Inadmissibility Of Referral No. 10 G/2016 Regarding Unconstitutionality Of Exception To Article 1 Para. (2) And Article 4 Para. (4) Of Law No. 333 Out Of 10 November 2006 On The Status Of The Criminal Investigation Ofiţeruluide

Original Language Title: de inadmisibilitate a sesizării nr. 10g/2016 privind excepţia de neconstituţionalitate a articolului 1 alin. (2) şi articolului 4 alin. (4) din Legea nr. 333 din 10 noiembrie 2006 cu privire la statutul ofiţeruluide urmărire penală

Read the untranslated law here: https://www.global-regulation.com/law/moldova/5966083/de-inadmisibilitate-a-sesizrii-nr.-10g-2016-privind-excepia-de-neconstituionalitate-a-articolului-1-alin.-%25282%2529-i-articolului-4-alin.-%25284%2529-din-le.html

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    The Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Mr. Talal Igor DOLEA, GEOGRAPHIC LOCATION, Mr. Victor POPA, judges, with the participation of Mr. Bjørn Maximum, Registrar, taking into account the appeal lodged on 18 February 2016, recorded at the same time, examining preliminary referral referred to, taking into account the laws and proceedings, Acting on February 26 in the Council room 2016 the next decision, a decision: in fact 1. On 18 February 2016, the Supreme Court has asked the Constitutional Court on an appeal regarding plea of unconstitutionality of article 1 para. (2) and article 4 para. (4) of law No. 333 out of 10 November 2006 on the status of penal investigation officer.


A. reasons for referral 2. Reasons for referral, as exhibited by its author, may be summarized as follows.
3. In accordance with article 1 para. (1) of law No. 333 on status of penal investigation officer, prosecuting officer is the person who, on behalf of the State and within the limits of its competence, carried out directly prosecuting criminal cases and exercising other activities prescribed by law. Paragraph 2 of this article states that you may not have the status of the criminal investigation officer of the criminal investigation bodies and employees responsible for the maintenance of the public order, or control the exercise of operative investigation activity, status of persons entrusted with functions in respect of offences established by law.
4. Also, article 4 (4) of the law States that the public prosecutor, by order to the proposal of the criminal investigation officer, may appoint and other employees of the Interior Ministry, the National Centre, the customs service as prosecuting officers.
5. At the same time, according to art. 2 (2). (4) of the code of criminal procedure, the legal procedural nature rules in other laws may be applied only provided that their inclusion in the code.
6. In the opinion of the author of the contested provisions are contrary to the referral, articles 1, 23 and 25 of the Constitution.


B. relevant Legislation 7. The relevant provisions of the Constitution (Official Gazette, no. 1, 1994) are as follows: Article 1Statul "(1) the Republic of Moldova is a sovereign, independent, unitary and indivisible State.
(2) the form of Government of the State is the Republic.
(3) the Republic of Moldova is a democratic State of law, in which human dignity, rights and freedoms, the open development of human personality, justice and political pluralism represent supreme values and are guaranteed. "


Article 23 the right of everybody to know your rights and duties "(1) every person has the right to recognize legal personality.
(2) the State ensures the right of everybody to know their rights and duties. For this purpose the State publishes and makes accessible all laws and other regulations. "


Article 25 individual freedom and security of the person "(1) individual freedom and security of the person are inviolable.
(2) Searching, detaining or arresting a person shall be permitted only in the cases and pursuant to the procedure provided by law.
(3) Detention may not exceed 72 hours.
(4) may be arrested only under warrant issued by a judge for a period not exceeding 30 days. Of the legality of their mandate may appeal the law in superior court. The term of detention can be prolonged only by a judge or by the Court, in accordance with the law, no more than 12 months.
(5) any person detained or arrested shall be promptly informed of the reasons for his detention or arrest, and notified-as soon as possible; the reasons for his detention and prosecution shall be made only in the presence of a lawyer, either chosen or appointed ex officio.
(6) the release of any person detained or arrested is mandatory if the reasons for his detention or arrest have disappeared. "
8. The relevant provisions of the code of criminal procedure of the Republic of Moldova nr. 122-XV of 14 March 2003 (reprinted in m. o., 2013, 248-251, art. 699) are as follows: Criminal Procedure Article 2Legea "(1) criminal proceedings shall be governed by the provisions of the Constitution, international treaties to which Moldova is a party and of this code.
(2) the General principles and rules of international law and the international treaties to which Moldova is a party constitute an integral elements of criminal law and directly give rise to human rights and freedoms in criminal procedure.
(3) the Constitution of the Republic of Moldova has supremacy over national criminal procedural legislation. No law governing the conduct of the criminal trial has no legal power if it is in contradiction with the Constitution.
(4) Legal Norms having the character of other procedural national laws may only be applied provided that their inclusion in this code.
(5) The criminal process may not have legal power laws and other normative acts that invalidate or restrict human rights and freedoms, violates judicial independence, adversarial, and contravene the rules unanimously recognized provisions of international law, the international treaties to which Moldova is a party. "


