Judgment No.3 of 23.02.2016

Judgement nr. 3 on exception of unconstitutionality of Article 186 paragraphs (3), (5), (8) and (9) of the Code of Criminal Procedure (term of the preventive detention) (Complaint No. 7g/2016)


The subject of complaint: Botanica District Court

Type of judgment: exception of unconstitutionality

Provision: Is accepted the exception of unconstitutionality and is recognize unconstitutional

Files:
1.  en-JCC320167gengarestfinalc2f31.pdf


Complaints:

1.  ( 17.02.2016)



1.  The case is based on the complaint lodged with the Constitutional Court on 17 February 2016 by Mrs. Viorica Puica, Judge of Botanica District Court, Chisinau Municipality, in accordance with Article 135 para. (1) let.a) and g) of the Constitution, as it was interpreted by the Judgement of Constitutional Court No. 2 of 9 February 2016, as well as the Rules on the examination of complaints lodged with the Constitutional Court, on exception of unconstitutionality of Article 186 paragraphs (3), (8), (9) and (11) (duration of a person’s detention and its extension) of the Code of Criminal Procedure raised in criminal case No. 1-239/15 examined before Botanica District Court, Chisinau Municipality.

2. The author of the complaint invokes, in particular, that joint application of the provisions of Article 186 paragraphs (3), (8), (9) and (11) of the Code of Criminal Procedure allows for the extension of the term of preventive detention for periods that exceed the term expressly stipulated in Article 25 para. (4) of the Constitution.

3. By the Decision of the Constitutional Court of 17 February 2016 the complaint was declared admissible without prejudicing the merits of the case.

4. During the process of examining the complaint, the Constitutional Court requested the Opinions of the Parliament and of the Government.

 

5. In public plenary session of the Court, the complaint was presented by Mrs. Viorica Puica, Judge of Botanica District Court, Chisinau Municipality who is the author of the complaint. The Government was represented by Mr. Eduard Serbenco, deputy minister of Justice. The representative of the Parliament was not present at the sitting.

13. The relevant provisions of the Constitution (O.G., 1994, No. 1) are as follows:

Article 4

Human rights and freedoms

 ‘(1) Constitutional provisions on human rights and freedoms shall be interpreted and are enforced in accordance with the Universal Declaration of Human Rights, with the conventions and other treaties to which the Republic of Moldova is a party.

(2) Wherever disagreements appear between the conventions and treaties on fundamental human rights to which the Republic of Moldova is a party and its domestic laws, priority shall be given to international regulations

Article 25

Individual Freedom and Security of Person

‘(1) Individual freedom and security of person are inviolable.

(2) Searching, detaining in custody or arresting a person shall be permitted only in cases and pursuant to the procedure established by the law.

[…]

(4) The arrest shall be carried out under a warrant issued by a judge for a period of 30 days at the most. An appeal may be lodged against the validity of the warrant, under the law, at the hierarchically superior court of law. The term of the arrest may only be prolonged by the judge or by the court of law, under of the law, to a period not exceeding 12 months.

(5) The person detained in custody or under arrest shall be immediately informed on the reasons of his/her detention or arrest, and shall be notified of the charges brought against him/her as soon as possible; the notification of the charges shall only be made in the presence of a lawyer, either chosen or appointed ex officio.

(6) If the reasons for detention in custody or arrest have ceased to exist, the release of the person concerned must follow without delay.’

 

14. The relevant provisions of the Code of Criminal Procedure of the Republic of Moldova No. 122-XV of 14 March 2003 (republished in the O.G., 2012, No.263-269, art.855) are as follows:

Article 176

Grounds for Preventive Measures

‘(1) Preventive measures may be applied by the prosecutor ex officio or upon the proposal of the criminal investigative body or, as the case may be, by the court only when there are sufficient, reasonable grounds to assume that the suspect/accused/defendant could evade the criminal investigative body or the court, could impede finding the truth in a criminal proceeding or could commit other crimes. Such measures may be also applied by the court to secure the enforcement of a sentence.

(2) Preventive arrest and the preventive measures that are alternatives to arrest shall be applied if there is a reasonable suspicion about the commission of a crime for which the law provides for the deprivation of liberty for more than two years. If there is a reasonable suspicion about the commission of a crime for which the law provides for the deprivation of liberty for fewer than two years, these preventive measures shall be applied if the accused/defendant committed at least one of the actions mentioned in para. (1).

