In brief

  • The question was how long the guardianship of an adult placed under interdiction before August 2022 may last, and the answer never came. The High Court of Cassation and Justice dismissed the referral from the Neamț Tribunal as inadmissible, that is, it never moved on to examine the question on the merits, because the conditions on which the law allows it to answer were not met. Those affected are the families of people placed under judicial interdiction up to 18 August 2022, their guardians and, before all of them, the protected persons, who learn from the court’s judgment whether the measure lasts 5 years or 15.
  • The ground for dismissal: the question was no longer new. The courts had already settled it hundreds of times, each in its own way. The file received 275 judgments on the same problem, 154 for a duration of 5 years and 121 for 15. Where case law is already formed and divided, the decision says, the right instrument is no longer the preliminary ruling but the appeal in the interest of the law. One does exist: file no. 1.114/1/2026, registered on 9 June 2026 by the governing board of the Bacău Court of Appeal, listed for 12 October 2026.
  • Until then, the duration is set by the judge in each case. The decision does not say that 5 years is right, nor that 15 would be. Both sets of arguments remain available and are reproduced at length in the published text itself, together with the opinions of the National Institute of Magistracy and of four law faculties. A case stayed while this answer was awaited resumes without it.
Act: Decision no. 83 of 22 June 2026 of the High Court of Cassation and Justice, Panel for the Resolution of Points of Law (file no. 582/1/2026)
Published: Official Gazette no. 791 of 17 September 2026
In force from: 17 September 2026, the date of publication in the Official Gazette

The High Court of Cassation and Justice was asked how long the guardianship of an adult released from judicial interdiction may last, 5 years or 15, and it left the question unanswered. The referral from the Neamț Tribunal was dismissed as inadmissible by Decision no. 83 of 22 June 2026, published on 17 September 2026. It is the second question about special guardianship sent back to the courts unanswered in less than two months, after the one of 28 July 2026 about the protection order. The difference is that here what is at stake is counted in years of someone’s life: if the court fixes 5 years, the family returns to court with a fresh medical and psychosocial assessment after 5 years; if it fixes 15, it does not.

A few words first, in plain language. Placement under judicial interdiction was the old measure by which an adult with a mental illness lost the right to sign anything on his own, all or nothing, with no shades in between. The Constitutional Court found, by Decision no. 601 of 16 July 2020, that the text governing it, Article 164(1) of the Civil Code, was unconstitutional, and Parliament replaced the measure, by Law no. 140/2022, with two measures cut to the person’s actual need: judicial counselling, for cases in which the impairment of the mental faculties is partial and the person needs to be advised, and special guardianship, for cases in which the impairment is total and the person needs to be represented by someone else. The first may not exceed 3 years, the second may not exceed 5, says Article 168(2) and (3) of the Civil Code.

This is where the problem starts. The same sentence of the Civil Code goes on: where the impairment of the mental faculties is permanent, the court may order the extension of the special guardianship for a longer duration, which may not exceed 15 years. And Law no. 140/2022 required the courts to re-examine all the old interdiction measures and to replace them with one of the new measures. The question, put simply: when a judge replaces an old interdiction with a special guardianship, is he taking a new measure, and therefore stopping at 5 years, or merely continuing one that already existed, and therefore free to go straight to 15?

The case that reached the High Court comes from Piatra-Neamț. By Civil Judgment no. 1.411 of 4 April 2025, the district court replaced the interdiction with special guardianship and appointed a relative of the protected person as guardian, for 15 years. The prosecutor’s office appealed: the maximum duration was 5 years, not 15. On 17 February 2026 the Neamț Tribunal stayed the appeal and asked the High Court for a preliminary ruling, that is the procedure by which a court sitting at last instance in a case halts the trial and asks the supreme court how a legal text is to be read, before delivering its own solution. The answer obtained by this route binds all courts.

