Law on Operative Investigation Activity
(1994 as amended 2003)
Posted
December 5, 2005
Country
Moldova
Document Type
Primary Legislation
Topic name
Trafficking in Human Beings
LAW OF THE REPUBLIC OF MOLDOVA
on operative investigation activity
No.45-XIII of 12.04.1994
Official Gazette of the Republic of Moldova No.11-13 of 31.01.2003
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 abovementioned 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.