of May 30, 2006 No. 1
About suit abatement about control of constitutionality of provision of Art. 1612 of the Code of Administrative Offences
Constitutional court in structure:
Victor PUSKAS is chairman, the judge-speaker
Alina YANUCHENKO is judge
Mircha of the SOUTH - the judge
To Dumitr PULBERE - the judge
Elena SAFALERU is judge
Ion VASILATI is judge with the assistance of Victoria Botnaryuk, the secretary of meeting, Nicolae Opr, the deputy attorney general of the Republic of Moldova, Ion Mytsu, the permanent representative of Parliament in the Constitutional court, Nicolae Eshana, the permanent representative of the Government in the Constitutional court, being guided by 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 case on control of constitutionality of provision of Art. 1612 of the Code of Administrative Offences in open plenary meeting.
The address of the Attorney-General of the Republic of Moldova Valeriu Balaban provided on January 16, 2006 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 24, 2006 to consideration on the merits.
During preliminary consideration of the address the Constitutional court requested the points of view of Parliament, the President of the Republic of Moldova, the Government, the Highest trial chamber, the Ministry of Justice, the Center for human rights, departments of the constitutional and administrative law, department of the criminal law and criminology of faculty of the right of the State university of Moldova, Institute of criminal reforms, the Main state tax authorities, the Center for fight against economic crimes and corruption, the Ministries of Internal Affairs, Customs Service and the Transparensy International Moldova Organization.
Having considered case papers, having heard the message of the judge-speaker and arguments of participants of meeting,
The constitutional court established:
1. It agrees to the Code of Administrative Offences approved by the Law MSSR of March 29, 1985 goda1, namely: to Article 1612, the entitled "Violation of procedure for acquisition, storage, transportation, sale or the realization of material values" entered by the Law N479-XIII of June 6, 1995 "About modification and amendments in the Code about administrative violations" 2, added with the Law N1326-XIII of September 25, 1997 "About modification and amendments in the Criminal code, the Code of penal procedure and the Code of Administrative Offences" 3 and the Law N144-XV of May 10, 2001 "About entering of amendment into the Code of Administrative Offences" 4:
"Acquisition, storage, transportation, sale or realization by subjects of entrepreneurship of goods, products or raw materials without the relevant documents at the time of identification attracts imposing of penalty on citizens in the amount of ten to twenty five conventional units and on officials - from twenty five to fifty conventional units, with confiscation of the goods, products or raw materials constituting offense subject".
2. In the address brought into the Constitutional court from Art. 1612 of the Code of Administrative Offences the provision on confiscation of the goods, products or raw materials constituting offense subject is challenged.
The author of the address considers that this provision of the Code breaks the constitutional regulations affirming the right of private and public property, the rights of private property and its protection, guarantee of implementation of the property right, the right of any person to effective recovery in the rights competent courts in case of violation of its rights, freedoms and legitimate interests established by the Art. 9, the Art. 20, the Art. 46, Art. 54 and Art. 127.
3. At the request of the author the Constitutional court considered the challenged provision of Art. 1612 of the Code of Administrative Offences in the light of the Art. 9, of the Art. 20, of the Art. 46, of Art. 54 and Art. 127 of the Constitution. Based on provisions of Art. 4 and Art. 8 of the Constitution the Constitutional court checked also compliance of the challenged provision to regulations of international treaties, one of the parties of which is the Republic of Moldova: Art. 17 of the Universal Declaration of Human Rights and Art. 1 of the Additional N1 protocol to the European convention on human rights protection and fundamental freedoms.
4. The constitutional court according to the procedure of the constitutional jurisdiction established by the current legislation analyzed in all aspects of regulations of Art. 1612 of the Code on administrative violations, in particular, syntagma "with confiscation of goods, products or the raw materials constituting violation subject", directly disputed in the address.
After completion of the meeting held according to Art. 55 of the Code of the constitutional jurisdiction, proposals of judges were put to the vote. In case of decision making equality of votes was registered. Owing to these circumstances, according to Art. 27 of the h. (2) Law on the Constitutional court and Art. 66 of the h. (5) the Code of the constitutional jurisdiction (in edition of the Law N1570-XV of December 20, 2002) the regulation is considered constitutional, and proceeedings stop.
Proceeding from stated, being guided by Art. 26 and Art. 27 of the h. (2) Law on the Constitutional court, Art. 61, Art. 64 and Art. 66 of the h. (5) the Code of the constitutional jurisdiction, the Constitutional court DETERMINED:
1. Stop proceeedings about control of constitutionality of provision from Art. 1612 of the Code of Administrative Offences.
2. This determination is final, is not subject to appeal, becomes effective from the date of acceptance and is published in "Monitorul Oficial al Republicii Moldova".
Chairman of the Constitutional court
1 Sheets of MSSR, 1985, N 3, Art. 47
2 M.O., 1995, N45-46, of Art. 535
3 M.O., 1997, N84-85, of Art. 679
4 M.O., 2001, N55-56, of Art. 342
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