In brief

  • The application by which you ask for the judge to be changed stays inside the same court. The Constitutional Court rejected as unfounded, unanimously, the criticism brought against the rule in Article 68(1) of the Code of Criminal Procedure. The recusal of the judge of rights and freedoms and of the preliminary chamber judge is decided by another judge of the very court in which the judge objected to sits.
  • Being heard remains a possibility, not an obligation. Under Article 68(5), the judge „poate” (may) hear the prosecutor, the parties and the person objected to, and the author of the plea asked for that word to be read as an obligation. The constitutional judges did not accept that reading. The time limit for a ruling stays at 24 hours at most, and the hearing takes place in chambers, that is without the public.
  • The interlocutory judgment cannot be challenged anywhere. Article 68(7) closes off every avenue of challenge, and the Court held that access to justice does not mean access to every level of jurisdiction for every incident in a case file. Three concrete things are left to you: attending on the date set, written submissions filed in the case file, and arguing the application through a lawyer.
Act: Decision no. 225 of 12 March 2026 of the Constitutional Court on the plea of unconstitutionality concerning the provisions of Article 68(1), (5) and (7) of the Code of Criminal Procedure
Published: Official Gazette of Romania (Monitorul Oficial) no. 783 of 15 September 2026
Delivered: 12 March 2026, final and generally binding from publication, 15 September 2026

Anyone who asks in a criminal case for the judge to be replaced gets the answer from a colleague of that judge, within 24 hours at most, and the answer is final. By Decision no. 225 of 12 March 2026, published on 15 September 2026, the Constitutional Court rejected as unfounded the criticism brought against the three paragraphs that make up the skeleton of the recusal procedure in criminal proceedings, and found them constitutional. A week earlier, on 5 March 2026, the same Court had said the same thing on the civil side, through Decision no. 213/2026, published on 2 September 2026, which upheld the rule under which an application for recusal goes to another panel of the same court. The September decision adds the missing piece: the absence of an avenue of challenge changes nothing either.

The case started at the Reșița District Court. A petitioner who was challenging, under Article 340 of the Code of Criminal Procedure, the decision to close the case in his own file, asked for the recusal of the preliminary chamber judge seised of his complaint. By the interlocutory judgment of 29 September 2021, the court referred the matter to the Constitutional Court, which registered the case under no. 2.963D/2021. The Reșița District Court gave its opinion to the effect that the plea was unfounded, while the Government and the representative of the Public Prosecutor’s Office asked, principally, for it to be rejected as inadmissible. The presidents of the two Chambers of Parliament and the Ombudsman sent no point of view.

There were three criticisms, and each touched a different part of the procedure. The first concerned jurisdiction: the petitioner argued that a judge asked to assess the conduct of a colleague from the same court cannot do so freely, above all where the ground invoked is the one in Article 64(1)(f) of the code, that is the reasonable suspicion that the judge’s impartiality is affected. The remedy sought was for such applications to go to another court of the same level within the area of the same court of appeal. The second criticism attacked the word „poate” (may) in Article 68(5): so long as the hearing of the parties is left to the judge’s discretion, the adversarial principle becomes, the author said, a favour rather than a rule. The third criticism targeted Article 68(7), which leaves no avenue of challenge against the interlocutory judgment given by a single judge.

The Court’s answer starts from a classification from which everything else follows. Deciding an application for recusal is not a trial in itself, it is an incident, a matter of administering the judicial process. The Court calls it a procedure of an administrative and judicial nature, which takes on the appearance of adjudication only through its form, not through its object. If it is not a trial, it does not need all the guarantees of a trial. The Court also recalls that the law provides for two stages. First, the judge before whom you make the application checks whether it is admissible in principle, under Article 67(5). Only if it passes that filter does the application go to another judge or another panel of the same court.

On the other two criticisms, the reasoning rests on the Court’s own case law and on a distinction of constitutional law. The short time limit and the hearing without the public are put down to speed, that is to the concern not to block the main case because of an incident. And the absence of an avenue of challenge falls, the Court says, within the exclusive competence of the legislature: Article 129 of the Constitution provides that avenues of challenge against judicial decisions are exercised „în condițiile legii” (under the conditions laid down by law), while Article 13 of the European Convention on Human Rights requires an effective remedy before a national authority, that is a single level of jurisdiction, not all of them. Since no new elements had appeared compared with the earlier decisions, the Court kept both the solution and the reasoning.

