In brief

  • The Constitutional Court dismissed both pleas raised on the Code of Criminal Procedure and published on Friday: one as inadmissible, the other as unfounded. The provisions under challenge stay as they were.
  • The first concerned the revision of a final conviction after the Court had declared unconstitutional a provision on which the judgment rested. The Court said it is not for it to decide how far the revision court goes, but for the judge hearing the case.
  • The second concerned reading out in court the statement of a witness who can no longer be heard, where that witness is also the person who lodged the complaint. The Court answered that the law does not make such a person a separate category of witness.
Act: CCR Decisions no. 117/2026 and no. 139/2026
Published: Official Gazette of Romania (Monitorul Oficial) no. 722 and no. 724 of 28 August 2026
Delivered: 12 February 2026 and 17 February 2026

Two decisions of the Constitutional Court published on the same day touch two very different moments of a criminal trial, but come to the same result: the text of the law stays exactly as it was. Decision no. 117 of 12 February 2026 dismisses as inadmissible a plea about the revision of a conviction, and Decision no. 139 of 17 February 2026 dismisses as unfounded a plea about the weight of the statement of a witness who lodged the complaint. The common ground is the one the Court repeated in Decision no. 210/2026 as well: interpreting and applying the law is the business of the court hearing the case, not of the constitutional court.

„Inadmissible” and „unfounded” do not mean the same thing, and the difference matters. A plea dismissed as inadmissible has not been judged on the merits: the Court found it had nothing to examine, because it was being asked for something other than a review of constitutionality. A plea dismissed as unfounded has been judged, and the provision passed the test.

Both decisions are final and generally binding and take effect from publication in the Official Gazette of Romania, that is, from Friday, 28 August 2026.

On 31 August 2026 the Court went further on the same subject and blocked, before promulgation, the law that removed summoning from the preliminary chamber. Still on the nullity of criminal investigation acts, the High Court rejected as inadmissible the referral on searches carried out by mixed DNA and DGA teams.

What it changes in practice

The first effect is that Article 453(4), final sentence, and Article 459(3)(c) of the Code of Criminal Procedure remain in force, in the form they had when the Court was seised. The author of the plea, convicted by a criminal judgment, had sought revision under Article 453(1)(f), that is, for the situation in which the judgment rested on a provision later declared unconstitutional. Her application had been dismissed as inadmissible, and she went on to challenge the very condition in the law under which that ground amounts to a reason for revision only if it led to an unlawful or ill-founded judgment.

The second effect is that the practical question stays open, but in the hands of the judge. The author wanted the constitutional court to say whether, after a plea of unconstitutionality has been upheld, the revision court still has to check whether the unconstitutionality had a decisive influence on the lawfulness of the judgment. The Court answered that entering into that discussion would be an interference with the work of adjudication, contrary to Article 126 of the Constitution, under which justice is delivered through the courts.

The third effect is technical, but with practical consequences. Article 453(4) had been amended in 2023, by Law no. 201/2023, after the Court was seised. The Court nonetheless examined the old wording, the one in force when it was seised, relying on Decision no. 766 of 15 June 2011: provisions no longer in force are also reviewed, for as long as their legal effects continue to be produced. For cases begun under the old wording, the decision remains relevant.

The fourth effect comes from the second decision. Article 381(7) of the Code of Criminal Procedure remains constitutional. The text provides that, if hearing a witness is no longer possible, and during the criminal investigation he gave statements or was heard by the judge for rights and freedoms, the court orders his statement to be read out and takes it into account in deciding the case.

The fifth effect is the answer given on the merits to the question about the witness who lodged the complaint. The Court found that the notion is not defined in criminal law but is a construct of legal writing and of judicial practice, drawn from the provision on complaints and the one on witnesses. The legislature did not create a distinct category of witness according to how the judicial bodies came to be notified, and the person who lodged the complaint falls within the general notion of witness.

The sixth effect concerns evidential weight. The Court recalled that, under Article 103(1) of the Code of Criminal Procedure, evidence has no weight fixed in advance by law and is subject to the free assessment of the judicial bodies, after all the evidence in the case has been evaluated. The fact that the statement read out belongs to the person who lodged the complaint therefore gives it no predetermined weight and does not, in itself, make the trial unfair.

The seventh effect is the limit the Court restates, taken from European case-law. Reading out the statement of an absent witness is compatible with the right to a fair trial only if that statement is not the sole or decisive basis of the conviction, if there was a good reason for the witness not appearing and if there were sufficient counterbalancing measures. The Court referred to the judgments of the European Court of Human Rights in Saïdi v. France, Bracci v. Italy, Colac v. Romania and Matytsina v. Russia.

