No Complaint Was Inadmissible. 59G / 2016 Regarding The Exception Of Unconstitutionality Of Certain Provisions Of Article 329 Para. (2) Of The Criminal Procedure Code Of The Republic Of Moldova (Contesting Preventive Measure)

Original Language Title: de inadmisibilitate a sesizării nr. 59g/2016 privind excepția de neconstituționalitate a unor prevederi din articolul 329 alin.(2) al Codului de procedură penală al Republicii Moldova (contestarea măsurii preventive)

Read the untranslated law here: http://lex.justice.md/index.php?action=view&view=doc&lang=1&id=366203

No complaint was inadmissible. 59g / 2016
the exception of unconstitutionality of certain provisions of Article 329 paragraph
. (2) of the Criminal Procedure Code
Moldovan
(Challenging the preventive measure)


Posted: 08/12/2016
in the Official Gazette

Nr. 256-264
Article No. 70
Effective Date: 14/06/2016

Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA, Mr. Tudor
Panţiru,
Mr. Victor POPA, judges | || when Mr Dumitru Avornic, Registrar,
Considering the complaint filed on 20 May 2016
Registered on the same date
examined the admissibility of the referral mentioned
Considering documents and materials,
deliberated on 14 June 2016 in the council chamber,
Delivers the following decision: tHE FACTS

1. The case originated exception of unconstitutionality is the phrase "in the case of preventive arrest" of Article 329 para. (2) of the Code of Criminal Procedure, raised by lawyer Artur Lungu criminal case nr.1-8 / 16, before the Court Soroca.
2. The referral was submitted to the Constitutional Court on 20 May 2016 by Judge Ludmila Ciuhrii 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.
A.
Three main circumstances in the proceedings. Soroca District Court pending the criminal case no. 1-8 / 16, brought on by IC, SC, AD and AM, under the suspicion of the criminal offense under Article 186 para. (5) of the Criminal Code.
4. On 13 April 2016, the prosecutor of the Public Prosecutor submitted Soroca motion to remand extension measure on the defendants.
May. 15 April 2016 by the conclusion Soroca Court, was rejected the request on extending detention warrant on the accused, being replaced by house arrest for a period of 30 days.
June. On 18 April 2016 the victim AR appealed Soroca District Court conclusion of 15 April 2016, pursuant to art. 329 par. (2) and art. 60 para. (1) pt. 151 of the Criminal Procedure Code.
July. On 19 April 2016 the Court Soroca conclusion, the appeal of 18 April 2016 was rejected on the ground that the injured party is not entitled to lodge appeal against the decision of replacing preventive measure.
August. On May 4, 2016, the injured party the exception of unconstitutionality of the phrase "in the case of preventive arrest" of Article 329 para. (2) of the Criminal Procedure Code.
September. By the end of the same day, the court ordered the lifting of the objection of unconstitutionality and transmission of referral to the Constitutional Court for resolution.
B. 10
relevant legislation. The relevant provisions of the Constitution (republished in the Official Gazette, 2016, no. 78, art. 140) are:
Article 20Accesul to justice


"(1) Everyone has the right to obtain effective protection from competent courts against acts that violate the rights, freedoms and interests.
(2) No law may restrict access to justice. "
Article 119Folosirea appeals


"Against judgments, stakeholders and state authorities may exercise remedies under the law."
11. The relevant provisions of the Criminal Procedure Code of the Republic of Moldova no. 122-XV of 14 March 2003 (republished in OJ 2012, no. 263-269, art. 855) are:

Article 24Principiul adversarial criminal process

"[...]
(3) The parties to the proceedings have equal rights being vested for criminal procedural law with equal opportunities to support their positions. The court bases its judgment only those research evidence which the parties had equal access. "

Article 60Drepturile and obligations of the injured

"(1) The injured party has the following rights:
[...]
151) Exercise appeals against judgments;"

Article 196Atacarea decisions on preventive measures

"[...]

(2) The decision of the investigating judge or the court on the application, extension or replacement of the preventive measure may be appealed in a higher court. "

Article 311Recursul against the decision
judge the applicability of arrest, prolongation or refusal to prolong its duration
or provisional release or refusal to release provisional


(1) An appeal against the decision of the investigating judge on whether or not under arrest or house arrest, prolongation or refusal to prolong her provisional release or refusal of provisional release is submitted by the prosecutor, the accused , his lawyer, his legal representative in court that adopted the conclusion or through the administration of the detention within three days from the date of passing the decision. To the arrested person, the term shall begin three days from receipt of the copy of conclusion.
(2) The administration of the detention receives the appeal is obliged to register it and send it immediately to the court which adopted the conclusion, bringing notifying the prosecutor.
(3) The court passed the conclusion receives the appeal within 24 hours, sends, materials such court of appeal, calling the settlement date of the appeal and the prosecutor and defense counsel informing it. Appeal court receives the appeal, the prosecutor requested materials confirming the necessity of applying preventive measures or its prolongation.
(4) The prosecutor, receiving notification of the date of examination of the appeal, the court is obliged to submit the appeal within 24 hours materials.

