Republic of Moldova, Constitutional Court of the Republic of Moldova, 30 June 2020, No. 18
Case overview
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Link to the full text of the decision
General Summary
Two members of Parliament of the Republic of Moldova and two advocates filed claims in different petitions with the Constitutional Court of the Republic of Moldova (which were joined under case No. 61a/2020 by the Court) to challenge the constitutionality of Art. 76 of the Contravention Code of the Republic of Moldova. The Article was introduced during the spread of Covid-19 (Law No 52 adopted by the Parliament on March 12, 2020) and envisaged a fine in paragraph 1 for non-compliance with prophylaxis, prevention and/or control of epidemic diseases if it put the public health at risk (from 450 up to 500 conventional units for individuals and from 1000 up to 1500 conventional units for legal entities ). The Plaintiff stated that the fine was exorbitant and disproportionate to the pursued aims of the Article. The Court concluded that the wording "from 450" was unconstitutional.
Facts of the case
The Plaintiffs stated that Art 76 was rather descriptive and did not envisage any specific preventive measures or other measures to combat the epidemic disease. They noted that it contradicted Art 21 (presumption of innocence), and Art 22 (non-retroactivity of the law) of the Constitution. According to the Plaintiffs the penalty envisaged in Art 76 (para 1) did not correspond to its aim and violated the right to private property guaranteed under Art 46 of the Constitution.
The Respondent (Parliament) stated that the Article was adopted with the aim of preventing the spread of the Covid-19 pandemic, and to penalize persons who did not comply with preventive measures and endangered public health. Including a list of preventive measures in the Article being contested was unjustified according to the Parliament.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Public
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Reasoning of the deciding body
With regard to the issue of individualisation of the penalty by the legislator, the Court stated that the Parliament could not establish a penalty that would prevent the court from individualizing a penalty. The Court emphasized that a restriction of the role of the Court meant a lack of the guaranteed right to a fair trial under Art. 20 of the Constitution and Art. 6 ECHR. (86) The Court stated that preventive measures and other measures to combat an epidemic disease were envisaged in other legal acts adopted by the authorized statutory bodies. The Court established that a descriptive character was accessible in general, provided the legality of such normative instruments was effectively monitored. (94-97)
The Court emphasized that reference to "non-compliance with prophylaxis, prevention and/or control of epidemic diseases if it put the public health at risk " was accessible and foreseeable from the perspective of the lawfulness of the substantial criminal law (nullum crimen, nulla poena sine lege) guaranteed by Art 22 (non-retroactivity of the law) in conjunction with Art 1 (3) and 23 (2) of the Constitution (103) and correlated with Art 7 (no punishment without law) of the ECHR.
With regard to the issue of the violation of the right to private property, the Court noted that this right is not absolute and can be restricted by the state to ensure a balance between the private and public interest. The Court noted that such restrictions shall meet the requirements of Art 54(2) (restrictions on the exercise of certain rights or freedoms) of the Constitution, be necessary, and correspond to the circumstances that caused them. In this particular case state interference aimed to protect the public health which prevails over the right to private property given the threat of the spread of an infectious disease. (104-106)
The Court stated that the rather small difference between the minimum (450 conventional units) and the maximum (500 conventional units) limit of the penalty, depending on the act in question and the various ways of committing it, may violate the right to a fair trial, by limiting the courts' competence to exercise full jurisdiction over the individualization of the penalty. (110)
In the case of legal persons the difference between the maximum and minimum penalty consisted of 500 conventional units that would allow the court to determine a penalty according to the grounds of the case. The Court observed that offenses committed by legal persons are not as varied in comparison with offenses committed by individuals. (112)
Conclusions of the deciding body
The Court established that the rather small difference between the limits of the penalty for individuals did not allow the court to assess the proportionality of the penalty and to ensure a fair balance between the aim and means of the law; and to ensure that the means do not restrict the rights of individuals to a greater extent than necessary for achieving its aims. (111)
The Court found the wording “from 450” to be unconstitutional. Until corresponding amendments to the Contravention Code are made, the minimum limit of the penalty for individuals will be equal to 1 conventional unit (Art 34(2) of the Contravention Code), while considering that imposition of the penalty shall have preventive aims. (113-117)
Implementation of the ruling
On November 20, 2020, issuing Law No 201, the Parliament amended Art. 76 (para 1) that envisaged a fine for individuals from 40 to 100 conventional units and for legal entities from 200 to 700 conventional units. Repeated offens es during the same calendar year resulted in imposing fines in the amount from 300 to 500 conventional units for individuals and in the amount from 1000 up to 1500 conventional units for legal entities.
Fundamental Right(s) involved
- Right to access to justice, to a fair trial and to jury trial
- Right to property
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Free access to justice, Art. 20, Constitution
- Presumption of innocence, Art. 21, Constitution
- Right to private property and its protection, Art. 46, Constitution
- Right to a fair trial, Art. 6, European Convention of Human Right
- No punishment without law, Art. 7, European Convention of Human Right
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. access to justice
- Health v. property
General principle applied
Judicial dialogue
Referring to Art. 7 (no punishment without law) of the ECHR, the Court cited the cases of Parmak and Bakir v Turkey (para 57, decision of December 3, 2019), Jidic v Romania (para 76, decision of February 18, 2020). With regard to the issue of fines, the Court cited the cases of SC Complex Herta Import Export Srl Lipova v Romania (para 31, June 18, 2013) and Mamidakis v Greece (para 44, January 11, 2007). With regard to the issue of the individualization of the penalty, the Court cited the cases of Silvester's Horeca SRL v Belgium (para 26-30, of March 4, 2004) and Chevrol v France (para 77, February 13, 2003).
