No.45-XIII
of 12.04.1994
The Parliament of the Republic of
Moldova herewith adopts the present law.
Chapter
1
GENERAL
PROVISIONS
Article 1. Operative investigation
activity
(1) The operative investigation
activity, the lawfulness of which is guaranteed by the present law, is a state
legal mean of defending the state interests, its territorial integrity, the
rights, freedoms and legitimate interests of individuals and legal entities, as
well as all forms of property against criminal attempts.
(2) The operative investigation
activity shall be exercised in a public and secret manner, by the operative
structures of the state bodies, empowered to such ends by the present law,
within the scope of their competence.
Article 2. Tasks of the operative
investigation activity
The tasks of the operative
investigation activity shall be:
a)
finding of criminal attempts, prevention, deterrence, detection of crimes and
persons setting them up, committing or having committed them, as well as
ensuring the compensation of damages caused by the crime;
b)
searching for persons who are hiding from the criminal prosecution bodies or
court or who are absconding from criminal sanction, as well as those who have
disappeared without trace;
{New}[Let.b)
as amended by the Law no.206-XV of 29.05.2003]
c)
gathering information about events or actions which jeopardize the state,
military, economic or ecological security of the Republic of Moldova.
Article 3. Principles of operative
investigation activity
The operative investigation activity
shall be based on the following principles:
-
rule of law;
-
observance of the human rights and freedoms;
-
combination of public and secret methods;
-
cooperation with other state bodies;
-
deideologization and objectivity.
Article 4. Legal basis of the
operative investigation activity
(1) The Constitution, the present
law and other regulatory acts adopted in compliance with these shall be the
legal basis of the operative investigation activity.
(2) The bodies exercising operative
investigation activity shall issue, within the scope of their competence, in
compliance with the law and in agreement with the Supreme Court of Justice and
Prosecutor General's Office, departmental regulatory acts dealing with the organization,
methods and tactics of conducting operative investigation measures.
Article 5. Observance of human
rights and freedoms during operative investigation activity
(1) The conduct of operative
investigation measures for the achievement of goals and tasks not provided in
the present law shall be inadmissible.
(2) The person considering that the
actions of the body conducting operative investigation measures have led to the
infringement of his rights and freedoms, may contest these actions in the hierarchic
superior body, prosecutor's office or court.
(3) To ensure the complete and
multilateral consideration of the complaint lodged by the person, towards whom
operative investigation measures were groundlessly imposed, the bodies that
have exercised them shall have the duty to submit him all the operative service
acts at the prosecutor's request. The data on the persons who have contributed
confidentially to the conduct of operative investigation measures shall be
submitted only at the Prosecutor General's request.
(4) Whether the body (official
person) exercising operative investigation activity violates the human rights
and freedoms of individuals and legal entities, the hierarchic superior body or
the prosecutor shall have the duty to take measures for the restoration of
these rights and legitimate interests, compensation of the caused damages,
according to the legislation.
(5) The operative investigation
activity conducted in violation of the present law shall entail liability under
the law.
Chapter
2
CONDUCT
OF OPERATIVE INVESTIGATION MEASURES
Article 6. Operative investigation
measures
(1) Operative investigation measures
shall be carried out only in compliance with the criminal procedure law and
only when there is no other way to ensure the fulfillment of the tasks provided
under article 2.
{New}[Par. (1) as amended by the Law
No.206-XV of 29.05.2003]
(2) For the purpose of fulfilling
the indicated tasks, the bodies conducting operative investigation activity,
with due observance of the conspiracy rules, shall be entitled to:
a)
question the citizens;
b)
gather information;
c)
track visually;
d)
track and document by using modern technical methods and means;
e)
gather materials (samples) for comparative examination;
f)
carry out control acquisitions and controlled deliveries of goods and products
of the unlimited or limited circuit;
g)
examine items and acts;
h)
identify the person;
i)
examine premises, buildings, portions of land and transportation means;
j)
control postal parcels;
k)
examine the correspondence of convicts;
l)
intercept telephone and other conversations;
m)
gather information from the technical communication channels;
n)
hold conversations with the suspect with the application of the lie detector;
o)
mark with chemical or other special substances;
p)
infiltrate operatively in criminal organizations titular officers from the
operative subdivisions and persons confidentially collaborating with the bodies
conducting operative investigation activity, using undercover identity acts or
other such documents;
[Let.p)
as amended by the Law No.197-XV of 15.05.2003]
r)
control the transmittal of money or other material values, proceeds of
extortion.
