of June 12, 2007 No. 16
About control of constitutionality of article II of part two of the Law No. 186-XVI of June 29, 2006 "About modification and amendments in the Rehabilitation act of the victims of political repressions No. 1225-XII of December 8, 1992" and Articles 12 parts eight of the Law No. 1225-XII of December 8, 1992 in edition of the Law No. 186-XVI of June 29, 2006
Name of the Republic of Moldova
Constitutional court in structure:
To Dumitr PULBERE - the chairman
Alina YANUCHENKO is judge
Victor PUSKAS is judge
Elena SAFALERU is judge-speaker
Ion VASILATI is judge
with the assistance of Victoria Botnaryuk, the secretary of meeting, Vitaliye Nagachevski, the representative of the author of the address George Susarenko, the deputy of Parliament, Ion Mytsu, the permanent representative of Parliament in the Constitutional court, and 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 article II of part two of the Law N 186-XVI of June 29, 2006 "About modification and amendments in the Rehabilitation act of the victims of political repressions N 1225-XII of December 8, 1992" (1) and Articles 12 parts eight of the Law N 1225-XII of December 8, 1992 "About recovery of victims of political repressions" (2) in edition of the Law N 186-XVI of June 29, 2006.
The address of the deputy of Parliament George Susarenko provided on December 15, 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 25, 2006 to consideration on the merits.
Having considered case papers, the provided points of view of Parliament, the President of the Republic of Moldova, the Government, the Ministry of Justice, the Ministry of Finance, the Prosecutor General's Office, the Highest trial chamber, the Center for human rights of Moldova, having heard the message of the judge-speaker and arguments of participants of meeting, the Constitutional court established:
1. On June 29, 2006 the Parliament adopted the Law N 186-XVI "About modification and amendments in the Rehabilitation act of the victims of political repressions N 1225-XII of December 8, 1992" (further - the Law N 186-XVI and respectively the Law N 1225-XII).
Article 12 of the Law N 1225-XII in the new edition establishes return of property, compensation of its cost by compensation payment to persons which underwent to political repressions.
According to Article part eight 12, of subject of the address if the property value which did not remain or cannot be returned in nature, does not exceed 200 thousand lei, payment of compensation is performed by installments within no more than three years, and for property which cost exceeds 200 thousand lei, - within no more than five years.
The disputed article II part two of the Law N 186-XVI provides that this law does not extend to the persons who underwent to political repressions and afterwards rehabilitated which paid damages before entry into force of this law.
2. The author of the address considers that provisions of article II of part two of the Law N 186-XVI contradict the constitutional regulations containing in Art. 16 of the h. (2), Art. 46 of the h. (1), h. (2) and h. (3), Art. 54 of the h. (2) Constitutions, and also Art. 17 of the Universal Declaration of Human Rights.
Affirms as reasons for arguments of the address that the challenged provisions of the law break the principle of equality of citizens before the law as put in unequal conditions of the faces which underwent to political repressions and afterwards rehabilitated to which the caused loss based on the Order of the Government N 338 of the May 26, 1995 recognized by the unconstitutional Resolution of the Constitutional court N 41 of July 20, 1999, and those which should indemnify loss according to the Law N 186-XVI was indemnified. According to the author, specified persons did not receive real compensation for the property seized or nationalized than their property right was violated.
On the same bases, the author of the address believes, also Article provisions 12 parts eight of the Law N 1225-XII in edition of the Law N 186-XVI are unconstitutional.
3. Having considered the challenged provisions through the Constitution prism, in the ratio with the national legal system and the international acts of basic rights and human freedoms, the Constitutional court notes the following.
Article 46 of the h. (1), h. (2) and h. (3) Constitutions, Art. 17 of the Universal Declaration of Human Rights (3), and also Art. 1 of the Additional protocol to the European convention on human rights protection and fundamental freedoms (4) proclaim the right of private property and guarantee its protection. According to the specified regulations each physical person or legal entity has the right to freely use the property. Nobody can be deprived of the property differently as in case of the social necessity established by the law on condition of fair and preliminary compensation. Legally got property cannot be seized.
The principle of supremacy of the constitutional provisions concerning general legal regime of property as well as the principle of rule of the fundamental law enshrined in article 7 of the Constitution cannot affect the constitutional principle of irreversibility of the law. In this regard the Constitutional court emphasizes that the principle of rule of the Supreme law is not applicable to the law preceding the Constitution of 1994 based on violation, the instructions established by it as these instructions did not exist at the time of adoption of law - in this case the Law N 1225-XII.
Therefore, the constitutional principles about protection of property, deprivation of property in the conditions of the law and compensation of the caused damage caused by public authorities, the h enshrined in Art. 46. (1), h. (2) and h. (3), Art. 53 of the h. (1), Art. 54 of the h. (2) Constitutions, are not applicable to the circumstances of the period of political repressions connected with confiscation, nationalization or any different way of withdrawal from ownership of property.
The obligation of return of property and compensation of its cost by payment of compensations to persons which underwent to political repressions arises in that case when the state considers that it is capable to execute it. The Republic of Moldova set goal to liquidate effects of political repressions by recovery in the rights of persons which underwent to political repressions and compensations of the material damage caused to them. Acceptance on December 8, 1992 the Law N 1225-XII "About recovery of victims of political repressions" which provides return of the seized or nationalized property to rehabilitees, - political and moral will of Parliament, the highest representative and legislature of the country. This act materialized the universal principle which is not allowing deprivation of person of the property differently as in case of the social necessity established by the law and in the conditions provided by the law and the general principles of international law.
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