Time Limit on Disputing Bailiff’s Acts Shall Run from the Date the Issued Act Was Communicated

On 5 April 2019, the Constitutional Court of Moldova delivered a judgment on the plea of unconstitutionality of the second phrase of Article 162 para. (2) of the Enforcement Code: “No one may request an extension of the time-limit if more than 6 months have passed from the date the disputed act was issued or declined to be issued.” 

The applicant alleged that the challenged provisions do not comply with the requirements of quality of a law. He also noted that the legislative solution providing that no one may request an extension of the time-limit if more than six months have passed from the date the disputed act was issued or declined is in breach of the right to free access to justice and does not ensure the protection of the right to property of the debtors. 

Although the applicant directed his critique to the second phrase of Article 162 para. (2) of the Enforcement Code, the Court found that the second phrase of Article 161 para. (1) also imposes a ban on challenging enforcement-related acts issued by a bailiff, where more than 6 months passed from the moment they were issued. Given that these provisions basically echo the provisions challenged by the applicant, the Court decided to also assess them. Moreover, the Court observed that although the applicant only disputed the fact that the six-months term relevant for restoring the right to challenge bailiff’s acts runs from the moment they are being issued, nonetheless Article 162 para. (1) of the Code provides, too, that the time-limit for the appeal shall run from the moment the acts are being issued. As these provisions cannot be considered in isolation, but as part of a coherent legal system, the Court decided to also subject to constitutional review the piece of legislation regulating the method of calculation of the deadline on lodging the appeal, i.e. “from the date it was issued or the date of the refusal to issue certain acts” of Article 162 para. (1) of the Enforcement Code.

The Court’s assessment

The Court considered that this case should be assessed in light of Article 20 of the Constitution safeguarding the free access to a court, in conjunction with Article 23 para. (2) providing for the requirements on the quality of the law and with Article 46, which safeguards the protection of the right to property. 

The Court noted that the procedure on disputing bailiff’s action is regulated divergently by a number of provisions of the same legal act. Such a legal incoherence leads to legal insecurity for the individuals. It is both the litigants and subjects entitled to apply the Enforcement Code that find themselves in difficulty, thus having to choose between several possible options. And even when seeking expertise advice, one could not unequivocally foresee what provision should apply – Article 162 para. (1), Article 66 para. (2) or Article 67 para. (7) of the Enforcement Code – when determining the date when the time-limit runs for disputing bailiff’s acts. There is a risk for a choice of a provision to be determined based on arbitrary and discretionary criteria by subjects entitled to apply the law, so that the one could not actually enjoy the right to dispute a bailiff’s act, including that applied for property seizure. 

The Court also found that where bailiff’s acts are being communicated only following six months after they were issued, that person will not be able to request an extension of the time-limit for the restoration of the right to dispute the acts in question, given that under Articles 161 para. (1) and 162 para. (2) of the Enforcement Code, he cannot request an extension of the time-limit where more than 6 months passed from the date the disputed act was issued or from the date when its issuance was declined. Under these provisions, this also holds true for cases where third persons who did not attend the enforcement procedure find out about writs of execution affecting their rights and interests, but would not be able to dispute them, as more than six months passed from the date they were issued. 

In this respect, the Court recalled its case-law holding that the right to actually exercise the right to an appeal can only be enjoyed from the date the disputed act is communicated to the interested party. Otherwise, such a right may become a theoretical and illusory one. Since the State safeguards a right, it shall also create the premises for it to be attained.

The Court’s conclusions 

Stemming from the foregoing, the Court admitted the plea of unconstitutionality referred upon the request of attorney Anatolie Bacalîm, in case no. 2r-2541/2018, pending before the Court of Appeal of Chișinău. 

It declared unconstitutional:

-        the second phrase “Acts drafted by the bailiff cannot be appealed if more than six months passed from the moment they were issued.” of Article 161 para. (1) of the Enforcement Code;

-        the second phrase “from the date it was issued or from the date of the refusal to issue certain acts” of Article 162 para. (1) of the Enforcement Code;

-        the second phrase “No one may request an extension of the time-limit if more than 6 months have passed from the date the disputed act was issued or declined to be issued.” of Article 162 para. (2) of the Enforcement Code. 

This judgment is final, it cannot be appealed, it enters info force upon the date of adoption and shall be published in the Official Journal of Moldova.

This a courtesy translation of the original text available in Romanian language.

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