concerning the execution of the judgment of the Constitutional Court No. 3 of 23 February 2016 of unconstitutionality regarding the exception of paragraphs (3), (5), (8) and (9) of article 186 of the code of criminal procedure (arrest term) to refer to 35 g/2016



Published: 01.07.2016 in Official Gazette No. 184-192 art no: 55 date of entry into force: 29.04.2016 Constitutional Currtea, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Mr. Victor POPA, judges, with the participation of Mrs. Eugenia Mîța, Registrar, taking into account the appeal lodged on 7 April 2016, recorded at the same time, examining the issue of execution of the judgment of the Constitutional Court No. 3 of 23 February 2016, considering the acts and proceedings of the dossier, acting on 29 April 2016 in the Chamber Council Pronounce the following judgment: in fact 1. The origin of the case lies the appeal with respect to the execution of the explain the decision of the Constitutional Court No. 3 of 23 February 2016 of unconstitutionality regarding the exception of paragraphs (3), (5), (8) and (9) of article 186 of the code of criminal procedure, a lawyer raised in the Alexandru Adam No. 14r -270/16, on the role of the Court of appeal.
2. The appeal was lodged with the Constitutional Court on 7 April 2016, by the Panel of judges within the Court of appeal, Chișinău (Iurie Jordan, Ghenadie Lîsîi and Silvia Eke).
3. The author of the referral of that by decision No. 3 of 23 February 2016 it was established that 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.
4. Furthermore, according to paragraph 2 c) of the decision of the mentioned: "the term of 12 months refers to the same criminal offence (s) (s) for which the person has been placed in preventive detention, regardless of the possible subsequent retraining. Any detention that exceeds the total period of 12 months for committing the same acts, irrespective of any subsequent retraining of crime, is contrary to the Constitution and, therefore, is unlawful. "
5. In this connection, the author requested the Court referral to explain whether the phrase "criminal offence (s) (s) for which the person has been placed in preventive detention, regardless of eventual further retraining crime ' refers to other criminal cases started on the basis of the same facts or is applicable only the criminal case for which preventive measure ordered.
A. the main dispute Circumstances 6. On March 1, 2016, the Court of appeal conducts preventive measure canceled in the form of house arrest applied as regards his Oberman Tadesse, charged with committing criminal offences provided for in articles 283, para. 145 (2) (a). a), b), (d)),),),),) and 27 of the penal code, following the expiry of the 12 months, having established preventive measure provisional release under judicial control.
7. At the same time, on March 1, 2016, after delivery of the decision of the Court of appeal in Chisinau, Oleg Tadesse was retained in the courtroom pursuant to Ordinance of the Prosecutor General of 18 February 2016, which ordered the commencement of criminal prosecution in respect thereof, being suspected of committing the offences referred to in articles. 361 para. (2) (a). b), c) and (d)) and art. 243 para. (3) (a). a) and b) of the penal code.
8. The approach of the Prosecutor, by the conclusion of the Center Court, mun. Chisinau, of 3 March 2016 was ordered with respect to preventive arrest Oleg Tahini for a period of 30 days.
9. Conclusion of the Center Court was challenged with appeal to the Court of appeal, relied on the fact that being a preventive measure applied to 3 March 2016 regards Oleg Tahini is a de facto extension of preventive arrest revoked March 1, 2016.
10. In this regard, counsel requested his Oberman Tadesse referral to the Constitutional Court in order to explain the method of implementing the provisions of paragraph 2, subparagraph (a). c) of the decision of no. 3 of 23 February 2016.
11. On 28 March 2016 Chișinău, the Court of Appeal dismissed as unfounded the appeal declared and maintained without modification, Center Court conclusion. Chisinau, of 3 March 2016.
12. At the same time, through a discharge on the same date, the Court of appeal conducts accepted the appeal and ordered transmitting it to the Constitutional Court for settlement.
B. Assessment Of Court 13. The court notice that, according to article 140 of the Constitution, laws and other normative acts or some parts thereof become null and void from the moment of adoption of the corresponding decision of the Constitutional Court. Decisions of the Constitutional Court are final and cannot be appealed.
14. In order to develop the constitutional norm, art. 28 of law No. 317 of 13 December 1994 regarding the Constitutional Court States that the acts of the Constitutional Court are official documents and enforceable throughout the country, for all the public authorities and to all legal entities and individuals. Normative acts or some parts thereof declared unconstitutional become null and void and does not apply from the moment of adoption of the decision of the Constitutional Court.