[…]”

Article 186

 Duration of a Person’s Arrest and Its Extension

‘(1) The term of a person’s arrest shall start from the moment of the deprivation of his/her liberty by detention and if not detained from the moment of the enforcement of a court judgment on the application of this preventive measure. The term of arrest of the suspect/accused/defendant shall include the time during which the person:

1) was detained and preventively arrested;

2) was under house arrest;

3) upon the decision of the investigative judge or the court was in a medical institution for the purpose of an in-patient evaluation and treatment if coercive medical measures were applied.

(2) The term of a person’s arrest during a criminal investigation prior to the case going to court shall not exceed 30 days except in cases provided by this Code.

(3) In exceptional cases depending on the complexity of the criminal case, the seriousness of the crime and if there is a risk that the accused will disappear or that he/she will exert pressure on witnesses or destroy or damage sources of evidence, the duration of preventive arrest during the criminal investigation may be extended:

1) up to 6 months if the person is charged with the commission of a crime for which the law sets a maximum punishment of up to 15 years of imprisonment;

2) for up to 12 months if the person is charged with the commission of a crime for which the law sets a maximum punishment of up to 25 years of imprisonment or life imprisonment.

(4) The duration of preventive arrest of juveniles accused of a crime may be extended for up to four months.

(5) Any extension of the duration of preventive arrest may not exceed 30 days during a criminal investigation and 90 days during a case hearing.

(6) If it is necessary to extend the duration of preventive arrest of the accused/defendant, the prosecutor shall, not later than within five days prior to the expiry of the term of arrest, file with the investigative judge or the court hearing the case a motion to extend the term. On the date the sentence is issued, should the term of preventive arrest remaining be fewer than 15 days, upon a motion by the prosecutor, the court shall decide whether to extend the term of preventive arrest prior to issuing the sentence.

(7) By examining a motion to extend a term of preventive arrest, the investigative judge or the court shall be entitled to replace preventive arrest with house arrest, provisional release under judicial control or provisional release on bail.

(8) Upon receipt of a case by the court, the term of the case hearing from the date of the receipt of the case until the date of the sentence the time during which the defendant is kept under arrest may not exceed 6 months if the person is charged with the commission of a crime for which the law sets a maximum punishment of up to 15 years of imprisonment and 12 months if the person is charged with the commission of a crime for which the law sets a maximum punishment of up to 25 years of imprisonment or life imprisonment.

(9) Upon the expiry of the terms set in paras. (5) and (8), the term of a case hearing with a defendant under arrest may be extended only in exceptional cases upon a motion by the prosecutor and by a reasoned ruling of the court hearing the case in each instance by three months until the sentence is pronounced.

(10) The court judgment on extending the term of a case hearing with a defendant under arrest may be subject to cassation in a higher court. Cassation against the judgment shall not suspend the hearing of the case.

(11) The provisions set in paras. (5), (6), (8), (9) and (10) shall be duly applied to a case hearing in appeal.

(12) An extension of the duration of preventive arrest to six months shall be decided by the investigative judge based on a motion by the prosecutor in whose territorial jurisdiction the criminal investigation is conducted or if necessary, the extension of preventive arrest beyond the indicated term shall be based on a motion of the same prosecutor with the consent of the Prosecutor General or his/her deputies.

(13) The judgment on extending the term of preventive arrest may be subject to cassation in a higher court.

 

15. The relevant provisions of the Universal Declaration of Human Rights (adopted on 10 December 1948, in New York, to which the Republic of Moldova adhered by Decision of Parliament No. 217-XII of 28 July 1990) are as follows:

Article 3

Everyone has the right to life, liberty and security of person.’

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.’

16. Relevant provisions of International Covenant on Civil and Political Rights (adopted on 16 December 1966 in New York and ratified by the Republic of Moldova on 28 July 1990 by Decision of Parliament No. 217-XII) are as follows:

Article 9

‘1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.’

17. Relevant provisions of European Convention for the Protection of Human Rights and Fundamental Freedoms, supplemented by additional Protocols to the Convention (concluded in Roma on 4 November 1950 and ratified by the Republic of Moldova by Decision of Parliament No. 1298-XIII of 24 July 1997) are as follows:

Article 5

Right to liberty and security

‘1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a) the lawful detention of a person after conviction by a competent court;

b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

 

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.’

 

1. To admit the exception of unconstitutionality raised by Mrs. Viorica Puica, judge with Botanica District Court, Chisinau Municipality, in the criminal case No.1-239/15.

