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CCM examined the constitutionality of the provisions on arrest extension
21.12.2017
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On 21 December 2017, the Constitutional Court delivered its judgment on the exception of unconstitutionality of Article 232.2 and certain provisions of Article 308.4 of the Criminal Procedure Code of the Republic of Moldova (Application no.168g/2017).

Circumstances of the case

The case originated in the exception of the unconstitutionality of Article 232.2 and the first sentence of paragraph 4 of Article 308 of the Criminal Procedure Code of the Republic of Moldova no.122-XV of 14 March 2003, raised by the lawyer Corneliu Chisiliţa, in the case-file no.1-317/16, pending at the Chișinău Court, based in Ciocana district.

Article 232.2 of the Criminal Procedure Code provides for that: "Except for the time-limit provided for means of appeal, the document prepared by the prosecutor shall be construed as lodged in due time, provided that the date specified in the register of outgoing documents falls within the time-limit required by law for the preparation of the document."

At the same time, the challenged provisions of Article 308.4 state that: "A request to apply preventive or house arrest shall be immediately examined by the investigative judge in a closed hearing with the participation of the prosecutor, the lawyer, the accused, except for cases when the accused evades participation in the trial or criminal prosecution and an official search is ordered for him/her."

The author of the exception of unconstitutionality essentially claimed that the challenged provisions were contrary to Articles 4, 16, 20, 25 and 26 of the Constitution.

The Constitutional Court ruled on the complaint in the following composition:

Mr Igor DOLEA, Chair of the hearing,

Mr Aurel BĂIEȘU,

Mrs Victoria IFTODI,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN, justices


Conclusions of the Court

Hearing the reasoning of the parties and examining the casefiles, the Court held that Article 25 of the Constitution guarantees the principle of inviolability of the individual freedom and the security of person, according to which no one can be detained and arrested except for the cases and manner established by law.

The Court ascertained that, under Article 232.2 of the Criminal Procedure Code, the document prepared by the prosecutor shall be construed as lodged within the time-limit, provided that the date specified in the register of outgoing documents falls within the time-limit required by law for the preparation of the document.

The Court noted that for the purpose of carrying out certain procedural actions, the prosecutor lodges requests with the investigating judge or, as the case may be, with the court of law, within the time-limit set by the provisions of the Criminal Procedure Code.

Thus, the Court noted that, pursuant to Articles 186.9 and 186.10 of the Criminal Procedure Code the extension of the preventive arrest at the trial stage is decided by the court of law, based on the prosecutor's request, and Article 308.3 provides for that the request for arrest extension is to be submitted at least 5 days before the arrest term expires.

In its case-law, the Court noted that by setting the five-day time limit for lodging the request for arrest extension until the expiry of the arrest term, the legislator pursued the aim of providing sufficient time for the request to be dealt with in observance of the right to defense and individual freedom. Moreover, before being lodged with the court, the prosecutor is required to submit the request before the lawyer together with all the materials and evidence attached to it.

The Court pointed out that the purpose of regulating this time-limit is also to give the judge the opportunity to get acquainted with the reasons justifying the application or extension of the arrest, so as to eliminate the arbitrariness from his/her solution.

Therefore, the Court held that the registration of the request for extending the preventive arrest at the court of law with less than 5 days prior to the expiry of the preventive arrest, is likely to affect both the fundamental right to defense and the equality of arms, as well as the right to individual liberty. At the same time, in the absence of a sufficient time-limit to study the proposal submitted by the request, the court of law could deliver a solution that would not be based on a thorough knowledge of the case.

Therefore, in view of the above, the Court underlined that this time-limit has the legal nature of a peremptory time-limit, the breach of which entails the consequences provided by Article 230.2 of the Criminal Procedure Code, namely the loss of the procedural right and the nullity of the document prepared in breach of this time-limit.  Indeed, the European Court itself ruled in the case of Ialamov v. Republic of Moldova (Judgment of 12 December 2017) that the acceptance of the prosecutor's request to extend the preventive arrest lodged with the investigative judge two days before the expiry of the arrest term was contrary to national law. Consequently, the extension of the duration of the arrest was found by the European Court to be illegal, thus being contrary to Article 5 § 1 of the Convention.

In conclusion, the Court held that the provision laid down in Article 232.2 of the Criminal Procedure Code, under which the documents of the prosecutor are construed to have been lodged in due time on the date specified in the register of outgoing documents, cannot be related with the lodging of requests with the court of law, for which the law establishes mandatory time-limits in respect of the prosecutor. In these situations, the time-limit shall be calculated from the date of registration of the document in the court of law.

The Court concluded that the method of calculating the time-limit for exercising the means of appeal by the prosecutor, to which the rule of registration in the register of outgoing documents does not apply, enshrined in Article 232.2 of the Criminal Procedure Code also fully operates with regard to the lodging of other documents by the prosecutor with the court of law, for which the procedural law establishes time-limits and the non-observance of which determines the lapse of exercising the right.

At the same time, the Court underlined that in case a person has been illegally detained, including as a result of non-observance of the time-limit for lodging the request for arrest extension, he/she should be compensated for the deprivation of liberty carried out under arbitrary conditions.

With regard to the request of the author of the exception to review the constitutionality of Article 308.4 of the Criminal Procedure Code in conjunction with the provisions of Articles 311, 312 and 329 of the same Code, the Court noted that the examination of the constitutionality of a legal text takes into account the compatibility of that text with the constitutional provisions allegedly infringed upon, and not the comparison between the provisions of more norms or the reference of the conclusion that would result from this comparison to the provisions or principles of the Constitution. Therefore, the Court noted that this aspect exceeds the competence of the Constitutional Court with regard to the constitutional review of the legally criticized text.


Judgment of the Court

Stemming from the above reasoning, the Constitutional Court partially admitted the exception of unconstitutionality raised by the lawyer Corneliu Chisiliţa, in the case-file no.1-317/16, pending at the Chișinău Court, based in Ciocana district.

Declared constitutional Article 232.2 of the Criminal Procedure Code of the Republic of Moldova no.122-XV of 14 March 2003, in so far as the method of calculating the time-limits for documents prepared by the prosecutor are not applied in relation to the requests for which the law establishes mandatory time-limits for lodging with the court of law.

Declared inadmissible the exception of unconstitutionality in the part relating to the constitutional review of Article 308.4 of the Criminal Procedure Code of the Republic of Moldova no.122-XV of 14 March 2003.

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

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