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Inadmissibility Of Referral No. 68 G/2016Privind The Exception Of Non-Constitutionality Of Some Prevederidin Article 331 Para. (1) And Article 362 Para. (2) Of The Code Of Criminal Procedure (Ensuring The Presence Of Witnesses In Court)

Original Language Title: de inadmisibilitate a sesizării nr. 68g/2016privind excepția de neconstituționalitate a unor prevederidin articolul 331 alin. (1) şi articolul 362 alin. (2) din Codul de procedură penală (asigurarea prezenţei martorilor în şedinţa de judecată)

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inadmissibility of referral No. 68 g/2016 regarding constitutionality exception provisions of article 331 para. (1) and article 362 para. (2) of the criminal procedure code (ensuring the presence of witnesses in court)



Published: 05.08.2016 in Official Gazette No. 247-255 art no: 66 date of entry into force: 14.06.2016 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 Darroch Avornic, Registrar, considering the appeal filed on June 9, 2016, recorded at the same time, examining the admissibility of the referral, taking into account the acts and proceedings of the dossier , acting on 14 June 2016 into Council Pronounce the following decision: in fact 1. The origin of the case lies the plea of unconstitutionality of the phrase "and has the party required to submit samples to take measures to ensure the presence of persons who have not submitted". 331 para. (1) the phrase "or the party has not ensured presence to ensure the next meeting". 362 para. (2) of the code of criminal procedure, raised by Attorney Igor Popa in file No. 1-721/2016, on the role of the Buiucani, mun. Chisinau.
2. The exception of constitutionality was lodged with the Constitutional Court on 9 June 2016 by judge Andrei Bruce, 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. On the role of the Buiucani, mun. Chisinau, is in respect of a criminal cause of Vladimir Filat, charged with committing the offence referred to in article 1. 324 para. (3) (a). a) and subparagraph (c). (b)) and art. 326 para. (3) (a). of the Criminal Code).
4. By April 15, 2016, the Court admitted the evidence list submitted by defenders Igor Popa and Cristina Moses in the interests of the accused and ordered the hearing witnesses Melnic, Mircea Buga, Dorin dragutanu, Caravaggio, Shyam, Vadim Pistrinciuc, Eduard Bănăriuc, Veaceslav Negruta, Alexei Roibu, Dumitru Godoroja, Angela Saif, Dorina Cebotarean, Iurie Ursu Veaceslav Polenta.
5. At the hearing of the Court of 3 June 2016, defenders Igor Popa and Cristina have submitted application for Moses bringing tales of forced Melnic, Mircea Buga, Dorin dragutanu, Veaceslav Negruta, Alexei Roibu, Gandan, citing that they eschew with malevolence to present in court for the filing of declarations. The Court rejected that request, the Commission shall draw that brought no evidence of citation of witnesses.
6. In the process of examination of the case in relation to the problem of ensuring the presence of witnesses at Court, the Defense has called for the lifting of non-constitutionality exception provisions of articles 331 para. (1) and paragraph 11 of resolution 362 (2) of the code of criminal procedure, citing violation of articles 20 and 26 of the Constitution 7. By decision of 9 June 2016, the Court ordered the lifting of non-constitutionality exception at address and referral transmission Constitutional Court for settlement.
B. relevant Legislation 8. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 20Accesul 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 26Dreptul of the defence "(1) the right of defence is guaranteed.
(2) everyone has the right to respond independently by appropriate legitimate means to an infringement of his rights and freedoms.
(3) throughout the trial the parties have the right to be assisted by a lawyer, either chosen or appointed ex officio.
(4) any interference with the activity of those carrying out the defence within legally established confines shall be punished by law. "
9. 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 66Drepturile and the obligations of the defendant, the accused "[...]
(2) the accused, the defendant, in accordance with the provisions of this code, shall be entitled: [...] 17) require oral evidence from witnesses the prosecution and to obtain the attendance and examination of witnesses by the defence under the same conditions as witnesses against him;
[…]


Article 331Amânarea the court hearing "(1) if the cause cannot be judged because of a no-show in the meeting of one of the parties or witnesses or other compelling reasons, the Court, having consulted the parties, decide to postpone the hearing and dispose of the party required to submit samples to take measures to ensure the presence of persons who have not submitted and to ensure the prosecution of the case from the date fixed by the Court.
[…]”


