In detail...

IN THE NAME OF THE PRIDNESTROVSKAIA MOLDAVSKAIA RESPUBLIKA

R E S O L U T I O N

on the case about the verification of constitutionality of subitem 1) Article 201, Part One Article 202, Parts One and Three Article 206 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences on the complaint of the citizen Gudza Oleg Efimovich

July 4th, 2006the City of Tiraspol


The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika comprising: the presiding Chairman of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika Grigoriev V.A., Judges - Garaga V.I., Kabaloev O.K., Karamanutsa V.I., Lyakhova M.I., Malskaya L.G.,
in the presence of the petitioner Gudza O. E. of the representative of the Supreme Council of the Pridnestrovskaia Moldavskaia Respublika in the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika - Head of Department of Committee of the Supreme Council of the Pridnestrovskaia Moldavskaia Respublika on legislation. Rights and freedoms of the citizens Tsyganash E.S.,
being guided by Article 87 (item 3) of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, Article 9 (subitem c) Part One), Article 27 (subitem 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 subitem 1) Article 201, Part One Article 202, Parts One and Three Article 206 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences with changes and additions made by Laws of the Pridnestrovskaia Moldavskaia Respublika from January 30th, 2003 No. 230 - -III, from February 25th, 2003 No. 246--III, from February 26th, 2003 No. 247--III, from March 27th, 2003 No. 255--III, from March 31st, 2003 No. 258--III, from May 7th, 2003 No. 272--III, from May 14th, 2003 No. 275--III, from July 1st, 2003 No. 301--III, from October 27th, 2003 No. 343--III, from December 9th, 2003 No. 371--III, from February 6th, 2004 No. 390--III, from April 21st, 2004 No. 407--III, from June 30th, 2004 No. 439--III, from July 6th, 2004 No. 440--III, from July 30th, 2004 No. 451--III, from October 5th, 2004 No. 475--III, from November 5th, 2004 490--III, from December 31th, 2004 No. 514--III, from March 18th, 2005 No. 548--III, from March 31st, 2005 No. 553--III, from May 31st, 2005 No. 574--III, from October 25th, 2005 No. 648--III, from October 25th, 2005 No. 651--III, from October 27th, 2005 No. 653--III, from October 27th, 2005 No. 654--III, from November 3rd, 2005 No. 658--III, from November 16th, 2005 No. 664--III, from November 17th, 2005 No. 666--III, from December 15th, 2005 No. 706--III, from December 21st, 2005 No. 711--III, from April 6th, 2006 No. 20--IV, from April 19th, 2006 No. 23--IV, from May 12th, 2006 No. 28--IV, from May 15th, 2006 No.31--IV.

The ground for consideration of the case has become the complaint of the citizen Gudza O.E. on the infringement of his constitutional right to property as a result of application of the specified norms. The ground for consideration of the case has become the uncertainty in the question on discrepancy of the disputed norms to the Constitution of the Pridnestrovskaia Moldavskaia Respublika.
Having heard the report of Judge - Speaker Karamanutsa V.I., the explanations of the sides, having examined the documents and other materials submitted, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika

established:


