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In detail...

IN THE NAME OF THE PRIDNESTROVSKAIA MOLDAVSKAIA RESPUBLIKA

R E S O L U T I O N

în the case about the verification of constitutionality of item 1 Article 218 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika on the complaint of the citizen Kopanev Vladimir Tikhonovich

May 16th, 2006the City of Tiraspol

The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika comprising: the presiding – Chairman of the Constitutional Court Grigoriev V.A., Judges – Garaga V.I., Kabaloev O.K., Karamanutsa V.I., Lyakhova M.I., Malskaya L.G., in the presence of Kopanev V.T. and his representative Kozlenkov D.S., Plenipotentiary of the Supreme Council of the Pridnestrovskaia Moldavskaia Respublika in the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika – Head of department of legal support of bills of the Staff of the Supreme Council of the Pridnestrovskaia Moldavskaia Respublika Melnik M.B., representative of the Supreme Council of the Pridnestrovskaia Moldavskaia Respublika in the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika – Deputy Chairman of the Committee of Supreme Council of the Pridnestrovskaia Moldavskaia Respublika on legislation, rights and freedoms of the citizens Rybyak L.M., being guided by Article 87 (item 3) of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, Article* 9 (item c) Part One), Article 27(item c) Part One), Articles 102, 103 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" considered in the open session the case about the verification of constitutionality of item 1 Article 218 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika from July 17th, 2002 No. 156-Ç-III, working with changes and additions made by Laws of the Pridnestrovskaia Moldavskaia Respublika from February 21st, 2003 No. 245-ÇÄ-III, from March 20th, 2003 No. 252-ÇČÄ-III, from June 20th, 2003 No. 291-ÇČÄ-III, from September 26th, 2003 No. 331-ÇČÄ-III, from August 4th, 2005 No. 613-ÇČÄ-III, from August 4th, 2005 No. 615-ÇČÄ-III, from October 25th, 2005 No. 651-ÇČÄ-III, from October 25th, 2005 No. 648-ÇČÄ-III.

The ground for consideration of the case has become the complaint of the citizen Kopanev V.T. on the infringement of his constitutional right to remedy, as a result of application of item 1 Article 218 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika. The ground for consideration of the case has become the uncertainty of the question about correspondence of the disputed norm to the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

Having heard the report of Judge – Speaker Garaga V.I., explanations of the sides and their representatives, having examined the documents and other materials submitted, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika

established:

1. The citizen Kopanev V.T. on November 15th, 2005 in accordance with item 3 Article 87 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and item c) Part One Article 9 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" applied to the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika with the complaint on the infringement of his constitutional right to remedy, arisen as a result of application of item 1 Article 218 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika.

In the complaint the petitioner specifies, that on November 25th, 2004 he applied to the Tiraspol City Court in accordance with the requirements of Chapter 24 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika with the complaint to actions of the official expressed in resolution about his attraction to the administrative responsibility. On August 11th, 2005 the Tiraspol City Court terminated the proceedings on the case. Thus the court has applied the norm of item 1 Article 218 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika, providing, that the court terminates the case if the case is not subjected to consideration in courts. By definition of Judicial Board on the civil cases the Supreme Court of the Pridnestrovskaia Moldavskaia Respublika from September 8th, 2005 the specified definition of the Tiraspol City Court has been left without change, and the individual complaint has been left without satisfaction.

In the opinion of the citizen Kopanev V.T., the norm of item 1 Article 218 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika infringes his constitutional right to remedy, stipulated by Article 46 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and contradicts Articles 2, 46 and 54 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika as it gives the court the right to leave from removal of the final court act on the arisen dispute within the framework of the civil proceeding.

Grounding on the above-mentioned, the petitioner applies to consider the question about constitutionality of item 1 Article 218 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika and to admit the specified norm not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

2. The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika, considering the given question, grounds on the fact that the Constitution of the Pridnestrovskaia Moldavskaia Respublika shall have the supreme legal force and the direct action (Article 2 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika). The person, his rights and freedoms shall be the supreme value of the society and the state (Part One Article 16 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika). Restriction of rights and freedoms of a person and a citizen shall be admitted only in the cases stipulated by the law, for the interests of state security, public order, morality, health care of the population, rights and freedoms of other persons (Article 18 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika). Each person shall be guaranteed judicial protection of rights and freedoms, the right to appeal in court illegal decisions and actions of state organs, officials, public associations (Article 46 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika).

