Reaction of the Chisinau Court of Appeal to the statements of the Anticorruption Prosecutor’s Office on the “Bank Fraud” case
Representatives of the Chisinau Court of Appeals came on Monday, March 6, with a reaction after the Anti-Corruption Prosecutor’s Office (PA) announced that the examination of the request for the completion of the criminal prosecution in the absence of former PDM leader Vladimir Plahotniuc was postponed until April, after the defense’s request to raise the exception of unconstitutionality on an article of the Criminal Procedure Code was admitted.
Thus, officials from the institution claim that “the judges of the Chisinau Court of Appeal are not entitled to verify whether the arguments presented in the exception of unconstitutionality are similar to those indicated in the petitions previously examined by the Constitutional Court, as this prerogative belongs to the High Court”.
“(…) We reiterate that, when examining the application for lifting the exception of unconstitutionality, by virtue of the provisions of Article 7 para. (31) of the Code of Criminal Procedure, the court is not entitled to rule on the merits of the application or on the conformity of the contested norms with the provisions of the Constitution, limiting itself to verifying that the following conditions are met: a) the object of the exception falls within the category of acts referred to in Art. 135 para. (1) letter a) of the Constitution; b) the exception is raised by one of the parties or its representative or by the court of its own motion; c) the contested provisions are to be applied in the process of judging the case; d) there is no previous ruling of the Constitutional Court on the contested provisions.
Thus, when examining the request made by the defendant’s defence counsel, the Court did not rule on the merits/insubstantiality of the exception of unconstitutionality, but limited itself exclusively to verifying whether the conditions for referral to the Constitutional Court, expressly established by the text of the law, were met.
In resolving the request for lifting the exception of unconstitutionality, the Criminal College also took into account the fact that previously, the constitutionality of the provisions 3051 para. (4) Code of Criminal Procedure, having issued decisions of inadmissibility of the petitions, but the judges of the Court of Appeal are not entitled, based on the practice of the Constitutional Court, to verify whether the arguments of unconstitutionality are similar to those previously examined (…),” the court’s statement reads.
On Monday, March 6, the PA announced that the examination of the request to complete the criminal proceedings in the absence of Vladimir Plahotniuc, in the case generically called “Bank Fraud”, was postponed to early April.
“At the Chisinau Court of Appeal, the same methods of procrastination continue (…). Contrary to the position of the Anticorruption Prosecutor’s Office regarding the examination of the case with celerity, in the court session set for March 6, 2023, regarding the examination of the appeal against the decision of November 17, 2022 of the Chisinau Court, Ciocana seat, which authorized the conclusion of the criminal proceedings in the absence of the accused Plahotniuc Vladimir, the examination of the appeal was suspended until April 4, 2023, at 11:00 a.m., for the reason of the admission of the defense’s request to raise the exception of unconstitutionality on Article 305/1 para. (4) of the Code of Criminal Procedure”, according to a press release of the PA.
Paragraph 4 of Article 305/1, on the procedure for examining applications for authorisation to complete the criminal prosecution in the absence of the accused, provides that “after examining the application and the materials submitted, the investigating judge shall adopt a reasoned decision rejecting the prosecutor’s application if the legal requirements are not met or if it has not been demonstrated that the accused is evading prosecution and has been notified of the search, or admitting the prosecutor’s application. The investigating judge’s decision shall state the factual and legal grounds for rejecting or allowing the prosecutor’s request.”
On 17 November 2022, the Chisinau Ciocana Court admitted the request of the Prosecutor’s Office for consent to complete the criminal proceedings in the absence of the accused Plahotniuc. As a result, Plahotniuc’s defenders appealed against the decision of the court, and the first hearing in the Chisinau Court of Appeal took place on 28 December 2022.