2. According to Article 25 paragraph (4) of the Constitution:

a) The preventive arrest may be applied for a total period not exceeding 12 months at the phases of criminal investigation and trial until the delivery of judgement by which the court either releases the person from detention or convicts the person to imprisonment. The term of preventive arrest shall include the time when the person:

- was arrested and was held under preventive arrest;

- was under home arrest;

- was in a medical institution, based on court judgement for in-patient forensics as well as had prescribed treatment, as a result of medical constraints.

b) The term of preventive arrest starts from the moment of apprehension, and in the case when the person was not apprehended, from the moment of effective application of the preventive detention.

c) The 12-month period refers to the same criminal fact(s) for which the person was placed in preventive custody, irrespective of eventual requalification of offence. Any detention that exceeds the overall 12-month period applied for committing the same offence, irrespective of eventual requalification of offence, shall be in contradiction with the Constitution and, therefore, illegal.

d) The arrest warrant shall be issued for up to 30 days. Every extension of the preventive duration may not exceed 30 days at criminal investigation and trial phases.

 

3. The following provisions shall be declared unconstitutional:

- paragraph (3);

- syntagm ‘90 days’ in paragraph (5);

- paragraphs (8) and (9)

 of Article 186 of the Code of Criminal Procedure of the Republic of Moldova No. 122-XV of 14 March 2003, as being in contradiction with Article 25 paragraph (4) of the Constitution.

 

4. To enforce this Judgement:

a) Within 30 days from the delivery of the judgement, the court shall revoke the measure of preventive detention for the persons held in custody in preventive detention for more than 12 months;

b) Within 30 days from the delivery of the judgement, the court shall verify the existence of grounds to hold in custody the persons based on an arrest warrant that exceeds 30 days, and whether the overall preventive detention time exceeds 12 months.

c) The effects of this judgement shall not be extended in respect of the persons held in custody and convicted by a sentence, the case being examined in the Court of Appeal.

d) The persons who were held in custody for more than 12 months, on the date of delivery of this judgement:

- in case of imprisonment sentence, the term of detention shall be deduced from the term of sentence, in accordance with the law;

- in case of acquittal or non-deprivation of liberty, the persons may request compensation, in accordance with provisions of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Law No.1545-XIII of 25 February 1998 on compensation for damages caused by illicit actions of law-enforcement, prosecution entities and courts.

5. This judgement is final and cannot be appealed; it shall enter into force on the date of delivery and shall be published in the Official Gazette of the Republic of Moldova.

 

 

3.1. General Principles

49. The Court reiterates that in a democratic society, the main duty of the State is to protect the person. By instituting procedural and criminal norms, the State has the purpose to protect the person and the society from offences, but at the same time, to protect the person and the society from the abuses of law-enforcement officers, so the person who committed a crime is punished according to his/her guilt and no innocent person may be criminally punished and convicted [Judgement No.12 of 14 May 2015 on the exception of unconstitutionality of Article 287 para. (1) of the Code of Criminal Procedure (renewed criminal proceedings), §41].

 

3.1.1. Principle of inviolability of the person  

 

50. Article 25 of the Constitution guarantees the principle of inviolability of individual freedom and personal safety, according to which nobody may be detained and arrested unless in cases and procedures stipulated by law.

51. The same principle is enshrined in international human rights treaties to which the Republic of Moldova is a party.

52. According to Article 3 of the Universal Declaration of Human Rights, ‘Everyone has the right to life, liberty and security of person’, and Article 9 stipulates that ‘No one shall be subjected to arbitrary arrest, detention or exile.

53. The principles of Universal Declaration are regulated more thoroughly in the International Covenant on Civil and Political Rights, which declare the liberty of person as a rule and insist that any deprivation of liberty should be specifically justified (Art. 9 § 1). Article 9 § 3 of the International Covenant on Civil and Political Rights underlines that ‘it shall not be the general rule that persons awaiting trial shall be detained in custody’.

54. Art. 5 § 1 let. c) of the European Convention refers as well to the liberty during criminal proceedings. The European Court, in its wide case-law regarding the merits of Art. 5 of the Convention, stressed out some guidelines regarding the conditions and limits for preventive detention, putting first the presumption of liberty as a reference point in examining a specific situation.  

55. Based on the roadmap approved by the Council on 30 November 2009, the European Union adopted a number of directives that complement the legal framework provided by the European Convention of Human Rights and the Charter of Fundamental Rights of the European Union, to set forth minimum norms of certain aspects of criminal proceedings: Directive No. 2010/64/EU on the right to interpretation and translation in criminal proceedings, Directive No. 2012/13/EU on the right to information in criminal proceedings, Directive No. 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty and Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings.