What it changes in practice

The decision does not change a single word of the law. Its effect is one of confirmation: from 15 September 2026 it is established, with generally binding force, that the recusal procedure in criminal proceedings, as it stands today, passes the constitutional test against the criticisms raised. For someone caught up in a criminal case, that means a route that is predictable and short, but also narrow.

  • Your own court decides the application. For the judge of rights and freedoms and the preliminary chamber judge, Article 68(1) sends the application to a judge of the same court. For a judge who is part of a trial panel, Article 68(2) sends it to another panel of the same court.
  • The time limit is 24 hours at most. That is what Article 68(5) provides, and the hearing takes place in chambers, that is not in public.
  • Whether you are heard depends on the judge. The same paragraph allows him to carry out any checks and to hear the prosecutor, the main procedural subjects, the parties and the person whose recusal is sought, but only „dacă apreciază necesar” (if he considers it necessary).
  • The interlocutory judgment is final. There is no avenue of challenge against it, as Article 68(7) provides.
  • The case does not stop. Under Article 67(6), the panel before which the recusal was raised rules on preventive measures even with the participation of the judge objected to. And where the recusal is granted, Article 68(6) requires an express finding on the extent to which the steps already taken remain valid.
  • The same rules, with different figures, for the prosecutor. For the prosecutor in the criminal investigation stage, Article 70(1) and (3) send the application to the hierarchically superior prosecutor, who settles it within 48 hours by an order against which there is no challenge. Where the prosecutor takes part in the court hearing, Article 70(8) and (10) repeat the 24 hour time limit, the sitting in chambers and the absence of any avenue of challenge.

What has changed compared with the previous situation

In the text of the law, nothing. Article 68 has had its present form since 1 February 2014, the date on which the Code of Criminal Procedure adopted by Law no. 135/2010 entered into force, except for paragraphs (8), (9), (91) and (10), rewritten by Government Emergency Ordinance no. 18/2016, published in Official Gazette of Romania no. 389 of 23 May 2016. The paragraphs under criticism, (1), (5) and (7), have never been touched.

What does change is the legal standing of these texts. Until now, paragraph (1) had been upheld by Decision no. 276 of 24 April 2018, published in Official Gazette of Romania no. 589 of 11 July 2018, and the final sentence of paragraph (5) together with paragraph (7) by Decision no. 271 of 24 April 2018, published in Official Gazette of Romania no. 657 of 29 July 2018, each against criticisms raised separately. Decision no. 225/2026 is the first to uphold all three together, as a procedural whole, which makes it harder to argue that, taken one by one, they would pass, but combined they would produce an imbalance.

The difference between the two ways of losing before the Constitutional Court matters here as well. Both the Public Prosecutor’s Office and the Government asked, principally, for a rejection as inadmissible, on the ground that the author was in fact seeking an amendment of the law and the enshrining of a particular interpretation. The Court did not take that route. It went into the substance and rejected the plea as unfounded, that is it read the criticisms and said that the texts comply with the Constitution. The difference counts: a rejection as inadmissible leaves the question unanswered, as happened on the same day with the criticism brought against the ban on stopping a car on the pavement, whereas a rejection as unfounded closes the subject on the grounds invoked.

Advantages and disadvantages

What it improves

  • The 24 hour time limit prevents the application for recusal from being used as a brake. A procedural incident cannot hold a case still for weeks on end.
  • The rule is the same across the country and does not depend on the court, the division or the subject matter, so the procedural outcome is predictable.
  • The admissibility filter in Article 67(5) stops repeated applications against the same person, for the same ground of incompatibility and the same facts already rejected once.
  • The judge objected to does not decide on his own recusal. Article 67(2) declares inadmissible the recusal of the person called upon to decide on a recusal, so the chain does not close in on itself.
  • The party is left with three real instruments, expressly acknowledged by the Court: attending on the date set, written submissions filed in the case file, and arguing the application through a lawyer.
  • Where the recusal is granted, Article 68(6) requires an inventory of the steps already taken, so the proceedings do not continue on an unclear footing.
  • The law already has a safety valve for situations in which the court cannot solve the problem on its own. Through Article 68(8), (9) and (91), the application goes up to the hierarchically superior court, and from there it may be sent to another court of the same level, within the same court of appeal or a neighbouring one.

