Protection order against a person under special guardianship: the High Court declined to clarify

A tribunal asked the High Court to clarify whether a person lacking legal capacity to act can be the addressee of a protection order. The supreme court declined to answer, for a reason that goes strictly to the limits of the appeal. Decision no. 73 of 18 May 2026 of the Panel for the Resolution of Points of Law, published on Tuesday in the Official Gazette of Romania, is the third ruling of the same day by which a supreme court dismisses a referral without reaching the merits, after the two Constitutional Court decisions on court stamp duties and on the ban on entry into Romania.

The referral came from the Brăila Tribunal, First Civil Division, by an order of 29 January 2026, and was registered with the High Court on 3 February 2026. The question concerned the interpretation of Article 12 paragraph (1) of Law no. 26/2024 on the protection order, more precisely whether the phrase „from another person” can also cover persons in respect of whom the protective measure of special guardianship has been established. If the answer were yes, the tribunal also wanted to know on what conditions such an order could be issued.

The case behind it all is an ordinary protection order file. On 15 January 2026, an applicant asked the Brăila District Court to issue a protection order for herself and for the members of her family, against a respondent placed under special guardianship. On appeal, the tribunal ordered that the appointed guardian be summoned, pursuant to Article 57 paragraph (4) of the Code of Civil Procedure, and the guardian confirmed and signed the notice of appeal that the respondent had drawn up in person.

What it changes in practice

The substantive question remains open. The High Court said neither that a protection order can be issued against a person lacking legal capacity to act, nor that it cannot. Courts will continue to settle the matter in each individual case, and case law may well remain divided in precisely the situation the preliminary ruling mechanism was meant to unify.

The ground for dismissal concerns the limits of the appeal. The High Court found that the respondent had not defended himself before the court of first instance by arguing that no protection order could be issued against him because of the special guardianship, nor had he put forward such a claim in the notice of appeal. The devolutive effect of the appeal is limited by what was tried at first instance and by what was challenged, under Articles 477 and 478 of the Code of Civil Procedure. Consequently, the tribunal was to verify only whether the facts had been correctly established, that is, whether the respondent had committed acts of the kind listed in Article 1 of Law no. 26/2024.

The missing link with the case. This is the admissibility condition that was not met. The ruling sought went beyond the limits of the matter before the tribunal, so it would have produced no concrete effect on the outcome of the appeal. Without that link, the mechanism for unifying case law laid down in Article 519 of the Code of Civil Procedure cannot be triggered. The representative of the Prosecutor General had taken the same position.

The second question fell with the first. The High Court stated expressly that an analysis of the conditions on which such an order could be issued would have been called for only if the first question had received a ruling on the merits and the answer had been in the affirmative.

What is still useful in the decision. The text reproduces in full Article 12 paragraph (1) of Law no. 26/2024, with the seven measures a court may order through a protection order: temporary eviction of the aggressor from the shared home, the return of the victim and, where appropriate, of the family members to the shared home, keeping a minimum distance from the victim, from the family members or from the residence, workplace or school of the protected person, a ban on travelling to certain localities or areas, permanent wearing of an electronic monitoring device, a ban on any contact, including by telephone or correspondence, and surrender to the police of weapons, ammunition and permits.

The definition of acts of violence. The decision also cites Article 1 paragraph (1) of the same law, which lists seven categories: battery or acts causing physical suffering, acts of sexual violence, threats, stalking and surveillance, acts of online harassment, inducing a person not to notify the criminal investigation bodies or to give false statements, as well as any other acts of physical or psychological violence that endanger a person’s life, integrity or liberty.

What has changed compared with the previous situation

In law, nothing. Law no. 26/2024 remains unchanged, and the decision creates no new rule. It is binding only in the sense of Article 521 paragraph (3) of the Code of Civil Procedure, that is, as regards the finding of inadmissibility, not any ruling on the merits.

What is clarified is the admissibility condition for a referral. It is not enough for a point of law to be new, difficult and relevant in the abstract. It must directly influence the outcome of the actual case, and on appeal that depends on what exactly was challenged. If a party has raised the issue neither before the court of first instance nor in the grounds of appeal, the appellate court cannot settle it, and therefore cannot ask the High Court to rule on it either.

For practitioners, the consequence is one of strategy. The question of the respondent’s legal capacity in a protection order application must be raised early, before the court of first instance, if it is ever to reach the High Court through the preliminary ruling procedure.

A pattern of the day is worth noting. Of the six important acts published in the Official Gazette of Romania on 28 July 2026, three are refusals to decide on the merits, issued by the supreme courts on account of defects in the referral: two Constitutional Court decisions and this High Court ruling. In all three, the problem flagged was real, but the procedural route by which it reached the court was not the right one.

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