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Regarding The Plea Of Unconstitutionality Of Some Prevederiale Article 2641 Para. (3) Of The Criminal Code (Establishing The State Of Drunkenness Through Biological Sampling) (Referral No. 66G/2016)

Original Language Title: privind excepţia de neconstituţionalitate a unor prevederiale articolului 2641 alin. (3) din Codul penal (stabilirea stării de ebrietate prin recoltarea probelor biologice) (Sesizarea nr. 66g/2016)

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    On behalf of the Republic of Moldova, the Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU Mr. Igor DOLEA, Mr. Victor PALMER, Mr. Zadrahimi, judges, with the participation of Mr Darroch Avornic, Registrar, considering the appeal filed on 6 June 2016, and recorded at the same time, examining the appeal referred to in public plenary, taking into account the laws and proceedings, Acting in the Council Chamber following the judgment, a decision: 1. The origin of the case lies the plea of unconstitutionality of the phrase "or of the biological sampling in the context of this medical examination" in paragraph 1 of article 2641. (3) of the penal code, raised by Attorney Igor Chiriac dossier No. 263/1-15 on the role of the Balti Court.
2. The appeal was lodged with the Constitutional Court on 6 June 2016 by judge A. Murray, 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.
3. The author of the referral alleged that the provisions of paragraph 1 of article 2641. (3) of the penal code, which criminalizes the refusal, avoidance or resistance of the driver of the means of transport from the biological sampling in order to establish the State of drunkenness and of its nature, in the context of the medical examination, contrary to the provisions of articles 16, paragraph 2. (2) paragraphs 2 and 3, 23. (2) paragraphs 2 and 3, 28 and 31. (1) of the Constitution.
4. By decision of the Constitutional Court of 14 June 2016-constitutionality exception has been declared admissible, without prejudeca Fund case.
5. In the process of examination of constitutionality exception the Constitutional Court requested the opinion of the Parliament, the President of the Republic of Moldova, the Government and the Prosecutor General's Office.
6. In the plenary session of the Court of constitutionality, the exception was supported by lawyer Igor. Parliament was represented by Mr. Konstantin Butnaru, Senior Adviser in the Directorate-General. The Government was represented by Mr. Andrei Șveț, head of the Legal Directorate of the Ministry of Health.
The MAIN DISPUTE CIRCUMSTANCES 7. On 15 February 2015, being suspected that has consumed alcohol, C.C. was summoned by the road traffic officers to undergo alcoolscopice testing.
8. Subsequently, following the establishment of the State of drunkenness, C.C. was escorted to the medical-sanitary institution for medical examination in order to determine the concentration of alcohol in the blood, but the person subjected to the examination of biological samples harvesting refused.
9. In this context, on 16 February 2015, the prosecution has been initiated with regard to his Dc, on signs of ratings of the offence provided for in art. 2641 para. (3) of the penal code.
10. On 3 April 2015, cause criminal was sent for examination to the Balti Court.
11. May 20, 2016, at the hearing, the Defender Igor Callaway raised the plea of unconstitutionality of the phrase "or of the biological sampling in the context of this medical examination" in paragraph 1 of article 2641. (3) of the penal code.
12. By the same date, the Court has ordered the lifting of the exception of unconstitutionality and send referral to the Constitutional Court for settlement.
PERTINENT LEGISLATION 13. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 28Viaţa intimate, family and private life and respects State protects private and family. "


Article 54Restrângerea the exercise of certain rights or freedoms "(1) in the Republic of Moldova cannot be adopted laws suppressing or violating fundamental rights and freedoms of man and citizen.
(2) the exercise of rights and freedoms may not be subject to restrictions other than those prescribed by law and which correspond to the widely recognized norms of international law and are necessary in the interests of national security, territorial integrity, economic well-being of the country, public order, in order to prevent mass unrest and crime, protection of rights, freedoms and dignity of other persons, preventing the disclosure of confidential information or to ensure the authority and impartiality of the judiciary.
