In brief

  • The Constitutional Court dismissed as unfounded, unanimously, the criticism aimed at the rule under which an application to recuse a judge is heard by another panel of the same court, not by a higher court and not by one in another city.
  • One of the challenged texts, Article 139(1)(b) of Law no. 304/2004, has been repealed since 16 December 2022, but its rule passed almost word for word into Article 152(1)(b) of Law no. 304/2022, so the decision also speaks to the law of today.
  • In practice nothing changes: the application still goes to the panel with the next number hearing cases in the same field, and it moves up to the higher court only when the court seised can no longer put a panel together.
Act: CCR Decision no. 213 of 5 March 2026 on the plea of unconstitutionality of the provisions of Article 50(1) of the Code of Civil Procedure and of Article 139(1)(b) of Law no. 304/2004 on the organisation of the judiciary
Published: Official Gazette of Romania (Monitorul Oficial) no. 738 of 2 September 2026
In force from: 2 September 2026, the date of publication, under Article 147(4) of the Constitution

The application by which a party asks for the judge to be removed from its own case is still heard by his colleagues at the same court, and on 5 March 2026 the Constitutional Court said the rule is constitutional. Decision no. 213 was published in Official Gazette of Romania no. 738 of 2 September 2026 and closes three cases started in 2021 by an individual, by the municipality of Pitești and by a county branch of a political party, all with the same grievance: whoever asks for a judge to be recused ends up being heard by the judges in the same building. It is the second decision of the Court published in these days that deals with an incident arising during proceedings, after the one about the 48-hour time limit for appealing a refusal to refer a matter to the Constitutional Court.

Three words need clarifying before anything else. Incompatibility is the situation in which the law says a judge cannot hear a particular case, for example because he has already ruled in it or has a connection with one of the parties. Abstention is the request by which the judge himself announces that he is in such a situation and steps aside. Recusal is the application by which a party to the proceedings asks for the judge to step aside, when he has not done so of his own accord. Who hears that application matters, because the answer decides whether the case stays with the challenged judge or not.

The answer is given by Article 50(1) of the Code of Civil Procedure: „An abstention or a recusal shall be decided by another panel of the court concerned, which may not include the judge who has been challenged or who has declared his abstention.” So not the court above, but another panel of the same court, from which the judge concerned is excluded. Which panel exactly is not written in the code, but in the Rules of Internal Procedure of the Courts, an act approved by the Superior Council of Magistracy. At the time the pleas were raised, the rules in force were those approved by CSM Plenum Decision no. 1.375/2015, whose Article 110(1) sent the application to the panel with the next number hearing cases in the same field.

This is where the first criticism arose. The authors of the plea argued that, if the application goes automatically to the next panel, there is no random allocation at all, but a panel known in advance, chosen by an administrative act rather than by a law voted in Parliament. The second criticism was aimed at Article 139(1)(b) of Law no. 304/2004, the text that gave the rules the power to lay down „the manner and criteria for allocating cases to judicial panels”. In the authors’ view, procedure is laid down only by law, and Parliament cannot leave it to the Superior Council of Magistracy.

The three cases reached the Court one by one, by interlocutory judgments given on 28 May 2021 by the Timișoara Court of Appeal, on 22 June 2021 by the Pitești Court of Appeal and on 15 September 2021 by the High Court of Cassation and Justice, and were joined. Both the prosecutor and the Government asked for the plea to be dismissed as inadmissible, on the ground that what was raised was not a conflict with the Constitution but a wrong application of the law. The Court did not take that route. It examined the criticisms on the merits and dismissed them as unfounded, in a panel of seven of the Court’s nine judges, unanimously.

The Code of Civil Procedure has reached the CCR as well, over the way the reasoning of a judgment must answer the submissions the parties make in the case, under Article 425(1)(b).

What it changes in practice

The decision is final and generally binding from 2 September 2026, the date of publication in the Official Gazette of Romania. Being a dismissal, it removes no text from the statute book and reopens no case. Anyone who lost a recusal application based on Article 50(1) gains no new ground for review from this decision, and anyone with proceedings pending will see the application heard exactly as before.

