The inviolability of the person

THE INVIOLABILITY OF THE PERSON

Tudor Osoianu,

tosoianu@gmail.com

Dinu Ostavciuc

ostavciucdi@gmail.com

Abstract: The research inreference isdedicated tothe inviolability ofthe person asaprinciple ofthe criminal process and asalegal guarantee ofpersonal security, which obliges adequate protection. On the other hand, the freedom ofthe person represents one ofthe greatest social values. The person can bedeprived ofliberty only inexceptional cases, based ongrounds strictly regulated bylaw. No one should bearbitrarily deprived ofthis freedom. The arrest ofthe person must beordered asan ultima ratio. The main rule isto search the person atliberty, and the presumption isalways infavor ofrelease. The authors research, inthis sense, the jurisprudence ofthe Republic of Moldova and that ofthe ECHR, they come upwith practical recommendations and proposals for ferenda law, trying toalign and correspond the internal norms tothe standards imposed byart. 5 ofthe ECHR.

Keywords: inviolability, person, deprivation, freedom, arrest, penal trial.

Introduction The inviolability ofthe person isalegal guarantee ofthe personal security and freedom ofeach individual. This isexpressed bygiving the person areal opportunity todispose ofhimself, todetermine his place ofresidence athis own discretion, not tobe under constant guard and surveillance. In addition, the inviolability ofthe person consists inpreventing, suppressing and punishing the violation ofhis physical and mental integrity and individual freedom. The restriction ofthe person’sright topersonal integrity iscarried out within the criminal process, inorder tocreate the necessary conditions for the conduct ofthe criminal investigation and the imposition ofafair punishment onthe guilty.

 University professor, PhD, Academy „Ștefan cel Mare” ofthe Ministry of

Internal Affairs ofthe Republic of Moldova.

 Rector ofthe Academy „Ștefan cel Mare” ofthe Ministry of Internal

Affairs ofthe Republic of Moldova, PhD., associate professor, university lecturer, University „Dunărea de Jos” from Galați, Romania. 136 Vol. XV, no. 4/December, 2023

Discussion and results „The consecration ofthe freedom ofthe person, asafundamental right, requires its guarantee, through astrict regulation ofthe cases and

conditions inwhich this fundamental right can beviolated.”1

„By individual freedom itis necessary tounderstand the physical freedom ofthe person, his right tobe able tobehave and move freely, not tobe held inslavery orin any other servitude, not tobe detained, arrested orimprisoned except incases and according tothe forms expressly provided

bythe Constitution and laws.”2

This aspect was also retained bythe Constitutional Court, which noted that, „By guaranteeing the „right toliberty”, Article 5 § 1 ofthe Convention envisages the physical liberty ofthe person (Creangă v. Romania [MC], February 23, 2012, § 84).3 „The safety ofthe person means the set ofguarantees that protect the person insituations where the public authorities, inthe application ofthe Constitution and the laws, take certain measures that concern individual

freedom, guarantees that ensure that these measures are not illegal.”4

„Safety could mean that noone needs fear that they will besubjected to

arbitrary encroachments ontheir freedom.”5

Individual freedom isone ofthe fundamental values protected bythe European Convention on Human Rights, requiring, due toits importance, arigorous control bythe ECHR regarding any measure that could affect this value. In the ECHR case, Bozano v. France, the European Court held that: „The main issue tobe determined iswhether the disputed detention was „lawful”, including whether itwas inaccordance with aprocedure prescribed bylaw”. The Convention here refers essentially tonational law and establishes the need toapply its rules, but italso requires that any measure depriving the individual ofhis liberty must becompatible with the purpose of Article 5 (art. 5), namely toprotect the individual from arbitrariness (see, asthe most recent authority, the Ashingdane judgment

1 Ioan, Griga, Procedural Criminal Law, General Part, Theory, Jurisprudence and Practical Applications, Bucharest, Published by Oscar Printn, 2004, p. 57. 2 Ioan, Muraru, Constitutional law and the political institutions, Bucharest, Pro Arcadia, 1993, p. 248. 3 Decision No. 15 of 28.05.2020 regarding the exception ofunconstitutionality ofarticle 191 paragraph (2) ofthe Code of Criminal Procedure (provisional release under judicial control [2]) (point 47). 4 Ioan, Muraru, Constitutional law and the political institutions, Bucharest, Pro Arcadia, 1993, p. 249. 5 Gheorghiță, Mateuț, The criminal procedures. General part, Bucharest, Universul Juridic, 2019, p. 85. Cogito – Multidisciplinary Research Journal 137

of 28 May 1985, Series A no. 93, p. 21, § 44). What isat stake here isnot only the „right toliberty” but also the “right tosecurity ofperson”.6 „A person isdeprived ofliberty byordering the measure ofdetention, administrative management atthe police headquarters, bythe execution ofthe warrant ofbringing bycoercion, byordering preventive arrest, house arrest, provisional arrest with aview toextradition orissuing the European arrest warrant, ordering the measure ofsafety oftemporary medical hospitalization, etc.; likewise, onthe basis ofafinal court decision, there isadeprivation ofliberty inthe case ofthe execution ofthe main sentence ofimprisonment orlife imprisonment orthe educational measure of

internment inan educational center orin adetention center.”7

The individual’sright toliberty and security isregulated inseveral international instruments. According toart. 3 ofthe Universal Declaration of Human Rights: „Every human being has the right tolife, liberty and security ofhis person”. Moreover, inaccordance with the provisions ofart. 9 ofthe same international act, „No one shall bearbitrarily arrested, detained orexiled”. The inviolability ofthe person isalso proclaimed inthe International Covenant on Civil and Political Rights, adopted on December 16, 1966 in New York. Every individual has the right tofreedom and security ofhis person. No one can bearrested ordetained arbitrarily. No one can bedeprived ofhis freedom except for legal reasons and inaccordance with the procedure provided bylaw (art. 9 paragraph (1)). This fundamental

right isspecifically protected byother international documents.8

In accordance with art. 5 paragraph 1 ofthe ECHR: „Everyone has the right tofreedom and security. No one can bedeprived ofhis freedom except inthe cases expressly stipulated inthe law”, and namely: a) ifhe islegally detained onthe basis ofaconviction pronounced byacompetent Court; b) ifhe became the subject ofalegal arrest ordetention for disobeying adecision issued inaccordance with the law bya Court orin order toguarantee the execution ofan obligation provided bylaw; c) under the conditions inwhich hewas arrested ordetained, with aview tohis being brought before acompetent judicial authority, when there are good reasons resulting from the need toprevent him from committing acrime orfleeing after committing it;

6 ECHR Judgment, Bozano v. France, of 18.12.1986 (§ 54). Available: https://hudoc.echr.coe.int/eng?i=001-57448 [accessed: 02.10.2022]. 7 Mihail Udroiu, Synthesis of Criminal Procedure, General Part, 2nd ed., Volume I, Bucharest, C.H. Beck, 2021, p. 62. 8 Final Act ofthe Conference on Security and Cooperation in Europe (Helsinki, 1975; The final document ofthe Vienna Meeting ofthe representatives ofthe States participating inthe Conference for Security and Cooperation in Europe (1989) and soon. 138 Vol. XV, no. 4/December, 2023

d) when itcomes tothe legal detention ofaminor, decided for his education under supervision orfor the purpose ofbringing him before acompetent authority; e) when wecan talk about the legal detention ofaperson susceptible totransmitting acontagious disease, ofan insane person, analcoholic, adrug addict oravagabond; f) when wecan talk about the legal arrest ordetention ofaperson, toprevent him from entering the territory ofastate oragainst whom anexpulsion orextradition procedure isbeing carried out. ”(…) ingeneral, Article 5 § 1 ofthe European Convention contains anexhaustive list ofpermissible grounds for deprivation ofliberty, provided for inletters (a)-(f), and nodeprivation ofliberty shall belawful unless itfalls within one ofthese reasons (e.g. see M. v. Germany, December 17, 2009, § 86; Creangă v. Romania [MC], February 23, 2012, § 120; Del Río Prada v. Spain [MC], October 21, 2013, § 125)”.9 In the ECHR case, Guzzardi v. Italy10, the Court recalls that inproclaiming the „right toliberty”, paragraph 1 of Article 5 (art. 5-1) iscontemplating the physical liberty ofthe person; its aim isto ensure that noone should bedispossessed ofthis liberty inan arbitrary fashion. As was pointed out bythose appearing before the Court, the paragraph isnot concerned with mere restrictions onliberty ofmovement; such restrictions are governed by Article 2 of Protocol No. 4 (P4-2) which has not been ratified by Italy. In order todetermine whether someone has been „deprived ofhis liberty” within the meaning of Article 5 (art. 5), the starting point must behis concrete situation and account must betaken ofawhole range ofcriteria such asthe type, duration, effects and manner ofimplementation ofthe measure inquestion (see the Engel and others judgment of 8 June 1976, Series A no. 22, p. 24, par. 58-59)”. In the ECHR case, Creangă v. Romania11, the Court found: „(…), incases examined bythe Commission, the purpose ofthe presence ofindividuals atpolice stations, orthe fact that the parties concerned had not asked tobe able toleave, were considered tobe decisive factors. Thus, children who had spent two hours atapolice station inorder tobe questioned without being locked upwere not found tohave been deprived oftheir liberty (see X v. Germany, no. 8819/79, Commission decision of

9 Decision ofthe Constitutional Court ofthe Republic of Moldova no. 27 of 30.10.2018

regarding the control ofthe constitutionality ofsome provisions of Article 185 ofthe Code of Criminal Procedure (preventive arrest ifthe person has not admitted his guilt incommitting the imputed act) (point 91). 10 ECHR case Guzzardi v. Italy, of 06.11.1980 (§ 92). Available: https://hudoc.echr.coe.int/eng?i=001-57498. 11 ECHR Judgment Creangă v. Romania, of 23.02.2012 (§ 93). Available: https://hudoc.echr.coe.int/eng?i=001-109226. Cogito – Multidisciplinary Research Journal 139

19 March 1981); nor was anapplicant who had been taken toapolice station for humanitarian reasons, but who was free towalk about onthe premises and did not ask toleave (see Gueant v. Switzerland (dec.), no. 24722/94, Commission decision of 10 April 1995). Likewise, the Commission attached decisive weight tothe fact that anapplicant had never intended toleave the courtroom where hewas taking part inahearing (see E.G. v. Austria, no. 22715/93, Commission decision of 15 May 1996). The case-law has evolved since then asthe purpose ofmeasures bythe authorities’ depriving applicants oftheir liberty nolonger appears decisive for the Court’sassessment ofwhether there has infact been adeprivation ofliberty. To date, the Court has taken this into account only atalater stage ofits analysis, when examining the compatibility ofthe measure with Article 5 § 1 ofthe Convention (see Osypenko v. Ukraine, no. 4634/04, §§ 51-65, 9 November 2010; Salayev v. Azerbaijan, no. 40900/05, §§ 41-42, 9 November 2010; Iliya Stefanov v. Bulgaria, no. 65755/01, § 71, 22 May 2008; and Soare and Others v. Romania, no. 24329/02, § 234, 22 February 2011).” Personal freedom ispart offundamental human rights. Individual freedom iswidely enshrined innumerous provisions that the Constitution includes inart. 25. Thus, the Constitution recognizes aslegal the restriction ofthe inviolability ofthe person inthe cases provided bylaw. From the constitutional text wederive the following: 1) Individual freedom and security ofthe person are inviolable; 2) The search, detention orarrest ofaperson isallowed only inthe cases and within the procedure regulated bylaw; 3) The detention ofthe detained person must not exceed 72 hours; 4) The arrest ofthe person must not exceed 30 days, and intotal - 12 months; 5) The arrest and extension ofthe arrest ismade only onthe basis ofacourt order and can becontested byappeal inthe hierarchically superior court; 6) The person subject todetention orarrest must beimmediately informed ofthe grounds and reasons for the application ofthese coercive measures; 7) The accusation ofthe person ismade known inthe shortest possible time; 8) The reasons for detention orarrest are made known tothe person subject tothese measures only inthe presence ofalawyer, chosen bythe person orappointed exofficio; 9) The detained orarrested person should bereleased immediately incases where the reasons for the measures applied have disappeared.

