On Monday, May 14 2018, the Constitutional Court delivered a judgment on an exception of unconstitutionality of Article 361 (2) let. c) of the Criminal Code (fabrication, possession, sale, or use of fake documents of particular importance). Application no. 25g/2018.
Circumstances of the case:
The exception of unconstitutionality underlying this case was referre to the Court upon the request of attorney Igor Chiriac, in a pending trial before the Court of Law of Strășeni. According to him, the provision of Article 361 (2) c) of the Criminal Code – "committed with respect to a document of particular importance” – is unforeseeable.
Assessment of the Court:
The Court examined this exception in light of Articles 1 para. (3) and 22, which safeguard the principle of legality of incrimination and that of legality of criminal punishment, in conjunction with Article 23 (2) of the Constitution providing for the quality criteria that a law must meet.
The Court noted that there is no legal text or any other normative act that would define the notion of “document of particular importance” used in Article 361 para. (2) let. c) of the Criminal Code, unlike the notion of “official documents granting rights or relieving of obligations”, used in Article 361 para. (1) of the Criminal Code, which is being determined in light of Article 6 of the Law no. 982 of 11 May 2000 on access to information.
At the same time, the Court observed that the case-law on this matter did not develop for the criticized concept a meaning either, a meaning that would constitute an objective reference serving as a basis for its content to be defined. On the contrary, it held that the contested legal provision leaves a wide margin of discretion to the court of law, leading to judgments with diametrically opposed interpretations. The judge finds himself in difficulty, being faced with the situation of choosing between several possible variants, lacking a clear wording of the provision and, implicitly, the applicable punishment.
The litigant is therefore deprived of the possibility to reasonably foresee the conditions that would hold him liable under Article 361 pra. (1) of the Criminal Code when he fabricates, possesses, sells, or uses fake official documents granting rights or relieving of obligations. He is also deprived of the possibility to foresee the conditions he would be held liable under Article 361 para. (2) let. c) of the Criminal Code, in the event the same actions are committed with respect to a document of particular importance. Even when referring to expert advice, the litigant might not be able to unequivocally determine which of these two norms is applicable to him.
From this perspective, the Court considered that the provisions of Article 361 para. (2) let. c) of the Criminal Code are phrased imprecisely and unclearly and thus leave a wide margin of discretion to the authorities. Therefore, they do not meet the standard of quality of the criminal law, contrary to 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 admitted the exception of unconstitutionality referred to the Court upon the request of attorney Mr. Igor Chiriac, in a pending trial before the Court of Law of Strășeni.
The Court declared unconstitutional Article 361 para. (2) let. c) 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.
The full reasoning may be consulted in the Judgment of the Constitutional Court of Moldova.
This is an English language courtesy translation of the original press-release in Romanian language.