Inadmissibility Of Referral No. 5A/2016 On Notification Constitutionality Control Article 186 Paragraph 3. (3), (8), (9) Of The Code Of Criminal Procedure Of The Republic Of Moldova Nr. 122-Xv Of 14 March 2003

Original Language Title: de inadmisibilitate a sesizării nr. 5a/2016 privind controlul constituționalității articolului 186 alin. (3), (8), (9) din Codul de procedură penală al Republicii Moldova nr. 122-XV din 14 martie 2003

Read the untranslated law here: https://www.global-regulation.com/law/moldova/5966082/de-inadmisibilitate-a-sesizrii-nr.-5a-2016-privind-controlul-constituionalitii-articolului-186-alin.-%25283%2529%252c-%25288%2529%252c-%25289%2529-din-codul-de-proced.html

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$20 per month, or Get a Day Pass for only USD$4.99.
    The Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Mr. Talal Igor DOLEA, GEOGRAPHIC LOCATION, Mr. Victor POPA, judges, with the participation of Mr. Bjørn Maximum, Registrar, considering the appeal filed on 4 February 2016, recorded at the same time, examining the admissibility of the referral, taking into account the laws and proceedings, Acting on February 26 in the Council room 2016 the next decision, a decision: in fact 1. On 4 February 2016, Mr. Vasile Bae and Adrian Ladani, deputies in Parliament, asked the Constitutional Court on an appeal concerning the control on notification constitutionality of article 186 paragraph 3. (3), (8), (9) of the code of criminal procedure of the Republic of Moldova nr. 122-XV of 14 March 2003.


A. reasons for referral 2. Reasons for referral, as were its authors, can be summarized as follows.
3. in accordance with article 11. 186 para. (3), (8) and (9) of the code of criminal procedure, the term applied to a person's arrest may exceed the time limit of 12 months. Similarly, under art. 186 para. (9) the extension to pre-trial phase of the case is being tried for 3 months.
4. At the same time, according to art. 25 para. (4) of the Constitution, the maximum duration of the arrest may not exceed 12 months, and each extension of the arrest may not exceed 30 days.
5. In the opinion of the authors of the referral, the contested provisions contrary to article 25 of the Constitution.


B. relevant Legislation 6. The relevant provisions of the Constitution (Official Gazette, no. 1, 1994) are as follows: Article 25Libertatea individual and security of a person "(1) individual freedom and security of the person are inviolable.
(2) Searching, detaining or arresting a person shall be permitted only in the cases and pursuant to the procedure provided by law.
[…]
(4) may be arrested only under warrant issued by a judge for a period not exceeding 30 days. Of the legality of their mandate may appeal the law in superior court. The term of detention can be prolonged only by a judge or by the Court, in accordance with the law, no more than 12 months.
(5) any person detained or arrested shall be promptly informed of the reasons for his detention or arrest, and prosecution — in the shortest possible time; the reasons for his detention and prosecution shall be made only in the presence of a lawyer, either chosen or appointed ex officio.
(6) the release of any person detained or arrested is mandatory if the reasons for his detention or arrest have disappeared. "
7. 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., 2012, nr. 263-269, 855) are as follows: Article 176Temeiurile for the application of preventive measures "(1) the preventive measures may be imposed by the Prosecutor ex officio or at the proposal of the prosecution, or, where appropriate, by the Court only in cases where there is sufficient reasonable grounds to assume that the suspect , the accused, the defendant would be able to hide from prosecution by the Court, or to prevent the establishment of the truth in the criminal trial, or commit other crimes, they also can be applied by a court to ensure the execution of the sentence.
(2) alternative measures to imprisonment and pre-trial detention applies only to the person who is suspected of an offence, a crime blamed on serious, very serious or exceptionally serious, and in the case of reasonable suspicion regarding the Commission of other offences, they shall apply to the defendant, the defendant who has committed at least one of the actions referred to in paragraph 1. (1).
[…]”


