RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF MOLDOVA

of December 12, 2024 No. 26

About exceptional case of illegality of Art. 427 of h (2) the Code about offenses (withdrawal of information on telephone negotiations)
(addresses No. 116g/2024 of, No. 117g/2024 of and No. 118g/2024 of)

Name of the Republic of Moldova

Constitutional court in structure:

Domnika MANOLE, chairman,

Viorika PUYKA,

Nicolae ROSHKA,

Liouba of SHOVA,

Sergey TSURKAN, judges,

with the assistance of the assistant judge Yulia Vartik,

in view of addresses,

registered on May 27, 2024,

having considered the specified addresses in open plenary meeting,

considering acts and case papers,

having carried out discussion in the consultative room,

issues the following decree.

Points of order

1. Addresses about exceptional case of illegality of Art. 427 of h formed the basis for consideration of the case (2) the Code about offenses, provided at the initiative of judicial structure on behalf of Stefan Startschuk, Grigory Kolev and Dmitry Fuzhenko, within cases on offenses No. 13r-1/2024, No. 13r-2/2024 and No. 13r-3/2024, considered in Appeal chamber Comrat.

2. Addresses about exceptional case of illegality were brought into the Constitutional court by judicial structure of Appeal chamber Comrat, according to provisions of Art. 135 of h (1) the item and) and the item g) Constitutions.

3. In view of identity of subject of addresses, the Constitutional court, according to provisions of Art. 43 of the Code of the constitutional jurisdiction, combined them in one case at No. 116g/2024.

4. Determination of the Constitutional court of September 26, 2024, without decision in essence, addresses were recognized as acceptable.

5. During consideration of addresses the Constitutional court requested opinion of Parliament, the President of the Republic of Moldova, the Government, the Prosecutor General's Office, the National lawyer and Institute of criminal reforms.

6. In open session of the Constitutional court from Parliament and the Government the main consultant of service of representation Victoria Kashu, and, respectively, the state secretary of the Ministry of Justice, Eduard Serbenko took part in the Constitutional court.

Actual circumstances

7. The stating subject Inspektorata of police Comrat filed a lawsuit on April 4, 2024 Comrat three petitions for authorization of withdrawal in JSC Orange, JSC Moldcell and JSC Unite of information on telephone negotiations. The stating subject noted that withdrawal of information on telephone negotiations based on Art. 427 of the h. (2) the Code about offenses it is necessary to find the lost phone. Petitions were submitted on the case of theft in insignificant sizes, offense which attracts action of Art. 105 of the Code about offenses.

8. Comrat (the main office) from the same number of the petition were rejected by determinations of court. Without having agreed with the taken-out determinations, the stating subject appealed them in cassation procedure in Appeal chamber Comrat.

9. During consideration of writs of appeal the structure of court on behalf of Stefan Startschuk, Grigory Kolev and Dmitry Fuzhenko was given by addresses about exceptional case of illegality of Art. 427 of h (2) the Code about offenses.

10. Three determinations of April 30, 2024 judicial structure of Appeal chamber Comrat sent appeals about exceptional case of illegality to the Constitutional court for permission.

A. Applicable legislation

11. Applicable provisions of the Constitution:

Article 23. Right of each person to knowledge of the rights and obligations

"(1) Each person has the right to recognition of its legal personality.

(2) the State provides the right of each person to knowledge of the rights and obligations. For this purpose the state publishes all laws and other regulations and provides their availability".

Article 30. Mystery of correspondence

"(1) the State provides the secrecy of letters, telegrams and other mailings, telephone negotiations and other legal types of communication.

(2) Departures from part provisions (1) are allowed by the law in cases, when necessary for the benefit of homeland security, economic well-being of nation, public order and for the purpose of prevention of crimes".

12. Applicable regulations of the Code on offenses approved by the Law No. 218 of October 24, 2008:

Article 42-7. Bases for withdrawal of things and documents

"[…]

(2) Withdrawal of the documents containing the data which are the state, trade, bank secret and also information on telephone negotiations is made only from the sanction of the judge on criminal prosecution.

[…]".

Points of law

A. Arguments of the author of addresses

13. In addresses the author notes that the provision "withdrawal of information on telephone negotiations" in the h. (2) Art. 427 of the Code about offenses is not clear as does not provide conditions under which it can be approved withdrawal of information, and also does not determine what data are subject to withdrawal. The similar evidential method which can be applied in case of investigation of all types of offenses constitutes the intervention which is not provided by the law in implementation of the right to the mystery of correspondence, in sense of Art. 8 of the European convention on human rights.

14. On statements of the author of the address, for lack of exact determination of types of data all data provided by Art. 138-4 of the Code of penal procedure can be withdrawn. Nevertheless, provisions of Art. 138-4 of the Code of penal procedure provide special search measure which can be applied only as ultima ratio, being necessary and proportional only in the presence of reasonable suspicions of preparation or making of heavy, especially heavy and extremely serious crime. On the other hand, judicial control of dredging of information on telephone negotiations is limited only to determination of proportionality of evidential method.

15. The author of addresses notes that the arguments stated in the Resolution of the Constitutional court No. 22 of December 19, 2023 connected with guarantees of withdrawal of information on telephone negotiations have primenitelny value and concerning Art. 427 of the h. (2) the Code about offenses. According to the author though withdrawal by the stating subject of information on telephone negotiations can be useful to disclosure of offenses, the admission to these data shall be followed by the guarantees applied concerning special search events.

16. According to the author of the address, the challenged provisions contradict the Art. 8, of Art. 23 and Art. 30 of the Constitution.

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