The Unlawfulness of the Criminal Investigation Acts Drawn up by the Employees of the General Anticorruption Directorate with the Violation of the Competence Ratione Personae

Abstract

The violation of the provisions regarding the competence of the criminal investigation bodies entails the absolute nullity of the acts performed by an authority that lacks jurisdiction. The General Anticorruption Directorate is a structure with specialized competence, strictly determined by law, only in terms of preventing and combating corruption among the own staff of the Ministry of Internal Affairs and Administrative Reform. In the recent judicial practice, situations were reported in which the workers from the General Anticorruption Directorate carried out criminal investigation acts regarding persons who did not have the quality of member of the personnel of the Ministry of Internal Affairs. Notwithstanding the fact that the provisions of the Code of Criminal Procedure require the sanctioning of criminal investigation acts performed by an authority that lacks jurisdiction, the jurisprudence of national courts is not a unitary one. Nationwide, diametrical solutions of different courts can be observed: some have ruled the plea of nullity of criminal prosecution acts drawn up by workers of the General Anticorruption Directorate with violation of their jurisdiction ratione personae is grounded, others concluded in the sense of rejection. In the same time, the present paperwork submits to examination the possibility of the prosecutor to assign the carrying out of criminal prosecution acts to workers within the General Anticorruption Directorate, regarding individuals who are not part of the staff of the Ministry of Internal Affairs. The practical significance of this paper is also highlighted by the fact that the Decision no. 21 from 2020 of the High Court of Cassation and Justice does not puzzle out the invoked issue, given that the solution was to reject the complaint as inadmissible.