PG clarifications on the discontinuation of the delegation of some prosecutors: “It could affect the proper conduct of criminal proceedings in various criminal cases”
The Prosecutor General’s Office (PG) has come up with clarifications in the context of statements made by MP Olesea Stamate on the application of new legislative changes so that several delegated prosecutors have ceased their work in the Anticorruption Prosecutor’s Office (PA), including the state prosecutor in the “kuliok” case of former President Igor Dodon, Petru Iarmaliuc.
According to the institution, the authors of the draft did not indicate in the final and transitional provisions how to apply the new conditions regarding the period of previous activity, and the PG decided that these provisions could “affect the proper conduct of criminal prosecution in various criminal cases under the management of the Prosecutor’s Office”.
By Law No. 200/2023 on the amendment of some normative acts (improvement of the mechanism of selection, evaluation and disciplinary liability of prosecutors), even paragraph (2) of Article 54 of Law No. 3/2016 on the Prosecutor’s Office was amended, in particular, the period for which a prosecutor can be delegated was reduced from 24 months to 12 months, the PG notes.
At the same time, Article 54 has been supplemented by paragraph (3/1) with the following content: “(3/1) The delegation shall be ordered taking into account the reasons on which the proposal for delegation is based, the specialisation of the prosecutor, the situation regarding the positions occupied, the vacant or temporarily vacant positions and those which are to become vacant both in the prosecutor’s office from which the delegation is requested and in the one where the delegation is proposed, as well as the statistical data of the last 12 months on the workload and the actual workload of the prosecutor. The prosecutor may be delegated only if he/she meets the conditions for appointment as a prosecutor in the prosecutor’s office to which he/she is to be delegated.”
In the final and transitional provisions of Law 200/2023 (Article VI, paragraph 16) it is indicated that the provisions of Article II, paragraph 10 in the part amending paragraph (16) of Article VI of the Law 200/2023 are not applicable to the prosecutor. (2) of Art. 54 shall not apply to prosecutors who have been delegated before the date of entry into force of this Act.
According to Art. 48 para. (1) of Law 100/2017 on normative acts: “Transitional provisions of the normative act include the measures that are established with regard to the continuation of legal relationships arising under the old regulations that are to be repealed or replaced by the new normative act”.
Thus, according to the PG, the legislator in the final and transitional provisions referred only to the application of the amendments established in paragraph (2) of Article 54 (which refers to the period for which the prosecutor may be delegated), “and the lack of regulations referring to the application of paragraph (3/1) of Article 54 (which establishes certain conditions to be met for the delegation of prosecutors) could condition the deficient interpretation of the law”.
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“The issue of applicability of the amendments to Law 3/2016 on the Prosecutor’s Office in the part of delegation of prosecutors to specialized prosecutor’s offices or the Prosecutor General’s Office was mentioned during the public consultations organized by the Legal, Appointments and Immunities Committee on 13.06.2023,” the PG notes.
Thus, during the mentioned public consultations, the representatives of the Prosecutor’s Office say that they mentioned that, according to the draft law, after the entry into force of the amendments to Law 3/2016, the delegations of several prosecutors from specialized prosecutor’s offices will be stopped, which will condition the increase of the workload per prosecutor.
“It was mentioned in the Commission that in the Law amending Law 3/2016, in the section “final and transitional provisions”, clarifications will be made in order to exclude doubts and ambiguities in the part related to the delegation of prosecutors (art. 54 para. (3/1) current Law 3/2016).
Given the lack of clarity of the above-mentioned legal provisions, in order to exclude an uneven application of the provisions of Article 54 paragraph (3/1) of Law 3/2016 in the wording of Law 200/2023 for the amendment of some normative acts, which may affect the proper conduct of criminal prosecution in various criminal cases under the management of the Prosecutor’s Office, the decision was taken to suspend the delegations of prosecutors who do not meet the conditions for appointment as prosecutor in the prosecutor’s office to which they were delegated,” the PG added.
The chairwoman of the Parliament’s Legal, Appointments and Immunities Committee, Olesea Stamate, said that the Prosecutor General’s Office had taken an “interesting” approach to the application of Law No. 200, amending some normative acts (improving the mechanism of selection, evaluation and disciplinary responsibility of prosecutors), voted in final reading on 31 July.
The MP’s statements came in the context of the earlier announcement by the Anti-Corruption Prosecutor’s Office (PA) that several delegated prosecutors, including the state prosecutor in the “kuliok” case of former President Igor Dodon, Petru Iarmaliuc, were unable to continue their work in the institution.
