Making Preventive Arrest Contingent Upon an Individual Pleading Guilty is in Breach of the Constitution

On Tuesday, 30 October 2018, the Constitutional Court of Moldova delivered a judgment on the constitutionality of certain provisions of Article 185 para. (1) of the Criminal Procedure Code.

The circumstances of the case
The case originated in applications nos. 130g/2018 and 133g/2018 on the plea of the unconstitutionality of the text “and in the case of offenses committed with no physical or psychological compulsion applied, which did not harm the life and health of the individual or were not committed by an organised crime group or criminal organisation, the accused, the defendant did not plead guilty” of Article 185 para. (1) of the Criminal Procedure Code, referred to the Court by Judge Victor Sandu, in cases nos. 1-642/18 and 1-1039/14, pending before the Court of Law of Chișinău, central office; application no. 134a/2018 on the constitutionality review of the text “the accused, the defendant did not plead guilty” of Article 185 para. (1) of the Criminal Procedure Code lodged with the Constitutional Court on 26 September 2018 pursuant to Article 135 para. (1) let. a) of the Constitution by the MPs Mihai Ghimpu, Ion Apostol, Roman Boțan, Ion Casian, Petru Cosoi, Ștefan Vlas and Alina Zotea-Durnea, as well as in application no. 143g/2018 on the plea of the unconstitutionality of the text “the accused, the defendant did not plead guilty” of Article 185 para. (1) of the Criminal Procedure Code, referred to the Court upon the request of attorney Serghei Mocanu, in the case no. 14r-748/18, pending before the Court of Appeal of Chișinău.

According to the applicants, the contested provisions are in breach of the principle of the presumption of innocence, the right to remain silent, and the right to liberty and security.

The Court's assessment
The Court examined this case in light of Articles 21 (safeguarding the presumption of innocence) and 25 (safeguarding individual freedom and security of the person) of the Constitution.

The Court noted that any person is presumed innocent until proved guilty by a final court decision. However, that principle does not preclude during criminal proceedings for preventive measures to be applied against a person accused of having committed a crime. What this principle requires is the idea that, on the one hand, the arrest of an individual does not imply that following the trial, he will be convicted, but that any solution is possible, including that of his acquittal. On the other hand, when applying a preventive measure, the judge should not question the issue of a person’s guilt when he is suspected to having committed a crime, but only if there is sufficient evidence or information to suspect that the individual has committed that act, as well as to determine whether there are relevant and sufficient grounds justifying the application of a preventive measure (i.e. the risk that the accused will fail to appear for trial, the risk of obstruction of the proceedings, the risk to commit other crimes, the risk to cause public disorder).

Based on the principle of presumption of innocence, the burden of proof lies with the accusation, and the doubtful situations are to be interpreted in favour of the accused. Also, the presumption of innocence implies for the accused the right to propose evidence in his favour andthe privilege against self-incrimination.

At the same time, any deprivation of liberty must be legal. The requirement of legality is not met simply by observing the relevant domestic law; the domestic law itself must comply with the Constitution and with the European Convention, including the general principles provided or presumed by them.

In this respect, Article 5 para. (1) of the European Convention provides for a comprehensive list of the grounds for the deprivation of liberty referred to in letters (a) to (f). Therefore no deprivation of liberty may be deemed lawful unless it falls within one of these grounds.

The Court found that the preventive arrest on the ground that the person did not plead guilty does not fall within any of the grounds for deprivation of liberty under letters (a) to (f) of Article 5 para. (1) of the European Convention.

Further, the Court considered a number of cases of the European Court of Human Rights. Thus, in Ţurcan and Ţurcan v. Moldova of 23 October 2007, § 51, the European Court noted that the refusal to disclose the name of the witnesses who could prove the innocence of the person in the process not only cannot constitute a ground for detaining a person, but is in breach of the accused's right to remain silent.

Also, in Cebotari v. Moldova of 13 November 2007, § 48, the European Court underlined that, when lacking reasonable suspicion, arrest or detention of an individual must never be imposed for the purpose of making him confess or testify against others or to elicit facts or information which may serve to ground a reasonable suspicion against him.

Finally, in Tiron v. Romania of 7 April 2009, § 43, the national courts refused to order the applicant's release because he did not admit certain facts imputed to him. Again, the European Court noted that this circumstance cannot serve as a ground for detaining a person, but is in breach of the accused’s right to remain silent and not to incriminate oneself as guaranteed by Article 6 the European Convention. The Constitutional Court found no reason to depart from this finding.

Therefore, the preventive arrest in case of an individual not pleading guilty infringes in a disproportionate way upon the right to remain silent and the privilege against self-incrimination. At the same time, the contested provisions constrain the individual to plead guilty in order to avoid such a preventive measure as the arrest to be applied against him, which violates the right to freedom and security.

Hence, the Court considered that the text “and in the case of offenses which were committed with no physical or psychological compulsion being applied and which did not lead to harm to the life and health of the person being caused or were not committed by an organised crime group or criminal organisation, the accused, the defendant did not plead guilty” of Article 185 para. (1) of the Criminal Procedure Code is in breach of Articles 21 and 25 of the Constitution.

Conclusions of the Court
Stemming from the above-mentioned, the Court admitted the plea of unconstitutionality refered to the Court by Judge Victor Sandu in case no 1-1039/14, pending before the Court of Law of Chișinău, Center office, and the application lodged with the Court by the MPs Mihai Ghimpu, Ion Apostol, Roman Boțan, Ion Casian, Petru Cosoi, Ștefan Vlas and Alina Zotea-Durnea.

It declared unconstitutional the text “and in the case of offenses which were committed with no physical or psychological compulsion being applied and which did not lead to harm to the life and health of the person being caused or were not committed by an organised crime group or criminal organisation, the accused, the defendant did not plead guilty” of Article 185 para. (1) of the Criminal Procedure Code.

The Court found that this judgment shall produce legal effects starting with 17 August 2018.

It held that individuals who are under preventive arrest on the basis of the text declared unconstitutional by the present judgment must be released the soonest starting with the date this judgment was delivered.

Finally, the Court declared inadmissible the pleas of unconstitutionality referred to the Court by Judge Victor Sandu in case no. 1-642/18, pending before the Court of Law of Chișinău, Center office and, respectively and by the attorney Serghei Mocanu, in case no. 14r-748/18, pending before the Court of Appeal of Chișinău, as the contested provisions were not applied and there was no presumption that they would be applied in the criminal cases where the pleas of unconstitutionality were reffered to the Court.

This judgment is final, it cannot be appealed, shall enter into force on the date of its 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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