The operative investigation measures
provided under letters j), l), m), p) and r) shall be carried out only by the
Ministry of Interior, Intelligence and Security Service of the Republic of
Moldova and the Center for Fighting Against Economic Crimes and Corruption
under the conditions of the law and only when these measures are necessary for
the safeguarding of the national security, public order, economic welfare of
the country, maintenance of the order of law and prevention of extremely severe
and exceptionally severe crimes, health protection, protection of morals of for
the defense of the rights and freedoms of other persons.
{New}[Par. (2) as amended by the Law
No.206-XV of 29.05.2003]
(3) The list of actions provided
under par.(2) is exhaustive and may be amended only by the law.
(4) During the conduct of operative
investigation measures, there may be used informational systems, video, audio
recording devices, filming, photographing and other modern technical devices.
(5) The official persons from the
bodies conducting operative investigation activity shall participate personally
in the organization and fulfillment of operative investigation measures,
applying, if the case, to the assistance of official persons and specialists
from various fields of expertise, as well as of some citizens collaborating
voluntarily, in a public or secret manner, with the bodies conducting operative
investigation activity.
Article 7. Grounds for the conduct
of operative investigation measures
(1) The grounds for the conduct of
operative investigation measures shall be:
a)
unclear circumstances connected to the introduced criminal proceedings;
b)
information which became clear to the bodies exercising operative investigation
activity:
-
dealing with an illegal action in course of preparation, commission or which
has been committed, if the data for the institution of the criminal proceedings
are insufficient;
-
dealing with persons who are hiding from the criminal prosecution bodies or
court or which are absconding from criminal sanction;
-
dealing with persons who have disappeared without trace as well as dealing with
the detection of unidentified corpses;
{New}[Let.b)
as amended by the Law No.206-XV of 29.05.2003]
c)
tasks of the criminal prosecution officer or the decision of the court in
criminal cases pending before it;
{New}[Let.c)
as amended by the Law No.206-XV of 29.05.2003]
d)
interpellations of the bodies exercising operative investigation activity,
based on the grounds provided in the present article;
e)
interpellations of the international law enforcement organizations and of the
foreign law enforcement authorities, according to the international treaties to
which the Republic of Moldova is a party to.
(2) The conduct of operative
investigation measures shall be authorized by the decision of the head of the
body exercising operative investigation activity or his deputy in charge of
operative investigation activity issues.
(3) The bodies exercising operative
investigation activity shall be entitled, within the scope of their competence,
to collect needed information featuring the suspects:
a)
regarding their access to information representing state secret;
b)
regarding their admission to work in places posing an increased danger to human
life and health, as well as the environment;
c)
regarding their admission to the operative investigation activity or
access to the materials received during the enforcement;
d)
regarding the establishment or maintenance with them of collaboration
relationships in the preparation and conduct of operative investigation
measures;
e)
connected with issuance in their respect of the authorization for the unfolding
of non-state detection-protection activity.
The bodies conducting operative
investigation activity, shall, within the scope of their competence, be
entitled to gather intelligence for the purpose of ensuring their personal
security.
Article 8. Conditions and manner of
conducting the operative investigation measures
(1) The conduct of operative
investigation measures violating rights safeguarded by the law – the secrecy of
correspondence, phone talks and other conversations, communications by
telegraph, as well as the inviolability of home – shall be admissible only for
the purpose of collecting information about the persons preparing or attempting
to commit extremely severe crimes or exceptionally severe crimes and only with
the authorization of the instruction judge, based on the motivated decision of
one of the heads of the respective body, conducting operative investigation
activity. The list of such heads shall be established in departmental
regulatory acts.
