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DETERMINATION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of December 4, 2006

According to the address about interpretation of Art. 135 of the Constitution of the Republic of Moldova

Constitutional court in structure:

Victor PUSKAS is chairman

Alina YANUCHENKO is judge

Mircha of the SOUTH - the judge

To Dumitr PULBERE - the judge

Elena SAFALERU is judge

Ion VASILATI is judge-speaker with the assistance of Maya Laur, the secretary of meeting, having considered according to Art. 44 of the Code of the constitutional jurisdiction the address of the Minister of Justice Vitaliye Pyrloga about interpretation of Art. 135 of the Constitution of the Republic of Moldova, at with t and N about in and l:

1. On November 1, 2006 the Minister of Justice appealed to the Constitutional court with request about interpretation of Art. 135 of the Constitution establishing powers of the Constitutional court.

In the address it is emphasized that according to Art. 13 of the European convention on human rights: "Everyone whose rights and freedoms recognized in this Convention are broken, has effective remedies of legal protection before the national authorities even if such violation was made by persons acting in official quality". The author of the address considers that the Republic of Moldova can fulfill the valid obligation following from Art. 13 of the Convention by investment of the Constitutional court with power to consider, after exhaustion of other ways of appeal, stipulated by the legislation the Republic of Moldova, addresses of the citizens considering itself restrained in the rights and freedoms guaranteed by the Convention or additional protocols to it.

The author believes that as the Supreme law does not establish prohibition on provision to the Constitutional court of other powers, except those which are stipulated in Article 135 h (1) Constitutions, Parliament can expand competence of the Constitutional court by means of the law. In his opinion, the Constitutional court can be given the right to consider addresses of the citizens considering themselves restrained in any right guaranteed by the Constitution or international treaties, one of the parties of which is the Republic of Moldova, without introduction of amendments to the Constitution.

Noting need for effective ensuring recognition and respect for human rights and fundamental freedoms, the Minister of Justice made inquiry about interpretation of Art. 135 of the Constitution in general in the following sense: whether the Constitutional court other authority, except those which are stipulated in Clause 135 h can give to Parliament. (1) Constitutions, without its review.

2. Having analyzed the address is preliminary, the Constitutional court states that the legal issue in the sense provided in the address cannot be subject of the constitutional jurisdiction when which implementing the Constitutional court gives interpretation of the Constitution.

So, the address about interpretation of Art. 135 of the Constitution makes assumption of the author of the address that the legislator, without review of the Constitution, can give to the Constitutional court authority to consider addresses of persons considering himself restrained in the rights and freedoms protected by the Constitution, the European convention on human rights or other international treaties which the Republic of Moldova joined.

The constitutional court notes that the author of the address actually upholds as the possible and adequate idea of indirect interpretation of Art. 135 of the Constitution by explanation of sense of the constitutional regulations on legislative power of Parliament in the areas relating to the constitutional and organic laws.

The constitutional court considers unacceptable sending and the subsequent conclusion of the author of the address and notes that hypothetical judgments as logical they seemed, cannot form the basis for interpretation of Art. 135 of the Constitution. Owing to insolvency of judgments of the author the Constitutional court regards the address as pointless and, therefore, not subject to consideration on the merits.

3. According to the status the Constitutional court is the single body of the constitutional jurisdiction which is independent of any other public power and submits only to the Constitution (Art. 134 of the h. (1) and h. (2). The specified official standing of the Constitutional court assumes its obligation to guarantee rule of the fundamental law under any circumstances, including by respect for own powers which are accurately established in Art. 135 of the h. (1) Constitutions.

According to basic provisions of the Law on the Constitutional court (Art. 4 of the h. (2) and the Code of the constitutional jurisdiction (Art. 4) of power of the Constitutional court are provided by the Constitution and cannot be disputed by any body of the public power.

Review of the Constitution (Art. 141 of h (1), the Art. 142) is performed by the law on introduction of amendments to the Constitution which is the constitutional law (Art. 72 of h (2), the Art. 143).

Therefore, intention to give to the Constitutional court authority in the field of the constitutional jurisdiction can be realized only by review of the Constitution, adoption of law on introduction of amendments to the Constitution - the constitutional law. Investment of the Constitutional court with powers in the field of the constitutional jurisdiction without introduction of amendments to the Constitution means actually review of the constitutional status of the Constitutional court which purpose is guaranteeing rule of the Constitution.

4. On December 26, 2004 the Constitutional court expressed by making the conclusion under the bill on amendment of Art. 135 and change of Art. 136 of the Constitution which provided the subsidiary mechanism of human rights protection in the Republic of Moldova, granting to citizens the right to the direct address to the Constitutional court as for the purpose of initiation of control procedure of constitutionality of the laws, and put permissions by submission of the constitutional claim.

Having analyzed the bill, the Constitutional court noted that introduction of the procedure of the constitutional appeal at the national level will promote more effective protection of the human rights and freedoms affirmed both the Constitution of the Republic of Moldova, and international treaties which party is the Republic of Moldova. According to the draft of the constitutional law it was supposed that by consideration of the constitutional claim the court will express in the first and in final instance on violations by bodies of the public power and degrees of jurisdiction of the rights and freedoms. According to the bill the constitutional claims before their submission to the international instance can be considered by the Constitutional court - the single body authorized officially to give interpretation of the constitutional regulations. The constitutional court stated that the bill does not break the principle of unity of the constitutional matter, and development and specification of the procedure of consideration of the constitutional claim are included only into competence of Parliament.

Thus, in strict compliance with the power the Constitutional court expressed at the initiative of review of the Constitution regarding provision to citizens of the right to the address to the Constitutional court.

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