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Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of November 1, 2016 No. 30

About exceptional case of illegality of Article 19 of the h. (4) the Law No. 303 of December 13, 2013 on public service of water supply and the sewerage (transfer of public networks and installations of water supply) (the address No. 76g/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 Lyudmila Kikhay,

in view of the address provided and registered on June 23, 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 Art. 19 of the h formed the basis for consideration of the case. (4) the Law No. 303 of December 13, 2013 on public service of water supply and the sewerage, provided according to the petition of the judge of Appeal chamber Kakhul Vitaliye Movile within the case No. 05-2a-1487-25112015, considered by Appeal chamber Kakhul.

2. The address was brought into the Constitutional court on June 23, 2016 by judicial structure of Appeal chamber Kakhul on behalf of Vitaliye Movile, Evgeny Dvurechensky, Nina Veleva according to provisions of Art. 135 of the h. (1) the item and) and the item 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 the challenged provisions contradict Art. 46 of the h. (1), h. (2), h. (3) and Art. 54 of the Constitution.

4. Determination of the Constitutional court of July 8, 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, the Government and the Ministry of the environment.

6. In open plenary meeting the address was supported by the judge of Appeal chamber Kakhul Vitaliye Movile. The parliament was represented by Valeriu Kuchuk, the main consultant of general legal management of the Secretariat of Parliament. The representative of the Government did not take part in meeting of the Constitutional court.

Circumstances of the main dispute

7. Primar of the village of Kirsova, ATO Gagauzia, took a legal action on September 6, 2013 the area Comrat with the statement against OO "Bas-Kuu", having demanded to oblige society to transfer artesian well to the possession of primeriya.

8. The degree of jurisdiction granted on July 14, 2015 the application and OO "Bas-Kuu" obliged to fulfill the requirement about transfer of artesian well of balance of primeriya of the village of Kirsova.

9. OO "Bas-Kuu" appealed on August 13, 2015 the judgment of the area Comrat in appeal procedure, having demanded to cancel the decision, having noted that the first instance actually performed expropriation of property of OO "Bas-Kuu" for benefit of the state, at the same time did not determine how the primeriya of the village of Kirsova will refund financial expenses to OO "Bas-Kuu".

10. During appeal legal proceedings the judge Vitaliye Movile provided request about exceptional case of illegality of Art. 19 of the h. (4) the Law No. 303 of December 13, 2013 on public service of water supply and the sewerage.

11. Determination of April 12, 2016 Appeal chamber Kakhul suspended consideration of the case and sent the appeal about exceptional case of illegality to the Constitutional court for permission.

Applicable legislation

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

Article 46 Right of Private Property and its protection

"(1) the Right of private property, and also the debt obligations undertaken by the state are guaranteed.

(2) 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.

[…]".

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".

Article 127 Property

"(1) the State protects property.

(2) the State guarantees to the owner realization of the property right in all forms which are not conflicting to interests of society.

(3) the Public property belongs to the state or administrative and territorial units.

(4) All richness of subsoil, airspace, waters and the woods used in public concerns natural resources of economic zone and the continental shelf, means of communication, and also other riches determined by the law are objects of exclusively public property".

13. Applicable provisions of the Law No. 303 of December 13, 2013 on public service of water supply and the sewerage (M.O., 2014, No. 60-65, Art. 123):

Article 1 Law Purpose

"The purpose of this law is establishment of the legal base for creation, the organizations, managements, regulation and monitoring of functioning of public service of supply with drinking water, technological water, the sewerage and purification of waste household and industrial waters (further – public service of water supply and the sewerage) in the conditions of availability, availability on hand, reliability, continuity, competition and transparency, with observance of regulations of quality, safety and environmental protection".

Article 3 Public service of water supply and sewerage

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