Inadmissibility Of Referral No. 84G/2016-Constitutionality Exception Relating To Certain Provisions Of The Code Of Criminal Procedure (Arrangement And Conducting Special Investigative Measure: Interception And Recording Of Communications)

Original Language Title: de inadmisibilitate a sesizării nr. 84g/2016 privind excepția de neconstituționalitate a unor prevederi din Codul de procedură penală (dispunerea şi efectuarea măsurii speciale de investigaţii: interceptarea şi înregistrarea comunicărilor)

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    The Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Igor DOLEA, Mr. Victor PALMER, Mr. Zadrahimi, judges, with the participation of Mr Darroch Avornic, Registrar, considering the appeal filed on 15 July 2016, recorded at the same time, examining the admissibility of the referral, taking into account the laws and proceedings, Acting on 12 October the Council room 2016 the next decision, a decision: in fact 1. The origin of the case lies the plea of unconstitutionality of the following provisions of the code of criminal procedure of the Republic of Moldova nr. 122-XV of 14 March 2003:-in article 64, paragraph 2, item 5), the Editorial Board of law No. 66 April 5, 2012 for the modification and completion of the code of criminal procedure of the Republic of Moldova nr. 122-XV of 14 March 2003;
-1321 items (2), item 2), (3) 1322 and 1324 (1);
-Article 1324 (7) first sentence (article 135, paragraph 4 in the redaction of law No. 122 of 14 March 2003);
-the phrase "but not later than at the time of termination of criminal proceedings" in paragraph 7 of article 1325;
-Article 1329 (15), second sentence;
-Article 414 (2) and (3) exception raised by lawyer Vasile Nicoara in file No. 1a -1159/15, pending at the Court of appeal.
2. The appeal was lodged with the Constitutional Court on 15 July 2016 by the Panel of judges within the Court of appeals (Ion Plesca, Oxana Rae and Sahagun Teleucă) under 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, and of the regulation on the procedure for examining complaints lodged with the Constitutional Court.
A. the main dispute Circumstances 3. On the role of the Court of appeal criminal lies cause Kishinev nr. -1159/1A 15 of his accusation of committing criminal offences: N.V. referred to in articles 323 paragraph 2. (1) paragraphs 1 and 2, 327. (1) paragraphs 1 and 2. (2) (a). 42 c), para. (3) paragraphs 1 and 2, 177. (1) of the penal code; E.b. of offence referred to in paragraphs 1 and 2 of article 323. (1) of the penal code; B.a. of offence referred to in paragraphs 1 and 2 of article 324. (1) of the penal code; V.Z. of offence referred to in articles 332 paragraph 1. (1), 42 (3), 177 paragraphs 1 and 2. (1) of the penal code; V.s. of offence referred to in articles 42 para. (4) paragraphs 1 and 2, 177. (1) of the penal code; V.G. of offence referred to in articles 42 para. (3) paragraphs 1 and 2, 177. (1) of the penal code.
4. During the meeting of 1 July 2016, Vasile Nicoara's lawyer raised the plea of unconstitutionality of article 64 para. (2) item 5), the Editorial Board of law No. 66 of 5 April 2012, 1321 para. (2) paragraph 2 paragraph 3.), 1322 (3) paragraphs 1 and 2, 1324. (1) paragraphs 1 and 2, 1324. (7) first sentence (para. 135 (4) the law. 122 of 14 March 2003), 1329 para. (15) the second sentence of paragraph 1, 414. (2) and (3) and the phrase "but not later than at the time of termination of criminal proceedings" in paragraph 1. (7) article 1325 of the code of criminal procedure, citing the fact that they do not meet the quality criteria of the law, being unpredictable and fuzzy, and applying their constitutional breach referred to in articles 20, 21, 23, 26, 28, 30 and 114.
5. By the same date, the Court has ordered the lifting of the exception of unconstitutionality and send referral to the Constitutional Court for settlement.
B. relevant Legislation 6. The relevant provisions of the Constitution (republished in the Official Gazette, no. 2016, 78, art. 140) are the following:% quot% article 20 access to justice "(1) Any person shall be entitled to effective satisfaction on the part of competent courts against acts which violate the rights, freedoms and legitimate interests.
(2) no law may restrict the access to justice. "


Article 21 the presumption of innocence, "any person charged with an offence is presumed innocent until his guilt is going to be proven legally, during a public trial in which he was assured all the guarantees necessary for his defence."