The real effect lies elsewhere, and it concerns the arguments that can still be used from now on. A litigant can no longer ask a court to set the rule aside on the ground that having the application heard by the colleagues of the judge concerned would breach the right to a fair trial. The Court said plainly that collegial relations between judges of the same court, or even of the same division, do not in themselves justify a suspicion of bias, and referred to Decision no. 464 of 28 October 2004, where it had held that the collegial system is a matter of judicial organisation, not of impartiality.

The control mechanism also stands. The Court recalled that the interlocutory judgment dismissing a recusal application can be appealed together with the merits, and that the higher court redoes all the procedural steps and the evidence taken at first instance if it finds that the recusal was wrongly dismissed. Protection therefore comes not from changing the panel that hears the incident, but from the possibility of starting the trial again later.

Finally, the decision confirms that the rules approved by the Superior Council of Magistracy may lay down how cases are allocated to panels. The separation of powers argument, raised under Article 61(1) and Article 126(2) of the Constitution, was rejected on the basis of earlier case law, namely Decision no. 169 of 8 April 2025.

What has changed compared with the previous situation

In law, nothing. Both challenged texts stand, and the practice of the courts has no reason to change. What does change is the context in which the decision has to be read, because between the day the cases reached the Court and the day of publication two acts were replaced.

Law no. 304/2004 on the organisation of the judiciary was repealed by Law no. 304/2022, published in Official Gazette of Romania no. 1.104 of 16 November 2022 and in force 30 days after publication, that is, on 16 December 2022. The Court nevertheless examined the repealed text, applying the rule set in Decision no. 766 of 15 June 2011: rules that have left the statute book can still be reviewed, as long as they continue to produce effects in the proceedings in which the plea was raised. That is exactly the situation here, where the disputes began in 2017, 2019 and 2020.

What matters for today’s reader is that the challenged rule did not disappear along with the law. Article 152(1)(b) of Law no. 304/2022 says that the Rules of Internal Procedure of the Courts lay down „the manner and criteria for allocating cases to judicial panels, with a view to ensuring compliance with the principles of random distribution and continuity”. Compared with Article 139(1)(b) of the old law, the only difference is the Romanian plural form of the word for panels, „completuri” instead of „complete”. What the Court found constitutional in the repealed text is therefore found, with the same meaning, in the text in force.

The same happened with the rules of procedure. CSM Plenum Decision no. 1.375/2015 was repealed by Decision no. 3.243 of 22 December 2022 of the Judges’ Division of the Superior Council of Magistracy, which approved the rules in force today. Article 109(1) of the new rules keeps the solution of the old Article 110(1): when all the members of a panel are concerned, the incident is decided by the panel with the next number hearing cases in the same field, and if only one panel is left in that field, it decides its own incident.

Advantages and disadvantages

What it improves

  • It closes a discussion that had gone on for years. Anyone arguing from now on that Article 50(1) breaches the right to a fair trial gets an answer that has already been given, and the case no longer waits on the Constitutional Court.
  • It confirms that the judge concerned cannot sit on the panel that hears the application, which remains the minimum guarantee, and one that can be checked in every case.
  • It keeps the procedure fast. The rules require incidents to be settled, as a rule, on the very day they are raised, and moving the application to a higher court or to another city would have meant new hearing dates and cases stalled for months.
  • It makes clear that rules approved by the Superior Council of Magistracy may lay down how cases are allocated to panels, without Parliament thereby giving up its power to make the law.

What remains a problem

  • Who hears your recusal application is not written in the law but in a set of rules. The litigant has to look in two different acts to find out something elementary about his own case.
  • The Court does not answer directly the point that a panel known in advance, the one with the next number, is not a panel chosen at random. It confines itself to saying that the rule is not read in isolation, but together with the rules of internal procedure.
  • The decision leaves untouched the situation in which the challenged judge himself takes part in dismissing the application. Article 50(1) refers expressly to Article 47(4) of the Code of Civil Procedure, where inadmissibility is found by the panel before which the application was made, with the challenged judge sitting.
  • The answer came 1,742 days after the first referral, for an incident that the same legal order wants settled the same day.
  • The published decision gives a wrong repeal date for Law no. 304/2004, a detail explained below.

