THE RELATION WITH THE EXECUTIVE POWER
The authority relation of the Minister of Justice with the prosecutors
According to the provisions of art. 131 of the Constitution, the prosecutors carry out their activity according to the principle of legality, impartiality and hierarchical control under the authority of the Minister of Justice. This does not mean the Public Ministry is subordinated to the Minister of Justice.
For this regulation, the legislator also took into account the opinions of some scholars of the law, as was the illustrious professor Garconnet who argued that in many countries people fear that a public ministry completely under the executive power is politically a heavy weapon in the hands of a government, and the famous criminal specialist I. Tanoviceanu showed that “All authors of criminal law, all specialists and all those who strive to provide justice with the conditions of a perfect functioning, promote with arguments that do not have answer, the independence of the Public Ministry. What a pity, though, that they do not make the laws”.
The authority of the Minister of Justice does not have in our legislation the meaning of a hierarchical subordination, but that of an administrative relation, similar to the relation between the Minister of Justice and the courts.
The Public Ministry is not under the authority or subordination of the Ministry of Justice. The prosecutor cannot receive orders from the officials of this ministry.
The ways by which the Minister of Justice exercises his authority over the Public Ministry were established by art.69 of Law 304/2004 for the organization of the judiciary, as follows:
(1) When the Minister of Justice deems necessary, at his/her own initiative or at the request of the Superior Council of Magistracy, he/she exercises the control over the prosecutors, through prosecutors especially appointed by the Prosecutor General of the Prosecutor's Office attached to the High Court of Cassation and Justice or, as the case may be, by the Prosecutor General of the National Anticorruption Prosecutor's Office, or by the Minister of Justice.
(2) The control consists in verifying the managerial efficiency, the way in which the prosecutors fulfill their work duties and the way in which the work relations with the litigants and with the other persons involved in the files of the prosecutor's offices are carried out. The control cannot concern the measures ordered by the prosecutor during the criminal investigation and the solutions adopted.
(3) The Minister of Justice may ask the Prosecutor General of the Prosecutor's Office attached to the High Court of Cassation and Justice or, as the case may be, the Prosecutor General of the National Anticorruption Prosecutor's Office for information on the activity of the Prosecutor's Offices and may give written guidance on the measures to be taken in order to efficiently prevent and control the crimes.
The special significance of ensuring the political independence of the prosecutor in the context of guaranteeing the legality and impartiality of the criminal investigation was also highlighted at the UN Congress of 1995 in Cairo on crime prevention and treatment of offenders.
Thus, from the content of the framework documents presented at this congress, under the circumstances of a general tendency of influence by political or administrative means of the decisions taken by the prosecutors during the criminal investigations, it is necessary to reconsider and reaffirm the crucial role the prosecutor has in governing the criminal justice and in guaranteeing the exercise of these important responsibilities irrespective of any political interference, in accordance with the letter and spirit of the UN guiding principles.
This is the only way the fairness and the objectivity of the criminal justice can be ensured, as well as the effective protection of the citizens against crime.
Moreover, such principles are also drawn from the Recommendation 19 (2000) of the Committee of Ministers of the Council of Europe, a document that considering that the Public Ministry plays a decisive role in the criminal justice system, states that: “The states must take appropriate measures to enable the members of the Public Minister to carry out their mission without unjustified interference (from the executive, n.n.) and without the risk of determining, beyond the reasonable limit, the civil, criminal or other type of liability". "The Public Minister must in any case be able to exercise without hindrance the investigation of the state agents for their crimes, in particular crimes of corruption, abuse of power, obvious violation of human rights and other crimes recognized by the international law”.