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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of March 10, 2022 No. 6

About control of constitutionality of the provision "also perform activities in the form of commercial societies" in part (1) Art. 28 of the Code about audiovisual media services (prohibition to non-profit organizations to perform activities of the private supplier of audiovisual media services) (the address No. 78a/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 April 2, 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 control of constitutionality of the provision "also perform activities in the form of commercial societies" to parts (1) Art. 28 of the Code about audiovisual media services No. 174 of November 8, 2018, brought into the Constitutional court on April 2, 2021 by the deputy of Parliament Serdzhiu Litvinenko according to provisions of Art. 135 of h (1) the item and) formed the basis for consideration of the case to the Constitution, Art. 25 of the item g) the Law on the Constitutional court and Art. 38 of h (1) the item g) the Code of the constitutional jurisdiction.

2. Determination of the Constitutional court of January 18, 2022, without decision in essence, the address was acknowledged acceptable.

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

4. At open session of the Constitutional court there was the representative of Parliament Rada Rada, the main consultant of service of representation at the Constitutional court and law enforcement agencies of the head legal department of the Secretariat of Parliament, and representative of the Government in the Constitutional court Eduard Serbenko, the state secretary of the Ministry of Justice.

Applicable legislation

5. Applicable provisions of the Constitution:

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 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.

[…]".

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".

6. Applicable regulations of the Code on audiovisual media services approved by the Law No. 174 of November 8, 2018:

Article 1 Basic concepts

"[…]

The supplier of media services - the physical person or legal entity bearing editorial responsibility for the choice of audiovisual content of audiovisual media service and establishing procedure for its organization;

[…]"

Article 28 Legal regime of property of suppliers

media services

"(1) Private suppliers of media services are established by physical persons and/or legal entities and perform activities in the form of commercial societies.

[…]".

Points of law

A. Address acceptability

7. The Constitutional court confirmed with determination of January 18, 2022 observance in the case under consideration of the requirements of the acceptability of the address established in the invariable practice.

8. According to Art. 25 of the item g) the Law on the Constitutional court and Art. 38 of h (1) the item g) the Code of the constitutional jurisdiction, deputies have rights of the address to the Constitutional court.

9. According to Art. 135 of h (1) the item and) Constitutions the constitutional control of the laws, in this case of some provisions of the Code on audiovisual media services, is within the competence of the Constitutional court.

10. Subject of the address is the offer "and perform activities in the form of commercial societies" in part (1) Art. 28 of the Code about audiovisual media services. This Article provides that private suppliers of media services are established by physical persons and/or legal entities and perform activities in the form of commercial societies.

11. The challenged provisions did not constitute subject of the constitutional control earlier.

12. The author of the address considers that the challenged provisions contradict Art. 9 of h (3) [the basic principles of property], Art. 16 [equality], Art. 23 [the right of each person to knowledge of the rights and obligations], Art. 46 [the right of private property and its protection], Art. 54 [restriction of implementation of some rights or freedoms], Art. 126 of h (1) [economy] and Art. 127 of h (2) [property] of the Constitution.

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