Organization and functioning of the Romanian Public Ministry (February 2019)

The Romanian Public Ministry is a public authority, part of the judiciary, representing the general interests of the society and defending the rule of law as well as the rights and freedoms of the citizens and performing the accusatorial function on behalf of the state in criminal law infringement cases.

According to the art. 131 of the Romanian Constitution, in our country, the prosecutors are organized into prosecutor’s offices that function attached to the courts of law, run and supervise the criminal investigation activity of the police.

Concretely, the main prosecutors’ duties established by the Law on judicial organization (Law no. 304/2004 republished) are the following:

     - to carry out criminal proceedings in the cases and under conditions provided by the law and take part , according to the law, in the resolution of conflicts by alternative methods;

- to conduct and control the activity of the judicial police, conduct and control the activity of other bodies of criminal investigation;

     - to call upon law courts for judging criminal cases , according to the law;

     - to take civil action, in the cases provided by the law;

     - participates, according to the law, in court sessions;

     - to file appeals against court decisions, according to the conditions provided by the law;

     - to defend the rights and legitimate interests of under age, of persons placed under interdiction, of missing persons and of other persons, according to the law;

     - to act to prevent and fight criminality, under the co-ordination of the minister of justice, for the consistently accomplishment of the state criminal policy;

     - to study the causes that generate and favour criminality, elaborate and present to the Minister of Justice proposals for eliminating them, as well as for improving legislation in the field;

     - verification of the observance of the law in the places of preventive detention;

     - to exercise any other attributions provided by the law.

The pre-trial investigation of crimes is usually performed by the police. In such cases, the prosecutor leads and controls the investigation. For certain offences, the prosecutor conducts the investigation himself (e.g. offences against the state, manslaughter, organized crime, corruption, etc.). The specialized bodies in charge with intelligence gathering and processing are bound to put at the disposal of the prosecutor all necessary data related to the commission of offences.

In Romania, prosecutors are recruited by competition, based on their professional competences, their skills and their good reputation. The initial recruitment and the professional training required to become a prosecutor is carried out by the National Institute of Magistracy.

The prosecutors are appointed by the President of the country, upon the proposal of the Superior Council of Magistracy they enjoy stability and are independent, under the terms of the law.

The prosecutors can be moved by transfer, secondment or promotion, only with their consent. They can by delegated, suspended or released from their position only under the terms of law.

        

The prosecutors are obliged that by their whole activity to observe the supremacy of law, to observe the citizens’ rights and freedoms, to observe the presumption of innocence, to assure a non-discriminatory legal treatment to all the participants in the judicial procedures, regardless of their quality, to observe the Deontological Code for Judges and Prosecutors and to take part in the continuous professional training.

The legislative provisions from our country submitted almost completely the magistrate’s career to the appreciation of the Superior Council of Magistrate, which decides, under the transparency conditions and based on objective criteria, according to the procedure provided in the governmental decree of organization and functioning of this institution.

The position as a prosecutor as well as a judge is incompatible with any other public or private positions, except for academic activities, as well as those for training within the National Institute of Magistracy and National School for Court Clerks. The prosecutors and the judges may participate in the elaboration of publications, may elaborate articles, specialized studies, literary or scientific works and may participate in the audiovisual broadcasts except for those having political nature. They can also be members of some commissions for examining or drawing up of legal acts, internal or international documents. Romanian magistrates (judges and prosecutors) may be members of scientific or academic societies, as well as of any legal entities of private law that do not have pecuniary-related purpose.

Judges and prosecutors cannot be members of the parties or political structures nor carry out or participate in the political activities. In the exercise of their duties, they are obliged to abstain from expressing or manifesting their political convictions in any way.

Both prosecutors and judges have civil, disciplinary and criminal liability, according to the law.

         They may be searched, detained, kept under house arrest or held under preventive arrest, only with the consent of the Superior Council of Magistracy. In case of flagrant offence they may be detained and searched, but the Superior Council of Magistracy has to be informed as soon as possible by the body who ordered the measure.

         The State has patrimonial liability for the damages caused as a result of judicial errors, which does not eliminate the liability of the magistrates who exercised their office in bad faith or serious negligence.

         Judges and prosecutors have disciplinary liability for the deviations from their duties and for the acts which affect the prestige of justice, these being provided by law.

As I mentioned before, in Romania, the prosecutors are organized into prosecutor’s offices that function attached to the courts of law.

