Name of the Republic of Moldova
of February 23, 2016 No. 3
About exceptional case of illegality of parts (3), (5), (8) and (9) Article 186 of the Code of penal procedure (term of provisional attachment) (Address No. 7g/2016)
Constitutional court in structure:
To Alexander Tenase, chairman,
Auryl to Beesh,
Victor of Pop, judges,
with the assistance of the secretary of meeting Maxim Yurka,
in view of the address provided and registered on February 17, 2016
having considered the specified address in open plenary meeting, considering acts and case papers,
having held meeting behind closed doors,
issues the following decree.
Points of order
1. The address brought into the Constitutional court on February 17, 2016 by Mrs. Viorika Puyka, the judge the vessels Botany мун formed the basis for consideration of the case. Chisinau, according to provisions of Art. 135 of the h. (1) the item and) and g) Constitutions, in the light of its interpretation by the Resolution of the Constitutional court No. 2 of February 9, 2016, and also with Regulations on procedure for consideration of the addresses brought into the Constitutional court, on exceptional case of illegality of parts (3), (8), (9) and (11) Article 186 ("The term of content of person under guards and its prolongation") the Code of penal procedure, declared within criminal case No. 1-239/15, being in production the vessels Botany мун. Chisinau.
2. The author of the address considers in particular, that cumulative application of provisions of parts (3), (8), (9) and (11) Article 186 of the Code of penal procedure prolongation of term of detention for the period exceeding the terms which are directly provided in Art. 25 of the h allows. (4) Constitutions.
3. Determination of the Constitutional court of February 17, 2016, without decision in essence the address was acknowledged acceptable.
4. During consideration of the address the Constitutional court requested opinion of Parliament and the Government.
5. In open plenary meeting the address the author of the address Viorika Puyka, the judge supported the vessels Botany мун. Chisinau. The government was represented by Eduard Serbenko, the deputy minister of justice. The representative of Parliament did not participate in meeting.
Circumstances of the main dispute
6. Court of the Botanist мун. Chisinau criminal case concerning Hyrkyyal Ruslan's defendants, the Pro-cop Viorela and Stegeresku Semyon which is at stage of judicial investigation, in stage of hearing of defendants is considered.
7. Defendants were detained on March 20, 2015, and determination of March 21, 2015 the judge on criminal prosecution made the decision on the conclusion them into custody for 30 days.
8. Afterwards determination of April 17, 2015 the judge on criminal prosecution decided to extend the term of provisional attachment for 30 days.
9. On August 12, 2015 and on November 12, 2015 the term of detention concerning defendants was prolonged by determinations of May 18, 2015 every time for 90 days.
10. Determination of February 5, 2016 the court extended measure of restraint in the form of arrest till March 20, 2016 when 12-month term expires.
11. The Appeal chamber Chisinau satisfied with determination of February 10, 2016 the writ of appeal of the prosecutor and made the decision on prolongation of term of provisional attachment on defendants for 90 days since February 11, 2016. Writs of appeal of lawyers about cancellation of determination of February 5, 2016 and release of defendants from under arrest using other measure of restraint were rejected.
12. Judge vessels Botany мун. Chisinau Viorika Puyka brought on February 16, 2016 into the Constitutional court the address about exceptional case of illegality of parts (3), (8), (9) and (11) Article 186 of the Code of penal procedure.
13. Applicable provisions of the Constitution (M.O., 1994, No. 1):
Article 4. Human rights and freedoms
"(1) 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.
(2) with discrepancies between pacts and agreements on fundamental human rights, one of the parties of which is the Republic of Moldova, and the internal laws the international standards have priority."
Article 25. Right to liberty and security of person
"(1) Right to liberty and security of person inviolably.
(2) the Search, detention or arrest of person are allowed only in the cases and procedure provided by the law.
(4) Arrest is made based on the warrant for term no more than 30 days issued by the judge. Legality of the order can be appealed according to the law in higher degree of jurisdiction. The term of arrest can be extended only by the judge or degree of jurisdiction according to the law no more than up to 12 months.
(5) the Bases of detention or arrest are brought to the attention of the detainee or the arrested without delay, and accusation - in the shortest possible time; the bases of detention and accusation are shown only in the presence of the lawyer chosen or appointed.
(6) Release of the detainee or arrested is obligatory if the bases of detention or arrest disappeared."
14. Applicable provisions of the Code of penal procedure of the Republic of Moldova No. 122-XV of March 14, 2003 (переопубликован in M.O., 2012, Art. No. 263-269, 855):
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