In brief

  • The rule stands. The Constitutional Court dismissed the challenge to the text that gives DIICOT jurisdiction to investigate offences connected with an organised crime case as well, even where those offences, taken on their own, are not on the directorate’s list.
  • The reason given by the Court. Joining cases is not left to the prosecutor’s will but follows the conditions written in Article 43 of the Code of Criminal Procedure, the same for everyone, and its purpose is that the evidence of one and the same criminal activity should be gathered once, by the same body.
  • Who is affected. Anyone investigated by DIICOT for an offence that does not fall directly within the directorate’s jurisdiction, lawyers in organised crime cases and the preliminary chamber judges who check whether the indictment comes from a prosecutor with jurisdiction.
Act: Constitutional Court Decision no. 332 of 16 April 2026 on the plea of unconstitutionality of Article 11(1) point 5 of Government Emergency Ordinance no. 78/2016 on the organisation and functioning of the Directorate for Investigating Organised Crime and Terrorism Offences, and amending and supplementing certain acts
Published: Official Gazette no. 789 of 17 September 2026
In force from: 17 September 2026, the date of publication; under Article 147(4) of the Constitution, decisions of the Constitutional Court are generally binding from publication and have effect only for the future

A defendant standing trial before the Alba Iulia Court of Appeal asked the Constitutional Court to strike down the rule that lets DIICOT investigate offences which are not on the directorate’s list, where they are connected with an organised crime case. The Court refused, unanimously. Decision no. 332 was delivered on 16 April 2026 and appeared in the Official Gazette on 17 September 2026. Whoever runs the investigation also decides what becomes of the case. The same question, put differently, reached the supreme court this year as well, in the case on searches carried out by the DNA together with officers of the General Anticorruption Directorate, where the answer was again one of procedure.

The text under challenge is a single line. Article 11(1) point 5 of Government Emergency Ordinance no. 78/2016 says that DIICOT has jurisdiction over „the offences which are connected, under Article 43 of the Code of Criminal Procedure, with those referred to in points 1 to 4”. Points 1 to 4 are the directorate’s list proper: offences committed for the purposes of an organised criminal group, trafficking in persons and in drugs, the laundering of money coming from those offences, and the setting up of the group itself. To these, point 5 adds everything connected with them.

The plea of unconstitutionality is the means by which a party to proceedings asks the Constitutional Court to check whether the legal text applied to him complies with the Constitution. Its author raised it in a challenge against the preliminary chamber order, that is from the stage in which a judge checks, before the trial begins, whether the indictment and the investigation acts are lawful. The Alba Iulia Court of Appeal referred the case to the Constitutional Court by Criminal Order no. 145 of 12 November 2021.

The criticism had a simple core. The DIICOT prosecutor conducts the criminal investigation and sends people for trial for offences that do not fall within his jurisdiction, the author argued, merely because they are said to be connected with offences falling within the directorate’s special jurisdiction. Material jurisdiction means the right laid down by law for a given body to investigate a given type of offence, and the author considered that point 5 sidesteps it and thereby breaches equality before the law under Article 16 of the Constitution, the right to a fair trial under Article 21(3) and the right of defence under Article 24.

In support, the author brought two earlier decisions of the Court. The first, Decision no. 302 of 4 May 2017, published in Official Gazette no. 566 of 17 July 2017, declared unconstitutional the solution that did not treat a breach of the rules on the material jurisdiction of the investigating body as an absolute nullity. The second, Decision no. 380 of 8 June 2021, published in Official Gazette no. 977 of 13 October 2021, struck down paragraph (3) of that same Article 11, the one that allowed the DIICOT prosecutor to see the criminal investigation through to the end in cases severed from the file, even where the remaining offences no longer fell within the directorate’s jurisdiction.

The Court’s answer: the two situations are not alike. The 2017 decision concerned the absence of a sanction for a breach of jurisdiction, not the possibility of joining cases where the law expressly provides for it. The 2021 decision concerned a subjective choice by the prosecutor, who could keep or pass on a case severed from the file, without the defendant being able to anticipate what would happen. Point 5, by contrast, leaves nothing to free assessment: the conditions for joinder are those in Article 43 of the Code of Criminal Procedure and can be read in advance.

