In brief
- The Constitutional Court dismissed, unanimously, as inadmissible, the plea by which a judge in Giurgiu challenged the rule that limits what a prosecutor at the start of their career may do alone. Inadmissible means that the Court did not reach the substance: it said the question concerns the way the law was applied in one particular case, not the law itself.
- The contested provision, Article 23(2) of Law No 303/2004, stated that trainee prosecutors may make submissions in court and sign documents, but only under the coordination of a fully appointed prosecutor. The judge pointed out that nowhere does the law say how that coordination is exercised, so there is no way of checking whether it took place.
- The old law no longer exists. Law No 303/2004 has been repealed since 16 December 2022, and the contested provision passed word for word into Article 45(4) of Law No 303/2022. The gap the judge flagged is therefore law in force today, and the Court left it unexamined now as it had 12 days earlier, when it dismissed, also as inadmissible, a plea on the same article.
Published: Official Gazette of Romania (Monitorul Oficial) no. 768 of 10 September 2026
In force from: 10 September 2026, the date of publication
The Constitutional Court declined to say what it means, in concrete terms, for a prosecutor at the start of their career to work under the coordination of an experienced prosecutor. Decision no. 132 of 17 February 2026, published in Official Gazette of Romania no. 768 of 10 September 2026, dismisses the plea as inadmissible, unanimously. The reason for the refusal is that the criticisms directed at the law are, in reality, complaints about the way the law was applied in one particular case, and that falls outside the Court’s jurisdiction. It is the same type of outcome described on MonitorLegal in Decisions no. 117 and no. 139 of 2026, where another question of criminal procedure went unanswered on the substance.
A trainee prosecutor is a prosecutor at the start of their career. They graduate from the National Institute of Magistracy, are appointed by the Superior Council of Magistracy to a post in a prosecutor’s office attached to a district court and work for a year under that regime, up to the capacity examination. This is not a trainee without powers: they handle case files, sign documents and appear in court. The law does limit their powers, though, because by definition their experience is limited and a prosecutor’s acts can put a person in detention.
The limit is set out in the provision that reached the Court. Article 23(2) of Law No 303/2004, in the version given by Law No 242/2018, provided: „Trainee prosecutors have the right to make submissions in court and to carry out and sign procedural acts and documents, under the coordination of a fully appointed prosecutor.” Two further rules from the same article sat alongside it: a trainee prosecutor has no right to order measures depriving or restricting liberty, and the solutions they adopt are countersigned by the prosecutor coordinating them. A fully appointed prosecutor is one who has passed the capacity examination, so one who is no longer a trainee.
The case that produced the question came from the Giurgiu District Court, criminal division. A preliminary chamber judge was checking, after committal for trial, the lawfulness of the criminal investigation. The judge found that the orders setting the criminal action in motion and continuing the investigation, and the pre-trial detention of the defendant, were unlawful, because the work had been done by a trainee prosecutor who lacked the necessary competence. The judge raised the plea of their own motion, by interlocutory judgment of 29 October 2020, and referred it to the Court.
The judge’s argument was not about the trainee’s powers as such but about the quality of the law that sets them. The provision states that the trainee works under the coordination of a fully appointed prosecutor and that the solutions they adopt are countersigned, yet it does not say how the coordination is exercised: whether the fully appointed prosecutor issues any document themselves, whether they merely countersign, whether they can set aside the trainee’s acts. The practical consequence the judge stressed is that, without a written expression of will from the coordinating prosecutor, the hierarchically superior prosecutor has nothing to review and the defendant has nothing to challenge. Hence the criticisms based on the principle of legality in Article 1(5) of the Constitution and on the right to a fair trial in Article 21(3), read through Article 6 of the European Convention on Human Rights.
The Public Ministry asked for the plea to be dismissed as inadmissible and relied on a distinction going to the substance. Police custody and pre-trial detention had not been ordered by the trainee prosecutor: the detention was imposed by the judge of rights and freedoms, and the trainee had only drawn up the report proposing the measure. Proposing is not ordering, so the prohibition on measures depriving a person of liberty had not been breached, and a report is not a solution requiring a countersignature. The prosecution representative added that the failure of both prosecutors to sign the report would not be a ground of nullity either, because the duty to sign does not fall on the fully appointed prosecutor.
