the exception of unconstitutionality of paragraphs (3), (5), (8) and (9) of Article 186 of the Criminal Procedure Code
(term remand) (Notification no. 7g / 2016) || |
in the Official Gazette
Article No. 8
Effective Date: 02/23/2016
On behalf of the Republic
Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU
Mr Igor DOLEA, Mr. Tudor
Mr. Victor POPA, judges, with the participation of Maxim
Considering the complaint filed on February 17, 2016
and registered on the same date
examining the notification mentioned in plenary publish | || Given the documents in the file,
deliberated in plenary closed
Delivers the following judgment: PROCEDURE
1. The case originated notification is submitted to the Constitutional Court on 17 February 2016 by Ms Viorica pullets, judge of the Botanica Court, Chisinau mun., Under Article 135 para. (1) a) and g) of the Constitution, as interpreted by the Constitutional Court Decision no. 2 of 9 February 2016 and the Regulation on the procedure for examining complaints lodged with the Constitutional Court on the unconstitutionality exception of paragraphs (3) (8) (9) and (11) of Article 186 ( "The duration of a person in custody and its prolongation ") of the Code of criminal procedure, raised in criminal case no. 1-239 / 15, before the Botanica Court, mun. Chişinău.
2. Author complaint alleged, in particular, that the cumulative application of the provisions of paragraphs (3) (8) (9) and (11) of Article 186 of the Criminal Procedure Code allows the extension of remand periods that exceed the limits expressly provided by Article 25 para. (4) of the Constitution.
March. By the Constitutional Court decision of February 17, 2016 notification was admissible, without prejudging the merits.
4. In examining the notification, the Constitutional Court requested the opinion of Parliament and Government.
May. Public plenary of the Court, the notification was supported by Ms Viorica pullets, judge of the Botanica Court, Chisinau mun., Author of the referral. The government was represented by Mr Eduard Serbenco, deputy minister of justice. Parliament representative did not attend the meeting. 6
CIRCUMSTANCES main proceedings. Botanica Court on the role of mun. Chisinau, during the judicial investigation, the defendants hearing stage, the criminal case on Ruslan Hîrcîiala defendants, Prokop Viorel Simion and Stegărescu.
July. The defendants were detained on 20 March 2015 and the end of March 21, 2015 the investigating judge ordered their placement in custody for a period of 30 days.
August. Subsequently, by the end of 17 April 2015 the investigating judge ordered the extension of detention on remand for a period of 30 days.
September. By concluding on 18 May 2015 August 12, 2015 and 12 November 2015 arrest on the accused was extended, each time for 90 days.
10. By the end of February 5, 2016, the court extended the preventive measure of arrest by 20 March 2016 expiry of 12 months.
11. By decision of 10 February 2016 the Court of Appeal upheld the appeal filed by the prosecutor and ordered the defendants on remand extension for a period of 90 days starting February 11, 2016. Appeals filed by lawyers on cancellation of February 5, 2016, release the defendants from custody and application of other preventive measures were rejected.
12. On 16 February 2016 Ms Viorica pullets, judge of the Botanica Court, mun., Raised the Constitutional Court the exception of unconstitutionality of the provisions of paragraphs (3) (8) (9) and (11) of Article 186 of the Code criminal procedure.
RELEVANT LAWS 13. The relevant provisions of the Constitution (OJ 1994, no. 1) are:
Article 4Drepturile and freedoms
"(1) Constitutional provisions on the rights and freedoms are interpreted and applied in accordance with the Universal Declaration of Human Rights, with the covenants and other treaties to which Moldova is party.
(2) Where any inconsistencies exist between the covenants and treaties on fundamental human rights to which Moldova is a party and its domestic laws, international regulations have priority. "
Article 25Libertatea individual and personal security
"(1) Individual freedom and security of person are inviolable.
(2) Search, detainment or arrest of a person shall be permitted only in cases and procedure provided by law.
(4) Arrest shall be made under a warrant issued by a judge for a maximum period of 30 days. The lawfulness of the warrant may be challenged under the law in a higher court. The period of detention may be extended only by a judge or by the court, under law, to no more than 12 months.
(5) Any person detained or arrested shall be promptly informed of the reasons for detention or arrest and prosecution - in the shortest possible time; notification of the charges shall be made only in the presence of a lawyer, chosen or appointed ex officio.
(6) Release detained or arrested person is obligatory if the reasons for detention or arrest have disappeared. "
14. The relevant provisions of the Criminal Procedure Code of the Republic of Moldova no. 122-XV of 14 March 2003 (republished in the Official Gazette, 2012 nr.263-269, art.855) are:
Article 176Temeiurile for preventive measures
"(1) Preventive measures may be applied by the prosecutor, ex officio or upon the proposal of the prosecution, or, where appropriate, by the court only in cases where there are serious grounds for believing that an accused accused, defendant may abscond court prosecution or obstruct the establishment of the truth or commit other crimes, or they can be applied by the court to ensure execution of the sentence.
(2) Preventive arrest and detention alternative measures apply only to the person who is suspected, accused of committing a serious, very serious or extremely serious and if there is a reasonable suspicion regarding further offenses, they apply accused or defendant who has committed at least one of the actions referred to in para. (1).
Article 186 The term of holding a person in custody and its prolongation
"(1) The term of holding a person in custody runs from the moment the person is deprived of liberty in her apprehension, and if it was not accepted - the time of execution of the judgment on the application of preventive measures. The period of keeping the suspect, the defendant in custody includes the time the person:
1) was arrested and remanded in custody;
2) has been under house arrest;
3) was in a medical institution, the decision of the prosecutor or the court in the hospital for examination and treatment, after applying on her medical coercive measures.
