of November 9, 2023 No. 20
About exceptional case of illegality of some provisions of the Law on prosecutor's office No. 3 of February 25, 2016 (the address No. 108g/2022 of year)
Name of the Republic of Moldova
Constitutional court in structure:
Nikolay Roshka, chairman,
Domnika Manole,
Liouba Shova,
Sergey Tsurkan,
Vladimir Tsurkan, judges,
with the assistance of the assistant judge Marcella Lupu,
in view of the address,
registered on July 11, 2022,
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 provisions of Art. 31-1 of h formed the basis for consideration of the case (1) and h (5) the Law on Prosecutor's office and omission to regulate in the Law on Prosecutor's office the right of appeal of the report of the Commission on assessment of activities of the Attorney-General provided by the lawyer Yury Merzhinyanu for the benefit of Alexander Stoyanoglo, party litigant No. 3-182/2021, to Kshineu considered in Appeal chamber.
2. The address about exceptional case of illegality was brought into the Constitutional court by judicial structure of Appeal chamber Chisinau on behalf of Angela Bostan, Gennady Myr and Grigory Dashkevich according to Art. 135 of h (1) the item and) and the item g) Constitutions.
3. Determination of the Constitutional court of October 31, 2023, without decision in essence, the address was acknowledged acceptable.
4. At meeting of plenum of the Constitutional court on consideration of the address from the point of view of the acceptability the constitutional judge Domnika Manole submitted the application for rejection. Having analyzed the bases stated in the application for rejection, the plenum of the Constitutional court rejected it.
5. During consideration of the case the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government, faculty of the right of the State university of Moldova, Institute of criminal reforms, Institute of legal, political and social researches.
6. At open session of the Constitutional court there were lawyers to Yuriye Merzhinyan and Victor Muntyanu, representatives of the author of the address, Rada Rada, the representative of Parliament, and Eduard Serbenko, the representative of the Government.
Actual circumstances
A. Circumstances of the main dispute
7. Alexander Stoyanoglo submitted on November 29, 2021 to Appeal chamber of Chisinau the application for cancellation of the Regulations on assessment procedure of activities of the Attorney-General approved by the Resolution of the Supreme council of prosecutors No. 1-148/2021 of November 22, 2021.
8. During consideration of the case Alexander Stoyanoglo sent request about exceptional case of illegality of Art. 31-1 of h (1) and h (5) the Law on Prosecutor's office and omission to regulate the right of appeal of the report of the Commission on assessment of activities of the Attorney-General in the Law on Prosecutor's office.
9. The Appeal chamber Chisinau satisfied with determination of June 14, 2022 request 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 6 Separation and interaction of the authorities
"In the Republic of Moldova the legislative, executive and judicial authorities are divided and interact when implementing the prerogatives according to Constitution provisions".
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 23 Right of Each Person to Knowledge of the Rights and Obligations
"(1) Each person has the right to recognition of its legal personality.
(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 26 Right of defense
"(1) the Right of defense is guaranteed.
(2) Each person has the right independently to react by legal methods to violation of the rights and freedoms.
(3) throughout all process of the party have the right to use the help of the lawyer chosen or appointed.
(4) Intervention in activities of persons performing protection in the set limits is punished by the law".
Article 74 Adoption of the Laws and Resolutions
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