inadmissibility of referral No. 21A/2016 on notification constitutionality control art. "". (4) of law No. 333 out of 10 November 2006 on the status of penal investigation officer



Published: 27.05.2016 in Official Gazette No. 140-147 art Nr: 47 date of entry into force: 23.03.2016 Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Mr. Victor POPA, judges, with the participation of Mr. Bjørn Maximum, Registrar, taking into account the appeal lodged on 17 March 2016, recorded at the same time, examining the admissibility of the referral, taking into account the acts and proceedings of the dossier , Acting on 23 March 2016 in Council Pronounce the following decision: in fact 1. On 17 March 2016, Mr. A. Ladani, Member of Parliament, has asked the Constitutional Court on an appeal concerning the control on notification constitutionality of 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 they were exposed to the author, can 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 referral, the provisions are contrary to article 1 (1) which have been disputed. (3) 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. "
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 1Ofiţerul of criminal "(1) the criminal investigation 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.
(2) 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. "


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 author's Arguments AS a. referral to the 10. The author of the referral mentions that, 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. Finally, the author contends that the contested rules of referral in breach of article 1 para. (3) of the Constitution.
B. Assessment Of Court 14. Examining the admissibility of the referral, the Court notes the following.
15. pursuant to paragraph 1 of article 135. (1) (a) of the Constitution), article 4 para. (1) (a)) of the law on the Constitutional Court and to article 4 para. (1) (a). a) of the code of constitutional jurisdiction, the Court enforces, the constitutionality of laws.
16. the Court notes that articles 25 lit. g) of the law on the Constitutional Court and 38 para. (1) (a). g) of the code of constitutional jurisdiction authorizing Deputy in Parliament with the right to refer the matter to the Constitutional Court.
17. the Court retains that power was vested in it by article 135 paragraph 1. (1) (a). a) of the Constitution requires correlation of contested norms and the Constitution, taking into account the principle of the supremacy of the latter.
18. 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 4 paragraph 2. (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.
19. the Court noted that, by decision No. 8 of 9 November 2015 and decision No. 7 of 26 February 2016, were declared inadmissible two complaints with an identical object.
20. 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.

21. the Court finds that, as the referral is one repetitive and did not intervene as new elements, such as to determine the Court reconsidering both the solution and the considerations set out in Decision No. 8 of 9 November 2015 and in decision No. 7 of 26 February 2016 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. b) 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 of parliamentarian A. notification constitutionality control Ladani 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 Of JUSTICE Alexandru Tanase