Inadmissibility Of The Appeal No. 41G / 2015 Regarding The Exception Of Unconstitutionality Of Article 4 Para. (4) Of Law No. 333 Of 10 November 2006 On The Status Of The Investigating Officer

Original Language Title: de inadmisibilitate a Sesizării nr. 41g/2015 privind excepţia de neconstituţionalitate a articolului 4 alin. (4) din Legea nr. 333 din 10 noiembrie 2006 cu privire la statutul ofiţerului de urmărire penală

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inadmissibility of the appeal no. 41g / 2015
the exception of unconstitutionality of Article 4
par. (4) of Law no. 333 of 10 November 2006
on the status of the investigator


Posted: 02/05/2016
in the Official Gazette

Nr. 25-30
Article No. 6
Effective Date: 09/11/2015

Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA,
Mr. Victor POPA, judges, with the participation of Maxim Iurcu
Registrar,
Considering the complaint filed on 29 October 2015
recorded on the same date
preliminary Examining the complaint said,
Considering documents and materials, deliberated on 9 November
2015 closed hearing
Delivers the following decision: tHE FACTS

1. On 29 October 2015, the Supreme Court addressed the Constitutional Court on the unconstitutionality exception notification to Article 4 para. (4) of Law no. 333 of 10 November 2006 on the status of the investigating officer.
A.
Two grounds for referral. The grounds for referral, as was exposed by its author, may be summarized as follows.
March. According to the Criminal Procedure Code, the prosecution is exercised by the police investigator and the prosecutor.
4. According to Article 1 para. (1) of Law no. 333 on the status of the investigator, police investigator is a person who, on behalf of the state and within its competence, directly performs prosecution in criminal cases and perform other activities prescribed by law. However, Article 4 (4) of the law establishes that the prosecutor, by its order, the proposal of the investigating officer can include other employees of the Interior Ministry, Centre National Anti Customs Service as criminal investigators.
May. Meanwhile, according to art. 2 para. (4) of the Criminal Procedure Code, the rules of criminal procedure legal in other laws may be applied only if their inclusion in the Code.
June. According to the author of the referral, the contested provisions are contrary to Articles 1, 23 and 25 paragraph. (2) of the Constitution.
B.
Relevant legislation in July. The relevant provisions of the Constitution (OJ 1994, no. 1) are:
Article 1Statul Moldova


"(1) The Republic of Moldova is a sovereign, independent, unitary and indivisible.
(2) The form of government is a republic state.
(3) Republic of Moldova is a democratic law, where human dignity, rights and freedoms, free development of human personality, justice and political pluralism represent supreme values ​​and are guaranteed. "

Article 23 right of everybody to know their rights and duties


"(1) Everyone has the right to an acknowledged legal.
(2) The State shall ensure the right of everybody to know his rights and duties. For this purpose the State shall publish and make accessible all laws and other normative acts. "

Article 25 Individual freedom and personal security

"(1) Individual freedom and security of person are inviolable.
(2) Search, detainment or arrest of a person shall be permitted only in cases and procedure provided by law.
(3) Detention may not exceed 72 hours.
(4) Arrest shall be made under a warrant issued by a judge for a maximum period of 30 days. The lawfulness of the warrant may be challenged under the law in a higher court. The period of detention may be extended only by a judge or by the court under the law, maximum up to 12 months.
(5) Any person detained or arrested shall be promptly informed of the reasons for detention or arrest and prosecution - in the shortest possible time; notification of the charges shall be made only in the presence of a lawyer, chosen or appointed ex officio.
(6) Release detained or arrested person is obligatory if the reasons for detention or arrest have disappeared. "
August. The relevant provisions of the Criminal Procedure Code of the Republic of Moldova no. 122-XV of 14 March 2003 (republished in the Official Gazette, 2013, No. 248-251, Art. 699) are:
Article 2Legea criminal procedure


"(1) Criminal proceedings shall be governed by the Constitution of Moldova, international treaties to which Moldova is a party and this Code.

(2) The general principles and norms of international law and the international treaties to which Moldova is a party constitute integral elements of criminal law and directly give rise to human rights and freedoms in criminal proceedings.
(3) the Constitution has primacy over national criminal procedural legislation. No law governing criminal proceedings has no legal power if it is inconsistent with the Constitution.
(4) Legal norms of the criminal procedure in other national laws can be applied only if their inclusion in this code.
(5) In criminal proceedings can not legally binding laws and other normative acts that negate or limit human rights and freedoms, violates judicial independence, the principle and contradict universally recognized norms of international law, provisions of international treaties Republic of Moldova. "
Article 253Organele prosecution


"(1) Criminal prosecution is carried out by the prosecutor and by legally constituted bodies within:
1) Ministry of Internal Affairs;
2) of the Customs Service;
3) National Anti-Corruption Center.
(2) The prosecution are represented by criminal investigation officers specially appointed within the institutions referred to in para. (1) organizational leader and subordinates institution.
(3) Criminal investigators are independent, law-abiding and written instructions of the head of the body of criminal investigation or prosecution.
(4) The status of the investigating officer is established by law. "
September. The relevant provisions of Law no. 333-XVI of 10 November 2006 concerning the status of investigating officer (OJ 2006 no. 195-198, art. 918) are:

