Criminal Liability Without Legal Provisions – Unconstitutional
On 22 July 2016, the Constitutional Court of Moldova delivered its judgment on the exception of unconstitutionality of Article 125.b of Criminal Code, Articles 7.7, 39.5 and 313.6 of the Code of Criminal Procedure and certain provisions of Articles 2.d and 16.c of the Law on the Supreme Court of Justice.
Circumstances of the case
The case originated in an exception of unconstitutionality raised by the lawyer Igor Chiriac, in the criminal case No.21r-170/16, pending before the Chișinău Court of Appeal.
The author of the exception of unconstitutionality requested a constitutional review of certain provisions of the Criminal Code, Code of Criminal Procedure and the Law on the Supreme Court of Justice, as follows:
1) The challenged provisions of Criminal Code:
- Article 125.b under which illegal entrepreneurship also means „performing certain types of activity prohibited by law."
2) The challenged provisions of Code of Criminal Procedure:
- Article 7.7 providing that „the explanatory decisions of the Plenary of the Supreme Court of Justice on the application of legal provisions in judicial practice shall have the status of recommendations to criminal investigation bodies and to the courts of law." ;
- Article 39.5 under which the Supreme Court of Justice „adopts explanatory decisions on issues related to judicial practice concerning the uniform enforcement of criminal law and criminal procedural legislation";
- Article 313.6 in the part where "the decisions of investigating judges shall be irrevocable and cannot be appealed."
3) The challenged provisions of the Law on the Supreme Court of Justice:
- Article 2.d providing that the Supreme Court of Justice „shall provide ex officio explanations on matters of judicial practice that are not related to interpreting laws and are not mandatory for judges";
- Article 16.c in the part where the Supreme Court of Justice "adopts decisions of explanatory nature."
The author of the exception of unconstitutionality claimed that the challenged provisions are contrary to Articles 1.3, 4, 6, 8.1, 20, 21, 22, 23.2, 26, 54, 66.c, 116.1 and 119 of the Constitution.
The Constitutional Court ruled on the complaint in the following composition:
Mr Alexandru TĂNASE, President,
Mr Aurel BĂIEȘU,
Mr Igor DOLEA,
Mr Victor POPA,
Mr Veaceslav ZAPOROJAN, judges
Conclusions of the Court
Hearing the reasoning of the parties and examining the casefiles, the Court ascertained that the matter of the exception of unconstitutionality concerns essentially 3 issues:
(1) holding someone criminally liable for entrepreneurship without a license;
(2) the legal force of explanatory decisions of the Supreme Court of Justice;
(3) irrevocability of the decisions issued by the investigating judge.
1) On holding someone criminally liable for entrepreneurship without a license
The Court noted that performing illegal entrepreneurship, which is the matter of the present case, results in both criminal and contraventional liability.
Thus, Article 241 of the Criminal Code criminalises the unlawful performing of entrepreneurship. The acts deemed as unlawful the performing of entrepreneurship, susceptible of criminal liability, are defined by Article 125 of the general part of the Criminal Code. Thus, pursuant to the provisions of the Criminal Code, there constitutes an offense, inter alia, „performing certain types of activity prohibited by law."
At the same time, Article 263.4 of the Contravention Code sanctions „performing entrepreneurship without a license." Additionally, Article 10.4 of Law No. 845 of 3 January 1992 on entrepreneurship and enterprises provides that when performing unlicensed or prohibited activities on the territory of Moldova, as well as in the case of those allowed exclusively for state enterprises, the fiscal authorities, the Licensing Chamber - or another authority vested with the competence to issue a license - applies a fine in the amount of the gross income obtained from the mentioned activities.
The Court held that in this case the exception of unconstitutionality was raised within a case concerning a criminal offense provided for by Article 241.1 of the Criminal Code. At the basis of initiating criminal proceedings however lies the suspicion regarding the import and commercialisation of fertilisers by a company which did not hold a license for that.
In this context, the Court held that the provision of Article 125.b of the Criminal Code - „performing certain types of activity prohibited by law" - is distinct from „performing an activity without a license." Or, in the latter case, the activity is not part of the category of types prohibited by law, but is an allowed one; however it shall be performed in line with the law. Also, the Court noted that performing an activity without a license is not found in any other provisions of Article 125 of the Criminal Code, but only in the Contravention Code.
Thus, the Court could not accept the argument of the author of the exception, according to which the criminal proceedings for a deed sanctioned by the Contraventional Code was generated by the lack of clarity of the criminal provision.
The Court held that the provision of Article 125.b of the Criminal Code does not contain the list „of types of activity prohibited by law", being a blanket one. Thus, the prohibited types of activities are set out in other normative acts.