(2) Keeping a person in custody during prosecution to refer the case to court shall not exceed 30 days, except as provided in this Code.
(3) In exceptional cases, depending on the complexity of the criminal case and the seriousness of the offense and in case of danger the accused will abscond or risk the exercise of pressure on witnesses, destroy or tamper with evidence, duration keeping the accused in custody on remand during the criminal investigation may be extended:
1) up to 6 months if the person is accused of an offense for which the law prescribes a maximum penalty of up to 15 years in prison;
2) up to 12 months if the person is accused of committing a crime for which the law provides for maximum punishment of up to 25 years imprisonment or life imprisonment.
(4) The period of keeping the accused is a minor in custody on remand may only be extended to 4 months.
(5) Each prolongation of preventive arrest can not exceed 30 days during 90 days prosecution and case adjudication.
(6) If it is necessary to extend the remand of the accused, the defendant, the prosecutor no later than 5 days before the expiry of the arrest before the investigating judge or, where appropriate trial court a motion to extend the term. If, on the date of the sentence, remand remaining term is less than 15 days, the court is obliged, upon request of the prosecutor, to decide on extending the term of preventive arrest until sentencing.
(7) When deciding on the extension approach the remand, the judge or, where appropriate, the court shall have the right to replace remand with home detention, pending trial or release on bail.
(8) after referring the case to court term maintenance of the proceedings with the defendant in custody the day of receipt of the case in court and to sentence can not exceed 6 months, if the person is accused of an offense for which the law prescribes a maximum punishment of up to 15 years in prison and 12 months if the person is accused of an offense for which the law prescribes a maximum punishment of up to 25 years imprisonment or life imprisonment.
(9) after the deadlines specified in para. (5) and (8) the term maintenance of the proceedings with the defendant in custody may be extended only in exceptional cases to the prosecutor through a motivated court that the criminal case, each time with 3 months to sentencing.
(10) The court decision to extend the deadline to adjudicate keeping the accused in custody may be appealed in a higher court. Appeal does not suspend the case.
(11) Provisions in par. (5) (6) (8) (9) and (10) apply properly examining the case on appeal.
(12) Extending arrest
six months to be decided by the judge on the basis of the request of the district prosecutor in the jurisdiction of which is conducting the criminal investigation and if necessary to extend remand over the period indicated - based on the same approach prosecutor with the consent of the Attorney General or his deputies.
(13) The decision to extend the detention on remand may be appealed in a higher court. "
15. The relevant provisions of the Universal Declaration of Human Rights (adopted on 10 December 1948 in New York, to which Moldova joined by Parliament Decision no. 217-XII of 28 July 1990) are:
Article 3 "Everyone has the right to life, liberty and security of person
" Article 9 "No one shall be arrested, arbitrarily detained or exiled."
16. The relevant provisions of the International Covenant on Civil and Political Rights (adopted on 16 December 1966 in New York and ratified by Moldova on 28 July 1990 by the Parliament Decision no. 217-XII) are:
"1. Everyone has the right to liberty and security of person. Nobody can be arrested or detained arbitrarily. No one shall be deprived of his liberty except on such grounds and in accordance with the procedure prescribed by law.
2. Anyone who is arrested shall be informed, at the time of his arrest, of the reasons for his arrest and shall be notified in the shortest time of any charges against him.
March. Anyone arrested or detained on a criminal offense shall be brought in promptly before a judge or other authority empowered by law to exercise judicial office and will be tried within a reasonable time or to released. Detention of persons to be prosecuted should not be the rule, but release may be subject to guarantees ensuring their appearance for trial, at any other pleadings and, if necessary, for the judgment.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to lodge a complaint before a court for it to act without delay on the lawfulness of his detention and order his release if the detention is not lawful.
May. Anyone who has been the victim of unlawful arrest or detention has the right to compensation. "
17. The relevant provisions of the European Convention on Human Rights and Fundamental Freedoms, as amended by the Additional Protocols to the Convention (concluded in Rome on 4 November 1950 and Moldova ratified by Parliament Decision no. 1298-XIII of 24 July 1997), are as follows :
Article 5Dreptul to liberty and security
"1. Everyone has the right to liberty and security. No one shall be deprived of his liberty save in the following cases and in legal ways:
a) the lawful detention on conviction by a competent court;
B) if she was arrested or lawfully detained for disobedience to a judgment according to law, by a court or in order to secure the fulfillment of any obligation prescribed by law;
C) the lawful arrest or detention with a view to bringing him before the competent legal authority when there is probable cause to believe that an offense committed or there are reasonable grounds to believe in the need to prevent him from committing a offense or fleeing after having done so;
D) whether it is lawful detention of a minor, committed to educational supervision or his lawful detention for the purpose of bringing him before the competent authority;
E) if the lawful detention of a person liable to transmit infectious diseases, of persons of unsound mind, alcoholics, drug addict or a vagrant;
F) whether it is lawful arrest or detention of a person to prevent illegally entering the territory or against whom action is being taken with a view to deportation or extradition.
2. Any person arrested shall be informed, promptly and in a language which he understands, of the reasons for his arrest and of any charge against him.
March. Everyone arrested or detained in accordance with the provisions of paragraph 1 letter c) of this Article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for the trial.
4. Any person deprived of his liberty by arrest or detention shall be entitled to bring an appeal before a court for it to rule in the short term on the lawfulness of his detention and release ordered if the detention is not lawful.
May. Anyone who is the victim of arrest or detention in contravention of the provisions of this article shall be entitled to compensation. "
THE LAW 18. From the content of the notification, the Court observes that it essentially aims possibility of extension by the court in a criminal pre-trial detention (1) the arrest warrants exceeding 30 days, and (2) a total duration exceeding 12 months .