56. The purpose pursued through constitutional provisions and international acts mentioned above is to avoid arbitrary and lengthy detentions (Lukanov v. Bulgaria, 20 March 1997, Reports 1997 II, § 41; Assanidze v. Georgia [MC], No. 71503/01, § 171, ECHR 2004 II, § 46; and Ilaşcu and others v. Moldova and Russia [MC], No. 48787/99, § 461, ECHR 2004 VII).  Any deprivation of liberty, irrespective of its length, should be justified. The justification of measure should be convincing and grounded. Lack of justification or superficial justification makes the detention or its extension illegal. 

57. Deprivation of freedom is ether detention (Străisteanu and others v. Moldova, No. 4834/06, §§ 85-88, 7 April 2009, or Witold Litwa v. Poland, No.26629/95, 4 April 2000), or preventive arrest or house arrest (Mancini v. Italy, No. 44955/98, § 17; or Nikolova v. Bulgaria (No. 2), No. 40896/98, §§ 60 and 74, 30 September 2004). 

 

3.1.2. Principle of legality of criminal proceedings

 

58. The requirement of ‘legality’ envisages that the circumstances for accusations brought and conditions for deprivation of liberty are stipulated with utmost clarity in the law so that the law is foreseeable in its application.

59. The law has to be sufficiently exact to allow certain persons – if necessary with adequate counselling – to foresee in a reasonable manner under the circumstances of the case, the consequences that may result out of a certain act (Mooren v. Germany (MC), No. 11.364/03, § 72, ECHR 2009-..., and Medvedyev and others v. France (MC), No. 394/03, § 80, ECHR 2010-...], Steel and others v. United Kingdom, Judgement of 23 September 1998, Reports 1998-VII, § 54, Baranowski v. Poland, No. 28358/95, § 52).

60. According to Art. 25 para. (4) of the Constitution, the person deprived of liberty enjoys the right to appeal against the legality of the measure and to obtain his/her release in court, if the deprivation is illegal.  

61. To exercise this right, the person should have access to criminal case file documents, which contain justifying information related to his/her deprivation of liberty and not only procedural documents, even evidence (ECtHR, Ţurcan v. Moldova, Judgement of 23 October 2007, § 56-64). The complaint has to be resolved in a short term (Şarban v. Moldova, Judgement of 4 October 2005, § 118-123), in a hearing that ensures the equality of both parties, i.e. of the prosecutor and of the person detained (Nikolova v. Bulgaria, Judgement of 25 March 1999, § 58).

62. The principle of legality implies the observance of some procedural guarantees provided by law against the arbitration so the measure is applied more correctly, being specifically reported to each case. 

63. Naturally, when a decision is made to apply the measure of detention, national courts have to apply the standards imposed by the European Convention: legality of detention; existence of reasonable doubt; presence of risk; proportionality, reasonability and necessity to apply the detention, and lastly, the possibility to apply measures alternative to detention.

 

3.1.3. Principle of proportionality and reasonability in applying the preventive arrest

 

64. The persons liberty shall be regarded as a rule. Person’s detention is an exceptional measure. Hence, detention may be ordered only in certain cases and only for certain reasons, which should be reflected in a specific and convincing way in the judgement of the ordering entity.

65. According to Art. 5 § 1 c) of the European Convention, the preventive arrest has the purpose to investigate the committed offence (‘bringing him before the competent legal authority’). The goal may not be limited to the prevention of offences, maintaining the security and public order or collection of evidence without any intention to prosecute the committed offence.

66. The legislation of the Republic of Moldova, similarly to Article 5 § 1 let. c) of the Convention, allows the liberty of a person only if there is ‘reasonable doubt’ that this person committed an offence. The reasonable doubt implies the existence of facts or information that might convince an objective observer that the person might have committed an offence.

67. This assessment will depend on all circumstances of a particular case, while the facts that outline a reasonable doubt should not be at the same level as those necessary to justify a conviction, or the formulation of conviction at the next phase of criminal investigation (Erdagöz vs. Turkey; Fox, Campbell and Hartley; Murray and Brogan vs. United Kingdom).

68. These facts or data have a lower degree of certainty than the necessary one in respect of evidence required with a view to formulate a conviction (Muşuc v. Moldova, Judgement of 6 November 2007, § 31). However, the person cannot be detained only based on the declaration of an alleged victim or when there are reasons to doubt the credibility of witnesses (Stepuleac v. Moldova, Judgement of 6 November 2007, § 68-81).

69. Art. 5 § 3, compared to § 1 let. c) of the European Convention stipulates that the person accused of committing an offence should be always released during proceedings, except for when there are reasons to justify the preventive measure.