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Regarding the observance ofthe term ofdeprivation ofliberty, the European Court, inthe case of Assenov and Others v. Bulgaria12, mentions that, „(…) itfalls inthe first place tothe national judicial authorities toensure that the pre-trial detention ofan accused person does not exceed areasonable time. To this end, they must examine all the circumstances arguing for and against the existence ofagenuine requirement ofpublic interest justifying, with due regard tothe principle ofthe presumption ofinnocence, adeparture from the rule ofrespect for individual liberty and set these out intheir decisions onthe applications for release (…)”. „In order for adeprivation ofliberty tobe inaccordance with the principle oflegality and toexclude the abusive application ofthis coercive measure contrary tothe provisions ofthe Convention, states have apositive obligation toestablish intheir domestic legislation rules regarding the conditions and grounds for the application ofarrest, aswell asother guarantees for persons who are subject tothese measures that limit the right tofreedom. In this context, the right not tobe arrested and detained inthe absence ofthe cases and conditions provided bythe national legislation clearly and precisely represents alegal guarantee against arbitrary state interference inindividual freedom, and one ofthe states’ obligations also involves the exercise ofacertain control ofcompliance with national law in

aspecific case”13.

„In addition tothe principle oflegality, Article 5 § 1 ofthe Convention enshrines the protection ofthe person against arbitrariness. If the illegal nature ofadeprivation ofliberty implies its lack ofconformity with domestic law, then the notion of „arbitrary” extends beyond lack ofconformity with national law, sothat adeprivation ofliberty may belawful under domestic law, being atthe same time arbitrary and therefore contrary tothe Convention (Creangă v. Romania [MC], no. 29226/03, § 84, 23 February

2012)”.14

Recognizing the social significance inthe fight against criminality, aswell asin the light ofconstitutionality, the criminal procedural law comes to

12 ECHR Judgment, Assenov and Others v. Bulgaria, of 28.10.1998 (§ 154). Available: https://hudoc.echr.coe.int/eng?i=001-58261 [accessed: 15.08.2022]. 13 Ministry of Justice ofthe Republic of Moldova, Government Agent, Study regarding the observance of Article 5 ofthe Convention for the Protection of Human Rights and Fundamental Freedoms bythe Republic of Moldova, Chișinău, 2018, p. 2. Available: https://www.justice.gov.md/public/files/agent_guvernamental/A5_MDA.pdf [accessed: 15.08.2022]. 14 Ministry of Justice ofthe Republic of Moldova, Government Agent, Study regarding the observance of Article 5 ofthe Convention for the Protection of Human Rights and Fundamental Freedoms bythe Republic of Moldova, Chișinău, 2018, p. 2. Available: https://www.justice.gov.md/public/files/agent_guvernamental/A5_MDA.pdf [accessed: 15.08.2022]. Cogito – Multidisciplinary Research Journal 141

guarantee the inviolability ofthe person, concretely regulating the grounds and reasons for his restriction. In order toprotect individuals from illegal prosecution orconviction, aswell asany other unreasonable restriction oftheir rights and freedoms, the inviolability ofthe person has been proclaimed asafundamental principle ofthe criminal process. The principle ofthe inviolability ofthe person, enshrined inart. 11 ofthe Code of Criminal Procedure, establishes the general conditions regarding the freedom and safety ofthe person, asfollows: 1. No person may bedetained onsuspicion ofcommitting acrime orarrested without the conditions and legal grounds indicated inthe Code of Criminal Procedure; 2. No one may bedeprived ofliberty, arrested, forcibly committed toamedical institution orsent toaspecial educational institution except based onawarrant oracourt order. The respective decisions ofthe court must bethorough and reasoned; 3. The person cannot bedetained for more than 72 hours until the court issues anarrest warrant; 4. Procedural actions that affect the inviolability ofthe person (for example, search, physical examination) can becarried out without the consent ofthe person orhis legal representative only under the conditions and grounds provided for inthe Code of Criminal Procedure; 5. The person deprived ofliberty (detained orarrested) must bekept inconditions that exclude threats tohis life and health, implicitly those that could affect the capacity ofthe person inquestion tomake decisions and express his position; 6. Any person illegally detained, kept indetention longer than the period provided for bythe Code of Criminal Procedure ordeprived ofliberty inany other way, aswell asillegally placed inamedical institution orillegally sent toaspecial educational institution, must bereleased immediately bythe court, prosecutor orcriminal prosecution body, implicitly also byother representatives ofthe bodies inwhich this person isdetained (for example, employees oftemporary detention centers).

At the same time, persons deprived ofliberty, pursuant toart. 11 ofthe Code of Criminal Procedure are provided with specific guarantees. These persons are immediately notified about: 1) The rights and grounds for detention orarrest; 2) The circumstances ofthe deed, for which they were detained orarrested; 3) The legal classification ofthe criminal act ofwhich itis suspected oraccused;

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The aspects indicated above are brought tothe attention ofthe person inthe language heunderstands, inthe presence ofachosen defender oralawyer who provides legal assistance guaranteed bythe state. These guarantees are implicitly regulated sothat the person can challenge the legality ofhis possession. In the ECHR case, X v. the United Kingdom15, the Court held that, “(…) the need for the applicant tobe apprised ofthe reasons for his recall necessarily followed inany event from paragraph 4 of Article 5 (art. 5-4): anyone entitled (…) totake proceedings tohave the lawfulness ofhis detention speedily decided cannot make effective use ofthat right unless heis promptly and adequately informed ofthe facts and legal authority relied onto deprive him ofhis liberty (…).” In the case Fox, Campbell and Hartley v. the United Kingdom16, the Court noted that, “(…) any person arrested must betold, insimple, nontechnical language that hecan understand, the essential legal and factual grounds for his arrest, soas tobe able, ifhe sees fit, toapply toacourt tochallenge its lawfulness (…). Whilst this information must beconveyed “promptly” (in French: “dans leplus court délai”) (…), itneed not berelated inits entirety bythe arresting officer atthe very moment ofthe arrest. Whether the content and promptness ofthe information conveyed were sufficient isto beassessed ineach case according toits special features.” At the same time, according toart. 11 paragraph (9) ofthe Code of Criminal Procedure, “During the criminal process, noone can bephysically ormentally mistreated, and any actions and methods that create danger tohuman life and health, even with his consent, are prohibited, aswell asto the environment. The detained, preventively arrested person cannot besubjected toviolence, threats ormethods that would affect his ability tomake decisions and express his opinions.” Thus, the principle ofthe inviolability ofthe person establishes the limits ofrestricting the freedom ofthe suspect and the accused during the criminal process. Restrictions are allowed for astrictly defined period, after which aperson must bereleased. The most important guarantee ofthe inviolability ofthe person inthe criminal process isthe provision ofthe right torestrict only the freedom ofthe court. Only for the short-term detention ofasuspect, the law does not require acourt order. This principle also ensures adequate conditions for keeping aperson inplaces ofdetention. Failure tocomply with this principle contradicts the Constitution and international legal acts inthe field ofhuman rights and freedoms.

15 ECHR Judgment, X v. the United Kingdom, of 05.11.1981 (§ 66). Available: https://hudoc.echr.coe.int/eng?i=001-57602 [accessed: 14.10.2022]. 16 ECHR Judgment, Fox, Campbell and Hartley v. the United Kingdom, of 30.08.1990 (§ 40). Available: https://hudoc.echr.coe.int/eng?i=001-57721 [accessed: 14.10.2022]. Cogito – Multidisciplinary Research Journal 143

In addition, the Code of Criminal Procedure regulates indetail the procedural order ofthe person’sdetention, the term ofdetention, the application ofpreventive detention, etc., being aguarantee ofthe limitation ofindividual freedom inthe criminal process only under the conditions ofthe law. The application ofpreventive detention, asit was mentioned before, isexclusively the competence ofthe court, which determines the appropriateness ofthis measure based onthe multilateral verification ofthe materials ofthe criminal file. The court orthe prosecuting body isobliged toimmediately release any person detained illegitimately. According toart. 78 ofthe previous Code, preventive arrest was authorized bythe prosecutor. Later, the arrest was made possible based onawarrant issued bythe prosecutor. The legislator through Laws ofthe Republic of Moldova no. 1579-XIV of February 27, 1998 and no. 95-XIV of July 16, 1998, starting from April 30, 1998, sent from the prosecutor’soffice tothe courts the examination ofthe measures regarding the application ofthe preventive measure - the arrest, the issuance ofthe arrest warrant and the extension ofthe detention period. The introduction ofjudicial control over this preventive measure results inabroader defense ofthe freedom and

safety ofthe person.17

Therefore, from the moment ofthe adoption ofthe Constitution and until the introduction ofthese amendments inthe Republic of Moldova, there have been serious violations ofthe human right tofreedom and personal safety. In the ECHR case, Pantea v. Romania, “The Court notes firstly that inthe instant case the prosecutor atthe Bihor County Court intervened initially atthe investigation stage, examining whether itwas necessary tocharge the applicant, directing that criminal proceedings should beopened against him and taking the decision toplace him inpre-trial detention. He subsequently acted asaprosecuting authority, formally charging the applicant and drawing upthe indictment onwhich the latter was committed for trial inthe Bihor County Court. However, hedid not act asprosecuting counsel before this court, although this would have been possible, since noprovision inthe Law onthe Administration of Justice would have specifically forbidden him from sodoing. Accordingly, itis appropriate toconsider whether, inthe circumstances ofthe case, he

