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Cosmin DARIESCU: An exception from the provisions of article 37^1 of Law no. 51of 1995 for the organization and practice of advocacy, consolidated version

Abstract: According to Article 371 of the Law no 51/ June, 7, 1995- Law on the organization and practice of the advocacy (article introduced by Law no.255/June 16, 2004), an advocate cannot be prosecuted for crimes committed while practicing his profession, or in connection with his calling, without the approval of the General Prosecutor of the Prosecutor’s Office attached to the Appeal Court in whose jurisdiction the crimes have been committed. Thus, the legislator establishes a hierarchical control performed at a high level on the prosecution of advocates.  But this provision ignores the competence of the prosecutors belonging to the National Anti-Corruption Prosecutor’s Office (NAPO) to prosecute the advocates that have committed crimes of corruption ( such as they are defined  by Law no. 78 /May 8, 2000 with its later modifications )while practicing their profession (competence ratione personae introduced by the Governmental Emergency Ordinance no.24/April 21, 2004). Because NAPO is independent of all other courts, prosecutor’s offices and authorities (see Article 2 of the Governmental Emergency Ordinance no.43/April 4, 2000 on NAPO and article 77of the Law no. 304/ June 28, 2004 on the judicial system) the NAPO prosecutor  must not request the approval mentioned in Article 371 of the Law no 51/ June, 7, 1995, because he is not a subordinate of the General Prosecutor of the Prosecutor’s Office attached to the Appeal Court in whose jurisdiction the advocate’s crime was committed. He has his own superior who must confirm every charge ( Article 221 of the Governmental Emergency Ordinance no.43/April 4, 2000 with later modifications).

Key words: lawyer, crimes committed by lawyers, the general prosecutor’s approval


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