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01.10
2018

The Imprecise Phrasing of a Provision of the Criminal Code on the Excess of Power and Excess of Official Authority That Result in Serious Repercussions – Unconstitutional

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The Constitutional Court of Moldova delivered a judgment on the exception of unconstitutionality of Article 328 para. (3)   let.  d)  of the Criminal Code (excess of power and excess of official authority resulted in serious repercussions).

Circumstances of the case
The exceptions of unconstitutionality underlying this case was lodged with the Court by the attorney Radu Dumneanu, in a case pending before the Court of Law of Chișinău, Râșcani office. According to him, the provisions of Article 328 para. (3)   let.  d)  of the Criminal Code – “resulted in serious repercussions” – are not foreseeable.

Assessment of the Court
The Court analysed the application in light of Articles 1 para. (3) and 22, safeguarding the principle of legality of incrimination and legality of criminal sanctioning, in conjunction with Article 23 para. (2) of the Constitution providing for the quality criteria to be met by a law.

It noted that there is no legal text that defines the notion of “serious repercussion” used by Article 328 para. (3) let. d) of the Criminal Court. The Court also observed that neither the case-law in the field did not develop for the criticized notion a meaning that would be an objective landmark in assessing its content. On contrary, it held that the challenged provision leaves a wide margin of discretion to the court of law, which has led to a non-uniform judicial practice.

Therefore, considering the multitude of meanings of this phrase, the addressee of the criminal law cannot know what is the banned action or inaction, so that he could adapt his conduct accordingly. In practice, it may not be established by the ones competent to apply the criminal law, save based on criteria lacking legal support. Even when making use of specialised consultancy, the addressee of the provision may be deprived of the possibility to comply with the legal provisions.

In this respect, the Court considered that the provisions of Article 328 para. (3)   let.  d)  of the Criminal Code are phrased in an imprecise and unclear manner, thus conferring upon the authorities applying it an excessive margin of discretion. Therefore, they do not meet the standard of quality of the criminal law, thus being in breach of Articles 1 para. (3) and 22, in conjunction with Article 23 para. (2) of the Constitution.

Conclusions of the Court
Stemming from the above-mentioned, the Court recognised as admissible the exception of unconstitutionality invoked by the attorney Radu Dumneanu, in a case pending before the Court of Law of Chișinău, Râșcani office.

It declared unconstitutional letter d) of the paragraph (3) of Article 328 of the Criminal Code.

This judgment is final, it cannot be appealed, it shall enter into force on the date of its adoption, and it shall be published in the Official Journal of Moldova.

This is an English language courtesy translation of the original press-release 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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