What it changes in practice

On the substance of the question, the decision produces no effect at all. It does not establish that the correct duration is 5 years, it does not establish that it would be 15 and it narrows in no way the text of Article 168(3) of the Civil Code or of Article 20 of Law no. 140/2022. What it closes is a route: from 17 September 2026, a tribunal or a court of appeal sitting at last instance no longer has any reason to stay a case in order to put the same question by way of a preliminary ruling.

The panel went through the six conditions that Article 519 of the Code of Civil Procedure requires to be met together, listed in paragraph 75 of the decision. It found in order the standing of the referring court, the stage of the case, which was before a tribunal sitting at last instance, the link between the question and the outcome of the appeal, the fact that the supreme court had not ruled on this problem before and, according to paragraph 81, the fact that the problem was not the subject of an appeal in the interest of the law pending resolution. The novelty of the point of law, a requirement distinct from all the others, was not found to be met, and a single missing condition is enough for dismissal.

The reasoning is short and rests on figures. Novelty, the decision shows, is lost as the courts themselves resolve the problem. Where a significant number of judgments have already settled it, even differently, the corrective mechanism provided by law is no longer the preliminary ruling but the appeal in the interest of the law, the procedure through which case law that is already divided is brought to a common denominator. The courts of appeal sent 275 judgments to the file: 154 in which special guardianship had been established for 5 years and 121 in which it had been established straight away for 15.

The scale shows in the second figure cited by the decision. According to the Judicial Inspection report on the impact of Law no. 140/2022, covering the period from 1 June 2022 to 31 December 2024, re-examination proceedings had been started across the country in 18,120 cases, of which roughly 11,500 had been resolved by the date of this decision. That leaves around 6,600 cases in which the duration of the measure is to be set without any binding guidance. The same report had noted, in its own words, the „lack of clarity in the rules on the period for which special guardianship may be ordered” and the divided case law it has produced.

The immediate procedural effect is felt by the cases that were halted. The Neamț case, stayed since 17 February 2026 under Article 520(2) of the Code of Civil Procedure, resumes, and the tribunal will decide for itself how long the measure lasts. The similar cases stayed under Article 520(4) resume in the same way, having gained nothing from the wait.

What has changed compared with the previous situation

Until 17 September 2026, the question was open on two levels at once. On the level of practice, the courts each answered as they saw fit, and they still do. On the level of procedure, the preliminary ruling route still seemed available, and a court wanting to avoid a wrong solution could stay the case and ask. Decision no. 83/2026 closes the second level and does not touch the first at all.

What changes concretely, for anyone with a pending case, is the lawyer’s or the prosecutor’s calculation of what is worth trying. An application to refer this question to the High Court no longer stands a chance, because the ground for dismissal, the case law already formed, is all the more present now. One route to unification remains, the appeal in the interest of the law, and that one does not open at a party’s request: under Article 514 of the Code of Civil Procedure, the duty to ask the supreme court for a uniform interpretation lies with the Prosecutor General of the Prosecutor’s Office attached to the High Court, with the governing board of the High Court, with the governing boards of the courts of appeal and with the Ombudsman.

The second thing that changes is the time horizon. Until now, the answer had no date. Now it has one: 12 October 2026, the hearing date in file no. 1.114/1/2026, the appeal in the interest of the law brought by the governing board of the Bacău Court of Appeal. The question put there is the same, phrased even more directly: is the maximum term for which the replacement of the placement under interdiction with special guardianship may be ordered 5 years or 15 years? If that appeal is upheld, the ruling becomes binding on all courts from the date it is published in the Official Gazette, under Article 517(4) of the Code of Civil Procedure.

Finally, a change that does not show in the operative part but matters to anyone pleading. The text published now brings together in one place, over eight pages of the Official Gazette, all the arguments of both camps, the lists of courts supporting each, the opinion of the public prosecution service, the opinion of the National Institute of Magistracy and the opinions of the law faculties of Cluj-Napoca, Sibiu, Craiova and Timișoara. From now on it is public material that can be cited directly.

