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 Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences on the complaints of the citizens Puzyryuk Raisa Alekseevna, Lobacheva Ekaterina Georgievna, Kolosova Oksana Fedorovna

October 24, 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 the representatives of the petitioners Kozlenkov D.S., Shcherbatiy V.S., Frunza A.G., of the Plenipotentiary of the Supreme Soviet 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 Soviet of the Pridnestrovskaia Moldavskaia Respublika Melnik .B., the representative of the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika in the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika - Deputy Chairman of the Committee of the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika on legislation, rights and freedoms of the citizens Kolbasyuk E.A.,

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 Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences come into force by the Law of the Pridnestrovskaia Moldavskaia Respublika from July 19, 2002 No. 153--III, working with changes and additions brought by the Laws of the Pridnestrovskaia Moldavskaia Respublika from January 30, 2003 No. 230 - -III, from February 25, 2003 No. 246--III, from February 26, 2003 No. 247--III, from March 27, 2003 No. 255--III, from March 31, 2003 No. 258--III, from May 7, 2003 No. 272--III, from May 14, 2003 No. 275--III, from July 1, 2003 No. 301--III, from October 27, 2003 No. 343--III, from December 9, 2003 No. 371--III, from February 6, 2004 No. 390--III, from April 21, 2004 No. 407--III, from June 30, 2004 No. 439--III, from July 6, 2004 No. 440--III, from July 30, 2004 No. 451--III, from October 5, 2004 No. 475--III, from November 5, 2004 No. 490--III, from December 31, 2004 No. 514--III, from March 18, 2005 No. 553--III, from May 31, 2005 No. 574--III, from October 25, 2005 No. 648--III, from October 25, 2005 No. 651--III, from October 27, 2005 No. 653--III, from October 27 2005 No. 654--III, from November 3, 2005 No. 658--III, from November 16, 2005 No. 664--III, from November 17, 2005 No. 666--III, from December 15, 2005 No. 706--III, from December 21, 2005 No. 711--III, from April 6, 2006 No. 20--IV, from April 19, 2006 No. 23--IV, from May 12, 2006 No. 28--IV, from May 15, 2006 No. 31--IV, from June 19, 2006 No. 47--IV, from July 26, 2006 No. 59--IV, from July 28, 2006 No. 61--IV.

The ground for consideration has become the complaints of the citizens Puzyryuk R.A., Lobacheva E.G., Kolosova O.F.on the infringement of their constitutional right to property as a result of application of Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences. The ground for consideration of the case has become the uncertainty in the question on conformity of the disputed norm to the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

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

established:

1. The citizens Puzyryuk R.A., Lobacheva E.G., Kolosova O.F. according to item 3 Article 87 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and subitem 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 complaints on the infringement of their constitutional right to property as a result of application of Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences.

According to the complaint of the citizen Puzyryuk R.A., on February 15, 2006 Administrative Board at the State administration of the City of Tiraspol imposed the administrative penalty on her as fine at the rate of 96 roubles on the infringement of her constitutional right to property as a result of application of Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences for realization of trade without the certificate of quality on the goods on sale.

According to the complaint of the citizen Lobacheva E.G., on March 30, 2006 the official of tax inspection of the City of Bendery made the report on the fact of the administrative offence stipulated by Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences. On April, 4, 2006 Deputy Head of Tax Inspection of the City of Bendery considered the report and made the resolution on the administrative offence about imposing on her the administrative offence as fine at the rate of 144 roubles for the offence stipulated by Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences.

According to the complaint of the citizen Kolosova O.F. on March 29, 2006 Administrative Board at the State administration of the City of Tiraspol brought her to the administrative responsibility according to Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences as fine at the rate of 120 roubles for realization of trade without the certificate of quality on the goods on sale.

According to Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences infringement by the physical persons engaged in enterpreneur activity without education of the legal person, of the established order of realization of enterpreneur activity without education of the legal person, shall lead to imposing fine at the rate from 20 (twenty) to 100 (hundred) minimal salaries. The applicants consider, that determination of the administrative offence stipulated by Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences shall violate their constitutional right to property fixed by Article 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, their rights and freedoms stipulated by Article 18, and shall violate the certain order of consideration and adoption of legislative acts stipulated by Article 62 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika. In the opinion of the citizens Puzyryuk R.A., Lobacheva E.G., Kolosova O.F. Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences gives priority right and privileges to administrative organs on behalf of the special board, to head of tax inspection to treat the given legal norm at his own discretion as it does not contain the detailed definition of an administrative offence.

