The administrative measure of the person’s management at the police headquarters cannot exceed the maximum duration of detention, respectively 24 hours, the Constitutional Court decided, after being notified by the People’s Advocate. The state is to regulate a deadline, which will allow the removal of a possible violation of individual freedom, is shown in the motivation of the decision of April 7, published on the CCR website.
The constitutional judges admitted on April 7, with a majority of votes, the exception sent by the People’s Advocate and found that the legislative solution contained in art. 36 paragraph (5) of Law 218/2002 on the organization and functioning of the Romanian Police.
The provisions of art. 36 para. (5) of Law 218/2002 have the following contents: “The policeman has the obligation to allow the person to leave, immediately, the police headquarters after the completion of the activities according to par. (4) or the required legal measures “.
“In its jurisprudence, the Court held that the adverbial phrase immediately has the meaning of immediate, immediately (see Decision no. 665 of October 19, 2021, published in the Official Gazette of Romania, Part I, no. 330 of April 4, 2022). Thus, the Court finds that the establishment of a temporary requirement regarding the activity of verifying the factual situation and, as the case may be, of taking legal measures against the person taken to the police headquarters, activity that must be carried out as soon as the person was led to the headquarters, it quickly imparts the activities undertaken by the police officer on this occasion. The Court finds, therefore, that the provisions of Article 36 paragraph (4) of Law no. 218/2002 comply with the requirements of clarity, precision and predictability that must characterize the legal norms, according to Article 1 paragraph (5) of the Constitution, and ensures, at the same time, the guarantees of individual freedom, enshrined in art. 23 of the Constitution “, the motivation published on Thursday is specified, according to Agerpres.
The RCC’s motivation can be read in full here: Decision_CCR_215_2022
At the same time, however, the constitutional judges say that a contrary conclusion results from the examination of the constitutionality of the provisions of art. 36 paragraph (5) of Law no. 218/2002.
“The court notes that the criticized text of the law marks the moment of cessation of the measure of driving the person at the police station, establishing that at the time of completing the verification of the person’s situation and taking legal action during the person’s driving, he has the right to leave the police station immediately. The Court notes that, even in this case, the use of the phrase immediately it is a guarantee of individual freedom, which, although it is necessary, is not enough “, the CCR states in the document.
Thus, the Court finds that, regarding the measure of driving the person to the police headquarters, the legislative solution contained in the provisions of art. 36 paragraph (5) of Law no. 218/2002, as a reference ad quem of the measure does not limit its duration.
“The same conclusion, in the sense of the non-existence of a legal regulation regarding the maximum duration of the measure, results from the analysis of the legal provisions criticized in the whole normative framework in the matter. In these circumstances, the Court finds that, from the perspective of Article 23 paragraph (1) of the Constitution, the guarantees provided by Article 36 paragraph (5) of Law no. 218/2002 are not sufficient, being necessary their consolidation, by limiting during the duration of the measure of driving the person to the police headquarters. Thus, the Court notes that, in order to comply with the constitutional requirements regarding individual liberty, the administrative measure of driving the person at the police station may not exceed the maximum length of detention, respectively cannot exceed 24 hours“, Transmits the constitutional court.
According to the motivation, only in this way the security of the person is expressed, as a guarantee of individual freedom, and the legal requirements of the rule of law are respected, in which the rights and freedoms of citizens represent supreme values and are guaranteed.
“Consequently, the Court finds that in this case a positive obligation on the part of the State is imposed, which has as its object the regulation, within the internal legislation, of a limited duration of the measure of driving the person to the police headquarters, allowing the elimination of any possible arbitrary action. of any violation of individual liberty. Undoubtedly, within the limits set by Article 23 paragraph (3) of the Constitution and with the implicit condition of not contravening other constitutional norms and principles, the establishment of the maximum duration of the administrative measure the legislator, who has the role of enacting adequate, accessible, clear and predictable rules, in order to ensure an effective protection of persons against any illegal interference in the exercise of individual liberty ”, mentions CCR.
According to the same Law 218/2002, the police officer has the right to drive a person to the police headquarters, when (art. 36, paragraph 1):
a) under the conditions of art. 34 para. (3), its identity could not be established or there are plausible reasons to suspect that the declared identity is not real or the documents presented are not true;
b) because of the behavior, the place, the moment, the circumstances or the goods on him, he creates plausible reasons to suspect that he is preparing or has committed an illegal act;
c) by his actions endangers the life, health or bodily integrity of himself or another person, or public order;
d) taking legal measures on the spot could create a danger for this or for public order.
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