In brief
- The Constitutional Court refused to establish which acts fall outside the offence of unauthorised transfer of computer data, punishable by one to 5 years of imprisonment.
- The plea was dismissed as inadmissible: the author was not challenging the law, but the way it is interpreted and applied in his own criminal proceedings.
- Drawing the line remains a matter for the courts, which decide, case by case, whether access was authorised or not.
Published: Official Gazette of Romania (Monitorul Oficial) no. 567 of 10 July 2026
Pronounced: 16 October 2025
A defendant sent to trial for unauthorised data transfer asked the Constitutional Court to rule that moving his own files from his own computer onto a memory stick is not an offence, and the Court replied that it is not the one to decide that. Decision no. 450 of 16 October 2025, published in Official Gazette of Romania no. 567 of 10 July 2026, dismisses the plea as inadmissible, unanimously. It is one of the two criminal decisions delivered by the Court on the same day and published in the same issue, alongside the one in which it held that the interruption of the limitation period produces effects for all participants in the offence.
The text under discussion has a single sentence. Article 364 of the Criminal Code states: “The unauthorised transfer of data from a computer system or from a computer data storage medium is punishable by imprisonment from one to 5 years.”
The plea was raised before the Vaslui Tribunal, Criminal Division, which referred the matter to the Court by interlocutory order of 22 April 2021. The author argued that the phrase “unauthorised transfer” is general and ambiguous: unauthorised means not being empowered by someone, but he needs no one’s authorisation to access his own computer and copy photos, music or documents onto a memory stick. He also submitted that the notion of data is polysemantic and may cover personal data as well, such as the copy of an identity document.
What it changes in practice
The first effect is that the text remains untouched, in its current form, and the author’s trial continues before the trial court.
The second effect concerns the boundary between the two jurisdictions. The Court found, in paragraph 14, that the author does not put forward genuine criticisms of unconstitutionality, but is dissatisfied with the way the provisions are interpreted and applied in the criminal proceedings concerning him. Yet interpreting and applying the law, that is, identifying the applicable rule, analysing its content and adapting it to the established facts, falls within the competence of the courts.
The third effect is a reminder of the limits of constitutional review. The Court reiterated, citing Decision no. 504 of 7 October 2014, paragraph 14, that it reviews laws, Government ordinances, international treaties and the regulations of Parliament against the Constitution, while the application and interpretation of the law remain the exclusive province of the court hearing the merits, of the courts of judicial review and, for consistent case law, of the High Court of Cassation and Justice.
The fourth effect is what did not happen. The author had invoked Article 26 of the Constitution, on intimate, family and private life, read together with Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 7 of the Charter of Fundamental Rights of the European Union. Since the plea was dismissed as inadmissible, it was not examined on the merits, so none of these provisions received an answer.
What has changed compared with the previous situation
In law, nothing. The decision does not amend Article 364 of the Criminal Code, does not narrow its scope and does not add conditions.
What has been clarified is who answers the question in the case file. The Vaslui Tribunal had already stated, in its point of view, that the extent to which a person’s access to a computer system owned by another is authorised or unauthorised is a matter of fact, subject to assessment by the judicial bodies on the basis of the evidence. The Court implicitly confirms this route, refusing to draw itself the limits of the material element of the offence.
It has also become clearer what the author was actually asking for. In paragraph 13, the Court notes that it was being asked for a decision upholding the plea, finding that certain acts do not fall within the material element of the offence. Such a request would have meant, in the words of the referring court, turning the Court into a legislative body.
The procedural framework invoked by the representative of the Public Ministry, in her subsidiary argument, also remains unchanged: Article 138 of the Code of Criminal Procedure defines the notions the author considered unclear, and Article 168 governs the computer search. During a home search, without a computer search warrant for that system, any form of access to it is prohibited.
Advantages and disadvantages
What it improves
- It keeps the boundary clear: the Constitutional Court reviews the text of the law, the trial court establishes whether the specific act falls under it or not.
- It prevents constitutional review from being turned into a roundabout way of obtaining an acquittal.
- It restates that the lack of clarity invoked by a defendant must concern the rule, not his own factual situation.
- It leaves intact the possibility of a future criticism, correctly framed, of the same text.
