No court-appointed lawyer in a criminal case: the Constitutional Court sends the complaint to the trial court

If you did not have a court-appointed lawyer in a criminal case, the complaint goes to the court hearing the case, not to the Constitutional Court. The Court dismissed as inadmissible the plea of unconstitutionality raised by Bratu Adrian-Robert in a case before the Brașov Tribunal for Minors and Family, challenging Article 83(c), (d), (e) and (h) and Article 90(b) of the Code of Criminal Procedure. This is the same line the Court followed when it was asked about judicial confirmation for the reopening of the criminal investigation. Decision No 164 of 26 February 2026 was published in Official Gazette of Romania No 611 of 27 July 2026.

The challenged texts are precisely those that list the rights of the defendant. Article 83(c) provides for the right to have a lawyer of one’s own choosing and, where no such lawyer is appointed, in cases of mandatory legal assistance, the right to be assigned a court-appointed lawyer. Letters (d), (e) and (h) concern the right to propose evidence, to raise objections and to make submissions, the right to file any other requests and the other rights provided by law.

Article 90(b) establishes that legal assistance is mandatory where the judicial authority considers that the suspect or the defendant would not be able to conduct his own defence. The author of the plea argued that no court-appointed lawyer had been provided to him and that this text had not been brought to his attention, either orally or in writing.

What it changes in practice

The first effect is that the texts remain untouched. Article 83 and Article 90 of the Code of Criminal Procedure continue to apply in the same form, and the Court did not examine on the merits whether they are constitutional.

The second effect is the distinction that matters in practice. The Court held that the author’s arguments do not target the unconstitutionality of the texts, but the way in which those statutory provisions were applied by the judicial authorities in the case before it. This is exactly the type of issue that the ordinary courts can examine and, as the case may be, remedy.

The third effect is a limit of jurisdiction, expressly invoked. Under Article 2(3) of Law No 47/1992, the Court rules only on the constitutionality of the acts with which it has been seised and cannot examine how the law was actually applied in a particular case.

The fourth effect concerns the ground for the dismissal, which is somewhat unusual. The Court found the plea inadmissible in the light of Article 126(1) of the Constitution, that is, the rule that justice is administered through the courts of law, and of Article 2(2) and (3) of Law No 47/1992. In other words, the answer belongs to the judge hearing the case.

The fifth effect is the one that is useful for any defendant in the same situation. The reproach concerning the lack of a court-appointed lawyer is not lost: it remains a defence to be raised in the preliminary chamber procedure or on appeal, where it can attract concrete procedural sanctions.

What has changed compared with the previous situation

In law, nothing changes. The decision does not alter the regime of mandatory legal assistance and adds no new condition. It merely confirms where the discussion belongs.

The position of the referring court was, moreover, to the same effect, although on a different ground. The Brașov Tribunal for Minors and Family considered the plea unfounded and pointed out that the author relies on arguments concerning the merits of the challenge, without drawing a concrete and precise correlation between the criticised texts and the constitutional provisions allegedly infringed.

The list of constitutional texts invoked by the author is also worth noting. It included free access to justice and the right to a fair trial, the presumption of innocence, the right to a defence, the right of petition, the right of a person aggrieved by a public authority, the administration of justice and the use of remedies. The representative of the Public Prosecutor’s Office asked for the plea to be dismissed as inadmissible precisely because the author had confined himself to listing those provisions, without showing in what the contradiction consists.

This is the second time in the same issue of the Official Gazette of Romania that the Court dismisses a criminal-law plea on a ground of admissibility rather than on the merits. The trend is no accident: criticisms that describe a concrete procedural experience, however well founded they may be as a reproach, do not automatically turn into a question of the constitutionality of the text.

For the standard applied, the Court refers to Decision No 491 of 27 October 2022, where it held the same thing: constitutional review concerns exclusively the conformity of statutory provisions with constitutional norms, and not the way they are applied by the judicial authorities. Where the criticism does target the text itself, the Court examines the merits, as it did when it analysed whether the defence can find out the real identity of a threatened witness.

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