International firm CMS has achieved a strategic victory, successfully convincing the Ploiesti Court of Appeal to forward a plea of unconstitutionality to the Constitutional Court regarding the provisions of Article 11 of Law no. 61/2011, which governs the organisation and functioning of the Department for the Fight Against Fraud (DLAF).
The provisions of Article 11 of Law No 61/2011 provide that, in the exercise of its control function, DLAF is permitted to carry out administrative investigations, on-the-spot checks, reviews and documentary checks; the law setting prerogatives similar to those of criminal investigation bodies such as 'taking statements'. The criticisms of unconstitutionality relate in particular to the provisions of paragraph (3), according to which the Department shall draw up control documents which may constitute evidence, under the terms of the Criminal Procedure Code, republished, as subsequently amended and supplemented.
The CMS team successfully argued for the case to be referred to the Constitutional Court, arguing that the legal provisions under criticism violate the principle of legality, the principle of legal certainty and foreseeability of the law, as well as the right to a fair trial. Encouragingly, the referring court, drawing on the case law of the Strasbourg Court, held that "a distinction is drawn between obtaining evidence in administrative proceedings and its subsequent use in criminal proceedings. It concludes that, in the case of the documents referred to in Article 90 paragraph (2) of the Criminal Procedure Code, the only admissible consequence, in relation to the principle of fairness of the criminal process, is that of providing information to the criminal investigation bodies, which cannot be converted into evidence without prejudice to the right to a fair trial and without jeopardising the independence and impartiality of justice".
Beyond safeguarding the legal interests of the client, CMS is committed to protecting constitutional values and principles, aiming to consistently contribute to the balance of the regulatory framework to ensure its alignment with the Fundamental Law. By raising a plea of unconstitutionality, CMS sought to meet these goals.
The referral to the Constitutional Court regarding the provisions of Law No 61/2011 has major implications in cases concerning the investigation of acts affecting funds from the European Union budget, where OLAF/DLAF carry out investigative activities prior to the commencement of criminal proceedings. If the Constitutional Court deems the contested provisions unconstitutional, the evidence gathered by OLAF/DLAF during the investigation procedure under Law No 61/2011 prior to the commencement of criminal proceedings may no longer be used in criminal proceedings.
The CMS criminal defence team coordinated by Mihai Jiganie-Șerban (Partner) is composed of Ionuț Chisăr (Senior Associate), Cosmin Crețu (Senior Associate) and Adrian Lincă (Associate).
