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Constitutional Court upholds challenge to competences of Section for magistrates' investigation and its chief prosecutor

Inquam Photos / George Calin

The Constitutional Court of Romania (CCR) upheld on Tuesday by a majority vote a constitutional challenge regarding the provisions of Law No. 304/2004 on judicial organization that concern the competences of the Section for the Investigation of Criminal Offences in the Judiciary (SIIJ), as well as of the section's chief prosecutor, CCR said in a release.

The Constitutional Court upheld the constitutional challenge and determined that the provisions of Art. 88 index 1 para. (6) and Art. 88 index 8 para. (1) letter d) of Law No. 304/2004 on judicial organization are unconstitutional.

"With regard to the provisions of Article 88 index 1 paragraph (6) of Law No. 304/2004, the Court holds that the definition of the SIIJ chief prosecutor as a 'hierarchically superior prosecutor' in all cases and with regard to all procedural aspects entailed by the criminal prosecution activities falling within the Section's competence removes the legal regime that corresponds to the status of prosecutor hierarchically superior to the SIIJ prosecutors with management positions, depriving the capacity of Section deputy chief prosecutor or chief prosecutor of a section structure (office / service) of legal effects," the release reads.

With regard to the establishment of the capacity of hierarchically superior prosecutor "including in the case of decisions ordered prior to the position's becoming operational", the CCR found that the notion of "hierarchically superior prosecutor" always refers to the position in a hierarchy, determined by reference to a certain organizational structure and not to the "decisions handed down" in the cases handled by a specific prosecutor's office.

"The deficient way in which the legislator regulates a transitional situation violates the principle of hierarchical control, as it establishes that the SIIJ chief prosecutor is competent for controlling the activity of prosecutors from outside this section with regard to the acts ordered by the latter in cases that were subsequently transferred to the SIIJ," the constitutional judges argue.

Regarding the provisions of Art. 88 index 8 para. (1) letter d) of Law No. 304/2004, CCR specifies that, the way SIJJ's competence for promoting and dropping means of appeal is regulated, it results that this Section, as it evaluates the legality and merits of the handed down court ruling, implicitly exercises control over the activity of the session prosecutor.

"The challenged legal provisions confer SIIJ a special status, that is preeminent compared to the other prosecutor's structures of the Prosecutor's Office attached to the High Court of Cassation and Justice (the National Anticorruption Directorate, the Directorate for the Investigation of Organized Crime, the Judicial Section) as well as a superordinate position in the hierarchy of the Public Prosecution Office, in violation of Article 132 of the Constitution, which enshrines the principle of hierarchical control within this public authority," the release also mentions.

CCR rejected in the same meeting, with a majority of votes, a constitutional challenge to the provisions of Art. 88 index 1 paragraphs (1) - (5), Art. 88 index 2-index 7, Art. 88 index 8 paragraph (1) letters a) -c) and e) and paragraph (2), as well as of Art. 88 index 9 of Law No. 304/2004 on judicial organization, considering that they are constitutional in relation to the formulated criticism.

The Constitutional Court also rejected as inadmissible, by unanimous vote, a constitutional challenge to the provisions of OUG No. 90/2018 on specific measures for rendering the Section for the Investigation of Criminal Offences in the Judiciary operational.


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