What has changed compared with the previous situation

In law, nothing. No provision falls, and no provision changes its meaning through an interpretative decision. Pending cases carry on under the same rules, and those suspended pending the decisions resume.

What has changed is the confidence with which the two points can be raised. On Article 381(7), the Court confirms the same solution for the second time: it had already ruled by Decision no. 289 of 29 May 2025, cited by the prosecutor at the hearing, and by Decision no. 322 of 9 June 2020, published in Official Gazette of Romania no. 1069 of 12 November 2020, whose grounds it adopts in full. A fresh plea on the same provision and with the same criticism stands little chance.

On Article 453(4), the position is different: the Court did not say the provision is constitutional, but that it cannot answer the question put to it. What stays open, therefore, is a plea framed as a genuine constitutional criticism rather than as a request for interpretation, and also the possibility that courts will reach differing solutions until the High Court of Cassation and Justice is seised, by way of an appeal in the interest of the law or of a referral for a point of law.

One thing about the calendar changes too: both decisions were delivered in February 2026 and published only on 28 August 2026, that is, around six and a half months later. Effects run from publication, not from delivery.

Advantages and disadvantages

What it improves

  • The provisions of the Code of Criminal Procedure stay as they are, so there is no wave of retrials and no period of uncertainty for pending cases.
  • The Court plainly repeats where its jurisdiction stops: interpreting and applying the law belongs to the court hearing the dispute, and review is done through the appeal routes.
  • On the witness who lodged the complaint, the decision gives an answer on the merits, with arguments drawn from the case-law of the European Court of Human Rights, not merely a procedural dismissal.
  • It is reconfirmed that the statement of an absent witness cannot be the sole or decisive basis of a conviction, which is a useful guarantee for the defence.
  • The Court recalls that counsel has the right to attend acts of criminal investigation and to consult the file, so a statement can be challenged in good time.
  • Both decisions were taken unanimously, with no separate opinions, which reduces the risk of a swift change of case-law.

What remains a problem

  • The real question in the first case, how much the revision court still checks after a decision on unconstitutionality, remains without a uniform answer.
  • The wording „unlawful or ill-founded judgments” in Article 453(4) covers four very different grounds of revision, without saying which attribute applies to which.
  • The High Court of Cassation and Justice, the court that seised the Constitutional Court in the first case, did not state its opinion on the plea, although the law requires it to.
  • Neither the presidents of the two Chambers, nor the Government, nor the Ombudsman sent points of view in either of the two cases.
  • The two decisions were published more than six months after they were delivered, and throughout that time the courts adjudicated without knowing the outcome.
  • In the second case, the referral came from the Dâmbovița County Court in August 2021, so the answer arrived four and a half years later.

Practical advice

  1. If you raise a plea of unconstitutionality, frame a criticism of the provision itself, not a request to clarify its meaning. The first decision was dismissed precisely because the Court was being asked to fix the scope of a phrase.
  2. If you seek revision under Article 453(1)(f), show concretely how the consequences of the constitutional breach continued to be produced and why they cannot be remedied other than by revision. The condition is in the text of the law.
  3. Check which version of Article 453(4) applies to your case. The provision was amended by Law no. 201/2023, and the Court examined the earlier wording, because its effects continued.
  4. If the file contains the statement of a witness who lodged the complaint and was heard only during the criminal investigation, ask in good time for the evidence to be taken before the court. Challenging it later is harder than asking for a hearing.
  5. Challenge the lawfulness of the taking of evidence before the preliminary chamber judge, under Article 342 of the Code of Criminal Procedure. The Court points expressly to this route, and the judge may exclude one, several or all of the items of evidence.
  6. If a conviction rests decisively on the statement of a witness you were unable to question at any stage, invoke the criteria from the judgments of the European Court of Human Rights cited in the decision. The Court adopted them expressly.

