A computer search may be carried out by a specialist from outside the police too, CCR confirms

Who is allowed to go through the computer seized by the prosecutor came back before the Constitutional Court, and the answer is the same as before: a specialist from outside the judicial bodies may do it too, provided the prosecutor is watching. Decision no. 679 of 4 December 2025, published in Official Gazette of Romania no. 586 of 17 July 2026, dismisses as unfounded the objection raised in a criminal case pending in the preliminary chamber at the Bucharest Tribunal. The Court keeps to the line drawn in its earlier rulings on the taking of evidence, the same line it relied on when it upheld the protection of a threatened witness through a pseudonym.

Two provisions were challenged in the same case. The first is Article 168 paragraph (12) of the Code of Criminal Procedure, which states that the search of a computer system or of a data storage medium is carried out by a specialist working within the judicial bodies or outside them, in the presence of the prosecutor or of the criminal investigation body. The second is the phrase „during the trial” in Article 386 paragraph (1), in the wording that preceded Law No 201/2023, the provision governing the reclassification of the offence.

The author of the objection argued that using specialists from outside the prosecuting authorities means evidence ends up being taken by persons who do not appear on the list in Article 55 paragraph (1) of the Code of Criminal Procedure, namely the prosecutor, the criminal investigation bodies of the judicial police and the special criminal investigation bodies.

What it changes in practice

The first effect is that the provision on computer searches stays in force, in its current wording. The Court refers to Decision no. 455 of 16 October 2025, in which it had examined the same issue from a similar angle, and adopts those grounds in full.

The second effect concerns the meaning of the word „specialist”. The Court notes that the same phrase, „a specialist working within the judicial bodies or outside them”, also appears in Article 172 paragraph (10), which deals with expert findings. The rules of legislative drafting say that the same notions are expressed through the same terms, and a term used in different articles of the same law cannot carry different meanings unless the legislator expressly provides otherwise. Consequently, what the Court had held about specialists who draw up expert findings applies equally to those who carry out computer searches.

The third effect concerns supervision. A computer search is never carried out on its own: the provision requires the presence of the prosecutor or of the criminal investigation body, and specialists working within the judicial bodies act under the prosecutor’s guidance. The author’s argument that this opens the door to „unidentifiable persons” taking evidence was not accepted.

The fourth effect concerns where such matters are contested. The lawfulness of the taking of evidence and of the acts of criminal prosecution is reviewed in the preliminary chamber, under Article 342 of the Code of Criminal Procedure. That is where absolute or relative nullity can be invoked, along with the exclusion of unlawful evidence, of evidence obtained through torture and of evidence derived from it. What cannot be done in the preliminary chamber is a debate on the merits of the accusation.

The same argument about the limits of evidence came back before the Constitutional Court in March 2026, in a ruling on the use of interceptions from one case in another.

The fifth effect concerns the reclassification of the offence. The Court finds that this operation involves examining the merits of the accusation, because the court accepts or rejects circumstances the indictment says nothing about. That is why it can only be pursued at the first-instance trial stage, not earlier. The information showing that the classification has to change usually surfaces only during the judicial investigation, after the evidence from the prosecution file has been taken afresh or after new evidence has been produced.

The sixth effect is procedural and concerns the defendant directly. When the court raises a new classification, it is obliged to point out that the defendant may ask for the case to be taken later in the list or for the hearing to be adjourned, in order to prepare a defence. If the new classification covers an offence that requires a prior complaint, the court summons the injured person and asks whether they intend to lodge one. Without such a complaint, the criminal proceedings come to an end.

What has changed compared with the previous situation

The first point is that nothing changes in the text itself. Both complaints were dismissed as unfounded, and the challenged provisions remain applicable in the wording they already had.

The second is that a line of case law is being consolidated. The Court cites Decision no. 455 of 16 October 2025 for the computer search, and Decisions no. 253 of 25 April 2017 and no. 616 of 21 November 2023 for the reclassification of the offence. No new elements have emerged that would justify a change of position.

The third concerns the clarity of a term that has been disputed for years. Even though the law does not define the phrase „a specialist working within the judicial bodies or outside them”, the Court considers that its meaning follows from reading it together with the other provisions of the same code, so there is no breach of the requirement of foreseeability laid down in Article 1 paragraph (5) of the Constitution.

The fourth concerns the limits of the preliminary chamber. The decision reinforces the idea that this stage reviews lawfulness, not merits, and that the preliminary chamber judge cannot rule on matters that involve weighing up the accusation.

What does not change is the possibility of challenging the specific way in which a computer search was carried out. The constitutionality of the provision does not extend to the lawfulness of any particular operation, which continues to be argued in the preliminary chamber.

Advantages and disadvantages

Practical advice

Frequently asked questions