Article 312 Judicial Review of the lawfulness of the preventive measures applied and prolonging their

(1) The judicial control of the lawfulness of the judge on preventive measures applied and prolonging their adopted art.307-310 conditions, are carried out by a higher court in a panel of 3 judges.
(2) The court of appeal judge appeal within three days of its receipt.
(3) judicial review of the lawfulness of the arrest is carried out in a closed hearing with the prosecutor, accused, defense counsel and legal representative. Failure to present the suspect who is deprived of his liberty and his legal representative, who were quoted in the manner prescribed by law, does not prevent examination of the appeal.
(4) At the opening of the hearing in the appeal court, the presiding judge announces the appeal will be examined, specifies whether the persons present at the meeting are clear to them their rights and obligations. After that appellant, if attending the meeting, argued the appeal, then are heard other people present at the hearing.
(5) Following carried out judicial review court pronounces one of the following decisions:
1) uphold the appeal by:
a) repealing the preventive measure of judge or cancellation prolongation and, where applicable, the person's release from custody;
B) the application of preventive measures has been rejected by the judge, issuing the arrest warrant or applying other preventive measures, choice of court of appeal, but no more severe than that requested the prosecutor, or extension the corresponding measure;
2) reject the appeal.
(6) If the hearing were not submitted materials confirming the legality of applying preventive measures or prolong its duration, the appeal court decision to invalidate pronounce preventive measure or, where appropriate, the longer and releases the person detained or arrested.
(7) A copy of the decision of the court of appeal or, where applicable, the arrest warrant is handed to the prosecutor and the suspect immediately, and if it was rendered a decision has been annulled or canceled preventive measure its prolongation, copy of the decision is sent on the same day on the detention of a person arrested or respectively to the police station from the place of residence of the suspect. If the person that was canceled detention or house arrest or who has been released provisionally participate in the hearing, it shall be released immediately from the courtroom.

(8) In case of rejection of the appeal, examining a new appeal on the same person in the same case is allowed at each prolongation of preventive measures preventive detention or disappearance grounds.

Article 329Rezolvarea issue of the preventive measure

"[...]
(2) Where remand, the court's decision may be appealed within three days, the superior court of appeal, which will be judged according to Art. 311 and 312, which applies accordingly. "
12. The relevant provisions of the European Convention on Human Rights and Fundamental Freedoms, as amended by the Additional Protocols (signed at Rome on 4 November 1950 and ratified by the Parliament of Moldova no. 1298-XIII of 24 July 1997) are: || |
Article 6Dreptul to a fair trial

"1. Everyone has the right to a fair trial, publicly and within a reasonable period of his case by an independent and impartial tribunal established by law and the determination of rights and obligations of civil nature or on the merits of any criminal charge against him. Judgment shall be pronounced publicly but the meeting room may be forbidden for the press and the public throughout the process or a part thereof in the interests of morality, public order or national security in a democratic society, where the interests of juveniles or the protection of private life of the parties so require, or to the extent strictly required by the court when, in special circumstances where publicity would prejudice the interests of justice. "
tHE LAW A. Arguments author exception of the non-stituţionalitate
13. In motivating the exception of unconstitutionality, Artur Lungu lawyer argues that the disputed provision allowing the injured party to contest rulings to replace or revoke the preventive measures applied to the accused.
14. Thus, in its view, the contested provision unduly limits the right of the injured party to pursue remedies against all judgments.
15. According to the author plea, the contested provisions violate Articles 16, 20 and 119 of the Constitution, and Article 6 § 1 of the European Convention.
B. The Court's assessment
16. Examining the admissibility of the notification regarding the exception of unconstitutionality, the Court finds as follows.
17. 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.
18. The Court finds that the notification regarding the exception of unconstitutionality was raised by lawyer Artur Lungu criminal case nr.1-8 / 16 which is pending before the Court Soroca is 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
19. The Court reiterates that the power to handle exceptions of unconstitutionality, which was vested by Article 135 para. (1) letter g) of the Constitution requires establishing the correlation between the laws and the Constitution, taking into account the principle of the rule and its relevance the contested provisions for resolution of the dispute in the courts.
20. The Court notes that under the exception of unconstitutionality is the phrase "in the case of preventive arrest" of Article 329 para. (2) of the Criminal Procedure Code.
21. The Court notes that Article 329 para. (2) of the Criminal Procedure Code lays down the procedure for contesting the decisions in which the court ordered the arrest.
22. The Court observes that the contested provisions make reference to art. 311 and 312 of the Criminal Procedure Code, setting out the procedure for receipt of requests for contesting the court decision on pre-trial detention, subjects entitled to file such applications and their examination.
23. According to these rules, persons entitled to file an appeal are the prosecutor, the suspect, his lawyer or legal representative.

