Categories Categories
Home   |  Media   |  News | Government-Imposed Sanctions Lacking Basis in Law – Unconstitutional
28.10
2016

Government-Imposed Sanctions Lacking Basis in Law – Unconstitutional

6755 Views    
  print

On 28 October 2016 the Constitutional Court delivered its judgment on the exception of unconstitutionality of certain provisions of item 34 of Annex No.3 to the Government Decision No. 360 of 25 June 1996 on state quality control of constructions (Complaints no.73g/2016 and no.125g/2016).

Circumstances of the case

The case originated as follows:

- an exception of unconstitutionality of item 34.3 of the Annex no. 3 to Government Decision No.360 of 25 June 1996 on state quality control of constructions was raised by Oleg Daţco, manager of the company „Dami Group” Ltd., party in the case no.3ra-580/2016, pending before the Supreme Court of Justice;

- and a second exception of unconstitutionality of items 34.a and 34.3 of the Annex no. 3 to Government Decision No.360 of 25 June 1996 on state quality control of constructions was raised by „Apartament Consulting” Ltd., party in the case No. 3-704/2016, pending before the Râşcani District Court of Chișinău.

Pursuant to the provisions of item 34.1: „Following the approval of the control minutes, the head of the State Inspectorate in Constructions adopts - in case there are found exaggerations of the volumes and costs of the performed works - the decision on the state budget collection of the amounts obtained unlawfully by the entrepreneur by way of exaggerating the volumes and costs of the performed works.”

At the same time, paragraph 3 provides for that: „Simultaneously with the collection of the amounts (income) obtained unlawfully, the enterprise organisation is charged with a fine of the same size, regardless of its financial situation and the interrelationships with the budget.”

The authors of the exceptions claimed, in particular, that when introducing these challenged sanctions, the Government had exceeded its powers, contrary to Articles 6, 46.4, 72.3.r and 102.2 of the Constitution.

The Constitutional Court ruled on the complaint in the following composition:

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mr Tudor PANȚÎRU,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN, judges

Conclusions of the Court

Hearing the reasoning of the parties and examining the casefiles, the Court held that the Parliament, as the sole legislative power, pursuant to constitutional and legal provisions, can authorise the Government to regulate certain aspects in order to elaborate the provisions of the laws.

The Court noted that according to the preamble of Decision No. 360 of 25 June 1996, the Government by Annex no.3 approved the Regulation on exercising control over the use of public investment in constructions, aiming at enforcing the Law No.721 of 2 February 1996 on the quality of constructions.

The Court noted that item 34 of the first paragraph of the Regulation, provides that following the approval of the control minutes, the head of the State Inspectorate in Constructions adopts - when finding exaggerations of the volumes and value of the performed works - the decision on state budget collection of the amounts obtained unlawfully by the entrepreneur by way of exaggerating the volumes and costs of the performed works.

The Court noted that pursuant to Article 31 of the Law on the quality of constructions, the State Inspectorate in Constructions, is responsible for exercising the state control over the uniform application of the legal provisions in the field of construction quality, within all phases and components of the system of construction quality and for finding contraventions, as well as for halting the poorly performed works.

Also, the Court noted that pursuant to Article 28 of the Law No.131 of 8 June 2012 on the state control over entrepreneurial activity and item 15 of the Annex to this Law, the State Inspectorate in Constructions is part of the bodies entitled to initiate controls and issue decisions on the ground of the control act.

In this context, the Court found that the State Inspectorate in Constructions is entitled to exercise state control of constructions quality and to issue decisions on compliance with laws and other regulations in the field of constructions.

Thus, referring to the arguments of the author of the exception that the decision on state budget collection of the amounts obtained unlawfully constitutes a confiscation, the Court held that the purpose of issuing such a decision is actually to return public money obtained by the entrepreneur unlawfully by way of exaggerating the volumes and the costs of the performed works, found by the act of control over the use of public investments in constructions.

At the same time, pursuant to item 34 of the third paragraph of the Regulation, simultaneously with the collection of the amounts (income) obtained unlawfully, the enterprise organisation is charged with a fine of the same size, regardless of its financial situation and the interrelationships with the budget.

In this regard, the Court noted that Articles 32, 33 and 34 of the Law on construction quality No.721-XIII of 2 February 1996 govern situations triggering criminal, administrative and patrimonial liability.

Arising from the mentioned legal provisions, the Court found that they do not provide for charging the entrepreneur with a fine amounting to the collection to the state budget of the amounts obtained unlawfully nor entitles the State Inspectorate in Constructions to impose such fines.

The Court held that the Government, as an executive authority, has the role of adopting decisions in managing law enforcement. Thus, the Supreme Law does not empower the Government with the right to establish primary provisions.

Therefore, the Court held that by approving the provisions of item 34 of the third paragraph of the Regulation on exercising control over the use of public investment in constructions, the Government has exceeded its competences thus infringing upon the provisions of Article 102 combined with Article 72.n of the Constitution.

Additionally, the Court underscored that the  Law No. 721-XIII of 2 February 1996 on the quality of constructions does not regulate in detail the duties of the State Inspectorate in Constructions, particularly in regards to the issuance of decisions and application of sanctions in case of finding violations in the field of constructions. In this respect, the Court will issue an Address to the Parliament in view of regulating its competences to regulate sanctions within the exercise of state control on the quality of constructions.

Judgement of the Court

Stemming from the above reasoning, the Constitutional Court:

- partially admitted the exception of unconstitutionality raised by Oleg Daţco, manager of the company „Dami Group” Ltd., party in the case No.3ra-580/2016, pending before the Supreme Court of Justice.

- partially admitted the exception of unconstitutionality raised by „Apartament Consulting” Ltd., party in the case No. 3-704/2016, pending before the Râşcani District Court of Chișinău.

- declared constitutional the item 34.1 of the Annex No. 3 to Government Decision No.360 of 25 June 1996 on state quality control of constructions.

- declared unconstitutional the item 34.3 of the Annex No. 3 to Government Decision No.360 of 25 June 1996 on state quality control of constructions.

The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Journal of Moldova.

 

This press-release is also available in its original language – Romanian.

 
Info about Notification.:
+373 22 25-37-20
Press relations.:
+373 69349444
Total visits: 7693789  //   Visitors yesterday: 2902  //   today: 2039  //   Online: 33
Quick access