(3) the provisions of paragraph (2) do not allow the restriction of the rights stipulated in articles 20-24.
(4) the restriction must be proportional to the situation that caused it, and may not affect the existence of that right or freedom. "
14. The relevant provisions of the Criminal Code of the Republic of Moldova nr. 985 of 18 April 2002 (reprinted in the Official Gazette, 2009, nr. 72-74, art. 195) are as follows: Article 13412Starea drunk "(1) by drunk means state of disturbance of body psihofuncţională in consumption of alcohol, narcotic substances, psychotropic and/or other substances with similar effects.
(2) by the intoxicated alcoholic with minimum means the condition of the person who has a concentration of alcohol in blood from 0.3 up to 1.0 g/l or the concentration of alcohol vapors in exhaled air from 0.15 up to 0.5 mg/l. (3) by the intoxicated alcoholic with advanced degree means the condition of the person who has a concentration of alcohol in the blood at 1.0 g/l and more alcohol vapors or concentration in exhaled air from 0.5 mg/l and more.


Article 2641Conducerea means of transport while intoxicated with an advanced degree or alcohol intoxicated produced by other substances "(1) means of transport for Leadership by a person who is in the intoxicated alcoholic with advanced degree or intoxicated by Narcotics, psychotropic substances and/or other substances with similar effects shall be punished by a fine in the amount from 400 to 500 conventional units or with community service work from 200 to 240 hours, in both cases with deprivation of the right to drive transportation for a period of 3 to 5 years.
[…]
(3) the refusal of the opposition or avoidance, the driver of the means of transport when testing alcohol-scope, from the medical examination in order to establish the State of drunkenness and of its nature or biological sampling in the context of this medical examination is punishable by a fine of from 550 to 650 conventional units or with community service work from 200 to 240 hours in both cases, with deprivation of the right to drive transportation for a period of 3 to 5 years. "
15. The relevant provisions of the governmental decision nr. 296 of 16 April 2009 approving the Regulation concerning alcohol-scope testing and medical examination in order to establish the State of drunkenness and its nature (the O.G., 2009, no. 80-81, art. 347) are as follows: "5. alcoolscopice Testing, the police decision or other person empowered to conduct such testing, shall be subject to the following categories of persons: a) suspect drivers of alcohol consumption , drugs and/or other substance which causes drunkenness;
b) presumable consumption of alcohol, drugs and/or other substance which causes drunkenness, which violates public order and/or who exhibit aggressive behaviour and violent;
c) persons involved in road traffic accidents, with the exception of accidents resulting in serious trauma or death.
6. Medical Examination shall be subject to the following categories of persons: a) subjects the test alcoolscopice it was found at a concentration of alcohol in exhaled air, corresponding to the State of drunkenness with advanced degree alcohol;
b) suspected of committing persons crime under the influence of alcohol, drugs and other substances causing drunkenness, on the decision of the worker;
c) drivers and other road users who were involved in a traffic accident resulting in death or trauma;
d) presumable consumption of alcohol, drugs and other substances causing drunkenness, which violates public order and/or who exhibit aggressive and violent behavior, refusing alcohol-scope testing;
It's people who are not) agree with the test result or contesting the result alcoolscopice;
f) persons is addressed in its own right.
[…]
11. the person in charge with carrying out of testing is required: alcoolscopice [...]) to lead the subject, if the concentration of alcohol in the air exhaled corresponds to the State of advanced drunkenness with breathalyser, authorised at a medical institution for medical examinations and drug addiction assistance needed.
[…]
13. the person who tested alcoolscopic does not agree with the procedure prior to testing, testing appliance operation, the result of the testing, the right to challenge it through the medical examination with collection of biological samples. In this case the person tested is accompanied by a worker at the police station the nearest medical institution empowered, but not later than 2 hours after alcohol-scope testing.
[…]

21. Where the medical examination is determined drunk, biological sampling to determine the concentration of alcohol in the blood and the presence of narcotic substances or drugs with similar effects in blood and/or urine is compulsory.
