Examination By the Supreme Court of Justice of Appeals Against Appellate Courts’ Decision in the Absence of Parties: Application Rejected

On 9 July 2018, the Constitutional Court of Moldova delivered a decision of inadmissibility on a constitutional review of Article 432 para. 5 and Article 433 para. 1 of Criminal Procedure Code, providing that the appeal proceedings shall be conducted in a public hearing only when the section examining the admissibility of the appeal finds a particular interest of the case for the case-law.

The case originated in an application lodged with the Court by the MP Ștefan Creangă. He contended that, when precluding publicity from courts’ hearings in examining appeals against appellate courts’ decisions, the lawmaker did not consider the Judgment of the Constitutional Court no. 16 of 19 July 2005 and thus it had set a lower fair trial protection standard as compared to the previous one. In his view, the current one comes in breach with Articles 7, 15, 20, 26, 54, 134 para. 3 and 140 of the Constitution. The author of the application also alleged that Articles 432 para. 5 and 433 para. 1 of the Criminal Procedure Code are in breach of Article 117 of the Constitution providing for public judicial debates.

Examining the alleged non-compliance of the challenged provisions with the Judgment of the Constitutional Court no. 16 of 19 July 2005, the Court did not find that the cited judgment would lead to the conclusion that court hearings in appeal proceedings against the appellate courts’ decisions should be public. In that case, the Court found it unconstitutional that the appeal was only lodged with an attorney and, as a logical consequence, it held that it was also unconstitutional for the case to be presented only by specialised attorneys.

Regarding the alleged non-compliance of the challenged provisions with Article 117 of the Constitution, enshrining the publicity of judicial debates, the Court mentioned that in light of relevant case-law of the European Court,  where a public hearing was held at first instance, the absence of such a hearing may be justified at the appeal stage by the special features of the proceedings at issue, due to the nature of the domestic appeal system and the scope of appellate court’s powers provided in the national law (Kashlev v. Estonia, 26 April 2016, §§ 37, 38).  Proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6 § 1, although the appellant was not given the opportunity to give evidence in person before the appeal or cassation court (Popovici v. Republic of Moldova, 27 November 2007, §§ 67, 68).

Given the case-law of the European Court, for a justification of the appeal proceedings against appellate decisions in the absence of parties to be found, the Court had to ascertain the nature of that review procedure and the competence of the Supreme Court of Justice within this procedure. For these purposes, the Court found that the appeal against appellate procedures bears a devolutive effect only in law. The Supreme Court has the competence to only examine the legality of a decision, not the facts of the case. It does not review the manner in which the objective reality of facts was mirrored by the challenged decision. Within this procedure, no evidence is brought or administered, nor it encompasses the adoption of a new decision if the situation of the convict is worsened.

Comparing these features of the appeal against appellate courts’ decisions with relevant European case-law, the Court concluded that the safeguards of Article 6 of the European Convention and implicitly those of Article 117 of the Constitution on the publicity of hearings and the right to attend a hearing are not infringed by this procedure.

At the same time, the Court observed that there is an exception from the rule of examining the appeal in the absence of parties, i.e. when the section examining the admissibility of the appeal finds a particular interest of the case for the case-law. Accordingly, in case the section examining the admissibility of the appeal may consider it necessary for the parties to plead on the issues raised by the appeal application or to shed light on certain aspects pertaining to the fair and uniform application of the law by the courts of law, it shall order their summoning for a public hearing.

Accordingly, the Court held that the application for a constitutional review of Articles 432 para. 5 and 433 para. 1 of the Criminal Procedure Code is manifestly ill-founded and declared it inadmissible.

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