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26.04
2018

The Court Examined the Constitutionality of Provisions of the Contravention Code on Paying the Fine in 72 Hours

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On Thursday, 26 April 2018, the Constitutional Court of Moldova delivered a judgment on the constitutionality of the text “from the moment the fine was fixed” of the phrase I of Article 34 (3) of the Contravention Code no. 218 of 24 October 2018 (Complaint no. 5g/2018)

Circumstances of the case
The exception of unconstitutionality underlying this case was raised ex-officio by Mr. Ghenadie Eremciuc, judge of the Court of Law of Bălți, examining a challenge related to the provisions considered for this constitutional review. The offender is claiming that she could not pay the reduced fine by fifty percent, as the violation notice was sent by post with a delay. The judge challenged before the Court the lack of effectiveness of the legal provisions which set out the right of the offender to pay a half of the fine within 72 hours from the moment the fine was fixed.

Assessment of the Court
The Court examined this exception of unconstitutionality in the light of Articles 16 and 46 of the Constitution: equality of the citizens and the right to property.

It observed that the challenged provisions impose a lighter burden for the right to property of the fined individual, encouraging him to pay a half of the amount of the fine during 72 hours. The Court found that the overall legitimate aim of such a measure is the public order, as provided for by Article 54 (2) of the Constitution, so that in such a way it is diminished the interference in the right to property of the fined individual, and thus are also avoided the possible enforcing actions to be taken by the State against the offenders.

As with regard to the rational connection between the challenged legal measure and the above-mentioned legitimate aim, the Court observed that in case of postal delivery of the violation notice, the challenged legal measure may lead to the diminishment or even to the exhaustion of the 72 hour period for the right of paying a half of the established fine to be made use of. Accordingly, such a legal measure is not operable in fulfilling the legitimate aim underpinning it. 

Beyond this infringement of the Constitution, the Court observed that between the individuals who are able to pay a half of the fine when they receive in due time the copy of the violation notice, by post, and individuals who receive it with a delay and subsequently are not able to effectively exercise their right to pay the reduced fine, there is a discrimination that cannot objectively be justified. 

At the same time, when undertaking a comparison between the regulation of the right to pay the reduced fine provided under contravention law and criminal law, the Court found that the legislator established “double standards” of protection with respect to the exercise of the right to pay a reduced fine for contraventions. The standard of protection provided under contravention law points to a lower one as compared with criminal law. 

In both cases, the Court found a differentiated treatment, in the sense of Article 16 of the Constitution, which is not objectively justified. 

It also found that the contravention law does not provide for a mechanism that would allow for the obstacles to be tackled sufficiently – obstacles deriving from the effective exercise by the offender of the right to pay a half of the fine that was fixed. 

From this perspective, the Court considered that in case the decision to sanction the offender is taken in his absence and is delivered to him with delay by post, the right of the offender to pay a half of the established fine is of an illusory nature, in the light of Article 46 of the Constitution.

Conclusions of the Court
Stemming from the above-mentioned, the Court partially admitted the exception of unconstitutionality raised by Mr. Ghenadie Eremciuc, judge at the Court of Law of Bălți.

It declared unconstitutional the text “from the moment the fine was fixed” of the phrase I of Article 34 (3) of the Contravention Code of the Republic of Moldova no. 218 of 24 October 2008.

The Court ruled that till the amendment of the law by the Parliament, the period of 72 hours for the payment of a half of the fine shall run from the moment the offender is informed about the act which imposes the fine.

This judgment is final, cannot be cannot be appealed, shall enter into force on the date of passing and shall be published in the Official Journal of the Republic of Moldova.

The full reasoning may be consulted in the Judgment of the Constitutional Court of Moldova.

This is an English language courtesy translation of the original press-release in Romanian language.

 
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