In brief

  • Data obtained through interception in one criminal case may be used as evidence in another, and the rule stays as it is. The Constitutional Court rejected as unfounded the plea raised against Article 142(5) and Article 475 of the Code of Criminal Procedure. Decision no. 194 of 5 March 2026 was published on 21 September 2026 and is generally binding from that date.
  • Anyone whose file contains interceptions brought in from another case can challenge them, but in one place only: in the preliminary chamber of his own case. The Court confirms that the preliminary chamber judge reviews the lawfulness of the authorisation and of the carrying out of the criminal investigation acts even where the evidence comes from another case, at the request of the defendant or of his own motion, and that unlawful evidence is excluded. The transfer is allowed only if the new case concerns one of the offences listed in Article 139(2) of the Code of Criminal Procedure.
  • In the preliminary chamber it is not possible to ask for a referral to the High Court for the resolution of a point of law. Such a request may be made only by the panels of the High Court, of the courts of appeal and of the tribunals hearing the case at last instance, and the referral may be made only in the course of the trial. District courts cannot refer at all.
Act: Decision no. 194 of 5 March 2026 of the Constitutional Court on the plea of unconstitutionality of the provisions of Article 142(5) and Article 475 of the Code of Criminal Procedure
Published: Official Gazette of Romania (Monitorul Oficial) no. 797 of 21 September 2026
In force from: the decision is generally binding from the date of publication, 21 September 2026

A defendant in case no. 619/86/2021/a1.3 before the Suceava Tribunal, Criminal Division, at the preliminary chamber stage, challenged two texts of the Code of Criminal Procedure: the one that allows the result of an interception authorised in one case to be used in another, and the one describing the procedure by which the High Court of Cassation and Justice is asked how a rule is to be interpreted. The Constitutional Court rejected both criticisms, unanimously, and held that the texts are constitutional. The decision joins a series in which the constitutional court has left untouched the rules governing the stage between the indictment and the trial, among them the one holding that the investigation stays with DIICOT where the offence is connected with an organised crime case.

The first text challenged, Article 142(5) of the Code of Criminal Procedure, consists of a single sentence: „The data resulting from technical surveillance measures may also be used in another criminal case if the content of those data yields conclusive and useful data or information concerning the preparation or commission of another offence among those provided for in Article 139(2)”. In short, a conversation recorded in a corruption case may become evidence in a drug trafficking case, if it yields indications of the second offence. The reference to Article 139(2) is not decorative: that is where the list of offences for which technical surveillance may be ordered in general is to be found, from offences against national security, drug trafficking, arms and human trafficking, terrorism, money laundering, corruption and tax evasion through to the open-ended category of other offences for which the law provides a prison sentence of 5 years or more.

The author of the plea argued that the text describes no mechanism by which the results are taken over from one case into another and subjected to a review of lawfulness, that the defence has no access to the source file and therefore cannot debate whether the evidence is conclusive, and that two preliminary chamber judges may reach different conclusions on the same interceptions. He invoked Article 1(3), Article 16, Article 26(1), Article 124(3), Article 129 and Article 148 of the Constitution, Article 6 of the European Convention on Human Rights and Article 2 of Protocol no. 7 to the Convention, that is the right to two levels of jurisdiction in criminal matters.

The second text, Article 475 of the Code of Criminal Procedure, describes who may ask the High Court for a ruling in principle on a point of law, and when. The criticism had two branches: that the order deciding on the referral cannot be appealed, and that the referral cannot be made in the preliminary chamber, which is exactly where the author’s own case stood.

What it changes in practice

The first effect is that one avenue is closed. Under Article 147(4) of the Constitution, decisions of the Constitutional Court are generally binding from the date of publication, and this one was published on 21 September 2026. From that date, no judge may leave Article 142(5) or Article 475 unapplied on the ground that they are unconstitutional in relation to the criticisms already examined. Anyone with a pending case in which precisely this argument was raised should expect an identical outcome.

The second effect is that the defence is left with a single instrument, but that one works. The Court repeats the finding from its own case law: the use of the data under Article 142(5) „does not prevent the preliminary chamber judge in the case to which they are transferred from reviewing the lawfulness of the ordering or authorisation of the measure and of the carrying out of the acts by the criminal investigation bodies, both following requests and pleas made by the defendant and of his own motion”, and a finding that the means of evidence was unlawful leads to the exclusion of the evidence from the trial. Translated into practice: the requests and pleas are made in writing, in one’s own case, within the preliminary chamber deadline, and they cover the very act by which the measure was authorised in the case of origin.