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 26Dreptul of the defence "(1) the right of defence is guaranteed.
(2) everyone has the right to respond independently by appropriate legitimate means to an infringement of his rights and freedoms.
(3) throughout the trial the parties have the right to be assisted by a lawyer, either chosen or appointed ex officio.
(4) any interference with the activity of those carrying out the defence within legally established confines shall be punished by law. "


Article 28Viaţa intimate, family and private "the State shall respect and protect the intimate, family and life."


Article 30Secretul of correspondence "(1) the State shall ensure the secrecy of letters, telegrams, other postal communications, of telephone conversations and of using other legal means of communication.
(2) the provisions of paragraph (1) may be departed from by law where this derogation is necessary in the interests of national security, economic welfare of the country, public order and preventing crime. "
7. The relevant provisions of the code of criminal procedure of the Republic of Moldova nr. 122-XV of 14 March 2003 (reprinted in the Official Gazette, no. 13, 248-251, art. 699) are as follows: General provisions concerning the work of 1321 special investigations "[...]
(2) Special Measures of investigation shall have and shall be carried out if the following conditions are cumulatively met: [...] 2) is there a reasonable with regard to the preparation or Commission of a serious crime, particularly serious or exceptionally serious, with the exceptions laid down by law; "


Article 1322 special investigative Measures "[...]
     (3) Special Measures of investigation shall be carried out by officers of investigation specialised subdivisions of you indicated in the law concerning special investigative activity. "


The procedure of article 1324 of arrangements of special investigative measures "(1) the Prosecutor who conducts or prosecution, by reasoned order, special investigative measure in carrying out specialized subdivisions of the authorities indicated in the law on special investigation activity.
[…]
(7) special investigative Measure shall be ordered for a period of 30 days with the possibility of being extended based up to 6 months, with the exceptions laid down in this code. "


Article 1325 special measures of investigation Recorded "[...]
(7) if the Ordinance is found/end the legality of conducting special investigative measure, the Prosecutor or the investigation judge, when it authorized the measure shall inform persons who have undergone special investigative measure. In the course of carrying out the criminal prosecution, the investigation judge or Prosecutor may defer judgment, motivated by informing the person subject to special investigation measure, but no later than at the time of termination of criminal prosecution. "


Article 1329 execution and certification of interception and recording of communications "[...]
(15) within 48 hours after finishing the period of authorisation of interception and recording, the Prosecutor presents the investigating judge the report and support the original communications were recorded. Investigation judge is exposed through a discharge over the observance of legal requirements to the interception and recording of communications by the prosecution and decides which of the recorded communications are to be destroyed, designating the persons responsible for the destruction. Destruction of information based on the conclusion of the investigating judge is given by the person responsible in the minutes, which shall be annexed to the criminal cause. "


Article 414 Judgment call "[...]
(2) the Court of appeal shall examine the statements and material evidence examined by the Court of first instance by reading them in court with the recording in the minutes.
(3) where the statements of persons who were heard in the first instance it disputes by the parties, at their request, persons who have submitted them may be heard in the Court of appeal in accordance with the General rules for examination of cases in the first instance. "
In the author's Arguments exception. neconsti-tuționalitate 8. In the non-constitutionality exception, reasoning the author alleges that the provisions of the last sentence of article. 64 para. (2) section 5) of the code of criminal procedure, the Editorial Board of law No. 66 of 5 April 2012, according to which "If the investigation judge authorized the special measures of investigation, the Prosecutor may defer up to 6 months, by reasoned order, bringing the knowledge of the procedural act recognizing as suspect." are unclear and unpredictable.

