of May 20, 2008 No. 9
About exceptional case of illegality of provision of Item 3) h. (1) Art. 401 of the Code of penal procedure of the Republic of Moldova
Name of the Republic of Moldova
Constitutional court in structure:
To Dumitr PULBERE - the chairman, the judge - the speaker
Alina YANUCHENKO is judge
Victor PUSKAS is judge
Elena SAFALERU is judge
Valeria SHTERBETS is judge
Ion VASILATI is judge
with the assistance of Victoria Botnaryuk-Trelya, the secretary of meeting, Svetlana Filinkova, the representative of the Highest trial chamber, Ion Mytsu, the permanent representative of Parliament in the Constitutional court, Nicolae Eshana, the permanent representative of the Government in the Constitutional court, being guided by Art. 135 of the h. (1) item g) Constitutions, Art. 4 of the h. (1) item g) Law on the Constitutional court, Art. 4 of the h. (1) item g) and Art. 16 of the h. (1) the Code of the constitutional jurisdiction, the exceptional case of illegality of provision of Item 3) considered in open plenary meeting h. (1) Art. 401 of the Code of penal procedure.
The appeal of the Highest trial chamber about exceptional case of illegality provided on February 21, 2008 according to provisions of Art. 24 and Art. 25 of the Law on the Constitutional court, Art. 38 and Art. 39 of the Code of the constitutional jurisdiction formed the basis for consideration of the case.
The address was accepted determination of the Constitutional court of March 10, 2008 to consideration on the merits and is included in the agenda.
During preliminary consideration of the address the Constitutional court requested the points of view of Parliament, the President of the Republic of Moldova, the Government, the Ministry of Justice, the Prosecutor General's Office, the Center for human rights, the Center for the rights of lawyers, Institute of criminal reforms.
Having considered case papers, having heard the message of the judge-speaker and explanation of participants of meeting,
The constitutional court established:
1. The highest trial chamber based on Art. 135 of the h. (1) the item and) and the item g) Constitutions made inquiry in the Constitutional court about control of constitutionality of provisions of Items 3) and 4) h. (1) Art. 401 of the Code of penal procedure (further - the Code of Criminal Procedure) accepted by the Law N122-XV of March 14, 2003 (1).
In plenary meeting of the Constitutional court the representative of the Highest trial chamber specified subject of the address, having asked to exercise control of constitutionality of provision of Item 3) h. (1) Art. 401 of the Code of Criminal Procedure according to the procedure of exceptional case of illegality.
In article 401 Code of Criminal Procedure persons having the appeal right in appeal procedure are specified. According to the challenged Item provision 3) h. (1) the appeal right in appeal procedure the victim - concerning criminal case in general in cases when proceeedings begin only according to its preliminary claim in the procedure provided by the law has Art. 401 of the Code of Criminal Procedure.
As appears from the address, in production of the Highest trial chamber there is complaint to cancellation of the resolutions which took legal effect accepted by expanded board on criminal cases of the Highest trial chamber on June 6, 2007 and Appeal chamber Chisinau on November 28, 2006 made by the representative of the injured Grigorieva Evgenia.
By consideration of the claim to cancellation the Plenum of the Highest trial chamber was necessary to apply Art. 452 of the Code of Criminal Procedure in the ratio with Item 3) h. (1) Art. 401 of the Code of Criminal Procedure.
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