The Law on Investigative Commissions/"Constitution" partially accepts the opposition's request

2024-07-09 19:10:00, Aktualitet CNA

The Law on Investigative Commissions/"Constitution" partially accepts

The Constitutional Court has partially accepted the opposition's request for the law on investigative commissions.

As a result, the Constitutional Court has abolished several articles of the law on investigative commissions.

The court has given 6 months to the Assembly to regulate the law on Investigative Commissions.

Regarding the merits of the case, the Court decided to partially accept the request, as follows:

1-Unanimity, finding the incompatibility with the Constitution of Article 4 of Law no. 106/2023, related to the initiative for the creation of the investigative commission, due to the legal gap in the content of this provision. The legal gap has to do with the need for "alternative formulations of the object of the investigation", as stated by the Court in its jurisprudence (decision no. 30/2014), as it infringes, in essence, the right of the parliamentary minority to establish the investigative commission .

For the above, the Court, without questioning the binding force of its decisions, notes that, although during the trial it was established that this provision was intended to reflect the constitutional jurisprudence, this reflection is incomplete, as long as they have been reflected only three criteria: i) the issue must be related to the legislative function and other functions of the Assembly; ii) the object of the investigation must focus on concrete issues or subjects; iii) there must be sufficient data or evidence for the existence of the case for which the establishment of the investigative commission is requested.

By leaving out of these criteria the "alternative formulation" of the object of the investigation, as one of the elements that enables the establishment of the investigative commission, the current formulation of the legal provision leads to the infringement to the point of impossibility of exercising the right of the parliamentary minority.

The court emphasized that parliamentary control is related to the direct democratic legitimacy of the Parliament and through it the governance itself also gains legitimacy.

2- By a majority of votes, the finding of incompatibility with the Constitution of the content of Article 7 of Law no. 106/2023, which provides for the interim decision to take evidence, due to the legal gap in its content, as long as this formulation does not contain full procedural guarantees to guarantee the right of the parliamentary minority to effective parliamentary control. Taking evidence from the commission of inquiry should aim to bring "light into the darkness" in order to enable the clarification of political responsibilities. The interim decision to reject evidence should be an exception to the general rule that evidence requested by the parliamentary minority should be taken. The decision to reject evidence must be justified in terms of reasons. A rejection decision may also lead to the emergence of a dispute of competences between the constitutional bodies.

3. With a majority of votes, the repeal of Article 9 of Law no. 106/2023, which added points 1/2 and 2/4 to Article 16 of the law on investigative commissions, which are related, respectively, to obtaining permission from the prosecution and the court for questioning witnesses, as well as the right of the witness to refused to testify.

The court, taking into account that the parliamentary investigation procedure pursues different goals from that of criminal proceedings, aiming to clarify an issue for political reasons, emphasizes that this goal is consistent with the principle of separation of powers.

For the above, the Court reached this conclusion due to the ambiguity in the formulation of these legal provisions.

Regarding point 1/2, the Court assessed that the wording is not clear in terms of the principle of separation and balance between powers, as well as the need for this intervention. The purpose of preserving investigative secrecy can be fulfilled by questioning witnesses behind closed doors.

And in relation to point 2/4, the Court notes that although it basically seems to refer to the content of Article 32 of the Constitution, regarding the guarantee of the constitutional right not to testify against oneself or one's family, this right is applicable directly not only by the constitutional norm, but it is also guaranteed within the principle of due process, according to the content of article 3, letter "b", of law no. 106/2023. In any case, it is also fulfilled by the guarantees offered by the Code of Criminal Procedure, which is applicable in the investigative procedure of parliamentary control.

4. By majority vote, the conciliatory interpretation of article 6, point 3, letters "c" and "d", of law no. 106/2023, regarding the taking of evidence without the participation of the public, after finding that this provision gives several results depending on the methods of interpretation, so the Court selected the result that is compatible with the constitutional norms.

The Court appreciates emphasizing that in the treatment of claims and violations of this provision, the right to information and transparency of the elected bodies, in the sense of Article 23, point 3, of the Constitution, in relation to other human rights (such as that of private, personal life, life, health, etc.). The court came to the conclusion that, as a rule, the activity of the investigative commission should be public and only exceptionally it can take place behind closed doors, when human rights prevail in relation to the right to information.

In addition to the above, regarding the "trade secret", according to the letter "c", the Court assessed that in the implementation of this provision, its definition according to the legislation in force should be applied. As for "secret in the interest of the state", according to letter "d", the Court assessed that it should be interpreted as any data provided as classified information based on the law, including "investigative secret".

Regarding other provisions of the law no. 106/2023 contested by the applicant, the Court assessed their dismissal as unfounded./ CNA