What remains a problem

  • The person assessing the judge’s conduct is a colleague from the same court, sometimes from the same corridor. For the party invoking a lack of impartiality, that is exactly the problem he set out to solve.
  • Being heard is optional precisely where it would count most. The ground in Article 64(1)(f), reasonable suspicion as to impartiality, rests on concrete facts, and facts are clarified by listening to people, not by reading a file.
  • No avenue of challenge means that a wrong interlocutory judgment stays wrong for good. The only review left is the one the judge exercises over his own reasoning.
  • The sitting in chambers takes the procedure out of public view, in an incident that concerns public confidence in the court itself.
  • While the application is pending, the judge whose impartiality is contested may take part in the decision on preventive measures, under Article 67(6). What is at stake in that decision is a person’s liberty.
  • The safety valve in Article 68(8) and (9) opens only where no judge can be designated, not where the ground invoked concerns the court as such.
  • The texts were upheld on 12 March 2026 but became generally binding only on 15 September 2026. Between those two dates, courts and parties worked without being able to rely on the solution.

Practical advice

  1. Draft the application against the specific person and set out, for each one, the ground of incompatibility and the facts you rely on. The requirements are written in Article 67(2) and (4), and a generic application stops at the admissibility filter.
  2. Write down all your grounds from the start. A second application against the same person, for the same ground of incompatibility and the same facts already rejected, is inadmissible under Article 67(5).
  3. File written submissions together with the application. Since being heard remains at the judge’s discretion, the paper in the file is the only thing that certainly reaches the person deciding.
  4. Do not seek the recusal of the judge who is deciding your recusal. The law declares it inadmissible, in Article 67(2), and the time lost there cannot be recovered.
  5. Ask for your grounds to be recorded in full in the interlocutory judgment or in the record of the hearing. Because the interlocutory judgment is reviewed nowhere, that record is the only trace left in the file.
  6. If your grievance concerns the prosecutor in the criminal investigation stage, address the application to the hierarchically superior prosecutor. Article 70(1) makes this mandatory on pain of inadmissibility.
  7. Do not delay. Under Article 67(1), the application is made as soon as you learn of the ground of incompatibility.

Frequently asked questions

What does it mean that the plea was rejected as unfounded?
It means that the constitutional judges read the criticisms, analysed them on the merits and decided that the legal texts comply with the Constitution as against what was said about them. This is different from a rejection as inadmissible, where the application is not even reached for judgment.
Who actually decides my application for recusal?
Another judge or another panel of the same court. For the judge of rights and freedoms and for the preliminary chamber judge, the rule is in Article 68(1). For a judge in a trial panel, it is in Article 68(2). The application does not go up to a higher court and does not travel to another town.
Will anyone hear me before the decision is taken?
Only if the judge considers it necessary. Paragraph (5) of Article 68 gives him the possibility, not the obligation, to carry out checks and to hear the prosecutor, the main procedural subjects, the parties and the person objected to. It was precisely this wording that was contested, and the Court kept it as it is.
Can I challenge the interlocutory judgment rejecting my recusal?
No. The text of paragraph (7) of Article 68 leaves no avenue of challenge against the interlocutory judgment, and Decision no. 225/2026 confirmed that this rule does not breach the right to a fair trial. The explanation given by the constitutional judges is that access to justice does not imply access to every procedural instrument and to every level of jurisdiction.
What happens to the case while the application is pending?
It does not stop. The time limit for a ruling is 24 hours at most, and as regards preventive measures Article 67(6) provides that the ruling is given by the panel before which the recusal was raised, with the participation of the judge objected to. Where the recusal is granted, Article 68(6) requires a finding on which of the steps already taken are maintained.
And what if I want to seek the recusal of the prosecutor?
It depends on the stage. During the criminal investigation, the application is addressed to the hierarchically superior prosecutor, on pain of inadmissibility, and he settles it within 48 hours by an order against which there is no challenge, under Article 70(1) and (3). For the prosecutor attending the hearing, the application is addressed to the judge or the panel and is settled within 24 hours, again with no avenue of challenge.
Is there any situation in which the application does reach another court?
Yes, but not at your choice. Article 68(8) sends the application to the hierarchically superior court where no judge can be designated from the same court, from the same division or from a division with the same specialisation. Only then do paragraphs (9) and (91) allow another court of the same level to be designated, within the same court of appeal or a neighbouring one.
Does the decision change anything in the case in which the plea was raised?
No. The decision is communicated to the Reșița District Court, and the complaint against the decision to close the case is heard further under the ordinary rules. The author of the plea is left without the replacement of the judge and without a new avenue of challenge.
From when does the decision take effect?
From publication in the Official Gazette of Romania, that is from 15 September 2026. It had been delivered 187 days earlier, on 12 March 2026, but decisions of the Constitutional Court are final and generally binding from the date of publication, under Article 147(4) of the Constitution.

