The Institute for European Policies and Reform and the Legal Resources Centre from Moldova (CRJM), members of the National Platform of the Eastern Partnership Civil Society Forum, have developed the Opinion on the proportionality and the legality of the measures taken by the Government during the state of emergency.
The experts analyse how the mechanisms of management of the state of emergency established by the Parliament Decision no. 55/2020 of 17.03.2020 regarding the declaration of the state of emergency and subsequently applied through the provisions of the Decisions of the Commission for Exceptional Situations of the Republic of Moldova (within the period 17-27.03.2020). The opinion will refer to the legal aspects established through the acts mentioned above, including the amendments made to Law no. 212/2004 on the state of emergency, siege and war regime through Law no. 54/2020.
Thus, the IPRE and CRJM experts find the derogations provided in the CES Decisions to be disproportionate and contrary to the provisions of Article 54 of the Constitution. In particular, derogations from the rules of the Administrative Code, the Code of Civil Procedure, the Labour Code and the Misdemeanour Code are contrary to the restrictions imposed by Article 54 of the Constitution, namely the impossibility of restricting the right to free access to justice (Article 20 of the Constitution). The impossibility of effectively exercise a remedy before the court is mainly due to the reduced terms of appeal, the CES itself establishing the rules of challenge of its own provisions, the lack of appeal / recourse for the decisions examining the appeals against the provisions of the CES.
At the same time, the derogations from the rules related to the exercise of the profession of lawyer, notary and bailiff in the part related to the application of disciplinary sanctions is in contradiction with the provisions of the previous provisions and disproportionate with the measures that are being followed in the context of the state of emergency.
The derogations from the rules established in the customs legislation affect the actors involved in the pharmaceutical field and distort the market for pharmaceutical products.
As a result of the analysis, the experts suggest the following recommendations:
- The procedural norms on the challenge of the provisions of the CES can be included in the existing normative framework, especially since via the amendments made to Law no. 211/2004 Parliament has retained the right to amend organic laws.
- Exclude the exceptions for the right not to be fired during leave, the right to be reinstated and compensation for damages caused by illegal dismissal, as well as establish a limited number of employees, which are essential to ensure the application of emergency measures, for whom some of the rights resulting from the Labour Code are restricted. The right of appeal cannot be limited in any way, to ensure compliance with the provisions of Articles 54 and 20 of the Constitution.
- Revision of the provisions of points 22-40 of the Decision no. 4 of March 24, 2020 of the CES related to the derogations from the provisions of the Misdemeanour Code, indicating sufficient time to allow the sanctioned party to form his/her defence and to present the evidence relevant to the defence (appeal within 3-5 days, review the case by the court within 3-5 days), the exclusion of derogations related to the grounds of challenge and of appeal, with the application of the existing norms of the Misdemeanour Code.
- Establishing jointly with the Notarial Chamber, the Bar Association and the National Union of Bailiffs a list of lawyers, notaries and bailiffs who can be contacted in emergency situations, keeping the remote work for the other members of the given professions as far as possible;
- Developing a protocol with detailed rules related to the specifics of the provision of notarial, legal and enforcement activities in urgent cases. The main elements should include:
- Exclusion as far as possible of the documents on paper, including the transmission of the documents in electronic format with the application of the electronic signature (including the use of MSign platform), and, if necessary, for authentication purposes;
- Identifying and equipping isolated areas for communication with clients if the notary, attorney or enforcement services cannot be provided remotely;
- Treatment of surfaces and documents on paper support with ultraviolet light;
- Compulsory payment of services through electronic payments offered by commercial banks (p2p, internet banking) or opening the option of using MPay for private operators.
- Abandoning derogations from the provisions of the customs legislation regarding the import of medicines for the Transnistrian region.
The detailed opinion may be accessed here.
This opinion was prepared in the framework of the project „Support to the development and implementation of justice policies in the Republic of Moldova”, implemented by IPRE in partnership with CRJM, with the financial support of the European Union. Its contents are the sole responsibility of the authors and do not necessarily reflect the views of the European Union.