Constitutional Court declares unconstitutional set of provisions allowing for preventive arrest in Moldova

Chisinau, 31 October /MOLDPRES/ – The Constitutional Court (CCM) declared unconstitutional a number of provisions allowing the application of preventive arrest in situations which violated, including the presumption of innocence.

Following the examination of the complaint filed by several Magistrates and MPs of the Liberal Party (PL), the Court noted that any person is considered innocent until the final judgment of a conviction has been ruled out. However, that principle does not preclude the application of preventive measures against a person accused of committing a crime during the criminal proceedings. What this principle requires is the idea that, on the one hand, the arrest of a person does not imply that at the end of the trial, it will be condemned, but that any solution, including that of his or her acquit, is possible. On the other hand, when applying a precautionary measure, the judge should not question the guilt of the suspect that he has committed a crime but only if there is sufficient evidence or information to suspect that that person has committed that act, as well as to determine whether there is a relevant and sufficient reason justifying the application of a preventive measure (risk of absconding from the criminal investigation or trial of the case, risk of interference with justice, risk of committing other crimes, risk of public disorder).

Also, magistrates of the High Force found that "the preventive arrest based on the fact that the person has not recognised his guilt does not fall within any of the grounds for deprivation of liberty under points (a) to (f) of Article 5 §1 of the European Convention".

Therefore, the preventive arrest that has the reason that the person has not recognised his guilt in committing the offence infringes in a disproportionate way the rights to silence and not to contribute to his own criminality. Also, the contested provisions compel the person to admit his guilt in committing the imputed act in order not to apply his preventive measure to the arrest, which violates the right to freedom and security.

The CCM's decision is final, can not be subject to any appeal, enters into force on the date of its adoption and is published in the Official Journal of Moldova.

(Reporter A. Zara, editor L. Alcaza)