In this context, the Court recalled that in its caselaw it held, without challenging the principle of codifying the criminal law, that including blanket provisions in the Criminal Code is not contrary to the Constitution, pursuing the aim to ensure the stability of the criminal law, so that its content would not be affected by the frequent changes in legislation, as well as to ensure a systemic link between criminal law and other applicable normative acts.
Therefore, the provision contained in Article 125.b of the Criminal Code is not unclear. On the contrary, from the wording of this Article and Article 263 of the Contravention Code is clear that performing entrepreneurship without a license is punishable only by contravention sanction, and not by a criminal one.
In light of the above, the Court found that the issue addressed in this case derives from an erred interpretation and misapplication of the law and not from its lack of clarity.
In this context, the Court recalled that one of the fundamental elements of the prevalence of law and the rule of law is the principle of legality. In this regard, the Court underscored that, in accordance with the principle of prohibiting the extensive interpretation of the criminal law, the analogy is never allowed in criminal law to the detriment of the defendant. On the contrary, criminal law is to be interpreted strictly. In this context, the Constitution itself, in Article 22 guarantees that no one shall be sentenced for actions or omissions which did not constitute an offence at the time they were committed.
Consequently, the Court concluded that Article 125.b of the Criminal Code is constitutional insofar as in its current wording it is not interpreted as criminalising entrepreneurship performed without a license.
2) On the legal force of explanatory decisions of the Supreme Court of Justice
The Court held that pursuant to Article 116 of the Constitution, judges sitting in the courts of law are independent, impartial and irremovable under the law.
Judicial independence is not only independence of the judiciary as a whole or compared to the other branches of government, but it also pertains to the „internal" aspect.
The Court recalled that in the Judgment No.9 of 9 February 2016, it held that:
„ 97. The independence of the judges is one of the fundamental principles of justice organisation and delivery. When applying the law, the independence of judges excludes the notion of hierarchy, subordination. [...]
98. [...] The independence of the judge implies the requirement to solve the litigation without any interference, including from the hierarchically superior court."
Under Article 114 of the Constitution, „justice shall be administered in the name of the law." Therefore, judges are subject only to the law. This principle protects judges, firstly by external inappropriate influences. At the same time, the principle is also applicable within the judiciary. The hierarchical organisation of justice, in the sense of subordination of judges to the court presidents or to the superior courts in solving cases, would be a clear violation of this principle.
The fundamental idea is that a judge, in exercising his functions, is no-one's employee; he is the holder of a state office. He is thus the servant of the law, and accountable only to it. It is axiomatic that in solving a case, a judge is not acting at the orders or instructions of any third party within or outside the judiciary.
This requirement does not preclude a judge from a lower level jurisdiction to comply with a previous decision of a superior court concerning the interpretation of the applicable law in the subsequent case (judicial precedent/judicial practice).
In a system which is based on judicial independence, the superior courts ensure the consistency of caselaw throughout the country by their judgments delivered in individual cases. The lower courts, without formally being bound to respect judicial precedents in countries with a continental law system, unlike the situation in countries with a common-law system, tend to conform to the principles laid down in the judgments of superior courts to avoid their judgments being overruled by way of appeal. Moreover, the special procedural rules may ensure the consistency between different levels of the system of courts.
On the contrary, a system in which the Supreme Court is given the opportunity to address „recommendations/explanations" to lower-level courts on matters of law enforcement is not such as to favour the emergence of a truly independent judicial power. Moreover, this involves the risk that judges behave like civil servants, who receive orders from their superiors.
The adoption by the Supreme Court and other superior courts of practical guidelines binding on lower courts, situation seen in several post-Soviet countries, raises questions in this regard, a fact noted also by the Venice Commission in its reports.
Thus, such „recommendations/explanations" individually cannot form the basis of a judgment, to be based solely on legal provisions. Judges should benefit from an unfettered freedom in resolving cases impartially, in accordance with the law and with their own assessment of the facts.
Also, a judgment cannot be quashed merely on the ground that it is contrary to the established practice of the Supreme Court of Justice. In this respect, the European Court in its caselaw has held that there is no such a right to an established caselaw, so that its development imposed by a dynamic and evolutive approach is permitted and does not violate the principle of legal certainty (ECtHR, Unédic v. France, 2008 §74; Legrand v. France, 2011) if two conditions are met: (1) the new approach is consistent at the level of that jurisdiction and (2) the court that decided to change the interpretation shall reason in detail the considerations for which it decided this way (Atanasovski v. Macedonia, 2010, §38).