19. Thus, the notification relates to a number of factors and principles with constitutional value related, such as the right to personal liberty and security of person, the principle of inviolability of the person, the principle of legality of criminal proceedings and protection against arbitrary, proportionality and reasonableness of the pre-trial detention, the presumption innocence.
ADMISSIBILITY 20. Decision no. 2 of 9 February 2016 for the interpretation of Article 135 para. (1) a) and g) of the Constitution, the Court held:
- if there is uncertainty regarding the constitutionality of laws [...] to be applied in any proceedings pending before the court is obliged to notify the Constitutional Court ;
- Plea of unconstitutionality may be raised before the court by either party or its representative and the court of its own motion;
- Notification on reviewing the constitutionality of rules to be applied in any proceedings shall be presented directly by the Constitutional Court judges / panels of judges in the Supreme Court, courts of appeal and courts, the role of which is due ;
21. By decision of 17 February 2016, the Court examined the admissibility following conditions are met:
(2) exception object falls into the category of documents contained in Article 135 para. (1) a) of the Constitution.
22. Under Article 135 para. (1) a) of the Constitution, the constitutionality of laws, namely the Code of Criminal Procedure, the competence of the Constitutional Court.
(2) exception is raised by a party or its representative, or indicate that it is raised by the court of its own motion.
23. Being raised by a judge of the Botanica Court, Chisinau mun., Before which the case is pending, notification on the objection of unconstitutionality shall be made subject legally authorized, under Article 135 para. (1) a) and g) of the Constitution, as interpreted by the Constitutional Court Decision no. 2 of 9 February 2016 and the Regulation on the procedure for examining complaints lodged with the Constitutional Court.
(3) The provisions challenged to be applied to solving the case
24. The Court held that the power to handle exceptions of unconstitutionality, which was vested by Article 135 para. (1) g) of the Constitution requires establishing the correlation between the laws and the Constitution, taking into account the principle of the primacy and relevance of its contested provisions for resolution of the dispute in the courts.
25. The Court observes that the object of the objection of unconstitutionality is the provisions of paragraphs (3) (8) (9) and (11) of Article 186 of the Criminal Procedure Code of the Republic of Moldova.
26. Court accepts the arguments author of the notification, that the contested provisions to be applied to solving the case, as under the sway of them were born legal relations which remain in effect and are crucial to deciding on the extension of pre-trial detention after 20 March 2016 regardless of the findings of the appeal court.
27. In this context, the Court observes that the provisions of paragraph (3) of article 186 of the Criminal Procedure Code refers to the duration of detention during the criminal investigation. So, despite the relevance to the calculation of the periods at issue, however, its provisions have no bearing on the criminal case in which the exception was raised, which is already at the judicial stage.
28. The Court also notes that paragraph (11) of article 186 of the Criminal Procedure Code is a rule of reference, inter alia in paragraphs (8) and (9) challenged, but that has applicability only to consider the case on appeal. That provision has no bearing on the dispute, which is at the stage substantive examination in the first instance. Furthermore, in examining the case on appeal, the person is detained under conditions approved by Article 5 § (1) a) of the European Convention, based on the conviction handed down by a competent court. So it is not necessary to extend the arrest as long as the sentence to imprisonment not be annulled by the appeal court.
29. In Decision no. 2 of February 9, 2016 the Court emphasized that the exception of unconstitutionality is a procedural action defense by the Constitutional Court before it on inconsistency with the Constitution of the legal provisions applicable in the case before the court.
30. Therefore, in this part of the referral exception of unconstitutionality is inadmissible because (3) and (11) of Article 186 of the Criminal Procedure Code have no bearing on the criminal case is raised objection of unconstitutionality.
(4) There is an earlier judgment of the Court covering 31
contested provisions. The Court notes that the previously verified the constitutionality of certain provisions on detention (Decision no. 72 dated 23 December 1999), in the wording of the Criminal Procedure Code of 24 March 1961.
32. In this context, the Court notes that, after the judgment, Law no. 351 of 12 July 2001 was adopted a new wording of Article 25 para. (4) of the Constitution.
33. Also on 14 March 2003 it adopted a new Code of Criminal Procedure of the Republic of Moldova, no. 122-XV.
34. The Court notes that the European Court ruled that the 1999 interpretation of the effects of enlargement on the new version of Article 25 para. (4) of the Constitution are incompatible with the European Convention.
35. In this context, the Court reiterates that in its judgment of 14 October 1999 on the No.55 interpretation of certain provisions of Article 4 of the Constitution, ruled value principle that "this provision carries legal consequences, assuming, first, that law enforcement bodies, including the Constitutional Court [...] are entitled to apply to the examination of concrete cases international law [...], with the event of a conflict, the provisions of international priority. "
36. In the same vein, in Case no. 10 of 16 April 2010 to review the judgment of the Constitutional Court no. 16 of 28 May 1998 "On the interpretation of Article 20 of the Constitution" in the wording of Resolution no. 39 of 9 July 2001, the Constitutional Court stated that "international legal practice [...] is mandatory for Moldova, as a State party to the Convention for the Protection of Human Rights and Fundamental Freedoms".
37. Given that Article 25 para. (4) of the Constitution has a new version, which was not subject to interpretation by the Constitutional Court, the Court considers it necessary to interpret this article as amended by Law no. 351 of 12 July 2001.
38. In light of the above, the Court finds that the contested rules were not previously subject to review constitutionality of the Constitutional Court.
