Sentences imposed under different criminal codes: at merger the more favourable law is sought again, the Constitutional Court confirms

A prosecutor asked the Constitutional Court to strike down the rule under which, when two sentences handed down in different cases are merged, the judge searches once more for the more favourable criminal law. The Court refused, unanimously. The rule is not written into the law itself, but comes from the way the High Court of Cassation and Justice interpreted the law through Decision no. 29 of 19 November 2015, delivered in the procedure for a preliminary ruling on points of law, the same procedure through which the supreme court recently held that a plea agreement does not entail the suspension of a civil servant from office. Decision no. 115 of 12 February 2026 was published in Official Gazette of Romania no. 607 of 24 July 2026.

The situation covered is more common than it looks. A person commits two offences before 1 February 2014, the date on which the current Criminal Code entered into force, but is tried for them in separate cases: for the first one the sentence is imposed under the 1969 Criminal Code, for the second one, tried later, under the new Criminal Code. Since the offences are concurrent, the sentences have to be merged into a single one, and the merger takes place in the procedure laid down by Article 585(1)(a) of the Code of Criminal Procedure.

The question answered by the supreme court in 2015 was which law governs that merger. The answer: the criminal law more favourable to the convicted person is determined under Article 5 of the Criminal Code, because the court carrying out the merger applies for the first time the rules on concurrent offences, and those are rules of substantive law, not of procedure.

The Prosecutor’s Office attached to the District 5 Court challenged precisely that interpretation, in a case pending before the District 5 Court of Bucharest. It argued that this leads to the combining of provisions from successive laws, prohibited by CCR Decision no. 265 of 6 May 2014, that it breaches res judicata and that it creates positive discrimination in favour of those tried separately, who would receive a third form of sentencing treatment. It also invoked an outcome it considered unnatural: the final sentence could turn out lower than the one imposed for only part of the offences. The referring court itself pointed out, however, that nothing of the sort had happened in the case before it.

What it changes in practice

The first effect is that the interpretation given by the High Court in 2015 remains in force and binding. When a sentence imposed under the 1969 Criminal Code is merged with one imposed under the current Criminal Code, for offences both committed under the old law, the judge determines the more favourable criminal law under Article 5 of the Criminal Code. The law in force on the date of the merger does not apply automatically.

The second effect concerns the limit of that operation. The Court stressed that the court cannot combine provisions from the two codes, but applies the provisions of one of them as a whole, whichever is more favourable. That is exactly the line drawn by Decision no. 265 of 6 May 2014, and the Court found that the supreme court’s interpretation follows it rather than breaching it.

The third effect has to do with what cannot be reopened at the merger stage. The court does not re-examine the lawfulness or the merits of the final convictions and cannot alter any of the judgments by which the individual sentences were imposed. Those have acquired the force of res judicata. Only the overall sentence is set, through a technical operation of merger.

The fourth effect is one of timing. The Court recalled that the transitional situation arises on the date the offences are committed and lasts until the overall sentence, established for the first time in a separate procedure, has been served. The date on which the two convictions became final is irrelevant for determining the applicable law.

The fifth effect is a dividing line that applies beyond this case. Where at least one of the concurrent offences was committed after 1 February 2014, the merger is necessarily governed by the new Criminal Code, under Article 10 of Law no. 187/2012. The search for the more favourable law remains possible only where all the offences predate that date.

What has changed compared with the previous situation

In law, nothing changes. The texts stay as they were, and the 2015 interpretation remains binding on the courts. What changes is that it has now also passed the test of constitutional review, so it can no longer be challenged by that route.

What sets this decision apart from the Court’s usual ones is what exactly was reviewed. Here the analysis did not concern a legal text in itself, but a text as interpreted by the supreme court. The Court explained that in such a case it carries out a two-stage analysis: it first checks whether the interpretation falls within the constitutional powers of the High Court, laid down in Article 126(3) of the Constitution, and then whether the rule, as interpreted, complies with the Constitution. Both stages were passed.

The prosecutor’s central argument, that of discrimination, was rejected through simple reasoning. Discrimination presupposes different legal solutions for persons in similar situations, whereas the contested text lays down the same solution for all convicted persons in the sentence modification procedure. The fact that some were tried through a single judgment and others through separate judgments does not in itself create discrimination.

One point of context remains. The plea was raised in May 2021, the decision was delivered in February 2026 and published in July 2026. Throughout that period the 2015 interpretation was applied by the courts, because raising a plea of unconstitutionality does not suspend the application of the contested text.

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