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10.05
2017

The Ban on Issuing Civil Status Documents, Identity Acts or Driving Licenses to the Debtors – Unconstitutional

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On 10 May 2017, the Constitutional Court of Moldova delivered a judgment on the constitutional review of certain provisions of Article 22.1.v of the Enforcement Code. 

Circumstances of the case

The case originated in an exception of unconstitutionality of the second phrase of Article 22.1.v of the Enforcement Code, raised by the judge Ion Ghizdari, in the case no. 25-248/16, pending before the Court of Bălți, headquartered in Fălești town.

According to the challenged provisions, the court of law may order a ban on issuing civil status documents, identity acts or driving license to the debtors.

The author of the exception of unconstitutionality has alleged, mainly, that this ban affects the right to the freedom of movement, the right to privacy and does not meet the requirements of quality of the law. 

The complaint was examined by the Constitutional Court in the following composition: 

Mr Alexandru TĂNASE, President, 

Mr Aurel BĂIEŞU,

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 noted that, although the freedom of movement and the right to privacy do not belong to the category of absolute rights, any restriction shall be prescribed by law, pursue a legitimate aim, strike a fair balance between the public interest and individual rights and it shall be necessary in a democratic society.

Examining the exception of unconstitutionality, the Court found that the challenged provision of Article 22.1.v of the Enforcement Code provides for the possibility to impose to the debtor, by the court of law – within the procedure of compulsory enforcement – a ban on issuing three categories of acts: 1) identity acts; 2) documents of civil status and 3) driving licenses.

In its caselaw, the Court mentioned that the enforcement of a judicial decision represents the last stage of the judicial process and constitutes a right enshrined jointly in Articles 20 and 120 of the Supreme Law. An executory act which is not enforced, in other words, an illusory justice cannot ensure the achievement of the main goal – the protection of human rights and freedoms and of the public interest. For this to be achieved, the state as the possessor of public power, should act diligently aiming at assisting the creditor in order to enforce a judicial decision.

At the same time, the Court noted that the adopted legal provisions relative to the enforcement of an executory document should be adequate and sufficient, so that there would be struck a balance between the rights of the creditor and those of the debtors.

The Court mentioned that in order for the executory act to be enforced, the Enforcement Code provides for ”the ban to leave the country” to be imposed to the debtors. In particular, the Court found that although the ban on issuing identity acts constitutes a measure which is applied distinctly from the former, in essence, it results in the ban to leave the country. Concurrently, while the former is applied for a period that does not exceed 6 months, the latter, under the law, may be applied for an indefinite period.

According to the caselaw of the European Court of Human Rights, the measure which restricts the individual liberty of movement may become disproportionate and may infringe upon the rights of the person, in the event it is extended automatically, for a long period. The authorities cannot extend the measures that come to restrict the freedom of movement of an individual for a long period of time, without a regular re-examination of their justification.

Moreover, the Court noted that the instituted ban does not clarify: 1) the conditions and the period of its imposition; 2) the manner of revocation or discontinuance and 3) exercising control on the necessity of upholding the measure.

Stemming from these premises, the Court held that the ban on issuing a passport or a travelling document alone is not justified as a measure of enforcing the executory act as provided for by Article 22.1.v of the Enforcement Code. In other words, its goal may be achieved by the ban to leave the country – a measure susceptible to be applied exclusively and exceptionally as a consequence of the inefficiency and of exhaustion of all the enforcement measures of an executory document, in cases where the debtor leaving Moldova would make it obviously impossible or difficult to enforce the judicial decision, or any other executory document for purposes provided for by Article 11 of the Enforcement Code.

Concurrently, as with regards to the ban on issuing identity acts and driving license as a separate category of identity acts, the Court also considered that this is disproportionate to the goal pursued.

Moreover, the Court found that additional to the identity acts, the lawmaker provided for the ban on issuing civil status acts relating to: acts of birth, marriage, divorce, name/surname change, decease, acts that when issued – additional to the protection of property rights – it also pursue the goal of protecting non-pecuniary rights of the individual.

In this regard, the Court held that the compulsory enforcement of an executory document should presume a range of measures that would affect the patrimony of the debtor, but in no way should they restrict non-pecuniary rights in a disproportionate manner.

At the same time, with regards to the ban on issuing driving licenses, considering findings of the European Court of Human Rights in that the annulment of a driving license rather amounts to a criminal matter, the Court mentioned that this measure is justified, in essence, in case it is applied for purposes of ensuring safety of road traffic.

Giving these, the Court found that the ban on issuing driving licenses is also disproportionate and is in breach of the goal it was regulated for by the second phrase of Article 22.1.v – ensuring the duties incumbent upon the debtor by an executory document.

Summarising the abovementioned, the Court concluded that the ban on issuing civil status documents, identity acts and driving licenses represents in itself a disproportionate measure to the goal pursued, thus infringing upon Articles 27 and 28 in conjunction with Articles 23 and 24 of the Constitution.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court of Moldova:

1.      Declared admissible the exception of unconstitutionality raised by the judge Ion Ghizdari in case no. 25-248/16 pending before the Court of Bălți headquartered in Fălești town.

2.      Declared unconstitutional the following text: ”The ban on issuing civil status documents, identity acts and driving licenses is imposed exclusively by the courts of law;” of Article 22.1.v of the Enforcement Code of Moldova no. 443-XV of 24 December 2004.

This judgment of the Constitutional Court of Moldova is final, cannot be subject to any appeal, shall be effective from the date of passing and shall be published in the Official Journal of the Republic of Moldova.

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

 
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