Violation of the Principle of Equality of the Parties in Proceedings Where the State is the Debtor

Abstract

A civil or administrative litigation case does not end with the pronouncement of a final and/or irrevocable court decision. The enforcement phase represents the second stage of a civil trial, and the universally recognised principles for examining and resolving a dispute in court are also fully applicable to the enforcement stage. In the practice of national courts, it has been observed that the provisions of the Law on Public Finance and Budgetary-Fiscal Responsibility No. 181/2014 (as of the year 2016) contained unconstitutional regulations through which the enforcement of final court decisions was avoided, contrary to the provisions of Articles 20 and 120 of the Constitution. Although this issue was considered resolved through Constitutional Court Decision No. 32 of 17.11.2016, regrettably, the Parliament of the Republic of Moldova reinstated the same situation by adopting Bill No. 212/2017. Today, at the enforcement stage, court decisions obligating public law legal entities to pay monetary sums cannot be enforced simply because an appeal was declared, according to Article 68 para. (2¹) of the Law on Public Finance and Budgetary-Fiscal Responsibility No. 181/2014. If the principle of equality of parties in a trial implies that the legislator may provide for different treatment in specific situations for some litigants, this does not mean that the principle of equality of arms in a trial should be violated by adopting an unconstitutional norm. In other words, if a public law legal entity has the constitutional right to request from the appellate court the suspension of the enforcement of a final decision without posting a bond, then the same entity should not be allowed to unilaterally benefit from an automatic suspension of the enforcement of an appealed decision (in the case of the unquestionable removal of funds from the accounts of the national public budget's components) solely because of pressure on the public budget—especially when, under similar conditions, a private law legal entity does not benefit from such procedural advantages.