In brief
- An organised criminal group can include companies, not only people, and a company and its own legal representative can be held liable separately for the same act.
- The Constitutional Court dismissed, by unanimous vote, the criticism that this would amount to punishing the same person twice.
- The argument: the criminal liability of the legal person is a distinct legal fiction, with different subjects, different criminal resolves and different penalties.
Published: Official Gazette of Romania (Monitorul Oficial) no. 567 of 10 July 2026
Pronounced: 4 December 2025
The word “persons” in the definition of the organised criminal group also covers companies, not only human beings, and the manager and his company can each be held liable in their own right for the same group. The Constitutional Court settled this by Decision no. 691 of 4 December 2025, published in the Official Gazette of Romania no. 567 of 10 July 2026, dismissing as unfounded the plea raised against Article 367(6) of the Criminal Code. It is the second decision in the same issue of the Official Gazette of Romania in which the Court refuses to move a procedural criticism onto the ground of substantive criminal law, after the one in which it confirmed that the interruption of the limitation period produces effects with regard to all participants.
The provision under discussion contains the definition: “An organised criminal group means the structured group, made up of three or more persons, set up for a certain period of time and in order to act in a coordinated manner for the purpose of committing one or more offences.” The basic form of the offence, under Article 367(1) of the Criminal Code, is punishable by one to five years of imprisonment and a ban on exercising certain rights.
The plea was raised before the Brașov Court of Appeal, Criminal Division, which referred the matter to the Constitutional Court by interlocutory order of 17 March 2021. The author argued that, if the notion of persons also covers legal persons, then the shareholder or associate of a company and the company itself end up being charged for the same act, which means a double incrimination that breaches his individual liberty.
What it changes in practice
The first effect is the confirmation that a company can be a member of an organised criminal group. In paragraph 30 the Court shows that the definition refers generically to persons, without distinguishing between natural persons and legal persons, and that it does not require any pre-existing relationships between the members of the group either.
The second effect is that the liability of the two does not overlap. The Court holds that each participant initiates, sets up, joins or supports the group through an act of its own will, with a distinct criminal resolve, driven by distinct individual interests. The purpose pursued by the natural person is, in the Court’s reasoning, different from that of the legal person, even though the company can act only through a human being.
The third effect concerns the penalties. The natural person faces the penalties in Articles 53 to 55 of the Criminal Code, including imprisonment. The legal person faces the penalties in Article 136: the fine as a main penalty and, as complementary penalties, the dissolution of the legal person, the suspension of its activity or of one of its activities for three months to three years, the closure of working points for the same interval, a ban on taking part in public procurement for one to three years, placement under judicial supervision and the display or publication of the conviction.
The fourth effect is methodological. The Court established that the ne bis in idem principle, laid down in Article 4 of Protocol no. 7 to the European Convention on Human Rights and in Article 6 of the Code of Criminal Procedure, is procedural in nature, so it cannot be set against a rule of substantive criminal law such as the definition in Article 367(6).
What has changed compared with the previous situation
The text remains untouched. The decision does not amend it and does not add conditions to it, but confirms the interpretation the courts were already giving it.
What has been made clear is how the company’s liability sits alongside that of the person behind it. The Court takes up the case law from Decision no. 156 of 27 March 2018 and Decision no. 302 of 9 June 2020 and describes the criminal liability of the legal person as a legal fiction, introduced into Romanian law by Law no. 278/2006. The subjective side of the company’s offence is built out of the subjectivity of the person acting on its behalf, and Article 135(3) of the Criminal Code states expressly that the liability of the legal person does not exclude that of the natural person who contributed to the same act.
It has also been clarified who cannot be held liable. Legal persons governed by public law remain outside criminal liability, for two reasons the Court takes over from Decision no. 302/2020: the state, which holds the right to punish, cannot subject itself to its own repression, and authorities placed under criminal sanction would no longer be able to carry out their duties.
Finally, it has been spelled out what it means for an offence to be committed in the interest of the legal person. The Court shows that the requirement is open both to a subjective reading, through the purpose pursued by the perpetrator, and to an objective one, through the benefit the company has already obtained, and that in both versions the company’s liability can also be triggered by natural persons other than its bodies or representatives.
Advantages and disadvantages
What it improves
- It closes, unanimously, a criticism that kept coming up in economic cases: that the company and the manager would be punished twice for the same act.
- It explains in plain terms why the two forms of liability are not the same: different subjects, different criminal resolves, penalties from different articles of the Criminal Code.
- It confirms expressly that legal persons governed by public law bear no criminal liability, which removes an area of uncertainty for institutions.
