In brief

  • The Constitutional Court has dismissed as inadmissible a challenge to the rules in the Code of Criminal Procedure on the divergence panel and on restoring the case to the docket. The provisions stand unchanged.
  • The reason is a lack of reasoning: the author argued that the provisions are „convoluted” and that the legislature should not have adopted them, without showing what it is about them that breaches the Constitution.
  • The Government’s observations, reproduced in the decision, explain step by step how the divergence panel works: the third judge is drawn from the duty roster and hears the case afresh, as though the divergence had never arisen.
Act: CCR Decision no. 680/2025
Published: Official Gazette of Romania (Monitorul Oficial) no. 560 of 8 July 2026
Delivered: 4 December 2025

When two judges cannot agree, the case does not go up to a higher court, it is heard again below, with a third judge added. The Constitutional Court left the rule untouched in Decision no. 680 of 4 December 2025, published in Official Gazette of Romania no. 560 of 8 July 2026, dismissing as inadmissible the challenge brought by a defendant from Craiova. The decision appears on the same day as another one founded on the same defect, in which the Court set out, in a civil dispute, what a plea must contain to be examined on the merits.

Three provisions of the Code of Criminal Procedure were challenged. Article 394(5) says that, where the panel cannot reach a majority or unanimity, the case is heard again before a divergence panel. Article 395(2) provides that, where the case was tried under the simplified procedure and the court finds that evidence other than documents is needed, it restores the case to the docket and orders a judicial investigation. Article 399(1), (4) and (5) requires the court to rule by judgment on the preventive measure, makes that ruling enforceable and requires notice to the place of detention where the defendant is released.

The author of the plea, a defendant in a case on appeal before the Craiova Court of Appeal, argued that the provisions lack clarity because they set no objective criteria for constituting divergence panels, that the procedure for restoring a case to the docket should not be regulated at all, and that it would be constitutional for the prosecution and the defence to be examined, in cases that reach divergence, by a panel of a higher court.

What it changes in practice

The first effect is that the provisions remain in force, in the form the Court reproduces in the decision. A dismissal as inadmissible does not establish constitutionality, only that the referral could not be examined on the merits.

The second effect is informative and comes from a part of the decision that few people read: the Government’s observations. That is where the whole mechanism is explained. The judgment must be the outcome of agreement among the members of the panel on the answers to the questions submitted for deliberation; if unanimity cannot be reached, the judgment is taken by majority; if not even a majority can be reached, the case is heard again before a divergence panel, with a further judge taking part. That third judge is not bound to choose between the initial positions but hears the case afresh, as though the divergence had never arisen, precisely so that the principle of immediacy is respected.

The third effect concerns why the case does not go up. The Government pointed out that having the case reheard in divergence by a panel of the higher court would breach judicial independence, enshrined in Article 124(3) of the Constitution, because a higher court would be intervening outside an appeal, at a procedural stage that is not yet exhausted. Divergence is a procedural incident, not a means of appeal.

What has changed compared with the previous situation

In the wording of the Code of Criminal Procedure, nothing. Article 394(5), Article 395(2) and Article 399(1), (4) and (5) stand in the form reproduced in the decision.

What has changed in the meantime is the law on which the Government’s explanation rests. The observations, drawn up in 2021, refer to Article 17 of Law No 304/2004 on judicial organisation for the rule under which the divergence panel is constituted by adding the judge from the duty roster. Law No 304/2004 was repealed by Law No 304/2022 on judicial organisation, published in Official Gazette of Romania no. 1104 of 16 November 2022, which entered into force 30 days after publication. The rule itself survived: it is now in Article 19(1) of Law No 304/2022, with the same content, namely the inclusion in the panel of the judge from the duty roster. The decision published in 2026 reproduces the reference to the old law without flagging the change.

A second thing changed during the proceedings before the Court itself, namely the object of the plea. The referring court referred only Article 395(2) and Article 399(1), (4) and (5). The Court found that, on the author’s written submissions and the grounds of the referral order, the real object also included Article 394(5), and examined it accordingly, following its own rule: where a court refers some provisions to the Court without ruling on others criticised in the same plea, the Court examines the plea as the author raised it.

Advantages and disadvantages

What it improves

  • It gathers in one place the explanation of how divergence works, from deliberation through unanimity and majority to the enlarged panel, in a form the wording of the law does not offer.
  • It says plainly why the third judge does not choose between the two existing positions but hears the case afresh: otherwise the principle of immediacy would be broken.
  • It explains why the case does not go up to the higher court, on a constitutional basis, Article 124(3), and not merely with arguments of procedural technique.
  • The Court examined the plea as the author had raised it, adding the provision the referring court had left out, so no complaint went unexamined because of a defect in the referral order.

What remains a problem

  • The complaint about the absence of objective criteria for constituting divergence panels was not examined on the merits, even though it is the only one in the file that touched on a real question.
  • The explanation of the mechanism remains a set of Government observations reproduced in the decision, not a ruling of the Court. It does not carry the binding force of a ground of the decision.
  • The reference to Article 17 of Law No 304/2004 is reproduced without any mention that the law had been replaced more than three years before publication. Readers must work out the correspondence for themselves.
  • Neither the presidents of the two chambers of Parliament nor the Ombudsman sent observations.

