Reopening a criminal investigation without a judge: it all depends on whether the discontinuance order was served

If your case was closed and then reopened, review by a judge turns on a single detail: whether the discontinuance order had been served on you. The Constitutional Court dismissed as inadmissible the plea of unconstitutionality raised by Gheorghe Boeru, Dragoș Marian Boeru and Bogdan Eugeniu Boeru in a case before the Ploiești Court of Appeal, Criminal Division and Division for Cases Involving Minors and Family Matters, challenging Article 335(6) of the Code of Criminal Procedure. It is the same type of ruling the Court gave when it held that the prosecutor may close a criminal case alone, and that this is constitutional. Decision No 118 of 12 February 2026 was published in Official Gazette of Romania No 611 of 27 July 2026.

The challenged text provides that, where the hierarchically superior prosecutor sets aside the decision not to send the case to trial and orders the reopening of the criminal investigation before the order containing that decision has been served, the reopening is not subject to confirmation by the preliminary chamber judge.

In the main proceedings, the discontinuance order had been served on only some of the persons named in the operative part as covered by the closure. The authors of the plea argued that, in this intermediate situation, the absence of confirmation by a judge infringes the right to a fair trial, relying on Article 21(3) and Article 147(4) of the Constitution and on Article 6(1) of the European Convention on Human Rights.

What it changes in practice

The first effect is limited but clear. The rule in Article 335(6) remains in force untouched: a reopening ordered by the hierarchically superior prosecutor before the discontinuance order has been served is not confirmed by the preliminary chamber judge. The Court did not say that the text is constitutional, only that it could not be examined in that case.

The second effect concerns admissibility and is worth understanding, because it explains why many pleas fail without ever reaching the merits. The Court found that the challenged text had no bearing on the resolution of the case, a ground it calls decisive, with peremptory effect: once established, it blocks the examination of any other condition and the examination of the merits.

The third effect is the concrete reasoning. The challenged text concerns the situation in which the discontinuance order has not been served on any of the persons concerned. In the main proceedings, it had been served on some of them. The text therefore simply did not cover the situation in the case.

The fourth effect is a delimitation of powers. The authors were in fact asking the constitutional court to establish whether a reopening must be confirmed by a judge where the order has been served only in part. The Court pointed out that, under Article 2(3) of Law No 47/1992, it rules only on the constitutionality of the acts referred to it and cannot interpret and apply the law in the case before the trial court.

The fifth effect is the practical one for that case, and it favours the discussion. The question remains open before the courts, which apply the methods of interpreting legal rules. The Court adds a systemic argument: answering in their place would be an interference with the judicial function, contrary to Article 126 of the Constitution. The preliminary chamber judge and reopening came back in September 2026, when the Court held that a prosecutor’s refusal to reopen the investigation is not subject to review by a judge.

What has changed compared with the previous situation

In law, nothing changes. Article 335(6) of the Code of Criminal Procedure remains in its current form, and partial service of the discontinuance order continues to be left unregulated.

It is useful to recall where this text comes from. The rule requiring judicial confirmation of the reopening of the criminal investigation was introduced into the Code of Criminal Procedure in order to align domestic legislation with Article 6(1) of the European Convention on Human Rights, as interpreted in the judgment of 4 August 2005 in Stoianova and Nedelcu v Romania. Without this safeguard, the repeated reopening of a closed case could leave a person in unlimited uncertainty.

The position of the referring court was, moreover, in favour of the authors. The Ploiești Court of Appeal took the view that the plea was well founded and that the text creates an unjustified difference in treatment between respondents who were served with the discontinuance order and those who were not, depriving the latter of the safeguard of judicial confirmation.

The Government argued, on the contrary, that the plea was unfounded and pointed to an alternative remedy: the order by which the hierarchically superior prosecutor sets aside the decision not to send the case to trial may be challenged before the prosecutor hierarchically superior to the one who set it aside. It remains a remedy internal to the prosecutor’s office, not a judicial one.

In terms of method, the decision reinforces a settled line in the Court’s case-law. A bearing on the resolution of the case presupposes two cumulative conditions: the applicability of the challenged text in the case before the court and the need to raise the plea in order to restore lawfulness. And the applicability of the text is not examined in abstracto, but through the lens of the author’s real procedural interest, that is, through the effects that a possible finding in his favour would produce for him personally.

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