39. The Court therefore considers that the notification can not be dismissed as inadmissible and there is no other reason to stop the process, in accordance with Article 60 of the Constitutional Jurisdiction Code.
40. Thus, to elucidate the issues addressed in the complaint, the Court will operate with Article 25 para. (4) of the Constitution, the reasons given in its previous case law and jurisprudence of the European Court.
B. MERITS OF THE CASE
ALLEGED VIOLATION OF ARTICLE. 25 para. (4) of the Constitution
41. According to the author of the referral, the constitutionality of the provisions under review violates Article 25 para. (4) of the Constitution, which states:
"(4) Arrest shall be made under a warrant issued by a judge for a maximum period of 30 days. The lawfulness of the warrant may be challenged under the law in a higher court. The period of detention may be extended only by a judge or by the court, under law, to no more than 12 months. "
1. Arguments author
42 referral. The author argues that the plea of unconstitutionality of the provisions under review do not meet quality constitutionality of the law.
43. Author of the notification claim in particular that the cumulative application of the provisions of paragraphs (3) (8) (9) and (11) of Article 186 of the Criminal Procedure Code allows the extension of pre-trial detention for a period of over 12 months, contrary limit expressly provided for in Article 25 para. (4) of the Constitution.
44. The author also argues that the complaint because it allows the issuance of arrest warrants for a period of up to 90 days, Article 186 para. (9) of the Criminal Procedure Code violates the 30 days provided for by Article 25 para. (4) of the Constitution.
2. Arguments authorities
45. In his view, the Government said that the constitutional provision of Article 25 para. (4) be interpreted as applying separately to the remand for 12 months for the prosecution and case adjudication. Accordingly, the total length of pre-trial detention may be 24 months.
46. Referring to the duration of the warrant, the Government believes that the constitutional deadline of 30 days only refer to criminal prosecution stage, so that the judicial phase is admissible issuing arrest warrants for a period of up to 90 days.
47. In conclusion, the Government argued the constitutionality of the contested rules.
48. Parliament has not submitted to the Court opinion.
Court's discretion 3.1. General principles
49. The Court reiterates that in a democratic society the basic task of the state is to protect the person. By establishing rules criminal procedure, the state aims to protect the person and society of crime, but at the same time, protect the person and company abuses persons vested with powers of investigation of criminal offenses, such as any person who has committed a crime be punished according to his guilt and no innocent person would be prosecuted and sentenced [Decision no. 12 of May 14, 2015 regarding the exception of unconstitutionality of Article 287 para. (1) of the Criminal Procedure Code (resumption of prosecution), §41].
principle of inviolability of the person. Article 25 of the Constitution guarantees the principle of inviolability of individual freedom and personal security, according to which no one can be arrested and detained only in cases and manner provided by law.
51. The same principle is enshrined and international human rights instruments to which Moldova is party.
52. Under Article 3 of the Universal Declaration of Human Rights, "everyone has the right to life, liberty and security of person" and Article 9 states that "no one may be arrested, detained or exiled arbitrarily."
53. The Universal Declaration are covered in more detail in the International Covenant on Civil and Political Rights, which declares as a rule the state of freedom of the person and insists that any deprivation of liberty must be specifically justified (art. 9 § 1). Article 9 § 3 of the International Covenant on Civil and Political Rights stresses that detention of persons who are awaiting delivery of a solution should not be the rule.
54. Art. 5 § 1 lit. c) of the European Convention also aims deprivation of liberty in criminal proceedings. European Court case law on the matter rich in art. 5 of the Convention, outlined some guidelines concerning the conditions and limits of arrest, placing the foreground presumption of innocence as a benchmark to examine a concrete situation.
55. In the European Union were adopted on the basis of the roadmap which was endorsed by the Council on 30 November 2009, a series of directives, which supplement the legal framework provided by the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, establish minimum rules concerning aspects of criminal proceedings: Directive. 2010/64 / EU on the right to interpretation and translation in criminal proceedings, Directive Nr.2012 / 13 / EU on the right to information in criminal proceedings, Directive. 2013/48 / EU on the right of access to a lawyer in criminal proceedings and proceedings on the European arrest warrant, and the right to a third person to be informed by deprivation of liberty and the right to communicate with third parties and consular authorities during the deprivation of liberty and the Directive on strengthening certain aspects of the presumption of innocence and the right to be present at trial in criminal proceedings.
56. The main objective of the constitutional provisions and international acts mentioned is to avoid arbitrary detentions and those too long (Lukanov v. Bulgaria, 20 March 1997 1997 Reports II, § 41; Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004 II, § 46; and Ilaşcu and others v. Moldova and Russia [GC], no. 48787/99, § 461, ECHR 2004 VII).
Therefore any deprivation of liberty, no matter how short, must be justified. Justification for the measure must be convincing and thorough. Lack of motivation or superficial reasoning makes arrest or prolong it to be unlawful.
57. Both detention constitutes deprivation of liberty (Străisteanu and Others v. Moldova, no. 4834/06, §§ 85-88, April 7, 2009, or Witold Litwa v. Poland, nr.26629 / 95, April 4, 2000) and detention or house arrest (Mancini v. Italy, no. 44955/98, § 17; or Nikolova v. Bulgaria (no. 2), no. 40896/98, § 60, 74, 30 September 2004).
3.1.2. The principle of legality 58
criminal trial. The requirement of "legality" means that both the circumstances underlying the charges brought and the conditions for the application of deprivation of liberty are, wherever possible, provided by the law in a clear way so that law enforcement be predicted.
