Inadmissibility Of Referral No. 118G/2016 Regarding Constitutionality Exception Provisions Of Art. 325 Para. (2) Of The Criminal Procedure Code Of The Republic Of Moldova (Modification Of Accusations On The Court)

Original Language Title: de inadmisibilitate a sesizării nr. 118g/2016 privind excepția de neconstituționalitate a unor prevederi ale art. 325 alin. (2) din Codul de procedură penală al Republicii Moldova (modificarea învinuirii în instanţa de judecată)

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    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, taking into account the appeal lodged on 4 October 2016, recorded at the same time, examining the admissibility of the referral, taking into account the laws and proceedings, Acting on 12 October the Council room 2016 the next decision, a decision: in fact 1. The origin of the case lies the plea of unconstitutionality of "Modification of accusations on the Court of law shall be permitted if it does not worsen the situation of the accused and shall not prejudice his right to defense." in paragraph 1. (2) article 325 of the code of criminal procedure of the Republic of Moldova nr. 122-XV of 14 March 2003, raised by the lawyer Vadim Galt No. 1A -70/2016, pending the appellate court of Balti.
2. The plea of unconstitutionality has been lodged with the Constitutional Court on 4 October 2016 by the Panel of judges within the Balti Court of Appeals (Ala Rotaru, Michael Adam, Rifle), 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. By judgment of the Court of 25 may 2012 Briceni, d., and was recognized guilty of committing the offence provided for in art. 217 paragraph 1. (2) of the penal code with the application of the death penalty in the form of imprisonment for a term of 1 year in semi-closed penitentiary. The same sentence, d., etc.  He was acquitted of the charge relating to committing the crime provided for in art. 290 paragraph 1. (2) (a). b), art. 42 para. (3), art. 145 Abdel. (2) letter b) ...), j) and (k)), art. 42 para. (3) and article 3. 188 paragraph 1. (5) of the penal code, on the grounds that the Act was not committed by the defendant.
4. Disagreeing with the judgment rendered, the prosecutors and the injured party, V.C., A.G., and the victim's successor, V.G., have appealed to the Court of appeal in Bălți.
5. On 24 October 2013, Prosecutor's Office Prosecutor V.C. of Balti Court of appeal level, has issued an Ordinance by which ordered the fleshing out of accusations lodged with d. and charged with committing criminal offences, under article. 42 para. (3), art. 145 Abdel. (2) (a). b) ...), j), (k)), art. 42 para. (3) paragraphs 1 and 2, art. 188. (5), art. 290 paragraph 1. (2) (a). (b)) and art. 217 paragraph 1. (2) of the penal code.
6. By decision of the College of Criminal Court of Balti Call of 11 December 2013, were declared against the Court sentence calls Briceni of 25 may 2012, while maintaining the sentence without modification.
7. On 22 July 2014 widened criminal College of the Supreme Court of Justice quashed the decision of the Collegium of the Court of Criminal Appeal on 11 December 2013 Balti and ordered the retrial in the same Court of appeal, in another completely.
8. Within rejudecării of the case by the Court of appeal, counsel requested the lifting of Vadim Gallegos exception of unconstitutionality of "Modification of accusations on the Court of law shall be permitted if it does not worsen the situation of the accused and shall not prejudice his right to defense." in paragraph 1. (2) article 325 of the code of criminal procedure.
9. By the conclusion of the Court's criminal College Call Puddles of 9 September 2016, was willing to suspend the process, raising the exception of unconstitutionality and send referral to the Constitutional Court for settlement.
B. relevant Legislation 10. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are as follows: Article 21Prezumţia of innocence "any person charged with an offence is presumed innocent until his guilt is going to be proven legally, during a public trial in which he was assured all the guarantees necessary for his defence."


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. "
11. The relevant provisions of the code of criminal procedure of the Republic of Moldova nr. 122-XV of 14 March 2003 (reprinted in the Official Gazette, no. 13, 248-251, art. 699) are as follows: "Article 325Limitele resulting from (1) the proceedings in first instance shall be made only in respect of the person under accusation of accusations and only within the limits set out in the indictment.
(2) Modification of accusations on the Court of law shall be permitted if it does not worsen the situation of the accused and shall not prejudice his right to defence. Modification of accusations on the meaning of aggravation of the situation of the defendant shall be permitted only in the cases and under the conditions provided for in this code. "


Article 326Modificarea the prosecution in court for the purposes of (1) the Prosecutor participating in criminal proceedings at first instance and in the Court of appeal is entitled to alter, by Ordinance, the prosecution brought the accused within criminal proceedings in the sense of aggravation they investigated whether evidence in court to prove beyond reasonable doubt that the defendant committed a crime more serious than that previously indicted bringing to the attention of the defendant, his defence and, where appropriate, the legal representative of the accused the new accusation. In such event, the Court, at the request of the defendant and his attorney, gave the term required for his defence of the new accusation, after re-opening continues. In the Court of appeal, the Prosecutor may amend the indictment in the sense of just where the said appeal.
[…].”
In the author's Arguments exception. unconditional-stituționalitate 12. In the non-constitutionality exception, reasoning the author argues that, given that the first sentence of paragraph 1. (2) of article 9. 325 of the code of criminal procedure expressly legislator did not specify the criteria and conditions under which the defendant did not worsen the situation and does not harm the rights of defence, to human rights and freedoms. However, the rule allows the Prosecutor challenged the criminal process to benefit from the advantages and abusing by changing the accusation in court.