Advantages and disadvantages

What it improves

  • The stayed cases are unblocked. The protected person and his family no longer wait for an answer that was not coming, and the trial moves on with the legal text as it stands today.
  • It becomes clear which instrument is to be used. Case law already split in two is repaired through an appeal in the interest of the law, not through a preliminary ruling, and the decision explains why the two mechanisms cannot stand in for each other.
  • The answer gets a date: 12 October 2026, the hearing in the appeal in the interest of the law registered by the governing board of the Bacău Court of Appeal.
  • No court is left bound by an interpretation that might work against the protected person, because the decision imposes neither of the two.
  • The arguments of both lines, plus the opinions of four law faculties and of the National Institute of Magistracy, reach the Official Gazette and can be relied on as such.

What remains a problem

  • The substantive question stays unanswered. Two people with the same diagnosis may get 5 years or 15, depending on where their case landed, and the split among the 275 judgments sent to the file, 154 against 121, shows this is no isolated exception.
  • Around 6,600 re-examination cases were still unresolved at the date of the decision, out of the 18,120 started by 31 December 2024. Every one of them calls for an answer that nobody is giving.
  • The decision was delivered on 22 June 2026 and published on 17 September 2026, that is after 87 days, although Article 521(2) read together with Article 517(3) of the Code of Civil Procedure allows at most 30 days for the reasons and a further 15 for publication.
  • In one paragraph the decision finds that there is no appeal in the interest of the law pending resolution and in another it shows that there is. The details are in the next section.
  • The 3 year period within which the courts were to re-examine all interdictions of their own motion, laid down by Article 20(6) of Law no. 140/2022, had expired on 18 August 2025, 308 days before this decision.
  • Cases registered after 9 June 2026 cannot be stayed pending the appeal in the interest of the law. Article 517(11) of the Code of Civil Procedure allows a stay only for cases pending on the date the supreme court was seised.

Practical advice

  1. If you have a re-examination case stayed pending this decision, ask for it to be relisted. The answer on the merits has not come and will not come by this route, and the stay no longer has any purpose.
  2. The arguments did not disappear with the dismissal. Both lines are reproduced in the decision, published in Official Gazette no. 791 of 17 September 2026: paragraph 40 gathers the reasons for the 15 year duration, paragraph 44 those for 5 years. They can be put to the court in exactly that form.
  3. Do not confuse replacement with extension. Replacement is the operation by which an old interdiction becomes special guardianship or judicial counselling. Extension concerns a special guardianship that already exists and is nearing its end. The whole dispute starts from the question whether the first can be treated as the second.
  4. A duration of 5 years does not mean the measure falls away automatically at the end. Article 168(6) of the Civil Code obliges the guardian to apply to the court at least 6 months before expiry, and the court may order the extension, the replacement or the lifting of the measure. The guardianship authority checks whether the guardian has done his duty and applies to the court itself if he has not.
  5. A guardian appointed under the old interdiction stays in office as a rule. Article 20(4) of Law no. 140/2022 requires the guardianship court to keep him, unless he can no longer hold that position under the law.
  6. If your relative’s case has not yet been re-examined, the procedure can be started. Article 20(2) of Law no. 140/2022 provides for re-examination of the court’s own motion or on request, and the expiry of the 3 year period, on 18 August 2025, did not remove the courts’ duty to carry on with the re-examinations.