22. The determination of the concentration of alcohol in the blood and the presence of drugs, psychotropic substances or other drugs with similar effects in blood and/or urine is compulsory and where there are differences between the test result and conclusion alcoolscopice medical examination.
[…]
35. medical examination Concluded for the establishment of the State of drunkenness and its nature, including laboratory analysis of biological samples can be challenged by the subject of medical examination by the times which has ordered the medical examination within 3 days from the date of notification of conclusion, by requiring laboratory analysis is repeated in other medical institutions are empowered, than the one who carried out the initial investigation.
[…]”
16. 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 the following: Article 8 right to respect for private and family life "1. Everyone has the right to respect for his private life and family life, his home and his correspondence.
2. It is not permitted in a mixture of public authorities exercising that right only in so far as this is provided for by law and constitutes, in a democratic society, a measure necessary for national security, public safety, the economic well-being of the country, order and preventing criminal offences, the protection of the health, morals, rights and freedoms of others. "
A. in LAW 17. The exception of unconstitutionality, the Court observes that it is aimed at essentially criminal liability for refusal, avoidance or resistance of the driver of the means of transport from the biological sampling in the context of the medical examination in order to establish the State of drunkenness and of its nature.
18. Thus, the plea of unconstitutionality refers to elements and principles with constitutional value as well as the right to privacy and the limits of restricting it.
B. ADMISSIBILITY Of 19. By its decision of 14 June 2016, the Court verified the meeting the following conditions for eligibility: (1) subject to the exception comes into the category of acts covered by article 135 paragraph 1. (1) (a). the of the Constitution).
20. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws, in particular the criminal code, is the responsibility of the Constitutional Court.
(2) Exception is raised by one of the parties or its representative, or indicates that it is lifted by the Court ex officio.
21. Being raised by Attorney Igor Chiriac criminal dossier No. 263/1-15 on the role of the Balti Court of Justice, to refer to the exception relating to constitutionality is made by the subject in charge with this right under article 137 para. (1) letter a) and paragraph 2 of point 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.
(3) the provisions of the contested to be applied to the settlement of the case. Note that the power of the Court to settle, with the exceptions of unconstitutionality that had 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.
23. the Court observes that the object of the exception of unconstitutionality is the phrase "or of the biological sampling in the context of this medical examination" in paragraph 1 of article 2641. (3) of the penal code.
24. the Court supports the author's arguments for constitutionality exception, according to which the impugned provisions to be applied to the settlement of cases, because under their empire were born to legal relations which continue to have effect and are determined to settle the case.
(4) there is a previous judgment of the Court has as its object the contested provisions 25. Keep in mind that the Court have not been previously challenged the constitutionality.
26. Therefore, the Court considers that the appeal cannot be rejected as inadmissible and there is no other reason to interruption of the process, in accordance with the provisions of article 60 of the code of constitutional jurisdiction.
27. Following its previous case-law, the Court will address the issue of the constitutionality of the challenged provisions in respect of the circumstances of the dispute in the light of the main constitutional rules cited by the author of the exception, taking account both of the principles enshrined in the Constitution and in national law, and the ruling in the European Court of human rights (hereinafter the ECHR).
28. the Court observes that the author has claimed that the exception provisions challenged are contrary to articles 16, 23, 28 and 31 of the Constitution.
29. the Court finds that the appeal does not include cogent arguments that would indicate the scope of articles 16 and 23 of the Constitution over the disputed rule.
30. Referring to the provisions of article 31 of the Constitution, which governs freedom of conscience, the author has indicated that there are exception members of religious denominations for blood sampling is contrary to their beliefs. Thus, with regard to the alleged infringement of freedom through the contested norm consciousness, note that in the Court dispute in which he was raised the plea of unconstitutionality invoked part not belonging to a particular invocation of this cult, forming an actio popularis rules.
31. For the purposes of those mentioned, in order to elucidate the issues raised in the complaint, the Court will operate with the combined provisions of article 28 and article 54 of the Constitution.