As far as the structure of the Public Ministry is concerned, the POHCCJ is the central body, coordinating the activity of prosecutors. The Prosecutor’s Office attached to the High Court of Cassation and Justice has in its structure sections, services and offices headed by chief prosecutors, and also an independent structure which is the National Anticorruption Department and a specialized unity, the Directoratefor Investigation of Organized Crime and Terrorism.

Through the amendments brought to the Law on judicial organization in July 2018, within the Prosecutor’s Office attached to the High Court of Cassation and Justice the Section for the investigation of crimes in the justice system was set up, which has the exclusive competence to conduct criminal prosecution for crimes committed by judges and prosecutors, including military judges and prosecutors and those who are members of the Superior Council of Magistracy.

The Head Prosecutor of the Section for the investigation of crimes in the justice system is appointed by the Plenum of the Superior Council of Magistracy following an examination consisting in the presentation of a project on the exercise of the duties specific to that particular management position, targeting the managerial competencies, the efficient management of resources, the ability to make decisions and take responsibilities, the communication skills and stress resistance, as well as the integrity of the candidate, the evaluation of his / her work as a prosecutor and the way he/she relates to professional values, such as justice independence or the respect of fundamental rights and freedoms.

The second level of the Public Ministry structure consists of prosecutor’s offices attached to courts of appeal,  prosecutor’s offices attached to tribunals and prosecutor’s offices attached to courts of first instances. There are also military prosecutor’s offices.

The General Prosecutor of the Prosecutor’s office attached to the High Court of Cassation and Justice, his first deputy and deputy are appointed by the President of Romania, upon the proposal of the Minister of Justice, with the endorsement of the Superior Council of Magistracy, from among the prosecutors in office or the judges who have fulfilled the position of prosecutor, for a three-year term, with the possibility of being re-invested only once.

         In the exercise of his duties, the general prosecutor of the Prosecutor’s office attached to the High Court of Cassation and Justice issues internal orders.

         A leading college, which decides over the general problems of the Public Ministry, functions within the Prosecutor’soffice attached to the High Court of Cassation and Justice. This college is composed  of the general prosecutor of the Prosecutor’soffice attached to the High Court of Cassation and Justice, the first deputy and 5 prosecutors elected by the general assembly of  prosecutors.

         The Prosecutor’soffice attached to the High Court of Cassation and Justice elaborates an annual report on its own activity and he present it to the Section for Prosecutors of the Superior Council of Magistracy and to the Minister of Justice, not later than February of the next year.

         The Minister of Justice submits the conclusions over the activity report of the Prosecutor’soffice attached to the High Court of Cassation and Justice to the Parliament.

        

Activity of the Romanian Public Ministry is organized according to the principles of legality, impartiality and the hierarchical control, under the authority of the Minister of Justice.

The principle of legality consists in the fact that, whenever the conditions stipulated by the law are met in order to act for protecting the public interest, the prosecutor has to operate in the way and by means provided by the law.

         The prosecutor cannot act than in the limits of his competence, by means and in the cases established through the legal provisions. In other words, he exercises his duties only in compliance with the law. The core specific mission of the Public Ministry is ensuring of the law observance.

According to the principal of impartiality, in compliance with provisions of art. 16 of the Constitution which stipulates that “Nobody is above the law”, the prosecutor, as  representative of the entire society, as defender of the rule of law, of rights and freedoms of the citizens, must exert his attributions with objectivity, regardless of the quality of the person investigated or his social or political affiliation.

The prosecutor shall ensure that the bodies he is collaborating with or whose activity he is controlling should apply the law without any discrimination.

The hierarchical subordination, another principle of the Public Ministry activity, represents the fact that the prosecutors from each prosecutor’s office are subordinated to the head of that prosecutor’s office.

The head of a prosecutor office is subordinated to the head of the hierarchically superior prosecutor office from the same jurisdiction.

The orders of the hierarchically superior prosecutor, given in writing and in accordance with the Law, are mandatory for the subordinated prosecutors, but during the trial, the prosecutor of the session is free to submit his conclusions he deems to be grounded according to the law, taking into account the evidence produced in the respective case. The prosecutor may deny at the Superior Council of Magistracy the intervention of the hierarchically superior prosecutor, in carrying out the criminal prosecution or in adopting the solution or his intervention in order to influence the conclusion in any way.

         The solutions adopted by the prosecutor may be rejected justifiably by the hierarchically superior prosecutor when they are deemed as being unlawful.

         The hierarchically superior prosecutor may fulfil any of the prosecutors’ duties under his subordination and suspend or dismiss their documents and orders, if they are contrary to the law.