{New}[Par (1) as amended by the Law
No.206-XV of 29.05.2003]
(2) In emergency cases which may
bring about the commission of an extremely severe or exceptionally severe
crime, based on the motivated conclusion of one of the heads of the respective
body conducting operative investigation activity, there shall be admissible the
performance of operative investigation measures, provided that the instruction
judge is presented the collected materials within 24 hours, with an indication
of the reasons for the performance of these measures. The instruction judge
shall verify the lawfulness of such operative instigation measures' conduct.
{New}[Par (2) as amended by the Law
No.206-XV of 29.05.2003]
(3) In case of danger threatening
the life, health and property of some persons, upon the request or with their
written consent, there shall be admissible to tap the conversations through
their phones or through other devices of intercommunications, based on the
decision approved by the head of the body conducting operative investigation
activity, with the authorization of the instruction judge.
{New}[Par (3) as amended by the Law
No.206-XV of 29.05.2003]
(4) The operative investigation
measures ensuring the activity bodies of interior from the penitentiary system,
state security, Center for Fighting against Economic Crimes and Corruption, as
well as defense shall be carried out according to the provisions of the present
law.
(5) The control over the
transmission of money and other material goods proceeds of extortion shall be
performed if a concrete person had made a statement regarding the fact of
extortion, based on the motivated decision of one of the heads of the body
conducting operative investigation activity, approved by the prosecutor heading
or conducting the criminal prosecution in that particular case.
{New}[Par (5) as amended by the Law
No.206-XV of 29.05.2003]
Article 9. Exercise of operative
control
(1) In case of the grounds provided
under article 7, the bodies conducting operative investigation activity shall be
entitled to exercise operative control. The exercise of operative control shall
be subjected to mandatory registration.
(2) Operative control shall be
exercised with the authorization and under the supervision of the head of the
body conducting it. The results of the operative investigation measures shall
be reflected in the operative service acts and shall be systematized.
[Par. (3) excluded by the Law
No.197-XV of 15.05.2003]
[Numbering as amended by the Law
No.197-XV din 15.05.2003]
(3) Operative control shall be
suspended in case of settling of concrete tasks of the operative investigation
activity provided under article 2 or establishing the circumstances proving the
objective impossibility to achieve these tasks.
Article 10. Utilization of the
results of the operative investigation activity
(1) The results of the operative
investigation activity may be utilized in the preparation and performance of
criminal prosecution actions and conduct of operative investigation measures
for the purpose of prevention, deterrence and detection of crimes, as well as
they may be used as evidence in criminal cases.
{New}[Par (1) as amended by the Law
No.206-XV of 29.05.2003]
(2) The materials of the operative
control may not serve as basis for the limitation of rights and legitimate
interests of individuals and legal entities.
(3) The information about the
forces, means, sources (except for the persons offering support to the bodies
conducting such measures), methods, plans and results of the operative
investigation activity, as well as about the organization and tactics of
conducting the operative investigation measures, which constitute a state
secret, may be declassified only in compliance with the law.
Chapter
3
DUTIES
AND RIGHTS OF THE BODIES CONDUCTING
OPERATIVE INVESTIGATION ACTIVITY
Article 11. Bodies conducting
operative investigation activity
(1) The operative investigation
activity shall be conducted by the bodies subordinated to the Ministry of
Interior, Ministry of Defense, Intelligence and Security Service of the
Republic of Moldova, State Protection and Guard Service, Customs Control
Department of the Ministry of Finance, Department of the Penitentiary
Institutions of the Ministry of Justice, Border Troops Department, as well as
the Center for Fighting against Economic Crimes and Corruption.
(2) The bodies conducting operative
investigation activity shall perform their duties in an independent manner, in
interaction or with the assistance of citizens.