The third effect concerns the limit of the transfer. The Court repeats that the data may be used in other cases „only if those cases concern the preparation or commission of one of the offences provided for in Article 139(2)”, and that this limitation is precisely the safeguard which, on the Court’s reading, makes the text compatible with Article 8 of the European Convention on Human Rights. In a case where the new offence is not on that list and does not reach the threshold of 5 years’ imprisonment, the defence argument is no longer that the text is unconstitutional, but that the specific act breaches it. The first route closed on 21 September 2026; the second remains open.

The fourth effect concerns who may ask the High Court. The Constitutional Court confirms that the words „in the course of the trial” in Article 475 exclude both the judge for rights and freedoms and the preliminary chamber judge from those entitled to refer, and that district courts cannot refer at all, just as tribunals, courts of appeal and the High Court cannot when they sit at first instance. What is left are the panels deciding the case at last instance. Moreover, the entitlement belongs to the panel, not to the party: the defendant may only ask the court to refer, he cannot go to the High Court himself.

The fifth effect is the easiest to overlook. The criticism concerning the absence of an appeal against the order on the referral was not rejected on the merits; it was left undecided. The Court observed that the legislative solution challenged is not in Article 475 but in Article 476(1) of the Code of Criminal Procedure, a text that had not been criticised, and that ruling on it would amount to a referral of its own motion, which Article 2(3) of Law no. 47/1992 forbids. Since Article 476(1) has not been declared unconstitutional, the prohibition in Article 29(3) of the same law does not reach it, so it can be challenged in a future case, provided the plea is expressly directed against it.

What has changed compared with the previous situation

In the letter of the law, nothing has changed. Both texts remain exactly as they were, and the decision adds and removes not a word. What has changed is what can be argued: until 21 September 2026 a lawyer could build a defence on the idea that Article 142(5) is unconstitutional because it does not describe the procedure for transferring interceptions. From that date, the same defence starts from a generally binding decision saying the opposite.

The decision opens no new path; it confirms the well-trodden one. On Article 142(5), the Court lists its own earlier rulings, Decision no. 256 of 5 May 2022, Decision no. 237 of 8 April 2021, Decision no. 372 of 28 May 2019 and Decision no. 855 of 14 December 2017, to which is added Decision no. 486 of 27 June 2017, invoked for the reference to Article 8 of the Convention. On Article 475, the list has six entries: decisions no. 498 of 30 June 2016, no. 440 of 22 June 2017, no. 636 of 17 October 2017, no. 854 of 26 November 2020, no. 590 of 30 September 2021 and no. 595 of 30 September 2021. That makes ten rulings in all on the two texts, the first of 30 June 2016, so within a span of nine years and eight months up to 5 March 2026. The reasoning says it directly: „to date no new elements have arisen such as to justify a change in that case law”.

One nuance deserves to be set apart, because it is easily lost in the reading. The statement that the order of the preliminary chamber judge in the case of origin has no res judicata effect in the case to which the evidence was transferred appears in the Government’s point of view, reproduced in paragraph 12 of the decision, not in the Court’s reasoning. It explains well why two different outcomes do not automatically mean a constitutional problem, but it does not have the binding force of a ground given by the Court and cannot be cited as such.

Advantages and disadvantages

What it improves

  • It settles unequivocally where an interception brought in from another case is to be challenged: in the preliminary chamber of the case into which it was transferred. Anyone who knows this does not miss the deadline looking for an appeal that does not exist.
  • It confirms that the preliminary chamber judge reviews lawfulness of his own motion too, not only at the defendant’s request, so the review does not depend solely on the quality of the defence.
  • It recalls the substantive limit of the transfer: only for the offences in Article 139(2) of the Code of Criminal Procedure, that is the list set out there plus those punishable by 5 years’ imprisonment or more. A transfer outside that list remains open to challenge, even though the text is constitutional.
  • It links the sanction expressly to the outcome: the unlawfulness of the means of evidence entails the unlawfulness of the evidence and its exclusion from the criminal trial. This is not a theoretical safeguard, it is a procedural effect that can be verified in the file.
  • It clarifies who may ask for the resolution of a point of law, in a context where Article 475 is written as one long sentence. The enumeration in the decision spares the party an inadmissible request.

