An individual cannot be held in custody for more than 30 days under a single warrant and for 12 months in total

On 23 February 2016, the Constitutional Court of Moldova delivered its judgment on the exception of unconstitutionality of paragraphs (3), (5), (8) and (9) of Article 186 of the Code of Criminal Procedure (the length of preventive arrest) [Complaint no. 7g/2016 - in Romanian].

Circumstances of the case 

The case originated in a complaint lodged with the Constitutional Court on 17 February 2016 by Mrs Viorica Puica, judge at the Botanica District Court of Chişinău, on the exception of unconstitutionality of paragraphs (3), (8), (9) and (11) of Article 186 („Length of a person's arrest and its extension") of the Code of Criminal Procedure, raised in the criminal case no. 1-239/15, pending before the Botanica District Court of Chişinău.

The author claimed that, in particular, the cumulative application of the challenged provisions allow the extension of the preventive arrest for periods that exceed the limits expressly laid down by Article 25.4 of the Constitution, i.e., 30 days for a warrant of arrest and 12 months for the total duration of arrest.

Circumstances of the case before the Botanica district Court

The pending criminal case before the Botanica District Court of Chişinău concerns three defendants who were detained on 20 March 2015. The length of arrest was extended initially for 30 days, and thereafter for periods of 90 days.

By Decision of 5 February 2016, the ordinary court extended the preventive measure of arrest until 20 March 2016, the date of expiry of 12 months period.

By Decision of 10 February 2016, the Court of Appeal upheld the recourse filed by the Prosecutor and ordered the extension of the arrest of the defendants for a period of 90 days, beginning on 11 February 2016. The recourses filed by lawyers on annulling the Decision of 5 February 2016, with the release of the defendants from custody and the application of other preventive measures, were rejected.

On 16 February 2016 Mrs Viorica Puica, judge of the Botanica District Court of Chişinău, raised before the Constitutional Court the exception of unconstitutionality of provisions of paragraphs (3), (8), (9) and (11) of Article 186 of the Code of Criminal Procedure.

The Constitutional Court ruled on the complaint in the following composition:

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mr Tudor PANȚÎRU,

Mr Victor POPA, judges

Conclusions of the Court 

Hearing the arguments of the parties and examining the materials of the case, the Court held that according to Article 25 of the Constitution, no one can be apprehended and arrested except for cases and manner provided for by law. The express unequivocal provisions of Article 25 of the Constitution regulate constitutional guarantees in view of protecting the citizen against excessive enforcement of such measures.

The same principle is also enshrined in international human rights instruments to which the Republic of Moldova is party.

In order to elucidate the issues addressed in the complaint, the Court operated with provisions of the Constitution and caselaw of the European Court of Human Rights.

1) On the possibility of extending the preventive arrest

The Court held that the rule resides in the liberty of the person, while the arrest represents an exceptional measure, when less restrictive measures cannot be applied, as a measure of last resort and not as a measure of punishment. Subsequently, the arrest may only be ordered in certain cases, and only for certain reasons, to be shown in a concrete and convincing way by the decision of the body ordering it.

The arrest is a temporary measure, as it is ordered for a fixed period of time. Also, it is a temporary measure, since it lasts as long as there are present the circumstances for which it was ordered and it is withdrawn as soon as these circumstances are not present anymore.

The Court underscored the obligation of the authorities to provide for a substantive and thorough reasoning on the persistence of grounds for maintaining an individual in custody and if there are no grounds which allow the use of a more lenient measure than the arrest.

Thus, any extension of the arrest in fact takes place according to a procedure similar to the initial use of arrest. Therefore, in case of the extension of arrest the judge shall be guided by the same rules and grounds that determined the initial use of arrest.

The legislation of the Republic of Moldova, similarly to Article 5.1.c of the European Convention on Human Rights and Fundamental Freedoms allows for the deprivation of liberty of a person only if there is "reasonable suspicion" that the person has committed an offense. A reasonable suspicion presumes the existence of facts or information which would convince an objective observer that the concerned individual might have committed the offense.

The existence of plausible reasons that would legitimate the suspicion that an individual has committed the offense, for which s/he is prosecuted, must be regarded as a general condition and independent from the four grounds which may justify the use or extension of the preventive arrest:

1) danger of absconding - the risk that the accused will fail to appear for trial;

2) the risk that the accused, if released, would take action to prejudice the administration of justice;

3) preventing repetitive offending;

4) preservation of public disorder.

These grounds are not to be met cumulatively, the presence of a single ground being suffice to apply the measure of preventive arrest.

Therefore, a person can be placed under arrest only when the suspicions of committing a crime are corroborated with the existence of justifying grounds.

In this context, the Court held, as a principle, that the seriousness of the alleged offence itself does not justify the application of the measure of preventive arrest.