The Court took the same road, but with brief reasoning. It held that the purpose of the provision is to regulate the competences of trainee prosecutors, in line with the principle of hierarchical subordination in Article 132(1) of the Constitution, and that the legislature limited those competences precisely because of their limited experience and the serious consequences that measures ordered by a prosecutor can have. It then said that the criticisms cannot be accepted, being based exclusively on factual elements, that is on the specific way the trainee prosecutor acted in that case. The arguments concern the application of criminal procedural law, and assessing the lawfulness of the acts falls to the very preliminary chamber judge who raised the plea.
What it changes in practice
The decision is final and generally binding from publication, that is from 10 September 2026, under Article 147(4) of the Constitution. Being a dismissal, it removes no rule from force and amends no provision. A reader looking for a change in the law will find none: the effect of the decision is to close one route rather than open another.
The first concrete effect is felt in the Giurgiu case. The preliminary chamber judge gets an answer that sends them back to their own jurisdiction: the lawfulness of the acts in the file is for them to assess, not for the Constitutional Court. The hearing of the case did not stop during all this time, because raising a plea has not stayed proceedings since 2010, but 2,142 days went by between the interlocutory judgment of referral and the publication of the decision, that is almost six years.
The second effect concerns anyone who wants to raise the same issue. A dismissal as inadmissible does not use up the provision: the bar in Article 29(3) of Law No 47/1992 applies only to provisions already found unconstitutional. The door stays open, but a fresh plea has to be built differently, as a criticism of the rule rather than of the case file. The facts of the case are to be invoked only to show the link with the resolution of the case, as required by Article 29(1) of the same law.
The third effect is the one that matters in practice. The rule stays exactly where it was, only under a different number. For trainee prosecutors in post today and for the prosecutors coordinating them, Article 45 of Law No 303/2022 applies: paragraph (4) reproduces the contested provision identically, paragraph (6) keeps the prohibition on measures depriving or restricting liberty, paragraph (7) keeps the countersignature of solutions. Nowhere, not even in the new law, is it said what form the coordination takes.
The fourth effect is what remains unclarified. The question at the root of the case, whether a report proposing pre-trial detention amounts to ordering a measure depriving a person of liberty, has no binding answer. Every preliminary chamber judge settles it in their own case, and the nullity of a detention can hang on the answer. The Court’s silence is no endorsement of the Public Ministry’s position, however much the outcome may resemble it.
What has changed compared with the previous situation
In law, nothing has changed. The surrounding legislation did change, twice, over the almost six years the case sat with the Court, and the comparison is the useful part of this decision.
The 2005 version of Article 23(2), the one from the republication of Law No 303/2004 in Official Gazette of Romania no. 826 of 13 September 2005, said something different from the provision judged now: trainee prosecutors could carry out and sign „procedural documents”, under the coordination of „a prosecutor enjoying security of tenure”. Law No 242/2018, published in Official Gazette of Romania no. 868 of 15 October 2018, rewrote the paragraph in the version that reached the Court, with „procedural acts and documents” and with „fully appointed prosecutor”, and added two new paragraphs: one stating that the trainee prosecutor issues a reasoned advisory opinion and deals with the work assigned to them by the chief prosecutor, another forbidding trainee judges and prosecutors to order measures depriving or restricting liberty. The plea was raised on 29 October 2020, so the 2018 version applied.
The second change is the replacement of the law. Published in Official Gazette of Romania no. 1.102 of 16 November 2022, Law No 303/2022 entered into force 30 days after publication, on 16 December 2022, and repealed Law No 303/2004 by Article 294(5)(a). The old Article 23 moved to Article 45, with the same rules in the same order: paragraph (4) is the contested provision, comma for comma; paragraph (5) is the advisory opinion; paragraph (6) is the prohibition on measures depriving liberty; paragraph (7) is the countersignature of solutions. The traineeship still lasts one year, under Article 44(1).
What neither of the two rewrites changed is precisely the judge’s objection. The new law requires a single written document from the coordinating prosecutor, the quarterly individual assessment report under Article 44(4), and that one concerns the acquisition of practical knowledge, not any particular case. The countersignature under Article 45(7) covers solutions alone. The coordination under paragraph (4), which extends over every procedural act and document, has no form, no written trace and no sanction.
The Court’s own practice changed too, in the sense that it did not. By Decision no. 408 of 18 September 2025, published in Official Gazette of Romania no. 97 of 5 February 2026, the Court had already dismissed, as inadmissible, a plea against Articles 22 and 23 of the same Law No 303/2004, raised in a case before the Targu Jiu District Court, on the ground that the author framed the criticisms in terms of the interpretation and application of the law in that case. Today’s decision reaches the same outcome, on the same article, with the same argument, 12 days after the publication of the earlier one.
