Name of the Republic of Moldova
of November 17, 2016 No. 33
About exceptional case of illegality of some provisions of the Civil code and Code of civil procedure of the Republic of Moldova (the right and freedom of persons with mental disturbances) (addresses No. 49a/56a/63g/90g/2016)
Constitutional court in structure:
To Alexander Tenase, chairman,
Auryl to Beesh,
Victor of Pop,
Vyacheslav Zaporozhan, judges,
with the assistance of the secretary of meeting Sorin to Muntyan,
in view of the addresses provided and registered on April 25, 2016, on May 5, 2016, on May 24, 2016 and on July 26, 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
1. The addresses brought into the Constitutional court on April 25, 2016 and on May 5, 2016 by the national lawyer Mikhail Kotorobayem and deputies of Parliament Tudor Deliu, Octavian Grama and Grigory Kobzak based on Art. 135 of the h formed the basis for consideration of the case. (1) item and) Constitutions, Art. 25 of the item i) and item g) Law on the Constitutional court, Art. 38 of the h. (1) the item i) and the item g) and Art. 39 of the Code of the constitutional jurisdiction, and also the address about exceptional case of illegality declared by the lawyer to Dumitr Slyusarenko in No. 2-358/2016, being in production the vessels Rubber, and Lília Popovic, party to the case No. 2-931/2016, being in production of court of the sector to Chentr мун. Chisinau.
2. Addresses were brought into the Constitutional court on May 24, 2016 by Andrey Balan, the judge the vessels Rubber, and on July 26, 2016 Victor Sandu, the judge of court of the sector to Chentr мун. Chisinau, 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. Based on Art. 20 in combination to Art. 16 of the h. (2) and Art. 54 of the h. (1) and h. (3) the Constitution the national lawyer demanded control of constitutionality of following provisions of the Code of civil procedure:
a) in the h. (2) Art. 57 – offers "The legal proceedings made by legally incompetent person are invalid";
b) in the h. (2) Art. 58 – syntagmas "or persons recognized restrictedly capable";
c) in h (2-1) Art. 58 – syntagmas "or persons, acknowledged incapacitated";
d) in the h. (6) Art. 58 – syntagmas "and also persons recognized incapacitated in the procedure established by the law";
e) Art. 169 of the h. (1) the item е) – "does not have legal capacity of the claimant and/or defendant, except as specified, provided by part (2) Article 59";
f) Art. 170 of the h. (1) the item c) – "the application is submitted by incapacitated person";
g) Art. 267 of the item b) – "the application is submitted by incapacitated person";
h) in the h. (2) Art. 306 – offers "The question of challenge of person is considered in each case separately depending on state of his health".
4. Deputies of Parliament Tudor Deliu, Octavian Grama and Grigory Kobzak addressed with the requirement about monitoring procedure of constitutionality of Art. 24 of the Civil code regulating procedure for recognition of physical person incapacitated and guardianship establishments regarding its compliance to Articles 4, of 16, of 20, of 25, of 27, of 28, of 38, 46 and 54 Constitutions.
5. To Advocaat to Dumitr Slyusarenko addressed with the requirement about control of constitutionality of Articles 57 of the h. (2), 58 h (2-1), 170 h. (1) item c), 267 items b), 306 h. (1) and 308 h. (2) the Code of civil procedure regarding their compliance to Articles 4, 7, 8, 16, 20 both 54 Constitutions and to the international treaties in this area ratified by the Republic of Moldova.
6. Lília Popovic, the party in the civil case No. 2-931/2016, which is in production of court of the sector to Chentr мун. Chisinau, addressed with the requirement about control of constitutionality of Art. 24 of the Civil code regarding its compliance to Articles 4, of 16, of 20, of 25, of 27, of 28, of 38, 46 and 54 Constitutions.
7. Determination of the Constitutional court of April 29, 2016, without decision in essence, the address No. 49a/2016 was acknowledged acceptable. Of June 14, 2016 addresses No. 56a/2016 and No. 63g/2016 were recognized as determination of the Constitutional court acceptable. Determination of the Constitutional court of September 6, 2016, without decision in essence, the address No. 90g/2016 also was acknowledged acceptable.
8. Considering identity of subject, the Constitutional court decided to combine addresses to one production based on Art. 43 of the Code of the constitutional jurisdiction.
9. During consideration of the address the Constitutional court requested opinion of the President of the Republic of Moldova, Parliament, the Government, the Highest trial chamber, UN Bureau in the Republic of Moldova, and also public organizations – "Institute on human rights in Moldova" (further – "IDOM"), "The center of promotion of the rights of persons mentally challenged" (further – "MDAC"), "Alliance of the organizations for persons with limited opportunities" (further – "AOPD") and "The center of legal aid for persons with limited opportunities" (further – "CAJPD").
10. At open plenary meeting of the national lawyer Olga Vakarchuk, the secretary general of bureau of the national lawyer represented. Deputies of Parliament Tudor Deliu, Octavian Grama and Grigory Kobzak represented Petra Moskalyuk. The address No. 63g/2016 the lawyer supported Dumitra Slyusarenko.
11. The government was represented by Eduard Serbenko, the deputy minister of justice, and Andrey Shvets, the chief of legal management of the Ministry of Health. The parliament was represented by Valeriu Kuchuk, the main consultant in the head legal department of the secretariat of Parliament.
Circumstances of the main disputes
1. Circumstances of civil case No. 2-358/2016
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