He attacked two rules of criminal procedure, but there was no recusal in his file: the Constitutional Court rejected the plea without examining it

The Constitutional Court rejected as inadmissible a plea raised in a criminal case from Bacău, without ruling on either of the two criticisms. Decision no. 192 of 5 March 2026, published on 25 September 2026, leaves Article 68(7) and Article 148(1) and (3) of the Code of Criminal Procedure untouched. The first of them, the rule under which an application for recusal is decided finally, with no avenue of challenge, has come before the Court before and was upheld when it was attacked on the merits.

It is worth explaining what the two texts actually do. Recusal is the application by which a party to the proceedings asks for the judge, the prosecutor or the registrar to be taken off the case, because there is a reason that casts doubt on their impartiality. Withdrawal is the same thing, except that the magistrate asks it about themselves. Article 68(7) says, in a single sentence, what happens to the outcome: „Încheierea prin care se soluționează abținerea ori recuzarea nu este supusă niciunei căi de atac”, the interlocutory judgment deciding a withdrawal or a recusal is not subject to any avenue of challenge. Whoever loses an application for recusal is left with the judge they wanted replaced, and cannot ask a higher court to review the ruling.

The second text, Article 148, concerns something else: the undercover investigator, that is, the police officer who works under a false identity, and the collaborator, who may work under their real identity. Paragraph (1) says that the prosecutor supervising or conducting the criminal investigation may authorise their use for at most 60 days and only if three conditions are met at once: there must be a reasonable suspicion concerning one of the serious offences listed in the text, from drug trafficking and terrorism to any act punishable by imprisonment of 7 years or more; the measure must be necessary and proportionate; and the evidence must not be obtainable otherwise. Paragraph (3) adds the step that gave rise to the case: if the prosecutor considers that the investigator needs equipment for photographs or audio and video recordings, the prosecutor applies to the judge of rights and freedoms for a technical surveillance warrant.

What was asked of the two texts was, in the first instance, a right to challenge the recusal ruling and, in the second, a finding that paragraphs (1) and (3) are unconstitutional in so far as they allow recording equipment to be used without prior judicial review. The author argued that in his case the prosecutor had authorised a collaborator under a real identity to take photographs and make recordings, without the measure passing before a judge.

The Court reached neither of those arguments. On the first criticism it found that neither the contested judgment nor the referring order shows that the author had lodged any application for recusal, so the text on recusal has no connection with the resolution of the case, within the meaning of Article 29(1) of Law no. 47/1992. On the second it found that the man is in reality dissatisfied with the way the judicial bodies interpreted and applied the law, without formulating genuine criticisms of unconstitutionality, which is a matter for the ordinary courts under Article 126 of the Constitution.

What it changes in practice

A decision of inadmissibility changes nothing in the law and says nothing about its content. The two texts apply exactly as they applied, and the question whether Article 148(1) and (3) provide sufficient judicial review remains open for a future case, raised by someone in whose proceedings the problem actually arises.

For the author of the plea, the practical effect is that his trial goes on with nothing gained from this detour. The preliminary chamber challenge in which the plea was raised has been decided in the meantime, and the arguments about the use of recording equipment should have been taken before the preliminary chamber judge, not before the Constitutional Court.

For practice, the useful effect is a different one and is procedural: the decision repeats the two conditions that must be met cumulatively for a plea to be admissible. The contested text must be applicable in the case before the court, and raising it must serve to restore lawfulness. Whoever raises a plea on a text that was not used in their own file loses years of waiting for an answer that never touches the substance.

What has changed compared with the previous situation

Nothing changes in the statutory texts. The two articles, 68(7) and 148(1) and (3) of the Code of Criminal Procedure, remain in the form in which they were quoted in the decision.

What changes is the standing of an argument. The criticism about the lack of an avenue of challenge against a recusal ruling has been made before and has received, in other cases, answers on the merits. Here it received none, so nothing is added to the case-law on this text. Likewise, the contention that a collaborator cannot use recording equipment without a warrant remains unanswered, even though it has a foothold in the contested text itself: paragraph (3) expressly requires an application to the judge of rights and freedoms.

A third thing is worth noting, because it shows up only on a careful reading of the decision. Paragraph 7 records that the court which referred the matter, contrary to Article 29(4) of Law no. 47/1992, did not state its opinion on the plea. The finding stays there, without any consequence, and the case went on for four years and three months.

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