What remains a problem

  • The letter of the law still does not describe the transfer procedure. Exactly how the data are taken over from one case into another, by what act, with what particulars and whether the defence is notified, is written nowhere in Article 142(5). The decision finds that the safeguard comes from the preliminary chamber stage, not that the text is complete.
  • The defence’s access to the source file remains unresolved. The criticism that one cannot debate whether evidence gathered in another case is conclusive and useful receives no answer of its own in the Court’s reasoning.
  • The most concrete criticism, the absence of an appeal against the order on the referral to the High Court, was not decided. The Court itself identified the text that contains it, Article 476(1), and it was also the Court that explained why it cannot rule on it. The problem stays where it was, and solving it requires another case and another plea.
  • From the referral order, made on 3 June 2021, to the publication of the decision, on 21 September 2026, 1,936 days passed, that is more than five years and three months. Of those, 200 days passed between the ruling, on 5 March 2026, and publication alone.
  • The preliminary chamber judge stays outside the mechanism for unifying case law. He is precisely the one who decides on the lawfulness of evidence, that is on exactly the kind of question that produces different outcomes from one tribunal to another, yet he cannot ask the High Court for a ruling in principle.

Practical advice

  1. If the indictment in your case contains transcripts of intercepted conversations, check in which case the measure was authorised. If the number is not that of the case in which you are a defendant, you are in a transfer situation under Article 142(5), and exactly what this decision says applies.
  2. Make your requests and pleas in writing, within the deadline set by the preliminary chamber judge, and ask expressly for a review of the lawfulness of the authorisation of the measure in the case of origin, not only of the way it was carried out. The Court confirms that the judge may review both.
  3. Compare the offence you are being investigated for with the list in Article 139(2) of the Code of Criminal Procedure. If the offence is not there and is not punishable by 5 years’ imprisonment or more, the condition in Article 142(5) is not met, and that is an argument about the lawfulness of the evidence, not about the unconstitutionality of the text.
  4. Do not build your defence any longer on the unconstitutionality of Article 142(5) or Article 475 in relation to the criticisms in this decision. The law does not forbid raising a new plea, since Article 29(3) of Law no. 47/1992 only bars pleas on texts already declared unconstitutional, but the predictable result is another rejection, with a reference to Decision no. 194/2026.
  5. If you want a ruling in principle from the High Court, the moment is not the preliminary chamber but the trial at last instance, and it is not you who asks but the panel, at your request. Check first whether the High Court has not already ruled through a preliminary ruling or an appeal in the interest of the law, because in that case the request is inadmissible.
  6. If you want to challenge the absence of an appeal against the order on the referral, direct your plea at Article 476(1) of the Code of Criminal Procedure, not at Article 475. This decision shows plainly that the two texts are not to be confused and that only a plea expressly aimed at Article 476(1) can be examined.

Frequently asked questions

Can an interception made in someone else’s case be used against me?
Yes, if its content yields conclusive and useful data about the preparation or commission of one of the offences provided for in Article 139(2) of the Code of Criminal Procedure. The Constitutional Court confirmed on 21 September 2026 that the rule is constitutional. The condition is not a formality: if the new offence is not on that list and is not punishable by 5 years’ imprisonment or more, the transfer does not meet the requirement of the law.
Where can I challenge such evidence?
In the preliminary chamber of the case into which the evidence was brought, through requests and pleas made in writing. The judge reviews the lawfulness of the authorisation of the measure and of the criminal investigation acts, including of his own motion. If the means of evidence is unlawful, the evidence is excluded from the trial.
Does the fact that a judge in the case of origin has already held the interception lawful close the discussion for me?
No, and the decision explains why: the judge in the second case assesses the necessity, the proportionality and the subsidiary character of the measure in relation to an offence other than the one that justified the original authorisation. Be careful about the source, though, if you want to cite the argument: it appears in the Government’s point of view, reproduced in the decision, not in the Court’s reasoning.
Can I ask, in the preliminary chamber, for the High Court to clarify a point of law?
No. Article 475 of the Code of Criminal Procedure allows a referral only in the course of the trial, and the Constitutional Court confirms that the preliminary chamber judge and the judge for rights and freedoms are outside the circle of those entitled to refer. District courts cannot refer either, whatever the stage, and neither can courts sitting at first instance.
Why did the Court not rule on the absence of an appeal?
Because that rule is not in Article 475 but in Article 476(1) of the Code of Criminal Procedure, a text the author of the plea had not criticised. Analysing it would have meant a referral by the Court of its own motion, which Article 2(3) of Law no. 47/1992 does not allow. The criticism therefore remains undecided.
Can I still raise the same plea in my case?
Formally, yes. Article 29(3) of Law no. 47/1992 bars pleas on texts already found unconstitutional, which is not the case here. In practice, however, the Court wrote expressly that no new elements have arisen such as to justify a change in its case law, so a fresh plea on the same grounds will be rejected.
Were there any dissenting or concurring opinions?
No. The decision was taken unanimously by a panel of seven judges and contains no dissenting or concurring opinion. There is therefore no fault line inside the Court on these two texts.
From when does the decision apply?
From 21 September 2026, the date of publication in the Official Gazette of Romania no. 797. Under Article 147(4) of the Constitution, decisions of the Constitutional Court are generally binding from the date of publication and have effect only for the future.

