The Impossibility of the Accused Legal Entity and the Failure to Regulate the Possibility of an Indicted Legal Entity to Appoint a Representative in Criminal Proceedings – Unconstitutional

On 22 November 2018, the Constitutional Court of Moldova delivered a judgment on an exception of unconstitutionality of a number of provisions of Article 521 para. (2) of the Criminal Procedure Code.

The circumstances of the case
The case originated in the application no. 132g/2018 lodged with the Court based on the exception of unconstitutionality of the text ”in case the criminal prosecution launched against a legal entity targets the same offence or related offences, including against its legal representative, the criminal prosecution body shall appoint a representative of the legal entity in order for it to be represented as an accused person” of Article 521 para. (2) of the Criminal Procedure Code, referred to the Court upon the request of attorney Gheorghe Malic, in the case no. 1-588/2017 pending before the Court of Law of Chișinău, central office.

According to the applicant, the fact that the accused is not entitled to appoint a representative in criminal proceedings and the omission to regulate the possibility of the indicted legal entity to delegate its own representative are in breach of Articles 23, 26 and 54 of the Constitution.

The Court’s assessment:
The Court assessed the application in light of Articles 26 of the Constitution, in conjunction with Articles 23 and 54.

The Court emphasised that the right of defence, as a safeguard for the right to a fair trial covers the set of rights and procedural rules, which grant the accused the possibility to defend against accusations and prove his innocence. The right of defence must be ensured throughout the entire criminal proceedings.

In order to enjoy the right of defence, the accused must be allowed to actually benefit from legal assistance at the initial stage of the proceedings, which may prove decisive for the chances of the defence in any subsequent criminal proceedings.

The Court considered it of importance that at the initial stages of the proceedings, the legal entity accused of having committed criminal acts must be able to benefit from legal assistance of its own choosing (see, mutatis mutandis, Martin v. Estonia, 30 may 2013, §§ 90 and 93). The Court emphasised that fair proceedings require that the accused legal entity shall enjoy the whole spectrum of legal assistance services.

The Court held that granting the legal entities the possibility to delegate their representatives in criminal proceedings, when a criminal prosecution was launched against their legal representatives, does not prejudice with anything the interests of justice. Accordingly, this would be an adequate measure in light of the test of minimal interference.

Notwithstanding, there are situations when the interests of justice require the appointment by the authorities of a representative of legal entities in criminal proceedings. This is the case of legal entities declining to delegate a representative or when they just cannot delegate him. This measure would be taken in the interests of the accused legal entities and is designed to ensure the proper defence of his or her interests in the criminal proceedings (see, mutatis mutandis, Correia de Matos v. Portugal [MC], 4 April 2018, § 124).

The Court noted that optimising the two competing principles – the right of defence and the interests of justice – require that where a legal entity is accused, it may assign a legal representative in the criminal proceedings. And where the legal representative is being accused within the same proceedings, the legal entity must assign another representative. In the event the legal entity does not assign a representative, either the investigating magistrate at the stage of criminal proceedings or the court of law when examining the case, must arrange for this, upon the request of the prosecutor.

The Court also noted that the legislator must take into account the rights of legal entities subject to criminal proceedings, when choosing their defenders. The courts of law may intervene in appointing representatives of legal entities in criminal proceedings only in cases where legal entities do not make a choice in this respect.

Accordingly, the Court found a violation of Articles 23 and 26 of the Constitution by the challenged legal provisions.

Conclusions of the Court
Stemming from the above mentioned, the Court declared admissible the exception of unconstitutionality referred to it upon the request of the attorney Gheorghe Malic in the case no. 1-588/2017 pending before the Court of Law of Chișinău, central office. 

It declared unconstitutional Article 521 para. (2) of the Criminal Procedure Code of the Republic of Moldova adopted by the Law no. 122 of 14 March 2003, as well as the failure to regulate the possibility of the indicted legal entity to assign a representative in the criminal proceedings.

The Court ruled that pending the redress of this flaw found by this judgment and pending the removal of the flaw of unconstitutionality, the accused or indicted legal entities shall be able to assign individually, in a reasonable term, their representatives in the criminal proceedings. When failing to do so, this burden will lie with the investigating magistrates or, as the case may be, with the courts of law, upon the prosecutor’s request.

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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