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RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of March 17, 2009 No. 5

About control of constitutionality of provisions of the h. (1) Art. 326 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

Alina YANUCHENKO is judge

Victor PUSKAS is judge-speaker

Petra RAJLJAN - the judge

Elena SAFALERU is judge

Valeria SHTERBETS is judge

with the assistance of Victoria Botnaryuk-Trelya, the secretary of meeting, Alexey Barbenyagre, the representative of the deputy of Parliament George Susarenko, the author of the address, Ion Mytsu, the permanent representative of Parliament in the Constitutional court, and Nicolae Eshana, the deputy minister of justice, the permanent representative of the Government in the Constitutional court, being guided by Art. 135 of the h. (1) item and) Constitutions, Art. 4 of the h. (1) item and) Law on the Constitutional court, Art. 4 of the h. (1) item and) and Art. 16 of the h. (1) Code of the constitutional jurisdiction,

considered case on control of constitutionality of the h in open plenary meeting. (1) Art. 326 of the Code of penal procedure.

The address of the deputy of Parliament George Susarenko provided on November 3, 2008 according to Art. 24 and Art. 25 of the item g) the Law on the Constitutional court, Art. 38 of the item g) 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 November 24, 2008 to consideration on the merits.

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 Ministries of Internal Affairs, the representative of the Government in the European Court of Human Rights, Institute of criminal reforms, the Center for fight against economic crimes and corruption, the Highest trial chamber.

Having considered case papers, having heard the message of the judge-speaker and explanation of participants of process, the Constitutional court established:

1. On July 28, 2006 "About modification and amendments in the Code of penal procedure of the Republic of Moldova" (further - the Law No. 264-XVI) the Parliament added with Item 91 of the Law No. 264-XVI provisions of the h. (1) Art. 326 of the Code of penal procedure. This part after the words "in the first instance" was added with the words "and in appellate instance", and at the end - the offer: "In appellate instance the prosecutor can change accusation on heavier only in case of submission of the petition for appeal by it.".

So, changed h. (1) Art. 326 of the Code of penal procedure provides the following: "The prosecutor participating in consideration of criminal case in the first instance and in appellate instance, the resolution having the right to change the charge brought of the course of criminal prosecution on heavier if the proofs researched in judicial session incontestably demonstrate that the defendant committed more serious crime, than that which was charged to it earlier and to inform the defendant, his defender and, depending on circumstances, his legal representative new accusation. In this case the degree of jurisdiction at the request of the defendant and his defender provides extra time for preparation of protection on again brought charge then legal proceedings continue. In appellate instance the prosecutor can change accusation on heavier only in case of submission of the petition for appeal by it".

The same law, in the same context, the Parliament was reworded as follows h. (2) Art. 326 of the Code of Criminal Procedure which was not disputed.

2. The author of the address considers that provisions of the h. (1) Art. 326 of the Code of Criminal Procedure violate the defendant's right to protection, and specifies the h their contradiction. (2) Art. 325 of the Code of Criminal Procedure according to which change of accusation in degree of jurisdiction is allowed if it the provision of the defendant does not worsen and is not violated its right of defense.

According to the author of the address, the given provisions are unconstitutional and due to the lack of access for the defendant to the double level of jurisdiction in case the prosecutor changes accusation in appellate instance as in cassation instance review of the actual circumstances is impossible. From here, the author believes, discrepancy of these provisions and Art. 2 of the Protocol No. 7 of the European convention on human rights protection and fundamental freedoms (further - EKPCh), and also Art. 26 of the Convention guaranteeing the right of person to protection follows.

Proving the address, the author notes that he syntagma "committed more serious crime, than that which was charged to it earlier", on the one hand, and the provision which grants to the prosecutor the right to change accusation in appellate instance, but does not establish specifically how many times it is admissible during criminal procedure, on the other hand, break the principles of legality and predictability of the precept of law. In the address these principles are formulated in the light of the law of the European Court of Human Rights (further - ECHR) based on Art. 7 of EKPCh which, being Art. 4 of the Constitution of the Republic of Moldova and practice of the Constitutional court analyzed through prism, allows the author to come to conclusion that the challenged provisions are unconstitutional. In the address it is emphasized also that repeated change in judicial session of accusation on heavier leads to violation of reasonable time of consideration of criminal cases and violation of Art. 6 of EKPCh about the right of person to fair trial of case. Thus, it is disputed in the whole h. (1) Art. 326 of the Code of Criminal Procedure.

3. The constitutional court considers that for the dispute resolution it is necessary to clear three aspects:

- guaranteeing right of defense (the Art. 26) whether the Constitution allows change of the charge brought to the defendant on heavier by consideration of criminal case in the first instance and in appellate instance;

- whether the regulation about change in appellate instance of accusation on heavier is intervention in implementation of the right of the defendant to the double level of jurisdiction guaranteed to Art. 119 of the Constitution;

- whether the constitutional principle of legality according to criterion of predictability of application of the precept of law, the principle following from content of the principle of presumption of innocence enshrined in Art. 21 of the Constitution is observed by the challenged provisions.

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