On 13 October 2015 the Constitutional Court ruled on the constitutionality of Government Decision no. 79 of 23 January 2006 on approving the List of narcotic drugs, psychotropic substances and plants containing such substances discovered in illicit trafficking and their quantities.

Circumstances of the case

The case originated in the complaint lodged with the Constitutional Court on 10 July 2015 by MP Elena Bodnarenco.

Theft, appropriation, and extortion of narcotic drugs are illegal actions and are subject to criminal or contravention liability. According to Article 134¹.4 of the Criminal Code "lists of narcotic drugs, psychotropic substances, and precursors shall be approved by the Government".

In view of implementing the above mentioned criminal provision, the Government approved Decision no. 79 of 23 January 2006 on approving the List of narcotic drugs, psychotropic substances and plants containing such substances discovered in illicit trafficking and their quantities.

The author claimed that under the above mentioned criminal provision, the Government had legal basis to approve only the list of narcotic drugs, psychotropic substances and plants containing such substances discovered in illicit trafficking, but not the quantity.

Thus, the author considered that by approving the amount of these substances, the Government has arrogated to itself the competences of legislative power, infringing Articles 72.3.n 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, judges

Conclusions of the Court

Hearing the reasoning of the parties and examining the case files, the Court held that under Article 72 of the Constitution, criminalization of offenses, regulating punishments and procedure of their execution are competences conferred to the Parliament. Also, Article 102.2 of the Constitution empowers the Government to adopt decisions in order to ensure enforcement of laws.

The Court noted that the legality principle of criminal provisions imposes two obligations on the legislator: 1) to provide, in a legal text, the deeds considered criminal offenses and appropriate sanctions; 2) to draft clearly the legal text.

The Court held that, under criminal law, illegal circulation of narcotic and psychotropic substances is criminalised. At the same time, the Parliament established that the "lists of narcotic drugs, psychotropic substances, and precursors shall be approved by the Government."

The Court found that by Decision no. 79 of 23 January 2006 the Government approved both the list and the quantities of narcotic drugs, psychotropic substances and plants containing such substances discovered in illicit trafficking.

Under the law, the amount of narcotic drugs and psychotropic substances constitutes a criterion in distinguishing legal from illegal circulation and contributes to the classification of crimes.

The Court held that by the content of the phrase "lists of substances", comprised in Article 134¹ of the Criminal Code, there shall be understood the competence of the Government to regulate both the categories of narcotic drugs and psychotropic substances and their quantities. Approving only the list of these substances, without a quantitative regulation, would deprive of substance the whole Government Decision, which would be unenforceable.

At the same time, the Court noted that, given the field of narcotic drugs under examination is constantly evolving and does not cover only the criminal law, but also that the protection of public health, the legislature may delegate to the Executive power the competence to regulate, by subordinate legislation, the list of narcotic drugs, psychotropic substances and their quantity. Given that the legislative process involves several lengthy stages, the reasoning of establishing this Government competence results from the need to promptly regulate the legal framework in this area, in case of new substances being emerged, with similar effects.

For aforementioned reasons, the Court held that the challenged Government Decision does not infringe Articles 72.3.n and 102.2 of the Constitution.

The Court found that the Criminal Code also criminalises the illegal movement of the "analog" substance which, by its composition and effect is similar to a narcotic drug or psychotropic substance. The Court noted that international and national legislation regulates neither the list, nor the quantities of the "analog". Thus, the Court found a lack of predictability concerning the substances which may be recognised as "analog". This omission will be communicated to the Parliament, by an Address of the Court, in order to remove it.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court:

-  rejected the complaint of MP Elena Bodnarenco;

- declared constitutional the Government Decision no. 79 of 23 January 2006 on approving the List of narcotic drugs, psychotropic substances and plants containing such substances discovered in illicit trafficking and their quantities. 

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 Gazette of the Republic of Moldova.