B. the CASE of alleged infringement of the FUND article 28 combined with article 54 of the Constitution 32. The author argues that the non-constitutionality exception rule subject to constitutionality is in breach of article 28 of the Constitution, which stipulates that: "the State respects and protects intimate, family and life."
33. Equally, the author considers that the contested provisions infringe article 54 of the Constitution, which States: "(1) in the Republic of Moldova cannot be adopted laws suppressing or violating fundamental rights and freedoms of man and citizen.
(2) the exercise of rights and freedoms may not be subject to restrictions other than those prescribed by law and which correspond to the widely recognized norms of international law and are necessary in the interests of national security, territorial integrity, economic well-being of the country, public order, in order to prevent mass unrest and crime, protection of rights, freedoms and dignity of other persons, preventing the disclosure of confidential information or to ensure the authority and impartiality of the judiciary.
(3) the provisions of paragraph (2) do not allow the restriction of the rights stipulated in articles 20-24.
(4) the restriction must be proportional to the situation that caused it, and may not affect the existence of that right or freedom. "
1. the author's arguments, 34. Exception of unconstitutionality author argues, essentially, that in order to establish the person's State of drunkenness, additional testing of alcoolscopice, the person may be required to pass a medical exam, with biological sampling. The refusal of the biological sampling attract criminal liability under paragraphs 1 and 2 of article 2641. (3) of the penal code.
35. In this connection, the author argues that the exception "or biological sampling in the context of this medical examination", provided for in paragraph 1 of article 2641. (3) of the penal code, allows intervention on the physical integrity of the person and cause arbitrary interference in personal life, in breach of the provisions of article 28 of the Constitution.
36. Moreover, the author mentions that if drunk alcoholic condition was determined by the method alcooltesterului, the person cannot be required to provide blood samples during a medical examination.
2. The arguments 37 authorities. In his written opinion, Parliament argued that the disputed rule is clear, and the obligation of the driver of the means of transport in order to harvest biological samples derive from the law and expressly does not conflict with the Constitution, and possible abuses on the part of representatives of law enforcement agencies to be resolved by the Court.

38. At the same time, Parliament argued that the necessity of incrimination of acts prescribed by the contested rule has as purpose the protection of the life, bodily integrity and health of all persons engaged in road traffic, being prescribed by law, necessary in a democratic society and proportionate to the situation that caused it, the existence of the right touch neaducând itself.
39. In the opinion of the President of the Republic of Moldova, the application of criminal liability under art. 2641 para. (3) of the penal code resulting from the provisions of art. 33 para. (3) (a). с) of law No. 131 of 7 June 2007 on the safety of road traffic, which establishes the obligation of the driver of the vehicle shall be subject, at the request of the movement, the test procedure expired air and medical examination of biological samples collection with a view to finding alcohol.
40. At the same time, the President of the Republic of Moldova considers that, despite the fact that in the case of biological sampling, to some extent, restrict a person's right to respect for privacy and the right not to be subjected to interference related to physical integrity, the restriction in question is in accordance with art. 54 of the Constitution, since it is necessary to ensure the proper conduct of the prosecution, being proportional to the situation that caused it.
41. According to a report by the Government mentioned that the obligation to submit to the biological sampling to determine blood alcohol content corresponds to exigenței, i.e. social insurance commensurate with their use on the road, the protection of the right to free movement and the safety of other participants in road traffic. Criminalizing the theft of biological sampling has the purpose to protect the rights and freedoms of citizens, life, body and health, as well as other important values engaged in road traffic.
42. According to a report by the Prosecutor General's Office mentioned that the test result alcoolscopice can be used as evidence in the documentation or related offences a photographic plastic counterpart directing vehicles by drivers under the influence of alcohol, without the passage of mandatory medical examination with biological sampling in order to establish the State of drunkenness. Thus, medical examination is applicable in cases where the driver of the means of transport wishes to appeal the result of the test alcoolscopice.
43. According to a report by the Supreme Court of Justice mentioned that biological sampling serves purposes, as well as public security, the protection of the rights and freedoms of other persons and punish those who violate the law. Thus, the fair balance requires maintaining the formula provided for in art. 2641 para. (3) of the penal code.