1. The citizen Gudza O.E. applied to the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika with the complaint about the verification of constitutionality of subitem 1) Article 201, Part One Article 202, Parts One and Three Article 206 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences. According to the complaint in July 12th, 2005 administrative board at Grigoriopol District State Administration has drawn the citizen Gudza O.E. to administrative responsibility as fine in the sum of 2600 rubles for infringement of requirements of Article 152-1 and Part One Article 152-3 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences.
In his complaint the petitioner specifies that by virtue of Article 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika no one can be deprived of his property otherwise on court decision..
According to the Order of formation of collegiate bodies authorized to consider cases about administrative offences (Article 203 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences), in interrelation with Article 78 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika it follows that administrative boards at District and City Administrations comprise the system of executive organs of the government of the Pridnestrovskaia Moldavskaia Respublika. Grounding on the above mentioned the petitioner considers that imposing in accordance with the disputed norms of administrative boards at District and City Administrations with the functions of realization of justice does not correspond to Article 6, items 2 and 3 Article 55, item 1 Article 80 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika.
The petitioner applies for consideration of the question about constitutionality of subitem 1) Article 201, Part One Article 202, Parts One and Three Article 206 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences giving the right to administrative boards at District and City Administrations to consider cases about administrative offences and to impose administrative penalties. In the essense the petitioner disputes constitutionality of the regulations of the above mentioned articles allocating administrative boards at District and City Administrations with the powers and to consider cases about administrative offences and to impose administrative penalties as fine.
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). In the Pridnestrovskaia Moldavskaia Respublika state, private and other patterns of ownership shall be admitted. All patterns of ownership at equal degree shall be protected by the state (Article 4 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 solely in the cases stipulated by the law, in the interests of the state security, public order, protection of morality, health care of the population, rights and freedoms of other persons (Part One Article 18 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika). The state shall guarantee each person the right to property. No one can be deprived of his property, otherwise on court decision (Parts One, Three Article 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika).
3. The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika according to item 3 Article 87 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, subitem c) Part One Article 9 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" considers complaints of the citizens on the infringement of rights and freedoms of a person and a citizen as a result of application of the law, statutory act. The right to appeal to the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika with the complaint on the infringement of constitutional rights and freedoms of a person and a citizen according to Article 102 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" shall have the citizens whose rights and freedoms are infringed by the law or statutory act applied or subjected to application in a concrete case. Thus, according to Article Two of the specified Article the complaint shall be enclosed with the copy of the original document confirming application or opportunity of application of the appealed law in the concrete case. Besides, according to Article 103 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" the complaint of the citizens on the infringement of rights and freedoms of a person and a citizen shall be admissible if a) the law infringes constitutional rights and freedoms of the citizens; b) the law has been applied or is subjected to application in the concrete case which consideration has been terminated or started in court or any other organ applying the law.
Accoding to the document submitted, the citizen Gudza O.E. has been drawn to administrative responsibility as fine for committing offences stipulated by Article 152-1 and Part One Article 152-3 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences by administrative board at Grigoriopol District State Administration on the ground of Part One Article 206 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences. However, according to the materials submitted, subitem 1) Article 201, Part One Article 202, Part Three Article 206 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences have not been applied in the case of the petitioner. Hence, in the sense of Article 87 (item 3) of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, and Articles 102, 103 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika", the given complaint regarding the verification of constitutionality of the above mentioned norms can not be recognized admissible and by virtue of requirements of Article 75 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" and in interrelation with subitem b) Part One Article 50 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" proccedings on the case shall be subjected to termination.
Thus, the subject for consideration of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika in the given case is the question about constitutionality of Part One Article 206 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences regarding the powers of administrative boards at District and City Administrations to impose administrative penalty as fine for committing offences stipulated by Article 152-1 and Part One Article 152-3 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences.
4. According to the Law of the Pridnestrovskaia Moldavskaia Respublika from May 12th, 2006 No. 28--IV " About Entry of Changes and Additions into the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences " part of the powers of administrative boards at District and City Administrations on consideration of the cases on administrative offences and attraction of guilty persons to administrative responsibility as fine have been terminated including of avoidance of tax and other compulsory payments (Article 152-1 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences), for infringement of the rules of organization and conducting of account (Article 152-3 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences). According to Part Two Article 50 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" in case the act whose constituionality is disputed has been cancelled or lost force by the beginning or during consideration of the case started by the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika the proceeding can be terminated except for the cases when the action of the act has infringed constitutional rights and freedoms of the citizens. Hence, the complaint of the citizen Gudza O.E. about the verification of constitutionality of subitem 1) Article 201, Part One Article 202, Parts One and Three Article 206 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences is subjected to consideration by the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika.
