Inadmissibility Of Referral No. 107G/2016 Concerning Constitutionality Of An Exception For Phrases From Paragraphs 1 And 2. (3) Of Article 34 Of The Code Of Criminal Procedure Of The Republic Of Moldova (Right To Recuse The Judge Who Handled The Reques...

Original Language Title: de inadmisibilitate a sesizării nr. 107g/2016 privind excepția de neconstituționalitate a unei sintagme din alin. (3) al articolului 34 din Codul de procedură penală al Republicii Moldova (dreptul de a recuza judecătorul care soluționează cererea de re

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    The Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Mr. Victor PALMER, Mr. Zadrahimi, judges, with the participation of Mrs. Eugenia Mîța, Registrar, taking into account the appeal lodged on 15 September 2016, recorded at the same time, examining the admissibility of the referral, taking into account the laws and proceedings, Acting on 19 September 2016 in Council the next decision, a decision: in fact 1. The origin of the case lies the plea of unconstitutionality of the phrase "or of the judge or judges ' Panel of the Court which dealt with the application for objection" in paragraph 1. (3) of article 34 of the code of criminal procedure, a lawyer raised in the Gheorghe Malic No. 14-ij 17-10932-08092016, on the role of the Buiucani from mun. Chişinău.
2. The appeal was lodged with the Constitutional Court on 15 September 2016 by judge Abc within the Black of the Buiucani, mun. Chişinău, pursuant to article 135 paragraph 1. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016, and of the regulation on the procedure for examining complaints lodged with the Constitutional Court.
A. the main dispute Circumstances 3. In the procedure of investigating judge within of the Buiucani, mun. Chisinau, is the application for revocation of the preventive arrest of the accused given that V.P. applied 4. On September 15, 2016, under art. 33 para. (2) item 6), the accused requested the challenge judge, citing the fact that the latter has not admitted its participation in the process has its defenders, in violation of her rights of defence.
5. In the process of examination of the application for objection, the lawyer Gheorghe Malic has called for the lifting of non-constitutionality exception to the provisions of paragraph 1. (3) of article 34 of the code of criminal procedure, which does not allow objection to judges that adjudicates an application for objection.
6. by the conclusion of 15 September 2016, a court-ordered lifting of the main exception and referral to the Constitutional Court for settlement.
B. relevant Legislation 7. The relevant provisions of the Constitution (Official Gazette, no. 1, 1994) are as follows: Article 20 access to justice "(1) Any person shall be entitled to effective satisfaction on the part of competent courts against acts which violate the rights, freedoms and legitimate interests.
(2) no law may restrict the access to justice. "


Article 21Prezumţia of innocence "any person charged with an offence is presumed innocent until his guilt is going to be proven legally, during a public trial in which he was assured all the guarantees necessary for his defence."


Article 116Statutul "(1) the judges of the courts are independent, impartial and irremovable under the law.
[...] "
8. The relevant provisions of the code of criminal procedure of the Republic of Moldova nr. 122-XV of 14 March 2003 (reprinted in m. o., 2013, no. 248-251, art. 699) are as follows: judge 33Incompatibilitatea "(1) the judges who are spouses or relatives among them may not participate fully in the same courtroom.
(2) the judge may not participate in the proceedings and to be recuzat: 1) if he personally, his spouse, descendants, ascendants times their brothers or sisters and their children, family members and individuals made through adoption, according to the law, such relatives, and other relatives of his, are directly or indirectly concerned in the process;
2) if he is an aggrieved party or its representative, the civil party, the party responsible husband civilmente or relative with any of these people or their representative, spouse or relative of the accused, the defendant in the trial with the Defender;
3) where he participated in this process as a witness, expert, specialist, interpreter, translator, the Registrar, the person who conducted the prosecution, Prosecutor, judge, Defender training, legal representative of the accused, the accused, representative of the injured party, the civil party or party civilmente responsible;
4) If an investigation or administrative control of the circumstances of the case or participated in the adoption of a decision concerning this issue in any public or governmental body;
5) if he took this question earlier rulings judgment in which he exposed the opinion on the guilt or innocence of the accused;
6) if there are other circumstances where a reasonable doubt the impartiality of the judge.
(3) the judge may not participate in a new trial of the case both in the first instance, and the ordinary or extraordinary remedies and to be recuzat and where he also participated as a judge in examining the same case in the first instance, by ordinary or extraordinary remedies, as well as in the case of participation as judge of instruction. This provision does not extend to members of the College of Criminal Justice of the Supreme Court and the judges of the Supreme Court of Justice to review the causes of the decision of the College of Criminal Justice of the Supreme Court.
(4) the provisions concerning cases of incompatibility laid down in paragraph 1. (2) item 5) and in paragraph 2. (3) does not apply to investigating judge and judge of the Court of appeal judges the appeal against the decision on preventive measure. "


