On Thursday, 29 November 2018, the Constitutional Court of Moldova delivered a judgment on the constitutionality of Article 445 and of the text ”and 445” of Article 461 of the Contraventions Code.
Article 445 of the Contraventions Code provides that the failure to indicate in the administrative notice of violation the data and facts referred to in Article 443 of the Code results in an absolute nullity of the act. According to Article 461 of the Code, in the event, the circumstances provided by Article 445 are found, when a case is tried, the court shall terminate the contravention proceedings.
The circumstances of the case
The exception of unconstitutionality underlying this case was referred to the Court upon the request of attorney Vitali Catană, in a case pending before the Court of Appeal of Chișinău on an action requesting for the revocation of a notice of violation of the offence provided by Article 78 para. (2) of the Contraventions Code [non-serious intentional physical injury]. The attorney did not agree with the cancelation in question.
The applicant contended that the sanction of nullity in case the notice of violation is drafted in breach of Article 443 of the Contraventions Code should not bear an absolute nature. Revocation of the notice of violation under Article 445 and termination of the contravention proceedings under Article 461 would amount to excessive safeguards for the offender, leading to an unfair situation for the victim.
The Court’s assessment
The Court assessed the application in light of the procedural duties deriving from Articles 24 [the right to physical and mental integrity of the individual] and 28 [private and family life] of the Constitution, accordingly Articles 3 and 8 of the European Convention of Human Rights.
The Court held that the sanctioning system of the State should operate in such a way that the vulnerable, i.e. victims of violence, be certain that the judiciary will react against the illegal acts committed against them and will not tolerate or let the perpetrators go unpunished. Should there not be imposed a punishment due to the flawed regulation provided by the law, the purpose of the contravention law would not be achieved, which would fuel public scepticism towards the judiciary.
The notice of violation is an administrative act emanating from a public authority competent to find and sanction administrative actions. The Parliament is vested with the power to set the legality conditions of the notice of violation, including the irregularities leading to its nullity. Notwithstanding, in light of the fundamental rights of the victims, the Parliament may not adopt a legislative solution that would remove, in an absolute manner, the possibility of a redress before the court with regard to the errors committed upon drafting the notice of violation.
In this context, the Court noted that the challenged provisions are rigid and insensitive to the circumstances, as they apply the sanction of absolute nullity against the notice of violation, in case it does not contain at least one of the stipulations provided by the law. In this respect, the law does not confer the courts the possibility to remove errors that could not objectively affect the fair nature of the proceedings. Therefore, if an action is brought before the court of law against an administrative notice of violation and the judge finds that it misses a stipulation provided by Article 443 of the Contraventions Code, then he has to cancel it and, implicitly, to terminate the contravention proceedings.
The Court conceived a situation where a notice of violation of the offence provided by Article 78 [injury of physical integrity] or Article 781 [domestic violence] of the Contraventions Code might be revoked for the sole reason that the investigating officer failed to insert certain data, which is obviously irrelevant or insignificant as compared to the merits of the case. In such situations, it would be impossible for someone to state that the State has met the positive procedural duties of an effective investigation and to punish the ones guilty of perpetrating acts of violence.
Concluding, the Court held that Article 445 and the text “and 445” of Article 461 of the Contravention Code prevent the authorities from meeting their positive procedural duties under Articles 3 and 8 of the European Convention of Human Rights. Accordingly, these legal provisions violate Articles 24 and 28 of the Constitution.
The Court’s conclusions
Considering the foregoing, the Court declared admissible the exception of unconstitutionality referred to the Court upon the request of attorney Vitali Catană, in the case no. 4r-2301/18 pending before the Court of Appeal of Chișinău.
It declared unconstitutional Article 445 and the text “and 445” of Article 461 of the Contraventions Code adopted by the Law no. 218 of 24 October 2008.
The Court ruled that pending the amendment of the contraventions law by the Parliament, the courts shall find, in each case individually, whether the failure to indicate certain data in the notice of violation may not be removed only upon revocation of the administrative notice of violation or whether it may be covered (confirmed) by the court of law.
This a courtesy translation of the original text available in Romanian language.
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