15. By decision No. 3 of 23 February 2016, the Court found that the provisions of article 186 paragraph 3. (3), (8) and (9) of the code of criminal procedure, in the image of the possibility of lengthening the preventive measure in the form of preventive detention for a period greater than 12 months, are unconstitutional, as contrary to the provisions of article 25, paragraph 2. (4) of the Constitution.
16. Thus, the Court held that, for the purposes of article 25, paragraph 2. (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.
17. At the same time, the Court held in paragraph 2(a). c) of the decision of the mentioned that "the term of 12 months refers to the same criminal offence (s) (s) for which the person has been placed in preventive detention, regardless of eventual further retraining offence".
18. Thus, in reference to this sentence, the Court ruling set out in the recitals, supra, he noted that: "the term of 12 months for pre-trial detention shall also cover the situation in respect of the person have been submitted to several counts. Thus, the Constitution obliges the administration of justice without delay. In this sense, any detention that exceeds the total period of 12 months for committing the same acts, irrespective of any subsequent retraining of crime, is contrary to the Constitution and, therefore, is unlawful. "
19. Without analyzing the circumstances speței-analysis, which belongs to the judicial organs through excellence, the Court noted that the rationale of the first sentence of paragraph 2, subparagraph (a). c) of the decision of no. 3 of 23 February 2016 is to (1) prevent the application against the same person several preventive measures in the form of pre-emptive arrest, by starting several criminal cases for the same criminal offence (s) (s) in different periods of time, or (2) prevent the continuation of the arrest for a period exceeding 12 months following reîncadrării (retraining) legal scene.
20. In this context, the Court noted that, during the investigation of a criminal, a criminal offence, following the assessment of the evidence, may be reinstated, which does not have to generate a new calculation period of preventive detention of the person, or, for a legal reframing crime or more offences from the criminal law does not change retrospectively the deed (s) occur initially committed.
21. Moreover, given the same legal classification changing the facts, the judicial organ shall determine the applicable legal text just deed detrimental perpetrated, that must not affect the freedom of the individual.
22. Therefore, it is the prerogative of the judge to assess whether the various criminal offences could form the subject-matter of the same criminal or of one distinct, or if several criminal cases targeting the same facts.
23. At the same time, keep in mind that the first sentence of paragraph 2, subparagraph (a). c) of the decision of no. 3 of 23 February 2016 should not be interpreted as being applicable where the measure of pre-trial detention shall apply to a person who has committed a new criminal offence during a criminal cases pending or if during a pending criminal case revealed other criminal offences committed by the same person, that were not known to the criminal prosecution body.
24. At the same time, the court notice that a distinction should be drawn between criminal deed (harmful) and the offence provided for in the articles of the criminal law. Thus, if the first real basis constitutes criminal liability, then the second, through the composition of crime (defined in article 52 of the penal code), constitutes the legal basis of criminal liability.

25. As the basis of criminal liability is deed injurious, she acts injurious character, therefore the measure of pre-trial detention in order to prevent the injurious conduct including facts that subsequently will be assigned the legal (qualified) as offences. However, under art. 176 para. (3) section 1) of the code of criminal procedure, pre-trial to take into consideration a number of criteria, including «character and extent of the injurious act incriminated».
26. Thus, the analysis of the contents of a criminal offences must be borne in mind: concrete contents (de facto), constituting the perpetration of the offence in the objective reality of a person and that is part of the standard pattern abstract of incrimination, and the content of legal (de jure), which contains objective and subjective element whereby an act becomes a crime, therefore, offense-composition described in the rules of the party of the criminal code.
27. The person may be held liable for a criminal offence if committed in action/inaction by the de facto it contains signs of an offense will de jure. Therefore, the classification of the Act may be made in respect of an offence or several offences from criminal law.
28. In the context of exposed supra, note that Court legal classification of the offence, being a complex operation, aimed at determining the objective truth, requires matching of the signs the deed committed in objective reality with the composition of the statutory offence offence, competence assigned to the judicial bodies.
For these reasons, pursuant to articles 140 of the Constitution, 26, 28, 281 of the law on the Constitutional Court, 68 lit.) of the code of constitutional jurisdiction, the Constitutional Court DECIDES: 1. The first sentence of paragraph 2 c) of the decision of the Constitutional Court No. 3 of 23 February 2016 of unconstitutionality regarding the exception of paragraphs (3), (5), (8) and (9) of article 186 of the code of procedure is not applicable to criminal cases targeting other deed (s).
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.