Article 34Abţinerea or challenge the judge "(1) where there are circumstances referred to in article 33, the judge is obliged to make the statement by abstaining from prosecuting the case.
(2) for the same reasons, the judge can be recuzat and by the parties in the process. The challenge shall be reasoned and can be proposed as a general rule, prior to the commencement of legal research. Application of objection can be made later only if the one who makes the proposal to objecting to found out the reason for objection only after the commencement of legal research.
(3) no objection of judges still do not participate in the proceedings, and the judge or judges ' Panel of the Court which adjudicates the request of objection shall not be admissible, but the objection application arguments can be put forward in the appeal or, where appropriate, appeal against the judgment in the background.

(4) where the application for objection shall be submitted repeatedly with bad faith and abusively, in order to tergiversa the process, to confuse the judgment or for other malicious intentions, the Court which adjudicates the cause may be applied toward the offender a fine case in terms of this code. "


Article 35Procedura of resolution of the objection and application of the Declaration of abstention "(1) no objection or refraining judge deciding by another judge or, as the case may be, of another completely. Objecting to the settlement or failure of judges from a full consisting of three or five judges, judges in this fully nerecuzaţi may be included in the new completely.
(2) any application for objection or declaration of abstention is made on the same day, listening to the parties and the person whose objection is required. If you can't form a new full trial in the same court, the objection shall, not later than decide 10 days from the receipt of the dossier, the superior court, which, if it admits no objection or abstentions, shall designate for re-opening an equal degree with the Court in which he produced his challenge.
(3) the conclusion of the Court judgment on the objection, is not likely to be attacked. "
In the authors ' Arguments AS a. exception offline-stituționalitate 9. The motivation of non-constitutionality exception, counsel argues that the contested provisions, which do not allow the challenge of the judge who shall examine the application for objection to another judge, restrain from due process, within which they are to be provided with all the necessary guarantees of defence.
10. in addition, it is mentioned that the referral rules whose constitutionality is invoked and affects principle of inculpability.
11. Finally, it argues that the contested rules are disproportionate and contrary to articles 20, 21 and 54 of the Constitution.
B. Assessment Of The Court 12. Examining the admissibility of the referral regarding constitutionality exception, the Court notes the following.
13. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws, in particular the code of criminal procedure, is the responsibility of the Constitutional Court.
14. the Court finds that the appeal relating to the exception of unconstitutionality, being raised by her lawyer Gheorghe Malic in file No. 14-ij 17-10932-08092016, on the role of the Buiucani, mun. Chişinău, is made by the subject entrusted this right under article 135, paragraph 1. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016.
15. the Court reiterates that the prerogative to address the exceptions of unconstitutionality, which has been vested in it by article 135 paragraph 1. (1) (a). g) of the Constitution, requires correlation of laws and the Constitution, taking into account the principle of the supremacy of its provisions and to address the relevance of the contested dispute in the courts.
16. Note that Court of constitutionality exception object is represented by the phrase "or of the judge or judges ' Panel of the Court which dealt with the application for objection" in paragraph 1. (3) of article 34 of the code of criminal procedure.
17. the Court noted that art. 34 para. (3) of the CPC establishes that: "(3) no objection of judges still do not participate in the proceedings, and the judge or judges ' Panel of the Court which adjudicates the request of objection shall not be admissible, but the objection application arguments can be put forward in the appeal or, where appropriate, appeal against the judgment in the background."
18. the Court notes that the author claims that the provisions of the contested exception provisions contrary to articles 20, 21 and 54 of the Constitution.
19. the Court note that article 20 of the Constitution guarantees every person the right to effective satisfaction on the part of competent courts against acts which violate the rights, freedoms and legitimate interests.
20. the court notice that an essential attribute of a fair trial is the principle of the impartiality of the judge. In this regard, article 116 of the Constitution states that judges of the courts are independent, impartial and irremovable under the law.
21. Moreover, in its case-law the European Court with the title of the note that the principle is fundamental in a democratic society courts, litigants should inspire trust art. 6 paragraph 1 of the Convention, requiring each court to be impartial (cause c Italy, Padovani, judgement of 26 February 1993, paragraph 27).
22. Thus, with regard to the guarantees of a fair trial, the European Court has established that the impartiality of the judge must be assessed both according to a abordărisubiective, which consider personal beliefs or interests of the judge in a case, and according to an objective test, which determines whether or not the judge offered sufficient guarantees to preclude any doubt motivated from this point of view (case Demicoli v. Malta , nr. 13057/87, judgement of 27 august 1991, p. 40).
23. At the same time, the court notice that free access to justice means that any person may apply to the courts for the protection of rights, freedoms or legitimate interests, and not the fact that this right may not be subject to any strings attached. Thus, the Court noted that, in the light of art. 6 § 1 of the Convention, as well as through the jurisprudence of the European Court, the right of access to justice cannot be absolute, it can involve limitations, including procedural, as long as they are reasonable and proportionate to the aim pursued [Ashingdane v. uk, judgment of 28 May 1985, Buijen v. Germany, judgment of April 1, 2010]. The European Court held that, beyond the limits of what the content of this part right, there is no room for limitations brought about by default. However, the limitations must not restrict the right of access in both, so as to be reached its very substance.
24. the court notice that, in order to ensure the constitutional principle of impartiality of judges, article 33 of the code of Criminal Procedure regulates situations of incompatibility of the judge when examining the causes.

