Clarifications on the discontinuation of the delegation of certain prosecutors
By Law no.200/2023 on the amendment of some normative acts (improvement of the mechanism of selection, evaluation and disciplinary responsibility of prosecutors), inter alia, paragraph (2) of Article 54 of Law no.3/2016 on the Prosecutor’s Office was also amended, in particular by reducing the period for which a prosecutor can be delegated from 24 months to 12 months.
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 or she meets the conditions for appointment as a prosecutor in the prosecutor’s office to which he or she is to be delegated”.
In the final and transitional provisions of the Law No. 200/2023 (Article VI paragraph (16)) it is indicated that the provisions of Art. II item 10 in the part amending para. (2) of Art. 54 shall not apply to prosecutors who have been delegated before the date of entry into force of this Law.
According to Art. 48 para. (1) of Law 100/2017 on normative acts: “The transitional provisions of the normative act include the measures that are established with regard to the continuation of the legal relationships created under the old regulations that are to be repealed or replaced by the new normative act.”.
Thus, the legislator in the final and transitional provisions referred only to the manner of 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 manner of 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.
It should be noted that the issue of the applicability of the amendments to Law 3/2016 on the Prosecutor’s Office in the part of the delegation of prosecutors to specialized prosecutor’s offices or the General Prosecutor’s Office was mentioned during the public consultations organized by the Legal, Appointments and Immunities Committee on 13.06.2023.
Thus, during the public consultations mentioned above, the representatives of the Prosecutor’s Office mentioned that, according to the draft law, after the entry into force of the amendments to Law 3/2016, the delegation of several prosecutors from specialized prosecutor’s offices will be stopped, which will condition the increase of the workload per prosecutor, and the Commission mentioned 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).
In view of 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, a 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.
