of February 13, 2007 No. 2
About control of constitutionality of provision of the Law No. 25-XVI of February 16, 2006 "About modification and amendments in article 24 of the Law on the Government No. 64-XII of May 31, 1990"
Name of the Republic of Moldova
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 Maya Laur, the secretary of meeting, Andrey Volentir, the representative of the author of the address Igor Klipy, 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 in open plenary meeting case on control of constitutionality of provision of the Law N25-XVI of February 16, 2006 "About modification and amendments in article 24 of the Law on the Government of N64-XII of May 31, 1990" 1.
The address of the deputy of Parliament Igor Klipy provided on November 28, 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 December 4, 2006 to consideration on the merits.
During preliminary consideration of the address the Constitutional court had the points of view of Parliament, the President of the Republic of Moldova, the Government, Ministry of Justice, Prosecutor General's Office, People's assembly of Gagauzia, the Ministry of Finance, Academy of public management in case of the President of the Republic of Moldova, department of constitutional right and the administrative right of the State university of Moldova, primeriya мун. Chisinau, primeriya мун. Бэлць and other bodies of administrative-territorial management of the second level.
Having considered case papers, having heard the message of the judge-speaker and arguments of participants of meeting,
The constitutional court established:
1. On February 16, 2006 the Parliament adopted the Law N25-XVI "About Modification and Amendments in Article 24 of the Law on the Government of N64-XII of May 31, 1990" (further - the Law N25-XVI). The article I of the law to article 24 of the Law on the Government of N64-XII2 (with subsequent changes) containing list of the central industry bodies of public management made addition "The ministry of local public authority".
2. In the address brought into the Constitutional court the author asks to exercise control of constitutionality of provision of the Law N25-XVI which created the Ministry of local public authority.
The author of the address considers that during creation of the Ministry of local public authority the principle of local autonomy and the right of local councils and primar to be effective according to the law as independent authorities were ignored. In his opinion, any ministry has no right to interfere with the organization and activities of bodies of local public authority, especially has no right to subordinate them to itself.
3. Having correlated the challenged provision of the Law N 25-XVI to the constitutional regulations on public management containing in the Art. 96, of the Art. 107, of Art. 109 and Art. 112, the Constitutional court notes the following.
Constitution Article 96 of the h. (1) the Government allocates with the right to perform the common directorship of public management. As body of public management of the general material power Government performs executive powers in all industries and the fields of administrative management. The constitutional regulation to the Government assigns the common directorship by both the central public management, and local public authority, - elements of public management. The common directorship, in the sense stated by the Constitutional court, means management and coordinating of deconcentrated services on places and only coordinating of the decentralized services of local public authority.
In case of specification of provisions of Art. 96 of the h. (1) Constitutions article 10 of the Law N64-XII gives to the Government authority to coordinate and control activities of bodies of local public authority, to perform programs of economic and social development of the republic, to create conditions for self-government functioning. Thus, the law connects program implementation of economic and social development of the republic with the effective common directorship local public authority.
For the purpose of implementation of the constitutional and legislative tasks by the Government article 107 of the Constitution provides creation of industry public managements which central bodies are the ministries. According to the Constitution they shall put into practice policy of the Government, its resolution and order, to perform management of the areas entrusted to them and bear responsibility for the activities. Thus, responsibility for carrying out policy of the Government is conferred on the ministries as the central industry bodies to which certain powers of the Government were delegated.
By means of the ministries the Government performs the programs of activities and public management in all territory of the state including in the administrative and territorial units which are components of the state. The ministries perform the common directorship down by means of deconcentrated services on places.
The constitution bases public management in administrative and territorial units on the principle of local autonomy. This principle concerns as the organization and activities of local public authority, and disposal of the represented communities (the Art. 109).
Control of local authorities is exercised by the principle of local autonomy assuming the right to self-government under control of the state across. Bodies of local public authority have opportunity to perform the functions not only by means of deconcentrated services of the central public management, but also through the decentralized services.
Local autonomy on which the author founds the address has certain restrictions, especially in the unitary state. For effective application, for the benefit of all population local autonomy is based on pro-rata rule, the question considered more widely by the Constitutional court in previous postanovleniyakh3. Inadmissibly, that because of local autonomy were ignored the law, the authority of the Government or justice. In order to avoid dangerous variations from management to the sphere of policy the public relations are under construction on the principle of ensuring balance between local and state interests. On these bases in many democratic stranakh4 at the level of administrative and territorial units the bodies representing the central executive authority which exercise control of activities of bodies of local public authority are created and realization of reforms in the field of local public authority promotes.
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