24. The Court notes that Art. 119 of the Constitution stipulates that judgments against stakeholders and state authorities may exercise remedies under the law.
25. Analyzing the constitutional norm that to use remedies necessary condition is that the party uses this right are to hold an interest and this interest must be legitimate.
26. The Court notes that the legitimate interest of the prosecutor in this case derives from the constitutional provision of Article 124 para. (1) of the Constitution, stating that the prosecution represents the general interests of society and protects the rule of law and the rights and freedoms of citizens.
27. In this regard, the need to assign prosecutor the right to appeal against court decisions on pre-trial detention requirement resulting from effective investigation of criminal cases.
28. Meanwhile, the legitimate interests of the accused, defense counsel and legal representative relates primarily to the fact that a measure of preventive thereon constitutes interference with the exercise of his liberty and other fundamental rights and freedoms.
29. Thus, the European Court, in its case, reiterated that Article 5 § 4 guarantees to persons arrested or detained the right to initiate proceedings to challenge the lawfulness of detention and the imposition of such procedures proclaiming their right to rapid the lawfulness of the detention and disposition cancellation preventive measure when its illegality (Musial v. Poland, judgment of 25 March 1999, § 43).
30. In this regard, referring to judicial guarantees on preventive measures, the European Court judgment in Malai v. Moldova (judgment of 13 November 2008) reiterated that:
"29. [...] Article 5 § 4 does not guarantee as such a right of appeal against decisions ordering or extending detention as the above provision refers to "proceedings" and not to "appeal". The intervention of a single authority is in accordance with Article 5 § 4, on condition that the procedure followed has a judicial character and gives to the person concerned adequate safeguards on how deprivation of liberty in question (see Case Jecius v. Lithuania, no. 34578/97 , § 100). "
31. Regarding procedure, the European Court held that a court examining an appeal against detention must thus provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure "equality of arms" between the parties, ie between the prosecutor and the detained person (Nikolova v. Bulgaria, judgment of 25 March 1999, § 58).
32. The Court notes that the injured party has a legitimate interest in not lodging an appeal which ensures judicial review on preventive measures.
33. The Court notes that its interest is limited to settling the criminal case, apportioning blame, criminal charges, recovery of damages by the offender, and solutions related to preventive measures placed on the defendant can not influence interest of the injured to such an extent as to be recognized under the right to file petitions of habeas corpus.
34. The Court notes that Art. 60 para. (1) pt. 151) of the Criminal Procedure Code, which gives the victim the right to pursue appeals against judgments, wearing a general nature to be applied and interpreted in the context of all criminal procedural rules.
35. The Court also held that the limitations imposed by art. 329 par. (2) of the Criminal Procedure Code legislature intended to ensure speed of procedures and getting quickly to a final judgment, but at the same time providing adequate safeguards for persons deprived of liberty.
36. Referring to the alleged violation of Article 16 of the Constitution, the Court reiterates that the constitutional principle of equal rights is required when circumstances are equal, but the situations are different, the legal treatment should be different.
37. In light of the above, the Court notes that the complaint is unfounded and can not be accepted for examination.

For these reasons, pursuant to Article 26 of the Law on Constitutional Court, Articles 61 para. (3) and 64 of the Code of Constitutional and pt. 28 lit. d) of Regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court

DECIDED:

1. Declares inadmissible the exception of unconstitutionality notification on the phrase "in the case of preventive arrest" of Article 329 para. (2) of the Criminal Procedure Code of the Republic of Moldova no. 122-XV of 14 March 2003 raised by lawyer Artur Lungu criminal case nr.1-8 / 16 pending before the Court Soroca.
2. 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.

CONSTITUTIONAL COURT PRESIDENT Alexandru Tanase