59. The law must be sufficiently precise to allow the person - if necessary, with appropriate advice - to foresee, to a reasonable circumstances, the consequences that can derive from a specific act (Mooren v. Germany (MC), no. 11.364 / 03, § 72, ECHR 2009 -..., and Medvedyev and others v. France (MC), no. 394/03, § 80, ECHR 2010 -...] Steel and others v. the United Kingdom, judgment of 23 September 1998, Reports 1998-VII, § 54, Baranowski v. Poland, no. 28358/95, § 52).
60. According to art. 25 para. (4) of the Constitution, a person deprived of liberty has the right to challenge in court the legality of the measure and obtain his release if it is illegal.
61. To be able to exercise this right, the person must have access to the documents in the file of the criminal investigation, which justified the deprivation of freedom, and not just procedural documents, but even samples (ECHR Turcan v. Moldova, judgment of 23 October 2007, § 56-64). The complaint must be resolved in a short term (Sarban v. Moldova, judgment of 4 October 2005, § 118-123), in a hearing to ensure equality of arms between the parties, ie between the prosecutor and the detained (Nikolova v. Bulgaria, judgment of 25 March 1999, § 58).
62. The principle of legality implies respect for procedural safeguards provided by law against arbitrary because the measure to be applied correctly reported in each case.
63. Naturally, the decision is taken on the application of detention, national courts must apply the standards imposed by the European Convention: lawfulness of detention; the existence of reasonable suspicion; presence of risk; proportionality, reasonableness and necessity of applying detention and, finally, the possibility of applying custodial measures.
3.1.3. Proportionality and reasonableness of the preventive arrest
64. The rule is the freedom of the individual. The arrest is an exceptional measure. As a result, the arrest can only be ordered in certain cases, and for some reason, to be shown in a concrete and convincing body which has decision.
65. According to art. 5 § 1 lit. c) the European Convention, remand aims prosecution committed ( "the purpose of bringing him before the competent judicial authority"). The goal can not be limited to prevent crime, maintain security and public order or to collect samples without intent to prosecute offense.
66. Moldovan legislation, like Article 5 § 1 lit. c) of the Convention allows the confinement of a person only if there is "reasonable suspicion" that the person has committed a crime. The reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned might have committed the offense.
67. Findings of this will depend on all the circumstances of the particular case and also the facts that outline a reasonable suspicion must not be at the same level as those necessary to justify a conviction, or making accusations on the next stage of the prosecution ( Erdagöz v. Turkey; Fox, Campbell and Hartley, Murray and Brogan v. United Kingdom).
68. These facts and data have a lower degree of certainty than the one required for the evidence required to be formulated charges (Muşuc v. Moldova, judgment of 6 November 2007, § 31). However, a person can not be detained solely on the statement of the alleged victims or when there is reason to doubt the credibility of the witnesses (Stepuleac v. Moldova, judgment of 6 November 2007, § 68-81).
69. Art. 5 § 3, reported in § 1 point c) of the European Convention provides that a person accused of an offense must always be released pending trial unless the evidence for reasons that could justify a custodial measure.
70. The rule is the research person in custody (Letellie v. France, judgment of 26 June 1991, § 35). State must show that there are "relevant and sufficient" to justify the continued deprivation of liberty (Yağcı and Sargın v. Turkey judgment of 8 iunie1995, § 52). To justify detention, though it may be short, it is for and must be made accessible and compelling (Belchev v. Bulgaria, judgment of April 8, 2004, § 82).
71. An arbitrary reasoning or lack factual arguments means that detention is not justified. General and abstract arguments are not sufficient (Becciev v. Moldova, judgment of 4 October 2005, § 56). Justification arrest can not be reduced to paraphrasing the text of the law describing the reasons for that category may order the arrest (Sarban v. Moldova, judgment of 4 October 2005).
72. There is reason to arrest the need to administer a test or completion of the criminal investigation. The arrest of a person on the ground heard as a witness in a criminal proceeding parallel is not allowed (
Giorgi Nikolaishvili v. Georgia, judgment of 13 January 2009).
73. There are reasons for the detention of a suspect committing a crime if there is a risk:
- his absconding from trial (Stogmuller v. Austria, judgment of 10 November 1969 § 15);
- To affect the administration of justice (Wemhoff v. Germany, judgment of 06.27.1968, § 14);
- To commit other crimes (Matznetter v. Austria, judgment of 10 November 1969 § 9);
- To cause public disorder (Letellier v. France, judgment of 26 June 1991, § 51).
But these dangers and risks must be supported by factual evidence (Turcan v. Moldova, judgment of 23 October 2007, § 48-49).
74. Data from evidence or information should be sufficient to be born a guess (assumption) based on objective factors, in the sense required by law. These samples or information are contained in the procedural documents accompanying the prosecutor and must be filed with access to, even at the risk of disclosure issues that the prosecutor wanted them still secret (Turcan and Turcan v. Moldova, judgment of 23 October 2007).
75. The approach and materials that confirm the grounds for the application of arrest or house arrest shown lawyer when filing a submission for preventive arrest or house arrest and judge (Lamy v. Belgium, judgment of 30 March 1989) .
76. Practice not to file materials relating to the reasons for arrest, coupled with the failure of the courts to invoke relevant and sufficient grounds for arrest, the accused confirmed legitimately impression that his detention was arbitrary.
77. In this context, as leaving in liberty is the rule and deprivation of liberty is the exception, it must justify why we chose to arrest and not for another measure of restraint easier (Witold Litwa v. Poland, judgment of April 4, 2000 , § 78; Enhorn v. Sweden, judgment of 25 January 2005, § 44). Remand can be applied only in case of impossibility of applying a lighter other preventive measures.
3.1.4. The reasonable term in arrest procedures
78. The Court recalls that the principle of reasonable term of criminal proceedings is an element of the right to a fair trial application. According to this principle, the prosecution and the courts have an obligation to ensure settlement of criminal cases within a reasonable time.