Editorial analysis

The decision is short, unanimous and consistent with the Court’s own rulings of the past ten years. Its problem lies not in what it held but in the ratio between the pace demanded of the citizen and the pace the system allowed itself. The law gives the judge 24 hours at most to settle an application for recusal. Reviewing the constitutionality of that time limit took 1,625 days from the referral by the Reșița District Court on 29 September 2021 to the delivery of the decision on 12 March 2026, plus another 187 days to publication, 1,812 days in all. Put differently, reviewing the 24 hour time limit took 1,625 times longer than the time limit reviewed.

The second observation concerns a text the decision never cites. The author of the plea had asked for applications for recusal to be sent to another court of the same level within the area of the same court of appeal. That solution already exists in the law, in Article 68(9) and (91), rewritten by Government Emergency Ordinance no. 18/2016, while Article 68(8) sends the application up to the hierarchically superior court. In 2016, therefore, the legislature accepted that there are situations in which a court cannot settle the incident on its own. The difference from the author’s request lies in the trigger: the valve opens where no judge can be designated, a staffing criterion, not where the ground invoked puts in question the relationship between judges, a criterion of appearances. The Court reproduced only paragraphs (1), (5) and (7) in the decision, so it had no occasion to explain why the two criteria cannot coexist.

The third observation emerges from combining two texts the decision treats separately. Article 68(5) places the application for recusal in the category of incidents settled quickly and discreetly, while Article 67(6) provides that, during that interval, the judge objected to takes part in the decision on preventive measures. For the party arguing that the judge is no longer impartial, those 24 hours are not merely an administrative formality: within them it may be decided whether he stays in custody or not. Classifying the procedure as administrative and judicial, correct as regards its object, does not fully describe what is at stake in that interval.

What should be changed

  • A legal time limit for publishing the decisions of the Constitutional Court. There is none today, and here 187 days passed between delivery and publication. A time limit of 60 or 90 days would shorten the period in which the solution exists but nobody can rely on it.
  • A hearing on request, not only at the judge’s discretion, where the ground is the one in Article 64(1)(f). Reasonable suspicion as to impartiality is proved through facts, and a party who expressly asks to be heard should be heard at least in writing, without the 24 hour time limit being exceeded.
  • Mandatory reasoning and communication of the interlocutory judgment to the party who made the application. In a procedure with no avenue of challenge, the reasoning is the only review still working, and a party cannot learn anything from a document she never receives.
  • Extending the safety valve in Article 68(9) to grounds concerning the court, not only to a shortage of available judges. It would solve exactly the situation in this case, without touching the general rule and without creating a new avenue of challenge.
  • An annual public statistic of applications for recusal, by court, with the percentage granted. Today nobody can say whether the rule of one colleague judging another works or not, because the figures are not published. Without them, the discussion stays a matter of impressions.

Original text of the legal act

The text below is reproduced in Romanian, the official form of publication.

The full text, as published in the Official Gazette of Romania

Official Gazette of Romania no. 783 of 15 September 2026 8 pages PDF, 83 KB the act starts on page 2

Open the official PDFDownload the PDF

The viewer is not shown on small screens. Use the buttons above to open or download the file.

This article is for informational purposes only and does not constitute legal advice. For specific situations, consult a licensed attorney or tax advisor.