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01.10
2018

The Court Examined the Constitutionality of Certain Provisions of the Criminal Procedure Code on the Effect of Its Rulings in Time, Within the Judicial Review Procedure

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On Monday, 1 October 2018, the Constitutional Court of Moldova delivered a judgment on the constitutionality of Article 458 para. (3) item 4) of the Criminal Procedure Code.

The circumstances of the case
The case originated in an application lodged with the Court by the MP Ștefan Creangă. He alleged that the challenged provision is actually interpreted so that, in criminal cases, the review of the final judicial decisions is only possible upon the declaration of unconstitutionality of a provision of the Criminal Code by the Constitutional Court applicable in that case and thereby citizens are being deprived of the possibility for a review upon the declaration of unconstitutionality of a provision of the Criminal Procedure Code.

The Court’s assessment
The Court assessed the application in light on Article 7 of the Constitution, providing that the Constitution is the supreme law of the state.

It noted that the retroactive effect of the judgments delivered by the Constitutional Court represents a redress from the negative consequences of the criminal proceedings rendering final solutions, by applying a provision declared unconstitutional.

At the same time, the Court noted that retroactivity in itself can cause unpredictable consequences, if it is not moderated by certain conditions prescribed by law or by case-law. For this reason, the retroactive effect of the judgments of the Court must operate under thorough scrutiny.

In this respect, the Court found that the effects of the Constitutional Court's judgments on criminal proceedings are assessed differently by the courts, which renders insecure the application of Article 458 para. (3) item (4) of the Criminal Procedure Code. The Court has therefore found that this issue falls within  the constitutional field.

The Court noted that the challenged provision does not preclude the possibility of reviewing final court decisions based on a provision of criminal procedure declared unconstitutional.

Further, the Court noted certain regulatory deficiencies of the institution of judicial review in criminal proceedings, related to the wording of the ground for the review, which is being challenged by the applicant. This also applies to the impact of the Constitutional Court's judgment on the situation of the person requesting a review, to the time-limit for a request on review to be submitted and to the period for which the judgment of the Court has a retroactive effect.

With regard to the wording of the ground for the review, which is being challenged by the applicant, the Court found that it is very permissive for the field of criminal proceedings, as it allows, by its text, for a launch of the review proceedings of final court decisions irrespective of the impact the judgment of the Constitutional Court may produce for a finalised proceeding.

With regard to the impact of the Constitutional Court's judgment on the situation of the person requesting the review, the Court noted that the challenged provision does not prevent a request for review to be made, even if the provision declared unconstitutional by its judgment does not alleviate the person's situation. In that regard, the Court noted that, following the review of the judgment under the challenged provision, the person should gain a significant benefit, e.g. mitigation of the punishment, conversion of penalty, acquittal, etc. Without such benefits, the re-examination of the case by a review would be disproportionate to the principle of legal certainty and the resources devoted to this procedure.

With regard to the time-limit on applying for a review and the period the Court's judgment is retroactive, the Court found that in case of a review of a final judicial decision under the challenged provision, Article 459 of the Code [on time-limits for reviewing criminal proceedings] does not provide for a time-limit on applying for a review. At the same time, the procedural criminal legislation has no provisions on the period the judgment of the Court has retroactive effects, which implies that all final judicial decisions passed between the date of adoption of the law and the date of the judgment of unconstitutionality could be reviewed.

In such a situation, the Court considered it necessary to identify balanced solutions that would ensure, in particular, for the principle of legality and the principle of legal certainty to be observed.

Thus, the Court noted that when it rules unconstitutional a certain legal provision, either by exercising its constitutional review or by way of an exception of unconstitutionality, considering the effects that the judgment in question may produce, it will expressly provide in the operative part of the judgment whether the review of final court decisions may be claimed and, if necessary, it will provide for the period for which the judgment is retroactive, as well as  for the time-limit on applying for a review. Otherwise, the principle of applicability for the future of its judgment shall prevail.

At the same time, the Court found that the temporal effects of its judgments shall be determined according to certain criteria, such as: (1) ensuring legal certainty; (2) avoiding regulatory gaps; (3) respect for the principle of the separation of powers in the state; (4) assessing the possible effects on the national budget and financial planning or on ensuring the uniformity of administrative procedures; and (5) other important reasons for the general interest of the community.

Finally, the Court held that Article 458 para. (3) item (4) of the Criminal Procedure Code is consistent with Article 7 of the Constitution to the extent the review can be claimed on the basis of the judgment declaring the unconstitutionality of a legal provision applicable to the case in question, only if the judgment expressly provides for such an indication.

At the same time, given the weight of legal certainty, in this situation, the Court held that the effects of this judgment apply only to the future. 

Conclusions of the Court
For the foregoing reasons, the Court declares partially admissible the application lodged by the MP Ștefan Creangă.

It declares constitutional Article 458 para. (3) item (4) of the Criminal Procedure Code of the Republic of Moldova, adopted by Law no. 122 of 14 March 2003, to the extent that the review may be claimed on the basis of the judgment declaring the unconstitutionality of a legal provision applied to the case in question, only if the judgment expressly provides for such an indication.

The Court ruled that the effects of this judgment are only applicable for the future.

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.

This a press-release of the Constitutional Court of Moldova, which may be subject to editorial revision. It does not bind the Court. Future press-releases, decisions, judgments, further information about the Court, as well as summaries (in Romanian) of relevant case-law of the European Court of Human Rights can be accessed on www.constcourt.md. To receive the above information, please subscribe on Court’s home page.

 

 
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