Article 4Organele central government in working

criminal investigators
"(1) Criminal investigators are appointed and operate in the prosecution established by law in the Ministry of Internal Affairs, Customs Service and National Anti-Corruption Center.
(2) The prosecuting authorities include, as appropriate, departments, directorates-general, directorates, departments, services or prosecution offices established in the institutions mentioned in para. (1) and subdivisions thereof.
(3) The establishment, reorganization and liquidation of the prosecution of all levels shall be made, under the law, by headteachers mentioned in para. (1).
(4) employees of other subdivisions of the institutions referred to in para. (1) may also undertake investigator only if their designation by order of the prosecutor, the proposal of the investigating officer. "
THE LAW A. The author of the notification
10. The author notes that the objection of unconstitutionality, according to the Criminal Procedure Code, the prosecution is carried out by the prosecutor and prosecution officer.
11. The Criminal Procedure Code defines the activity of the prosecution of other subdivisions of the Ministry of Internal Affairs, National Anti-Corruption Center and the Customs Service. Thus, the powers and jurisdiction of the investigating officer of the officer are different from those investigations.
12. The Law no. 333 of 10 November 2006 on the status of the investigating officer provides for the possibility of conferring powers of criminal investigation officer and other employees of subdivisions of the Ministry of Internal Affairs, Customs Service Center or the National Anticorruption by issuing an order by the prosecutor.
13. The author notes that the objection of unconstitutionality, according to the Code of Criminal Procedure, criminal procedural rules contained in other laws may be applied provided their inclusion in the Criminal Procedure Code.
14. Therefore, the author argues that the absence of similar provisions in the Criminal Procedure Code is inconsistent with the Code.
15. The author argues that the exception does not meet the norm disputed Articles 1, 23 and 25 paragraph. (2) of the Constitution.
B. Findings of the Court

16. The Court notes that under Article 135 para. (1) g) of the Constitution, Article 4 para. (1) g) of the Law on Constitutional Court and Article 4 para. (1) g) of the Code of Constitutional solving exceptional cases of unconstitutionality of legislative acts notified by the Supreme Court, the competence of the Constitutional Court.
17. The Court finds that the power to address exceptional cases of unconstitutionality, which was vested by Article 135 para. (1) letter g) of the Constitution requires the correlation between the contested rules and the Constitution, taking into account the principle of supremacy and its relevance of the contested provisions for resolution of the dispute in the courts.
18. The Court notes that the notification is to review the constitutionality of provisions of Article 4 para. (4) of Law no. 333 of 10 November 2006 on the status of the investigator, according to which "employees of other subdivisions of the institutions referred to in para. (1) [Ministry of Internal Affairs, Customs Service, National Anticorruption Center] can also undertake investigator only if their designation by order of the prosecutor, the proposal of the investigating officer. "
19. Thus, the rule establishes that the disputed status of organ allocation investigators and others of the entities mentioned above can be provided and appointed by the prosecutor, at the request of the investigating officer.
20. The Court notes that the author of the notification invoked the alleged infringement of Articles 1 para. (3), 23 and 25 paragraph. (2) of the Constitution.
21. The Court notes that a legal provision can only be the object of constitutional jurisdiction where the alleged constitutional rules affecting the contested rules.
22. In this regard, the Court notes that according to Article 24 para. (2) of the Law on Constitutional Court and Article 39 of the Code of Constitutional complaint must contain reasons and circumstances on which the object and subject bases its requirements.
23. Thus, with reference to the invocation of the alleged violations, the Court finds that the author failed to explain the rules of referral to the constitutional provisions challenged.
24. The Court finds that the subject of complaint concerns the correlation between the rules contained in Law no. 333 of 10 November 2006 on the status of the investigator and the Criminal Procedure Code rules.
25. In its case the Court noted that, in order to unify the legal procedural and exclusion provisions of confusing and contradictory in order to respect the fundamental rights and freedoms of all individuals involved in criminal proceedings, the legislature has stipulated that the legal rules of criminal procedure in other national laws can be applied only if they are included in the Code of criminal procedure. Such legislative technique is likely to ensure the elimination of inconsistencies between the Code of Criminal Procedure and the rules criminal procedure contained in other laws, the coherent, definite and uniform rules, so as to ensure full respect for human rights and fundamental freedoms human (HCC no. 1 of 22 January 2008).
26. Therefore, the issue raised in the complaint related to the interpretation of the phrase "legally binding procedural rules" of art. 2 para. (4) of the Criminal Procedure Code and reporting this interpretation of art. 4 para. (4) of Law no. 333 of 10 November 2006 on the status of the investigating officer.
27. The Court finds that the referral to the examination, there was no official interpretation of the phrase "legally binding procedural rules" of art. 2 para. (4) of the Criminal Procedure Code.
28. In this respect, the Court reiterates that the Supreme Law of Parliament vested with the right official interpretation of the laws passed. According to article 66 c) of the Constitution, one of the basic functions of Parliament as the supreme representative and legislative organ, is the interpretation of laws and legal regulations to ensure unity throughout the country. The aim is clarification of the interpretation of the rule of law by elucidation of its exact content and constitute a prerequisite for the correct application of legal rules.

29. According to article 42 of Law No.780-XV Legislative of 27 December 2001, the interpretation of legislation is a system of logical operations and fully explain the exact meaning of normative provisions. Provides legal interpretation by the realization of the rule of law in its exact meaning.
30. Under those listed above, the Court finds that, in the absence of constitutional norm the incidence of the contested law, the notification does not meet the eligibility and can not be accepted for examination.
For these reasons, pursuant to Article 26 of the Law on Constitutional Court, Articles 61 para. (3) and 64 of the Code of Constitutional Court Constitutional

DECIDED:

1. Declare inadmissible complaints concerning unconstitutionality exception of Article 4 para. (4) of Law no. 333 of 10 November 2006 on the status of the investigating officer.
2. This decision is final, can not be subject to any appeal, shall enter into force upon adoption and shall be published in the Official Gazette of the Republic of Moldova.

CONSTITUTIONAL COURT PRESIDENT Alexandru Tanase