17 Decision ofthe Plenum ofthe Supreme Court of Justice no. 29 of 09. 11. 1998 with

the changes introduced bythe Decision ofthe Plenary ofthe SCJ no. 17 of 22. 04. 2002 about the application bythe courts ofsome provisions ofthe criminal procedure legislation regarding preventive detention // Collection of Decisions ofthe Supreme Court of Justice (May 1974 – July 2002), p. 388. 144 Vol. XV, no. 4/December, 2023

provided the guarantees ofindependence and impartiality inherent inthe

concept of “officer” within the meaning of Article 5 § 3.”18

“Considering the above, the Court concludes that the prosecutor who ordered the preventive arrest ofthe applicant was not a “magistrate”, inthe sense of Article 5 paragraph 3 ofthe Convention, therefore, itmust beverified whether the legality ofthe measure ofpreventive arrest was subject tojudicial control and whether heintervened “immediately” (“aussitot”), inthe sense ofthe same provision ofthe Convention.”19 To understand the legal (constitutional) concept ofindividual freedom, one must start from the fact that individual freedom (like all human freedoms) isnot, cannot and must not beabsolute. This means that individual freedom isto berealized inthe coordinates imposed bythe constitutional order or, more broadly, bythe legal order, implicitly the criminal procedural order. “The Court also reiterates that where deprivation ofliberty isconcerned itis particularly important that the general principle oflegal certainty besatisfied. It istherefore essential that the conditions for deprivation ofliberty under domestic law beclearly defined and that the law itself beforeseeable inits application, sothat itmeets the standard of “lawfulness” set bythe Convention, astandard which requires that the law atissue besufficiently precise toallow the person – with appropriate advice ifneed be – toforesee, toadegree that isreasonable inthe circumstances, the consequences which agiven action may entail (see the Steel and Others v. the United Kingdom, 23 September 1998, § 54 Reports of Judgments and Decisions 1998 VII, and Holomiov v. Moldova, no. 30649/05, § 126, 7 November 2006).”20 “Violation ofthe legal order entitles the public authorities tointervention and oppression, which implies, ifnecessary, depending onthe seriousness ofthe violations, some measures that directly concern the freedom ofthe person, such as, for example, conducting searches,

detention, arrest, etc.”21

“Naturally, when adopting the decision regarding the application ofthe arrest, the national courts must apply the standards imposed bythe European Convention: legality ofdetention; existence ofareasonable suspicion; presence ofarisk; the proportionality ofthe application ofthe preventive measure and, finally, the possibility ofapplying alternative

18 ECHR Judgment, Pantea v. Romania, of 03.06.2003 (§ 237). Available: https://hudoc.echr.coe.int/eng?i=001-122720 [accessed: 05.10.2022]. 19 ECHR Decision, Pantea v. Romania, of 03.06.2003 (§ 237). 20 ECHR Judgment, Leva v. Moldova, of 15.12.2009 (§ 51). Available: https://hudoc.echr.coe.int/eng?i=001-144486 [accessed: 21.05.2022]. 21 Ion, Creangă, Individual liberty and security ofthe person - the most expressive human rights. In: The Ombudsman review, nr. 1–3, 2001, p. 16. Cogito – Multidisciplinary Research Journal 145

measures for detention (see the DCC no. 3 of 23 February 2016, §§ 62 and 63).”22 In the ECHR case, Buzadji v. the Republic of Moldova23, the Court noted

that, “In Storck v. Germany (no. 61603/00, § 75, ECHR 2005-V) the Court held that the right toliberty istoo important ina “democratic society” within the meaning ofthe Convention for aperson tolose the benefit ofthe protection ofthe Convention for the sole reason that hegives himself upto betaken into detention. Detention might violate Article 5 even though the person concerned might have agreed toit (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12).” Respectively, even ifthe person agrees that preventive arrest orhouse arrest could beapplied tohim, the European Court condemns this aspirant bythe fact that hedoes not provide the person with effective guarantees ofthe right tofreedom and safety. In the following, wewill refer tothe procedural-criminal rules that specifically regulate the deprivation ofliberty ofthe person, which wewill analyze through the prism oftheir correspondence tointernational standards and constitutional norms. In accordance with Art. 165 paragraph (1) ofthe Code of Criminal Procedure, “Deprivation ofaperson’sliberty, for ashort period oftime, but not more than 72 hours, constitutes detention.” This procedural norm corresponds tothe constitutional rigors. As far as ECHR jurisprudence isconcerned, itdoes not establish aspecific term for detention. At the same time, the Moldovan cases examined bythe European Court regarding art. 5 ofthe ECHR, denotes that the Court did not expose itself tothe detention period. The determination ofthis term remains atthe discretion ofthe states. In divers legislations, retention isprovided for differently. For example, in Romania detention cannot exceed 24 hours. “The French regulation sets the initial term ofdetention at 24 hours with the admission ofits simple extension byanother 24 hours and with the existence for special cases ofmore extensive extensions, such asthe field ofcrimes against the state, where the extension can goup to 6 days innormal conditions and after

12 days ifastate ofemergency has been declared.”24

However, the European Court tells usabout detention asdeprivation ofliberty for avery short period oftime. For example, inthe ECHR case, Foka v. Turkey25, the Court “(…) Even ifit isnot excluded that Article 5 § 1 may

22 Decision ofthe Constitutional Court ofthe Republic of Moldova no. 27 of 30.10.2018

(point 75). 23 ECHR Judgment, Buzadji v. the Republic of Moldova, of 05.07.2016 (§ 107). Available: https://hudoc.echr.coe.int/eng?i=001-164928. 24 Nicolae, Volonciu, Treaty oncriminal procedure, General part, Volume I, Paidea, Bucharest. 1996, p. 413. 25 ECHR Judgment, Foka v. Turkey, of 24.06.2008 (§ 75). Available: https://hudoc.echr.coe.int/eng?i=001-87175. 146 Vol. XV, no. 4/December, 2023

apply todeprivations ofliberty ofavery short length (see X v. Germany, no. 8819/79, Commission decision of 19 March 1981, Decisions and Reports (DR) 24, pp. 158, 161) (…).” Also, inthat case, the ECHR notes that, “(…) the Convention organs’ case-law shows that this provision was considered not applicable incases where the applicants’ stay inapolice station lasted only few hours and did not gobeyond the time strictly necessary toaccomplish certain formalities (see, for instance, Guenat v. Switzerland, no. 24722/94, Commission decision of 10 April 1995, Decisions and Reports (DR) 81, pp. 130, 134, and X v. Germany, decision cited above).” Also, the detention period ofup to 72 hours must becalculated from the moment the person isdetained defacto and not deiure. “De facto detention - isacriminal procedural action undertaken bya Police employee, which consists inthe physical deprivation ofliberty ofthe person suspected oraccused ofcommitting acrime, until the arrest report isdrawn up, aperiod that cannot exceed 3 hours. Persons for whom afinal prison sentence has been pronounced orfor whom anarrest warrant has been issued may bedetained defacto. Detention bylaw - isacriminal procedural action carried out bythe criminal prosecution body which is

manifested bydrawing upthe minutes ofdetention.”26

The Code of Criminal Procedure establishes the circle ofpersons inrespect ofwhom the withholding may beapplied. Thus, inaccordance with the provisions ofart. 165 paragraph (2) ofthe Code of Criminal Procedure, “There may besubject todetention: 1) persons suspected ofcommitting acrime for which the law provides for aprison sentence ofmore than one year ifthere isareasonable suspicion that the person has committed this crime; 2) the accused, the defendant who violates the conditions ofthe noncustodial preventive measures taken against him, aswell asthe protection ordinance inthe case offamily violence, ifthe crime ispunishable byimprisonment; 3) convicts inrespect ofwhom, decisions have been adopted canceling the conviction with conditional suspension ofthe execution ofthe sentence orcanceling the conditional release from the sentence before the term; 4) the persons inrespect ofwhom the decision ofacquittal was annulled and the decision tosentence toimprisonment was adopted, aswell asthe persons who evade the execution ofthe sentence toimprisonment;

26 Point 1) Chapter V, Annex no. 1 tothe Order ofthe head ofthe General Police

Inspectorate no. 129 of 27.04.2020, Regarding the approval ofthe Standard Operating Procedures regarding the detention, escort, transportation and placement ofthe detained person inthe Police Detention Center. Cogito – Multidisciplinary Research Journal 147

5) people who commit anaudience crime; 6) the persons tobe charged, ifthe whereabouts ofthe person isnot known orif hedid not appear without good reason and did not inform the body that summoned him about the impossibility ofhis appearance; 7) persons subject toextradition.”

The list ofmentioned persons isan exhaustive one. At the same time, the criminal procedural law establishes the procedural acts based onwhich detention can take place, namely: minutes, ordinance and the judgment ofthe court. The respective acts and the cases oftheir preparation are regulated inart. 165 paragraph (3) ofthe Code of Criminal Procedure. From the analysis ofart. 165 paragraph (2) ofthe Code of Criminal Procedure weunderstand that this criminal procedural norm establishes, inaddition tothe persons inrespect ofwhom detention can beapplied, concrete conditions regarding the application ofthis coercive procedural measure. The first condition, established inart. 165 paragraph (2) point 1) ofthe Code of Criminal Procedure and inart. 166 paragraph (1) ofthe Code of Criminal Procedure, isthat the crime for which the person issuspected must have acriminal penalty ofimprisonment ofmore than one year. If the person issuspected ofcommitting acrime for which the criminal law establishes the penalty ofup toone year inprison, afine, unpaid community service orother categories ofmain penalties, this person cannot bedetained under the terms ofthe criminal procedural law. The second condition, established bythe same rules, isthe existence ofareasonable suspicion that the person has committed the crime. According toart. 6 point 4/3) ofthe Code of Criminal Procedure, “reasonable uncertainty – suspicion resulting from the existence offacts and/orinformation that would convince anobjective observer that acrime attributable toacertain person/persons has been committed oris being prepared tobe committed and that there are noother facts and/orinformation that remove the criminal nature ofthe fact orprove the person’snon-involvement.” At the same time, the jurisprudence ofthe European Court, inseveral cases, points toreasonable suspicion, which issimilar tothe notion inour domestic law. For example, inthe ECHR case, Stepuleac v. Moldova27, “The Court reiterates that “the 'reasonableness' ofthe suspicion onwhich anarrest must bebased forms anessential part ofthe safeguard against arbitrary arrest and detention which islaid down in Article 5 § 1 (c) ofthe Convention. Having a 'reasonable suspicion' presupposes the existence of