9. Moreover, the author argues that the exception is art. 1321 point 2) para. (2), (3) 1322 and 1324 para. (1) of the code of criminal procedure did not meet the criteria of quality and predictability of the law because it does not contain detailed provisions regarding the degree of character reasonable suspicion a person for authorizing interception of communications, and does not regulate, as provided for in law No. 59 of 29 March 2012 on the activity of subjects of special investigations, carrying out special investigations activity, whose competencies specialised Subdivision carries out special investigations activity, obligations, rights and liability investigation officer, Prosecutor's powers under special investigation activity.
10. At the same time, the author argues that the exception though, art. 1324 para. (7) first sentence (art. 135 para. (4) the law. 122 of 14 March 2003) and paragraph 11 of resolution 1325 (7) of the code of criminal procedure in the context of the special arrangement and conducting investigative measure expressly establish specific deadlines, however in practice they are not respected, which denotes that the provisions are not clear criticism and allow an erroneous interpretation and application.
11. The author claims that art. 1329 para. (15) does not provide a clear and "concrete possibility to challenge an act constituting a ingerință in fundamental rights", and the procedure for the verification of compliance with legal requirements "the interception and recording of communications" does not provide for the participation of the person, rights which were fenced.
12. Finally, the author claims that the exception provisions of art. 414 para. (2) and (3) of the code of criminal procedure allow the appeals court to confine itself to verifying evidence administered in the first instance, without obeying the direct witnesses.
13. According to the author, the main exception being challenged violated the rules article. 1 (1). (3), 8(1). (1) 16, 20, 21, 23, 26, 28, 30 and 114 of the Constitution.
B. Assessment Of Court 14. Examining the admissibility of non-constitutionality exception, the Court notes the following.
15. In accordance with paragraph 1 of article 135. (1) (a). the control of the Constitution), on notification constitutionality of laws, in particular the code of criminal procedure, is the responsibility of the Constitutional Court.
16. the Court finds that the appeal relating to the exception of unconstitutionality, being raised by Vasile Nicoara lawyer in file No. 1a -1159/15, pending the appellate court of Chișinău, is sought by the regulated subject to this law, 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.
17. the Court reiterates that the prerogative to address the exceptions of unconstitutionality, which has been vested in it by article 135 paragraph 1. (1) (a). g) of the Constitution, requires correlation of laws and the Constitution, taking into account the principle of the supremacy of its provisions and to address the relevance of the contested dispute in the courts.
18. Subject to the exception of unconstitutionality is the provisions of article 64 para. (2) item 5) in the Editorial Board of law No. 66 of 5 April 2012, 1321 para. (2) paragraph 2 paragraph 3.), 1322 (3) paragraphs 1 and 2, 1324. (1) paragraphs 1 and 2, 1324. (7) first sentence (para. 135 (4) the wording of the law. 122 of 14 March 2003), 1329 para. (15) the second sentence of paragraph 1, 414. (2) and (3) and the phrase "but not later than at the time of termination of criminal proceedings" in paragraph 1. (7) article 1325 of the code of criminal procedure.
19. As concerns the constitutionality of the exception of the last sentence of article. 64 para. (2) section 5) of the code of criminal procedure, the Editorial Board of law No. 66 of 5 April 2012, the Court noted that law No. 158 of 28 June 2013 for the article. 64 of the code of criminal procedure the text was criticized. By decision No. 8 of 25 July 2013, the Constitutional Court has noted that the exclusion of the contested exception provision of unconstitutionality has been resolved, and for that reason, in accordance with the provisions of subparagraph (c) of article 60. d) of the code of constitutional jurisdiction, ordered the cessation process.
20. the Court reveals that the author has invoked exception alleged infringement of articles 1 (1). (3), 8(1). (1) 16, 20, 21, 23, 26, 28, 30 and 114 of the Constitution, referring essentially to the inconsistency between the provisions of articles so the code of criminal procedure, as well as the correlation between the rules contained in the code of criminal procedure and the law No. 59 of 29 March 2012 on the work of special investigations.
