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DETERMINATION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of September 24, 2002 No. 5

About suit abatement about control of constitutionality of some provisions of the Contract between the Republic of Moldova and Ukraine about frontier and the Additional protocol to the Agreement signed in Kiev on August 18, 1999

Constitutional court in structure:

Victor PUSKAS is chairman

Mihai KOTOROBAY is judge

Mircha of the SOUTH - the judge-speaker

Konstantin LOZOVANU is judge-speaker

To Dumitr PULBERE - the judge

Elena SAFALERU is judge with the assistance of Corinna of Pop, the secretary of meeting, deputies of Parliament Yuriye Roshk and Stefan Sekerjanu, authors of the address, George Susarenko, Vitaly Nagachevski and Bogdan Chubotara, representatives of authors of the address, Yuriye Stoykov and Ion Kryange, representatives of Parliament, Galina Kirinchuk, the permanent representative of the Government in the Constitutional court, based on Art. 135 of the h. (1) item and) Constitutions, Art. 4 of the h. (1) item and) Law on the Constitutional court, Art. 4 of the h. (1) item and) and Art. 16 of the h. (1) the Code of the constitutional jurisdiction considered in open plenary meeting case on control of constitutionality of the Contract between the Republic of Moldova and Ukraine on frontier and the Additional protocol to the Agreement, signed in Kiev on August 18, 1999.

The address of deputies of Parliament Yuriye Roshk and Stefan Sekerjanu introduced on March 28, 2002 according to Art. 24 and 25 of the item g) the Law on the Constitutional court, Art. 38 and 39 of the Code of the constitutional jurisdiction formed the basis for consideration of the case.

The address was accepted determination of the Constitutional court of May 20, 2002 to consideration on the merits and is included in the agenda.

During consideration of the case the points of view of Parliament, the President of the Republic of Moldova, the Government, the Ministry of Justice, the Ministry of Foreign Affairs, Department of border troops, Academies of Sciences of the Republic of Moldova, departments of the constitutional, administrative and international law of faculty of the right of the Moldavian state university, department of the state disciplines of Department of the right of the Moldavian international independent university were requested.

Having considered case papers, having heard the message of judges-speakers, explanations of participants of meeting, the Constitutional court established:

The organic Law N348-XV of July 12, 2001 * the Parliament ratified the Contract between the Republic of Moldova and Ukraine on frontier signed in Kiev on August 18, 1999 (further - the Agreement), which came into force on November 18, 2001 as a result of exchange of instruments of ratification on October 19, 2001.

According to Art. 10 of the Agreement of the party will sign the Additional protocol to this agreement which is its integral part and regulating questions of transfer into the ownership to Ukraine of the section of the highway Odessa - Rennie near the settlement of Palank of the Republic of Moldova, and also the parcel of land on which it passes, and the mode of their operation.

Authors of the address ask to exercise control of constitutionality of the above-named Art. 10, and also the Additional protocol according to which the Republic of Moldova transfers to the possession (ownership, use and the order) Ukraine the section of the highway Odessa - Rennie near the settlement of Palank of the Republic of Moldova km 7,77 extent, and also the parcel of land on which it passes by Ploshchad 18,0 of hectare.

According to authors of the address, Art. 10 of the Agreement and the Additional protocol contradict the constitutional principles of territorial indivisibility and territorial inalienability of the state enshrined in Art. 1 of the h. (1) and St. (3) h. (1) Constitutions which are incompatible with any form of territorial alienation and division as the territory is one of basic elements of the state and violate Art. 3 of the h. (2) Constitutions, establishing the certain conditions concerning change of borders.

In the address it is also noted that the acts subjected to constitutionality control were signed with violation of Art. 8 of the h. (2) the Constitution providing that review of the Constitution shall precede entry into force of the international treaty containing the provisions contradicting the Constitution.

Having correlated the acts subjected to constitutionality control to provisions of the Supreme law, other laws of the Republic of Moldova and the international standards in the field, the Constitutional court notes the following.

According to Art. 8 of the h. (1) the Republic of Moldova Articles of organization of the United Nations and agreements shall observe Constitutions, one of the parties of which it is, to build the relations with other states on the conventional principles and rules of international law.

So, in case of the conclusion of international treaties the Republic of Moldova shall follow the international legal principles and regulations, and also the national constitutional and legal provisions regulating agreements.

In the context of subject of the address the Constitutional court considers that its power on control of constitutionality of international treaties, one of the parties of which is the Republic of Moldova, enshrined in Art. 135 of the h. (1) the item and) Constitutions, it shall be considered through prism of other constitutional provisions and in interaction with the national and international standards in the field as the above-named constitutional regulation having general character does not concretize what agreements are exposed to constitutionality control, and at what stage: to or after their introduction in force.

According to provisions of the Vienna convention on the right of international treaties of May 23, 1969 (further - the Convention) which became effective for the Republic of Moldova on February 25, 1993 ** it is necessary to understand the international agreement signed between the states in writing and regulated by international law as the agreement.

According to Art. 24 of the Convention establishing procedure for entry into force of agreements, the agreement becomes effective according to the procedure and in date, provided in the agreement or approved between the states participating in negotiations.

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