Name of the Republic of Moldova

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of December 18, 2012 No. 19

About control of constitutionality of some provisions of Art. 18 of the Law No. 113 of June 17, 2010 on legal executives (the Address No. 34a/2012)

Constitutional court in structure:

To Alexander Tenase, chairman, judge-speaker,

Petra Reiljan,

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 October 16, 2012

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

issues the following decree:

Points of order

1. The address of the deputy of Parliament Sergey Syrbu provided on October 16, 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 some provisions of article 18 of the Law No. 113 of June 17, 2010 on legal executives.

2. The author of the address considers, in particular, that provisions of Article 18 of the h. (1) the items-1) from the law providing in quality of the basis for suspension of operations of the legal executive "gross violation of the legislation - before imposing of authority punishment", and provisions of the h. (51) the same Article, according to which "In case, stipulated in Item-1) from part (1), activities of the legal executive stop based on the order of the Minister of Justice published on the initiative.", 46 and 54 Constitutions contradict Articles 21, of 26,.

3. Determination of the Constitutional court of October 18, 2012, without decision in essence, the address was acknowledged acceptable.

4. On November 14, 2012 to the address additional arguments were provided.

5. 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.

6. 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. The government was provided by the deputy minister of justice Vladimir to Groce.

Applicable legislation

7. 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 23 Right of Each Person to Knowledge of the Rights and Obligations

"[...] (2) the State provides the right of each person to knowledge of the rights and obligations. For this purpose the state publishes all laws and other regulations and provides their availability."

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."

8. Applicable provisions of the Law No. 113 of June 17, 2010 on legal executives (M.O. 2010, Art. No. 126-128, 406):

Article 2 Activities of the Legal Executive

"(1) Legal executive is the physical person authorized by the state to perform the activities in public concerns provided by this law and other laws. In case of execution of the service duties the legal executive is the representative of the government. Only the licensed legal executive given authority according to this law can perform forced execution. [...]"

Article 18 Suspension of Operations of the Legal Executive and Effect of Suspension

"(1) Activities of the legal executive stop in case:

[...]

-1) from gross violation of the legislation - before imposing of authority punishment;

[...]

(5-1) in case of, stipulated in Item-1) from part (1), activities of the legal executive stop based on the order of the Minister of Justice published on the initiative. [...]".

Article 21 Disciplinary responsibility

"(1) the Legal executive bears disciplinary responsibility for violation of professional obligations. Disciplinary violations are considered by Disciplinary board.

(2) the Legal executive is brought to disciplinary responsibility for the actions or failure to act contradicting requirements of the law such as:

a) non-compliance with professional secrecy;

b) violation of incompatibility of activities, stipulated in Clause 5;

b-1) gross violation of the legislation;

c) making of the acts causing damage of honor, professional faultlessness or respectability;

d) systematic delay and negligence in making of the actions connected with enforcement proceeding;

e) intentional refusal to make executive actions, entailed violation of the rights of the parties of enforcement proceeding;

f) violation of the Code of professional ethics;

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