What remains a problem
- The substantive question remains open: Article 364 of the Criminal Code, as reproduced in the decision, does not say whose the computer system from which the data is transferred must be.
- The three grounds invoked, Article 26 of the Constitution, Article 8 of the Convention and Article 7 of the Charter, receive no answer at all.
- The most concrete legal content in the decision, the part on the computer search, appears only in the summary of the prosecutor’s submissions, not in the Court’s reasoning.
- Between the referral to the Court and the publication of the decision, 1,905 days passed, for an answer that does not touch the merits.
Practical advice
- If you want to challenge a criminal law provision, show what in the text is unclear to anyone, not what you are being accused of in your case. The difference between the two decides admissibility.
- The argument that your act does not fall within the content of the offence is made before the trial court, with evidence, not before the Constitutional Court.
- If the case file contains data taken from a computer system, check whether there was a computer search warrant. Without one, accessing the system during a home search is prohibited.
- For the meaning of the technical terms, turn to Article 138 of the Code of Criminal Procedure, where they are defined, and to Article 168, which governs the computer search procedure.
- Bear in mind that a dismissal as inadmissible does not validate the legal text. It only says that the question was put to the wrong institution.
Frequently asked questions
What does Article 364 of the Criminal Code punish?
Is copying your own files from your own computer an offence?
What does dismissed as inadmissible mean?
Does the text remain in force?
Who establishes whether the access was authorised?
Can a plea be raised again on the same text?
Was the decision taken unanimously?
Editorial analysis
The solution is correct and predictable. The author of the plea was not saying that the text is unconstitutional, but that he, in his situation, should not fall under it. The Constitutional Court cannot answer such a question without becoming a trial court, and its refusal preserves a boundary which, once erased, would turn constitutional review into a third avenue of appeal.
The trouble is that the question stays on the table, and the text feeds it. Article 364 of the Criminal Code, as reproduced in paragraph 11, punishes the unauthorised transfer of data “from a computer system or from a computer data storage medium”, without saying whose the system is. The scenario raised by the author, that of a person copying files from his own computer, is therefore not excluded by the text, but by its interpretation. The difference matters, because interpretation varies from one court to another until the High Court unifies it.
The second observation concerns a detail visible only if you read the reasoning with a pencil in hand. In paragraph 15, the Court explains what interpreting and applying the law means and ends as follows: it is for the courts “to establish whether the interpretation and application by the tax authority of the criticised legal provisions were carried out correctly”. There is no tax authority in this case file. This is a criminal investigation for the unauthorised transfer of computer data. The sentence clearly comes from an earlier decision in tax matters and was taken over without being adapted to the case. It does not change the outcome, but it shows how reasoning travels from one file to another.
The third observation concerns where the most useful information in this act is to be found. It is not in the Court’s reasoning, but in the summary of the submissions of the representative of the Public Ministry, in paragraph 3: the notions invoked as unclear are defined in Article 138 of the Code of Criminal Procedure, the computer search procedure is governed by Article 168, and during a home search, without a computer search warrant, any form of access to the system is prohibited. These are exactly the markers someone in the author’s situation needs, and the decision records them without confirming or denying them.
Finally, the chronology. The Vaslui Tribunal referred the matter to the Court by interlocutory order of 22 April 2021, the decision was pronounced on 16 October 2025 and published on 10 July 2026. From referral to publication, 1,905 days passed, and the result is that the question goes back, unchanged, to the court that had asked it.
What should be changed
- Article 364 of the Criminal Code would gain from a clarification regarding the computer system concerned. As long as the text does not say whose the system is, the scenario of one’s own computer remains to be settled by way of interpretation, that is, differently from one court to another.
- Reasoning taken over from earlier decisions should be adapted to the case. The reference to the tax authority in a criminal file produces no legal effects, but it weakens the authority of reasoning that goes on to be cited elsewhere.
- A dismissal on grounds of inadmissibility could be given earlier. The finding that the author criticises the application of the law, not the law itself, does not depend on more than five years passing, and in the meantime the trial court waited for an answer that was never given.
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. 567 of 10 July 2026 16 pages PDF, 111 KB the act starts on page 2
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This article is for informational purposes only and does not constitute legal advice. For specific situations, consult a licensed attorney or tax advisor.