27 ECHR Judgment, Stepuleac v. Moldova, of 06.11.2007 (§ 68). Available: https://hudoc.echr.coe.int/eng?i=001-112790 [accessed: 13.04.2022]. 148 Vol. XV, no. 4/December, 2023

facts orinformation which would satisfy anobjective observer that the person concerned may have committed the offence. What may beregarded as 'reasonable' will however depend upon all the circumstances. While special circumstances may affect the extent towhich the authorities can disclose information, even “the exigencies ofdealing with terrorist crime cannot justify stretching the notion of 'reasonableness' tothe point where the essence ofthe safeguard secured by Article 5 § 1 isimpaired” (…).” The

same aspects were also observed inthe case of Leva v. Moldova.28

In practical terms, when judicial bodies are toestablish “reasonable suspicion”, they must take into account acomplex ofinformation and evidence. For example, the criminal investigation body notified bythe investigative bodies must analyze the content ofthe notification inrelation tothe investigative documents (hearing ofthe victim, witnesses, technicalscientific ormedico-legal findings, etc.). Sometimes only the victim’scomplaint issufficient when the reasonable suspicion and circumstances ofthe case emerge from its content (for example, the victim declares the fact ofthe crime and its author). In other words, there must besufficient and concrete evidence orinformation regarding the act, firstly, and the alleged perpetrator, secondly. At the same time, the criminal prosecution body must establish the non-existence ofcircumstances that exclude criminal prosecution orthat remove the criminal character ofthe deed. The identity ofthe perpetrator isnot required tostart the criminal investigation, but when itis decided toapply detention, his identity ismandatory, unless the person isdetained for aperiod that cannot exceed 6 hours, inorder toestablish his identity (art. 166 paragraph (5/1) ofthe Code of Criminal Procedure). The jurisprudence ofthe Strasbourg Court comes insupport ofthe invoked desiderata. For example, inthe case of Ignatenco v. Moldova, “The Court observes that the applicant was arrested onthe basis of “operative information”, (…). The Court also notes that this “operational information” was confirmed by S.F.’scriminal complaint, which would besufficient tojustify the applicant’sarrest under national law.” In other words, there was operative information, which, according toits content, corroborated with the content ofthe complaint submitted bythe victim. In the ECHR case, Labita v. Italy29, the Court noted that, “While asuspect may validly bedetained atthe beginning ofproceedings onthe basis ofstatements bypentiti, such statements necessarily become less

28 ECHR Judgment, Leva v. Moldova, of 15.12.2009 (§ 50). Available: https://hudoc.echr.coe.int/eng?i=001-144486 [accessed: 21.05.2022]. 29 ECHR Judgment, Labita v. Italy, of 06.04.2000 (§ 159). Available: https://hudoc.echr.coe.int/eng?i=001-58559 [accessed: 06.10.2022]. Cogito – Multidisciplinary Research Journal 149

relevant with the passage oftime, especially where nofurther evidence isuncovered during the course ofthe investigation.” The analysis ofthe respective case shows that the suspect can also bedetained based oninformation orstatements ofinformants. However, that information will have noforce unless itis corroborated and supported byother evidence. In some specific cases (for example, those ofaterrorist nature), the Court took into account only operational information, i.e., information obtained

from informants. In the ECHR case, O' Hora v. the United Kingdom30, the

Court held that, “(…) The intelligence derived from four informants who had proved reliable inthe past and had provided information leading toseizures ofexplosives orfirearms and toprosecutions. None ofthe informants had acriminal record. The information given bythese four informants was consistent, inthat all gave the same names asbeing involved, and independent, inthat none was aware ofthe existence ofthe others and each gave the information atseparate meetings with police officers.” The analysis ofthe respective case shows that, even incomplicated cases, such asthose ofaterrorist nature, the European Court supported the Government’sposition regarding the application ofthe detention offour suspects only based onoperative information. However, the Court correctly retained and analyzed the content ofthis information and its corroboration with other operational information received from other informants, which according tothe content were the same. In addition, the informants did not know each other nor were they aware ofthe existence ofthe information given byothers. Thus, both the domestic judicial bodies and the Court took into account all these circumstances and that they could not befabricated orthe information could not bewrong, coming from different sources with the same content. It should benoted that, for the application ofthe coercion measure ofdetention, there must begrounds and reasons, not just the reasonable suspicion ofthe commission ofthe crime. Thus, the criminal procedural law, through the prism ofart. 166, specifically establishes the grounds for the

application ofwithholding, namely:31

1) ifhe was caught inflagrant offense, inother words, the crime was discovered atthe time ofits commission orthe crime whose perpetrator, immediately after its commission, isfollowed bythe victim, byeyewitnesses orother persons oris caught close tothe place ofcommission ofthe crime with weapons, tools orany other objects that would give grounds tosuppose him aparticipant inthe crime (art. 513 ofthe Code of Criminal Procedure).

30 ECHR Judgment, O' Hora v. the United Kingdom, of 16.10.2001 (§ 10, 21, 32, 40). Available: https://hudoc.echr.coe.int/eng?i=001-59721 [accessed: 06.10.2022].

31 Art. 166 paragraph (1) points 1)-5) ofthe Code of Criminal Procedure ofthe Republic

of Moldova. 150 Vol. XV, no. 4/December, 2023

This ground will beproven through various procedural actions, such as: onsite research, victim orwitness statements, objects lifting, etc.; 2) ifthe eyewitness, including the victim, directly indicates that this particular person committed the crime. The statements ofthe victim and/orthe witness prove this basis, who will point directly tothe person who committed the crime, that is, will declare the identity ofthe perpetrator orhis particular signs bywhich hecan berecognized. In the latter case, the criminal investigation body, inaddition tothe hearing, will also perform the presentation for recognition (this ground for detention will beapplied only ifthe witness and/orvictim will recognize the perpetrator). In the case Stepuleac v. Moldova32, the Court held that, “More disturbingly, itfollows from the statements ofthe two alleged victims that one ofthe complaints was fabricated and the investigating authority did not verify with him whether hehad indeed made that complaint, while the other was the result ofthe direct influence ofofficer O., the same person who registered the first complaint against the applicant (see paragraph 7 above; see also Sultan Öner and Others v. Turkey, no. 73792/01, §§ 121- 123, 17 October 2006). This renders both complaints irrelevant for the purposes ofdetermining the existence ofareasonable suspicion that the applicant had committed acrime, while noother reason for his arrest was cited (…).” In the ECHR case, Leva v. Moldova33, “The Court notes that under Article 166 ofthe Code of Criminal Procedure aperson suspected ofacrime could bearrested only ifcertain requirements were met, inparticular when there are grounds for arrest. One ofthe grounds for arrest is “ifan eyewitness, including the victim, points directly athim ashaving committed the crime” (…). The arresting officer relied only onthat ground inthe minutes ofthe applicants’ arrest (…). However, aslater established bythe investigating judge, nosuch witness statements had been included inthe case file atthe hearing of 8 November 2004 (…).” 3) ifobvious traces ofthe crime are discovered onthe person’sbody orclothes, attheir residence orin their transport unit. The respective basis will beapplied ifthe traces ofthe crime will bedetected following the onsite investigation, body orhome search, collection ofobjects and documents, physical examination orexamination ofthe objects detected and seized, technical-scientific ormedico-legal findings, expertise, hearings; 4) iftraces left bythis person are discovered atthe crime scene. The respective theme will beproven through on-site research, technical-

32 ECHR Judgment, Stepuleac v. Moldova, of 06.11.2007 (§ 77). 33 ECHR Judgment, Leva v. Moldova, of 15.12.2009 (§ 52). Cogito – Multidisciplinary Research Journal 151

scientific ormedico-legal findings, expertise, hearings, presentation for recognition ofobjects and documents; 5) ifhe tried tohide orhis identity could not beascertained. The basis given will beproven through hearings, including oflaw enforcement officers (for example, investigative officers), searches, collection ofdocuments and records, presentation for recognition, information from local public authorities orthose provided bythe Public Services Agency.

In the ECHR case, Becciev v. Moldova34, the Court held that, “The danger ofan accused’sabsconding cannot begauged solely onthe basis ofthe severity ofthe sentence risked. It must beassessed with reference toanumber ofother relevant factors, which may either confirm the existence ofadanger ofabsconding ormake itappear soslight that itcannot justify detention pending trial (Yağcı and Sargın v. Turkey). The risk ofabsconding has tobe assessed inlight ofthe factors relating tothe person’scharacter, his morals, home, occupation, assets, family ties and all kinds oflinks with the country inwhich heis prosecuted. The expectation ofheavy sentence and the weight ofevidence may berelevant but isnot assuch decisive and the possibility ofobtaining guarantees may have tobe used tooffset any risk (Neumeister v. Austria, judgment of 27 June 1968, Series A no. 8, § 10). 1) It will prevent the truth from being discovered. In the respective case, the criminal investigation body and the prosecutor must have sufficient information regarding this ground, including the statements ofthe victim orthe injured party, the witnesses, the risk that hewill hide the evidence ordestroy it, etc. In the ECHR case, Becciev v. Moldova35, the Court held that, “The danger ofthe accused’shindering the proper conduct ofthe proceedings cannot berelied upon inabstracto, ithas tobe supported byfactual evidence (Trzaska v. Poland, no. 25792/94, § 65, 11 July 2000).” “The person’srefusal todisclose tothe prosecution the names ofwitnesses orthe location ofevidence that could prove his innocence cannot beinvoked asareason for arrest. This not only cannot constitute grounds for arresting aperson, but also represents aviolation ofan accused’sright toremain silent, guaranteed by Article 6 ofthe ECHR (Decision Turcan and Turcan v. Moldova, 23 October 2007, § 51).”36

34 ECHR Judgment, Becciev v. Moldova, of 04.10.2005 (§ 58). Available: https://hudoc.echr.coe.int/eng?i=001-112622 [accessed: 14.07.2022]. 35 ECHR Judgment, Becciev v. Moldova, of 04.10.2005 (§ 59). 36 Decision ofthe Plenum ofthe Supreme Court of Justice ofthe Republic of Moldova

no. 01 of 15.04.2015 onthe application bythe courts ofsome provisions ofthe criminal procedure legislation regarding preventive arrest and house arrest (point 9). 152 Vol. XV, no. 4/December, 2023

In the ECHR case, Cebotari v. Moldova37, “(…) The Court stresses inthis connection that inthe absence ofareasonable suspicion arrest ordetention ofan individual must never beimposed for the purpose ofmaking him confess ortestify against others orto elicit facts orinformation which may serve toground areasonable suspicion against him.” “Invoking the risk ofobstructing the proper course ofjustice can only take place inthe initial phase ofthe proceedings (Judgment Jarzynski v. Poland, 4 October 2005, § 43), because witnesses can beheard and relevant material evidence can becollected. The judges will check for each one ifthis argument isinvoked for the arrest, for what reason the evidence was not accumulated until the application was filed and how convincing these

reasons are.”38

2) Will commit other crimes. The criminal investigation body and the prosecutor will take into account the presence ofcriminal antecedents and other information deriving from statements, special investigative measures and others. In the ECHR case, Clooth v. Belgium39, “The Court considers that the seriousness ofthe charge may lead the judicial authorities toplace and leave asuspect inpreventive detention inorder toprevent any attempt tocommit further crimes. It ishowever necessary, among other conditions, that the danger beplausible and the measure appropriate, inthe light ofthe circumstances ofthe case and inparticular the past history and personality ofthe person concerned. In the present case, the offenses which gave rise tothe applicant’sprevious convictions were not comparable, either innature ordegree ofgravity, with the charges preferred against him inthe contested proceedings (…).”