79. Criminal proceedings as a whole, must be conducted expeditiously (speed). The duration of proceedings, both at the level of an arrest procedures, and at a retrial in the background on a charge is treated by the European Convention in art. 5 and art. 6 § 1 and § 3 lit. a).
80. The arrest is a temporary measure, as it has for a fixed period of time. It is also a temporary measure because last as long as the circumstances are present which was willing and withdrawn as soon as they are gone.
81. As for the remand in custody, the rules which establish reasonable time are:
- celerity to inform the arrested person (art. 5 § 2 of the Convention): the reasons for his arrest and the charge against him; is done in the shortest possible time;
- Celerity in control detention (Art. 5 § 3 of the Convention) is made immediately (ie immediately) and automatically; by a judge or magistrate empowered;
- Celerity to decide on the appeal in reviewing the legality of any arrest or detention (Art. 5 § 4): is a short term;
- Reasonable length of detention (Art. 5 § 3) any person arrested has the right to be tried within a reasonable time or released during the procedure.
82. The right to liberty and security, a person can not be deprived except in exceptional circumstances, it is reinforced by two requirements:
1) deprivation of liberty can not be extended out of time strictly necessary;
2) issue as soon as possible the person concerned when the deprivation of liberty is found to be unjustified.
presumption of innocence. Everyone is innocent until a final judgment of conviction. This principle allows the suspect or defendant to be considered in good faith and to defend itself from any possible accusation unfair or disproportionate.
84. The presumption of innocence does not mean that during criminal proceedings could be taken against the procedural investigated. What this principle requires, on the one hand, that does not mean that a person is arrested at the end of this process will be doomed, but that any solution is possible, including that of payment. On the other hand, when applying a preventive measure, the judge will put the issue on the guilt of a person suspected of having committed a crime, but only if evidence or sufficient information showing suspicion that the person committed the offense .
85. The person subject to preventive measures, in accordance with the principle of presumption of innocence, it is considered innocent and should be treated with justice and humanism, in conditions that do not cause physical or moral suffering and not humiliate dignity.
86. Meanwhile, the European Court established that the presumption is in favor of release. Thus, by the conviction, the person must be presumed innocent and the essential purpose of the provision of Article 5 § 3 of the Convention is to require his provisional release once his continuing detention ceases to be (McKay v. United Kingdom [GC], no. 543/03 , § 41).
87. After rebut the presumption of innocence on conviction by a competent court, could be considered that the person is lawfully detained, under conditions approved by Article 5 § (1) a) of the European Convention.
3.2. Applying the principles set out in this case 3.2.1. (Re) rating conditions for remand extension
88. Justification for any period of detention, regardless of duration must be convincingly demonstrated by the authorities (Belchev v. Bulgaria).
89. The Court reiterates that the extension of remand should be performed at intervals that provide the possibility of keeping the person in custody proving further. Equally, it is necessary to identify all aspects of risk placing concrete in freedom of a person in custody on remand, being necessary to examine alternative ways of deprivation of liberty (Calmanovici v. Romania, judgment of 1 July 2008). The mere reference to legal grounds or abstract danger it can entails leaving in freedom is not sufficient (Degeratu v. Romania, judgment of 6 July 2010).
90. Thus, any extension of detention in fact take place according to the similar procedure related to the initial application of arrest. Therefore, the extension of pre-trial judge must be guided by the same rules and reasons for the initial application of arrest.
91. Furthermore, authorities should be obliged regularly to review the ongoing arrest and verify retains its original grounds timeliness or if there are no reasons which allow for milder measures than arrest (Idalov v. Russia, Kudla v. Poland). If this does not justify the arrest may evolve into a detention arbitrary and therefore unlawful (Oprea v. Moldova). An extension quasi-automatic arrest (Tase v. Romania) or through general and abstract passages (Boicenco v. Moldova) does not meet Article 5 § 3 of the European Convention and, therefore, the requirements of Article 25 para. (4) of the Constitution.
92. The Court notes that pre-trial detention should only be applied strictly necessary cases, there is no alternative, and as a measure of last resort and not as a punishment measure.
93. In this regard, the Court notes that there are four reasons that may justify application or extension of remand:
1) the risk that person to evade criminal liability;
2) prevent the risk of the administration of justice;
3) preventing the person committing a new crime;
4) the risk that the release of the person will cause public disorder.
94. These grounds are not to be met then the presence of only sufficient grounds to apply arrest.
95. The existence of reasonable suspicion that legitimate suspicion that a person has committed the offense for which tracked should be regarded as a general condition and independent grounds for arrest, that the danger of theft of justice, the danger of committing a serious crime, danger to impede the administration of justice, serious danger to public order. Therefore, a person can be detained only when suspicions are committing a crime together with the existence of grounds justifying. A directive to this effect is expressly enshrined in the Recommendation. (2006) 13 on remand, given that it runs and safeguards against abuse adopted by the Committee of Ministers of the Council of Europe
27 September 2006 at the 974 th meeting of delegations ministers.
96. The Court notes that although certain special offenses endangering public order, it decreases with time, which requires the authorities obligation to provide reasons fleshed on the persistence of the reasons for maintaining a person in custody.
3.2.2. The maximum duration of the warrant
97. The arrest was made under a warrant issued by a judge. This mandate is in fact legal basis for those whom it is addressed to execute deprivation of liberty.
98. The Court points out that the term of holding the person in custody must be reasonable, and reasonable limits appreciation in concreto is achieved by analyzing the circumstances of each case.