70. The rule is to investigate the person unapprehended (Letellie v. France, Judgement of 26 June 1991, § 35). The State should prove that there are ‘relevant and sufficient’ reasons to justify the continuity of deprivation of liberty (Yağcı and Sargın v. Turkey, Judgement of 8 June 1995, § 52). The obligation to justify the detention, irrespective of its duration, is vested with the authorities and should be made in an accessible and convincing way (Belchev v. Bulgaria, Judgement of 8 April 2004, § 82).

71. An arbitrary judgement or lack of facts signifies that the detention is not justified. The arguments that are general and abstract are not sufficient (Becciev v. Moldova, Judgement of 4 October 2005, § 56). The reasons justifying detention cannot be reduced to paraphrasing the texts of the law that describe the category of reasons for detention (Şarban v. Moldova, Judgement of 4 October 2005).

72. The need to administrate a piece of evidence or to finalize criminal prosecution shall not be a reason for detention. A person’s arrest for the purposes of hearing thereof as witness in parallel criminal proceedings is not allowed (Giorgi Nikolaishvili v. Georgia, Judgement of 13 January 2009).

73. The suspect may be deprived of liberty, if there is a risk:

- for his fleeing the trail (Stogmuller v. Austria, Judgement of 10 November 1969, § 15);

- to affect the justice (Wemhoff v. Germany, Judgement of 27.06.1968, § 14);

- to commit an offence (Matznetter v. Austria, Judgement of 10 November 1969, § 9);

- to produce public disorder (Letellier v. France, Judgement of 26 June 1991, § 51).

However, these dangers or risks should rely on evidence-based facts (Ţurcan v. Moldova, Judgement of 23 October 2007, § 48-49).

74. Evidence-based data or information should be sufficient to raise a doubt (assumption) based on objective elements, in accordance with the law. This evidence or information is included in procedural acts that accompany the prosecutor’s motion and should be enclosed to the file, with access to party, even with the risk to disclose some aspects that the prosecutor might want to keep secret (Ţurcan and Ţurcan v. Moldova, Judgement of 23 October 2007).

75. The motion and materials confirming the terms of preventive detention or house arrest are submitted to the defence lawyer together with the motion on preventive detention or house arrest and to the investigating judge (Lamy v. Belgium, Judgement of 30 March 1989).

76. The practice not to present the case materials for the reasons of arrest associated with the omissions of the court to invoke relevant and sufficient reasons, confirms legally the impression of the accused that his/her arrest was arbitrary.  

77. In this context, since liberty is the rule, and deprivation of liberty is the exception, it should be justified why the detention and not another less severe measure was chosen (Witold Litwa v. Poland, Judgement of 4 April 2000, § 78; Enhorn v. Sweden, Judgement of 25 January 2005, § 44). The preventive arrest may be applied only if it is impossible to apply a less severe preventive measure.

 

3.1.4. Reasonable term of detention

 

78. The Court recalls that the principle of reasonable term of detention is an element of applying the right in a fair trial. According to this principle, the criminal prosecution bodies and courts have the obligation to resolve the criminal cases in a reasonable time.   

79. The criminal proceedings, as a whole, should take place quickly. The duration of proceedings at the phase of detention and judiciary procedure on the merits on the charges is treated by the European Convention in Art. 5, respectively, Art. 6 § 1 and § 3 let. a).

80. Arrest is a temporary measure, because it is ordered for a determined period of time. Also, it is a temporary measure, because it lasts as long as the circumstances stand and is revoked as soon as the circumstances are removed.

81. As far as temporary detention is concerned, the rules that enshrine the reasonable term are as follows:

- prompt information of the arrested person (art. 5 § 2 of the Convention): on the reasons of the arrest and charges brought; it should be done promptly;

- prompt bringing before court (art. 5 § 3 of the Convention): immediately and in a reasonable time; by a judge or other officer authorised by law;

- speedy proceedings to decide the lawfulness of arrest or detention (art. 5 § 4 of the Convention): is done is a short time;

- reasonable term of arrest (art. 5 § 3 of the Convention): any arrested person is entitled to be tried in a reasonable time or released pending the proceedings.

82. Hence, a person may be deprived of the right to liberty and safety only in exceptional circumstances, and is consolidated by means of two exigencies:

1) deprivation of liberty may not be extended by exceeding the necessary duration;

2) speedy release of person when the deprivation of liberty proves unjustified.

 

3.1.5. Presumption of innocence

 

83. Any person is innocent until proven guilty by a final judgement. This principle allows the suspect, accused or defendant to be seen as of good faith and to defend from any possible unjust or disproportionate accusation.