25. the Court points out that the institution of the proceeding and determine whether it constitutes a remedy for situations in which a presumption of impartiality of judges is questioned. The judge declared incompatible is prevented to attend the procedural activity undertaken in a particular question, in this way being adhered to principles of law regarding the impartiality and objectivity of the mode of settlement of disputes deducted judgment.
26. the Court noted that by edictarea legal provisions concerning incompatibility are targeted not only protect the interests of the litigant, but Parthian achieving optimal administration of Justice, through the delivery of judgments based on truth and on full impartiality of judges.
27. Thus, where one of the situations of incompatibility laid down in article 33 para. (2), the judge is obliged to refrain from the matter for further consideration or deducted may be recuzat by the parties at the trial. The Court points out that, by virtue of provisions laid down by law, assuming the existence of cases of incompatibility, the judge has the obligation, and not faculty, abstain. At the same time, the obligation of the judge to refrain from right part corresponds to recuse him.
28. the Court notes that, according to procedural, objection or refraining judge deciding by another judge or, as the case may be, of another completely. If you can't form a new full trial in the same court, the objection shall, not later than decide 10 days from the receipt of the dossier, the superior court, which, if it admits no objection or abstentions, shall designate for re-opening an equal degree with the Court in which he produced his challenge.
29. At the same time, the Court notes that the legislator established the prohibition or objection, the judge panel of the Court which adjudicates an application for objection.
30. In this regard, the Court points out that the procedure for resolving a request for an objection shall take the form of a contentious that treatment ads to judicial review, but it is a matter of administration of Justice. The procedure upon the research and trial application for objection is an incidental proceeding, whose object is distinct from the subject of the criminal process to which they relate; This procedure has no criminal jurisdiction in a material sense, but there is an administrative and judicial nature; documents in this procedure are fulfilled its judicial character imparts only in the formal sense.
31. In the light of those mentioned, note that Court rules of procedure in the matter of objection are common law rules relating to the prosecution of the case, they have a special character, conformity assessment the reasons adduced by the objection and abstention with those provided by law.
32. Moreover, the Court retained that prohibition upon the judge's objection, which examines the circumstances of incompatibility of another judge there is one absolute, which is offset by the possibility of invoking the arguments in the application for objection to the exercise of rights of appeal against the judgment in the background.
33. Furthermore, the Court noted that the purpose of the Bill is criticized to ensure protection of all litigants against the unwarranted delay of attempts to settle the case, narrowing down the possibilities for parties to seek suspension of trial of the case only in those situations that are justified rationally.
34. With reference to the allegations of the author referral according to which the contested rules affect the principle of the presumption of innocence, the Court shall act that, according to article 21 of the Constitution, any person accused of an offence is presumed innocent until his guilt is going to be proven legally, during a public trial. The Court finds the lack of a causal link between the institution "objection, the judge" and the determination of a person's guilt. Therefore, the Court retains the constitutional norm on the incidence of lack of legal provisions challenged.
35. Taking into account the above-mentioned arguments, the Court retains that the plea of unconstitutionality is unfounded, and therefore to be rejected.
For these reasons, pursuant to article 26 of the law on the Constitutional Court, articles 61 para. (3) and 64 of the code of constitutional jurisdiction and the PT 28 lit. d) of the regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court DECIDES: 1. To be declared inadmissible the appeal regarding plea of unconstitutionality of the phrase "or of the judge or judges ' Panel of the Court which dealt with the application for objection" in paragraph 1. (3) of article 34 of the code of criminal procedure of the Republic of Moldova nr. 122-XV of 14 March 2003, raised by lawyer Gheorghe Malic in file No. 14-ij 17-10932-08092016, on the role of the Buiucani, mun. Chişinău.
2. this decision is final, cannot be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.

THE PRESIDENT OF THE CONSTITUTIONAL COURT

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