Article 351Numirea the case for trial "[...]
(5) If one of the parties is unable to ensure the presence of any person from the list, it may request, by request, citing such persons to the Court.
[…]”


Article 362Soluţionarea lack cauzeiîn resulting from any issue of the parties or other persons cited "(1) In the case of failure of one of the parties to the Court, the Court, listening to the views of the parties are present over the issue, decided in the manner prescribed by the respective provisions of chapter I of this title.
(2) In the case of failure of any witness, expert or specialist to legally subpoenaed, Court, listening to the opinions of the parties over the issue, has the continuation hearing and take measures to ensure their presence, if it is required, or has the party has not ensured presence to ensure, at the next meeting. "
10. 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 6Dreptul to a fair trial "[...]
3. the accused has the right, inter alia,: d. to hear oral evidence from witnesses or ask the prosecution and to obtain the attendance and examination of witnesses by the defence under the same conditions as witnesses against him;
[…]”
In the author's Arguments exception. unconditional-stituționalitate 11. In the non-constitutionality exception motivation, its author claims that it is for the trial court to ensure the smooth conduct of the criminal trial.
12. According to the author, the criminal procedural rules exception grants the accused the right to request that hearing witnesses the prosecution and to obtain the attendance and hearing witnesses under the same conditions as the witnesses of the defence (art. 66 para. (2) section 17) of the CPC). Also, procedural norms of law confers the right of a court to order the bringing of witnesses of enforced.
13. At the same time, the complaint alleged that the provisions of art. 331 para. (1) and paragraph 11 of resolution 362 (2) of the criminal procedure code put in charge of the party's defence the obligation to provide the presence of witnesses in court. Thus, although the Court has sufficient powers to ensure the presence of witnesses, under the rules set out above, this puts you in charge of defence this obligation, which is contrary to articles 20 and 26 of the Constitution.
B. assessment of Court 14. Examining the admissibility of the referral regarding constitutionality exception, the Court notes the following.
15. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws is the responsibility of the Constitutional Court.
16. the Court finds that the plea of unconstitutionality, being raised by Attorney Igor Popa in file No. 1-72/2016, which is on the role of the Buiucani, mun. Chisinau, is in charge of the subject with this right.
17. 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.
18. the court notice that constitutionality exception object is represented by the phrase "and has the party required to submit samples to take measures to ensure the presence of persons who have not submitted". 331 para. (1) the words "or has the party has not ensured presence to ensure the next meeting". 362 para. (2) of the code of criminal procedure.
19. the Court notes that, in essence, the author argues that the provisions of the contested exception put in charge of the party's obligation to ensure the presence of defence witnesses in court, which is in contradiction with articles 20 and 26 of the Constitution.