Practical advice

  1. Check the ground before you file. Recusal can be sought only for the cases of incompatibility in Article 41 and Article 42 of the Code of Civil Procedure. An application based on anything else, for example on dissatisfaction with a ruling given in the case, is inadmissible under Article 47(2).
  2. Do not repeat the same application. Article 47(3) declares inadmissible an application made against the same judge on a ground of incompatibility that has already been dismissed.
  3. Remember who decides on form. If the application does not meet the conditions of Article 47, inadmissibility is found by the very panel before which it was made, with the challenged judge sitting. Only an application that passes this filter reaches another panel.
  4. The application can be made orally in the hearing or in writing, for each judge separately, stating the ground of incompatibility and the evidence you have.
  5. If the application is dismissed, you have not lost for good. The interlocutory judgment dismissing it is appealed together with the merits, and the higher court redoes the procedural steps and the evidence from first instance when it finds that the recusal was wrongly dismissed.
  6. Do not ask for the application to be moved to the higher court. Article 50(2) of the Code of Civil Procedure applies only when, because of the abstention or the recusal, a panel can no longer be put together at the court seised, usually at courts with too few judges.
  7. If you cannot attend, ask in writing for the case to be heard in your absence. One of the parties in these cases did just that, and the case was decided without her being present.

Frequently asked questions

What did the Constitutional Court decide in the end?
It dismissed the plea as unfounded and found that Article 50(1) of the Code of Civil Procedure and Article 139(1)(b) of Law no. 304/2004 are constitutional in relation to the criticisms raised. It is not a decision upholding a plea, so no text leaves the statute book.
Who will hear my recusal application from now on?
Another panel of the same court, which cannot include the challenged judge. Under Article 109(1) of the rules approved by Decision no. 3.243/2022 of the Judges’ Division of the Superior Council of Magistracy, when all the members of the panel are concerned, the application goes to the panel with the next number hearing cases in the same field.
Can the application ever reach a higher court?
Yes, but only in the case covered by Article 50(2) of the Code of Civil Procedure, that is, when, because of the abstention or the recusal, a panel can no longer be put together at the court concerned. It is an exception of strict interpretation, not a choice open to the party.
What is the difference between abstention, recusal and incompatibility?
Incompatibility is the situation, laid down by law, in which a judge cannot hear a case. Abstention is the withdrawal the judge asks for himself when he is in such a situation. Recusal is the party’s application, made when the judge has not stepped aside of his own accord.
Does the decision reopen the case in which my recusal application was dismissed?
No. Decisions of the Constitutional Court have effect only for the future, under Article 147(4) of the Constitution, and this one is in any event a dismissal, so it changes nothing in the applicable law.
Why did the Court examine a text from a repealed law?
Because, under Decision no. 766 of 15 June 2011, rules that have left the statute book can still be reviewed if they continue to produce effects in the proceedings in which the plea was raised. The disputes here began in 2017, 2019 and 2020, when Law no. 304/2004 was in force.
Does the rule from the repealed law still exist today?
Yes. Article 152(1)(b) of Law no. 304/2022 repeats almost identically the text of Article 139(1)(b) of the old law, the only difference being the Romanian plural form of the word for panels, „completuri” instead of „complete”.
Why is the recusal application not allocated at random by computer?
The Court did not require such a solution. It held that the rule in the code is not read in isolation, but together with the rules of internal procedure, and the Pitești Court of Appeal took the view that sending the case to the panel with the next number is itself a form of random allocation, because the numbering of the panels was not made for that particular case.
How long did the procedure before the Constitutional Court take?
The first referral was sent on 28 May 2021, the decision was delivered on 5 March 2026, and publication took place on 2 September 2026. That is 1,742 days from the first referral to delivery and a further 181 days to publication.
What happens if the challenged judge does take part in a ruling on my application?
That is legally possible in a single case: Article 47(4) of the Code of Civil Procedure, to which Article 50(1) refers expressly, provides that inadmissibility of an application that does not meet the formal conditions is found by the panel before which it was made, with the challenged judge sitting. Otherwise his participation is excluded.

