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03.07
2018

Failure to Provide For a Maximum Length of the Ban on Leaving the Country - Unconstitutional

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On Tuesday, 3 July 2018, the Constitutional Court of Moldova delivered a judgment on the exception of unconstitutionality of Article 178, para. 3 of the Criminal Procedure Code.

Circumstances of the case
The exception of unconstitutionality underlying this case was invoked by the attorney Iurie Bargan within the case no. 10-165/18, pending before the Court of Law of Chișinău, Rîșcani office. In his view, the lack of a maximum length for the preventive measure relative to the ban on leaving the country applied by a court of law, within a criminal procedure, amounts to a limitation of the freedom of movement of the individual. 

Assessment of the Court
The Court examined this exception in light of the freedom of movement.

It noted that under Article 178, para. 3 of the Criminal Procedure Code, the length of preventive measures provided by paras. 1 and 2 [the obligation not to leave the locality and the obligation not to leave the country] may not exceed 30 days and, as the case may be, it shall only have reasoned extensions. The extension is ordered by the prosecutor and each extension may not exceed 30 days.

The Court further noted that the raised issue in this case is weather the measure of limiting the freedom of movement is provided by the law, pursues a legitimate aim, strikes a fair balance between general interest and individual interests, and whether it is necessary in a democratic society.

Conceived as establishing a criminal procedural legal institution conciliating two social values, the obligation to not leave the country puts in balance individual liberty, by avoiding detention, with society’s interests, imposing a control upon the released individual by setting certain obligations and restrictions.

Also, the Court noted that Article 178 of the Criminal Procedure Code provides that the measure in question consists of the commitment imposed to the suspect, to the accused or to the defendant by the prosecutor or by the court of law not to leave the country with no approval of the body imposing this measure. It also provides for the obligation imposed in written to the suspect, to the accused or to the defendant by the prosecutor or, as the case may be, by the court of law to be available for the criminal prosecution body or for the court of law, to avoid hiding himself from the prosecutor or court of law, to come before the criminal prosecution body or the court of law when summoned and to inform them on changes of the place of residence.

The Court found that the preventive measure residing in the obligation not to leave the country is provided by law (Article 178 of the Criminal Procedure Code), with no maximum length set forward in this respect.

By comparison, the Court mentioned that under Article 191 of the Criminal Procedure Code, the measure of provisional release under judicial control may be ordered for a 12 months term at most, cumulatively, in the case of the accused or defendant charged with an offence punishable by detention for up to 12 years. It also provides for an up to 24 months term, cumulatively, applied to the accused or to the defendant charged with an offence punishable by detention for a period exceeding a 12 years term.

Also, the Court noted that Article 195, para. 5, item 1 of the Criminal Procedure Code provides for the preventive measures to be terminated upon the expiration of the terms provided by law or set forward by the criminal prosecution body or by court of law, had they not been extended in accordance with the law. Following an interpretation in the spirit of fairness of the above mentioned provision, in the context of the provisions of Article 195 of the Criminal Procedure Code as a whole, there shall be deducted a need for a time-frame within the criminal procedure law relative to preventive measures, irrespective of whether it is a custodial or non-custodial one, which the lawmaker failed to provide in the case of the preventive measure residing in the obligation not to leave the country.

The Court mentioned that although Article 178 of the Criminal Procedure Code provides in an express manner for a term relative to the obligation not to leave the country, however, there is no maximum time-frame provided.

In this respect, the Court found that the lack of such a provision establishing a maximum length for the preventive measure instituting the obligation not to leave the country amounts to a legislative omission, which is contrary to the Constitution.

In this context, the Court held that given this legislative omission, considering its role as a guardian of Constitution’s supremacy, it can not set aside this flaw of unconstitutionality, as it is exactly this omission that gives rise, eo ipso, to the violation of the constitutional right of the individual to know his rights and duties.

Therefore, the Court took notice of the challenge of constitutionality of Article 178 of the Criminal Procedure Code, in the part referring to the omission to provide for a reasonable maximum length relative to the preventive measure of the obligation not to leave the country.

Accordingly, stemming from an interpretation in the spirit of fairness of the criminal procedural provisions establishing terms relative to other preventive measures, there arises the need for the maximum time limit in case of the preventive measure of the obligation not to leave the country to be regulated by Article 178 of the Criminal Procedure Code.

The Court found that this procedural remedy shall strike a fair balance between general interest and the individual one. Accordingly, preventive measures have an exceptional nature, inherent to the restriction of the exercise of fundamental rights and freedoms, which necessarily implies their provisional nature, limited in time.

Conclusions of the Court
Stemming from the above mentioned, the Court admitted for examination the exception of unconstitutionality lodged by the attorney Iurie Bargan within the case no. 10-167/18, pending before the Court of Law of Chișinău, Rîșcani office.

It declared unconstitutional Article 178 of the Criminal Procedure Code of the Republic of Moldova no. 122 of 14 March 2003, in the part relative to the omission to provide for a maximum length which shall be observed when ordering the obligation not to leave the country.

The Court decided that up until a redress of the regulation flaws found by this judgment and the removal of the finding of unconstitutionality, there shall be applied the general terms provided by Article 191 of the Criminal Procedure Code.

This judgment is final, it cannot be appealed, shall enter into force on the date of its adoption, and shall be published in the Official Journal of Moldova.

The full reasoning is available in the Judgment of the Constitutional Court of Moldova.

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

 
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