Frequently asked questions

Does anything change in the Code of Criminal Procedure?
No. Both pleas were dismissed, and Article 453(4), Article 459(3)(c) and Article 381(7) stay in their current form. No deadline arises for Parliament to bring anything into line.
What is the difference between dismissal as inadmissible and dismissal as unfounded?
On inadmissibility, the Court does not examine the merits: it finds it is being asked for something other than a review of constitutionality, usually an interpretation of the law. On dismissal as unfounded, the Court examines the provision and finds it in conformity with the Constitution. The second solution makes it harder to raise the same criticism again.
What happens to cases suspended pending these decisions?
They resume, with the provisions of the law unchanged. The decisions are final and generally binding from publication in the Official Gazette of Romania, that is, from 28 August 2026.
Can I seek revision automatically if a plea of unconstitutionality was upheld in my case?
Not automatically. Article 453(1)(f) requires that the judgment rested on the provision declared unconstitutional, that the plea was raised in that case, and that the consequences of the breach continue and cannot be removed other than by revision. How strictly those conditions are checked is left to the assessment of the revision court.
What is a witness who lodged the complaint?
It is the person who notified the criminal investigation bodies of an offence and who is subsequently heard as a witness. The Court found that the expression is not defined by law but comes from legal writing and judicial practice, and that the person who lodged the complaint falls within the general notion of witness.
Can a conviction be based on the statement of a witness not heard in court?
Not exclusively. The Court restates the European criteria: there has to be a good reason for the witness not appearing, the statement cannot be the sole or decisive basis of the conviction, and if it nonetheless is, sufficient counterbalancing measures are needed. A conviction is handed down only where the accusation has been proved beyond any reasonable doubt.

Editorial analysis

Taken together, the two decisions say something about what can be obtained from the Constitutional Court in a criminal trial. The first application was, in substance, a request that the Court write a rule the legislature did not write: how much weight the revision court still gives once a provision has fallen. The Court refused, rightly, but the refusal leaves behind precisely the gap complained of. The second application was a genuine criticism, it received an answer on the merits, and the answer is argued with European case-law, not merely with domestic formulas.

What does not show when you read the decisions from cover to cover appears when you look at the dates in them. In the first case, the referral order of the High Court is dated 8 June 2021, and the decision was delivered on 12 February 2026, that is, four years and eight months later. In the second, the order of the Dâmbovița County Court is dated 30 August 2021, and the decision came on 17 February 2026, four years and six months later. Publication added another six and a half months in both cases. The case numbers, 2.232D/2021 for the first and 2.782D/2021 for the second, show that the two reached the Court in the same year, a few months apart, and were settled five days apart, which says that the delay comes not from the complexity of either case but from the age of the backlog.

The second observation concerns a silence that repeats itself. In both cases the presidents of the two Chambers of Parliament, the Government and the Ombudsman communicated no point of view, although the law gives them that possibility precisely so that the constitutional court may also hear the position of the authority that wrote the provision. In the first case, the High Court of Cassation and Justice did not state its own opinion on the plea either, contrary to Article 29(4) of Law no. 47/1992, and the Court records that expressly. The result is that, in a case about the effects of decisions of the Constitutional Court, the only positions expressed were those of counsel and of the prosecutor.

The third comes from placing the two solutions side by side. On Article 381(7), the Court explains over two pages why a statement read out has no predetermined weight and why the judge weighs it together with the rest of the evidence. On Article 453(4), the Court refuses to say how the revision judge weighs the effect of a decision on unconstitutionality. The two attitudes do not contradict each other, because in the first case the criterion exists in the law, at Article 103, and in the second it does not. That is exactly the problem the decision leaves behind: the phrase „unlawful or ill-founded judgments” covers at one and the same time four very different grounds of revision, from false testimony through to unconstitutionality, without saying which attribute applies to which.

What should be changed

  • An explicit criterion for revision based on unconstitutionality. Article 453(4) treats alike four grounds that bear no resemblance to one another; a separate paragraph for point (f) would say what the revision court actually checks and would close the discussion the Court refused, rightly, to enter.
  • A deadline for publishing the decisions of the Constitutional Court. Six and a half months between delivery and publication means six and a half months in which the courts adjudicate without knowing the solution, although it has already been reached.
  • A sanction for the absence of the opinion of the referring court. Law no. 47/1992 requires the court that seises the Court to state its opinion; when it does not, the case comes to judgment without the position of the only court that knows the dispute.
  • A statutory definition of the person who lodges a criminal complaint. The Court finds for itself that the notion is not defined by the legislature and that the „witness who lodged the complaint” is a construct of legal writing; a definition in the code would close off a whole series of pleas on the same subject.
  • Publication of a list of the cases pending before the Court, with their age. Two cases from 2021 settled in 2026 and published in August point to a backlog no one outside can estimate.

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. 722 and no. 724 of 28 August 2026 16 pages PDF, 112 KB the act starts on page 3

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