Thus, inthe ECHR case, Labita v. Italy40, the Court determined that,

“(…), detention ceases tobe justified (…) “onthe day onwhich the charge isdetermined” (…), “some delay incarrying out adecision torelease adetainee isoften inevitable, although itmust bekept toaminimum” (see the Giulia Manzoni judgment cited above, p. 1191, § 25 infine). For example, there may besituations inwhich the execution date ofacourt decision orthe prosecutor’sdecision torelease the suspect, the accused orthe defendant occurs atnight. Respectively, inthis case, the prison workers

37 ECHR Judgment, Cebotari v. Moldova, of 13.11.2007 (§ 48). Available: https://hudoc.echr.coe.int/eng?i=001-112794 [accessed: 14.07.2022].

38 Decision ofthe Plenum ofthe Supreme Court of Justice ofthe Republic of Moldova

no. 01 of 15.04.2015 onthe application bythe courts ofsome provisions ofthe criminal procedure legislation regarding preventive arrest and house arrest (point 9). 39 ECHR Judgment, Clooth v. Belgium, of 12.12.1992 (§ 50). Available: https://hudoc.echr.coe.int/eng?i=001-57699 [accessed: 14.07.2022]. 40 ECHR Judgment, Labita v. Italy, of 06.04.2000 (§ 171). Available: https://hudoc.echr.coe.int/eng?i=001-58559 [accessed: 06.08.2022]. Cogito – Multidisciplinary Research Journal 153

may not release him immediately, because the respective confirmations are required from the responsible persons, who may beabsent atthat time inthe interest ofwork. The Court admits such situations, only itindicates that the respective term must bereduced toaminimum.” In the case Calmanovici v. Romania41, “The Court notes that the parties agree that the judgment of September 20, 2005 ordering the applicant’sparole became final and executory on September 26, 2005, atmidnight. The Court recalls that, inexamining the period ofexecution ofarelease decision, itdid not ignore periods such asevening and night inother cases where the conditions required for the applicant'srelease were met atatime when the prison employee responsible for certain operations necessary inthis goal was absent due tohis work schedule (see Labita, cited above, §§ 24 and 172, and Rashid versus Bulgaria, no. 47905/99, §§ 31-32 and 79-80, 18 January 2007). (…) the notification ofthe penitentiary regarding the final nature ofthe decision, had tobe carried out bythe court offirst instance, byaclerk oradelegated judge until closing time, the Court nevertheless considers that, even ifsuch adelay can beconsidered unavoidable, itwas upto the authorities toexercise particular diligence on 27 September 2005 tominimize the time needed torelease the applicant, who had already spent another night inprison.” From the analysis of ECHR jurisprudence, wefind that, when the person must bereleased, for various reasons, but this fact cannot take place during certain periods oftime (for example, during the night oroutside working hours), orfor bureaucratic reasons (confirmation ofthe act ofrelease ofthe person - the prosecutor’sorder orthe conclusion ofthe investigating judge, oreven anacquittal orconviction without deprivation ofliberty), the person isdetained until the impediments disappear and immediately released. Those obstacles must bereduced toaminimum. For example, ifthe release time isat night and the responsible person isabsent, when the last one comes towork, the person will beimmediately released. In accordance with art. 166 paragraph (6) ofthe Code of Criminal Procedure, “The term provided for inparagraph (5) flows from the moment ofdeprivation ofthe person’sliberty. In that term isincluded the time for carrying out the procedural actions immediately following the moment ofdepriving the person ofhis liberty until the preparation ofthe report ofdetention, inthe situation where the person was effectively constrained inhis freedom ofmovement during the execution ofthese measures.” For example, inthe situation where the criminal investigation body searches the person who isalleged tohave committed the crime and there are stolen goods, the term ofthe search must beincluded inthe term

41 ECHR Judgment, Calmanovici v. Romania, of 01.07.2008 (§ 77). Available: https://hudoc.echr.coe.int/eng?i=001-87195 [accessed: 06.08.2022]. 154 Vol. XV, no. 4/December, 2023

ofdetention, because the person’sright toleave the home orto move freely has been restricted. At the moment when the search lasted 5 hours, and after that the person was escorted tothe headquarters ofthe criminal investigation body and was detained bylaw (preparation ofthe minutes ofdetention), weconsider that this isaviolation ofthe inviolability ofthe person and art. 5 ofthe ECHR. Or, the respective report must bedrawn upwithin 3 hours ofthe defacto deprivation ofliberty. According toart. 166 paragraph (7) ofthe Code of Criminal Procedure, “The person detained under the conditions ofthis article must bebrought assoon aspossible, from the moment ofdetention, before the investigating judge tobe examined the question ofthe arrest or, asthe case may be, ofhis release.” This procedural norm corresponds tothe rigors ofart. 5 § 3 ofthe ECHR. In the ECHR case, Labita v. Italy42, the Court “reiterates that the list ofexceptions tothe right toliberty secured in Article 5 § 1 isan exhaustive one and only anarrow interpretation ofthose exceptions isconsistent with the aim ofthat provision, namely toensure that noone isarbitrarily deprived ofhis orher liberty (see, among other authorities, the Giulia Manzoni v. Italy judgment of 1 July 1997, Reports 1997-IV, p. 1191, § 25, and the Quinn v. France judgment of 22 March 1995, Series A no. 311, pp. 17-18, § 42).” In the case Pantea v. Romania43, “The Court reiterates that Article 5 § 3 ofthe Convention requires that judicial review take place rapidly, the promptness ineach case having tobe assessed according toits special features (see De Jong, Baljet and Van den Brink, cited above, pp. 24-25, §§ 51-52). However, the scope offlexibility ininterpreting and applying the notion ofpromptness isvery limited (see Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145-B, pp. 33-34, § 62), asprompt judicial review ofdetention isalso animportant safeguard against ill-treatment ofthe individual (see Aksoy, cited above, p. 2282, § 76).” Art. 166 paragraph (7) ofthe Code of Criminal Procedure, also regulates the fact that, “The prosecutor, until the expiration ofthe term provided for inart. 308 paragraph (12), will issue anorder for the release ofthe detained person or, asthe case may be, will submit the arrest motion tothe investigating judge.” The release ofthe detained person takes place inthe cases provided for inart. 174 paragraph (1) ofthe Code of Criminal Procedure, namely: 1) credible reasons tosuspect that the detained person committed the crime were not confirmed;

42 ECHR Judgment, Labita v. Italy, of 06.04.2000 (§ 170). 43 ECHR Judgment, Pantea v. Romania, of 03.06.2003 (§ 240). Available: https://hudoc.echr.coe.int/eng?i=001-65679 [18.09.2022]. Cogito – Multidisciplinary Research Journal 155

2) there are nogrounds tocontinue depriving the person ofhis liberty; 3) the criminal investigation body found anessential violation ofthe law when the person was detained; 4) the retention period has expired; 5) the court did not authorize the preventive arrest ofthe person.

In the ECHR case, Cristina Boicenco v. Moldova44, the Court “reiterates that the illegal detention ofaperson represents atotal denial ofthe fundamental guarantees provided for in Article 5 ofthe Convention and anextremely serious violation ofthis provision. Failure torecord data such asdate and time ofarrest, place ofdetention, name ofdetained person and reasons for detention, aswell asthe identity ofthe official responsible person, isaviolation ofthe requirements regarding the legality ofdetention and the very purpose of Article 5 ofthe Convention (Kurt v. Turquie, decision of 25 May 1998, § 125, and Çakıcı v. Turquie [GC], no. 23657/94, §§ 104 and 105, ECHR 1999-IV).” A first guarantee regulated indomestic legislation isthe one provided for inart. 167 paragraph (2) ofthe Code of Criminal Procedure, inother words, “The reasons for the immediate detention are made known tothe detained person only inthe presence ofan elected defender oraduty lawyer who provides emergency legal assistance.” This norm corresponds toart. 5 § 2 ofthe ECHR.

In the ECHR case, Khlaifia and Others v. Italy45, the Court held that,

“Paragraph 2 of Article 5 lays down anelementary safeguard: any person who has been arrested should know why heis being deprived ofhis liberty. This provision isan integral part ofthe scheme ofprotection afforded by Article 5: any person who has been arrested must betold, insimple, nontechnical language that hecan understand, the essential legal and factual grounds for his deprivation ofliberty, soas tobe able toapply toacourt tochallenge its lawfulness inaccordance with paragraph 4 (…).” The detained person must beinformed ofthe reasons for his deprivation ofliberty immediately, i.e., inthe shortest possible time. In the

case Fox, Campbell and Hartley v. the United Kingdom46, the Court noted

that, “(…) this information must beconveyed "promptly" (in French: “dans leplus court délai”).”

44 ECHR Judgment, Cristina Boicenco v. Moldova, of 27.11.2011 (§ 43). Available: https://hudoc.echr.coe.int/eng?i=001-124080 [accessed: 16.09.2022]. 45 ECHR Judgment, Khlaifia and Others v. Italy, of 15.12.2016 (§ 115). Available: https://hudoc.echr.coe.int/fre?i=001-170054 [accessed: 17.09.2022]. 46 ECHR Judgment, Fox, Campbell and Hartley v. the United Kingdom, of 30.08.1990 (§ 40). Available: https://hudoc.echr.coe.int/eng?i=001-57721 [accessed: 14.10.2022]. 156 Vol. XV, no. 4/December, 2023

There are situations when the detained person, for various objective reasons (for example, mental development, orlimited exercise capacity, etc.), does not understand the reasons for the detention orlimitation ofhis rights. In such situations, the judicial bodies must inform the lawyers, legal representatives orother persons about them.