What it changes in practice

For anyone investigated by DIICOT, nothing changes. An offence that does not figure on the directorate’s list stays in its file if it is connected, within the meaning of Article 43, with an offence on the list. An application to take that offence out of the file on the ground that the prosecutor had no jurisdiction can no longer rely on the unconstitutionality of the text, because the text has been checked and has passed.

The argument does remain usable on other ground. The preliminary chamber judge may still send the case back to the prosecutor’s office if the indictment comes from a prosecutor without material jurisdiction, under Article 346(3)(a) of the Code of Criminal Procedure. What is discussed there is no longer whether the rule is constitutional, but whether the actual situation really falls within one of the cases in Article 43.

For prosecutors, the decision confirms that joinder at the investigation stage has a legal basis. The text of Article 43 speaks about the court, and the bridge to the prosecutor is built by Article 63(1) of the Code of Criminal Procedure, which applies the rules on the jurisdiction of the courts, as appropriate, during the criminal investigation as well.

For lawyers, the decision moves the discussion onto the facts. The rule can no longer be attacked, but it can be argued that the connection required by law does not exist between the offences in the file: a continuing offence, a formal concurrence of offences, material acts that together make up a single offence, the same person having committed several offences, several persons having taken part in the same offence, or a connection that calls for joinder in the interests of the proper administration of justice.

What has changed compared with the previous situation

The decision changes not one word of the law. What does change is the map of what can still be challenged in Article 11 of the ordinance. Paragraph (3) fell in 2021 and was formally repealed by Parliament on 9 July 2023, through Article VI of Law no. 201/2023. Paragraph (1) point 5 has now passed review and stands, with the qualification natural to any decision of dismissal: it was examined only against the criticisms raised in this case.

The text itself has never been touched since the ordinance was published, on 22 November 2016. Its neighbours, by contrast, have moved twice in recent years: point 1 was supplemented on 16 May 2024, by Law no. 126/2024, and point 2 was rewritten on 19 December 2025, by Article VIII of Law no. 224/2025. Since point 5 refers to points 1 to 4, any addition there widens the zone from which it draws in connected offences, without a word of its own wording changing.

Between the referral and the answer, 1,616 days passed, that is four years and almost five months, and from delivery to publication another 154 days. Throughout that interval the question stayed open, and the Alba Iulia case waited.

Advantages and disadvantages

What it improves

  • The cases in which a file may be joined are written in one place, in Article 43 of the Code of Criminal Procedure, and can be checked by anyone before he learns what the prosecutor has decided.
  • The Court explains for the first time, in a decision about DIICOT, by what route the rule on joinder travels from the court to the prosecutor: through Article 63(1) of the Code of Criminal Procedure.
  • The investigation of a network is no longer split between several prosecutor’s offices with different jurisdictions, which reduces the risk of the same facts receiving contradictory solutions in parallel cases.
  • The decision shows clearly where the real discussion belongs: before the preliminary chamber judge, on whether the facts actually fall within Article 43, not on the constitutionality of the rule.
  • The solution was reached unanimously and without separate opinions, so it leaves no room for speculation about a narrow majority.
  • The Court did not merely dismiss, but explained point by point why the two decisions relied on by the author do not fit his situation.

What remains a problem

  • The defendant does not learn from the law by what mechanism a rule written for courts comes to concern him at the investigation stage. The link is made through another article, in another code, which point 5 never mentions.
  • A joinder made by the prosecutor takes no separate, reasoned act that the party could challenge on its own. The objection can be raised only in the preliminary chamber, after the investigation has closed.
  • Article 43(2) leaves joinder to the assessment of the judicial body in three of the six cases, so the foreseeability on which the decision rests is not the same in every situation.
  • The text of point 5 has never been re-examined, even though the zone from which it draws in connected offences has widened through the 2024 and 2025 amendments to points 1 and 2.
  • The case sat with the Court for 1,616 days, and publication added another 154. For a procedural question raised in a pending criminal trial, that interval changes what the answer is worth.
  • The referring court did not state its own opinion on the plea, although Article 29(4) of Law no. 47/1992 requires it, and neither the presidents of the two Chambers, nor the Government, nor the Ombudsman sent in any observations. The Court decided without a single institutional position on the file.

