A Blanket Prohibition of Access to the Case-File to the Victims of Torture and Their Representatives in Criminal Cases – Unconstitutional

On Thursday, 29 November 2018, the Constitutional Court of Moldova delivered a judgment on the constitutionality of certain provisions of the Criminal Code and Criminal Procedure Code (Application no. 113g/2018). These provisions bar access to case-files, during pre-trial investigation, to the victim, civil party, suspect, the accused person, and to the party incurring civil liability. 

The circumstances of the case

The exception of unconstitutionality underlying this case was referred to the Court in a criminal proceeding pending before the Chișinău District Court. It is basically alleged that, by the challenged provisions of the Criminal Code and Criminal Procedure Code, the imposed restriction on granting access to the case-file during pre-trial investigation to the victim, civil party, suspect, accused, and to the party incurring civil liability are in breach of Articles 20 and 24 para. (2) of the Constitution.

The Court’s assessment

The Court assessed the application in light of the procedural obligation derived from Article 24 para. (2) of the Constitution, i.e. ensuring an effective participation of the victims and their representatives to criminal investigation.

The Court examined the proportionality of the imposed bar to the victims and their representatives on being granted access to the case-files during pre-trial investigation.

The Court acknowledged that the prohibition in question may pursue the legitimate goal of ensuring the confidentiality of criminal prosecution. At the same time, the Court noted that the legitimate purpose of ensuring the confidentiality of criminal investigation must be related to the particular interests of each party to the proceedings.

Thus, as regards the victim, the prosecution is as confidential as in the case of the suspect or of the accused, meaning that all of them can only access the case-file after the pre-trial investigation has been completed.

The Court observed that an absolute bar on the access to the case-file is imposed in the context where the victim is usually the main source of information for the criminal prosecution authorities, when an offence is committed. Without the victims and their representatives having access to the criminal investigation case-file and being properly informed about the conduct of the investigation, they cannot challenge something of substance before a court.

The Court also noted that the completion of the criminal investigation may prove to be a late stage in order for the victims and their representatives to intervene in a situation requiring a prompt response.

At the same time, the Court held that the blanket prohibition imposed on access to the criminal investigation case-files does not comply either with the standards listed in Oleksiy Mykhaylovych Zakharkin v. Ukraine, 24 June, 2010, as the criminal procedural law does not provide for a special procedure granting the victims and their representatives access to the case-file at the stage of pre-trial investigation.

The sole reason for denying access to case-file is confidentiality. As regards the limits of granting access, they cannot be assessed given that the challenged provisions bar any access prior to the completion of criminal investigation. With respect to the deadlines for examining the requests and for the access to be granted, the Court observed that although Article 299 para. (1) of the Criminal Procedure Code provides that the requests are examined within up to 15 days from their receipt, this is devoid of effectiveness, as long as access cannot be granted out of confidentiality reasons.

On the other hand, the Court noted that the State also has other available mechanisms aiming at preventing the disclosure of information on criminal investigation, such as that provided by Article 212 para. (2) of the Criminal Procedure Code, whereby the victims and their representatives may be instructed by the person conducting the criminal investigation that  they are not allowed to disclose the information on the ongoing investigation under the sanction of the criminal law.

In conclusion, considering that this exception of unconstitutionality was referred to the Court in a criminal case having as a subject matter an alleged crime of torture, the Court held that pending the Parliament's amendment of the legal provisions in this field, the victims of torture will have access to all the materials from the case-file during the pre-trial investigation. This is the general rule.

As an exception to the above, the Court noted that access to pre-trial investigation case-files may be restricted by the prosecutor, by a reasoned order, if the following conditions are cumulatively met: (i) the restriction is set for a reasonable period of time; (ii) the restriction relates only to certain procedural acts, and (iii) there is a risk that full access to pre-trial investigation case-file might be detrimental to the conduct of criminal proceedings.

The Court held that the proportionality of restricting access to the case-files during pre-trial investigation and providing grounds for such a measure are crucial elements, which should be assessed with caution by prosecutors, given the particular circumstances of the case.

The Court’s conclusions

Considering the foregoing, the Court declared partially admissible the exception of unconstitutionality referred to the Court by the author of the exception of unconstitutionality in the case no. 10-329/18, pending before the Chișinău District Court.

It declared constitutional the text “from the moment of pre-trial investigation’s completion” of Article 60 para. (1) point 7) and the text “from the moment of pre-trial investigation’s completion” of Article 80 para. (1), point 8) of the Criminal Procedure Code of the Republic of Moldova, adopted by the Law no. 122 of 14 March 2003, to the extent they are not applicable to victims of torture and their representatives who must be granted access to the entire case-file during the pre-trial investigation, save for cases where the access may be restricted by the prosecutor, by a reasoned order, in compliance with the following conditions: (i) the restriction is set for a reasonable period of time; (ii) the restriction relates only to certain procedural acts, and (iii) there is a risk that full access to pre-trial investigation case-file might be detrimental to the conduct of criminal proceedings.

It also declared inadmissible the exception of unconstitutionality in the part referring to the constitutional review of:

-        the text ”from the moment of pre-trial investigation’s completion” of Article 62 para. (1) point 7);

-        Article 64 para. (2) point 16);

-        Article 66 para. (2) point 20);

-        the text “following the completion of pre-trial investigation” of Article 66 para. (2) point 22);

-        the text “following the moment the pre-trial investigation is completed” of Article 74 para. (1) point 8);

-        Article 212 paras. (1) and (3) of the Criminal Procedure Code of the Republic of Moldova, adopted by the Law no. 122 of 14 March 2003;

and

-        Article 315 para. (2) of the Criminal Code of the Republic of Moldova, adopted by the Law no. 985 of 18 April 2002.

 This judgment is final, it may not be subject to appeal, enters into effect upon the date of adoption and shall be published in the Official Journal of the Republic of Moldova.

This a courtesy translation of the original text available in Romanian language.

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