84. However, the presumption of innocence does not mean that procedural measures may be taken against the accused during the trial.  This principle, on the one hand, implies that the arrested person may or may not be convicted, but there may occur any outcome, even acquittal. On the other hand, when applying a preventive measure, the judge shall not discuss the matter of guiltiness of the person suspected of committing an offence, but only if there is sufficient evidence or information that this person has committed an offence.

85. Person subject to a preventive measure, in accordance with the presumption of innocence, shall be considered innocent and shall be treated with humanity and fairness, under the conditions that do not cause physical or moral suffering and do not violate human dignity.    

86. At the same time, the European Court established that the presumption of innocence is in favour of release from detention. Hence, up until the conviction the person should be presumed innocent and the essential goal of Article 5§3 of the Convention is to request temporary release once the need for detention has been removed (McKay v. United Kingdom [MC], No. 543/03, § 41).

87. Once the presumption of innocence is overruled by a conviction delivered by a competent court, the person is considered legally detained, in accordance with Article 5 § (1) let. a) of the European Convention.

 

3.2. Applying the aforementioned principles in the present case

 

3.2.1. (Re)Evaluation of conditions to extend the preventive detention 

 

88. Justification for any period of detention, irrespective of duration shall be convincingly proved by the authorities (Belchev v. Bulgaria).

89. The Court reiterates that the extension of preventive arrest should be made with a periodicity that gives the possibility to prove the need of keeping the person in custody. Equally, it is necessary to identify all specific aspects related to the risk of releasing the person placed under preventive detention, examining the alternative measures of deprivation of liberty (Calmanovici v. Romania, Judgement of 1 July 2008). Mere reference to legal grounds or abstract risk of release is not sufficient (Degeratu v. Romania, Judgement of 6 July 2010).

90. Thus, any extension of the detention period takes place in fact, in accordance with a procedure similar to the one respected during the initial arrest. Hence, while extending the arrest, the judge should follow the same rules and reasons that have determined the initial arrest.

91. Moreover, the authorities should be obliged periodically to review the continuous arrest and to verify whether the initial grounds are still actual or whether there are grounds to apply less severe measures (Idalov v. Russia, Kudla v. Poland). If this is not justified, the arrest may evolve in an arbitrary detention and consequently, illegal detention (Oprea v. Moldova). A quasi-automatic extension of the arrest (Tase v. Romania) or based on general and abstract passages (Boicenco v. Moldova) fails to meet the requirements of Article 5 § 3 of the European Convention and, hence, the provisions of Article 25 para. (4) of the Constitution.

92. Thus, the Court mentions that the preventive arrest should be applied only in strictly necessary cases, when there are no alternatives and as an ultimate measure, and not as a measure of punishment.

93. In this sense, the Court reveals that there are four grounds that justify the application or extension of preventive arrest:

1) the risk that the person flees from criminal accountability;

2) the risk to hinder the good delivery of justice;

3) to prevent the person to commit a new offence;

4) the risk that releasing a person might cause public disorder.

94. These grounds may not be jointly present; one ground is sufficient to apply the preventive detention.

95. The existence of substantial grounds that would legitimate the suspicion that a person has committed an offence for which he/she is prosecuted, should be seen as a general condition and independent from the grounds of preventive arrest, which may represent a danger of preventing the act of justice, danger to commit another severe offence, danger to hinder the justice, a serious danger for public order. Hence, a person may be placed in custody only when the suspicions of a committed offence are corroborated with the existence of justified grounds.  A directive in this regard is expressly stipulated in Recommendation No. (2006) 13 on the use of preventive arrest, the conditions in which it takes place and the provision of safeguards against abuse, adopted by the Cabinet of Ministers of the Council of Europe on 27 September 2006, at the 974th reunion of delegations of ministers.

96. The Court mentions that although some offences represent a special danger to the public order, it decreases in time, and this fact forces the authorities to provide a specific and detailed motivation to keep the person under arrest.

 

3.2.2. Maximum validity of the arrest warrant

 

97. The arrest shall be carried out based on a warrant signed by a judge. The warrant represents the legal ground for the arrest.  

98. The Court underlines the fact that the validity of the arrest should be reasonable and the estimation of reasonable limits should be done in concreto, by analysing the circumstances of each particular case.

99. While establishing the term of detention and, especially, when requested to extend the term of detention, the judge should follow the requirement that this duration does not exceed a reasonable limit (Wemhoff v. Germany, Judgement of 27 June 1968). During the appreciation of the reasonable term of detention, the complexity of the case and the right of the accused for speedy settlement of the case with the need to explain it under all aspects should be taken into account.

