No complaint was inadmissible. 20g / 2016 regarding the exception of unconstitutionality
provisions of Article 251 para. (3)

of the Criminal Procedure Code (nullity of procedural acts)


Posted: 05/27/2016
in the Official Gazette

Nr. 140-149
Article No. 46
Effective Date: 23/03/2016

Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA,
Mr. Victor POPA, judges, with Ms Eugenia bribes
Registrar,
Considering the complaint filed on 17 March 2016
Registered on the same date
examined the admissibility of the referral mentioned
Considering documents and materials, deliberated on 23 March
2016 in the council chamber,
Delivers the following decision: tHE FACTS

1. The case originated notification is submitted to the Constitutional Court on 17 March 2016 by the panel of judges at the Court of Appeal, composed of judges Iurie Jordan and Silvia Lîsîi Gennady Sparrows, 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 the phrase "if it is necessary to annul the procedural truth and fair settlement of the case" in Article 251 para. (3) of the Criminal Procedure Code, the lawyer raised by Radu Dumneanu folder nr.16rj-151/16 before the Court Râşcani, mun. Chişinău.
2. The referral was submitted by the panel of judges at the Court of Appeal after the completion of judicial examination of the appeal issued by District Court, which had refused the lawyer's request Radu Dumneanu on notifying the Constitutional Court.
A.
Reasons for raising the objection of unconstitutionality 3. Reasons raising objection, as was exposed by its author, may be summarized as follows.
4. Article 251 para. (2) of the Criminal Procedure Code provides that violation of legal provisions concerning the jurisdiction materiae or personae, the notification of the court, in its composition and advertising of the hearing, the participation of the parties where compulsory presence interpreter, translator, if you are required by law void procedural act.
May. Pursuant to art. 251 par. (3) of the Code of Criminal Procedure, procedural nullity provided for par. (2) thereof is not removed in any way, it may be invoked at any stage of the parties and consider the court, including ex officio, if the annulment of the procedural act is needed truth and fair settlement of case.
June. According to the authors of the objection, art. 251 par. (3) of the Criminal Procedure Code are not clear and predictable, are contrary to Articles 21 and 26 of the Constitution.
B.
Relevant legislation in July. The relevant provisions of the Constitution (OJ 1994, no. 1) are:
Article 21 Presumption of innocence


"Everyone charged with a crime is presumed innocent until proved guilty will be proved legally during a public trial at which he has had all the guarantees necessary for his defense."
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. "
August. 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 251 violations which attract nullity of procedural acts

"[...]
(2) Violation of legal provisions on competence by subject or personae, the notification of the court, in its composition and advertising of the hearing, the parties where mandatory participation in an interpreter , translator, if you are required by law void procedural act.

(3) Nullity in para. (2) not removed in any way, may be invoked at any stage of the parties and the court shall consider, including ex officio, if the annulment of the procedural act is necessary truth and fair settlement of the case.
[...] "
THE LAW A. The author of the objection of erratic-tuţionalitate
September. In motivating the exception of unconstitutionality author argues that the application of legal norms relating to nullity procedural documents allow arbitrary behavior on the part of the court due to uncertainty norm.
10. Thus, according to the author of the objection, although art. 251 par. (2) of the Criminal Procedure Code expressly provides situations that attract nullity procedure, criminal procedure legislation does not regulate clearly the solutions court when examining an application for annulment of a procedural act, especially when annul the procedural it is necessary to ascertain the truth and fair settlement of the case.
11. Finally, the author claims that the objection of unconstitutionality challenged norm violates the principle of presumption of innocence and right of defense.
B. The Court's assessment
12. Examining complaints concerning the objection of unconstitutionality in terms of admissibility, the Court finds as follows.
13. Under Article 135 para. (1) a) of the Constitution, Article 4 para. (1) a) of the Law on Constitutional Court and Article 4 para. (1) a) of the Code of Constitutional Court shall, upon appeal, the constitutionality of laws.
14. The Court notes that, being raised by the lawyer Radu Dumneanu in case no. 16rj-151/16 before the Court Râşcani, mun., On the plea of ​​unconstitutionality complaint 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
15. 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.
16. The Court notes that the object of the objection of unconstitutionality is the phrase "if it is necessary to annul the procedural truth and fair settlement of the case" in Article 251 para. (3) of the Criminal Procedure Code.
17. The Court notes that the challenged rule governing the situation of absolute nullity of the procedural documents in criminal proceedings, procedural nullity representing an extreme penalty that occurs only when other remedies are not possible.
18. The Court notes that the author of the exception to the rule invoked contested Articles 21 and 26 of the Constitution.
19. The Court notes that a legal provision can only be the object of constitutional jurisdiction where the alleged constitutional rules affecting the contested rules.
20. In this regard, the Court notes that Article 24 para. (2) of the Law on Constitutional Court and Article 39 of the Constitutional Jurisdiction Code, notification must be substantiated and contain the subject and the circumstances that bases its subject requirements.
21. In this context, the Court notes that Article 21 of the Constitution, which guarantees the presumption of innocence, has no bearing in this case.
22. Regarding the alleged violation of Article 26 of the Constitution which provides for the right of defense, the Court finds no relevant arguments and conclusive by the author waiver should demonstrate to what extent legal provisions challenged violate constitutional rules invoked.
23. The Court can not accept criticism in relation to the law constitutional provisions on rights of defense, since the legal text that is subject to the exception prevents parties to be assisted by a defender chosen or appointed ex officio.
24. Therefore, analyzing the exception of unconstitutionality, the Court observes that it is unfounded, since the author's arguments in its motivation exception relates to matters of interpretation and enforcement.

25. The Court reiterates that the Supreme Law of Parliament vested with the right official interpretation of the laws passed. According to article 66 c) of the Constitution, one of the basic functions of Parliament as the supreme representative and legislative organ, is the interpretation of laws and legal regulations to ensure unity throughout the country. The aim is clarification of the interpretation of the rule of law by elucidation of its exact content and constitute a prerequisite for the correct application of legal rules.
26. According to art. 42 of the Legislative No.780-XV of 27 December 2001, the interpretation of legislation is a system of logical operations and fully explain the exact meaning of normative provisions. Provides legal interpretation by the realization of the rule of law in its exact meaning.
27. Under those listed above, the Court finds that, in the absence incidence constitutional norm of the presumption of innocence on the law contested in the absence of argument impietării the provisions criticized on rights of defense, notification regarding the exception of unconstitutionality does not meet the eligibility and can not be accepted for examined.
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 "if it is necessary to annul the procedural truth and fair settlement of the case" in Article 251 para. (3) of the Criminal Procedure Code, the lawyer raised by Radu Dumneanu folder nr.16rj-151/16 pending before the Court Râşcani, mun. Chişinău.
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