2) On the length of the arrest warrant

The Court held that under Article 25.4 of the Constitution, the arrest shall be carried out under a warrant issued by a judge for a period of maximum 30 days. Therefore, each extension of the preventive arrest cannot exceed 30 days, both at the prosecution stage and the trial stage of the case.

Thus, the legislator cannot regulate by law the length of arrest that exceeds constitutional legal framework.

The Court noted that by the Code of Criminal Procedure, the Parliament allowed for the extension of the length of the preventive arrest for a period of 90 days at the most.

In this context, the Court held that Article 25 of the Constitution provides, in clear terms, that detention is only possible under a warrant for a period of 30 days at the most. Any interpretation in that the establishing in national legislation of longer periods for an arrest warrant is allowed, would be contrary to Moldovan Fundamental Law.

Therefore, the Court held that the provisions of the Code of Criminal Procedure, which govern the possibility of issuing an arrest warrant for a period exceeding 30 days, are contrary to Article 25.4 of the Constitution.

3) On the total length of the arrest

The Court held that under Article 25.4 of the Constitution, the arrest may be continued for a period not exceeding 12 months.

In this context, the Court noted that the beginning of the length of the preventive arrest corresponds to the moment of apprehension of the individual and ends upon the issuance of the judicial decision by which that person is released from custody, or upon sentencing him/her by the court of first instance.

The Court found that the provisions of the Code of Criminal Procedure allow the detention of the person in custody for a period exceeding the constitutional limit of 12 months, the period of 12 month being provided by Article 25.4 of the Constitution.

In light of the above, the Court concludes that paragraphs (3), (5), (8) and (9) of Article 186 of the Code of Criminal Procedure of the Republic of Moldova No. 122-XV of 14 March 2003 are unconstitutional.

Judgment of the Court

Stemming from the abovementioned reasoning, in accordance with Articles 135.1.a, 135.1.g and 140 of the Constitution, Article 26 of the Law on Constitutional Court, Articles 6, 61, 62.a, 62.e, and 68 of the Code of Constitutional Jurisdiction, the Constitutional Court declared admissible the exception of unconstitutionality raised by Mrs Viorica Puica, judge of the Botanica District Court of Chişinău, in the criminal case no. 1-239/15.

The Court held that for the purposes of Article 25.4 of the Constitution:

a) The preventive arrest can be applied for a total period of 12 months, which includes both criminal prosecution and judicial stages, upon the issuance of the judicial decision by which the individual is released from custody, or upon sentencing him/her by a court of law. The length of the preventive arrest includes the time when the individual:

- has been apprehended and placed under preventive arrest;

- has been placed under house arrest;

- has been placed in a medical institution, by decision of a court of law, for examination within an in-patient unit and for treatment, following the use of medical coercive measures in relation to him/her.

b) The period of preventive arrest runs from the moment of apprehension, and in case the individual has not been apprehended, from the moment of the effective use of the warrant on preventive arrest.

c) The period of 12 months covers the same criminal act(s) for which the individual was placed in custody, irrespective of the subsequent eventual reclassification of the offense. Any detention exceeding the total period of 12 months for committing the same act, irrespective of any subsequent reclassification of the offense, is contrary to the Constitution and therefore is illegal.

d) The arrest warrant is issued for a period of 30 days at the most. Each prolongation of the preventive arrest cannot exceed 30 days, both for the prosecution and trial stages.

In this context, the Court declared unconstitutional:

- paragraph (3);

- the phrase "90 days" in paragraph (5);

- paragraphs (8) and (9),

of Article 186 of the Code of Criminal Procedure of the Republic of Moldova No. 122-XV of 14 March 2003, as being contrary to Article 25.4 of the Constitution.

Also, the Court explained the way of enforcing its judgment:

a) Within a period of 30 days following the delivery of the judgment, the (ordinary) court shall repeal the preventive measure of arrest for individuals held in custody for more than 12 months;

b) Within a period of 30 days following the delivery of the judgment, the court shall check the existence of grounds for continued preventive detention of individuals who are held under an arrest warrant exceeding the period of 30 days and the total period of detention does not exceed 12 months;

c) The effects of the this judgment do not extend to individuals who are in custody, in respect of whom there is a sentence issued and the case is examined in the instance of appeal.

d) Individuals who were held in custody for a period of more than 12 months upon the delivery of this judgment:

- in case of sentence that deprive liberty, the length of the arrest shall be deducted from the length of the sentence, under the law;

- in case of an acquittal or non-custodial judgment, individuals may claim compensation under Article 5 of the European Convention on Human Rights and Fundamental Freedoms and under the Law No. 1545-XIII of 25 February 1998 on the way of repairing damages caused by unlawful actions of the criminal investigation, prosecution and courts of law.

The Judgment of the Constitutional Court is final, cannot be appealed, enters into force upon adoption and is published in the Official Journal.

The original version in Romanian language of this press-release is available here.