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The legislative solution concerning the random distribution of cases concerning prosecutors contravenes the constitutional principle of hierarchical subordination, specifies the RCC by justifying the decision of unconstitutionality of certain provisions of the draft law amending the Code of Criminal Procedure and amending the law on the judicial organization.
"The Court, in its case-law, has stated that prosecutors can not invoke an independent position as judges, their activity being placed under hierarchical control and under the authority of the Minister of Justice (decision No. 358 of May 30, 2018, paragraph 89), the reasoning is mentioned.
Therefore, according to the constitutional judges, since the prosecutor is not independent in the structure of the prosecutor's office, but subordinate to the hierarchy, it is not possible to regulate the guarantees of objective impartiality that would affect substance the constitutional concept of hierarchical control.
"However, random assignment of cases violates the functional autonomy of the prosecutor and affects the very essence of hierarchical control, but the Court does not rule out the possibility for the legislator to regulate objectively, but in their structure, can not affect the substance of hierarchical control and must maintain a fair balance between the objective legal guarantees of objective regulation so regulated and the essence of hierarchical control ", says CCR.
At the same time, the Court emphasizes that the normative tension between a constitutional concept and a legal concept can not lead to a distortion of the constitutional norm, so that legal norms must be defined in accordance with constitutional requirements.
"In the light of these considerations, the Court considers that the legislative solution concerning the random distribution of cases concerning public prosecutors is contrary to the constitutional principle of hierarchical subordination, enshrined in Article 132 (1) of the Constitution, which empowers the senior prosecutor to how cases are handled at the prosecutor's office, including their distribution, according to the number of cases handled by the prosecutor's office, their complexity, as well as the specialization of prosecutors subordinates, "say the judges in case of one of the exceptions.
Another amendment examined by the Constitutional Court was the amendment to the provisions of Article I, point 11, which reads as follows: "Conditions for the opening or prosecution of criminal proceedings Article 15. – The Penal action is instituted and is exercised when there is evidence that there are clear indications that a person has committed an offense and that no case prevents him from moving or acting. to do exercise ".
In the present case, the Court concluded that the concept of "solid evidence" was misused, corroborating the norm which contained it with other provisions of the normative act, demonstrating not only the There is also inconsistency in the legislator, but also the lack of a coherent and unified vision of probation standards corresponding to each phase of the criminal process.
"This situation leaves some uncertainty about how to interpret and apply the legal rules," said the CCR.
The Court therefore notes that the provisions of Article I, point 11, relating to Article 15 of the Code of Criminal Procedure, as regards the wording "from which the evidence is based" are unconstitutional, in violation of Article 1, paragraph 5.) of the Constitution, in the composition on the quality of the standard.
With regard to the provisions of Article I, point 16, of the draft, it reads as follows: "Article 25 (4) is amended as follows:" (4) The provisions of criminal jurisdiction in civil matters are not opposable parties to the criminal proceedings in which the judgment was rendered ". The Court specifies that "the Code of Criminal Procedure introduces into the Code of Criminal Procedure a provision relating to the" opposability "of the decision of the criminal court, limiting its civil effects to only those parts of the criminal proceedings in which the judgment has been rendered ".
"Nothing justifies the existence of different effects of court decisions on the civil aspect of the case introduced by the criminal court compared to those made by the civil court, the settlement being of such a nature as to deny the authority of the latter illegally restricts the scope of the legal issues on which the judgment should have effect, by removing the category of successors of the parties to the criminal proceedings and the category of third parties who do not prove they are contrary to those established by the final judgment The difference in legal treatment established by the two The procedural, civil and criminal rules applicable to persons in similar situations have no objective and reasonable justification "said the source.
According to the RAC, the provisions of Article I, point 16, relating to Article 25, paragraph 4, of the Code of Criminal Procedure violate the constitutional provisions of Article 1, paragraph 5, the constituent elements of the law and legal certainty and the principle of equal treatment. rights provided for in Article 16.1 of the Constitution.
On 12 October, the Romanian Constitutional Court partially accepted the notifications of the High Court of Cassation and Justice, the PNL, the USR and the President Klaus Iohannis concerning the draft law amending the Code of Criminal Procedure and amending the law on the judicial organization. .
According to a statement sent by the CCR at that time, following the deliberations, the Constitutional Court decided, in respect of the extrinsic criticism of unconstitutionality, to reject any criticism of the violation of the principle of bicameralism and the right of legislative initiative (by unanimous vote) on Article 1, paragraph (5) of the Constitution, combined with the art. 69 para. (2) of the Rules of the Chamber of Deputies.
Regarding the critics of intrinsic unconstitutionality, the RCC accepted the objection unanimously and found that more than 60 provisions of the law amending and supplementing Law no. 135/2010 on the Code of Criminal Procedure, as well as to amend and supplement Law no. 304/2004 on the judicial organization.
On the other hand, by unanimous vote, the Constitutional Court rejected the objection and concluded that the other provisions criticized were constitutional.
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