Article 253Organele of criminal "(1) the prosecution shall be carried out by the Prosecutor and by the organs set up under the law in the context of: 1) Ministry of Internal Affairs;
2) customs service;
3) Anti-corruption National Centre.
(2) the prosecution are represented by criminal investigation officers specifically designated institutions referred to in paragraph 1. (1) and organizational institution answerable to the driver.
(3) criminal investigation Officers are independent and are subject to the law specified by driver of the prosecution and of the Prosecutor.
(4) the status of penal investigation officer is established by law. "
9. The relevant provisions of law No. 333-XVI of 10 November 2006 on the status of penal investigation officer (M.O., 2006 no. 195-198, 918) are as follows: Article 4Organele of central public administration that enables the criminal investigation officers "(1) the criminal investigation officers are appointed and operates in the prosecution constituted according to the law, the Ministry of Internal Affairs, the customs service and the national Anticorruption Centre.
(2) the criminal investigation organs System including, where appropriate, departments, directorates, directorates, departments, services or criminal prosecution offices set up within the framework of the institutions referred to in paragraph 1. (1) and their territorial subdivisions.
(3) the establishment, reorganization and liquidation of the criminal investigation organs at all levels shall, in accordance with the law, heads of the institutions referred to in paragraph 1. (1) and (4) Employees of other subdivisions of the institutions referred to in paragraph 1. (1) may have powers of criminal investigation officer only if designated by Ordinance of the Prosecutor, at the initiative of penal investigation officer. "


IN THE RIGHT HAND CORNER. The arguments of the author referral 10. The author notes that the exception of unconstitutionality, according to the code of criminal procedure, criminal proceedings shall be conducted by the District Attorney and the prosecuting officer.
11. At the same time, according to art. 2 (2). (4) of the code of criminal procedure, the legal procedural nature rules in other laws may be applied only provided that their inclusion in the code.
12. Despite these regulations, law No. 333 out of 10 November 2006 on the status of penal investigation officer provides the possibility of awarding powers of criminal investigation officer and other employees from subdivisions of the Ministry of Internal Affairs, the National Anti-corruption Centre or the customs service by issuing an injunction by the Prosecutor.
13. Therefore, the author argues that, in the absence of similar provisions in the code of criminal procedure, the contested rules cannot be applied.


B. Assessment Of Court 14. Note that the Court, pursuant to article 135 paragraph 1. (1) (a). a) and g) of the Constitution, as interpreted by the decision of the Constitutional Court No. 2 of 9 February 2016, exceptional cases of unconstitutionality of the legislative competence of the Constitutional Court.
15. the Court respect that prerogative to address exceptional cases of unconstitutionality entails establishing correlation between the contested rules and Constitution, taking into account the principle of the supremacy of its provisions and to address the relevance of the contested dispute in the courts.
16. the Court finds that the correlation between the targeting object referral rules contained in law No. 333 of 10 November 2006 on the status of penal investigation officer (article 1 para. (2) and article 4 para. (4)) and the rules of criminal procedure code, as regards the conditions under which employees of law enforcement agencies may have powers of criminal investigation officer.
17. the Court note that author tuționalitate neconsti-exception invoked the alleged infringement of articles 1, 23 and 25 of the Constitution.

18. the Court noted that, by decision No. 8 of 9 November 2015, was declared inadmissible the appeal No. 41 g/2015 concerning non-constitutionality exception with a similar object.
19. The Court has noted that, in the absence of constitutional rule upon rule incidence, referral does not meet the conditions for eligibility and cannot be accepted for examination.
20. the Court finds that, as the object of referral No. 10 g/2016 is identical with the subject of referral No. 41 g/2015, and new elements did not intervene, liable to lead to court reconsidering both the solution and the considerations set out in Decision No. 8 of 9 November 2015 applies in this matter.
For these reasons, pursuant to article 26 of the law on the Constitutional Court, articles 61 para. (3) and 64 of the code of constitutional jurisdiction and item 28 lit. d) of the regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court D E C I D E: 1. It is hereby declared inadmissible the appeal regarding plea of unconstitutionality of article 1 para. (2) and article 4 para. (4) of law No. 333 out of 10 November 2006 on the status of penal investigation officer.
2. this decision is final, cannot be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.

The PRESIDENT of the CONSTITUTIONAL COURT Alexandru Tanase