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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) Part Two Article 131 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika on the complaint of the citizens Zakharchuk Olga Alekseevna and Popovskiy Stepan Georgievich

November 28, 2006the City of Tiraspol

The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika comprising: the presiding – President 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 petitioner Popovskiy S.G., representative of the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika in the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika – Head of the Committee of the Supreme Soviet of the Pridnestrovskaia Moldavskaia Respublika on legislation Loginova 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) Part Two Article 131 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika brought into force by the Law of the Pridnestrovskaia Moldavskaia Respublika from July 17, 2002 No. 156-Ç-III with changes and additions made by the Laws of the Pridnestrovskaia Moldavskaia Respublika from February 21, 2003 No. 245-ÇÄ-III, from March 20, 2003 No. 252-ÇČÄ-III, from June 20, 2003 No. 291-ÇČÄ-III, from September 26, 2003 No. 331-ÇČÄ-III, from August 4, 2005 No. 613-ÇČÄ-III, from August 4, 2005 No. 615-ÇČÄ-III, from October 25, 2005 No. 648-ÇČÄ-III, from October 25, 2005 No. 651-ÇČÄ-III. The ground for consideration of the case has become the complaint of the citizens Zakharchuk O.A. and Popovskiy S.G. on the infringement of their constitutional right to remedy as a result of application of subitem 1) Part Two Article 131 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika 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., explanations of the sides, having examined the documents and other materials submitted, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika

established:

1. The citizens Zakharchuk O.A. and Popovskiy S.G. according to item 3 Article 87 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and subitem c) Part One Article 9, Article 102 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" have applied to the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika with the complaint on the infringement of their constitutional right to remedy as a result of application of subitem 1) Part Two Article 131 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika.

In the opinion of the petitioners, the infringement of their constitutional right to remedy has arisen as a result of application of subitem 1) Part Two Article 131 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika at consideration by the Tiraspol City Court of the concrete complaints on wrongful actions of the President of the Pridnestrovskaia Moldavskaia Respublika. The Citizens Zakharchuk O.A. and Pop[ovskiy S.G have been refused by court in admission of the complaints referring to the regulations of subitem 1) Part Two Article 131 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika.

The petitioners consider, that the specified norm excludes admitance to the justice and connected with it effective restoration of the infringed rights and freedoms that contradicts Article 46 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika and its Articles 16, 18, 54 (item 1) and 80 (items 1 and 2).

On the ground of the above-mentioned the citizens Zakharchuk O.A. and Popovskiy S.G. apply for consider of the question about constitutionality of subitem 1) Part Two Article 131 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika which resulted in infringement of their constitutional right to remedy and they apply to admit the given 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 validity 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 solely in 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 (Article 18 of Constitution of the Pridnestrovskaia Moldavskaia Respublika). Each person shall be guaranteed with the judicial protection of rights and freedom, the right to appeal in court illegal decisions and actions of the state bodies, 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 the judicial protection of rights and freedoms, of the right to appeal in court illegal decisions and actions of the state organs, officials, public associations. The right of the citizens to judicial protection refers 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 refers to the conventional principles and norms of the international law. According to Article 8 of the General Declaration on Human Rights the person shall have the right to effective restoration in rights by the competent national courts in case of violation 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 at determination of his rights and duties shall have the right to fair and public trial in competent, independent and impartial court created on the basis of the law (Article 14). And according to Article 10 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika the conventional principles and norms of the international law shall be the component 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 subitem 1 Part Two Article 131 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika establishes the rule according to which the judge may refuse in admission of the application in the case the application is not subjected for consideration in courts.

According to Articles 80, 102, 103 of the Constitutional of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika" the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika on complaints of the citizens shall verify constitutionality of the statutory act or its separate regulation only in the part they have been applied in the case of the petitioner, and shall make resolution only on the subject specified in the application, thus estimating both literal sense of the disputed regulations, and the sense given to it by the current legal proceedings, and proceeding from their place in the system of legal norms. Thus, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika at making the decision shall not base on the grounds and reasons specified in the application.