Practical advice

  1. If you want to challenge the constitutionality of a provision, show specifically what the conflict is with the article of the Constitution you rely on. Statements about the quality of the drafting, however justified they may seem, are not a complaint of unconstitutionality.
  2. Dissatisfaction that the legislature should have chosen a different solution cannot be resolved at the Constitutional Court. The Court checks whether a provision complies with the Constitution, not whether a better version exists.
  3. If your case goes to a divergence panel, ask to check in the record who the added judge is and whether he comes from the duty roster. The rule is today in Article 19(1) of Law No 304/2022.
  4. The third judge is not obliged to pick one of the two positions in divergence. He may reach a third. Prepare your defence for a full rehearing, not for a simple tie-break.
  5. When you raise a plea, check in the referral order whether the court listed every provision you criticised. The Court can recover them from the written submissions, but not in every case.

Frequently asked questions

What is the divergence panel?
The enlarged panel that hears a case again when the original judges cannot reach unanimity or a majority. Under Article 394(5) of the Code of Criminal Procedure, in that situation the case is heard again before a divergence panel.
Who is the judge who is added?
The judge from the duty roster. At the date of the Government’s observations the rule was in Article 17 of Law No 304/2004; it is currently in Article 19(1) of Law No 304/2022 on judicial organisation.
Does the third judge choose between the two positions?
No. On the explanation given in the decision, he is not bound to choose one of the initial positions but hears the case afresh, as though the divergence had never arisen, so that the principle of immediacy is respected.
Why does the higher court not hear the case?
Because it would be intervening at a procedural stage that is not yet exhausted, outside an appeal, which would breach the judicial independence enshrined in Article 124(3) of the Constitution. Divergence is a procedural incident, not a means of appeal.
What does restoring the case to the docket mean?
If during deliberation the court considers that a circumstance needs clarifying and that the judicial investigation or the argument has to be resumed, it restores the case to the docket. Article 395(2) provides the same where the case was tried under the simplified procedure but evidence other than documents proves necessary.
Were the provisions declared constitutional?
No. The plea was dismissed as inadmissible, because it did not meet the requirement of reasoning. The Court did not rule on the merits.
Did the Court examine a provision the referring court had not sent?
Yes, Article 394(5). The Court applies the rule that, where a court refers some provisions without ruling on others criticised in the same plea, the plea is examined as the author raised it.
Can the same plea be raised again?
Yes, because the merits were not settled. A referral showing specifically the conflict between the provisions and the articles of the Constitution could be examined on the merits.

Editorial analysis

This is the second decision of 8 July 2026 in which the Court rejects a plea because it was not reasoned, and the two together say something about the filter at the entrance. In both, the authority is the same, Decision no. 1.313/2011 and Decision no. 785/2011, criteria fifteen years old. In both, the defect could have been established from the first document filed. In both, the finding came more than four years later.

The figures for this case: the Craiova Court of Appeal referred the matter by its order of 31 March 2021, and the decision was delivered on 4 December 2025, 1,709 days later, almost four years and eight months. Another 216 days passed between delivery and publication, a little over seven months. In the meantime the criminal case in which the plea was raised, pending on appeal, took its course, because a referral to the Court does not stay the proceedings.

What is lost through inadmissibility deserves naming, because not everything the author wrote was empty. The complaint that the law sets no objective criteria for constituting divergence panels touches on a real question: the judge who is added comes from the duty roster, that is, from an administrative document of the court, not from a rule of random allocation written into the law. Framed as a conflict with the requirement of foreseeability in Article 1(5) of the Constitution, it could have become an examinable complaint. Framed as „a lack of legal reasoning (unprofessionalism)”, it could not.

The fourth point, visible only if you open the law relied on, is that the clearest explanation in the decision rests on a repealed provision. The Government cites Article 17 of Law No 304/2004, in its 2021 observations. The law was repealed by Law No 304/2022, in force since 16 December 2022, and the rule moved, unchanged in substance, into Article 19(1) of the new law. The Court had no reason to correct a set of observations it merely reproduces, and the outcome does not turn on it. The practical effect remains, though: an act published in July 2026 sends the reader to an article of a law that has not existed for three and a half years.

The divergence panel is likewise part of the court’s internal organisation, a category that CSM Decision 1223/2026 now touches through the new rules on the random allocation of cases.

What should be changed

  • A note updating the references at the moment of publication. Where the law relied on has been replaced between the drafting of a set of observations and the publication of the decision, a footnote pointing to the corresponding provision in force would cost one line and would spare every reader the same verification.
  • The criterion for designating the divergence judge, written into the law and not only into the duty roster. Article 19(1) of Law No 304/2022 says which category the judge comes from, but not by what rule the choice is made among the judges on duty. A rule of random allocation, as with the allocation of cases, would take precisely the complaint raised here out of the debate.
  • A short deadline for dealing with manifestly unreasoned pleas. Four years and eight months to find that a referral contains no examinable complaint means the filter operates at the exit, not at the entrance. A fast filtering procedure would free up time for the cases with substance.
  • Recording, in the referral order, every provision criticised by the author. Here the Court recovered Article 394(5) from the written submissions. In a case where it had not done so, a complaint would have gone unexamined because of an omission by the court, not by the party.

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. 560 of 8 July 2026 16 pages PDF, 111 KB the act starts on page 2

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