99. When determining the duration of detention, especially when requested prolongation of the measure, the judge must meet this term should not exceed a reasonable limit (Wemhoff v. Germany, judgment of 27 June 1968). In assessing the reasonableness of the length of detention should be considered complexity of the case and arrested the accused right to faster resolution of its case, the necessity of explaining it in all aspects.
100. In this context, the Court holds, as a principle, that the seriousness of the alleged crime itself does not justify the measure remand.
101. Also, the European Court noted that after a certain period of preventive detention is no longer sufficient to invoke the initial ground but needed other relevant and sufficient reasons to confirm the investigation in custody, and a particular effort to authorities in proceedings .
102. So, set time limits for preventive measures such as remand, both in the prosecution and case adjudication, is an important element in criminal proceedings, without which it would be impossible to comply with the fundamental principles of criminal proceedings namely legality, presumption of innocence, the principle of finding the truth, principle of officialdom, guaranteeing the freedom and security of the person, guaranteeing the right to defense, the right to a fair trial, equality of parties in criminal proceedings.
103. The Court notes that Article 25 para. (4) of the Constitution, the arrest was made under a warrant issued by a judge for a maximum period of 30 days. Therefore, each prolongation of preventive arrest can not exceed 30 days, both the prosecution stage and the trial stage of the case.
104. The Court also notes that Art. 25 para. (2) of the Constitution empowers the legislature with the right to regulate organic law procedure detention or arrest a person. However this power to be exercised without go beyond the constitutional framework.
105. In this context, the Court notes that Article 186 para. (9) of the Criminal Procedure Code, the term of detention may be extended in exceptional circumstances each time 3 months in case adjudication.
106. In this regard, the Court notes that the legislature established the Code of Criminal Procedure extending the term of detention without taking into account Article 25 para. (4) of the Constitution, which makes no distinction between stages of criminal proceedings and determine the duration of the arrest warrant no more than 30 days.
107. Moreover, the Court notes that the period of 90 days, under Article 186 of the Criminal Procedure Code, is disproportionate when balancing the need to administer justice and undermining individual liberty and thus not a reasonable period to be reconsidered the need to maintain a person in custody.
108. The Court can not accept the government's position, that the warrant of arrest for up to 30 days refers only to the stage of criminal prosecution, because it would mean that a person's right to liberty guaranteed by the Constitution to step dossier submission in court judgment. Such an interpretation of the Supreme Law is unacceptable in terms of its role as guarantor and protector of fundamental rights and freedoms.
109. The Court notes that Article 25 para. (4) of the Constitution states in clear terms that detention is possible only on a warrant for a period of up to 30 days. Any interpretation to the effect that would have allowed the establishment of the national legislation of longer terms for the arrest warrant would be contrary to the fundamental law. Moreover, such an approach is shared by the European Court.
110. The Court notes that the application and extension of arrest by the judge or the court under any legal provision challenged beyond constitutional limits of Article 25 para. (4) and is thus contrary to constitutional guarantees on individual freedom. Therefore, Article 186 para. (9) of the Criminal Procedure Code, in respect of the possibility of issuing an arrest warrant for a period exceeding 30 days, contrary to Article 25 para. (4) of the Constitution.
111. In the same context, the Court notes that the Constitutional-tionality paragraph (9) of Article 186 of the Criminal Procedure Code depends on the constitutionality of paragraph (5) of the same article. In these circumstances, although raising the objection raised by the referral of unconstitutionality of this paragraph shall not, under Article 6 para. (2) and (3) of the Code of Constitutional Court itself determines its competence limits, entitled to give a judgment and in other standards whose constitutionality is entirely or partially constitutionality of the contested act. In this regard, the Court notes that, for the same reasons, is unconstitutional provision of para. (5) Article 186 of the Criminal Procedure Code, in respect of the prolongation of the arrest warrant for 90 days in case adjudication.
3.2.3. The total duration of 112
arrest. The Court notes that Article 25 para. (4) of the Constitution, detention may be extended, under law, to no more than 12 months.
113. The Court also notes that early period remand correspond with apprehension and ends when issuing judicial conclusion that a person is released from custody or at the time of sentencing by the trial court (Solmaz v. Turkey, §§ 23- 24, Kalashnikov v. Russia, §100, Wemhoff v. Germany § 9).
114. The Court notes that Article 186 para. (9) of the Criminal Procedure Code allow the deadline to exceed 12 months. Moreover, the rule of Article 186 para. (9) of the Criminal Procedure Code allows prolonging preventive measure in the form of custody for an indefinite period of time.
115. The Court notes that, under article 186 par. (9) of the Criminal Procedure Code, the legislature established deadlines arrest disregarding the express provisions of Article 25 paragraph unequivocal. (4) of the Constitution, which regulates the constitutional guarantees necessary to ensure an adequate framework to protect citizens against excessive application of such measures. Moreover, the constitutional norm the law does not allow for exemptions from the constitutional limits to prolong detention in exceptional cases as having no basis seriousness of the offense. However, the regulatory framework in an area as sensitive should be done in a clear, predictable and devoid of confusion, so be removed as far as possible, event of arbitrariness or abuse those called to apply the law.
116. In this regard, the Court notes that the relevant provisions which give authorities mutually exclusive contradictory interpretations fail to meet the "quality of law" imposed by the Constitution and the European Convention (Nasrulloyev v. Russia, no. 656/06, § 77, October 11, 2007; Jeèius v. Lithuania, no. 34578/97, §§ 53-59, July 31, 2000).