Errors and inconsistencies in the published text

  • Paragraph 24, the date on which Law no. 304/2004 was repealed. The decision says that the law „was repealed on 16 March 2023 by Article 168(5) of Title IX of Law no. 304/2022”. Article 168(5) contains no calendar date at all: it provides that Law no. 304/2004 is repealed „on the date of entry into force of this law”, except for Article 66^1, which is repealed 90 days after that date. And entry into force is set by Article 168(1) at 30 days after publication, that is, on 16 December 2022, the law having been published on 16 November 2022. The date of 16 March 2023 is exactly 16 December 2022 plus 90 days, that is, the time limit applicable to a single article, mistakenly carried over to the whole law. The consequence: the text of the decision suggests that Law no. 304/2004 was still in force between 16 December 2022 and 16 March 2023, which is not the case, and the decision is generally binding and will be cited as such.

Editorial analysis

The Court’s solution comes as no surprise, since it repeats what it had already said in Decision no. 532 of 24 October 2023 and in Decision no. 169 of 8 April 2025. It is worth noting, however, that both were delivered after the three cases had reached the Court, in 2021. The authors of the plea were therefore given as an answer a body of case law that did not exist on the day they framed their criticisms, and the decision does not explain why those criticisms brought nothing new, it merely finds that they do not.

The most concrete observation is an arithmetical one. The Rules of Internal Procedure require, in Article 109(7), that procedural incidents be settled „as a rule, on the day on which they were raised”, and the Court builds its reasoning precisely on the need not to drag out the trial. Reviewing the constitutionality of this fast procedure took 1,742 days from the first referral, on 28 May 2021, to the ruling of 5 March 2026, plus another 181 days to the publication of 2 September 2026. Almost five years to confirm a rule that asks the party to have an answer within a single day.

The second thing the text does not say emerges from placing two provisions side by side. Article 50(1), quoted in full in paragraph 23 of the decision, ends with the sentence „The provisions of Article 47(4) remain applicable.” That Article 47(4) allows the inadmissibility of a recusal application to be found by the very panel before which it was made, with the challenged judge sitting. The Court reproduces the sentence and never returns to it in a single paragraph, although it concerns precisely the harshest scenario from the point of view of the criticism raised. Yet in the third case the application had been dismissed as out of time, that is, on a formal ground, the category in which Article 47(4) is most likely to apply.

Finally, both the prosecutor and the Government asked for the plea to be dismissed as inadmissible, arguing that what was criticised was the way the law is applied, not its content. The Court passed over that defence without a single sentence and went straight to the merits. The result is the same for the authors, but the line between what the constitutional court can and cannot review remains, once again, undrawn.

The panel that rules on a recusal is part of the same internal court machinery that CSM Decision 1223/2026 now changes for the random allocation of cases.

What should be changed

  • The rule on which panel hears a recusal application should be moved into the Code of Civil Procedure. If Article 50 itself said which panel has jurisdiction, instead of leaving that to a set of rules, the whole criticism in these three cases would have had no object, and the party would learn from a single text who is going to hear the application.
  • Decisions on repealed texts should point to the equivalent in force. A single sentence saying that Article 139(1)(b) of Law no. 304/2004 is now found in Article 152(1)(b) of Law no. 304/2022 would spare every reader an hour of searching and would show at once whether the decision still matters for today’s law.
  • A maximum time limit between delivery and publication. The 181 days that passed here are days in which the decision exists but produces no effects, because it becomes binding only on publication. A limit of 30 or 60 days would close that window.
  • The interlocutory judgment deciding a recusal should state the basis of the allocation. Naming the panel that heard the application and the rule under which it fell to that panel would make verifiable, in every case, the very thing the Court found clear enough in the abstract.
  • Objections of inadmissibility raised by the prosecutor or the Government deserve an explicit answer. When two authorities ask for dismissal on that ground and the Court nevertheless rules on the merits, the reasoning should say why, even if only in two lines.

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. 738 of 2 September 2026 48 pages PDF, 4.6 MB the act starts on page 2

Open the official PDFDownload the PDF

The viewer is not shown on small screens. Use the buttons above to open or download the file.

This article is for informational purposes only and does not constitute legal advice. For specific situations, consult a licensed attorney or tax advisor.