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.
In the plenary session of the Highest trial chamber the representative of party injured referred to illegality of Item 3) h. (1) Art. 401 of the Code of Criminal Procedure, having specified that this regulation contradicts the constitutional regulations of the Art. 16 on equality, the Art. 20 about open entry to justice, the Art. 26 about right of defense, Art. 54 about restriction of implementation of the rights or freedoms, the Art. 119 about the right to appeal as deprives of the injured right to appeal or cassation appeal and puts that its in unequal conditions in relation to other participants of criminal procedure.
Determination of December 17, 2007 the Plenum of the Highest trial chamber appealed to the Constitutional court with request about exceptional case of illegality, having suspended consideration of the claim to cancellation.
2. Having correlated the challenged provision to the constitutional regulations, provisions of the international acts and the domestic legislation in the respective area, the Constitutional court notes the following.
The Republic of Moldova proclaimed protection and guaranteeing human rights the basic democratic principles. According to Art. 1 of the h. (3) Constitutions the Republic of Moldova - the democratic constitutional state in which advantage of the person, its rights and freedom, free development of the human person, justice and political pluralism are the supreme values and are guaranteed.
The constitutional regulations on human rights and freedoms are interpreted and applied according to the Universal Declaration of Human Rights, pacts and other agreements, one of the parties of which is the Republic of Moldova (Art. 4 of the h. (1) Constitutions).
The challenged Item provision 3) h. (1) Art. 401 of the Code of Criminal Procedure determines that the victim has the appeal right in appeal procedure and to make the complaint to cancellation according to provisions of Art. 452 of the Code of Criminal Procedure only when proceeedings are begun according to its claim.
The constitutional court considers this regulation unconstitutional on the following bases.
One of the basic principles of the constitutional state is the principle of universality of the rights and freedoms set by the Constitution and other laws, and the obligations (Art. 15 of the Constitution) provided by them.
According to Art. 59 of the h. (1) the Code of Criminal Procedure the victim is recognized physical person to which the crime causes moral, physical or material damage, recognized in this quality in the procedure established by the law with the consent of the victim. The minor to whom the crime causes damage is recognized to the victims and without its consent.
In the Recommendation N(85)11 of Committee of Ministers of the Council of Europe of the victim's provision within the criminal law and process accepted on June 28, 1985 it is emphasized that the satisfaction of requests and protection of interests of the victim shall be the main function of criminal justice, the right to ask about review by competent authority of the decision on not prosecution or the right to initiate private proceedings shall be granted to it.
According to the Code of Criminal Procedure the victim is the party in criminal trial. Task of criminal trial is protection of the personality, society and state against crimes, and also protection of the personality and society against illegal actions of officials in case of investigation of the assumed or committed crimes everyone committed crime it was punished moderately the fault and any innocent was not brought to trial and condemned (Art. 1 of the h. (2).
By the definition given in Item 29) to Art. 6 of the Code of Criminal Procedure, the party процессаэто persons performing during criminal trial functions of accusation or protection on the basis of equality and the principle of competitiveness.
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