In the ECHR case, Z.H. v. Hungary47, the European Court found that,

“(…) ifthe condition ofaperson with intellectual disability isnot given due consideration inthis process, itcannot besaid that hewas provided with the requisite information enabling him tomake effective and intelligent use ofthe right ensured by Article 5 § 4 tochallenge the lawfulness ofdetention unless alawyer oranother authorized person was informed inhis stead (see X. v. the United Kingdom, no. 6998/75, Commission’sreport of 16 July 1980, § 111, Series B no. 41).” Art. 167 ofthe Code of Criminal Procedure also grants other guarantees

for detained persons, namely 48:

- The criminal investigation body isobliged toensure conditions for the confidential meeting between the detained person and his defense counsel until the first hearing. That provision guarantees the effective right todefense; - In the case ofthe detention ofthe minor, the person carrying out the criminal investigation isobliged tocommunicate immediately this tothe prosecutor and the parents ofthe minor orthe persons who replace them. This provision grants additional guarantees tothe minor deprived ofliberty, asthe parents must know about the circumstances ofthe act, the location ofthe minor and other circumstances, implicitly inorder toget involved assoon aspossible inthe process asalegal representative todefend the interests ofthe minor; - The detained person will beheard inaccordance with the provisions ofart. 103 and 104, ifhe agrees tobe heard. In the ECHR case, Samoilă and Cionca v. Romania49, the Court held that, “A hearing isrequired for persons detained under the conditions set out in Article 5 § 1 c) (Kampanis versus Greece, decision of 13 July 1995, Series A no. 318-B, p. 45, § 47). In particular, aprocess involving anappeal against detention orits extension must guarantee equality ofarms between the parties, the prosecutor and the prisoner (Nikolova versus Bulgaria [GC], no. 31195/96, § 58, ECHR 1999-II and Włoch versus Poland, no. 27785/95, § 126, ECHR 2000-XI).”;

47 ECHR Judgment, Z.H. v. Hungary, of 08.11.2012 (§ 41). Available: https://hudoc.echr.coe.int/fre?i=001-114276 [accessed: 14.10.2022].

48 Art. 167 paragraphs (2/1)-(6) ofthe Code of Criminal Procedure. 49 ECHR Judgment, Samoilă and Cionca v. Romania, of 04.03.2008 (§ 68). Available: https://hudoc.echr.coe.int/eng?i=001-85326 [accessed: 14.10.2022]. Cogito – Multidisciplinary Research Journal 157

- The person who carries out the detention has the right tosubject the detained person toaphysical search under the conditions ofart. 130 ofthe Code of Criminal Procedure. At the time ofdetention, the respective search isnot authorized. In the same way, the search ofpersons inthe home where the search iscarried out isalso not authorized. In the other cases, unless the person gives consent, unforced byanyone, the body search will beauthorized; - If during the apprehension the presence ofinjuries orbodily injuries ofthe detained person isestablished, the person carrying out the criminal investigation will immediately inform the prosecutor, who will immediately order the performance ofamedico-legal examination or, asthe case may be, amedico-legal expertise inorder todetermine the origin and nature ofthe injuries orlesions. This provision provides guarantees regarding the inadmissibility oftorture, which derives from the content ofart. 11 paragraph (9) ofthe Code of Criminal Procedure. After the arrest ofthe person, itwill bedecided whether itis the case ofthe application ofcoercive procedural measures depriving ofliberty orthe release ofthe detained person. If itis decided toapply the arrest, the prosecutor, having the grounds indicated inart. 176 ofthe Code of Criminal Procedure, will issue anordinance pursuant toart. 177 ofthe Code of Criminal Procedure, and then will submit areasoned application tothe investigating judge (art. 308 ofthe Code of Criminal Procedure). “Although, from aprocedural point ofview, detention isdifferent from preventive arrest, according to ECHR jurisprudence, both criminal detention isadeprivation ofliberty (see decision Străisteanu and Others v. Moldova, April 7, 2009, §§85-88, or Lazoroski v. Macedonia, October 8, 2009, §44), aswell aspreventive arrest orhouse arrest (see the decision Mancini v. Italy, no. 44955/98, §17; or Nikolova v. Bulgaria (no. 2), no. 40896/98, §§60 and 74, 30 September 2004). Thus, the guarantees established against anillegal deprivation ofliberty are equally attributed to

both procedural coercion actions.”50

As for the content and procedure ofexamining the approach regarding

the application ofpreventive detention, wehave previously explained51,

therefore wewill not refer here.

In the ECHR case, Brogan and Others v. the United Kingdom52, the

Court held that, “(…) whether an “arrest” or “detention” can beregarded

50 Tudor, Osoianu, Mihaela, Vidaicu,. Rights of Suspects in Police Detention: A Research Conclusion, Chisinau, Cartier Juridic, 2015, p. 30. 51 Tudor,Osoianu, Dinu, Ostavciuc, The judicial control ofcriminal proceedings, Chisinău, Military Book, 2021, p. 108-119. 52 ECHR Judgment, Brogan and Others v. the United Kingdom, of 29.11.1988 (§ 65). Available: https://hudoc.echr.coe.int/eng?i=001-57450 [accessed: 15.09.2022]. 158 Vol. XV, no. 4/December, 2023

as “lawful” has tobe determined inthe light not only ofdomestic law, but also ofthe text ofthe Convention, the general principles embodied therein and the aim ofthe restrictions permitted by Article 5 paragraph 1 (art. 5- 1) (see notably the above-mentioned Weeks judgment, Series A no. 114, p. 28, paragraph 57). By virtue ofparagraph 4 of Article 5 (art. 5-4), arrested ordetained persons are entitled toareview bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, inthe sense ofthe Convention, oftheir deprivation ofliberty.” “Generalizing the jurisprudence ofthe European Court inthe matter, in Decision no. 3 of February 23, 2016, the Constitutional Court established that there are grounds for depriving the person suspected ofcommitting acrime ofthe risks: 1) his evasion ofthe trial; 2) affecting the performance ofjustice; 3) commission ofother crimes; 4) production ofpublic disorders. These reasons must not becombined, the existence ofasingle reason being sufficient for the application ofpreventive detention. Risks must bedemonstrated byevidence based onfacts (§§ 73, 93, 94).”53 Regarding the stated risks, wenote that they correspond tothe grounds for applying the detention; therefore, they will not berepeated. The exception isonly the last risk – the production ofpublic disorders. “The fact that there are suspicions that aperson has committed aserious crime does not automatically mean that hemust bearrested. The European Court has accepted that, due tothe particular gravity and society’sreaction tothe resonance ofthis crime, certain crimes can generate public disorder, which could justify preventive arrest. However, this risk must beimminent and can only beinvoked inexceptional circumstances, only for acertain period oftime and only ifevidence has been presented toprove that releasing the person will disturb public order. The invocation ofthe risk that the release ofthe person will cause public disorder isonly valid during the period ofthe risk ofsocial disturbances (see decision Tiron v. Romania, 7 April 2009, § 41-42; decision Letellier v. France, 26 June 1991, § 51). The risk that the person’srelease will cause public disorder should not depend solely onthe nature ofthe offense ofwhich the person isaccused. Therefore, ineach specific case, the prosecutor must present evidence regarding the risk ofpublic disorder, its nature, extent and duration. The judge must take into account the scale ofthe disorder and the obligation ofthe authorities toensure public order. The

53 Decision ofthe Constitutional Court ofthe Republic of Moldova no. 15 of 28.

05.2020 regarding the exception ofunconstitutionality ofarticle 191 paragraph (2) ofthe Code of Criminal Procedure (provisional release under judicial control [2]) (point 50). Cogito – Multidisciplinary Research Journal 159

mere fact that asmall part ofsociety insists onarrest should not

automatically lead tothe arrest ofthe person.”54

“The arrest ofthe person must beordered asan ultima ratio. In its jurisprudence, the Court established that the investigation ofthe person inastate offreedom isarule. The presumption isalways infavor ofrelease (pro freedom) (and soon).”55 Therefore, the arrest ofaperson isnot arule, but anexception and only inthe cases and conditions regulated bythe criminal procedural law. Jurisprudence “explicitly enshrines the rule that criminal trials must, inprinciple, beconducted with the suspect orthe accused inastate offreedom – normal aspect, since freedom isthe natural state ofany person, and the suspect and the accused benefit, during the criminal trial, from the

presumption ofinnocence.”56

The conclusion ofthe investigating judge regarding the application of

the arrest must bemotivated. In the ECHR case, Mihuță v. Romania57, the

Court notifies that, “after the case was sent tocourt, the decisions ordering the continuation ofthe applicant’sdetention were either insufficiently reasoned orlacked any reason atall (…). Therefore, these judgments could not beconsidered compatible with the requirements ofan effective judicial review ofthe legality ofthe detention inquestion.” “Courts, when adopting areasoned decision, must beaware ofthe fact that bydoing sothey demonstrate tothe parties ofthe trial that they have been heard. Furthermore, areasoned decision gives the parties the possibility ofcontesting it, aswell asthe possibility ofreforming the decision bythe court ofappeal, or, bypronouncing areasoned decision, the public examination ofthe administration ofjustice isensured. The reasons relied onby the courts intheir decisions regarding placing the suspect/accused incustody orextending the arrest cannot belimited toparaphrasing the grounds provided bythe Code of Criminal Procedure, without explaining how they are applied inthe specific case. The conclusion that does not refer tothe materials that support the judge’sconclusion and inwhich the arguments ofthe defense pleading against the arrest are not contested isnot areasoned conclusion ofarrest (see decision Feraru v. Moldova, 24 January

54 Decision ofthe Plenum ofthe Supreme Court of Justice ofthe Republic of Moldova

no. 01 of 15.04.2015 onthe application bythe courts ofsome provisions ofthe criminal procedure legislation regarding preventive arrest and house arrest (point 11).

55 Decision ofthe Constitutional Court ofthe Republic of Moldova no. 15 of 28.

05.2020 regarding the exception ofunconstitutionality ofarticle 191 paragraph (2) ofthe Code of Criminal Procedure (provisional release under judicial control [2]) (point 52). 56 Bogdan, Micu, Radu, Slăvoiu, Andrei, Zarafiu, The criminal procedure, Bucharest, Hamangiu. 2022, p. 25. 57 ECHR Judgment, Mihuță v. Romania, of 31.03.2009 (§ 43). Available: https://hudoc.echr.coe.int/eng?i=001-91923 [accessed: 03.10.2022]. 160 Vol. XV, no. 4/December, 2023

2012, §§ 59-66). The justification for taking preventive measures must bedone insuch away that itdoes not leave the target person orathird party tounderstand that the judge iscertain ofthe guilt ofthe person who isstill

inthe process ofthe trial.”58

The arrested person, inaccordance with the requirements ofart. 5 paragraph 4 ofthe ECHR, benefits from aneffective appeal before the court. In the case, Mihuță v. Romania59, the Court holds that, “although the applicant exercised the remedy indicated bythe trial court (see paragraphs 9 and 14 above), the county court did not examine his pleas regarding the illegality ofhis pre-trial detention. However, such anexamination was all the more necessary since the court that ordered the maintenance ofthe measure did not give reasons for its decisions and did not examine the applicant’sarguments regarding the lack ofjustification for such ameasure (Svipsta cited above, §§ 130-134, and vice versa, Van Thuil cited above).” The inviolability ofthe person guarantees not only the deprivation ofliberty ofthe person (detention orarrest), but also the restriction ofliberty (for example, hospitalization ofthe person into medical institutions for expertise).