100. In this context, the Court holds, as a principle, that the gravity of facts alleged does not justify the application of preventive detention.

101.  Also, the European Court mentioned that following the expiry of a certain period of pre-trial detention, it is not sufficient to invoke the initial grounds, but other relevant and sufficient grounds to confirm the investigation of the person under arrest, as well as a special perseverance of authorities in proceedings.     

102.  Therefore, setting terms to apply preventive measure in the form of preventive detention at the criminal prosecution phase and at the trial phase is an important element in the criminal proceedings in the absence of which is impossible to observe the fundamental principles of the criminal trial, respectively, the legality, presumption of innocence, principle of searching for the truth, principle of officiality, guarantee of liberty and safety of the person, right to defence, fair trial, equality of parties in criminal proceedings.

103. The Court holds that according to Article 25 para. (4) of the Constitution, the arrest shall be applied based on a warrant signed by a judge for a period not exceeding 30 days. Therefore, each extension of the term of detention may not exceed 30 days at the criminal investigation phase and at the trial phase.    

104. The Court also notes that the provisions of art. 25 para. (2) of the Constitution vest the legislator with the right to regulate the procedure of arrest or detention of a person by an organic law. However, this attribution should be exercised without exceeding the constitutional framework 

105. In this context, the Court holds that according to Article 186 para. (9) of the Code of Criminal Procedure, the term of detention may be extended, in exceptional cases, by 3 months every time at the trial phase.

106. In this sense, the Court notes that the legislator set forth, in the Code of Criminal Procedure, the extension of preventive arrest without taking into account Article 25 para. (4) of the Constitution, which does not make a distinction between the phases of criminal trial and sets the validity of arrest warrant up to 30 days.

107. Moreover, the Court mentions that the 90-day term stipulated in Article 186 of the Code of Criminal Procedure is not proportional when we have to balance between the administration of justice and restriction of a person’s liberty, thus lacking to be a reasonable term grounding the reason to keep the person in custody.

108. The Court cannot accept the position of the Government, according to which the arrest warrant is issued for up to 30 days only at the criminal prosecution phase, as this would mean that the person’s right to liberty is not guaranteed by the Constitution when the case file is sent to court. Such interpretation of the Supreme Law is inadmissible from the perspective of its role as guarantor and protector of human rights and fundamental freedoms.

109. The Court holds that Article 25 para. (4) of the Constitution stipulates clearly that the detention is possible only based on a warrant of up to 30 days.  Any interpretation that would allow for longer terms for the arrest warrant in the national legislation would be in contradiction with the Constitution. Hence, such approach is supported by the European Court as well.

110. The Court notes that the application and extension of the period of detention by a judge or by the court under the challenged legal provisions exceed the constitutional limit of Article 25 para. (4), which is in contradiction with the constitutional guarantees on individual liberty. Therefore, the provisions of Article 186 para. (9) of the Code of Criminal Procedure, in the part referring to the issuance of the arrest warrant exceeding 30 days, are in contradiction with Article 25 para. (4) of the Constitution.

111. In the same context, the Court notes that the constitutionality of Article 186 paragraph (9) of the Code of Criminal Procedure depends on the constitutionality of the paragraph (5) of the same article. In these conditions, when the exception of unconstitutionality was raised, the author of the complaint did not invoke the unconstitutionality of this paragraph, in accordance with Article 6 para. (2) and (3) of the Code of Constitutional Jurisdiction.  The Court also sets its limits of competence having the right to deliver a judgement on other norms the constitutionality of which depends in full or in part on the constitutionality of the challenged act. In this sense, the Court holds that for the same reasons, the provisions of Article 186 para. (5) of the Code of Criminal Procedure are unconstitutional in the part related to the extension of the arrest warrant for 90 days at trial phase.

 

 3.2.3. Overall duration of preventive detention

 

112. The Court holds that according to Article 25 para. (4) of the Constitution, the arrest may be extended, under the law, up to not more than 12 months.

113.  Also, the Court reveals that the beginning of preventive arrest should correspond with the moment of retaining the person and should end by the delivery of a court judgement either releasing the person from arrest or convicting the person by the first instance court (Solmaz v. Turkey, §§ 23-24, Kalashnikov v. Russia, §100, Wemhoff v. Germany § 9).

114. The Court notes that the provisions of Article 186 para. (9) of the Code of Criminal Procedure allow the overhauling of this 12-months term. Moreover, the norm stipulated in Article 186 para. (9) of the Code of Criminal Procedure permits the extension of this preventive measure under the form of preventive detention for an undetermined period of time.  