Advantages and disadvantages
What it improves
- It keeps the limit of the Constitutional Court’s jurisdiction where it belongs: a plea cannot become a disguised appeal against the way a prosecutor worked on a case.
- It says expressly that assessing the lawfulness of the acts and measures in the file falls to the preliminary chamber judge, so the party gets an answer from the court hearing the case rather than a further postponement.
- It was delivered unanimously, with no dissenting or concurring opinion, so the outcome leaves no doubt about what the Court meant.
- It does not block the issue. A dismissal as inadmissible does not trigger the bar in Article 29(3) of Law No 47/1992, so a plea framed as a criticism of the rule can reach the Court again.
- It restates, by reference to Article 132(1) of the Constitution, the basis on which a trainee prosecutor’s powers are limited, which is useful in any discussion about functional competence.
What remains a problem
- The substantive issue is left untreated and it is law in force. The contested provision applies today as Article 45(4) of Law No 303/2022, and the question of what coordination means has no answer either in the law or in the Court’s case law.
- Between delivery and publication, 205 days went by, and the decision takes effect only from publication. No rule imposes a publication deadline on the Court, even though for an interlocutory judgment refusing a request for referral the law gives the party 48 hours to appeal and the higher court 3 days to hear it.
- From the interlocutory judgment of referral to delivery, 1,937 days went by, that is 5 years and 4 months, and the provision judged had already been repealed for 1,159 days at the date of delivery.
- The decision cites no earlier decision, not even Decision no. 408/2025, published 12 days before on the same article and with the same argument. From the text, the reader cannot tell whether this is settled practice or an isolated outcome.
- The reasoning uses the formula that the criticisms cannot be accepted, which is the language of a dismissal as unfounded, while the operative part dismisses the plea as inadmissible. The two outcomes have different consequences, and mixing them in the reasoning does not help the reader.
- The published text does not clarify who ordered the defendant’s police custody: one paragraph attributes it to the trainee prosecutor, another describes it as a measure taken by the police. The whole reasoning on unlawfulness hangs on that detail.
Practical advice
- If you raise a plea of unconstitutionality, write down what exactly in the rule is unconstitutional, not what the prosecutor or the court got wrong in the case. The facts are invoked only to show the link with the resolution of the case, as required by Article 29(1) of Law No 47/1992. Today’s decision shows how a well-founded argument is lost, because it was framed as a complaint about application.
- For a defendant, the route against a document signed by a trainee prosecutor stays in the Code of Criminal Procedure: a complaint to the hierarchically superior prosecutor, the requests and pleas in the preliminary chamber under Article 342 and following, the challenge under Article 204 for preventive measures. The Constitutional Court does not review the lawfulness of the acts in a case file.
- Check what written trace the coordination left in the file. The law does not require a coordination document for each case: it requires the countersignature of solutions, under Article 45(7) of Law No 303/2022, and a quarterly individual assessment report, under Article 44(4). The absence of a coordination document for each case is not, in itself, a breach of the law.
- Bear in mind the distinction the Public Ministry relied on. A trainee prosecutor has no right to order measures depriving or restricting liberty, under Article 45(6), but a report proposing that the judge impose a measure is not an order. The difference between proposing and ordering can decide whether a detention stands.
- When working with a repealed provision, cite the version applicable at the date of the facts and check it in the Official Gazette of Romania. The consolidated version of Law No 303/2004 on the legislative portal is updated only to 20 May 2016 and does not include the 2018 amendments, so it shows a different text from the one cited by the Court, with „a prosecutor enjoying security of tenure” instead of „fully appointed prosecutor”.
- Do not treat the dismissal as an endorsement of the provision. The Court did not say that Article 23(2) is constitutional, it said that it is not examining the criticism as it was framed. The difference matters if you rely on this decision in your own reasoning.
Frequently asked questions
What did the Constitutional Court decide, in short?
What does dismissed as inadmissible mean and how does it differ from dismissed as unfounded?
Who is a trainee prosecutor and what are they entitled to do?
If the law was repealed in 2022, why was the plea still judged in 2026?
Does the contested provision still exist today?
What happens now with the Giurgiu case?
Can anyone raise the same issue before the Court again?
Why did it take so long?
Where can I find the full text of the decision?
Editorial analysis
The boundary the Court defends is correct in principle. A plea of unconstitutionality cannot be an appeal against a prosecutor, and had it become one, the Court would have turned into a court of judicial review sitting above the preliminary chamber. The Giurgiu judge’s question, however, also had a normative core, distinct from their case file: the law imposes a coordination without saying what coordination is, how it is expressed and what happens if it is missing. That is a classic complaint about clarity and foreseeability, the kind of criticism the Court routinely examines under Article 1(5) of the Constitution. The reasoning does not explain why the factual layer could not be separated from the normative one, even though that separation was the operation the case called for.