- It places ne bis in idem where it can be invoked to some purpose, in procedure, not against a definition in the special part of the Criminal Code.
What remains a problem
- Combining paragraphs 29 and 31 shows that the threshold of three persons can be reached by counting companies as well, which in practice changes the size of a group, yet the decision does not discuss the consequence.
- The Court says nothing about the situation in which the same natural person represents several companies within the group.
- Of the provisions invoked in paragraph 13, Article 6 of the Charter of Fundamental Rights of the European Union and Article 14 of the International Covenant on Civil and Political Rights receive no express answer.
- 1,941 days passed between the referral to the Court and the publication of the decision.
Practical advice
- If you manage a company under criminal investigation, do not assume that sanctioning the company covers you. The two forms of liability are distinct, and Article 135(3) of the Criminal Code says so expressly.
- Check whether the act is held to have been committed in carrying out the scope of business, in the interest of or on behalf of the company. These are the three situations in which the liability of the legal person can be triggered.
- Do not build your defence on ne bis in idem against the definition in Article 367(6). The Court established that the principle is procedural in nature and does not apply to a rule of substantive criminal law.
- If the company is a party in an organised criminal group case, keep an eye on the complementary penalties in Article 136 of the Criminal Code as well. The ban on taking part in public procurement for one to three years can matter more than the fine.
- Bear in mind that the company’s liability can be triggered not only by its management bodies, but by any natural person acting on its behalf. Internal training and control over mandates therefore become matters of criminal exposure.
- If you work in a public institution, the point made by the decision runs the other way: legal persons governed by public law bear no criminal liability, but the natural persons inside them do.
Frequently asked questions
What is an organised criminal group?
Can a company be part of such a group?
Can the company and its manager both be convicted?
Is that not double punishment?
What penalties does the company face?
Can public institutions bear criminal liability?
Does the decision change the text of the Criminal Code?
Editorial analysis
The decision answers well the question put to it and leaves untouched the question that follows from its own answer. The author of the plea asked whether the company and the person can both be punished. The Court explained, with arguments that hold, that they can, because they are different subjects. But the same reasoning produces a consequence the decision does not touch: if legal persons are counted among the “three or more persons” required by the definition, then an organised criminal group can exist even where, in flesh and blood, there are two people. A manager, the company he represents and a third entity, itself a company, reach the legal threshold. Paragraph 29 gives the figure, paragraph 31 gives the composition, and the conclusion forms on its own, between them.
The second observation concerns an asymmetry in the list of provisions the Court answers. In paragraph 13, the decision lists what the author invoked: Article 1(5), Article 22 and Article 23(1) and (12) of the Constitution, Articles 5 and 6 of the Charter of Fundamental Rights of the European Union and Article 14 of the International Covenant on Civil and Political Rights. In the examination, paragraph 35 covers Article 23, paragraph 36 covers Article 1(5), and paragraph 38 covers Article 22 and Article 5 of the Charter. Article 6 of the Charter and Article 14 of the Covenant appear nowhere after that. Instead, paragraph 37 analyses Article 4 of Protocol no. 7 to the Convention, a provision that does not figure in the list in paragraph 13. The Court therefore answers a criticism it had not listed and leaves without an express answer two provisions it had listed.
The third observation concerns the technique of dismissal. In paragraph 25, the Court says that the solution does not breach the invoked provisions on the right to life, individual liberty and the prohibition of slavery. In paragraph 38, about the same provisions, it says something else: that they are not applicable in the case. The first wording assumes that the provision applies and is complied with, the second that it does not even apply. The difference does not change the solution, but it changes what a court can go on to cite from this decision.
Finally, the calendar. The Brașov Court of Appeal referred the matter to the Constitutional Court by interlocutory order of 17 March 2021. The decision was pronounced on 4 December 2025 and published on 10 July 2026, 218 days after it was pronounced. From the referral to the publication, 1,941 days passed. In a case concerning membership of an organised criminal group, that is, a continuous offence, this interval has consequences of its own.
What should be changed
- The definition in Article 367(6) should say whether the threshold of three persons is counted in entities or in human beings. As it is written now, the answer comes from combining two paragraphs of a decision, not from the text.
- All the invoked provisions should receive an express answer. Article 6 of the Charter and Article 14 of the Covenant were listed in paragraph 13 and no longer appear in the examination, which leaves room for a fresh plea on the same grounds.
- The formula of dismissal should be chosen once for the same provision. A provision is either applicable and complied with, or not applicable; using both versions in the same decision, in paragraphs 25 and 38, weakens the precedential value of the reasoning.
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 6
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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.