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28.05
2020

Provisional release under judicial control

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On 28 May 2020, the Constitutional Court delivered a Judgement on the exception of unconstitutionality of Article 191 para. (2) of the Criminal Procedure Code (Judgement no. 15 of 28.05.2020).

The Court mentioned that preventive measures are institutions of procedural law of a coercive nature aiming to ensure the proper conduct of criminal proceedings. They concern the freedom of the accused and have the effect of either deprivation of liberty or restriction of the freedom of movement.

The Court noted that, according to Article 175 para. (5) of the Criminal Procedure Code, provisional release under judicial control and provisional release on bail are preventive measures alternative to arrest and can be applied only to the person in respect of whom an arrest warrant has been filed or to the accused who is already arrested.

After analyzing Article 176 para. (1) of the Criminal Procedure Code, the Court noted that preventive measures may be applied by the prosecutor, ex officio or at the proposal of the prosecuting authority, or, as the case may be, by the Court, only when there are sufficient reasonable grounds to assume that the accused may hide from the prosecuting authority or the court, put pressure on witnesses, destroy or damage evidence or otherwise prevent the establishment of the truth in criminal proceedings, or commit other crimes or that his release will cause public disorder.

At the same time, the Court held that, under Article 191 para. (2) of the Criminal Procedure Code, provisional release under judicial control does not apply to the accused if there are data that he will commit another crime, try to influence witnesses or destroy evidence, hide from the prosecuting authority, from the prosecutor or, as the case may be, from the court.

Thus, the Court considered that the grounds for applying provisional release under judicial control are divergently regulated by two provisions of the same normative act, and this normative inconsistency creates legal uncertainty and it is likely to affect the right to individual liberty and security of the person.

The Court emphasized that, in the absence of clarity in the criteria and conditions for the application of the preventive measure of provisional release under judicial control, the law does not provide sufficient protection against arbitrary interference and does not allow the person to establish his/her conduct and foresee with sufficient certainty the application of this preventive measure.

The Court noted that the provisions of Article 191 para. (2) of the Criminal Procedure Code do not pass the test of the quality of the law. They are in breach of Article 25 in conjunction with Article 23 para. (2) of the Constitution and are, therefore, unconstitutional.

The Court also noted that, although the author in the application did not invoke the provisions of Article 192 para. (2) of the Criminal Procedure Code, they are directly connected to the impugned provisions.

The Court being the master of in matters of constitutional review and taking into account the need for the uniform application of the framework regarding preventive measures in the entirety of the national legislation, pursuant to Article 6 para. (3) of the Constitutional Jurisdiction Code, the Court found that the provisions of Article 192 para. (2) of the Criminal Procedure Code, which establish a legislative solution similar to the criticized provisions, are unconstitutional.

The Court found Articles 191 para. (2) and 192 para. (2) of the Criminal Procedure Code unconstitutional.

 
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