Article 12. Duties of the bodies
conducting operative investigation activity
While fulfilling the tasks
established by the present law, the bodies empowered to conduct operative
investigation activity shall have the duty:
a)
to take all the necessary measures, within the scope of their competence, for
the protection of the human rights and freedoms, all the forms of property,
protected by law, for the guaranteeing of the public and state security;
b)
to carry out the written assignments of the criminal investigation officer,
indications of the prosecutor and judgments of the courts dealing with the
performance of the operative investigation measures for the criminal files
received by them in course of procedure.
{New}[Let.b)
as amended by the Law No.206-XV of 29.05.2003]
c)
to grant legal assistance based on contracts (agreements) to the respective law
enforcement from other states;
d)
to inform other bodies conducting operative investigation activity about found
occurrences of illegal activity which fall under the competence of these bodies
and to provide them assistance;
e)
to observe the conspiracy rules in the conduct of operative investigation
activity;
f)
to contribute to the safeguarding of the personal security and goods' integrity
of the officers, of their family members, relatives, as well as of the
participants at the criminal procedure, of their family members and relatives
against the criminal attempts and other illegal actions.
Article 13. Rights of the bodies
conducting operative investigation activity
(1) While fulfilling the tasks
established by the present law, the bodies empowered to conduct operative
investigation activity shall have the right:
a)
to conduct the operative investigation measures listed in article 6;
b)
to establish relations with the persons who consented to collaborate in a
confidential manner with the bodies conducting operative investigation
activity;
c)
to create and use informational systems ensuring the fulfillment of the tasks
of the operative investigation activity;
d)
to use, during the conduct of operative investigation measures, based on
contract or verbal agreement, service premises, assets of the enterprises,
institutions, organizations, military units, as well as the dwelling,
transportation means and other assets of private persons;
e)
to make, arrange and use documents, in compliance with the instructions
coordinated with the Prosecutor General and approved by the head of the
respective ministry or department, codifying the identity of the officials, the
departmental subordination of the subdivisions, organizations, premises and
transportation means of the bodies conducting operative investigation activity,
as well as of the persons collaborating with these bodies confidentially. The
operative measures connected to the making and arrangement of the
above-mentioned documents shall be carried out only by the operative
subdivisions of the Ministry of Interior, Center for Fighting against Economic
Crimes and Corruption and Intelligence and Security Service of the Republic of
Moldova;
[Let.e)
as amended by the Law No.197-XV din 15.05.2003]
f)
to set up enterprises, organizations and subdivisions, according to the
legislation, for the settlement of tasks provided in the present law.
[Let.f) as amended by the Law
No.197-XV din 15.05.2003]
(2) Officials shall not be entitled
to hinder the bodies indicated in the present law to conduct operative
investigation activity within the scope of their competence.
Article 14. Social and legal
protection of the officials from the bodies conducting operative investigation
activity
(1) The guarantees of legal and
social protection of the officers from the bodies conducting operative
investigation activity shall extend to the officials of these bodies as well.
(2) Nobody shall be entitled to
interfere with the legitimate actions of the officials and bodies conducting
operative investigation activity, save the persons directly empowered by the
law.
(3) The official empowered with the
conduct of the operative investigation activity shall be subordinated during
the conduct of operative investigation measures only to the person in charge of
this measure.
Chapter
4
ASSISTANCE
GRANTED TO THE BODIES CONDUCTING
OPERATIVE INVESTIGATION ACTIVITY
Article 15. Involvement of citizens
in the collaboration with the bodies conducting operative investigation
activity
(1) Certain citizens, with their
previous consent, may be involved in the preparation or conduct of the
operative investigation measures in a confidential manner, including on
contractual basis. These persons shall have the duty to keep the secrecy of the
information which became known to them in the course of the operative
investigation activity and may not present to the bodies conducting such
activity obviously false information.
(2) The bodies exercising operative
investigation activity may conclude contracts with adults with capacity to act,
regardless their citizenship, nationality, sex, social, official and
patrimonial situation, political and religious beliefs, belonging to public
organizations.
(3) The bodies conducting operative
investigation activity shall be prohibited to use in their activity
confidential assistance, contract-based, from the behalf of members of the
Parliament, judges and prosecutors.