As regards the relationships with the other authorities, the Public Ministry is independent and exercises its duties only according to the law and for ensuring the observance of it.

         The prosecutors carry out their activity under the authority of the minister of justice, according to the constitutional provisions.

However, the authority of the minister of justice should not be interpreted as hierarchical subordination, but as an administrative relation similar to the one existing between the minister and the courts.

         The Public Ministry is not subordinated to the Ministry of Justice, the prosecutor cannot receive orders from the servants of this ministry.

         Means by which the minister of justice exercises his authority over the Public Ministry were established by art. 69 of the Law no. 304/2004 on judicial organization, as follows:

             (1) The Minister of Justice exercises his control over prosecutors, when he deems it necessary, on his own initiative or at the request of the Superior Council of Magistracy, by prosecutors specially appointed by the general prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice or, as the case may be, by the head prosecutor of the National Anticorruption Directorate, the head prosecutor of the Directorate for the Investigation of Organized Crime and Terrorism or the minister of justice.

(2) The control consists in verifying the managerial efficiency, the manner in which the prosecutors fulfill their tasks and the work relations with litigants and other persons involved in proceedings falling under the competence of prosecutor’s office unfold. The verification cannot refer to the measures ordered by the prosecutor during the criminal prosecution and the adopted solutions.

(3) The minister of justice may ask the general prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice or, as the case may be, the head prosecutor of the National Anticorruption Directorate, the head prosecutor of the Directorate for the Investigation of Organized Crime and Terrorism, reports on the activity of prosecutor’s offices and issue written guidelines on the measures to be taken for an efficient prevention of and fight against crime.

The Minister of Justice may also ask General Prosecutor of the Prosecutor’soffice attached to the High Court of Cassation and Justice for notification of the High Court of Cassation and Justice with recourse in the interest of law in criminal and civil matter, according to the provisions of art. 471 Criminal Procedure Code and art. 514 Civil Procedure Code.

These tasks express the authority of the minister of justice, but without the meaning of the subordination.

The Public Ministry is not subordinated from any financial or organizational point of view to the Ministry of Justice, having its own legal personality and being a main budget holder.

 The minister of justice was conferred tasks as regards the selection and the proposal for appointment of the prosecutors in managing positions, but only at the very high level within the Prosecutor’soffice attached to the High Court of Cassation and Justice, that is, chiefs of sections and departments, general prosecutor and his deputies.

The appointment in the other managing positions is made, as I mentioned before by the Superior Council of Magistracy.

Obviously, no one of the tasks mentioned above cannot be deemed as a subordination of the prosecutors towards it, or an interference in exercise their specific activity, in their capacity of exponents of the judicial power.

The prosecutor’s offices are also independent towards the courts of law.

The courts of law are not entitled to modify the notification documents and to make oral appreciations or in the motivation of the judgements over the value of the prosecutors’ action.

The president of the panel of judges is not also entitled to deny the prosecutor’s word or to take it back.

The prosecutor does not have legislative jurisdiction and does not suffer interference from the legislative power. The Public Ministry does not belong to the category of institutions that have legislative initiative according to art. 73 of the Romanian Constitution.  The General Prosecutor of the Prosecutor’s office attached to the High Court of Cassation and Justice makes proposals for improvement the legislation of the authorities that may have legislative initiative, as a rule to the minister of justice.

The prosecutor is the titular of the criminal action, but the mission to discover crimes and to identify their authors lies with the police. The prosecutor runs and checks directly the criminal investigation activity of the criminal police and other investigation special bodies and supervises that the criminal investigation acts to be performed in compliance with

the legal provisions, according to art. 56 of the Criminal Procedure Code.

The criminal investigation bodies are obliged to inform the prosecutor of the crimes they found out about.

The prosecutor may assist in the performance of any criminal investigation act or to perform it himself. The prosecutor may ask for checking any file from the criminal investigation body, who is obliged to immediately send it, accompanied by all the acts, materials and data regarding the deeds that make up the object of the investigation.

The prosecutor may give orders regarding the performance of any criminal investigation act. In case of the investigation bodies of the criminal police, their hierarchically superior bodies cannot issue guidelines and orders concerning the criminal investigation, the prosecutor being the only competent person to this effect.

The orders given by the prosecutors are compulsory for the criminal investigation body, as well as for other bodies with duties provided by the law in finding the crimes.

When the prosecutor sees that an act or a procedural measure taken by the criminal investigation body does not comply with the legal provisions, he rejects it.