In brief

  • The Constitutional Court confirmed, unanimously, that a challenge against a decision to close the case is examined solely on the basis of the criminal investigation file and of any new written documents. The preliminary chamber judge does not hear witnesses and does not take the other means of evidence available in a trial.
  • Also declared constitutional was the filter that courts apply before referring a plea to the Court: the requirement that the challenged provision be connected with the resolution of the case is sufficiently clear, the Court says, and its meaning follows from the Court’s own case-law.
  • The criticism concerning the way in which the National Office for Prevention and Control of Money Laundering supplied information later used as evidence was rejected as inadmissible: this is a matter of how the judicial bodies apply the law, not one of constitutionality.
Act: Constitutional Court Decision No. 116/2026
Published: Official Gazette of Romania (Monitorul Oficial) No. 625 of 29 July 2026
In force from: 29 July 2026

If the prosecutor closes your case and you challenge that decision in court, the judge will not hear your witnesses and will not order an expert report: the judge will look at the criminal investigation file and at any new written document you submit. The Constitutional Court confirmed this limitation through Decision No. 116 of 12 February 2026, published in Official Gazette of Romania No. 625 of 29 July 2026, and rejected the criticisms raised against the rule. This is the same line the Court followed when it held that dissatisfaction with the way courts apply a provision cannot be remedied through a plea of unconstitutionality.

The operative part of the decision has two points. The plea concerning Articles 7 and 8 of Law No. 656/2002 on the prevention and punishment of money laundering was rejected as inadmissible. The plea concerning Article 29 para. (1) of Law No. 47/1992, with reference to the phrase “connected with the resolution of the case”, and para. (5) first sentence of the same law, as well as Article 341 para. (51) of the Code of Criminal Procedure, in the wording preceding Law No. 201/2023, was rejected as unfounded, the three provisions being declared constitutional. Both rulings were delivered unanimously.

The plea was raised by Ioana Sfîrăială in Case File No. 1.004/2/2020 of the Bucharest Court of Appeal, Second Criminal Division, in proceedings concerning a challenge against a decision to close the case and the contestation of the rejection of an application for the prosecutor’s recusal. The claimant’s challenge had in fact been allowed by the court.

What it changes in practice

The first effect concerns the preliminary chamber procedure. The confirmed provision states that the judge, when ruling on the challenge, reviews the contested decision on the basis of the acts and the material in the criminal investigation file and of any new written documents submitted. The full range of evidence provided for by Article 97 of the Code of Criminal Procedure is therefore not taken. The Court explains why: the challenge does not amount to the actual trial of the criminal case, but to a review of the prosecutor’s order from the standpoint of its lawfulness.

The second effect is the definition of what the judge may nonetheless do. The Court stresses that, whatever the outcome, the preliminary chamber judge also assesses the evidence gathered in the criminal investigation file, including whether or not it is sufficient to support the decision of the criminal investigation body. The limitation concerns new means of evidence, not the analysis of the existing ones.

The third effect relates to the guarantees that remain in place. The claimant is summoned, may file written submissions, may prove the unlawfulness of the contested decision by reference to the material in the file and to the new written documents, and may make applications and raise objections regarding the lawfulness of the taking of evidence or of the conduct of the criminal investigation, in so far as criminal proceedings have been initiated. In addition, in the situation covered by Article 341 para. (7) point 2 letter c), the prosecutor and the defendant may lodge a reasoned contestation, which is decided with the participation of the parties.

The fourth effect concerns the admissibility filter that courts apply every day. The requirement that the challenged provision be connected with the resolution of the case remains in force, and the Court confirms its clarity. It involves two cumulative conditions: the provision must be applicable in the case before the court, and raising the plea must serve to restore lawfulness. The Court adds a practical criterion: applicability is not assessed in the abstract, but through the lens of the author’s real and personal procedural interest.

The fifth effect is the delimitation of competences. The way in which the judicial bodies used the information transmitted by the National Office for Prevention and Control of Money Laundering cannot be reviewed by the Constitutional Court. The challenged provisions, the Court observes, do not even state that such information constitutes means of evidence in criminal proceedings. Answering such a criticism would amount to interference with the judicial function, contrary to Article 126 of the Constitution. Article 340 returned before the Court in September 2026, at the other end of the same procedure: a refusal to reopen a closed case reaches no judge, and that was found constitutional.

What has changed compared with the previous situation

At the level of the provisions themselves, nothing. The decision rejects all the criticisms, so no text ceases to be in force and none changes its meaning. What does change is the state of uncertainty: the same arguments can no longer be raised successfully in other cases.

The legal situation surrounding the provisions under review is nonetheless unusual, and the decision clarifies it. Law No. 656/2002 had already been repealed by Law No. 129/2019 by the time the plea was raised, and Article 341 para. (51) of the Code of Criminal Procedure was amended, after the Court had been seised, by Law No. 201/2023. The Court ruled on them all the same, relying on Decision No. 766 of 15 June 2011: constitutional review also covers provisions whose legal effects continue to be produced after they cease to be in force.