Article 186Termenul keeping the person in custody and his extension "(1) the period of holding of the person in custody shall run from the time the person's deprivation of liberty, detention and at her where she was not detained at the time of execution of the judgment of this Court concerning the application of preventive measures. Within the period of holding the suspect, accused, defendant in custody include the time during which the person: 1) was arrested and detained preventively;
2) was under house arrest;
3) was in a medical institution, the decision of the investigating judge or the Court, for expertise in terms of stationary, as well as to treatment, applying in respect of her of medical constraint.
(2) Keeping the person in custody during criminal investigation until submitting the case on trial shall not exceed 30 days, except in the cases provided for in this code.
(3) in exceptional cases, depending on the complexity of the criminal case, the gravity of the offence and in case of danger of extinction risk times of the defendant exercise on his part to pressure on witnesses or destruction of evidence means damage times, duration of keeping the accused in custody are being administered by the prosecution phase can be prolonged: 1) up to 6 months If the person is blamed for committing a crime for which the law stipulates a maximum sentence of up to 15 years in prison;
2) up to 12 months, if the person is blamed for committing a crime for which the law stipulates a maximum sentence of up to 25 years imprisonment or life imprisonment.
(4) keeping minors Învinuiţilor duration in a State of preventive detention can be prolonged only to four months.
(5) every extension of the duration of pre-trial detention may not exceed 30 days in criminal proceedings and 90 days in the trial phase of the case.
(6) in the case where it is necessary to extend the pre-trial detention of the accused, the accused, the Prosecutor, not later than 5 days before the expiry of the warrant, submit to the investigating judge or the Court, as appropriate, that assess a cause relating to the extension of this period. Where, at the date of adoption of the decision, the term arrest remained is shorter than 15 days, the Court is obliged, at the approach of the Prosecutor, to adjudicate over pre-trial prolongation deadline until the pronouncement.
(7) resolution concerning The extension of pre-trial detention, the investigation judge or, where appropriate, the Court is entitled to substitute the preventive arrest with arrest, judicial probation under the probation or on bail.
(8) after sending the case back to the Court, the period of trial of the case with the defendant in custody, from the day of receipt of the case in court and before pronouncement may not exceed 6 months, if the person is blamed for committing a crime for which the law stipulates a maximum penalty of up to 15 years imprisonment, and twelve months if the person is blamed for committing a crime for which the law stipulates a maximum penalty of up to 25 years in prison or imprisonment for life.
(9) After the expiry of the time limits set in paragraph 1. (5) and (8) the term resulting from the case with keeping the defendant in custody may be extended only in exceptional cases, at the approach of the Prosecutor, through the conclusion of the Court that judges the cause, each time with three months until the pronouncement.
(10) the Court Judgment of extension to the adjudication of the case with the maintenance in custody of the accused can be attacked with superior court appeal. Attacking the judgment shall not suspend the examination of the case.
(11) the provisions laid down in paragraph 1. (5), (6), (8), (9) and (10) shall apply, as appropriate, the examination of the case in the appeal.
(12) the extension of the duration of pre-trial detention up to six months shall be decided by the judge of instruction on the basis of Prosecutor in Vienna in the territory of which the prosecution is carried out, and in case of necessity to prolong pre-trial arrest over the term indicated in the same approach-based attorney, with the consent of the Attorney General or his deputies.
(13) decision on the extension of the duration of pre-trial detention may be appealed in court appeal higher. "
8. The relevant provisions of the European Convention for the protection of human rights and fundamental freedoms, as amended by the additional protocols (done at Rome on 4 November 1950 and ratified by decision of Parliament of the Republic of Moldova No. 1298-XIII of 24 July 1997), are as follows: Article 5Dreptul to freedom and safety "1. Everyone has the right to liberty and security.  No one may be deprived of his liberty except in the following cases and in accordance with legal paths: a) if it is legal on the basis of conviction by a competent court;
b) if the subject of the contravention or arrests for disobedience to a judgment, in accordance with the law, by a court or in order to guarantee the execution of an obligation prescribed by law;
c) if he was arrested or detained on bringing its competent judicial authority when there are credible grounds for suspecting that he has committed a crime or when there are reasonable grounds for believing in the need to prevent him to commit an offence or fleeing after committing it;

