RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of March 29, 2005 No. 7

About exceptional case of illegality of some provisions of the Law No. 1286-XV of July 25, 2002 "About the status of refugees" *

Name of the Republic of Moldova,

Constitutional court in structure:

Victor PUSKAS is chairman

Alina YANUCHENKO is the judge - the speaker

Mircha of the SOUTH - the judge

To Dumitr PULBERE - the judge

Elena SAFALERU is judge

Ion VASILATI is judge

with the assistance of Lyudmila Kikhay, the secretary of meeting, Euzheniya Fistikan, the representative of the Highest trial chamber, Ion Mytsu, the permanent representative of Parliament in the Constitutional court, Nicolae Eshana, the permanent representative of the Government in the Constitutional court, Traian to Tsurkan and Leonida Guinsar, representatives of the Government, according to Art. 135 of the h. (1) item g) Constitutions, Art. 4 of the h. (1) item g) Law on the Constitutional court, Art. 4 of the h. (1) the item g) the Code of the constitutional jurisdiction the exceptional case of illegality of provisions of Art. 13 of the h considered in open plenary meeting. (2), Art. 32 of the h. (1) and h. (2), Art. 33 of the h. (1), h. (2) and h. (3) the Law N 1286-XV of July 25, 2002 "About the status of refugees".

The appeal of the Highest trial chamber about exceptional case of illegality provided on January 6, 2005 according to Art. 24 and Art. 25 of the Law on the Constitutional court, Art. 38 and Art. 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 January 17, 2005 for consideration on the merits.

On the question which is subject of the address, the Constitutional court requested the points of view of Parliament, the President of the Republic of Moldova, the Government, the Prosecutor General's Office, the Ministry of Justice, the Ministry of Foreign Affairs, the Ministry of Internal Affairs, Department on migration, Department of information technologies, Department of border troops, department of constitutional right and the administrative right of the State university, the State institute of the international relations, the Center for human rights, the representative of High Commission of the United Nations for refugees.

Having considered case papers, having heard the message of the judge-speaker and arguments of the parties, the Constitutional court established:

The address of January 6, 2005 the Highest trial chamber initiated request in the Constitutional court about control of constitutionality of provisions of Art. 13 of the h. (2), Art. 32 of the h. (1) and h. (2), Art. 33 of the h. (1), h. (2) and h. (3) the Law N1286-XV of July 25, 2002 "About the status of refugees" (further - the Law N1286-XV) which have the following content:

- Art. 13 of the h. (2) "Council on cases of refugees considers in appeal procedure for the claim to variation applications for provision of the status of the refugee".

- Art. 32" (1) the Decision of the director of Head department for refugees about variation of the statement for provision of the status of the refugee can be appealed in appeal procedure in Council for cases of refugees in ten-day time from the date of its message to person who submitted the application.

(2) the Decision of Council for cases of refugees can be appealed in cassation procedure in Appeal chamber in five-day time from the date of its message to person who submitted the application".

- Art. 33" (1) the Degree of jurisdiction considers the cassation application of person petitioning for provision of shelter, or the prosecutor and states the opinion on legality of the decision of Council for cases of refugees by pronouncement of the motivated resolution.

(2) in case of establishment of illegality of the decision of Council for cases of refugees the degree of jurisdiction cancels it and makes the decision on pronouncement of the new resolution or on reconsideration of the case.

(3) in case of establishment of legality of the decision of Council for cases of refugees the decision of degree of jurisdiction is final and irreversible, and the decision of Council is subject to execution".

As appears from the address, in production of Appeal chamber Chisinau there is administrative case of N3-201/04, initiated by the citizen of Syria, the asylum-seeker. The citizen of Syria appealed in cassation procedure the decision of the Council for cases of refugees which rejected its appeal against the decision of the director of Head department for refugees about variation of the statement for provision of the status of the refugee.

During legal proceedings of the writ of appeal the lawyer of the asylum-seeker appealed to degree of jurisdiction to send request in the Highest trial chamber about entering of idea into the Constitutional court of exceptional case of illegality of the listed provisions of the Law N1286-XV.

The lawyer considers that Art. 13 of the h. (2), Art. 32 of the h. (1) and h. (2), Art. 33 of the h. (1), h. (2) and h. (3) contradict the constitutional regulations of the Art. 6 on separation of the authorities, Art. 114 about justice implementation only by degrees of jurisdiction, the Art. 115 about the degrees of jurisdiction performing justice, the Art. 119 about the right to appeal as Council for cases of refugees cannot consider claims in appeal procedure, and the decision of Council cannot be appealed in cassation procedure as these ways of appeal are inherent only to degrees of jurisdiction. Council on cases of refugees is body of the public power and cannot be equipped with functions of degree of jurisdiction. He notes also that the legislator did not provide way of appeal of the decision of Appeal chamber.

Determination of April 30, 2004 the Appeal chamber based on Art. 12 of the Code of civil procedure addressed to the Highest trial chamber with idea of request in the Constitutional court about exceptional case of illegality, having suspended consideration of the case.

October 25, 2004 The plenum of the Highest trial chamber recognized reasonable request about exceptional case of illegality and, having referred in addition to violation of the constitutional regulations of the Art. 16 on equality of all citizens before the law and the authorities, the Art. 20 about open entry to justice and the Art. 53 about the right of person restrained by the power on January 6, 2005 appealed to the Constitutional court with request about control of constitutionality of the challenged provisions.

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info