of January 24, 2023 No. 3
About exceptional case of illegality of Article 321 of h (2) the item 3) and h (4) the Code of penal procedure (refusal of the defendant of the right to participate in judicial session) (the address No. 129g/2022 of year)
Name of the Republic of Moldova
Constitutional court in structure:
Domnika Manole, chairman,
Vladimir Tsurkan, judges,
with the assistance of the assistant judge Marcella Lupu,
in view of the address,
registered on August 3, 2022,
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 Article 321 of h formed the basis for consideration of the case (2) the item 3) and h. (4) the Code of penal procedure, declared by the lawyer Ksenofon Ulyanovski for the benefit of Konstantin Gredinara, party litigants No. 1-4070/2019, being in production the vessels Chisinau, the sector Buyukan.
2. The address about exceptional case of illegality is brought into the Constitutional court by the judge in court of Chisinau, the sector Buyukan, Vasilisa Muntyan according to the procedure of Article 135 of h (1) the item and) and the item g) Constitutions.
3. Determination of the Constitutional court of November 3, 2022, without decision in essence, the address was acknowledged acceptable.
4. During consideration of the address the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government, the Prosecutor General's Office, the Union of lawyers, Institute of criminal reforms and Institute of legal, political and social researches.
5. Were present at open session of the Constitutional court - the author of the address lawyer Ksenofon Ulyanovski, the representative of Parliament Rada Rada and the representative of the Government Eduard Serbenko.
A. Circumstances of the main dispute
6. In production the vessels Chisinau, the sector Buyukan, there is criminal case on accusation Konstantin Gredinara in smuggling making attempt. According to the Criminal code the crime of which making the defendant is accused is referred to category less heavy.
7. During judicial session of June 7, 2022 the lawyer Ksenofon Ulyanovski declared for the benefit of Konstantin Gredinara exceptional case of illegality of Article 321 of h (2) the item 3) and h. (4) Code of penal procedure.
8. Determination of June 14, 2022 the court of Chisinau, the sector Buyukan, satisfied the petition and sent the appeal about exceptional case of illegality to the Constitutional court for its permission.
B. Applicable legislation
9. Applicable provisions of the Constitution:
Article 20 Open entry to justice
"(1) Any person has the right to effective recovery in the rights by competent courts in case of violation of its rights, freedoms and legitimate interests.
(2) Any law cannot limit access to justice".
Article 54 Restriction of Implementation of the Rights or Freedoms
"(1) In the Republic of Moldova the laws prohibiting or diminishing the rights and fundamental freedoms of man and citizen cannot be adopted.
(2) Implementation of the rights and freedoms is not subject to any restrictions, except those which are provided by the law, meet the universally recognized norms of international law and protection of the rights, freedoms and advantage of other persons, prevention of disclosure of information obtained confidentially or ensuring authority and impartiality of justice are necessary for the benefit of homeland security, territorial integrity, economic well-being of nation, public order, for the purpose of prevention of mass riots and crimes.
(3) part Provisions (2) restrictions of the rights proclaimed in Articles 20-24 do not allow.
(4) Restriction shall correspond to the circumstance which caused it and cannot affect existence of the right or freedom".
10. Applicable provisions of the Code of penal procedure accepted by the Law No. 122 of March 14, 2003:
The article 321 Participation of the Defendant in Legal Proceedings and effects of its absence in court
"(1) Trial of case in the first instance and appellate instance happens to participation of the defendant, except as specified, provided by this Article.
(2) Trial of case in the absence of the defendant can be performed in case:
1) if the defendant evades from appearance in court;
2) if the defendant, being under arrest, refuses to appear before the court for trial of case and its refusal is confirmed also by his defender or administration of the place of detention;
3) consideration of the case about making of insignificant crimes when the defendant showed willingness that legal proceedings were carried out to its absence;
4) completion of criminal prosecution in the absence of the person accused according to Article 291-1.
(2-1) in case of, provided in Item 2) of part (2), the defendant can be subjected to the drive in degree of jurisdiction for confirmation of the refusal to participate in legal proceedings.
(3) in case of trial of case in the absence of the defendant participation in trial of his defender and, depending on circumstances, his legal representative is obligatory.
(4) In case of absence of the defendant in court trial of case is postponed, except as specified, provided by part (2) and part (2-1).
(5) in case of unreasonable absence of the defendant in court the degree of jurisdiction has the right to make the decision on its drive and to apply to it measure of restraint or disposes to replace it with other measure which will provide its appearance in court and for the petition of the prosecutor for the announcement of the defendant in search. Determination about the announcement of the defendant in search is performed by law-enforcement bodies.
(6) the Degree of jurisdiction makes the decision on production of legal proceedings in the absence of the defendant based on, stipulated in Item 1) parts (2), only on condition of representation by the prosecutor of strong evidences of the fact that person to whom charge and case concerning which it is taken to court is brought directly refused the right to appear before the court and personally to provide the protection, and also evades from criminal prosecution and consideration of the case in court".
Points of law
A. Address acceptability
11. The Constitutional court confirmed with determination of November 3, 2022 observance in the matter of the conditions of the acceptability of the address established in its invariable practice.
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