RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of January 19, 2010 No. 1

About approval of the Report on implementation of the constitutional jurisdiction in 2009

Name of the Republic of Moldova

Constitutional court in structure:

To Dumitr PULBERE - the chairman, the judge-speaker

Alina YANUCHENKO is judge

Victor PUSKAS is judge

Petra RAJLJAN - the judge

Elena SAFALERU is judge

the secretary of meeting - Victoria Botnaryuk-Trelya, with the assistance of the head of the secretariat Maya Beneresku, based on Art. 10 of the Law on the Constitutional court, Art. 5 of the item i) and Art. 80 of the Code of the constitutional jurisdiction the Report on implementation of the constitutional jurisdiction in 2009 considered in plenary meeting.

Being guided by provisions of Art. 26 of the Law on the Constitutional court, Art. 61 of the h. (1) and Art. 62 of the item f) the Code of the constitutional jurisdiction, the Constitutional court DECIDES:

1. Approve the Report on implementation of the constitutional jurisdiction in 2009.

2. The resolution and the report are published in "Monitorul Oficial al Republicii Moldova" and go to Parliament of the Republic of Moldova, the acting president of the Republic of Moldova, the Government of the Republic of Moldova and the Supreme council of magistracy.

Approved by the Resolution of the Constitutional court of January 19, 2010, No. 1

The report on implementation of the constitutional jurisdiction in 2009 provided based on Art. 80 of the Code of the constitutional jurisdiction

I. STATISTICAL DATA OF IMPLEMENTATION OF THE CONSTITUTIONAL JURISDICTION IN 2009

In 2009 in the Constitutional court 30 addresses from which 17 - about control of constitutionality of provisions of some legal acts (6 laws, 8 resolutions of Parliament, 25 orders of the Government, 2 presidential decrees of the Republic of Moldova) arrived; 6 - about interpretation of the Constitution; 6 were provided according to Art. 38 of the h. (2) and (3) the Code of the constitutional jurisdiction and one - about recognition valid the mandate of the deputy of Parliament.

From arrived in 2008 6 addresses are considered: about control of constitutionality of five laws and one order of the Government.

From the addresses considered by the Constitutional court 19 deputies of Parliament and parliamentary fractions, on one - the Chairman of the parliament about ascertaining of the circumstances justifying temporary fulfillment of duties of the President of the Republic of Moldova provided; The President of the Republic of Moldova about ascertaining of the circumstances justifying dissolution of Parliament of the XVII convocation and the acting president of the Republic of Moldova; 2 - parliamentary lawyers, the Highest trial chamber provided 2 addresses about exceptional cases of illegality of regulations and one address - on own initiative.

The Central Election Commission directed 2 representations: about confirmation of conformity of elections of Parliament of the Republic of Moldova of April 5, 2009 to the law and on confirmation of conformity of early elections of Parliament of the Republic of Moldova of July 29, 2009 to the law. The Christian-Democratic People's Party provided the address about carrying out repeated counting of votes, given at parliamentary elections of July 29, 2009. From Central Election Commission one representation - about recognition of the reserve candidate by the deputy of Parliament arrived.

For the last year 6 resolutions on control of constitutionality of regulations were accepted. Were subjected to control of constitutionality of 6 regulations from which 4 laws and 2 orders of the Government are acknowledged constitutional (fully or partially).

The constitutional court accepted the resolution on review of the Conclusion No. 4 of December 26, 2000 "About ascertaining of the circumstances justifying dissolution of Parliament"; one resolution on interpretation of the Constitution; 2 resolutions on recognition valid mandates of the elected deputies of Parliament of the Republic of Moldova and one resolution - about recognition of the reserve candidate by the elected deputy of Parliament. The constitutional court passed 8 decisions on the questions which are within the competence.

The constitutional court accepted 4 conclusions: 2 about confirmation of conformity of elections of Parliament of the Republic of Moldova to the law; one - about ascertaining of the circumstances justifying dissolution of Parliament, and one ascertaining of the circumstances justifying temporary fulfillment of duties of the President of the Republic of Moldova.

Production on 3 cases was stopped: in two cases in connection with ascertaining of equality of votes in case of adoption of the act the Constitutional court and in one case in connection with permission of exceptional case of illegality of the disputed regulation.

Were not accepted to consideration on the merits of 13 addresses as not conforming to requirements of Art. 39 of the Code of the constitutional jurisdiction.

According to the passed decisions 6 special opinions are stated.

As of January 1, 2010, there were unconsidered 4 addresses.

 
                  1.1. Ст.135 ч.(1) п.а) Конституции
   (Контроль конституционности законов и постановлений Парламента)

     17 марта 2009 года Конституционный суд  признал  конституционными
положения  ч.(1)  ст.326  Уголовно-процессуального  кодекса Республики
Молдова (Постановление №5(1).
     ________________________________
     1 М.О. №62-64/4 от 27.03.2009 г.
 

The author of the address claimed that provisions of the h. (1) Art. 326 of the Code of Criminal Procedure violate the defendant's right to protection, and specified the h their contradiction. (2) Art. 325 of the Code of Criminal Procedure according to which change of accusation in degree of jurisdiction is allowed if it the provision of the defendant does not worsen and is not violated its right of defense. According to the author of the address, the specified provisions are unconstitutional and due to the lack of access for the defendant to the double level of jurisdiction in case the prosecutor changes accusation in appellate instance as in cassation instance review of the actual circumstances is impossible.

In the resolution the Constitutional court gave provision of the Concept of judicial and legal reform in the Republic of Moldova that "such moments as are excluded from the criminal procedure legislation... the direction court of cases on additional investigation" that, finally, led to change of the penal legislation and provision to the prosecutor of the right to change the charge brought to the defendant on heavier by consideration of criminal case in the first instance and in appellate instance.

The constitutional court counted inadmissible practice of presentation of new unreasonable counts during consideration of criminal case, but recognized also inadmissible situation when the representative of crown case who found new circumstances of guilt during criminal procedure cannot use legal levers to the correct and fair assessment of the acts made by the person accused.

The constitutional court noted that provisions of the h. (1) Art. 326 of the Code of penal procedure do not violate the defendant's rights to protection and fair process, enshrined in Art. 20 and Art. 26 of the Constitution.

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