A refusal to refer a case to the Constitutional Court is challenged within 48 hours, and the grounds go into the appeal itself

When a judge refuses to send a case to the Constitutional Court, the party has 48 hours to challenge that refusal, and the grounds have to be written into the appeal application itself. The Constitutional Court confirmed the rule by Decision no. 281 of 26 March 2026, published in Official Gazette of Romania no. 735 of 1 September 2026, by which it dismissed as unfounded, unanimously, the plea of unconstitutionality raised in a case before the High Court of Cassation and Justice. It is the second dismissal on civil procedure published in recent days, after the one by which the application for penalties per day of delay was left without any remedy: there too the Court left the law untouched but explained at length why.

The plea was raised by Marian Turbatu in Case no. 2.410/1/2021 before the High Court of Cassation and Justice, Second Civil Chamber, in proceedings whose very object was the appeal against an interlocutory judgment dismissing an application for referral to the Constitutional Court. The court had raised of its own motion the nullity of the appeal, in view of the date on which the grounds had been filed. To escape that nullity, the appellant challenged three provisions at once.

The first is Article 29(5) of Law no. 47/1992, which governs this very appeal: if the plea is inadmissible, the court dismisses the application for referral by a reasoned interlocutory judgment, and that judgment may be challenged only by appeal to the immediately superior court, within 48 hours of delivery; the appeal is heard within 3 days. The second is Article 470(5) of the Code of Civil Procedure, which says that, where the time limit for a first appeal runs from a moment other than service of the judgment, the grounds of appeal are to be stated within a time limit of the same length, which however runs from service. The third is Article 487(1) of the Code of Civil Procedure, under which a second appeal states its grounds in the application itself, save in the cases laid down in Article 470(5), which apply to second appeals as well.

The appellant argued that the three provisions breach Articles 16, 21 and 24 of the Constitution, that is equality before the law, free access to justice and the right to a defence. The Court examined all three complaints in turn and dismissed them. The bench was made up of nine judges, presided over by Elena-Simina Tănăsescu, and the decision was taken unanimously. It carries no dissenting opinion and no concurring opinion.

The duty to state grounds came up in another recent decision too, in which the CCR examined whether a court must answer point by point the arguments the parties raise, in the reasoning of the judgment itself.

What it changes in practice

The first effect is the simplest: nothing changes in law. All three provisions remain in force in their present wording, and the courts go on applying them exactly as they did before 1 September 2026. The Court found that no new elements had arisen to warrant a reconsideration of its own case law.

The second effect is the one that matters in practice. Decisions of the Court are generally binding, and their reasoning guides the courts. Here the Court restates the conclusion reached in Decision no. 321 of 9 May 2017: the appeal under Article 29(5) of Law no. 47/1992 is a remedy with a legal character of its own, which takes over none of the elements of the second appeal in the Code of Civil Procedure or in the Code of Criminal Procedure. From this it draws the direct consequence, in paragraph 17: Article 29(5) rules out supplementing the provision with the procedural rules on lodging and stating the grounds of remedies in civil or criminal procedure. In other words, Article 470(5) and Article 487(1) of the Code of Civil Procedure do not apply to this appeal.

The third effect concerns how much reasoning is required. The Court repeats that the application for referral may be dismissed only on the grounds expressly and exhaustively listed in Article 29(1) to (3) of Law no. 47/1992, which are purely objective and strictly procedural. The author of the plea therefore has only to show, in the appeal application, that the plea dismissed as inadmissible met those conditions. The grounds may be developed at length afterwards, in written submissions or in oral argument.

The fourth effect concerns the calendar. Under Article 147(4) of the Constitution and Article 11(3) of Law no. 47/1992, decisions of the Court are published in the Official Gazette of Romania and, from the date of publication, are generally binding and have effect only for the future. Decision no. 281/2026 was delivered on 26 March 2026 but takes effect from 1 September 2026. Where a plea is dismissed, the difference changes nothing for any litigant, since no provision leaves the statute book; had the plea been upheld, it would have mattered.

The fifth effect is that the rule does not stop at civil proceedings. The Court recalls that Article 29(5) of Law no. 47/1992 applies both in civil procedure and in criminal procedure, and that the remedy keeps its special character whatever the procedure in which it arises.

What has changed compared with the previous situation

From the point of view of the law, nothing. No provision has been declared unconstitutional, no rule has been suspended, no time limit has been altered. What changes is only the place of this decision in a line that begins in 2017.

The first link is Decision no. 321 of 9 May 2017, published in Official Gazette of Romania no. 580 of 20 July 2017, the only one in the series in which a plea was upheld. It is an interpretative decision: the Court held that Articles 21 and 24 of Law no. 304/2004, read together with the second sentence of Article 29(5) of Law no. 47/1992, are constitutional in so far as they do not rule out the possibility of lodging an appeal against a dismissal delivered by the last court in the judicial hierarchy. In practice, you cannot be left without a remedy merely because the refusal comes from the highest court. In the same decision the Court took over, from the High Court of Cassation and Justice, Joint Chambers, in Decision no. XXXVI of 11 December 2006, published in Official Gazette of Romania no. 368 of 30 May 2007, the classification of this appeal as a special remedy, with jurisdiction limited exclusively to examining the lawfulness and the merits of the interlocutory judgment.

Dismissals followed. Decision no. 714 of 9 November 2017, published in Official Gazette of Romania no. 338 of 18 April 2018, Decision no. 586 of 8 October 2019, published in Official Gazette of Romania no. 145 of 24 February 2020, and Decision no. 410 of 11 July 2023, published in Official Gazette of Romania no. 1.063 of 24 November 2023, gradually settled the rule on how much reasoning the appeal requires. Decision no. 723 of 2 November 2021, published in Official Gazette of Romania no. 669 of 5 July 2022, dismissed the complaint against the words „de la pronunțare”, from delivery, in the same paragraph, thereby confirming that the 48 hours run from delivery, not from service of the interlocutory judgment.

Decision no. 281/2026 takes its place at the end of that line and adds no new rule. Its novelty is that the three provisions are judged together, and that the Court says expressly what relationship there is between them: none.

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