115. The Court finds that based on provisions of Article 186 para. (9) of the Code of Criminal Procedure, the legislator set the term of preventive detention without taking into account the unambiguous express provisions of Article 25 para. (4) of the Constitution, which regulate the constitutional guarantees necessary to ensure an adequate framework to protect the citizen against excessive application of such measure. Therefore, the constitutional norm does not allow any derogation set by law from constitutional terms to extend the arrest in exceptional cases, nor having the seriousness of offence as grounds. As a matter of fact, the normative framework in a sensitive field should be applied clearly, predictably and with no confusion, so it is possible to remove, as much as possible, the eventual arbitration or abuse of those who apply legal provisions. 

116. In this sense, the Court stresses out that the provisions applied by the authorities with contradictory interpretation which are mutually exclusive do not meet the requirement ‘quality of law’ imposed by the Constitution and the European Convention (Nasrulloyev v. Russia, No. 656/06, § 77, 11 October 2007; Jeèius  v. Lithuania, No. 34578/97, §§ 53-59, 31 July 2000).

117. According to Article 25 paragraph (4) of the Constitution, the 12-month term combined with other procedural guarantees represents a warranty against abusive deprivation of liberty. Pending the conviction sentence, the deprivation of liberty of a person is justified only based on the ‘reasonable doubt’ that the person is guilty. Therefore, the Constitution sets a specific period for the preventive arrest, which cannot be extended after it elapses.

118. The Court cannot accept the position of the Government, according to which, under certain circumstances, the maximum 12-month term of arrest may be too short in some cases. The Court underlines that the seriousness or complexity of the case should not justify the application of preventive arrest. As a matter of fact, the preventive detention may be applied only when the suspicions in respect of the committed offence are correlated with the four grounds, which may justify its application.

119. The Court holds that the European Convention does not impose the states to fix a maximum term of arrest. However, if such terms are stipulated in the national legislation, these should be observed. At the same time, neither the Constitution nor the European Convention allow for the extensive interpretation of constitutional provisions regarding limitation of rights and fundamental freedoms, these having a strict interpretation. Therefore, any interpretation of admissible restriction of rights and fundamental freedoms should be made in favour of a person.  

120. Therefore, since the constitutional text does not make any distinction between the phases of criminal proceedings, the Court mentions that in accordance with Article 25 paragraph (4) of the Constitution, the preventive arrest may be applied for an overall period not exceeding 12 months, which includes criminal investigation, trial and delivery of judgement by which the court either releases or convicts the person.

121. At the same time, the Court holds that the maximum term of 12 months for the preventive arrest covers the situations when the person is charged with multiple counts. Thus, the Constitution imposes the obligation to deliver justice without delay. In this sense, any detention exceeding the overall term of 12 month applied for the commitment of the same offence, irrespective of eventual requalification of the offence, is in contradiction with the Constitution, and therefore, is illegal.  

122. In conclusion, the Court notes that the provisions of Article 186 para. (9) of the Code of Criminal Procedure, in the part related to extension of preventive measure in the form of preventive detention for a period longer than 12 months are unconstitutional, as these provisions are in contradiction with Article 25 para. (4) of the Constitution. For the same reasons, paragraph (8) of the same article is unconstitutional as well.

123. In the same context, the Court notes that the constitutionality of Article 186 paragraphs (8) and (9) of the Code of Criminal Procedure depends on the constitutionality of paragraph (3) of the same article. In these conditions, although it is not admissible to invoke the unconstitutionality of this paragraph in the process of raising the exception of unconstitutionality, having no incidence in the case before Botanica District Court, Chisinau municipality, upon making use of the right to set its competences and to deliver a judgement on other norms which constitutionality depend in full or in part on the constitutionality of the challenged act, in accordance with Article 6 para.(2) and (3) of the Code of Constitutional Jurisdiction, the Court holds that Article 186 paragraph (3) of the Code of Criminal Procedure shall be considered unconstitutional for the same reasons.  

 

124. Based on the abovementioned, in order to enforce this judgement, the Court mentions that when a sentence of imprisonment is delivered in respect of a person who was in custody for more than 12 months, the term of detention shall be deduced from the sentence, in accordance with the law. Also, in case of acquittal or non-deprivation of liberty, the persons who were in custody for more than 12 months shall ask for compensation, in accordance with the provisions of Article 5 of the European Convention and the Law No.1545-XIII of 25 February 1998 on compensation for damages caused by illicit actions of law-enforcement, prosecution entities and courts.

 


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