Thus, the subject for consideration of the given case is the regulation of subitem 1) Part Two Article 131 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika in the part it is applied by courts of general jurisdiction for refusal in admission of the application on civil cases considered in the order, stipulated by chapter 24-1 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika.

Subitem 1) Part Two Article 131 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika stipulates, that the judge shall refuse in admission of the application for consideration in case the application is not subjected for consideration in courts. Thus, the impossibility of consideration in courts is impossibility of consideration of the case in the order of civil legal proceedings, that is not the jurisdiction of the application to courts of general jurisdiction considering cases in the order of civil legal proceedings. And according to Part Three Article 131 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika the judge in the definition of the court is obliged to specify which organ the petitioner shouls apply if the case is not the jurisdiction of court. But it is necessary to take into account the legal position of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika, expressed in Resolution from October 10, 2006 No. 13-Ď/06 on the case about the verification of constitutionality of Part One Article 238-3 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika on the complaint of the citizens Zakharchuk O.A. and Popovskiy S.G. according to which the state is obliged not only to give each citizen the right to appeal in court illegal decisions and actions of state organs, officials and public associations, but to create conditions for unobstructed realization by the citizens of their constitutional right for which by means of adoption of legislative acts there should be regulated the procedure of the application of the citizens in court. As it is possible to apply in court for settlement of any dispute infringing rights and freedoms of the citizens including the dispute from administrative legal relations, the legislator shall not have the right to establish other not judicial order of protection of rights of the citizens, restricting the opportunity of the citizens to apply in court.

However, on the sense given to the disputed norm by court of general jurisdiction, the right of the citizens to remedy can be violated. According to the materials submitted to the complaint of the petitioners the Tiraspol City Court, refusing in admission of the petition referring to subitem 1) Part Two Article 131 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika, has specified that the stipulated by the law the not judicial order of consideration of the dispute and on non-observance by the petitioners of the established by the law for the given category of cases of the order of extrajudicial sanction of the case that contradicts the regulations of the Constitution of the Pridnestrovskaia Moldavskaia Respublika (Article 46) and positions of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika, specified in the above-mentioned Resolution from October 10, 2006 No. 13-Ď/06, and in Resolution from February 28, 2006 No. 04-Ď/06 on the case about the verification of constitutionality of Part One Article 238-4 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika on the complaint of the citizen Malenko U.U., according to which the right of the citizens to remedy cannot be put by the law in dependence on application by the citizen of pre-judicial order of settlement of the dispute as one of the ways of legal protection. The obligatory order of pre-judicial settlement of the dispute, excluding the opportunity of admission of the statement of claim for consideration and realization of justice, violates the right of the citizens to remedy. At the same time legislative stipulation of the ground of refusal in admission of the application on civil cases, stipulated by subitem 1) Part Two Article 131 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika with the formulation "in case the application is not subjected to consideration in courts", does not contradict the proclaimed by Article 46 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika right of each person to judicial protection of his rights and freedoms and the right to appeal in court of illegal decisions and actions of state organs, officials, public associations as it cannot serve the ground for refusal by court in admission of applications subjected to consideration in the order of civil legal proceedings. Besides Article 2 of the of the Pridnestrovskaia Moldavskaia Respublika specifies, that the Constitution of the Pridnestrovskaia Moldavskaia Respublika shall have the supreme validity and the direct action, and the organs of state power including court organs, shall be obliged to observe the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

On the ground of the above-mentioned, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika comes to the conclusion, that the disputed norm does not does not infringe the right of the citizens to remedy and therefore 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, 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 the regulation of subitem 1) Part Two Article 131 of the Civil Procedural Code of the Pridnestrovskaia Moldavskaia Respublika as it cannot serve the ground for refusal by court in admission of the applications subjected to consideration in the order of the civil legal proceedings.

2. At application of the citizens Zakharchuk O.A. and Popovskiy S.G. in court the question about admission of their complaint for consideration should be solved in view of the given Resolution.

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.

4. 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

ą 16 – Ď / 06



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