RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of January 15, 2013 No. 1

About control of constitutionality of some provisions of Art. 60 of the h. (3) and h (3-1) Executive codes of the Republic of Moldova No. 443-XV of December 24, 2004 (the Address No. 27a/2012)

Name of the Republic of Moldova

Constitutional court in structure:

To Alexander TENASE, chairman, judge-speaker

Petra RAJLJAN,

To Dumitr PULBERE,

Victor PUSKAS,

Elena SAFALERU,

Valeria SHTERBETS, judges,

with the assistance of Lyudmila Kikhay, court session secretary,

in view of the address provided and registered on August 1, 2012

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

issues the following decree:

POINTS OF ORDER

1. The address of the deputy of Parliament Sergey Syrbu provided on August 1, 2012 based on Articles 135 of the h formed the basis for consideration of the case. (1) item a) Constitutions, 25 items g) Law on the Constitutional court and 38 h. (1) the item g) the Code of the constitutional jurisdiction, about control of constitutionality of syntagma "with the offer on voluntary execution of the executive document in 15-day time" from the h. (3) and provisions of h (3-1) Art. 60 of the Executive code of the Republic of Moldova No. 443-XV of December 24, 2004.

2. The author of the address believes, in particular, that provisions of the h. (3) the Art. 60, predostovlyayushchiye to the parties of enforcement proceeding possibility of voluntary execution of the executive document in 15-day time from the date of receipt of determination about excitement of enforcement proceeding, and also, provisions of h (3-1) same Articles, according to which "In case of refusal the debtor from voluntary execution of the executive document in time, specified in part (3), the legal executive continues enforcement proceeding, having directed to the parties the corresponding determination with appendix of the sheet of calculation of other expenses to it for execution and with mark that the expense amount which is subject to collection from the debtor is determined afterwards according to the law, and to the debtor the copy of the executive document which is also certified by the legal executive goes.", 120 Constitutions contradict Articles 1, of 20, of 46, of 114, of 115,.

3. Determination of the Constitutional court of October 4, 2012, without decision in essence, the address was acknowledged acceptable.

4. During consideration of the address, the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government and National union of legal executives.

5. The author of the address participated in open plenary meeting of the Constitutional court personally. The parliament was provided by the main consultant of legal management of the Secretariat of Parliament, Serdzhiu Kirike. From the Government his representative - Liliyan Apostol participated.

APPLICABLE LEGISLATION

6. Applicable provisions of the Constitution (M.O. No. 1/1, 1994 of):

Article 4 of the Human right and freedom

"(1) the Constitutional regulations on human rights and freedoms are interpreted and applied according to the Universal Declaration of Human Rights, pacts and other agreements, one of the parties of which is the Republic of Moldova.

(2) with discrepancies between pacts and agreements on fundamental human rights, one of the parties of which is the Republic of Moldova, and the internal laws the international standards have priority."

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 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.

[...]".

The article 120 Obligation of the sentences which took legal effect and other judgments

"Observance of the sentences which took legal effect and other judgments, and also assistance to courts during legal procedure, performed by the sentences which took legal effect and other judgments are obligatory."

7. Applicable provisions of the Code of civil procedure of the Republic of Moldova No. 225-XV of May 30, 2003 (M.O. 2003, Art. No. 111-115, 451):

Article 16 Obligation of Court Resolutions

"(1) the Final decisions, determinations and resolutions of degrees of jurisdiction, and also orders, requirements, orders, the agenda, other legal appeals of degree of jurisdiction are obligatory for all bodies of the public power, public associations, officials, the organizations and physical persons and is subject to strict execution in all territory of the Republic of Moldova.

(2) Unreasonable non-execution of court resolutions, orders, requirements, orders, agenda, other legal addresses, as well as disrespect for court attract the responsibility provided by this code and other laws.

(4) in the territory of the Republic of Moldova decisions, orders and appeals of foreign degrees of jurisdiction, international arbitrations are performed according to this code, international treaties, one of the parties of which is the Republic of Moldova, and also on the basis of the principle of reciprocity."

8. Applicable provisions of the Executive code of the Republic of Moldova No. 443-XV of December 24, 2004 (переопубликован in M.O. 2010, Art. No. 214-220, 704):

Article 60 Excitement of Enforcement Proceeding

"(1) the Enforcement proceeding is initiated according to the statement of the claimant or, in the cases provided by this code, - on representation to degree of jurisdiction with presentation of the executive document by it to execution.

(2) the Claimant has the right to show the executive document to any legal executive according to provisions of article 30 of this Code.

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