Frequently asked questions

What does it mean that the referral was dismissed as inadmissible?
That the High Court never even reached the question. To answer by this route, the law requires it first to find that six conditions are met, all at the same time. One was missing, so it did not go on to the merits. The dismissal says nothing about which interpretation is correct.
So how long can special guardianship last, 5 years or 15?
The text of the law stays as it was: Article 168(3) of the Civil Code says that the establishment of special guardianship may not exceed 5 years, but that, where the impairment of the mental faculties is permanent, the court may order the extension of the measure for a duration that may not exceed 15 years. What has not been clarified is whether the replacement of an old interdiction reads as establishment or as extension. Until there is a binding answer, the judge in each case decides.
What is the difference between placement under interdiction and special guardianship?
Interdiction was a single, total measure, applied in the same way to anyone, whatever the degree of the illness. Special guardianship is ordered only where the impairment of the mental faculties is total and the person needs to be represented continuously, it has a limited duration and, under Article 168(4) of the Civil Code, it can be tailored to categories of acts, or to property only, or to the person only. For milder situations there is judicial counselling.
Is the decision binding on the courts?
The decision ends with the statement that it is binding under Article 521(3) of the Code of Civil Procedure, a text that makes the resolution given to the points of law binding from the date of publication. Since the referral was dismissed without going into the merits, there is no resolution binding the courts on the question of duration. What does follow from the decision is something else: that the question can no longer be sent by way of a preliminary ruling.
Why did it matter that hundreds of judgments already existed on this problem?
Because the preliminary ruling is built to prevent divided case law, not to repair it. The decision shows that, once the courts have already resolved the problem, even differently, the preventive purpose can no longer be achieved, and the corrective mechanism becomes the appeal in the interest of the law. The 275 judgments sent in by the courts of appeal were the proof that the stage of incipient case law had been passed.
What happens to the cases that had been stayed?
They resume. The case that generated the referral had been stayed since 17 February 2026, under Article 520(2) of the Code of Civil Procedure, and similar cases could be stayed under Article 520(4). With the publication of the decision, the ground for the stay disappears, and each court decides on its own interpretation.
When, then, does a binding answer come?
At the earliest after 12 October 2026, the hearing date in the appeal in the interest of the law registered on 9 June 2026 under no. 1.114/1/2026. If it is upheld, the ruling becomes binding on all courts from the date the decision is published in the Official Gazette, under Article 517(4) of the Code of Civil Procedure.
If my relative has already been given 15 years by a final judgment, can anything still change?
Yes, by a route other than the appeal in the interest of the law, which under Article 517(2) of the Code of Civil Procedure has no effect on the judgments examined or on the situation of the parties in those cases. The route that remains is the one in Article 168(6) of the Civil Code: the guardian is obliged to apply to the court whenever facts and circumstances arise that justify reassessing the measure, and the court may then order its extension, its replacement or its lifting.

Errors and inconsistencies in the published text

  • Paragraph 81, read against paragraph 99. At paragraph 81, the decision finds that „the point of law is not the subject of an appeal in the interest of the law pending resolution”, that is precisely the condition Article 519 of the Code of Civil Procedure requires alongside novelty. At paragraph 99, the same decision shows that on 9 June 2026, 13 days before the hearing of 22 June, file no. 1.114/1/2026 was registered with the supreme court, the appeal in the interest of the law brought by the governing board of the Bacău Court of Appeal, concerning the same problem, the maximum term for which the replacement of the placement under interdiction with special guardianship may be ordered, and from that it draws the conclusion that „the referral must be dismissed as inadmissible”. The two findings cannot both be true. The existence of the appeal had been brought to the panel’s attention in the hearing itself, through the assistant magistrate’s report set out at paragraph 6, and had been raised by the prosecutor at paragraph 8. The consequence: it cannot be established from the published text whether the dismissal rests on the lack of novelty, a condition the law leaves to the panel’s assessment, or on the existence of an appeal in the interest of the law, which is an objective bar. The difference matters for any other tribunal or court of appeal weighing a referral on the same subject: on the first ground, a fresh referral is arguable; on the second, it is ruled out until the appeal is resolved.

Editorial analysis

The decision solves a real problem of procedure, and it solves it correctly. The preliminary ruling is an instrument of prevention, designed for a new legal text the courts have not yet applied, and using it as an arbiter in case law already split in two would turn it into an appeal in the interest of the law with different admissibility conditions. The figures bear this out beyond argument: 154 judgments one way, 121 the other, gathered from every court of appeal. Except that, for the person whose case is pending today, this impeccable reasoning translates into a single sentence: go and ask someone else. And the other mechanism, the correct one, is not triggered at his request.

