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Inadmissibility Of Referral No. 124G/2016-Constitutionality Exception Relating To Certain Provisions Of The Code Of Criminal Procedure Of The Republic Of Moldova (Arrangement And Conducting Special Investigative Measure)

Original Language Title: de inadmisibilitate a sesizării nr. 124g/2016 privind excepția de neconstituționalitate a unor prevederi din Codul de procedură penală al Republicii Moldova(dispunerea şi efectuarea măsurii speciale de investigaţii)

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    The Constitutional Court, acting as part of Mr. Alexandru Tanase, President, Mr. Aurel BĂIEŞU, Mr. Talbot GEOGRAPHIC LOCATION, Mr. Victor PALMER, Mr. Zadrahimi, judges, with the participation of Mr Darroch Avornic, Registrar, considering the appeal filed on 24 October 2016, recorded at the same time, examining the admissibility of the referral, taking into account the laws and proceedings, Acting on 18 November 2016 in Council 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:-1321 items (2), item 2), 1322 (1), item 2). b), c), and (3) and 1324 (1);
-Article 1324 (7) first sentence;
-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;
1346-articles and 135 (1), the exception raised by lawyer Vasile Nicoara in file No. 1-293/15, pending the Court Center, mun. Chişinău.
2. The appeal was lodged with the Constitutional Court on 24 October 2016 by the Panel of judges within the Court Center, mun. Chişinău (Abd Muhsen, Natalia Hominy, Alexander Abrahams), 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, 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 Center Court, mun. Chişinău, is criminal in respect of his cause given that V.P. charged with offence referred to in articles 30 and 324 para. (3) (a). of the Criminal Code).
4. At the hearing of the Court of 19 October 2016, the lawyer Vasile Nicoara raised the plea of unconstitutionality of certain provisions of the code of criminal procedure, referred to in § 1.
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 30 the secret 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 measures of investigation "(1) for the purposes of discovery and research of crime is carried out the following special measures of investigation: [...]
2) with the authorization of the Prosecutor: [...] b) Visual tracking;
(c) the transmission or receipt of) the control of money, services or other material or non-material values claimed, accepted, extorcate or offered;
[…]
(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 1346 Visual Tracking "Visual Tracking means revealing and dropping actions, of immovable property, transport vehicles and other objects."


Article 135Controlul of the transmission or the receipt of money, services or other material or non-material values claimed, accepted, extorcate or offered "(1) the control of the transmission or the receipt of money, services or other material or non-material values claimed, accepted, extorcate or provided means of handing over or supervision and documentation of teaching money, services or other material or non-material values to the person that you claim supports extorcă, or the person that they offer, as well as by or by their accomplices.
[…]”
In the author's Arguments exception. neconsti-tuționalitate 8. In the non-constitutionality exception, reasoning the author claims that articles 1321 para. (2) paragraph 2 paragraph 3.), 1322 (3) and paragraph 11 of resolution 1324 (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 authorisation of 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.
9. At the same time, the author argues that the exception, though art. 1324 para. (7) first sentence 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 these are not respected, which denotes that the provisions are not clear criticism and allow an erroneous interpretation and application.
10. The author claims that the provisions of art. 1329 para. (15) the second sentence of the criminal procedure code contravene art. 32 para. (1) of law No. 780 of 27 December 2001 on the legislative acts, under which "basic structural Element of the legislative act is article. He has a unitary character and contains one or more provisions directly related to each other and subordinate to one and the same ideas. "
11. Finally, the author claims that the exception provisions of art. 1322 para. (1) point 2). b), c), and paragraph 11 of resolution 1346 135 (1) of the criminal procedure code, interpreted as meaning that the special investigative measures, covered by such laws, it shall be carried out at the prosecution stage, are unconstitutional, does not have a unitary character, and how to interpret their actions give rise to challenge/simulation events.
12. According to the author, the main exception being challenged violated the rules article. 1 (1). (3), 8(1). (1) 16, 20, 21, 26, 28 and 30 of the Constitution.
B. Assessment Of Court 13. Examining the admissibility of neconsti-tuționalitate exception, the Court notes the following.
14. 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.
15. the Court finds that the appeal relating to the exception of unconstitutionality, being raised by Vasile Nicoara lawyer in file No. 1-293/15, pending the Court Center, mun. Chişinău, is made by the subject entrusted this right 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.
16. 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.
17. Subject to the exception of unconstitutionality are the provisions of articles 1321 para. (2) paragraph 2 paragraph 3.), 1322 (1) point 2) letter b), c), and paragraphs 1 and 2. (3) paragraphs 1 and 2, 1324. (1) and paragraphs 1 and 2. (7) first sentence, the phrase "but not later than at the time of termination of criminal proceedings" in paragraph 1. (7) article 1325, 1329 para. (15) the second sentence of paragraph 1, 1346 and 135. (1) of the code of criminal procedure.
18. the Court note that the author has invoked exception of unconstitutionality alleged infringement of articles 1 (1). (3), 8(1). (1) 16, 20, 21, 23, 26, 28 and 30 of the Constitution.
19. In examining the plea of unconstitutionality, the Court finds that the subject of the referral is similar to the subject of referrals No. 2016 and 70 g/No. 84g/2016, which were declared inadmissible by decision No. 39 of 8 July 2016 and no. 67 of 12 October 2016.
20. the Court notes that, whereas the subject of referral No. 124g/2016 is identical with the subject of referrals No. 2016 and 70 g/No. 84g/2016 and no new elements have occurred such that Court reconsidering both the solution and the considerations set out in decisions No. 39 of 8 July 2016 and no. 67 of 12 October 2016 applies in this matter.
21. With regard to criticism of the unconstitutionality of article 4. 1322 para. (1) (a). (b)) and art. 1346 of the code of criminal procedure, the Court observes that the author has not proved the exception provisions relied upon the incidence of constitutional rules challenged.
22. Therefore, the appeal does not meet the conditions for eligibility and cannot be accepted for examination.

For the reasons stated under article 26 para. (1) of the law on the Constitutional Court, articles 61 para. (3) and 64 of the code of constitutional jurisdiction and the PT 28 lit. b) and 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:-1321 items (2), item 2), 1322 (1), item 2) b), c), and (3) and 1324 (1);
-Article 1324 (7) first sentence;
-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;
1346-articles and 135 (1), the exception raised by lawyer Vasile Nicoara in file No. 1-293/15, pending the Court Center, mun. Chişinău.
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