In the ECHR case, De Tommaso v. Italy60, the Court mentioned that:

“(…) The difference between deprivation and restriction ofliberty isone ofdegree orintensity, and not one ofnature orsubstance (see Guzzardi, cited above, §§ 92-93; Nada v. Switzerland [GC], no. 10593/08, § 225, ECHR 2012; Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 57, ECHR 2012; Stanev v. Bulgaria [GC], no. 36760/06, § 115, ECHR 2012; and Medvedyev and Others v. France [GC], no. 3394/03, § 73, ECHR 2010) (…).” In the ECHR case, Storck v. Germany61, the Court notifies that, “itis undisputed that the applicant was placed inalocked ward there. She was under the continuous supervision and control ofthe clinic personnel and was not free toleave itduring her entire stay there ofapproximately twenty months. When the applicant attempted toescape ithad been necessary toshackle her inorder tokeep her inthe clinic. On the one occasion she managed toescape, she had had tobe brought back bythe police. She was also unable tomaintain regular social contact with the

58 Decision ofthe Plenum ofthe Supreme Court of Justice ofthe Republic of Moldova

no. 01 of 15.04.2015 onthe application bythe courts ofsome provisions ofthe criminal procedure legislation regarding preventive arrest and house arrest (point 32). 59 ECHR Judgment, Mihuță v. Romania, of 31.03.2009 (§ 44). 60 ECHR Judgment, De Tommaso v. Italy, of 23.02.2017 (§ 80). Available: https://hudoc.echr.coe.int/eng?i=001-171805 [accessed: 02.10.2022]. 61 ECHR Judgment, Storck v. Germany of 16.06.2005 (§ 73). Available: https://hudoc.echr.coe.int/eng?i=001-69374 [accessed: 02.10.2022]. Cogito – Multidisciplinary Research Journal 161

outside world. Objectively, she must therefore beconsidered tohave been deprived ofher liberty.” “However, the notion ofdeprivation ofliberty within the meaning of Article 5 § 1 does not only include the objective element ofthe detention ofaperson inacertain restricted space for anot inconsiderable period oftime. A person can beconsidered tohave been deprived ofliberty only if, asan additional subjective element, hedid not validly consent tothe detention inquestion (see, mutatis mutandis, H.M. v. Switzerland, cited above, § 46).”62 Hospitalization ofthe person isanother sensitive subject ofprocedure, which can affect the right toprivate life and freedom byvirtue ofart. 5 and 8 ofthe ECHR. A regrettable case onthis aspect for the Republic of Moldova isthe

David v. Moldova case of 27.11.2007,63 the Court reiterates the fact that ifa

person initially agreed tohis admission toapsychiatric institution for the performance ofexpertise, nothing prevents him from later refusing and leaving that institution, sothat the continuous detention ofthe applicant from the moment heexpressed his intention toleave the hospital constitutes a “deprivation ofliberty”, thus interference with the right toliberty. The person expressing the consent isfrom the start released from aforced hospitalization, having the right toleave the medical institution atany time and noone has the right toprevent this will aslong asaconclusion regarding the forced hospitalization has not been issued inrespect ofhim. During the criminal investigation, the investigating judge, authorized bylaw toorder forced internment, issues the court decision. This desideratum isregulated inart. 41 point 4) ofthe Code of Criminal Procedure - The investigating judge ensures judicial control during the criminal investigation byordering the person’shospitalization into the medical institution. At the same time, inaccordance with the provisions ofart. 301 paragraph (3) ofthe Code of Criminal Procedure, “..., hospitalization ofthe person inamedical institution for the performance ofthe judicial expertise, ... itis done with the authorization ofthe investigating judge.” Analyzing the stated provisions, wefind that when, during the criminal investigation, there isaneed tocarry out ajudicial expertise inthe hospital, and the suspect (accused) refuses tobe hospitalized inorder toassess and examine him, the investigating judge issues areasoned decision for forced hospitalization for the purpose stated.

62 ECHR Judgment, Storck v. Germany, of 16.06.2005 (§ 74). 63 ECHR Judgment, David v. Moldova. Available: http://hudoc.echr.coe.int/eng?i=001-127751 [accessed: 01.11.2021]. 162 Vol. XV, no. 4/December, 2023

In the following wewill refer tothe admission procedure, the grounds and reasons for forced admission, the powers ofthe criminal investigation body and the prosecutor incases where there isaneed toadmit the person tothe medical institution, aswell asthe procedure for examining the approach regarding the forced admission ofthe person tothe healthcare institution. Thus, according tothe provisions ofart. 152 paragraph (1) ofthe Code of Criminal Procedure, “If for the performance ofthe medico-legal orpsychiatric expertise there isaneed for long-term supervision, the suspect, the accused, the defendant can behospitalized inamedical institution. This isrecorded inthe ordinance orconclusion bywhich the judicial expertise was ordered.” Therefore, atthe criminal investigation stage, iffor the performance ofthe judicial expertise (medico-legal orpsychiatric) forensic doctors orpsychiatrists need more time tosupervise the suspect orthe accused, inorder tofinally make objective conclusions onthe object ofthe expertise, the criminal prosecution body isobliged toindicate this fact inthe ordinance ordering the expertise. In other words, the law dictates the fact that when the criminal investigation body orders the medico-legal orpsychiatric expertise, itwill expose, inthe same ordinance, the forced hospitalization ofthe person into the medical institution. We consider that the stated aspects donot correspond tothe principle ofthe inviolability ofthe person, because atthe stage ofissuing the order determining the expertise, the criminal prosecution body cannot know how much time ajudicial expert needs tocarry out anexpertise oranother. Respectively, the determination ofthe time for carrying out the medicolegal orpsychiatric expertise isdecided bythe expert and not bythe criminal investigation body. Thus, the disposition ofexpertise that does not require hospitalization (outpatient) orthat requires this hospitalization (inpatient) isdictated bymedical and not legal judgment. Based onthe above, weare ofthe opinion that when the criminal investigation body finds the grounds provided inart. 142 paragraph (1) ofthe Code of Criminal Procedure, itwill issue the order for the disposition ofthe judicial expertise. If long-term surveillance ofthe suspect orthe accused isnecessary for the performance ofmedico-legal orpsychiatric expertise, the criminal investigation body will issue another order determining forced hospitalization inthe medical institution. This ordinance will beissued inaccordance with the provisions ofart. 255 ofthe Code of Criminal Procedure. In addition tothe conditions mentioned inart. 255 ofthe Code of Criminal Procedure, the order for the forced internment ofthe suspect orthe accused must include, mandatorily,

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the reasons for the internment, the behavior ofthe person during the procedural actions (for example during the hearing), the analysis ofthe medical documents ofthe suspect orthe accused (for example, the medical card, which mentions the fact ofthe treatment ofapsychiatric illness), the mention ofthe suspect orthe accused inthe records ofthe narcologist orpsychiatrist, the analysis ofthe statements ofother participants inthe trial (for example, the statements ofthe victim orwitnesses from which the inappropriate behavior ofthe suspect, the accused results) and other aspects related tothe case. Similarly, all the mentioned aspects must beanalyzed inrelation tothe circumstances ofcommitting the illegal act. It isvery important for the criminal investigation body torequest from the expert institution the information regarding the need for long-term surveillance ofthe suspect orthe accused. If the prosecuting body will not request that information, atleast itwill beobliged tohear the judicial expert todetermine the appropriateness ofinternment. On the other hand, after all, this decision has amedical tone, and respectively, only doctors can communicate about the duration ofmedical investigations. This information must bereflected inthe internment order and analyzed together with the other evidence. Only inthis way, can the criminal investigation body justify its order and determine the forced internment ofthe suspect orthe accused.

In the case Filip v. Romania of 14.12.2006,64 itwas found that the

applicant was admitted toapsychiatric institution for aperiod of 88 days. In this Judgment the ECHR reiterates the fact that one ofthe elements necessary for the “legality” ofdetention inthe sense ofart. 5 ofthe ECHR isthe lack ofarbitrariness. Deprivation ofliberty issuch aserious measure that itis only justified when less severe measures have been analyzed and considered insufficient toprotect the personal orpublic interest that requires detention, inour case transposed byinternment. The plaintiff being hospitalized for anindefinite period based onthe decision ofthe prosecutor’soffice taken without the opinion ofan expert doctor having been obtained beforehand. The prosecutor'soffice only ordered anexpert examination one month after his admission, after receiving the complaint ofthe applicant who criticized the legality ofthe security measure onthe grounds that such anexamination had not been ordered either before orafter his admission, which had already been 80 days. The Court estimates that the prior evaluation byapsychiatrist was indispensable, taking into account inparticular the fact that the applicant had nohistory ofmental disorders. In any case, itwas not anemergency hospitalization, plus the doctor'srequest regarding the need toextend the hospitalization period was

64 ECHR Judgment, Filip v. Romania, of 14.12.2006. Available: http://hudoc.echr.coe.int/eng?i=001-123269 [accessed: 20.10.21]. 164 Vol. XV, no. 4/December, 2023

missing, thus limiting the plaintiff’sright without alegal basis, his hospitalization being arbitrary and illegal. (§§ 59-60)

Conclusions In order toobtain the expected results, itis necessary totake into account all the circumstances ofthe case, the reasons and the purpose ofthe crime, data regarding the illnesses that the person suffered, the previous behavior

but also the behavior ofthe person during the trial,65 all this asawhole will

elucidate the complete picture ofthe suspect/accused’spersonality for making the correct decision regarding the need for internment. In support ofthe mentioned idea comes the analysis ofthe text “there isaneed for supervision” stipulated inart. 152 paragraph (1) ofthe Code of Criminal Procedure. Thus, the question arises - when does this need arise and who actually makes the decision inthis regard? It isnatural, aswe mentioned before, that the need for supervision isdecided only bydoctors and byno means bycriminal prosecution bodies. By the way ofexplanation, from the moment when the doctors will inform the criminal investigation body about the need for hospitalization, only then will beestablished the presence ofthe factual basis for the forced hospitalization ofthe person inthe medical institution. In order not toleave room for ambiguous interpretations, weconsider itnecessary that art. 152 paragraph (1) ofthe Code ofthe Criminal Procedure tobe amended and completed insuch away asto provide for the issuance ofthe reasoned order for the forced admission ofthe person inthe medical institution, other than the order for the disposition ofjudicial expertise.

