Limiting Reconciliation in Criminal Cases – Constitutional

On 21 September 2017, the Constitutional Court of Moldova delivered a judgment on the exception of unconstitutionality of certain provisions of Article 109.1 of the Criminal Code.

Circumstances of the case

The case originated in an exception of unconstitutionality of the phrase ”if the person has no criminal record for similar offences committed intentionally or if there was not ordered a termination of the criminal proceedings, as a result of reconciliation, for similar offences committed intentionally in the last five years” of Article 109.1 of the Criminal Code of Moldova no. 985-XV of 18 April 2002, raised by Mr Ghenadie Eremciuc – judge of Court of Law of Bălți in the case no.1-49/2017 pending before the Court of Law of Bălți.

According to Article 109.1 of the Criminal Code: “Reconciliation is the act of removing criminal liability for a minor or for a less minor crime, and in the case of juveniles – for a serious crime too, crimes provided by Chapters II-VI of the Special Part [of the Criminal Code - TN], as well as in cases provided by criminal procedure, if the person has no criminal record for similar crimes committed intentionally or there was order a termination of criminal proceedings – as a result of reconciliation – for similar crimes committed intentionally in the last five years.”

The cited legal provision was amended by the Law no. 130 of 9 June 2016, in force as of 15 July 2016. In this regard, the author of the exception of unconstitutionality mainly contended that the challenged provisions aggravate the situation of the person found guilty of a crime, in breach of the principle of non-retroactivity of the law, as the moment the time limit “the last five years” of Article 109.1 of the Criminal Code starts running is also applicable to criminal proceedings terminated as a result of a reconciliation, prior to the entry into force of the amendments.

The complaint was examined by the Constitutional Court of Moldova in the following composition:

Mr Tudor PANȚÎRU, President, 

Mr Aurel BĂIEŞU,

Mr Igor DOLEA,

Mrs Victoria IFTODI,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN, judges.

Conclusions of the Court

Examining the casefiles and hearing the reasoning of the parties, the Court noted that Article 22 of the Constitution safeguards the principle of non-retroactivity of the law, which reads that no one shall be sentenced for actions or drawbacks which did not constitute an offence at the time they were committed. No punishment more severe than that applicable at the time when the offence was committed shall be imposed.

The Court noted that the institution of reconciliation is regulated by Art. 109 of the Criminal Code and constitutes one of the causes for the criminal liability to be removed.

The Court observed that the Law no. 130 of 9 June 2016, in force as of 15 July 2016, instituted new conditions for the institution of reconciliation.

Therefore, in line with the new requirements, reconciliation may be concluded in the following cases: 1) a person has no criminal record for similar crimes committed intentionally; 2) no termination of criminal proceedings was ordered for a person – resulting from reconciliation – for similar crimes committed intentionally in the last five years.

The Court found that this last condition does not aim at crimes committed previously, but it is only applied in cases of reconciliation of litigants within criminal proceedings for crimes committed following the entry into force of the Law no. 130 of 9 June 2016, the five year time limit being a requirement for reconciliation to be concluded in case of new crimes being committed.

Also, the Court found that by instituting the five year time limit when a criminal reconciliation may not be concluded in cases there was concluded another reconciliation, which served as a basis for the termination of criminal proceedings against a person, for similar crimes committed intentionally, the lawmaker did not amend the law targeting the content of crime or a punishment, but it instituted additional conditions for the reconciliation to be concluded.

Therefore, the Court held that reconciliations concluded in the last five years prior to the moment of entry into force of the amendments operated by the lawmaker constitute, de facto, acts that took place and shall be considered by criminal investigation bodies or by courts of law. In line with the caselaw of the European Court of Human Rights [Judgment Achour v. France], the practice of taking past events into consideration should be distinguished from the notion of retrospective application of the law, stricto sensu.

Moreover, the Court held that there is no doubt that the person who in the last five years benefitted of a termination of criminal proceedings resulting from reconciliation may have foreseen that in the event of committing new crimes, following the amendment of Article 109.1 of Criminal Code, it would make it impossible to conclude another reconciliation.

Therefore, the Court held that the challenged provisions do not apply retrospectively within Article 22 of the Constitution, as the new regulations of Art. 109.1 of the Criminal Code apply in line with the principle of applying criminal law, which implies that the law is applied to all the crimes committed when it is in force.

Concluding, the Court held that instituting a five year time limit for cases when criminal reconciliation may not be concluded in the event another reconciliation took place previously, which served as a ground for the criminal proceedings against the person to be terminated, for similar crimes committed intentionally, there are not affected the provisions of Article 22 of the Constitution on non-retroactivity of the law.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court of Moldova:

-          Rejected the exception of unconstitutionality;

-          Declared constitutional the text “in the last five years” provided by Article 109.1 of the Criminal Code of the Republic of Moldova no. 985-XV of 18 April 2002.

This is an English language courtesy translation of the original press-release in Romanian language.