No complaint was inadmissible. 45g / 2016
the exception of unconstitutionality of certain provisions of the Code of Criminal Procedure
of
Moldova (application pre-trial detention conditions)


Posted: 03/06/2016
in the Official Gazette

Nr. 151-155
Article No: 53
Effective Date: 04/29/2016

Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA,
Mr. Victor POPA, judges,
in which Mr Teodor Papuc Registrar,
Considering the complaint filed on 18 April 2016
Registered on the same date
examined the admissibility of the referral mentioned
Considering documents and materials, deliberated on 29 April
2016 in the council chamber,
Delivers the following decision: tHE FACTS

1. The case originated in the objection of unconstitutionality of Articles 304 para. (1), paragraph 185. (1), paragraph 186. (6) and 175 para. (1) of the Criminal Procedure Code, lawyer Vasile Nicoara raised in criminal case no. 16r-253/16 before the Court of Appeal.
2. The referral was submitted to the Constitutional Court on 18 April 2016 by the panel of judges at the Court of Appeal (Iurie Jordan Gennady leave Silvia Sparrows), pursuant to 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.
Circumstances of the case in March. On 15 February 2016 the name of Dumitru Morozan order was issued indictment, accused of committing the offense under Article 189 para. (6) of the Criminal Code.
4. On 16 February 2016, the judge of the Central Court, mun., Issued a ruling on it on pre-trial detention, for a period of 15 days.
May. On 28 March 2016 at the request of the prosecutor, Centre Court ordered the extension of detention on remand by 30 days.
June. Defendant's lawyer appealed and the court of appeal hearing on April 5, 2016 the exception of unconstitutionality of Articles 175 para. (1), paragraph 185. (1), paragraph 186. (6) and 304 para. (1) of the Criminal Procedure Code, claiming that the indictment and arrest were executed in the absence of reasoned order on measures of constraint and initiate criminal proceedings.
July. By the end of the same day, the court ordered the lifting of the objection of unconstitutionality and sending of referral to the Constitutional Court.
B.
Relevant legislation in August. The relevant provisions of the Constitution (republished in the Official Gazette, 2016 No. 78, Article 140) are as follows:

Article 20 Access 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 25Libertatea individual and personal security

"(1) Individual freedom and security of person are inviolable.
[...]
(6) Release detained or arrested person is obligatory if the reasons for detention or arrest have disappeared. "
Article 26 Right to defense


"(1) The right to defense 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, chosen or appointed ex officio.
(4) Any interference in the work of defense of the persons confines shall be punished by law. "
September. 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 175Noţiunea and categories of preventive measures

"(1) measures of constraint by the suspect, the defendant is prevented from carrying out certain actions or adverse criminal proceedings on enforcing the sentence imposed constitutes preventive measures.
[...]. "
Article 185Arestarea preventive


"(1) Detention on remand means the detention of the suspect, the defendant under arrest in places and in conditions provided by law.
[...]. "

Article 186Termenul holding a person in custody and its prolongation

"[...].

(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.
[...] ".

Article 304Demersurile the authorization to conduct criminal investigation, special investigative measures or the application of measures of constraint

"(1) basis for the commencement of the authorization to carry out criminal investigation, special investigative measures or the application of measures of constraint is the order of motivated organ vested with such powers, under this code, and approach prosecutor requesting consent for conducting these actions. "
[...]".
THE LAW A. The author of the objection of unconstitutionality
10. In motivating the exception of unconstitutionality, lawyer Vasile Nicoara argues that the accused was imposed preventive measure of arrest without a reasoned order on measures of constraint.
11. The author also points to the lack of orders for initiating criminal proceedings.
12. According to the author of the objection, Articles 175 para. (1), paragraph 185. (1) and 304 para. (1) of the Criminal Procedure Code are unconstitutional to the extent that the measure interpreted as allowing preventive detention without issuing an order to institute criminal proceedings if the person or facts that meet the elements of the offense.
13. The author also argues that the exception in Article 186 para. (6) of the Criminal Procedure Code is unconstitutional to the extent that no attorney of the defendant materials submitted to the court to confirm the extension of detention on remand in a shorter period of 5 days, until the expiry of remand.
14. Notification to the author, the contested provisions violate Articles 20, 25 and 26 of the Constitution.
B. The Court's assessment
15. Examining the admissibility of the notification regarding the exception of unconstitutionality, the Court finds as follows.
16. 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.
17. The Court notes that the notification regarding the exception of unconstitutionality raised by lawyer Vasile Nicoara folder nr.16r-253/16 before the Court of Appeal, is made the subject of 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
18. The Court notes that the author of the objection requesting the declaration unconstitutional articles 175 para. (1), paragraph 185. (1), paragraph 186. (6) and 304 para. (1) of the Criminal Procedure Code.
19. The Court notes that the contested provisions contain general regulations regarding: the concept and categories of preventive measures (including the notion remand); term maintenance person under arrest and the possibility of its extension; pursuant to perform criminal investigation, special investigative measures or measures of constraint.
20. Examining the exception of unconstitutionality, the Court notes that it concerns a matter of correct application of the law, not its constitutionality. This results in referral exception of unconstitutionality by asking just declaring unconstitutional certain legal provisions because they apply authorities may interpret or misinterpret.
21. In this regard, referring to allegations that the provisions of Articles 175 para. (1), paragraph 185. (1) and 304 para. (1) of the Criminal Procedure Code shall be construed for the purposes of pre-trial detention without a reasoned order, the Court holds that the provisions of criminal procedure expressly established as grounds for applying measures of constraint "issue a reasoned order".

22. Also, Article 176 para. (1) of the Criminal Procedure Code states that preventive measures can be applied by the prosecutor, ex officio or upon the proposal of the prosecution or 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. They also can be applied by the court to ensure execution of the sentence.
23. The Court notes that the issue of procedural acts contrary to the law related to judicial control.
24. According powers which have been conferred by Article 135 of the Constitution, the Constitutional Court supervises the constitutionality of laws, and not checking procedural documents produced by the prosecution. The task belongs prejudicial to the judicial proceedings of the courts and not a matter for the Court.
25. In view of the above, the Court holds that the plea of ​​unconstitutionality 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 complaints concerning Articles 175 para. (1), paragraph 185. (1), paragraph 186. (6) and 304 para. (1) of the Criminal Procedure Code of the Republic of Moldova no. 122-XV of 14 March 2003 raised by Vasile Nicoara lawyer in criminal case no. 16r-253/16 before the Court of Appeal.
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