Aspects related to the verification of jurisdiction of the criminal investigation authorities

Abstract

This article contains an analysis of certain aspects related to the verification of jurisdiction of the investigative authorities before and after intimation, throughout the criminal prosecution and the preliminary chamber procedures. The current Criminal Procedure Code, in the form in which it initially entered into force, used to sanction with relative nullity the lack of competence/jurisdiction of the criminal investigation authorities. By Decision no. 302/2017, the Constitutional Court has included the violation of the provisions regarding the material and personal jurisdiction of the criminal investigation body among the absolute nullities. This decision of unconstitutionality generated a series of divergences in judicial practice and specialized literature.

By Law no. 201/2023, in the content of art. 281 para. (1) of the Criminal Procedure Code letter b¹) was introduced, which expressly provides that the violation of the provisions regarding the material and personal competence the criminal investigation body attracts the sanction of absolute nullity. Also, by the same legislation, a reference to the provisions of art. 50 para. (2) and (3) of the Criminal Procedure Code was introduced in the content of art. 63 para. (1) of the Criminal Procedure Code. In accordance with these legal provisions, if the declination of jurisdiction was determined by material or personal lack of competence, the evidence administered, the acts performed and the measures ordered by the criminal investigation body that declined its competence can be maintained, and if the competence declining was determined by territorial lack of jurisdiction, all these are maintained. Considering the set of legal provisions that configures the specifics of the criminal investigation phase, we analysed the implications of these legislative changes.

Regarding the procedure in the preliminary chamber, as a consequence of the legislative changes indicated above, by the same Law no. 201/2023, a new case of returning the case to the prosecutor’s office was introduced in the content of art. 346 para. (3) letter a) of the Criminal Procedure Code, for the situation in which the indictment was issued by a prosecutor without material or personal competence. This new regulation has the potential to end the doctrinal disputes over the judicial nature of the indictment and the distinction between the concepts of "legality" and "regularity". Among other things, we have argued our point of view that the "irregularity" of the indictment is not a procedural sanction.