The observation that does not show on reading the act from start to finish has to do with the clock, and it is of two kinds. The referral was registered on 20 March 2026, and Article 520(12) of the Code of Civil Procedure requires it to be heard within no more than 3 months of the panel being seised. Three months from 20 March means 20 June 2026, which fell on a Saturday, so the deadline ran to the first working day, Monday, 22 June, the very day of the hearing. The panel met its own deadline by the narrowest margin, on the last possible day. Then came the second part: Article 521(2), which refers to Article 517(3) of the same code, allows at most 30 days for the reasons and a further 15 for publication, that is 45 days in all. Publication came after 87 days, almost double. During that interval, the courts went on judging and, in theory, staying cases pending an answer that had already been refused.

The second observation comes from the proportions. The Judicial Inspection counted 18,120 re-examination cases started by 31 December 2024, of which around 11,500 had been resolved by the date of the decision. The 275 judgments sent in by the courts of appeal, however many they seem in the admissibility reasoning, account for roughly 2.4% of the closed cases. The case law the supreme court regards as formed and consolidated is, in fact, a sample. Around 6,600 cases remain open, and to them must be added those not yet started, even though the 3 year period laid down by Article 20(6) of Law no. 140/2022 expired on 18 August 2025, 308 days before the decision was delivered. Every one of them will get 5 years or 15 depending on the court.

Finally, a detail of procedural architecture that will matter in the coming months. Article 517(11) of the Code of Civil Procedure allows similar cases to be stayed only if they were pending before the courts on the date the appeal in the interest of the law was lodged, that is on 9 June 2026. Cases registered after that date cannot be stayed pending the answer and will be judged, however long the procedure takes, on today’s divided case law. The effect is paradoxical: the very mechanism meant to repair the divergence leaves the newest cases outside its umbrella, that is the ones that would have gained most from a uniform solution.

What should be changed

  • Rewrite Article 168(3) of the Civil Code so that it says directly whether the 15 year duration may be set from the outset where the impairment is permanent. The Judicial Inspection had itself flagged the „lack of clarity in the rules” of this text. What would change: the roughly 6,600 cases still open would get an answer without waiting for the outcome of an appeal in the interest of the law, and the dispute between establishment and extension would die at source.
  • Add to Article 20 of Law no. 140/2022 a statement on the nature of the replacement. The law says what the courts must do, but not whether replacing an old interdiction continues a protective measure or starts a new one, and the whole divergence grows out of that silence. In practice, the judge would no longer have to infer the legislator’s intention from a comparison with French law, as the courts that gave 15 years did.
  • Place the finding about the appeal in the interest of the law where the admissibility conditions are analysed, not at the end, as an additional argument. What would change: the decision would show a single, verifiable ground, and paragraph 81 would no longer say the opposite of paragraph 99. An act that contradicts itself loses its force of persuasion precisely before the reader who needs it.
  • Observe the 45 day publication deadline laid down by Article 521(2) read together with Article 517(3) of the Code of Civil Procedure. Concretely, the courts and the parties would have learned almost six weeks earlier that this route is closed and would have stopped staying cases pending an answer that was no longer coming.
  • Extend the possibility of a stay to cases registered after the appeal in the interest of the law is lodged. Today, Article 517(11) of the Code of Civil Procedure limits it to cases pending on the date of the referral. The consequence: a case opened in October 2026 would no longer have to be judged on divergent case law, but could wait a few months for the solution that concerns it directly.
  • Publish updated data on the re-examination of interdictions. The last public figure comes from a report whose checks ended on 31 December 2024, and the legal deadline for completion has expired in the meantime. In practice, it would show how many of the 18,120 cases are still open and how many people are actually touched by the question left unanswered.

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 no. 791 of 17 September 2026 16 pages PDF, 119 KB the act starts on page 5

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