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19.04
2018

The Issuing of Protection Orders Based on Declarations of the Victim Is Not Covered by the Presumption of Innocence

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Circumstances of the case

This case originated in an exception of unconstitutionality raised by Mr. I. Petrușca before the Court of Appeal of Chișinău. The exception doubted the constitutionality of Article 3183 (2) of the Civil Procedure Code, whereby an independent statement of the victim would suffice for an ordinance for civil protection to be issued by the court of law, in case of an imminent danger of physical violence.

The author of the exception of unconstitutionality alleged that the challenged provisions are in breach of Article 21 of the Constitution, which provides that any person accused to have committed an offence shall be presumed innocent until found guilty on legal grounds, brought forward in a public trial, safeguarding all the necessary guarantees for his defence.               

Assessment of the Court

The Court emphasized that, in order for the presumption of innocence to be relied on, there should be a criminal charge, according to Article 6 § 1 of the European Convention on Human Rights, or a finding that would reveal that those included in the category of "aggressors" are being accused, within the situation regulated by the Civil Procedure Code, of "committing an offence."

Examining the challenged legal provisions, the Court observed that these imply, by themselves, the existence of criminal charge. In this regard, the European Commission of Human Rights in its Decision R. v. The United Kingdom of 6 September 1991 found that Article 6 § 2 of the Convention, which guarantees the right to be presumed innocent, was not applicable to this case. Particularly, the article does not cover the prohibition applied to him to live with the alleged victims - his family. The case raised before the Commission involved a defendant who was arrested and questioned, being charged with an alleged rape of his daughter, and who was prohibited to live with his wife and children, by the Social Services.

The Court also noticed that the provisions of Article 3183 (2) of the Civil Procedure Code institute a presumption of veracity of the statements of the alleged victim, when providing that his/her statement would suffice for a protection order to be issued, in case of an imminent danger of physical violence to be committed.

Article 6 § 2 of the European Convention requires for Member States to reasonably confine presumptions of fact and those of law, within reasonable limits which take into account the importance of what is at stake and maintain the rights of defence. When these requirements are observed, Article 6 § 2 of the Convention is not applicable.

The Court found that the alleged victim is bound to enumerate in his/her request on applying protection measures the circumstances of the act of violence, the intensity, length, consequences and other circumstances that justify the application of the protection measures. Such conditions represent a demarcation of the presumption mentioned supra, as the courts of law take one or another decision depending on the coherence of the statements of the alleged victim. Furthermore, the Court emphasized that the alleged victim may be held criminally liable, for instance, for a fake denouncement or complaint, in case he/she submits to the authorities statements that are not true. Such a circumstance, also, constitutes one of the important safeguards for the alleged "aggressor."

Given the above-mentioned, the Court considered that the challenged legal provisions are not in breach of Article 21 of the Constitution.

Conclusions of the Court

The Court declared inadmissible the complaint on the exception of unconstitutionality of Article 3183 (2), first phrase of the Civil Procedure Code, raised by Mr. I. Petrușca in case no. 2r-510/18 pending before the Court of Appeal of Chișinău. 

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

 
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