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Finding of unconstitutionality on the safety measure of “Chemical castration” (Complaint No. 11a/2013)
(Complaint No. 11a/2013)
On 4 July 2013 the Constitutional Court of Moldova delivered the judgment on the constitutional review of the letter b1) of the paragraph (2) of the Article 98 and the Article 1041 of the Criminal Code and the Article 174, para. (31) and Article 2911 of the Enforcement Code, in the version of the Law No. 34 of 24 May 2012 for completion of some legislative acts (Complaint No. 11a/2013).
Circumstances of the case
The case originated in the complaint lodged with the Constitutional Court on 23 April 2013 by the Ombudsman, Mr Anatolie Munteanu, on the constitutional review of the Articles 98, para. (2), let. b1) and 1041 of the Criminal Code and of the phrase “in the last 3 months of serving the term of imprisonment” of the Article 2911 of the Enforcement Code, in the version of the Law No. 34 of 24 May 2012 for completion of some legislative acts.
The challenged provisions refer to the establishment of the safety measure of “Chemical castration” of the offenders who attempt on sexual inviolability of other people, including minors, for the purpose of removing a danger and of preventing those facts provided by the criminal law, as well as the method of application of this safety measure.
The author of the complaint alleged that challenged provisions are in contradiction with the Articles 24, para. (1) and (2), 28, 54, para. (2) and (3) of the Constitution, 3 and 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 7, 10, para. (1) and (3) and 17 of the International Covenant on Civil and Political Rights, 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the Articles 1, 2 and 5 of the European Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine.
The Constitutional Court ruled on the complaint in the following composition:
Mr Alexandru TĂNASE, President,
Mr Aurel BĂIEȘU,
Mr Igor DOLEA,
Mr Petru RĂILEAN, judges
Conclusions of the Court
The Constitutional Court mentioned that rape and violent actions of sexual nature are serious, direct and brutal violations of the sexual life of a person. These offences are described by a high social endangerment, which undermines, first of all, the sexual inviolability and the sexual freedom of the person, producing major highly damaging consequences in the social domain, since the respect for the unalienable attribute of the human personality in the area of sexual life represents a ground of existence of the society.
The Court noted that, starting from the endangerment represented by this type of offences as it is the act of rape, the state has the positive obligation to elaborate an efficient legislation that would discourage the perpetration of such kind of offences. One of the methods of discouragement of the offences of rape or violent actions of sexual nature is administering punishment and undertaking severe measures. Therefore, the Court noted that under the criminal legislation the law court can even deliver the life sentence for such offences.
The Court noticed that the facts related to violent actions of sexual nature have a specific nature when they are aimed against children. The right to human dignity and psychological integrity implies a special attention in case when a child is the victim of violence.
At the same time, hearing the reasoning of the parties, the Court noted that the safety measure of chemical castration of the offenders, who attempt on the sexual inviolability of others, including minors, represents itself interference in the health domain. This interference can be carried out only with the free and informed consent of the person involved, in clear circumstances and following the finding on the necessity of such a measure by the experts in the field.
The Court concluded that establishing the mandatory nature of applying a safety measure of chemical castration contravenes the fundamental right to physical and psychological integrity of the person, which is granted by the Article 24 of the Constitution and Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The application of this measure against the will of the person, with no a preliminary medical conclusion and with no medical surveillance in the aftermath of it being applied represents in itself an inhuman treatment.
The Court noted that the challenged legal provisions are in contradiction with the conclusions of the European Commission for Prevention Torture and Inhuman or Degrading Treatment or Punishment (CPT), which establishes that the automatic application of the chemical castration in cases of some categories of offences is inacceptable and the decision regarding the application of the treatment has to be made on the ground of an individual examination. Under the conclusions of the CPT, the chemical castration can be applied only with the consent of the convict and the person must be informed about the side effects of the treatment.
Judgment of the Court
Starting from the reasoning invoked above, the Constitutional Court declared unconstitutional the letter b1) of the paragraph (2) of the Article 98 and the Article 1041 of the Criminal Code and the Articles 174, para. (31) and 2911 of the Enforcement Code, in the version of the Law No. 34 of 24 May 2012 for the amendment of some legislative acts.
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 the Republic of Moldova.