A refusal to reopen a closed criminal case never reaches a judge: the Constitutional Court says the law is constitutional

Anyone who asks a prosecutor to reopen a closed criminal case and is refused has no way of bringing that refusal before a judge, and the Constitutional Court has confirmed that the law may stay as it is. Decision no. 221 of 12 March 2026, published in Official Gazette of Romania no. 772 of 11 September 2026, rejects the objection as unfounded and finds that Article 340(1) of the Code of Criminal Procedure is constitutional in relation to the criticisms formulated. The provision at issue is the door through which a prosecutor’s work comes under the eyes of a judge, the same preliminary chamber the Court ruled on at the end of August 2026, when it stopped the law that removed the summoning of parties from that stage.

To see what is at stake, it is worth following the usual course of a criminal complaint. You lodge a complaint, the prosecutor investigates, and if nobody is sent to trial the prosecutor issues an order closing the case. Against that closure you complain to the hierarchically superior prosecutor, under Article 339 of the Code of Criminal Procedure. If that prosecutor also rejects it, Article 340(1) gives you 20 days from notification to go to the preliminary chamber judge at the court that would have heard the case at first instance. That is where a judge’s scrutiny of the prosecutor’s decision stops.

There is, however, a second route, used when something new turns up after the closure: the request to reopen the criminal investigation, governed by Article 335 of the same code. This is where the asymmetry complained of by the author of the objection appears. When the prosecutor orders a reopening, that order is subject to confirmation by the preliminary chamber judge, under Article 335(4). When the prosecutor refuses the request to reopen, the order is subject to no judicial scrutiny at all, because Article 340(1) speaks only about the closure of the case.

The case from which the question came reached the Bucharest Court of Appeal, Second Criminal Division, under number 2.503/2/2021. Marian Turbatu had sought the annulment of the order of the Prosecutor’s Office attached to the Bucharest Court of Appeal that had rejected his request to reopen, as well as of the order of the prosecutor general of the same office, who had upheld the refusal. The court referred the matter to the Constitutional Court by the Interlocutory Order of 28 June 2021, and at the Court the case received the number 2.493D/2021.

The criticisms were built on several provisions of the Constitution. On Article 21, because the injured person has no remedy at all and would be left facing an act of the criminal investigation bodies removed from the scrutiny of the courts. On Article 16, for the difference between a refusal to reopen and a decision to grant it. On Article 1(5), because the text does not say clearly and predictably whether orders refusing a reopening fall under a judge’s scrutiny. On Articles 24 and 52, invoked alongside Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. At the hearing, the author added a new criticism, based on Directive 2012/29/EU on the rights of victims of crime, and argued that the absence of a remedy produces secondary victimisation.

The Public Ministry asked for the objection to be rejected, primarily as inadmissible, on the ground that the author was in reality seeking to have the statutory text supplemented, and in the alternative as unfounded, invoking Decision no. 401 of 4 July 2023. The Government took the same line and pointed out that free access to justice means access to the procedural means through which justice is done, not the absence of any condition whatsoever. The presidents of the two Chambers of Parliament and the Ombudsman sent no points of view.

The answer is built on two of the Court’s own decisions, no. 760 of 14 December 2023 and no. 635 of 21 November 2023. From the first comes the idea that the legislature may lay down special rules of procedure, and that the fact that prosecutors’ orders other than those closing a case cannot be challenged before a judge is not aimed at restricting access to justice but at establishing a climate of order. From the second comes the inventory of judicial scrutiny: an indictment takes the case into the preliminary chamber, where the judge checks the lawfulness of the evidence and of the investigation acts; a closure can reach a judge through the complaint in Articles 340 and 341; a waiver of prosecution is checked first by the hierarchically superior prosecutor and then sent for confirmation to the preliminary chamber judge, under Article 318(10), (12), (14) and (15).