Practical advice

  1. If you are being investigated by DIICOT for an offence that does not appear on the directorate’s list, ask to be shown which offence on the list yours is said to be connected with. Without it, point 5 cannot apply.
  2. Check which of the cases in Article 43 of the Code of Criminal Procedure the connection has been placed under. Three of them make joinder compulsory, the other three merely allow it, and where joinder is optional the arguments against carry weight.
  3. Raise the jurisdiction point in the preliminary chamber, not later. Article 346(3)(a) of the Code of Criminal Procedure allows the case to be sent back to the prosecutor’s office where the indictment comes from a prosecutor without material jurisdiction.
  4. Do not build your application on the unconstitutionality of point 5. After Decision no. 332/2026, that route is closed for criticisms based on Articles 16, 21(3) and 24 of the Constitution.
  5. When you rely on an earlier decision of the Court, show which elements of fact and of law are repeated in your case. Here, both decisions relied on were set aside precisely because those elements were missing.
  6. If you are a judge referring a plea to the Constitutional Court, state the court’s opinion in the order as well. Article 29(4) of Law no. 47/1992 requires it, and its absence leaves the file without any position other than the prosecutor’s.
  7. When you read a decision of the Court more than a few years old, check the current wording of the texts it refers to. Article 11 of the ordinance has been amended four times since 2016, and the numbering and content of the points have not stayed the same.

Frequently asked questions

What did the Constitutional Court decide, in short?
It dismissed the plea as unfounded and found that Article 11(1) point 5 of Government Emergency Ordinance no. 78/2016 is constitutional as against the criticisms raised. The decision is final and generally binding from publication, on 17 September 2026.
What does the text under challenge actually say?
That DIICOT has jurisdiction over the offences connected, under Article 43 of the Code of Criminal Procedure, with those referred to in points 1 to 4 of the same paragraph. Points 1 to 4 are the list proper of offences given to the directorate.
What does it mean that two offences are connected?
Article 43 of the Code of Criminal Procedure describes six situations: the continuing offence, the formal concurrence of offences, material acts that together make up a single offence, several offences committed by the same person, one offence in which several persons took part, and a connection that calls for joinder in the interests of the proper administration of justice. The first three make joinder compulsory, the last three leave it to assessment.
How does a rule written for the courts apply at the investigation stage?
Through Article 63(1) of the Code of Criminal Procedure, which provides that the rules on the jurisdiction of the courts, among them Article 43, apply as appropriate during the criminal investigation as well.
Why did Decision no. 380 of 2021 not apply here?
Because that one concerned paragraph (3) of Article 11, which left the DIICOT prosecutor the choice of whether or not to keep a case severed from the file, even though it was not his to resolve. There the defendant could anticipate nothing. With point 5 it is the other way round: the conditions for joinder are written in the law and are known in advance.
What about Decision no. 302 of 2017, also relied on by the author?
That one concerned the absence in the Code of Criminal Procedure of a sanction for a breach of the material jurisdiction of the investigating body. The answer was that those grounds have nothing to do with the possibility of joining cases where the law expressly provides for it and there are objective reasons justifying it.
Can I still ask for the offence to be taken out of the DIICOT file?
Yes, but on a different argument. You can no longer argue that the rule itself is unconstitutional, only that in your case the connection required by Article 43 does not exist. The application is made to the preliminary chamber judge.
Can the decision be challenged?
No. Decisions of the Constitutional Court are final and generally binding. The text can, however, be challenged again, on criticisms other than those examined now, because the dismissal was made only against the grounds raised in this case.

Errors and inconsistencies in the published text

  • Paragraph 21 attributes to Article 43 of the Code of Criminal Procedure a text it does not contain. The decision writes there that „Article 43 of the Code of Criminal Procedure expressly provides that these provisions also apply where several cases with the same subject matter are before the same judicial body”. Article 43(3) says „before the same court”, and the same decision quotes it correctly eight paragraphs earlier, at paragraph 13. The difference is not one of style: the phrase „judicial body” covers the prosecutor as well, „the court” does not, and that was precisely the point in dispute. Joinder reaches the prosecutor through Article 63(1) of the Code of Criminal Procedure, relied on by the Court at paragraph 14, not through Article 43 taken on its own. Anyone reading only paragraph 21, the part explaining why the decisions relied on by the author do not apply, is left with the idea that Article 43 covers the criminal investigation directly.