On the merits, the decision fits into an already settled line of case-law. It restates Decision No. 516 of 15 July 2021 on the limitation of the means of evidence, Decision No. 635 of 7 November 2024 on the same question, and Decision No. 301 of 18 June 2024 on the condition of a connection with the resolution of the case. The Court expressly finds that no new elements have arisen that would warrant a change in its case-law.

Advantages and disadvantages

What it improves

  • It confirms a swift procedure: a challenge against a decision to close the case is decided on the file, without reopening an investigation before the judge.
  • It states that the preliminary chamber judge may assess whether the evidence gathered by the prosecutor is sufficient, so the review is not purely formal.
  • It keeps open the route of new written documents, the only evidence the claimant can add after the case has been closed.
  • It clarifies, for lawyers and courts alike, the two cumulative conditions of the plea’s connection with the resolution of the case, together with the additional criterion of a real procedural interest.
  • It reaffirms the boundary between constitutional review and adjudication on the merits, which protects the independence of the courts.

What remains a problem

  • A claimant who needs a witness or an expert report to show that the decision to close the case is wrong cannot obtain them in this procedure.
  • The criticism regarding the use of information from the National Office for Prevention and Control of Money Laundering received no answer on the merits and was sent back to the trial court.
  • The “connection with the resolution of the case” filter remains a matter for the court’s assessment, and a refusal to refer the plea to the Court can be contested only together with the merits.
  • The decision concerns the wording preceding Law No. 201/2023, so it does not directly settle the debates about the current form of the provision.
  • More than five years passed between the raising of the plea, in February 2021, and the publication of the decision, in July 2026, a period during which both provisions under review had already been changed by the legislature.

Practical advice

  1. Gather your written documents before lodging the challenge. They are the only new evidence the preliminary chamber judge can accept.
  2. Build your arguments on unlawfulness, not on reopening the investigation. The procedure reviews the lawfulness of the prosecutor’s order, not guilt on the merits.
  3. File written submissions. The Court expressly lists them among the guarantees that make this procedure fair.
  4. Raise objections regarding the lawfulness of the evidence if criminal proceedings have been initiated in the case. Excluded evidence can no longer be taken into account when the case is tried on the merits.
  5. If you want to raise a plea of unconstitutionality, show your concrete interest. The Court requires that upholding the plea be capable of changing your situation in that particular case, not merely the situation of other people.
  6. Do not confuse the wrong application of a law with its unconstitutionality. Dissatisfaction with the way the prosecutor or the court used a piece of evidence is addressed through the ordinary remedies.
  7. Check which wording of the provision applies to your case. Article 341 para. (51) was amended by Law No. 201/2023, and the decision concerns the earlier form.

Frequently asked questions

What did the Constitutional Court decide in Decision No. 116/2026?
It rejected as inadmissible the plea concerning Articles 7 and 8 of Law No. 656/2002 and rejected as unfounded the plea concerning Article 29 para. (1) and para. (5) first sentence of Law No. 47/1992 and Article 341 para. (51) of the Code of Criminal Procedure, finding those provisions to be constitutional. Both rulings were delivered unanimously.
What evidence can be used in a challenge against a decision to close the case?
The acts and the material in the criminal investigation file, plus any new written documents submitted. The other means of evidence provided for by Article 97 of the Code of Criminal Procedure, such as the hearing of witnesses or expert reports, are not taken.
Why can witnesses not be heard in this procedure?
Because, as the Court explains, the challenge does not concern the actual trial of the criminal case but is a procedural means of reviewing the prosecutor’s order, contested from the standpoint of its lawfulness. The review is carried out on the material the prosecutor had before them when issuing the decision.
Can the judge find that the evidence gathered by the prosecutor is insufficient?
Yes. The Court states that the preliminary chamber judge also assesses the evidence taken in the criminal investigation file, including whether or not it is sufficient to support the decision of the criminal investigation body.
What does the condition that the challenged provision be connected with the resolution of the case mean?
Two cumulative conditions: the provision must be applicable in the case pending before the court, and raising the plea must seek the restoration of lawfulness. In addition, the author must have a real and personal interest, meaning that upholding the plea must be capable of changing their situation in those proceedings.
Why did the Court rule on provisions that were no longer in force?
Because, under Decision No. 766 of 15 June 2011, constitutional review also covers laws or provisions whose legal effects continue to be produced after they cease to be in force. Law No. 656/2002 had been repealed by Law No. 129/2019, and Article 341 para. (51) was amended by Law No. 201/2023 after the Court had been seised.
From when does the decision take effect?
From its publication in the Official Gazette of Romania, that is, from 29 July 2026. The decision is final and generally binding.

Original text of the legal act

The text below is reproduced in Romanian, the official form of publication.

The full text, as published in the Official Gazette of Romania

Official Gazette of Romania no. 625 of 29 July 2026 32 pages PDF, 269 KB the act starts on page 2

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