On 19 March 2019, the Constitutional Court of Moldova delivered a judgment on the plea of unconstitutionality of Article 265 para. (2) of the Criminal Procedure Code. The challenged provision sets forth that the refusal of the criminal prosecution authorities to receive a complaint or a denunciation may be disputed immediately before the investigating judge, but no later than five days from the moment of refusal. 

The applicant alleged that the challenged provisions are not foreseeable, thus imposing an unjustified restriction on the right of access to a court.

The Court’s assessment

The Court observed that the procedure on disputing the refusal of the criminal prosecution authorities to receive a complaint or a denunciation is being regulated in a diverging manner by two provisions of the same legal act. Thus, one could not determine unequivocally which provision he should rely on – Article 265 para. (2) or Article 313 para. (2) subpara. 1) let. a) of the Criminal Procedure Code – when disputing the refusal in question. Such a lawmaking incoherence leads to legal uncertainty for the recipients of the law. It is a situation where both litigants and subjects entitled to apply the Criminal Procedure Code find themselves in difficulty, having to choose between two possible options. 

Therefore, the Court emphasised that the right of access to a court does not include only the right to file an action in court, but also the right to a court decision that would consider all the factual and legal aspects. However, the application of Article 265 para. (2) of the Code of Criminal Procedure may lead to an unjustified restriction of the right of access to a court and to discriminatory treatment. In particular, persons who receive in due time, through postal services, the refusal of the criminal prosecution body to receive the complaint or the denunciation of an alleged criminal offense or its preparation are able to challenge it, given that they can actually enjoy this right within five days following the issuance of the notice. Unlike this category of persons, those who receive the refusal in question through delayed postal delivery (possibly even because of the criminal prosecution authority which sent the refusal after the expiration of the five days from the date it was issued, this being the time-limit meant for challenging it), which makes it impossible for someone to effectively benefit from the right to challenge it in due time, are treated differently for reasons beyond their control. Such a differentiated treatment is not objectively and reasonably justified. 

Moreover, the Court noted that the right to lodge an appeal cannot actually be exercised until the person has been notified of the challenged act. Otherwise, this right may become a theoretical and illusory one. Since the State safeguards such a right, it must provide for the premises for it to be achieved.

The Court’s conclusion

Considering the foregoing, the Court accepted the plea of unconstitutionality referred to the Court upon the request of attorney Dumitru Harea in case no. 10-614/2018 pending before the Court of Law of Chișinău, Buiucani office.

It declared unconstitutional paragraph (2) of Article 265 of the Criminal Procedure Code.

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

This a courtesy translation of the original text available in Romanian language.

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