

7. JSC MOLDTELECOM, TV-BOX LLC, ARAX-IMPEX LLC, JSC JV ORANGE MOLDOVA and STV IT COMPANY LLC filed a lawsuit the action for declaration against Council for television and radio with the requirement to cancel (partially) the Decision of Council for television and radio No. 4/20 of February 13, 2020.

8. TV SAT LLC filed a lawsuit the action for declaration against Council for television and radio with the requirement to cancel (partially) above-stated decision.

9. JSC MOLDTELECOM, TV-BOX LLC, ARAX-IMPEX LLC, JSC JV ORANGE MOLDOVA and STV IT COMPANY LLC provided request about exceptional case of illegality of Art. 66 of h (7) and Art. 84 of h (13) the Code about audiovisual media services.

10. Determination of February 3, 2021 the court of Chisinau, the sector Ryshkan, satisfied request and sent the appeal about exceptional case of illegality to the Constitutional court for permission.

Applicable legislation

11. Applicable provisions of the Constitution:

Article 4 of the Human right and freedom

"(1) the Constitutional regulations on human rights and freedoms are interpreted and applied according to the Universal Declaration of Human Rights, pacts and other agreements, one of the parties of which is the Republic of Moldova.

(2) with discrepancies between pacts and agreements on fundamental human rights, one of the parties of which is the Republic of Moldova, and the internal laws the international standards have priority".

Article 23 Right of Each Person to Knowledge of the Rights and Obligations

"[...]

(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 32 Freedom of opinions and expression

"(1) the freedom of thought, opinions, and also freedom of public expression by means of the word, the image or other possible methods is guaranteed to Each citizen.

[...]".

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.

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