The Inner Conviction of a Judge Shall Be Based Upon Legal Provisions

On 22 May 2017, the Constitutional Court of Moldova ruled on an exception of unconstitutionality of certain provisions of the Code of Criminal Procedure.

Circumstances of the case

The case originated in an exception of unconstitutionality of the phrases: “and according to his inner conviction” of Article 26.2, “the judge and the person in charge of criminal prosecution assess the evidence according to their own conviction” of Article 27.1 “the representative of the criminal prosecution body or the judge assess the evidence according to inner conviction” of Article 101.2 of the Code of Criminal Procedure, raised by the lawyer Andrian Paladii within the criminal case no. 10-516/15 of the Court of Law of Chișinău, headquartered in the Central District.

The author of the exception of unconstitutionality alleged, mainly, that these legal provisions that allow the judge and the person carrying out criminal prosecution to assess the evidence and to examine the case according to their inner conviction are in breach of Articles 114,115.4 and 124.1 of the Constitution.

The complaint was examined by the Constitutional Court 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

Hearing the reasoning of the parties to the process and examining the casefiles, the Court noted that in line with Article 114 of the Constitution, justice is done in the name of the law only by the courts of law, and in line with Article 116 of the Constitution the judges of the courts of law are independent, impartial and irremovable under the law.

The Court noted that the independence of judges shall be considered as a guarantee of freedom, of the respect for human rights and of an impartial application of the law. Therefore, the independence and impartiality of the judges are tightly related and are mutually reinforcing.

The Court observed that under the challenged criminal procedural provisions, the judges shall assess the evidence according to his inner conviction.

Therefore, the Court underlined that the challenged legal texts shall be understood and applied along with the constitutional principles on the administration of justice in the name of the law. Concurrently, the latter shall correlate with the regulation on the assessment of evidence as a whole, which provides sufficient guarantees for this operation to be performed based on the law only, under objective criteria, outside the arbitrariness and with respect for the right of the accused to a fair trial.

In this regard, the Court held that the challenged provisions shall be interpreted in that the inner conviction of the judge is formed following a research on all the adduced evidence.

The Court underscored that the notion of ”inner conviction” does not bear the meaning of a subjective opinion, but that of a certitude acquired by the judge following the examination of all the evidence as a whole, multifoldedly, objectively, and being guided by the law.

The Court mentioned that the results of the evidence assessment are laid down by the court of law in procedural acts, that shall be reasoned. In line with Article 389 of the Code of Criminal Procedure, the sentence of conviction is only delivered under the condition that following the judicial research, the guilt of the accused in perpetrating the offence is confirmed by a set of evidence investigated by the court of law.

Also, the Court held that under Article 119 of the Constitution, the interested parties may make an appeal, under the law, against judicial judgments. In this regard, the provisions of Article 409.2 of the Code of Criminal Procedure provide that the court of appeal is under the duty – apart from the arguments brought forward and requests made by the appellant. Additionally, the Court observed that Article 414.4 of the Code of Criminal Procedure provides for the right of the court of appeal to undertake a new assessment of the evidence, in the event the first instance made an error when finding the guilt of a person. Subsequently, erroneous decisions may be redressed by the means of appeal, under the law.

At the same time, the Court recalled the standard of proof “beyond a reasonable doubt” enshrined in the caselaw of the European Court of Human Rights, which presumes that in order for a sentence of conviction to be delivered, the accusation has to be proved beyond a reasonable doubt. The existence of an evidence beyond a reasonable doubt is an essential component of the right to a fair trial and imposes on the plaintiff the duty to adduce evidence pertaining to all elements of the guilt, in a manner that would remove any doubts.

The Court mentioned that this standard of proof may be fully understood only when related to the principle in dubio pro reo, which in turn constitutes a safeguard of the presumption of innocence. Therefore, under Article 8 of the Code of Criminal Procedure, conclusions on the guilt of a person in committing an offence may not be based on presumptions, and all the doubts in proving the accusation which cannot be removed, are to be interpreted in favour of the suspect, indictee or the accused.

Concluding, the Court held that the challenged provisions of the Code of Criminal Procedure are without prejudice to Articles 114,115 and 116 of the Constitution.

Judgment of the Court

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

1.    Rejected the exception of unconstitutionality raised by the lawyer Andrian Paladii in the case no. 10-516/15 pending before the Court of Law of Chișinău headquartered in Central District.

2.    Declared constitutional:

-      the phrase: “and according to his inner conviction” of Article 26.2;

-      the phrase “the judge and the person in charge of criminal prosecution assess the evidence according to their own conviction” of Article 27.1;

-      the phrase “the representative of the criminal prosecution body or the judge assess the evidence according to inner conviction” of Article 101.2 of the Code of Criminal Procedure of Moldova no. 122-XV of 14 March 2003.

This judgment of the Constitutional Court of Moldova is final, cannot be subject to any appeal, shall be effective from the date of passing and shall be published in the Official Journal of Moldova.

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