LE STATUT DU PROCUREUR EN ROUMANIE. LE PROCUREUR: MAGISTRAT OU AGENT EXÉCUTIF ?

• Main Author: Victor ALISTAR
• Format: Article
• Language: English
• Published: Danubius University 2007-09-01
• Series: Acta Universitatis Danubius: Juridica
• Subjects: prosecutor; judicial organization; the Public Ministry; functions; competence
• Online Access: http://www.juridica-danubius.ro/continut/arhiva/A47.pdf

The current status of the prosecutor in Romania is without doubt a composite: the status of a magistrate and of an executive agent at the same time. First and foremost, this situation arises from the provisions of the Constitution, detailed in the subsequent legislation. It should be noted that the two distinct legal features cannot be reconciled inside one single institution with competencies of the kind the prosecutor has.The article 131 of the Constitution, and the article 4 (1) of the Law no. 303/2004 provide that the judiciary activity, the Public Ministry represent the general interest of the society and defend the public order, as well as the rights and liberties of the citizen. Nevertheless, even the denomination of Public Ministry points towards the executive nature of the members of the Ministry. Thus, the prosecutor holds an mandate the Constitution explicitly formulates. Following the same course of ideas, the article 132 of the Constitution provides that the prosecutors function on the basis of the principle of legality, impartiality and hierarchical control; hence the only conclusion that can be drawn is that the later cannot characterise the statute of a magistrate. The motivation is offered by the European Court of Human Rights in the case Vasilescu vs. Romania.1