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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of November 3, 2022 No. 20

About exceptional case of illegality of some provisions of Art. 437 of h (1) Code of civil procedure (condition of napechataniye of the cassation statement) (address No. 279g/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 address,

registered on December 17, 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 some provisions of Art. 437 of h formed the basis for consideration of the case (1) the Code of civil procedure of the Republic of Moldova approved by the Law No. 225 of May 30, 2003, provided at the request of the lawyer Alyona Dragomir for the benefit of Denis Russu, party litigants No. 2a-3643/2021, considered in Appeal chamber Chisinau.

2. The appeal about exceptional case of illegality was sent in the Constitutional court by judicial structure of Appeal chamber Chisinau on behalf of Victoria Syrbu, Virgil Buchnac and Dorin Dulgiyera based on Art. 135 of h (1) the item and) and the item g) Constitutions.

3. Determination of the Constitutional court of April 14, 2022, 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 and the Government.

5. At open session of the Constitutional court there were lawyer Alyona Dragomir, the representative of the author of the address, representatives of Parliament - Valery Kuchuk and the Governments - Eduard Serbenko.

Actual circumstances

A. Circumstances of the main dispute

6. Prisoner of penal institution No. 13 мун. Chisinau Denis Russu submitted on May 30, 2019 the action for declaration, having appealed three determinations which are taken out by legal executives in 2014, 2018 and 2019.

7. The court of Chisinau (the sector to Chentr) determination of August 22, 2019 rejected claims to acts of legal executives. Denis Russu appealed determination in cassation procedure.

8. The appeal chamber Chisinau returned on December 10, 2019 to Denis Russ the writ of appeal based on the fact that "it was handwritten illegible handwriting".

9. Denis Russu submitted on January 10, 2021 the action for declaration against the Government of the Republic of Moldova, the third parties being the Ministry of Justice and the Supreme council of magistracy, having demanded to indemnify damage caused to it as a result of violation of the right to fair legal proceedings. He proved the action for declaration by the fact that determination of Appeal chamber Chisinau of December 10, 2019 violated its right to fair legal proceedings.

10. The decision of July 8, 2021 the court of Chisinau (the sector to Chentr) rejected the action for declaration of Denis Russu against the Government of the Republic of Moldova.

11. Denis Russu appealed on July 15, 2021 in appeal procedure the judgment of Chisinau (the sector to Chentr) of July 8, 2021.

12. During consideration of the case in appeal procedure the lawyer Alyona Dragomir provided for the benefit of Denis Russu request about exceptional case of illegality of provisions of Art. 437 of h (1) the Code of civil procedure which establish condition of submission of the writ of appeal in printed form.

13. The Appeal chamber Chisinau satisfied with determination of December 1, 2021 request and sent the appeal about exceptional case of illegality to the Constitutional court for permission.

B. Applicable legislation

14. Applicable provisions of the Constitution:

Article 20 Open entry to justice

"(1) Any person has the right to effective recovery in the rights by competent courts in case of violation of its rights, freedoms and legitimate interests.

(2) Any law cannot limit access to justice".

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".

Article 119 Right to appeal

"The judgments can be appealed by concerned parties and competent state bodies according to the law".

15. Applicable provisions of the Code of civil procedure approved by the Law No. 225 of May 30, 2003:

Article 166 Action for Declaration Form and Content

"[…]

(7) the Action for declaration of the plaintiff physical person provided in court by the lawyer, and the action for declaration of the plaintiff legal entity move in printed form by means of the Integrated management program cases, with use of the strengthened qualified digital signature".

The article 426-1 Return of the Writ of Appeal on determination

"(1) the Cassation instance has the right to return the writ of appeal on determination if:

[…]

b-1) the cassation statement does not correspond to part provisions (1) Article 437;

[…]".

Article 437 Contents of the Cassation Statement

"(1) the Cassation application is submitted in printed form and shall contain:

a) the name of degree of jurisdiction to which the writ of appeal is addressed;

b) name or the name, procedural provision of the appellant or person whose interests it represents, their addresses;

c) name or name of the defendant, its address;

e) the name of the degree of jurisdiction which took out determination in appeal procedure, date of its removal and its substantive provisions, arguments for benefit of satisfaction or variation of the petition for appeal;

f) being and the bases of submission of the writ of appeal with reasons for illegality of the appealed determination, the petition of the appellant with formulation of relevant proposals;

g) date of submission of the writ of appeal and signature of the appellant.

[…]".

Article 438 Return of the Cassation Statement

"[…]

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