117. In terms of paragraph (4) of Article 25 of the Constitution, the term of 12 months, combined with other procedural guarantees, a guarantee against unfair restrictions on individual freedom. Until the passing of sentence, deprivation of liberty of a person is based solely on a "reasonable suspicion" that the person is guilty. Therefore Constitution established a concrete period for detention, after which the person can not be detained further.
118. The Court can not accept the government's position, that, in certain circumstances, the maximum period of 12 months from keeping the person in custody may be too small for the investigation of causes. The Court emphasizes that the seriousness or complexity of the case does not justify the detention on remand. Or, preventive detention can only be applied when suspicions of an offense are mapped to the four grounds which may justify its application.
119. The Court notes that the European Convention obliges states to fix the maximum duration of a person in custody. However, if the imposition of such limits in national law, these must be respected. Meanwhile, neither the Constitution nor the European Convention does not allow for broad interpretation of the constitutional provisions restricting fundamental rights and freedoms, which are interpreted strictly. Thus, any interpretation of allowable restrictions imposed on fundamental rights and freedoms must be in favor of the person.
120. Therefore, since the constitutional text does not distinguish between stages of criminal proceedings, the Court notes that under Article 25 (4) of the Constitution, pre-trial detention can be applied for a total period of 12 months, which includes both criminal investigation stage and legal stage, until the issue of judicial conclusion that a person is released from custody or time of sentencing by the trial court.
121. At the same time, the Court holds that the maximum term of 12 months for remand covers the situation where a person had been submitted on several counts. Thus, the Constitution obliges justice without delay. In this respect, any detention exceeding the total period of 12 months applied for committing the same act, irrespective of any subsequent reclassification of the offense is contrary to the constitution and therefore is illegal.
122. In conclusion, the Court finds that Article 186 para. (9) of the Criminal Procedure Code, in respect of the possibility of extending preventive measure in the form of custody for more than 12 months, they are unconstitutional as contrary to Article 25 paragraph (4) of the Constitution. For the same reasons, it is unconstitutional and (8) of the same article.
123. In the same context, the Court notes that the constitutionality of paragraphs (8) and (9) of Article 186 of the Criminal Procedure Code depends on the constitutionality of paragraph (3) of the same article. In these circumstances, although invoking the unconstitutionality of this paragraph is not admissible in the procedure of lifting the exception, having no bearing on the case before the Court Botanica Court, in exercising the right to set itself limits of competence and to give judgment and other standards whose constitutionality is entirely or partially constitutionality of the contested act, under Article 6 para. (2) and (3) of the Code of constitutional retains the same grounds was unconstitutional and (3) of article 186 of the criminal procedure Code.
124. For the purposes of those findings, the execution of this judgment, the Court stated that the sentence of imprisonment to persons who have been under arrest for more than 12 months duration of detention will be deducted from the term of punishment under the law . Also, if a judgment of acquittal or non-custodial, people who have been in custody for more than 12 months will be able to seek compensation in accordance with Article 5 of the Convention and the Law No. 1545-XIII of 25 February 1998 on compensation for damage caused by unlawful actions of the criminal investigation, prosecution and courts.
For these reasons, pursuant to Articles 135 paragraph. (1) a) and g) and 140 of the Constitution, 26 of the Law on Constitutional Court, 6, 61, 62 a) and e), and 68 of the Code of Constitutional Court Constitutional
1. It recognizes the exception of unconstitutionality by Ms Viorica pullets, judge of the Botanica Court, Chisinau mun., In criminal case no. 1-239 / 15.
2. Under Article 25 (4) of the Constitution:
a) remand can be applied for a total period of 12 months, which includes both the prosecution stage and the judicial stage, until the issue of judicial conclusion that a person is released from custody or time of sentencing by the trial court. During the period of preventive arrest the person includes:
- was arrested and was in custody;
- He has been under house arrest;
- Was in a medical institution, the court decision, in the hospital for examination and treatment, after applying on her medical coercive measures.
B) The term preventive custody from the moment of detention, and if the person has not been apprehended since the effective implementation of the mandate of custody.
C) 12-month period covers the same act (e) criminal (s) for which the person was placed in custody irrespective of whether retraining subsequent offense. Any detention exceeding the total period of 12 months applied for committing the same act, irrespective of any subsequent reclassification of the offense is contrary to the constitution and therefore is illegal.
D) The arrest warrant is issued for a period of up to 30 days. Each prolongation of preventive arrest can not exceed 30 days, both the prosecution stage and the trial stage of the case.
March. Declaring unconstitutional:
- The words "90 days" in paragraph (5);
- (8) and (9) of Article 186 of the Criminal Procedure Code of the Republic of Moldova no. 122-XV from 14 March 2003 to be contrary to Article 25 (4) of the Constitution.
4. To execute this judgment:
a) Within up to 30 days from delivery of this judgment, the court shall revoke the preventive measure of arrest for people in custody for more than 12 months;
B) Within up to 30 days from delivery of this judgment, the court will verify the existence of grounds for maintaining the arrest of persons for whom there is an arrest warrant exceeding 30 days, and the deadline total pre-trial detention not exceeding 12 months.
C) The effects of this decision are not extended to persons who are in custody in respect of which there is a conviction and the case examining the appeal.
D) Persons who have been in custody for more than 12 months after the date of this judgment:
- where a custodial sentence, the duration of detention be deducted from the sentence, under the law ;
- For a judgment of acquittal or non-custodial, can seek compensation in accordance with Article 5 of the European Convention on Human Rights and Fundamental Freedoms and the Law No. 1545-XIII of 25 February 1998 on the way the damage caused by unlawful actions of the criminal investigation, prosecution and courts.
May. This decision is final, can not be subject to any appeal, shall enter into force upon adoption and shall be published in the Official Gazette of the Republic of Moldova.