5. The question about constitutionality of the legal norms admitting imposing penalty sanctions on the citizens in extra judicial order has already been the subject of consideration by the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika. In Resolutions from April 6th, 2004 No. 03-/04, June 28th, 2005 No. 04-/05, April 25th, 2006 No. 07-/06, May 30th, 2006 No. 09-/06, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika has expressed the legal position about inadmissibility of imposing penalty sanctions of the citizens without court decisions as it results in deprivation of part of monetary means which is property. Moreover, Article 37 (Part Three of the Constitution of the Pridnestrovskaia Moldavskaia Respublika ) directly specifies that noone can be deprived of his property otherwise on court decision. Solely, the proprietor, his own discretion has the right to charge the property belonging to him (Part Two Article 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika ). The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika has come to the conclusion that imposing of administrative penalty as fine on behalf of organs of Internal Affairs, Organs of State Inspections and other organs (officials) authorized to do it by acts of legislation in the Pridnestrovskaia Moldavskaia Respublika is possible solely in case of recognizing by the offender of his guilt and his consent to pay fine voluntarily in the established order.
The conclusion of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika in the earlier decisions that imposing of administrative penalties as fine can be applied solely in court and is distributed on all the organs including administrative boards at District and City Administrations. In Resolution of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika from June 20th, 2006 No. 10-/06 on the case about the verification of constitutionality of Part One Article Article 206 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences on the complaints of the citizens Belinskiy O.V. and Vishnevetskaya S.V. the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika has come to the conclusion that as a result of application of Part One Article Article 206 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences regarding imposing administrative penalties as fines for committing administrative offences stipulated by Articles 152-1 and 152-12 of the above mentioned Code, there have been infringed the constitutional rights of the petitioners stipulated by Article 37 (Parts Two and Three) of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and as a result the disputed norm should be considered not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika. Hence, according to Part Two Article 93 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika " the disputed by the citizen Gudza O.E. Regulations of Part One Article 206 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences according to which administrative boards at District and City Administrations shall impose administrative penalties as fine as the similar regulations which have been recognized by the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika in decisions preserving force and cannot be applied by courts other organs and officials.
6. Measures stipulated by Part One Article 152-3 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences applied to the citizen Gudza O.E. for infringement of the rules of organization and conducting of account according to Part One Article 206 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences shall be the punishment for administrative offences. Therefore, in accordance with Article 238 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences at proceedings on the case about administrative offences shall be subjected to approvement the same as the fact of committing such offence and the degree of guilt of a person who has committed the offence. Objectively, the specified circumstances can be established solely by the independent competent state organs which are courts, allocated in accordance with the Constitution with the powers on realization of justice in the Pridnestrovskaia Moldavskaia Respublika under observance of special procedure.
On the ground of the above mentioned the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika comes to the conclusion that as a result of application of Part One Article 206 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences regarding imposing administrative penalties as fines for committing administrative offences stipulated by Part One Article 152-3 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences there have been infringed the constitutional rights of the petitioner, therefore, the disputed norm should be considered as not corresponding to Article 37 (Part Two and Three) of the Constitution of the Pridnestrovskaia Moldavskaia Respublika.
Grounding on the above mentioned and being guided by Article 2 and item 1 Article 88 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, Article 12, subitems b) and c) Part One Article 50, Article 75 Part Three, Article 78, Articles 79, 80, 83, 84, Part One Article 85, Articles 93, 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

established:


1. To terminate the proceeding on the case regarding the verification of constitutionality of subitem 1) Article 201, Part One Article 202, and Part Three Article 206 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences by virtue of absence of the documents confirming applications of the given norms to the petitioner therefore to admit the complaint of the citizen Gudza O.E. not corresponding to the critetion of admissibility.
2. To terminate the proceeding on the case regarding the verification of constitutionality of Part One Article 206 in interrelation with Article 152-1 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences are subjected to termination as on the given subject the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika has earlier made Resolution preserving force
3. To admit not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika its Article 37 (Part Two and Three) the regulation of Part One Article 206 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences regarding imposing administrative penalty as fine for committing offences stipulated by Part One Article 152-3 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences.
4. According to Part Two Article 106 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika " the case of the citizen Gudza Oleg Efimovich shall be subjected to reconsideration by the competent organs in the order established by the law as the decision made on the case is grounded on the law producing regulation on the statutory act, recognized not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika.
5. 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.
6. The given Resolution of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall be published in The Collection of Legislative Enactments of the Pridnestrovskaia Moldavskaia Respublika, in the newspaper Pridnestrovie and The Bulletin of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika.

The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika

11 / 06



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