The most concrete observation does not come from reading the decision but from doing the arithmetic. From the interlocutory judgment of 29 October 2020 to delivery, 1,937 days went by, and from delivery to publication another 205, in total 2,142 days, almost six years, for three paragraphs of substantive reasoning. Over that interval the provision judged was repealed, and at the date of delivery it had been out of force for 1,159 days. The comparison that stings is with the deadlines the same law imposes on everyone else: under Article 29(5) of Law No 47/1992, where a court refuses a request for referral to the Constitutional Court, the party has 48 hours to appeal and the higher court 3 days to hear the appeal. For its own procedure, the law lays down no deadline, neither for deciding nor for publishing, and the decision takes effect only from the day of publication.
The second observation comes from setting this decision alongside one published 12 days earlier. By Decision no. 408 of 18 September 2025, published in Official Gazette of Romania no. 97 of 5 February 2026, the Court had dismissed as inadmissible a plea against Articles 22 and 23 of the same law, again on the ground that the author was criticising the interpretation and application of the rule in the case at hand. The reasoning then rested on settled case law and cited Decision no. 838 of 27 May 2009. Decision no. 132/2026 reaches the same outcome, on the same article, with the same argument, but in three paragraphs and with no reference at all, neither to its own decision of 12 days earlier nor to anything else. For an act whose whole point is to be generally binding, the absence of a reference is a loss: the reader cannot tell settled practice from a one-off outcome.
The third observation emerges from combining three paragraphs of the law in force today. Article 45(4) of Law No 303/2022 requires coordination for every procedural act and document drawn up by a trainee. Paragraph (7) requires a countersignature for solutions alone. Paragraph (6) prohibits only measures depriving or restricting liberty. Between those three nets falls precisely the document from the Giurgiu case: a report proposing pre-trial detention is not a solution, so it is not countersigned, and it is not a measure depriving a person of liberty, so it is not caught by the prohibition, yet it is the document with the gravest consequence that a trainee prosecutor can sign. It is the only document for which the law requires no verifiable trace of coordination, and that does not show up if you read any of the three paragraphs on its own.
Finally, a note for anyone who wants to check things themselves. The text cited by the Court in paragraph 13, with „procedural acts and documents” and „fully appointed prosecutor”, does not appear in the consolidated version of Law No 303/2004 on the legislative portal, which says „procedural documents” and „a prosecutor enjoying security of tenure”. This is not an error by the Court: the version on the portal is updated only to 20 May 2016 and does not take in the amendments made by Law No 242/2018. Anyone comparing the two without noticing the update date reaches the wrong conclusion that the decision cites a text that does not exist.
What should be changed
- A definition of coordination in Article 45 of Law No 303/2022. A paragraph stating in what form it is exercised, which document records it and what happens when it is missing. Effect: the preliminary chamber judge checks an objective requirement, instead of inferring the existence of coordination from the countersignature of a solution that may not even be in the file.
- An express list of the documents a trainee prosecutor may draw up in the field of preventive measures. Including the report proposing pre-trial detention, one way or the other. Effect: the argument over whether a proposal amounts to ordering a measure depriving a person of liberty disappears, an argument on which the nullity of a detention hangs today.
- A statutory deadline for publishing in the Official Gazette of Romania the Constitutional Court’s decisions on pleas. Effect: the 205-day gap between delivery and publication would no longer be possible, and the moment from which the decision becomes generally binding would be foreseeable for the courts hearing, in the meantime, the case from which the question came.
- Mandatory citation of the Court’s own precedent where the outcome and the argument are repeated on the same provision. Effect: the reader and the court can see that they have settled practice in front of them, and authors of pleas do not repeat an argument already closed on the same ground.
- Visible marking, on the legislative portal, of the date to which the consolidated version of a repealed act is updated. Effect: anyone looking for the version applicable in 2020 no longer lands on the 2016 version, which has different content and does not include the prohibition introduced in 2018.
- Separation, in the reasoning, of the criticism about application from the criticism about the clarity of the rule. Where a plea mixes the two, the Court should say what it examined and what it did not. Effect: the author of a plea with a normative core learns what needs reformulating, and the substantive issue is not lost for a second year running.
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. 768 of 10 September 2026 16 pages PDF, 114 KB the act starts on page 9
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