20. the Court noted that art. 331 governs situations where delayed meeting, (1) setting: "(1) if the cause cannot be judged because of a no-show in the meeting of one of the parties or witnesses or other compelling reasons, the Court, having consulted the parties, decide to postpone the hearing and dispose of the party required to submit samples to take measures to ensure the presence of persons who have not submitted and to ensure the prosecution of the case from the date fixed by the Court."
21. At the same time, art. 362 regulates the settlement of the question of trial of the case in the absence of the parties or other persons, (2) setting out in this respect that: "(2) In the case of failure of any witness, expert or specialist to legally subpoenaed, Court, listening to the opinions of the parties over the issue, has the continuation hearing and take measures to ensure their presence, if it is required, or has the party has not ensured presence to ensure, at the next meeting."
22. the court notice that the provisions being challenged to be applied and interpreted in the context of procedural rules and criminal Assembly.
23. Thus, the Court noted that, by virtue of the principle of contradictorialității, parties to proceedings have equal rights, being entrusted by the law of criminal procedure with equal opportunities to support their positions (art. 24 of the CPC).
24. the Court notes that similar safeguards established by article 21. 6 parag. 3 (a). d) of the Convention of the European art. 66 para. (2) point 17 of the CPP, the right of the accused, the defendant to request hearing witnesses the prosecution and to obtain the attendance and examination of witnesses by the defence under the same conditions as witnesses against him.
25. Under art. 315 from CPP, the Prosecutor, the injured party, the civil side, the Defender, the defendant, the party responsible and their representatives civilmente shall enjoy equal rights before the Court of law in respect of the Administration, participation in research and formulation of requests and appeals. Under article 347, the Parties shall submit the preliminary list of evidence that they intend to investigate the case under trial, including those that have not been researched over the course of the prosecution.
26. the Court noted that the principle of contradictorialității guaranteed by art. 24 of the CPP, also imply judgment, court contest (4) stating that: "the court assistance to any party, at its request, in terms of this code, to manage the samples." Thus, the legislator by the term "helper" emphasized the principle of active participation of the parties in the proceedings, the principle that through its substance is contrary to passive attitude of the parties to the lawsuit, and placing their obligations in regard to the opposing party or the Court. Thus, the terms "aid" and "necessary" under the principle of contradictorialității in the ECE participation in the administration of the Court, I'm in a indissoluble, and abusive requests on the part of the parties with a view to the involvement of the Court during criminal evidence could create a risk of ingerințe in principle of equality of arms and unbiased quality court proceedings provided for in paragraph 1. (2) and (3) of article 24 of the CPP.
27. the court notice that, bearing in mind that it is for the trial court to ensure the smooth conduct of the investigating process and to cause, at art. 351 para. (5) of the legislature established the CPC: "If one party is unable to ensure the presence of any person from the list, it may request, by request, citing such persons to the Court". Equally, the witness whose default is not justified where the side insists to be heard, may be subjected to execution of greening (art. 370 para. (6) the CPP).
28. At the same time, in its case-law, the Commission and the European Court have determined that rests in the first instance, national courts to assess the evidence that it is managing in a process and the relevance of those accused would want to produce them, in particular with regard to the number of witnesses proposed by him in article 6 parag. 3 (a). d) of the European Convention does not recognize a right of the accused to obtain unlimited summons of witnesses in the Court of law (Germany, Remer vs. Honsik v. Austria). In this book, the text leaves the national authorities competent to appreciate the relevance of a "sample" deals made by the accused, in so far as they are compatible with the concept of "fair trial".
29. In the light of those set out above, the court notice that once the Court has admitted the list of witnesses, and lawyers have presented evidence that they were informed, but not without good reason has been presented at the trial, the Defense has the right to ask the Court summoning them, that, ultimately, may order and bringing witnesses of. Or, failing that, the right of defence in the presentation of evidence would turn from a real one in an illusory one.
30. With reference to the matter under consideration, the Court points out that the contested rules uses the concept of "party", which does not permit the means exclusively that targeting just the defense, a statement supported by the erroneous non-constitutionality exception. However, under art. 6 of CPC "part in the criminal process" is the person who exercises the functions of accusation or defence on the basis of equality and the adversarial principle.
31. At the same time, examining the author's arguments, the exception, the Court notes that, although it argues that the contested rules do not ensure the right to a fair trial and the right to defence, while the appeal, in the argument, make reference to rules established in law-procedural guarantees.
32. In the context of those mentioned, note that Court under a criminal trial both sides have adequate procedural mechanisms to manage the samples independently or with the assistance of the Court. The rules of criminal procedure acts set out create a fair balance in the contradictorialității of principle, the exercise of the rights and obligations of each party in the proceedings, depending on the quality of the process. Thus, the principle of contradictorialității comes to ensure active participation in the process, both the prosecution and the defence side, especially the image of the administration process.
33. the Court points out that the contested rules neconstituționalității admission would render the procedural rules that allow substance parties presenting evidence to a court.
34. In view of the above, the Court noted that the appeal is unfounded and cannot be accepted for examination.
For these reasons, pursuant to articles 26, paragraph 2. (1) and 31 of the law on the Constitutional Court, articles 61 para. (1) and (3), 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 exception of non-constitutionality of sintagmelor "and features the party required to submit samples to take measures to ensure the presence of persons who have not submitted". 331 para. (1) and "party or not ensured presence to ensure the next meeting". 362 para. (2) of the criminal procedure code of the Republic of Moldova nr. 122-XV of 14 March 2003, raised by Attorney Igor Popa in file No. 1-721/2016, pending at Buiucani, mun. Chisinau.
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.