In the opinion of the applicants, definition of an administrative offence established by Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences as "infringement by the physical persons engaged in enterpreneur activity without education of the legal person, of the established order of realization of enterpreneur activity without education of the legal person", shall give the organs, authorized to make the resolution on the case about administrative offences at their own discretion, to determine "the established order of realization of enterpreneur activity" as in general any infringement of the working legislation in the sphere of enterpreneur activity can be defined as administrative offence. Such situation should actually lead to casual interpretation of an illegal act. Thus, the law applicant at his own discretion determines "the established order of realization of enterpreneur activity" which contradicts Article 18 and requirements of subitem i) item 3 Article 62 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, relating questions on interpretation of laws to the competence of the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika.

According to the above mentioned, the applicants apply for consideration of the question about constitutionality of definition of the administrative offence stipulated by Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences, namely: "infringement of the established order of realization of enterpreneur activity", without notification of the act regulating the established order of realization of enterpreneur activity which violates the constitutional rights and freedoms of a person and a citizen and to admit the specified norm not corresponding to Article 18 and requirements of subitem i) item 3 Article 62 of 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 adnitted solely in the cases stipulated by the law, in the interests of state security, social order, morality, health care of the population, rights and freedoms of other persons (Part One Article 18 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika). Each person shall have the right to free application of his abilities and property for enterpreneur and any other economic activity, not forbidden by the law, (Article 36 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika). The state shall guarantee each person the right to property (Part One Article 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika).

3. According to Article 62 (subitem ) item 2) of the Constitution of the Pridnestrovskaia Moldavskaia Respublika the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika shall realise legislative regulation of the questions requiring uniform decision and application on the territory of the Pridnestrovskaia Moldavskaia Respublika. On the ground of the given authority the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika has adopted the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences in which Article 152-12 stipulates the responsibility of physical persons engaged in enterpreneur activity without education of the legal person, for infringement of the established order of realization of enterpreneur activity.

The Civil Code of the Pridnestrovskaia Moldavskaia Respublika considers enterpreneur activity as an independent activity realised independently and directed to getting regular income from use of property, sale of goods, performance of work or rendering of service by persons registered in the order established by the law (Part Four item 1 Article 2). The order of realization of enterpreneur activity according to the sense of Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences is established by the working legislation of the Pridnestrovskaia Moldavskaia Respublika. Establishing by the legislation of the certain order of realization of enterpreneur activity does not interfere with the person to be engaged in enterpreneur activity, on condition of observance by him of all proper procedures and guarantees realization of rights and freedoms of the citizens stipulated by Article 36 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

The applicants apply to consider the question about constitutionality of definition of the administrative offence stipulated by Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences, namely "infringement of the established order of realization of enterpreneur activity", without notification of the act regulating the established order of realization of enterpreneur activity. In the opinion of the applicants, the given formulation of Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences is not perfect, as does not contain the notification of the act. Thus, the applicants actually put the question about entry of changes and additions into the working legal norms which is not the competence of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika, and is the exclusive right of the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika.

Besides the applicant considers, that in the process of definition of "the established order of realization of enterpreneur activity" the law applicant realises interpretation of article of the disputed norm which relates to the competence of the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika and contradicts subitem i) item 3 Article 62 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika. However, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika according to item 3 Article 87 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and 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 infringement of rights and freedoms of a person and a citizen, as a result of application of the law, statutory act, but not actions of law applying organs on the subject of their conformity to the Constitution of the Pridnestrovskaia Moldavskaia Respublika. Thus, according to Part Three Article 9 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" the Constitutional Court at realization of the constitutional legal proceedings abstains from the establishment of actual circumstances in all cases when it is the competence of other courts or organs.

On the ground of the above-mentioned, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika comes to the conclusion, that Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences does not infringe constitutional rights of the applicants owing to which the disputed norm should be considered as not 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, subitem 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

established:

1. To admit corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika regulations Article 152-12 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences.

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 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

No. 14 / 06



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