21. the court notice that a legal provision may constitute the object of the constitutional jurisdiction only where the alleged constitutional rules have impact on the contested rules, and not at all comparing provisions several laws to each other or to the provisions contained in the same law and reporting the findings resulting from this comparison to the provisions of the Constitution principles times.
22. Thus, with regard to the alleged infringement, the Court of the invocation finds that the author has not reasoned exception incidence of constitutional norms on the contested provisions.
23. In this respect, the Court finds that the whole motivation of the author's main exception within the scope of a problematic that excedează control of constitutionality of laws alleged. However, understanding the contents of the legal norms critiqued by correlation with other laws aiming at the interpretation and enforcement of the judgment and the deducted enters the jurisdiction of the courts to settle cases, being specific operations and the exercise of inherent justice, and do not facilitate checks compliance of the law with the Constitution.
24. Thus, the Court notes that, in essence, the provisions of paragraph 1, articles 1321. (2) paragraph 2 paragraph 3.), 1322 (3) paragraphs 1 and 2, 1324. (1) paragraphs 1 and 2, 1324. (7) first sentence (para. 135 (4) the wording of the law. 122 of 14 March 2003), 1329 para. (15) in the second sentence and the phrase "but not later than at the time of termination of criminal proceedings" in paragraph 1. (7) article 1325 of the code of Criminal Procedure regulates the procedure for disposal, the carrying out of special measures and record of investigations, including in the case of interception and recording of communications.
25. The intercepts and records the audio or video are part of special investigations techniques in criminal justice, recognized methods of investigation at european level, which have been the subject of a recommendation to the Committee of Ministers nr. 10 (2005) concerning special investigation techniques in relation to serious crimes including acts of terrorism.
26. In this context, the assessment of the character of a person's reasonable suspicion to authorise interception and recording of communications, the European Court in the case of Roman Zakharov v. Russia (Grand judgment of 4 December 2015) held that: "260. […] [authorizing authority] shall have the power to verify the existence of a reasonable doubt against the person concerned, in particular where there are actually indications to suspect that the person committing or planning to commit crimes or other actions which constitute a basis for the application of measures of secret surveillance, such as, for example, actions that endanger national security. "
27. Thus, the Court indicates that, in accordance with the provisions of art. 1322 of the code of criminal procedure, the interception and recording of communications or images shall be carried out only with the authorization of the judge.
28. At the same time, the Court indicates that the provisions of art. 18 of the law on special investigative activity shall provide that special investigative measures, namely intercepting and recording of communications, shall be made only in the context of a criminal trial, according to the code of criminal procedure. This denotes that the person subject to this special investigative measures shall benefit from all the guarantees of a fair trial.
29. Moreover, the Court stated that the provisions of art. 1325 of the code of Criminal Procedure establish that, at the end of the special measure of investigation, the investigation judge is obliged to declare null the minutes and to order the immediate destruction of material information and other materials accumulated in the course of carrying out special investigations measure if it finds that the measure has been carried out in violation of the manifest of human rights and freedoms.
30. Also in accordance with art. 13211 from the criminal procedure code, evidence relating to the interception and recording of communications may be the subject of technical expertise at the request of the Prosecutor, to the parties concerned or ex officio by the Court. Thus, the procedural legislation in force shall ensure that criminal judicial and in this area, the judge having regard to the obligation to examine the validity of such evidence in all aspects of the legality and appropriateness of the authorisation and of carrying out those measures.

