In justifying the exception of unconstitutionality it is shown that the criticized text discriminates against individuals whose prosecution started under the old Code of Criminal Procedure, or have signed a plea bargain, that can invoke the lack of mandatory legal assistance at any time of criminal trial and individuals prosecuted according to the current Code of Criminal Procedure, which may invoke the lack of mandatory legal aid mandatory until closing of the preliminary procedure room. It argues that there is no legal basis as to justify this difference in treatment between categories of persons mentioned, this being in the same legal situation.
According to art. 171 paragraph 2 of the Criminal Procedure Code of 1968, “Legal assistance is obligatory when the defendant is a minor, admitted to a rehabilitation center or in a medical-educational institution, when detained or arrested even in another case, when against him was ordered the safety measure of hospitalization or was ordered medical treatment even in another case or when the criminal investigation or the court considers that the accused or defendant could not make his own defense, and in other cases stipulated by law ” and, according to par. (3) of the same article, “during the trial, counsel is mandatory in cases in which the law provides for offenses committed the punishment of life imprisonment or imprisonment for 5 years or more.”
According to art. 90 of the current Code of Criminal Procedure, legal assistance is mandatory: a) when the suspect or accused is a minor, admitted to a detention center or in an educational center, when he is detained or arrested, even in another case, when against him was ordered the safety measure of medical hospitalization, and other cases stipulated by law; b) if the judicial body considers that the suspect or defendant could not make his own defense; c) during the trial in cases in which the law provides as punishment for the offenses committed life detention or imprisonment exceeding 5 years.
The Court notes that, “according to both texts, the obligation to ensure legal assistance in case of offenses for which the law provides imprisonment for 5 years or longer [assuming art. 171 paragraph 3 of the Criminal Procedure Code of 1968] and more than 5 years [assuming art. 90 of the Code of Criminal Procedure], is only provided during the trial, not during the criminal prosecution, procedural stage in which is the author of the exception of unconstitutionality at the time when she argues that the prosecution authorities were obliged to call a public defender for her. Therefore, at the time showed there was no obligation in charge of the prosecution to appoint a lawyer in the case submitted for resolution, the author of the exception having the right to be assisted by an elected lawyer according to art. 171 paragraph 1 of the Criminal Procedure Code of 1968. ”
According to art. 29 paragraph (1) of Law no. 47/1992 on the organization and functioning of the Constitutional Court, “the Constitutional Court decides on exceptions brought before the courts or commercial arbitration on the unconstitutionality of a ordinance or a law which has a connection with solving the case at any stage of the proceedings and regardless of its subject”. Or, given the considerations mentioned above, the subject of this unconstitutionality exception is unrelated to the case, since the author was not in the case of mandatory legal assistance in criminal prosecution stage, so that it cannot be invoked the unconstitutionality of the provisions sanctioning the incompliance on this obligations. For this reason, this exception is as inadmissible.