Constitutional Court Decision No. 119/2026: the prosecutor may close a criminal case alone, and that is constitutional

When the prosecutor orders the closure of the case, your file is shut without any judge ruling on the merits of the accusation. Two complainants argued that this mechanism deprives them of the right to a fair trial, and the Constitutional Court rejected their criticism by Decision No. 119 of 12 February 2026, published in Official Gazette of Romania No. 625 of 29 July 2026. It is the second decision published in the same issue of the Official Gazette of Romania dealing with the closure of the case, alongside the one by which the Court established that a complaint against a decision to close the case is heard solely on the file and on new documents.

The plea was raised by Dragoș Pașc and Maria Magdalena Pașc in Case File No. 228/42/2021 of the Ploiesti Court of Appeal, Criminal Division and for Cases involving Minors and Family Matters, in proceedings in which their complaint against an order closing the case had already been allowed, on the basis of Article 341 para. (6) letter c) of the Code of Criminal Procedure.

The list of challenged provisions is unusually long: Articles 14, 15, 16, 17, 294, 305, 309, 314, 315, 317, 335, 339, 340 and 341 of the Code of Criminal Procedure, that is, practically the entire mechanism by which the criminal action is set in motion and extinguished. The operative part has two points, both rejections, delivered unanimously.

What it changes in practice

The first effect is the confirmation of the prosecutor’s competence. The Court notes that, symmetrically to the provisions on setting the criminal action in motion, the legislature regulated in Article 17 of the Code of Criminal Procedure the ways in which it is extinguished: during the criminal investigation, by closure of the case or by waiver of criminal prosecution, and during the trial, by the court judgment becoming final. The fact that the first option does not reach a trial judge is not a constitutional defect.

The second effect is a clarification of institutional position that is often ignored in public debate. Under the fundamental law, the Public Ministry is a component part of the judicial authority, not of the executive power or of public administration. The prosecutor’s prerogatives regarding the taking and assessment of evidence during the criminal investigation are, the Court says, an expression of the constitutional role laid down in Article 131.

The third effect is the safeguard that balances the system. Decisions not to prosecute and decisions not to send the case to trial are subject to review by the preliminary chamber judge, and that review gives expression to Article 126 para. (1) of the Constitution itself, the very text invoked by the parties raising the plea. In other words, justice is not bypassed, it intervenes through a different type of review than a trial on the merits.

The fourth effect concerns the deadlines that the decision indirectly confirms. Any person may lodge a complaint against measures and acts of the criminal investigation if their legitimate interests have been harmed, under Article 336 para. (1). In the case of decisions to close the case, the complaint to the hierarchically superior prosecutor must be lodged within 20 days from the communication of the copy of the act, under Article 339 para. (4).

The fifth effect is a lesson in constitutional procedure. The criticism levelled at Article 335 paras. (1), (2), (5) and (6) and at Article 341 para. (7) was not examined on the merits, because it concerned the reopening of the criminal investigation and cases in which the criminal action had been set in motion. Neither of these situations existed in the file of the parties raising the plea, so the provisions had no bearing on the resolution of the case. The Court expressly states that the same criticism may be examined on the merits, but only in a case in which those provisions actually apply. Those criticisms were examined on the merits a few months later, in a case where the provisions did apply: the refusal to reopen an investigation stays outside judicial review.

What has changed compared with the previous situation

Nothing at the level of the legal texts. All the provisions examined remain in force, in the same form, and the decision closes the discussion for the future on the same grounds.

What does change is the strength of a line of case law. The Court fully reiterates Decision No. 292 of 6 May 2021, published in Official Gazette of Romania No. 777 of 11 August 2021, and finds that no new elements have arisen that would justify a change of case law. In practice, the question whether the prosecutor’s power to close a case is compatible with the right to a fair trial receives the same answer for the second time in five years.

A second argument of the parties raising the plea was rejected without elaboration: the comparison with the field of administrative offences, where Article 11 para. (5) of Government Ordinance No. 2/2001 would offer, in their view, a procedure more in line with fair trial standards. The Court also held that the provisions of Article 148 of the Constitution, on integration into the European Union, are not applicable in this case.

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