3. According to Article 46 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika each person shall be guaranteed judicial protection of rights and freedoms, the right to appeal in court illegal decisions and actions of state organs, officials, public associations. The right of the citizens to remedy relates to the rights which by virtue of Article 54 (Part Three item 1) of the Constitution of the Pridnestrovskaia Moldavskaia Respublika shall not be subjected to restriction. Thus, the right to remedy relates to conventional principles and norms of the international law. In accordance with Article 8 of the General Declaration on Human Rights each person shall have the right to effective restoration in rights by the competent national courts in case of infringement of his fundamental rights given to him by the Constitution and the law. The International Pact on Civil and Political Rights stipulates, that each person shall have the right at determining his rights and duties to fair and public trial of the competent, independent and impartial court created on the basis of the law (Article 14). And in accordance with Article 10 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika the conventional principles and norms of international law shall be the integral part of the legal system. Thus, the right to appeal in court illegal decisions and actions of state organs, officials, public associations shall be one of the major guarantees of observance of rights and freedoms of a person and a citizen in the lawful state.

The disputed by the petitioner item 1 Article 218 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika establishes the rule according to which the court shall terminate proceedings on the case if the case is not subjected for consideration in courts.

In accordance with Articles 80, 102, 103 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika on the complaints of the citizens shall verify constitutionality of the statutory act or of the separate regulations only regarding the part they have been applied in the case of the petitioner, and shall adopt the resolution on the subject specified in the petition, estimating thus both the textual sense of the disputed regulations, and the sense supplied to them by the developed legal proceedings, and also proceeding from their place in the system of legal norms. Thus, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika at making-decision shall not be connected by grounds and reasons specified in the petition.

Hence, the subject of consideration on the given case is the regulation of item 1 Article 218 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika regarding the part it shall be applied by courts of general jurisdiction for termination of proceedings on cases considered in the order, stipulated by Chapter 24 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika.

The feature of consideration of the civil cases in connection with complaints of actions of administrative organs and officials is that the court considers, first of all, the resolution about imposing the official penalty, removed by the corresponding administrative organ or official. Canceling the corresponding resolution in the established order, an administrative organ or an official terminates action of the specified act. Legal acts, which action has been terminated, shall not be the ground for consideration of civil rights and duties and, hence, cannot entail any infringements of rights and freedoms of the citizens protected by the law. Such acts cannot be the subject of direct court appeal. Therefore, if in the process of consideration of the civil case on the complaint of actions of administrative organs and officials the legal act by which the official penalty has been imposed, is cancelled by the competent organ, the proceedings on the case shall be terminated on the ground stipulated by item 1 Article 218 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika.

The legislative stipulation of the ground for termination of the proceedings on the case, stipulated by item 1 Article 218 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika with the formulation "if the case is not subjected to consideration in courts", does not contradict the proclaimed in Article 46 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika the right of each person to judicial protection of his rights and freedoms and the right to appeal in court illegal decisions and actions of state organs, officials, public associations.

Taking into account the above-mentioned, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika comes to the conclusion, that from the sense of the disputed norm there does not proceed any infringement of the right to remedy. Hence, the given norm cannot be admitted contradicting the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

Being guided by Article 2 and item 1 Article 88 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, Article 12, item c) Part One Article 27, Parts One, Two, Four and Five Article 78, Articles 79, 80, 84, 85, 106 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika", the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika

decided:

1. To admit corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika regulation of item 1 Article 218 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika.

2. The given Resolution of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall be final, shall not be subjected to appeal and shall come into force in no event after its declaration.

3. The given Resolution of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall be final, shall not be subjected to appeal and shall come into force in no event after its declaration.

The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika

No. 08 – Ď / 06



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