RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of December 21, 2021 No. 39

About exceptional case of illegality of some provisions of Article 335 of h (1) Criminal code (unpredictability of concept to "public concerns") (address No. 172g/2021 of year)

Name of the Republic of Moldova

Constitutional court in structure:

Liouba Shova presiding

Nicolae Roshka,

Sergey Tsurkan,

Vladimir Tsurkan, judges,

with the assistance of the assistant judge Georgy Renitse,

in view of the address,

registered on July 21, 2021,

having considered the specified address in open session,

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 concept formed the basis for consideration of the case to "public concerns" in h (1) article 335 of the Criminal code, declared by the lawyer Sergey Filatov for the benefit of Vladislav Vezdeutsan, party litigants No. 10-2280/2020, being in production the vessels Chisinau, Chokan's sector.

2. The address about exceptional case of illegality is brought into the Constitutional court by the judge in court of Chisinau, Chokan's sector, Konstantin Damaskin according to Article 135 of h (1) the item and) and the item g) Constitutions.

3. Determination of the Constitutional court of October 26, 2021, without decision in essence, the address was acknowledged acceptable.

4. During consideration of the case the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government, Institute of legal, political and social researches and Institute of criminal reforms.

5. Were present at open session of the Constitutional court: author of the address Vladislav Vezdeutsan; representative of the author of the address lawyer Sergey Filatov; representative of Parliament Valeriu Kuchuk; representative of the Government Yulian Rusu.

Actual circumstances

A. Circumstances of the main dispute

6. The prosecutor of Anti-corruption prosecutor's office issued on April 20, 2017 the decree on brining a charge to Vladislav Vezdeutsan according to the procedure of Article 335 of h (1-1) and h (3) [abuse of official position in private sector] the Criminal code.

7. The lawyer Sergey Filatov made on December 7, 2020 the complaint to action/failure to act and acts of criminal prosecution authority and the prosecutor for the benefit of Vladislav Vezdeutsan, having specified that the brought charge is unreasonable and illegal.

8. The lawyer Sergey Filatov declared on May 28, 2021 for the benefit of Vladislav Vezdeutsan exceptional case of illegality of concept to "public concerns" of h (1) article 335 of the Criminal code.

9. The judge in court of Chisinau, the sector Chokana, Konstantin Damaskin satisfied with determination of July 16, 2021 the petition and sent the appeal about exceptional case of illegality to the Constitutional court for its permission.

B. Applicable legislation

10. 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 22 Irreversibility of the Law

"Nobody can be condemned for actions or for 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 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".

11. Applicable provisions of the Criminal code of the Republic of Moldova accepted by the Law No. 985 of April 18, 2002:

Article 335 Abuse of Official Position

"(1) Intentional use by the person managing commercial, public or other non-state organization or working for such organization, the official position of property of the organization in selfish, other private interests or interests of the third parties, directly or indirectly, the entailed damnification in considerable sizes to public concerns or the rights and interests of physical persons or legal entities protected by the law

it is punished by penalty in the amount of 650 to 1150 conventional units or imprisonment for a period of up to 3 years with deprivation in both cases of the right to hold certain positions or to be engaged in certain activities for a period of 2 up to 5 years.

(1-1) Actions provided by part (1), the entailed heavy effects,

are punished by penalty in the amount of 1350 to 2350 conventional units or imprisonment for a period of 2 up to 6 years with deprivation in both cases of the right to hold certain positions or to be engaged in certain activities for a period of 2 up to 5 years.

Note: Recognize unconstitutional the offer "the actions provided by part (1), entailed heavy effects" in h (11) article 335 of the Criminal code, according to the Resolution of the Constitutional court No. 24 of October 17, 2019 which became effective on October 17, 2019.

[H (2) Art. 335 is acknowledged invalid under the Law No. 245 of December 2, 2011, became effective on February 3, 2012]

(3) the Actions provided by part (1), made for the benefit of organized criminal group or the criminal organization or made by the administrator of bank,

are punished by imprisonment for a period of 3 up to 7 years with deprivation of the right to hold certain positions or to be engaged in certain activities for a period of 10 up to 15 years".

Points of law

A. Address acceptability

12. The Constitutional court confirmed with determination of October 26, 2021 observance in the matter of the requirements of the acceptability of the address established in its invariable practice.

13. According to Article 135 of h (1) the item and) Constitutions, control of constitutionality of the laws, in this case some provisions of the Criminal code, is within the competence of the Constitutional court.

14. The address about exceptional case of illegality is submitted according to the petition of the agent of the party in process. So, it is provided by the subject, the given this right, according to Article 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.

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