13. According to the author, the provisions of the contested exception violated the provisions of articles 21 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, in particular the code of criminal procedure, is the responsibility of the Constitutional Court.
16. the Court finds that the appeal relating to the exception of unconstitutionality, being raised by her lawyer Vadim in the Galt No. 1A -70/2016, pending at the Court of appeal of Bălți, the subject is entitled to this right under 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.
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. In the present case, the Court notes that the author claims that the exception text "Modification of accusations on the Court of law shall be permitted if it does not worsen the situation of the accused and shall not prejudice his right to defense." in article 325 para. (2) of the code of criminal procedure is contrary to constitutional provisions contained in art. 21 on the presumption of innocence and art. 26 concerning the right of defence.
19. the Court notes that the legislature has provided for in art. 325 of the code of criminal procedure the right attorney to submit an Ordinance amending the accusations in court. Thus, it is acceptable to modification of accusations on the Court if it did not thereby worsens the situation of the defendant and shall not prejudice the right of defence. At the same time, modification of accusations is possible in the sense of aggravation of the situation of the accused, under the conditions laid down in article 21. 326 of the code of criminal procedure.
20. In Judgement No. 5 of March 17, 2009, the Court has mentioned that it is "[...] inadmissible practice of bringing unfounded new counts in the lawsuit resulting from the criminal case, but [...] it is equally unacceptable that the representative of the State prosecution, which he discovers in criminal proceedings new incriminating circumstances, they cannot apply for the qualification of proper justice levers and equitable actions committed by the defendant. In this case it would violate the right to a fair trial of the injured party and society, accusing the person via the Attorney. "
21. In this context, the Court recalls that, by the same decision, set out supra, found that the provisions of art. 326 para. (1) of the code of criminal procedure are constitutional in relation to criticisms leveled against third parties. 20, 21, 26, 54 and 119 of the Constitution.  
22. Furthermore, in its jurisprudence, the European Court held that a Court of appeal has undeniably right to reclassify the facts, but as this retraining is compatible with the Convention, the accused must be given the opportunity to exercise their rights of defence in concretely, effectively and in a timely manner (see Pablo and Sassi v. France, application No. 25444/94 judgment of 25 March, 1999, § 62).
23. In this connection, the Court observes that, according to art. 327 of the code of criminal procedure, the Court, at the request of the parties, the Court may defer in order to submit additional samples, where they consider that the evidence presented in court is insufficient to confirm their positions.
24. While examining the plea of unconstitutionality, the Court retains the author seeks in reality exception, supplementing the provisions of article 4. 325 para. (2) of the criminal procedure code, for the purpose of expressly lay down criteria and conditions under which the accused does not worsen the situation and does not harm the rights of defence of the modification of accusations on the Court. Settlement of this request does not fall within the competence, however, the Constitutional Court, who stands only on the constitutionality of acts in respect of which it was seised, without being able to amend or complement the provisions under scrutiny.
25. in addition, any changes in the accusation in court with the erroneous application of the exception invoked by the author cannot constitute grounds of unconstitutionality of the provisions of the Bill criticized and therefore do not fall under the control of constitutionality, exercised by the Court, but also the competence of the Court to settle the dispute, respectively, of the hierarchically superior within the remedies provided by law. Responding to criticism of the author in this case exception would mean interference in the activity of the Constitutional Court, which would be illegal. 115 of the Constitution, according to which justice shall be administered by the Supreme Court of Justice, the Court of appeal and the courts of law.
26. In the light of the above, please note that Court the plea of unconstitutionality within the scope of a matter that is beyond the control of constitutionality. Respectively, the exception cannot be accepted for the examination and to be rejected as being manifestly unfounded.
For these reasons, pursuant to article 26 of the law on the Constitutional Court, articles 61 para. (1) and (3) and 64 of the code of constitutional jurisdiction and the PT 28 lit. d) of the regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court DECIDES: 1. To be declared inadmissible the appeal regarding plea of unconstitutionality of "Modification of accusations on the Court of law shall be permitted if it does not worsen the situation of the accused and shall not prejudice his right to defense." in article 325 (2) of the criminal procedure code of the Republic of Moldova , nr. 122-XV of 14 March 2003, raised by the lawyer Vadim Galt No. 1A -70/2016, pending the appellate court of Balti.
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.

The PRESIDENT of the CONSTITUTIONAL COURT Alexandru Tanase

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