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Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of July 22, 2016 No. 22

About exceptional case of illegality of some provisions of appendix to the Law No. 793 of February 10, 2000 on administrative court (access to justice of the chief of territorial bureau of the State office and his deputy) (the Address No. 69g/2016)

Constitutional court in structure:

To Alexander Tenase, chairman,

Auryl to Beesh,

Igor Dolya,

Victor of Pop,

Vyacheslav Zaporozhan, judges,

with the assistance of the secretary of meeting Anna Floryan,

in view of the address provided and registered on June 9, 2016

having considered the specified address in open plenary meeting, considering acts and case papers,

having carried out discussion in the consultative room,

issues the following decree.

Points of order

1. The address about exceptional case of illegality of syntagma "and his deputy", provided in item 15 of Appendix to the Law No. 793 of February 10, 2000 on administrative court, declared by the lawyer Valery Stenesku in No. 3-74/15, Chimishliya who is in production of court formed the basis for consideration of the case.

2. The address was brought into the Constitutional court on June 9, 2016 by the judge of court Chimishliya Zinaida Arame, according to provisions of Art. 135 of the h. (1) the item and) and g) Constitutions, in the light of its interpretation by the Resolution of the Constitutional court No. 2 of February 9, 2016, and also Regulations on procedure for consideration of the addresses brought into the Constitutional court.

3. The author of the address in effect considers that item 15 of Appendix to the Law on administrative court which includes the deputy chief of territorial bureau of the State office in the list of persons which are not falling under the appeal to administrative court contradicts Articles 1 of the h. (3), 20 and 54 Constitutions.

4. Determination of the Constitutional court of June 14, 2016 without decision in essence the address was acknowledged acceptable.

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

6. In open plenary meeting the address was supported by the lawyer Valeriu Stenesku. The parliament was represented by Eduard Serbenko, the deputy minister of justice, and Natalia Petku, the main consultant in Head department the politician of decentralization and local authority of the State office. The representative of Parliament did not participate in meeting.

Circumstances of the main dispute

7. The deputy secretary general of the State office issued on October 13, 2015 the Order No. 146-r which he dismissed Gargaun Mikhail of the deputy chief of territorial bureau of Hynchesht of the State office.

8. Gargaun Mikhail took a legal action on December 3, 2015 Chimishliya with the administrative claim to the State office with the requirement to repeal the order on dismissal, to reinstate as it, to pay it compensation for the period of forced absence from work and to indemnify moral damage.

9. During legal proceedings the representative of the State office demanded suit abatement of Gargaun Mikhail based on Art. 4 of the item and) and item 15 of Appendix to the Law on administrative court and Art. 265 of the item and) the Code of civil procedure, motivating with incompetence of this case.

10. In meeting of January 21, 2016 the lawyer Valeriu Stenesku declared exceptional case of illegality of syntagma "and his deputy" item 15 of Appendix to the Law No. 793 of February 10, 2000 on administrative court and appealed with the petition for the direction of case to the Constitutional court.

11. Proceeedings were stopped by determination of court of Chimishliya of February 18, 2016.

12. The lawyer Valeriu Stenesku appealed on February 22, 2016 in cassation procedure determination about suit abatement of February 18, 2016, referring to the fact that the Trial Court shall express first of all concerning its petition for exceptional case of illegality.

13. The appeal chamber Chisinau satisfied on April 12, 2016 the writ of appeal, cancelled determination of Trial Court and returned case on new trial.

14. Chimishliya's court passed on May 24, 2016 the decision on the direction of the address to the Constitutional court for permission.

Applicable legislation

15. Applicable provisions of the Constitution (repeated publication in M.O., 2016, No. 78, the Art. 140):

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".

16. Applicable provisions of the Law No. 793-XIV of 10.02.2000 on administrative court (repeated publication in M.O., special release of October 3, 2006):

Article 3. Subject of the claim in administrative court

"(1) Subject of the claim in administrative court are the administrative acts of normative and individual nature infringing any legitimate right of person, including the third party, published:

a) bodies of the public power and other bodies equated to them by this law;

b) divisions of bodies of the public power;

c) employees of the bodies provided by Items and) and b).

[...]".

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