RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of April 23, 2024 No. 12

About exceptional case of illegality of Article 308-8 of the Code of civil procedure (the term of consideration of the application about establishment of measure of judicial protection) (the address No. 198g/2023 of)

Name of the Republic of Moldova

Constitutional court in structure:

Domnika MANOLE, chairman,

Viorika PUYKA,

Nicolae ROSHKA,

Liouba of SHOVA,

Sergey TSURKAN,

Vladimir TSURKAN, judges,

with the assistance of the assistant judge Yulia Vartik,

in view of the address,

registered on August 7, 2023,

having considered the specified address in open session,

considering acts and case papers,

having carried out discussion in the consultative room,

issues the following decree.

Procedure questions

1. The address about the exceptional case of illegality of Article 308-8 of the Code of civil procedure declared by the lawyer Vladimir Kazmaly for the benefit of Pyotr Slav in the matter of No. 2p/s-04/2022, being in production of court Comrat, the main office formed the basis for consideration of the case.

2. The appeal about exceptional case of illegality was sent in the Constitutional court by the judge in court Comrat, the main office, Maryana Hanganu according to the procedure of Article 135 of h (1) the item and) and the item g) Constitutions.

3. Determination of the Constitutional court of December 7, 2023, without decision in essence, the address was acknowledged acceptable.

4. During consideration of the address the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government and the National lawyer.

5. In open session of the Constitutional court there was representative of Parliament Rada, the main consultant of service of representation at the Constitutional court and law enforcement agencies of general legal management of the Secretariat of Parliament. The government was represented by Eduard Serbenko, the state secretary of the Ministry of Justice.

Actual circumstances

I. Circumstances of the main dispute

6. Pyotr Slav submitted on February 19, 2022 the application for establishment of guardianship concerning I.S.

7. The lawyer Vladimir Kazmaly declared on April 5, 2023 for the benefit of Pyotr Slav exceptional case of illegality of Article 308-8 of the Code of civil procedure.

8. The trial judge satisfied with determination of June 23, 2023 the petition and sent the appeal about exceptional case of illegality to the Constitutional court for its permission.

II. Applicable legislation

9. Applicable provisions of the Constitution:

Article 1. State Republic of Moldova

"[…]

(3) the Republic of Moldova - the democratic constitutional state in which advantage of the person, its rights and freedom, free development of the human person, justice and political pluralism are the supreme values and are guaranteed".

Article 20. Open entry to justice

"(1) Any person has the right to effective recovery in the rights by competent courts in case of violation of its rights, freedoms and legitimate interests.

(2) Any law cannot limit access to justice".

Article 54. Restriction of implementation of the rights or freedoms

"(1) In the Republic of Moldova the laws prohibiting or diminishing the rights and fundamental freedoms of man and citizen cannot be adopted.

(2) Implementation of the rights and freedoms is not subject to any restrictions, except those which are provided by the law, meet the universally recognized norms of international law and protection of the rights, freedoms and advantage of other persons, prevention of disclosure of information obtained confidentially or ensuring authority and impartiality of justice are necessary for the benefit of homeland security, territorial integrity, economic well-being of nation, public order, for the purpose of prevention of mass riots and crimes.

(3) part Provisions (2) restrictions of the rights proclaimed in Articles 20-24 do not allow.

(4) Restriction shall correspond to the circumstance which caused it and cannot affect existence of the right or freedom".

10. Applicable provisions of the Code of civil procedure accepted by the Law No. 225 of May 30, 2003:

Article 308-8. The term of consideration of the application about establishment of measure of judicial protection

"The statement for establishment of measure of judicial protection is left without consideration if the degree of jurisdiction did not resolve it within year after giving".

Points of law

I. Arguments of the author of the address

11. The author of the address claims that removal from consideration of the application about establishment of measure of judicial protection after one year from the date of its giving violates its right to open entry to justice.

12. In his opinion though removal from consideration does not influence the main point, the measure deprives of efficiency all legal proceedings made before the expiration of one year. At the same time the expiration of this term not in all cases can be charged to the applicant. Moreover, excessive load of degrees of jurisdiction complicates permission of the statement for establishment of measure of judicial protection within one year from the date of its giving.

13. In conclusion the author of the address considers that the challenged provision contradicts Articles 1 of h (3), 20 and 54 Constitutions.

II. Arguments of the authorities which provided the opinion

14. In the opinion provided by Parliament it is noted that Article 308-8 was introduced in the Code of civil procedure by the Law No. 66 of April 13, 2017 on modification and amendments in some regulations. This law was directed to implementation in the domestic legislation of the obligations following from the Convention of the United Nations on the rights of disabled people of December 13, 2006 ratified by the Law No. 166 of July 9, 2010.

15. So, the Parliament claims that in general the changes brought by the Law No. 66 of April 13, 2017 provide additional guarantees in the course of establishment of measures of judicial protection, but does not give arguments about constitutionality of Article 308-8 of the Code of civil procedure. At the same time the Parliament considers that the author of the address did not prove in what measure the challenged provisions contradict the given constitutional regulations, and suggests the Constitutional court to recognize this address unacceptable.

16. The government claims that term in one year for consideration of the case on the statement for establishment of measure of judicial protection is reasonable and provides observance of the rights of person which protection is requested. At the same time the Government notes that the similar provision is also in Article 1227 of the Civil code of France. Moreover, the Government emphasizes that arguments of the author of the address concerning term in one year, stipulated in Article 308-8 Codes of civil procedure, express its disagreement concerning procedure for collection of proofs, and this question is within the competence of degrees of jurisdiction.

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