d) in the case of the detention of a minor who is committed to his education under supervision or his lawful detention for the purpose of bringing its competent authority;
e) in the case of detention of a person legally liable to transmit a contagious disease, an alienated, an alcoholic, a drug addict or a vagabond;
f) in the case of lawful arrest or detention of a person to prevent his effecting an unlawfully on the territory or against whom it is being taken with a view to deportation or extradition.
2. any person arrested shall be informed, within the time limit as soon as possible and in a language which he understands, of the reasons for his arrest and of any charge against him.
3. everyone arrested or detained under the conditions laid down in paragraph 1 (a). c) of this article shall be brought forthwith before a judge or other magistrate empowered by law with judicial duties and has the right to be judged within a reasonable time or released during the procedure. Release may be made subject to a guarantee that ensures the person's presentation at the hearing.
4. Any person deprived of his liberty by arrest or detention shall be entitled to bring proceedings before a court, in order to speedily the lawfulness of its over and have his release if possession is unlawful.
5. Any person who is a victim of an arrest or in contravention of the provisions of this article shall be entitled to repair. "


IN THE RIGHT HAND CORNER. The authors ' arguments 9 referral. The authors argue that the contested provisions of the referral does not satisfy the requirements of the law.
10. The authors of referral, in particular, claim that application of cumulative paragraphs (3), (8) and (9) of article 186 of the code of criminal procedure permits the extension of the preventive arrest for a period greater than 12 months, contrary to the express deadline provided for in article 25, paragraph 2. (4) of the Constitution.
11. in addition, the authors assert that the norm of referral to article 186 paragraph 3. (9) of the code of criminal procedure, which allows for issuing arrest warrants for a period of up to three months, violates the term of 30 days provided for by article 25 para. (4) of the Constitution.


B. Assessment Of The Court 12. Examining the admissibility of the referral, the Court notes the following.
13. pursuant to paragraph 1 of article 135. (1) (a) of the Constitution), article 4 para. (1) (a)) of the law on the Constitutional Court and to article 4 para. (1) (a). a) of the code of constitutional jurisdiction, the Court enforces, the constitutionality of laws.
14. the Court notes that articles 25 lit. g) of the law on the Constitutional Court and 38 para. (1) (a). g) of the code of constitutional jurisdiction authorizing Deputy in Parliament with the right to refer the matter to the Constitutional Court.
15. the Court retains that power was vested in it by article 135 paragraph 1. (1) (a). a) of the Constitution requires correlation of contested norms and the Constitution, taking into account the principle of the supremacy of the latter.
16. the Court notes that the subject of constitutionality is art. 186 para. (3), (8), (9) of the code of criminal procedure.
17. the Court noted that the contested rules were subject to notification constitutionality control by decision No. 3 of 23 February 2016. The decision referred to the Court has declared unconstitutional the provisions of articles 186, para. (3), (8), (9) and the phrase "90 days". 186 (5) of the criminal procedure code of the Republic of Moldova nr. 122-XV of 14 March 2003.
18. The Court has noted that, in accordance with article 25 (4) of the Constitution, pre-trial detention can be applied to a total period not exceeding 12 months, which includes both the prosecution stage, as well as the judicial phase, pending the conclusion of the Court by which a person is released from custody or the pronouncement of the sentence by the Court.
19. Thus, taking into account the identity of object, note that the Appeal Court cannot be declared admissible.
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 item 28 lit. d) of the regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court D E C I D E: 1. It is hereby declared inadmissible the appeal of deputies in Parliament and Adrian Vasile Bae Ladani notification constitutionality control article 186 paragraph 3. (3), (8), (9) of the code of criminal procedure of the Republic of Moldova nr. 122-XV of 14 March 2003.
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 Alexandru Tanase