The ECHR emphasized inthe case of H.L. v. Great Britain,66 the absence

ofprocedural rules regarding the detention ofthe incapacitated person, incontrast tothe multitude ofguarantees that apply inordinary cases. As aresult ofthe lack ofprocedural rules, medical staff assumed full control over the liberty and treatment ofavulnerable individual based onclinical assumptions alone, and although the Court did not question their good faith orfailure toact infavor ofthe claimant, the purpose ofthe existence ofguarantees isto protect individuals against professional errors and omissions. The absence ofthese rules ofprocedure led, inthe opinion ofthe Court, tothe arbitrarily taking ofthe measure, and therefore tothe violation ofart. 5 ofthe ECHR. The analysis ofinternal procedural rules shows that they mostly correspond not only tointernational acts, but also tothe provisions of Directive 2013/48/EU ofthe European Parliament and ofthe Council of

65 Poalelungi Mihai, Guide for judges incriminal cases. Chisinau. 2013, p. 1024. 66 ECHR Judgment, H.L. v. Great Britain, of 05.01.2005. Available: http://hudoc.echr.coe.int/eng?i=001-185580 [accessed: 24.10.2020]. Cogito – Multidisciplinary Research Journal 165

October 22, 2013 regarding the right tohave access toalawyer incriminal proceedings and European Arrest Warrant procedures, aswell asthe right for athird party tobe informed following deprivation ofliberty and the right tocommunicate with third parties and consular authorities during deprivation ofliberty. With reference tothe provisions ofart. 166 paragraph (1) point 3) ofthe Code of Criminal Procedure, weconsider that its text contains alegal tautology, for which reason wepropose toexclude the text “orin his transport unit”, because the domicile ofthe person isindicated. Moreover, according toart. 6 point 11) ofthe Code of Criminal Procedure, aswell asthe jurisprudence ofthe Constitutional Court and ECHR, the transport unit (car) isconsidered domicile. At the same time, art. 166 paragraph (3) ofthe Code of Criminal Procedure also establishes other reasonable grounds, which assume that the suspect: Will avoid prosecution. The ground inquestion must beproven. Many times, the criminal investigation body orthe prosecutor formally indicates this basis, that is, illusory. The law requires the motivation ofprocedural documents (for example, art. 308 paragraph (6) ofthe Code of Criminal Procedure, establishes that, “The prosecutor isobliged tojustify the reasonable suspicion and the grounds for applying preventive arrest. Omission ofsuch anobligation constitutes grounds for rejection ofthe approach”), including byproving the grounds, and otherwise the law also provides for procedural sanctions. Data ordocuments proving that the person will evade criminal prosecution will serve asan argument for this reason (for example, purchase ofplane tickets, booking hotels abroad, presence ofreal estate orbusiness, etc.). At the same time, the severity ofthe

sanction can justify the application ofthis ground.67

The basic rule established bythe criminal procedural rules isthat detention isapplied only ifcriminal prosecution isinitiated (art. 55 paragraph (4), art. 165, art. 166, art. 274 paragraph (1), art. 279 ofthe Code of Criminal Procedure). There isonly one exception tothe general rule, provided for inart. 166 paragraph (4) ofthe Code of Criminal Procedure, which consists inthe fact that detention can beapplied until the crime isregistered. This rule applies only tothe mature person (who has reached the age of 18 atthe time ofcommitting the criminal act). This exceptional rule regulates that the registration ofthis crime, ofwhich the adult person issuspected, must take place immediately, but nolater than 3 hours from the moment when the adult person isbrought tothe criminal prosecution body. Otherwise, the adult person will bereleased, except when the person has

67 Other arguments are indicated and explained inpoint 8) ofthe Plenary Decision of

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been detained bythe masters ofships and aircraft intheir capacity asascertaining authorities (handover ofthe detained person takes place when the ship has docked orthe aircraft has landed). Analysis ofart. 166 paragraph (4) ofthe Code of Criminal Procedure denotes that the detention ofthe mature person takes place incases offlagrant offence. However, according tous, that norm should beamended and supplemented, sothat the word “mature” should beexcluded. Therefore, when aperson will commit acriminal act and will becaught redhanded, having the legal grounds for detention, the competent judicial bodies can apply this coercive measure also regarding the minor, who will bethe subject ofthe given crime. Alternatively, the current rule lacks the criminal investigation body and the prosecutor todetain minors until the crime isregistered (inflagrante delicto), even ifthey have committed serious, particularly serious orexceptionally serious crimes (for example, amurder). In addition, having committed acrime inflagrante delicto, the criminal investigation body isobliged tocarry out procedural actions inorder toadminister the evidence, including body search, hearing and others (including those with the participation ofthe minor). The term ofdetention ofthe minor – subject ofthe crime (14-18 years, depending onthe seriousness ofthe committed act) cannot exceed 24 hours from the moment ofhis deprivation ofliberty (defacto detention). An important aspect isthat, when the grounds for detaining the person have expired, hemust bereleased immediately, without waiting for the maximum limit for this coercive measure toexpire. For example, the person being caught red-handed isdetained bythe criminal investigation body, having several grounds, including the complaint and statements ofthe victim. More than 36 hours after the apprehension, the victim withdraws his complaint under art. 275 point 6), 276 ofthe Code of Criminal Procedure. The person must bereleased immediately without waiting for the 72-hour period toexpire. Another example iswhen, after the arrest, itis found that the elements ofthe criminal offense donot exist, orthere isadefinitive decision regarding the act for which the person isdetained, etc. Precisely from these situations, the criminal procedural law has established that, “The period ofdetention must not belonger than what isstrictly necessary for his holding.” (art. 166 paragraph (5) ofthe Code of Criminal Procedure). Problems can arise when the lapse ofgrounds takes place outside working hours, orthere isan order ofthe prosecutor torelease the detained person, which must beimmediately implemented, but the person isin detention, where there isacertain work regime, and asimple employee cannot make decisions. The question arises: how dowe proceed inthese cases? The answer tothe question was found in ECHR jurisprudence.

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Art. 166 paragraph (7) ofthe Code of Criminal Procedure establishes that the prosecutor can release the person until the expiration ofthe term provided for inart. 308 paragraph (12). We propose toamend and supplement the respective rule, asit isnot clear which rules are being considered. On the other hand, art. 308 ofthe Code of Criminal Procedure contains only 10 paragraphs. We also consider that the legislator may have had inmind art. 308 paragraph (3) ofthe Code of Criminal Procedure, inother words, the deadline for submitting the request regarding the application ofpreventive detention. However, itis imperative toamend and complete the text “art. 308 paragraph (12)”. It should benoted that the person cannot bedetained repeatedly for the same reasons (art. 174 paragraph (2) ofthe Code of Criminal Procedure). We propose toamend and supplement this procedural rule, because, inour opinion, itcan beinterpreted ambiguously. Alternatively, the released person can bedetained for the same reasons (mentioned inart. 166 ofthe Code of Criminal Procedure), but for the reasonable suspicion ofcommitting another crime, other than the one for which hewas detained and subsequently released. Thus, the legislative intervention inart. 174 paragraph (2) ofthe Code of Criminal Procedure isimposed, asit regulates not only the same grounds, but also for the same deed. Art. 167 ofthe Code of Criminal Procedure regulates the procedure ofdetaining the person. According toart. 167 paragraph (1) ofthe Code of Criminal Procedure, “For each case ofdetention ofaperson suspected ofcommitting acrime, the criminal investigation body, within upto 3 hours from the moment ofdeprivation ofliberty, prepares aminutes ofdetention, indicating the grounds, reasons, place, the year, month, day and time ofdetention, the physical condition ofthe detained person, complaints regarding his health, what heis wearing (description ofclothing), explanations, objections, requests ofthe detained person, the request tohave access toamedical examination, including onhis own account, the act committed bythe person inquestion, the results ofthe body search ofthe detained person, aswell asthe date and time ofthe preparation ofthe report. The minutes are brought tothe attention ofthe detained person, atthe same time they are given written information about the rights provided for inart. 64, including the right toremain silent, not totestify against himself, togive explanations that are included inthe minutes, tobenefit from the assistance ofadefense attorney and tomake statements inhis presence, fact that ismentioned inthe minutes. The arrest report issigned bythe person who drew itup and bythe arrested person who isimmediately given acopy ofit. Within upto 3 hours after the arrest, the person who drew upthe minutes presents tothe prosecutor awritten communication about the arrest.” According tous, criminal procedural

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legislation provides sufficient guarantees for detained persons. However, weare ofthe opinion that the detained person should not only begiven acopy ofthe information regarding his rights, but that these rights must beexplained concretely tothe detained person inan accessible and understandable language. Therefore, wepropose toamend and complete art. 167 paragraph (1) ofthe Code of Criminal Procedure, sothat according tothe text “atthe same time, heis given written information about the rights provided for inart. 64”, should beintroduced the following text “and these rights are explained tohim inan accessible and understandable language”. In practice, there are cases when the criminal prosecution body does not indicate inthe report the grounds for detention, limiting itself only tothe fact that the person issuspected ofthe crime for which heis detained. This fact isinadmissible, otherwise the minutes can becanceled and the detention will beconsidered illegal. Compulsorily, the minutes regarding the person’sdetention must include all the data indicated inart. 167 paragraph (1) ofthe Code of Criminal Procedure, implicitly the place, year, month, day and time of (defacto) detention, date, time, year and place ofdrawing upthe minutes, etc.

References:

Code of Criminal Procedure ofthe Republic of Moldova no. 122 of 14.03.2003. Published: 05.11.2013 in The Official Gazette No. 248-251 art. 699. Available: https://www.legis.md/cautare/getResults?doc_id=136769&lang=ro#41 Creangă, I., (2001) Individual liberty and security ofthe person - the most expressive human rights. In: The Ombudsman review, nr. 1–3. Decision ofthe Constitutional Court ofthe Republic of Moldova no. 15 of 28.05.2020 regarding the exception ofunconstitutionality ofarticle 191 paragraph (2) ofthe Code of Criminal Procedure (provisional release under judicial control). Decision ofthe Constitutional Court ofthe Republic of Moldova No. 15 of 28.05.2020 regarding the exception ofunconstitutionality ofarticle 191 paragraph (2) ofthe Code of Criminal Procedure (provisional release under judicial control). Decision ofthe Constitutional Court ofthe Republic of Moldova no. 27 of 30.10.2018 regarding the control ofthe constitutionality ofsome provisions of Article 185 ofthe Code of Criminal Procedure (preventive arrest ifthe person has not admitted his guilt incommitting the imputed act). Decision ofthe Plenum ofthe Supreme Court of Justice ofthe Republic of Moldova no. 29 of 09.11.1998 with the changes introduced bythe Plenary

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