31. Therefore, the Court points out that it is the obligation of the courts to decide on the admissibility or inadmisibilităţii all administered under criminal investigation, which is to be debated in contradictory by the parties within the framework of public hearings.
32. According to article 305 paragraphs 4 and 5. (8) of the criminal procedure code, the conclusion of the investigating judge, adopted as a result of appeals relating to conducting criminal investigations or special measures, may be challenged with appeal to the Court of appeal. However, verification of compliance with the rules of criminal procedure acts is the exclusive responsibility of the courts, and only able to assess in concreto the effects of applying the rule to the facts in each case the court deduced in part.
33. In view of the stated supra, the Court may not withhold criticism of the text of the law in relation to the provisions of article 20 of the Constitution concerning freedom of access to justice and article 26 of the Constitution, which guarantees the right to self-defence, whereas the laws subject to the exception does not prevent the suspect, indicted or defendant to challenge the legality of the arrangement, conducting, recording and certification of interception and recording of communications, nor does not prohibit in criminal proceedings, to be assisted by a defender.
34. In the take of constitutionality of articles alleged. 414 para. (2) and (3) of the code of criminal procedure, the Court notes that, although the provisions of paragraph (2) shall provide that the Court of appeal shall examine the statements and material evidence examined by the Court of first instance by reading them in court with the recording in the minutes, however, the provisions of paragraph (3) shall provide for procedural guarantees, which determine the ability of the hearing in the Court of appeal, in accordance with the General rules for examination of cases in first instance persons who have submitted testimonials in the first instance in the case are disputed: statements by the parties, thus ensuring the right to defence in such proceedings.
35. In this regard, the Court cannot retain that article. 414 para. (2) and (3) of the criminal procedure code contradict the constitutional guarantees established by art. 20 of the Constitution. However, the Court notes that the implementation of the guarantees of a fair trial in proceedings before the courts of appeal depends on the special features of the proceedings in question, to take into account the totality of the procedures and the role of the Court of appeal in the internal legal order (Botten v. Norway, no. 16206/90, judgement of 19 February 1996, § 39).
36. Therefore, given that the plea of unconstitutionality addresses situations of fact, namely the scope of the contested rules, remember that it is for the Court to determine whether the laws are respected concerning the arrangement, conducting, recording and certifying of interception and recording of communications. However, the Court is not competent to examine the application of laws in a concrete situation.
37. With reference to invoke article. 1 (1). (3) paragraphs 1 and 2 and 8. (1) of the Constitution, the Court note that these constitutional acts constitutes a generic character, overriding the general order-mandatory, form the basis of any regulatory approvals cannot constitute separate and individual landmarks.
38. Furthermore, the constitutional norm contained in article 22. 16 does not have autonomous significance and to be applied in combination with constitutional rules guaranteeing a fundamental right.
39. At the same time, the Court noted that the provisions of articles 21, 28, 30 and 114 of the Constitution they have not affected by this issue.
40. In the light of the above, the Court noted that the appeal is unfounded and cannot be accepted for examination.
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 the PT 28 lit. d) of the regulation on the procedure for examining complaints lodged with the Constitutional Court, the Constitutional Court DECIDES: 1. To be declared inadmissible the appeal regarding plea of unconstitutionality of the following provisions of the code of criminal procedure of the Republic of Moldova nr. 122-XV of 14 March 2003:-in article 64, paragraph 2, item 5), the Editorial Board of law No. 66 April 5, 2012 for the modification and completion of the code of criminal procedure of the Republic of Moldova nr. 122-XV of 14 March 2003;
-1321 items (2), item 2), (3) 1322 and 1324 (1);
-Article 1324 (7) first sentence (article 135, paragraph 4 in the redaction of law No. 122 of 14 March 2003);
-the phrase "but not later than at the time of termination of criminal proceedings" in paragraph 7 of article 1325;
-Article 1329 (15), second sentence;
-Article 414 (2) and (3) exception raised by lawyer Vasile Nicoara in file No. 1a -1159/15, pending at the Court of appeal.
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

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