44. At the same time, with reference to the jurisprudence of the European Court, the Supreme Court of Justice points out that there is a european consensus with regard to the need to measure biological sampling in order to determine the level of alcohol in the blood of participants in traffic.
3. Assessment of the Court 3. 1. General principles concerning the right to respect for private life, 45. The court notice that article 28 of the Constitution guarantees every person the right to family life and private setting in this sense a degree of protection against any ingerințe over it.
46. At the same time, the Court noted that the right to respect for and protection of life, private and intimate family does not bear a character absolutely. Thus, the provisions of article 54 of the Constitution grants the State a margin of appreciation in part pertaining to the restriction of the exercise of certain rights or freedoms of individuals, in order to protect certain important values for normal functioning of the rule of law.
47. in accordance with paragraph 1. (2) of article 9. 54 of the Constitution, the exercise of rights and freedoms may not be subject to restrictions other than those prescribed by law and which correspond to the widely recognized norms of international law and are necessary in the interests of national security, territorial integrity, economic well-being of the country, public order, in order to prevent mass unrest and crime, protection of rights, freedoms and dignity of other persons, preventing the disclosure of confidential information or to ensure the authority and impartiality of the judiciary.
48. According to article 4. 54 paragraph 2. (4) of the Constitution, the restriction must be proportional to the situation that caused it, and may not affect the existence of that right or liberty. Furthermore, note that these Court restrictions must be prescribed by law, pursue a legitimate purpose and be necessary in a democratic society.
3.2. Applying the principles in this question 49. Note that criminal law court criminalizes in article 2641 para. (3) the offence of refusal or evasion, resistance of the driver of the means of transport from alcohol-scope testing, medical examination in order to establish the State of drunkenness and of its nature or biological sampling in the context of this medical examination.
50. the Court observes that the crime provided by article 2641 para. (3) of the penal code constitutes an infringement of formal composition, and the object for which the legal affect social relations formed with regard to road traffic safety.
51. the Court notes that any physical intervention, even a minimum degree upon a person, against the wishes of the Administration, can affect a person's right to the privacy of his life are examined.
52. In the case of Solomakhin vs. Ukraine (judgment of 15 March), the European Court has noted that: "33. […] the physical integrity of a person is covered by the term ' private life ', protected by article 8 of the Convention. The Court pointed out that a person's bodily integrity concerns the most intimate aspects of private life, and medical intervention, even if it is of minor importance, constitute a ingerință that right. "
53. the Court reiterates that the right to respect for private life and protection may not be absolutely right, but one that can involve limitations, provided that they are reasonable and proportionate to the legitimate aim pursued.
54. Referring to the correlation between the obligation of the State and the obligation of the directors of the means of transport in the field of road traffic safety, in Judgement No. 28 of November 18, 1986, the Court noted that: "45. [...] road traffic safety presents an overriding public interest, thus ensuring security is a positive obligation of the State. Transport unit, as a participant in traffic, are a source of increased danger, the driver having the obligation to comply with certain regulations imposed by the authorities in avoiding the risks resulting from the use of motor vehicles. "
55. the Court notes that the imposition of conditions for the movement of means of transport is an exclusive attribute of the legislature, which regulated traffic arrangements on public roads so that road traffic deployment to take place safely.
56. the Court points out that the restriction is likely in the legal nature of the rights or freedoms of transportation leaders may form the object of taxation obligations, including criminalizing the refusal to submit to the execution of the obligations incumbent upon them as actors in road traffic.
57. the Court note that need intervention in privacy by forcing the driver of the means of transport to the collection of biological samples in order to establish the State of drunkenness is justified by the protection of important values like public order, traffic safety, the prevention of danger for the life and physical integrity of others, as well as the prevention of a threat on life, bodily integrity to himself the ruler of the means of transport.