Editorial analysis

The decision is correct in relation to what was asked of the Court and, for that very reason, shows clearly where constitutional review stops. The author of the plea complained about something very concrete, the absence of a written procedure by which interceptions pass from one case into another, and the Court answers that the safeguard exists, but elsewhere in the code: in the preliminary chamber, where the judge reviews lawfulness, including of his own motion, and excludes unlawful evidence. The answer is valid. What the decision does not say, because it is not asked to, is that a procedural safeguard exercised after the evidence is already in the file does not have the same value as a rule that would describe the transfer at the moment it happens.

The second observation calls for counting days, because it does not emerge from reading the act. The referral order is of 3 June 2021, the decision was given on 5 March 2026 and published on 21 September 2026. That is 1,736 days from referral to ruling and another 200 from ruling to publication, 1,936 days in all, more than five years and three months for a case decided by reference to existing case law, unanimously and with no dissenting opinions. An asymmetry shows here as well: the decision requires the defendant to make his requests and pleas within a deadline set by the judge, usually a few days, while the constitutional court’s answer to a question from 2021 arrived in 2026. One detail reinforces the impression: the file bears number 214D/2022, even though the referral order is from June 2021, so between the court’s referral and its registration at the Court a further stretch of time passed that the act does not show.

The third observation comes out of combining two paragraphs. On Article 475, the Court rests its reasoning mainly on Decision no. 590 of 30 September 2021, given 119 days after the referral order in this case. In other words, the benchmark that today makes the criticism unfounded did not exist on the day the criticism was formulated. This is no error by the Court, which judges by reference to the case law as it stands on the date of the decision, but it explains why a plea can look reasonable when it is raised and pointless when it is decided, while the procedural effort between those two moments is borne entirely by the party.

The most serious shortfall, however, is another one. The Court itself identifies, in paragraph 28, the text that contains the problem complained of, Article 476(1), and it is also the Court that explains, in paragraph 29, why it cannot examine it. The result is that a real criticism, the total absence of an appeal against an order, goes back into the system untouched, and solving it depends on the chance that another defendant, in another case, will hit on exactly the right article. For a reader with a pending case, that means a mistake in framing the plea costs years, not days.

What should be changed

  • Article 142(5) should describe the act by which the transfer is made. A reference to the case of origin, to the number of the surveillance warrant and to the order by which it was authorised would allow the defence to check lawfulness from its own file, without depending on what the prosecutor chose to attach.
  • The defence should have access, in the preliminary chamber, to the full recording of the transferred conversation, not only to the transcript. The Court sends the review to the preliminary chamber, but a review needs the material it is reviewing; otherwise the judge is comparing a transcript with itself.
  • Article 476(1) should at least require reasons to be given for the order rejecting a request for a referral to the High Court. If an appeal is not to be allowed, verifiable reasons would let the appellate court censure the refusal together with the merits, instead of leaving the decision entirely outside any review.
  • The preliminary chamber judge should be able to refer to the High Court for the resolution of a point of law. The lawfulness of evidence is exactly the area in which practice fractures from one tribunal to another, and the unifying mechanism bypasses precisely the stage at which the problem arises. The practical effect would be fewer contradictory outcomes on the same interceptions.
  • Law no. 47/1992 should set a deadline for publishing a decision after it is given. The 200 days between 5 March 2026 and 21 September 2026 are days in which the decision existed but produced no effects, while the courts went on hearing identical cases without being able to invoke it. A deadline of 30 or 60 days would close that gap.

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. 797 of 21 September 2026, pages 2-5 16 pages PDF, 123 KB the act starts on page 2

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