THE BAN ON ISSUING CERTAIN ACTS TO THE DEBTOR IN THE MATTER OF ENFORCEMENT PROCEDURE IN THE LIGHT OF CONSTITUTIONAL PROVISIONS

Aurel BĂIEŞU, Gheorghe RENIŢĂ* Universitatea de Stat din Moldova *Curtea Constituţională a Republicii Moldova

Аннотация

 This research is dedicated to the analysis of the ban on issuing civil status documents, identity documents or driving licenses to the debtors in the light of certain constitutional provisions. In this context, the wide legal framework, the judgments of the Constitutional Court, doctrinal approaches and judicial practice in the field are used. In particular, it appears that the ban on issuing a passport and travel document (the documents permitting to leave a country) applied to the debtor in the forced execution procedure of an enforceable document constitutes an interference in the freedom of movement enshrined in art.27 of the Constitution. On the other hand, the prohibition of issuance of the identity card and residence permit as a category of special identity documents, as well as civil status documents and the driving license, implies intrusions in private and family life, enshrined in art.28 of the Constitution. However, both, freedom of movement right and private and family life are not part of the category of absolute rights, which limitation is prohibited. This is why the proportionality test was used as a logical method designed to help to establish a fair balance between the restrictions imposed by the contested provision and the degree of severity of the measure applied by examining whether the freedom of movement right and private and family life suffered a limitation that does not fall under the conditions imposed by the Constitution. It has been shown that the interference in this case pursues a legitimate aim, namely: the protection of the rights of others, in the present case, of the creditor to obtain debtor's execution of his obligation under an enforceable document. Finally, after balancing the competing rights, it concludes that the ban on issuing civil status documents, identity documents and driving licenses represents itself a disproportionate measure in relation with pursued goal, thus infringing art.27 and 28 conjuncted with art.23 and 24 of the Constitution. 

Keywords: creditor, debtor, ban, civil status documents, passport, identity acts, driving license, forced execution procedure, freedom of movement, private and family life, proportionality.