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of May 28, 2020 No. 15

About exceptional case of illegality of Article 191 of h (2) the Code of penal procedure (temporary release under judicial control [2]) (the address No. 196g/2019 of year)

Name of the Republic of Moldova

Constitutional court in structure:

Domnika Manole, chairman,

Eduard Ababey,

Nicolae Roshka,

Liouba Shova,

Sergey Tsurkan,

Vladimir Tsurkan, judges,

with the assistance of the assistant judge Eugenia Myza,

in view of the address,

registered on November 1, 2019,

having considered the specified address in open session,

considering acts and case papers,

having carried out discussion in the consultative room,

issues the following decree.

Points of order

1. The address about exceptional case of illegality of h formed the basis for consideration of the case (2) Article 191 of the Code of penal procedure, declared at the initiative of the judge in court of Chisinau, the sector Chokan, Victor Sandu, in No. 17-262/19.

2. The appeal about exceptional case of illegality was sent in the Constitutional court on November 1, 2019, according to the procedure of Article 135 of h (1) by the item and) and the item g) Constitutions.

3. Determination of the Constitutional court of December 9, 2019, without decision in essence, the address was acknowledged acceptable.

4. During consideration of the case the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government, the Prosecutor General's Office, the Highest trial chamber and Institute of criminal reforms.

5. In open session of the Constitutional court the address was supported by his author, the judge Victor Sandu. The parliament represented Rada Rada, the main consultant of service of representation in the Constitutional court and law enforcement agencies of general legal management of the Secretariat of Parliament. Represented the government Doreen Lishman, the state secretary of the Ministry of Justice.

Circumstances of the main dispute

6. In production the vessels Chisinau, Chokan's sector, there was petition of the prosecutor of Anti-corruption prosecutor's office Nadezhda Busuyok for prolongation of measure of restraint of temporary release under judicial control for a period of 60 days concerning Egor Evgeny Borovskikh accused of crime execution, stipulated in Article 243 h (3) the item b) the Criminal code.

7. In reasons for the petition the prosecutor noted that there is risk that the person accused can disappear from criminal prosecution and court, and there are enough bases to believe that in case of application of other measure of restraint the person accused can make impact on witnesses or persons accused or to destroy proofs that will create obstacles in permission of case and establishment of the truth.

8. During the open session of October 22, 2019 the judge Victor Sandu on own initiative declared exceptional case of illegality of h (2) Article 191 of the Code of penal procedure which determines that temporary release under judicial control is not provided to the person accused, defendant if there are data that he can commit other crime or will try to make impact on witnesses, either to destroy evidentiary facts, or to disappear from criminal prosecution authorities, the prosecutor or, depending on circumstances, degree of jurisdiction.

9. Determination from the same number the court of Chisinau, Chokan's sector, sent the appeal about exceptional case of illegality to the Constitutional court for its permission.

Applicable legislation


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