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Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of October 28, 2016 No. 29

About exceptional case of illegality of some provisions of the item 34 of appendix No. 3 to the Order of the Government No. 360 of June 25, 1996 about the state control of quality in construction (competence of the Government on establishment of sanctions) (Addresses No. 73g/2016 and 125g/2016)

Constitutional court in structure:

To Alexander Tenase, chairman,

Auryl to Beesh,

Igor Dolya,

Tudor Pantsyru,

Victor of Pop,

Vyacheslav Zaporozhan, judges,

with the assistance of the secretary of meeting Alena Balaban,

in view of the addresses provided and registered on June 20, 2016 and on October 24, 2016

having considered the specified addresses at open plenary meeting, considering acts and case papers,

having carried out discussion in the consultative room,

issues the following decree:

Points of order

2. Addresses were brought into the Constitutional court on June 20, 2016 and on October 24, 2016 by the expanded board on civil, commercial and administrative cases of the Highest trial chamber and the judge of court of the sector Ryshkan мун. Chisinau Vitaly Chumak 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. Authors of the address consider that provisions of the first and third paragraphs of the item 34 of appendix No. 3 to the Order of the Government No. 360 of June 25, 1996 according to which the State inspectorate in construction has the right to inflict sanctions contradict the Art. 6, of Art. 46 of the h. (4), Art. 72 of the h. (3) item r) and Art. 102 of the h. (2) Constitutions.

4. Determination of the Constitutional court of July 8, 2016, without decision in essence, the address No. 73g/2016 was acknowledged acceptable. Based on item 25 of the Regulations on procedure for consideration of the addresses brought into the Constitutional court, on October 28, 2016 the Constitutional court combined permission of question of the address No. 125g/2016 acceptability with consideration it in essence.

5. Considering identity of object, based on Art. 43 of the Code of the constitutional jurisdiction, the Constitutional court combined addresses to one production.

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

7. In open plenary meeting the address provided to Apartament Consulting LLC was supported by Veniamin Nashivan, the representative of the Apartament & Consulting LLC company. The parliament was represented by Valeriu Kuchuk, the main consultant of general legal management of the secretariat of Parliament. From the Government there was deputy chief of legal management of the Ministry of Regional Development and Construction Igor Viera.

Circumstances of the main disputes

1. Circumstances of civil case No. 3ra-580/16

8. The decision of July 21, 2014 the chief of the State inspection in construction applied economic sanctions in the relation TO "Dami Grup" of Ltd company, levying in the government budget income gained illegally as a result of overestimate of amounts and property development costs in the children's Viisoara camp of the area Aneny Noy and collecting penalty in the same size.

9. Without having agreed with this decision, on July 29, 2014 TO "Dami Grup" of Ltd company submitted claim to administrative court against the State inspection in construction.

10. Court of the sector Ryshkan мун. Chisinau partially satisfied on May 25, 2015 the claim, cancelled the decision of July 21, 2014 on application of economic sanctions and rejected as unreasonable requirements about cancellation of the control acts which are taken out on May 12, 2014 by the State inspection in construction.

11. The state inspection in construction appealed on June 24, 2015 this decision. The appeal chamber Chisinau the decision of November 25, 2015 rejected the claim of the State inspection in construction and left the decision of the first instance without changes.

12. The state inspection in construction

On February 15, 2016 made the writ of appeal about the decision of Appeal chamber Chisinau.

14. The expanded board on civil, commercial and administrative cases of the Highest trial chamber the conclusion of June 8, 2016 suspended proceeedings and brought the address about exceptional case of illegality into the Constitutional court for permission.

2. Circumstances of civil case No. 3-704/16

15. The chief of the State inspection in construction passed on September 14, 2015 the decision on application of economic sanctions concerning Apartament Consulting LLC. In the decision collection was provided in the government budget of income gained illegally as a result of overestimate of amounts and cost of the repair work which is carried out in bacteriological laboratory of health service of the Ministry of Internal Affairs and recovery of penalty in the same size.

16. Apartament Consulting LLC, without having agreed with the decision made on December 17, 2015 filed a lawsuit administratively sectors Ryshkan мун. Chisinau the statement against the State inspection in construction.

17. Referring to violation of provisions of Art. 46 of the h. (4), Art. 72 of the h. (3) item r) and Art. 102 of the h. (2) Constitutions, the representative of Apartament Consulting LLC made on October 4, 2016 inquiry about exceptional case of illegality of the first and third paragraphs of the item 34 of appendix No. 3 to the Order of the Government No. 360 of June 25, 1996 about the state control of quality in construction.

18. The conclusion from the same number the degree of jurisdiction suspended proceeedings and brought the address about exceptional case of illegality into the Constitutional court for permission.

Applicable legislation

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

The article 60 Parliament – the highest representative and legislature

"(1) the Parliament is the supreme representative body of the people of the Republic of Moldova and the single legislature of the state.

[…]".

Article 72 Types of the laws

"(1) the Parliament adopts the constitutional, organic and ordinary laws.

(2) the Constitutional laws are the laws on review of the Constitution.

(3) are regulated by the Organic law:

[…]

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