58. In the same vein, the European Court, in Tirado Ortiz and Tiffany Martin vs. Spain (decision of 15 June 1999) and x. v. Netherlands (decision of 4 December 1978), held that while mandatory testing of levels of alcohol may be considered a violation of the privacy of complainants under article 8 § 1 of the Convention, at the same time it may be deemed necessary for the prevention of crime and the protection of the rights and freedoms of others.
59. Furthermore, in the case of Jalloh v. Germany (judgment of 11 July 2006), the European Court noted that: "114. […] the person who is tested alcoolscopic or i take biological samples, in order to obtain samples, shall be required to endure passively a minor intervention over his physical integrity (for example, when i take blood, hair or tissue samples). […].”
60. In the case of Detlef-Harro vs. Germany (decision of 5 January 2006), the European Court has established that the blood sampling when it is carried out by a law doctor artis is one of short duration, causing minor injury to persons and argues that underlies some psychic or mental intense suffering.

61. Thus, in its jurisprudence, the European Court decided that the collection of biological samples from drivers of vehicles for the establishment of the State of drunkenness shall not affect the right to privacy.
62. Furthermore, the Court notes that Resolution (73) 7 of 22 March 1973 the Committee of Ministers of the Council of Europe, chapter II, point 2(a). (b)) provides that "when the driver of the vehicle while driving is suspected of committing an offence under the influence of alcohol, it is necessary to conduct a medical examination, and if there is no medical contra-indications to be performed and the testing of blood." And (c)) the same establishes that "no one can deny or evade the blood or breath test, from the medical examination."
63. At the same time, the Court notes that the necessity of the intervention through biological sampling is justified by the fact that the samples in question are temporary in nature, being subjected to rapid hepatic metabolism, thus there is no less restrictive means to achieve the aim of ensuring road traffic safety.
64. Furthermore, the Court noted that there are other means that would confirm with certainty the State of advanced drunkenness, which measure is assessed as being proportional to the situation that caused it and necessary in a democratic society.
65. Moreover, the Court observes that the obligation imposed by rule is challenged in a logical connection with the provisions of art. 33 para. (3) (a). c) of law No. 131 of 7 June 2007 on the safety of road traffic, which establishes the obligation of the driver of the means of transport to undergo medical examination and testing alcoolscopice.
66. At the same time, the court notice that by the decision of the Government. 296 of 16 April 2009 was approved regulation on alcohol-scope testing and medical examination in order to establish the State of drunkenness and of its nature.
67. Thus, according to the regulation, the person in charge with carrying out alcoolscopice testing is required to lead the subject, if the concentration of alcohol in the air exhaled corresponds to the State of advanced drunkenness with breathalyser, from a medical facility. Where the medical examination shall be established by the State of drunkenness, biological sampling to determine the concentration of alcohol in the blood. Determination of the concentration of alcohol in the blood is compulsory and where there are differences between the test result and conclusion alcoolscopice medical examination.
68. Similarly, the Court notes that, according to the regulatory framework, the driver of the vehicle, where it disagrees with the result of laboratory analysis of biological samples, has the right to request medical analysis in another medical institution empowered.
69. Thus, the Court points out that alcohol-scope testing procedure and medical examination in order to establish the State of drunkenness of the person is regulated by normative framework which establishes some guarantees in this regard. 70. Concluding the above, note that Court order the driver's vehicle to undergo the medical examination in order to establish the State of drunkenness does not bear an excessive character and does not affect the constitutional provisions.
For these reasons, under articles 135 para. (1) (a). a) and g) and 140 of the Constitution, 26 of the law on the Constitutional Court, 6, 61, 62 lit. a) and e) and 68 of the code of constitutional jurisdiction, the Constitutional Court DECIDES: 1. reject the plea of unconstitutionality raised by Attorney Igor Callaway in file No. 1-265/15, pending at the Court of Balti.
2. recognizes the constitutional phrase "or biological sampling in the context of this medical examination" in paragraph 1 of article 2641. (3) of the Criminal Code of the Republic of Moldova nr. 985-XV of 18 April 2002.
3. 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.