On the equality criticism, the reasoning starts from the idea that the principle in Article 16 does not exclude but presupposes different solutions for different situations, and refers to Plenary Decision no. 1 of 8 February 1994. The order granting a reopening restarts the criminal proceedings and has direct consequences for the procedural status of the person concerned, which is why the legislature required the judge’s confirmation. The order refusing a reopening does not produce that effect, because it maintains the decision, already taken, not to send the case to trial. The criticism based on Article 52 was set aside because it was not reasoned, and the one based on the European directive because it was raised directly before the Court, outside the limits of the referral.

What it changes in practice

The decision is final and generally binding from publication, that is from 11 September 2026, under Article 147(4) of the Constitution. Being a rejection, it removes no provision from force and changes not a letter of the Code of Criminal Procedure. Anyone looking for a change in the law will find none.

The first concrete effect concerns the case from which the question came. Marian Turbatu’s complaint continues to be heard at the Bucharest Court of Appeal, Second Criminal Division, and the decision is communicated to that court. The hearing was not halted all this time, because raising an objection no longer suspends the case, but 1,901 days passed between the interlocutory order of referral and the publication of the decision, that is 5 years and almost 3 months.

The second effect shows up in any case where a prosecutor rejects a request to reopen. The refusal can still be checked only through the hierarchy, by the complaint in Article 339, exactly the route taken in the present case, where the prosecutor general of the office upheld the decision. The preliminary chamber judge has nothing to check, because the law has not given them the power, and the Court has now confirmed that this absence is not unconstitutional.

The third effect concerns what can still be done with this provision. A rejection as unfounded does not freeze Article 340(1) for ever, but it makes a second attempt harder. Paragraph 18 states expressly that the solution and the reasoning of the earlier decisions remain valid, because no new elements have arisen. A new objection on the same text would therefore have to bring an argument the Court has not weighed, not a rewording of the same complaint.

The fourth effect is the one that did not happen. The question whether the absence of a remedy against a refusal to reopen complies with Directive 2012/29/EU on the rights of victims of crime is left unanswered. It was not examined, because it was raised only at the hearing, and constitutional review is carried out within the limits of the referral from the court. The argument can be taken up again, but it has to be raised and reasoned before the court that refers the matter to the Court.

What has changed compared with the previous situation

Nothing has changed in the law, and that is the first important difference from many other decisions of the Court. Article 340(1) applies on 11 September 2026 in exactly the version reviewed, so the decision is not talking about a dead provision.

The last change to the paragraph is more than ten years old. Government Emergency Ordinance no. 18/2016, published in Official Gazette of Romania no. 389 of 23 May 2016, removed from Article 340(1) the reference to the waiver of prosecution and left only the closure of the case there. It was not a gratuitous narrowing: scrutiny of the waiver of prosecution was moved into Article 318, in the form of confirmation by the preliminary chamber judge, a mechanism the Court describes in this very decision, in paragraph 17. From then until publication, 3,763 days passed with no amendment to the paragraph.

What really did change, over the almost five years the case spent waiting, is the Court’s case-law on the same article. On 4 July 2023, through Decision no. 401, the Court rejected an objection targeting the very pair of provisions at issue here, Article 335(4) and Article 340(1). Then came Decision no. 635 of 21 November 2023, published in Official Gazette of Romania no. 391 of 26 April 2024, Decision no. 760 of 14 December 2023, Decision no. 147 of 19 March 2024, on Article 340 read with Articles 336, 339 and 549¹, and Decision no. 305 of 5 June 2025, published in Official Gazette of Romania no. 843 of 12 September 2025.

The closest of them does not appear in the present decision. Through Decision no. 324 of 9 July 2024, published in Official Gazette of Romania no. 1.148 of 18 November 2024, the Court had already rejected, also as unfounded, an objection on Article 335(2) and (4) and on Article 340(1), raised in a case before the Râmnicu Vâlcea District Court. The criticisms there were the same: free access to justice and different treatment between granting and refusing a reopening. That referral dated from 23 November 2020, 217 days earlier than the one in the present case, and was dealt with 611 days faster.

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