Article 16. Social and legal
protection of the persons granting assistance to the bodies conducting
operative investigation activity
(1) The persons granting assistance
to the bodies conducting operative investigation activity shall be under the
state protection.
(2) In case a real threat of illegal
attempt to the life, health and property of some persons arises in relation to
the assistance granted to the bodies conducting operative investigation
activity, as well as to the members of their families and relatives, the
respective bodies shall be bound to take the necessary measures for the
prevention of the illegal actions, identification of the guilty and their
bringing to criminal liability.
(3) The information about the persons
infiltrated in the criminal organizations, about the notorious officers of the
bodies conducting operative investigation activity who are working undercover,
as well as about the persons granting and who have granted confidentially
assistance to these bodies, may be made public only with the written approval
of these persons and only in the cases strictly regulated by the law.
(4) The persons collaborating with
the bodies conducting operative investigation activity shall be entitled to
free of charge, as well as rewarded assistance.
(5) The state shall guarantee the
persons who have given their consent to collaborate, contract-based, with the
bodies conducting operative investigation activity the observance of the
obligations provided in the contract.
(6) The period of the contract-based
collaboration of the citizens with the bodies conducting operative
investigation activity shall be included in the period of the work experience,
as primary occupation. The indicated persons shall be entitled to pension, according
to the law.
(7) For the purpose of ensuring the
security of the persons collaborating contract-based with the bodies conducting
operative investigation activity, the members of their families and relatives
special measures for their protection, as established by the Government, shall
be allowed.
(8) In case of decease of the person
collaborating contract-based with the bodies conducting operative investigation
activity, in relation with his participation in the preparation and conduct of
the operative investigation measures, the family of the deceased and the
persons supported by him shall be paid means from the respective budget as a
sole indemnity in the amount of the financial means for a ten years maintenance
and, according to the law, they shall be established a pension for the loss of
the breadwinner.
(9) In case of wounding, contusion,
mutilation or another injury of the person collaborating contract-based with
the bodies conducting operative investigation activity in relation with his
participation in the preparation and conduct of the operative investigation
measures, which deprives him of the possibility to collaborate further on, he
shall be paid means from the respective budget as a sole indemnity in the
amount of the financial means for a five years maintenance and, according to
the law, they shall be established a pension for disability.
Chapter
5
FINANCIAL
ENSURANCE OF THE OPERATIVE INVESTIGATION ACTIVITY
Article 17. Financing of the
operative investigation activity
(1) The ministries and departments
empowered to conduct operative investigation activity shall be allocated, for
this purpose, financial means from the state budget.
(2) The control over the spending of
the financial means allocated for the operative investigation activity shall be
exercised by the heads of the respective ministries, as well as by a specially
empowered representative of the Ministry of Finance.
Chapter
6
CONTROL
AND SUPERVISION OF THE OPERATIVE INVESTIGATION ACTIVITY
Article 18. Parliamentary control
The control from the behalf of the
Parliament over the operative investigation activity shall be exercised by the
respective permanent commissions of the Parliament. The bodies conducting
operative investigation activity shall have the duty to present them
information in compliance with the law.
Article 19. Supervision exerted by
the prosecutor
(1) Enforcement of laws by the
bodies conducting operative investigation activity and the lawfulness of the
decisions taken by these bodies shall be under the supervision of the
Prosecutor General, his deputies and prosecutors from municipalities and
districts, prosecutors from the anticorruption prosecutor's office and
leadership of the criminal prosecution, and in cases provided by the criminal
procedure – of the instruction judge.
{New}[Par.(1) as amended by the Law
No.206-XV of 29.05.2003]
(2) The activity of the persons who
have granted or who are granting assistance confidentially to the bodies
conducting operative investigation measures shall be supervised by the
Prosecutor General's or another prosecutor, especially appointed for this by
the Prosecutor General order.
PRESIDENT OF THE
REPUBLIC OF MOLDOVA
Mircea
SNEGUR
Chisinau, 12 of April 1994. No. 45-XIII.
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