Autor: Ion RUSU
Publicat în:
Revista Dreptul nr. 8/2019
Revistă disponibilă online:
Elements of unconstitutionality with regard to Article 318 of the Criminal Procedure Code
In the present study we have proceeded to analyze the text of Article 318 of the Criminal Procedure Code, in the light of the judicial practice in the matter. We also insisted on presenting some malfunctions in the application of the provisions of Article 318 (16) the 2nd sentence of the Criminal Procedure Code, provisions which in their essence prohibit the case prosecutor to adopt a solution to abandon criminal prosecution in the event that this solution was initially rejected by the preliminary chamber judge. The provision in question is all the more controversial as it is mentioned even therein this prohibition irrespective of the reason invoked, which leads to the conclusion that the solution to abandon criminal prosecution can no longer be ordered by the prosecutor, even if the evidence administered show that its adoption is required. In this context, the provisions criticized seem to be unconstitutional, because by applying them, the prosecutor is obliged by the legislator to violate several provisions of the Constitution, among which there is the principle of legality. The study may be useful to the legislator, from the perspective of operating some amendments to the content of this text, as well as to the academic environment and to practitioners.
Keywords: abandonment of prosecution; principle of legality; role of the prosecutor; elements of unconstitutionality;