Editorial analysis

The decision is solidly built, and its references hold up on checking. Paragraph 16 of Decision no. 719 of 6 December 2016 does contain, word for word, the sentence about the purpose of joinder that is attributed to it. Paragraph 135 of Decision no. 33 of 23 January 2018 does contain the statement about the legislator’s freedom to set up specialised prosecution structures. Decisions no. 302 of 2017 and no. 380 of 2021 are described correctly, with their exact publication references. The text under challenge is reproduced word for word from the ordinance as in force. The only crack is the one in the errata, and it concerns a quotation, not the solution.

What does not show on reading the decision from start to finish is the moment the case set off. Decision no. 380/2021, the one the author relies on, was published on 13 October 2021. From that day the 45 day period in Article 147(1) of the Constitution began to run, the interval in which paragraph (3) of Article 11 was suspended by operation of law and in which the Government or Parliament could bring it into line with the Constitution. The period expired on 27 November 2021. The Alba Iulia Court of Appeal referred the matter to the Constitutional Court on 12 November 2021, fifteen days earlier, that is exactly within the window in which the neighbouring text had already fallen. The application was trying to move a fresh victory from one paragraph to another, and that explains why Decision no. 380/2021 appears from the very start in the author’s reasoning. Parliament did its part: it formally repealed paragraph (3) on 9 July 2023, 634 days after the decision was published, and left point 5 untouched.

The second observation concerns the composition of the panel. Decision no. 380/2021 was taken by a majority, with a separate opinion from two judges, Livia Doina Stanciu and Elena-Simina Tănăsescu. The panel that decided in 2026 that the earlier decision could not be extrapolated was presided over by Elena-Simina Tănăsescu, who had become president of the Court in the meantime. This is no objection, since no judge becomes incompatible because he held a separate opinion in a related case, but it is a fact the reader does not learn from the decision and which explains why the distinction between the two texts is drawn so firmly.

The third observation concerns the neighbourhood of the text that has been confirmed. Point 5 is the only part of Article 11(1) left unchanged since 22 November 2016, that is for almost ten years, while point 1 was supplemented in 2024, point 2 rewritten in 2025 and paragraph (3) repealed in 2023. It has no content of its own: it borrows everything written in points 1 to 4. The result is that a rule never re-examined changes its reach every time someone touches the list above it. That same list also contains point 3, which still refers today to „the money laundering offence laid down by Law no. 656/2002”, a law repealed more than seven years ago by Article 65(a) of Law no. 129/2019, published in Official Gazette no. 589 of 18 July 2019. The jurisdiction the Court has just confirmed therefore rests, in part, on a dead reference.

What should be changed

  • The reference to Law no. 656/2002 in Article 11(1) point 3 should be replaced with a reference to Law no. 129/2019. Today, a prosecutor or a lawyer who wants to know which money laundering offence falls within DIICOT’s jurisdiction has to work out for himself the correspondence between a law repealed in 2019 and the one that took its place. A one line correction closes the discussion and indirectly clarifies the reach of point 5 as well.
  • The text of point 5 should itself say that the rule applies during the criminal investigation as well. Today the route runs through Article 63(1) of the Code of Criminal Procedure, which the text never mentions, and the clarification came only through a Constitutional Court decision, after four and a half years of waiting. Half a sentence in the ordinance would have made the whole case unnecessary.
  • A joinder ordered by the prosecutor should be made by a reasoned order, open to separate challenge. At present, anyone contesting that his offence belongs in the DIICOT file has to wait for the end of the criminal investigation and the preliminary chamber. A separate act, verifiable in real time, would cut by months or years the interval in which someone is investigated by a structure he believes has no jurisdiction.
  • The interval between delivery and publication should be capped. The 154 days in this case have no visible explanation, and throughout that time the decision produced no effect, even though the solution had been reached. A maximum period, of say 30 days, would make the moment from which the answer counts foreseeable.
  • The absence of the court’s opinion from the referring order should have a consequence. Article 29(4) of Law no. 47/1992 requires it, the Court notes here that it is missing and moves on. If the obligation stays without consequences, the Court decides cases of this kind with nothing before it but the prosecutor’s submissions, which is what happened here.

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 no. 789 of 17 September 2026 16 pages PDF, 106 KB the act starts on page 2

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