The Court held that the exception of unconstitutionality of Articles 7.7 and 39.5 of the Code of Criminal Procedure and Article 2.d and the phrase „adopts decisions of explanatory nature" from Article 16.c of the Law on the Supreme Court of Justice, which determine the competence of the Supreme Court of Justice to adopt explanatory decisions, was raised by the lawyer with regards to the impossibility to challenge an order on initiating criminal proceedings, before the investigating judge.
In this context, the Court held that the acts that may be challenged before the investigating judge are expressly provided by law. In this case, the explanatory decision of the plenary of the Supreme Court of Justice, invoked by the author of the exception echo the legal provisions. Thus, in the present case, the rejection of the challenge of this author's complaint was grounded on legal provisions, and not on those of the explanatory decision of the Supreme Court of Justice.
Therefore, the challenged provisions are not relevant in the main case pending before the Court of Appeal and this claim does not meet the admissibility requirements of the exception of unconstitutionality, which is admissible only in the case when the normative act is applied or to be applied in the concrete case that they are examining.
The Court considered that this claim is inadmissible since it envisages an in abstracto approach of the compatibility issues of a provision of the organic law with the Supreme Law, which does not relate to the merits of the main proceedings, being an actio popularis, which is inoperable in resolving exceptional cases of unconstitutionality, unlike an ordinary constitutional review.
For these reasons, the process of constitutionality review of Articles 7.7 and 39.5 of the Code of Criminal Procedure of Moldova No.122-XV of 14 March 2003 and Article 2.d and the phrase „and adopts decisions of explanatory nature" from Article 16.c of the Law No.789-XIII of 26 March 1996 on the Supreme Court of Justice, within the present exception of unconstitutionality shall be suspended.
3) On the irrevocability of the decisions issued by the investigating judge
The Court found that under Article 313 of the Code of Criminal Procedure, complaints against the actions and illegal acts of the criminal investigating body may be filed with the investigating judge. Pursuant to Article 313.6 „the decision of the investigating judge shall be irrevocable, except decisions on the refusal to initiate criminal proceedings, dropping of criminal prosecution, termination of criminal prosecution, dismissal of the criminal case and the resumption of criminal prosecution, which may be appealed before the Court of Appeal within 15 days from the date of delivery."
The Court held that by its Judgment No. 26 of 23 October 2007, Article 313.6 was subject to constitutional review, it ruling the following: „the decision of the investigating judge shall be irrevocable."
By this judgment the Constitutional Court declared constitutional Article 313.6 of the Code of Criminal Procedure and noted that „actions, inactions and errors committed at the stage of criminal prosecution are subject to appeal within the examination of the case on the merits, and following the delivery of the sentence, the parties enjoy the right to appeal and recourse before superior courts."
At the same time, the Court held that „the actions within criminal prosecution and judicial stages are components of an inseparable process that ends with the act of justice - delivery of the sentence. Or, every act at any stage of the process can be taken into account or be void and thus may influence, positively or negatively, the final product - the conviction or acquittal of the person. The completion of this process opens up the possibility of using the double degree of jurisdiction, and the sentence may be appealed and subject to recourse under the law."
The Court noted that although by the Law No. 46 of 27 March 2014 the legislator included certain exceptions to Article 313.6 of the Code of Criminal Procedure, establishing certain circumstances in which the decision of the investigating judge may be subject to appeal, this amendment shall not determine the Court to perform a new examination of the provision. Or, the author of the exception alleged an unconstitutionality as regards to the decisions of the investigating judge being irrevocable and not being subject to any appeal, where the Court ruled by the abovementioned judgment. Therefore, in this part, the complaint is to be inadmissible since it is repetitive.
Judgment of the Court
Stemming from the above reasoning, the Constitutional Court partially admitted the exception of unconstitutionality raised by the lawyer Igor Chiriac, in the criminal case No.21r-170/16, pending before the Chișinău Court of Appeal.
- declared constitutional Article 125.b of the Code of Criminal Procedure of Moldova No.985-XV of 18 April 2002, insofar as in the current wording it is not interpreted as criminalising the deed of performing entrepreneurship without a license.
- declared inadmissible the exception of unconstitutionality in the part regarding the constitutional review of Article 313.6 of the Code of Criminal Procedure of Moldova No. 122-XV of 14 March 2003.
- suspended the constitutional review of Articles 7.7 and 39.5 of the Code of Criminal Procedure of Moldova No.122-XV of 14 March 2003 and Article 2.d and the phrase „and adopts decisions of explanatory nature" from Article 16.c of the Law no.789-XIII of 26 March 1996 on the Supreme Court of Justice.
The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Journal of Moldova.
This press-release is also available in its original version, in Romanian language.