Whoever makes good the damage escapes punishment, whoever was caught before taking the money does not. The Constitutional Court says that is not discrimination

The tax evasion law has a way out that every accountant knows about: if you make good in full the loss caused to the state, you can escape prison and, in certain conditions, punishment altogether. A man sent to trial for trying to take money from the state, without ever getting it, argued that this way out discriminates against him, because he has nothing to make good. The Constitutional Court told him he was wrong. Decision no. 224 of 12 March 2026, published in Official Gazette of Romania no. 781 of 15 September 2026, was delivered unanimously by a panel of eight judges presided over by Elena-Simina Tănăsescu. In the same sitting of 12 March 2026, the same panel also rejected the plea concerning a prosecutor’s refusal to reopen a closed criminal file.

The file came from the Zărnești District Court, by the referral order of 22 June 2021, and concerned criminal proceedings in which Sorin Staicu was investigated for an attempt to commit the offence laid down in Article 8(1) of Law no. 241/2005: the determination in bad faith, by a taxpayer, of taxes, duties or contributions, resulting in obtaining without right sums of money by way of refunds or repayments from the consolidated general budget, or set-offs owed to that budget. In its completed form, the offence was punishable, in the applicable version, by 3 to 10 years’ imprisonment and a ban on exercising certain rights. As an attempt, under Article 33 of the Criminal Code, those limits are halved.

The key to the whole dispute lies in Article 10, however, not in Article 8. That provision is the sole reason why some tax evasion files close without a conviction. In the version under review, the one introduced by Law no. 55/2021 and applicable between 4 April 2021 and 18 December 2021, Article 10 had two tiers. Under paragraph (1), if the damage was made good in full during the criminal investigation or the trial and did not exceed 100,000 euros, the court could impose a fine instead of imprisonment, and if it did not exceed 50,000 euros, the fine was mandatory. Under paragraph (1¹), if the damage, increased by 20% of the basis of calculation, plus interest and penalties, was made good in full at any point before a final judgment was delivered, the offence was no longer punishable at all: the file is closed at the investigation stage, and at trial an acquittal is given, by applying Article 16(1)(h) of the Code of Criminal Procedure.

Who pays and what they get, in short: the defendant pays, or anyone else on their behalf, and the sum is the loss caused to the budget plus an additional fifth of it, plus interest and penalties. What they get is release from criminal liability, not merely a lighter sentence. And the benefit was not reserved to the person who took the money: paragraph (1²) of the same article provided that the provisions apply to all defendants, even those who did not contribute to making good the damage referred to in paragraphs (1) and (1¹).

Other benefits tied to conduct after the act have a strict window of time, because a sentence reduction for a denunciation can no longer be obtained once the conviction has become final.

The argument of the author of the plea started from there. He contended that, in the case of a completed offence, whoever caused a loss can make it good and benefit from the ground for non-punishment, while whoever was stopped at the attempt stage has no damage to make good, can therefore never reach Article 10, and ends up as the only one who is actually punished. The result, he said, is that the offence carried through to the end is treated more leniently than the one that stopped at the trying stage. In support he invoked Decision of the Constitutional Court no. 573 of 3 May 2011, by which Article 74¹ of the 1969 Criminal Code, a provision of the same kind, had been declared unconstitutional precisely because the legislature had said nothing about the position of attempts in the case of offences causing damage.

Separately, the author also complained of a classification problem. In court practice, an attempt to commit the offence in Article 8(1) is confused with an attempt to commit the offence in Article 9(1)(c), namely recording in the accounts expenditure not based on real transactions. The difference is not academic: an attempt under Article 8 is punishable, under paragraph (3), whereas under Article 9 attempts are not criminalised at all. The same conduct, caught before the money leaves the budget, therefore leads either to a criminal file or to none, depending on the provision chosen by the judicial body.

To this last reproach the Court replied that it is not its business. The grounds do not target the wording of the law but the way the courts interpret and apply it, and that is a matter for the court seized of the case and for the avenues of appeal, not for constitutional review. To answer otherwise, paragraph 16 states, would be an interference in the work of adjudication, contrary to Article 126 of the Constitution. That is why the plea concerning Article 8(3) was rejected as inadmissible, without an examination of the substance.

On the substance, the Court followed its own case law. For Article 8(1) it repeated Decision no. 459 of 25 June 2020, published in Official Gazette of Romania no. 926 of 9 October 2020, in which it had already held that the verb „stabilire” (determination) in the offence-creating provision is not to be confused with the tax authority’s power to determine claims, and that the criminal penalty comes into play only where the competent bodies find that the money was obtained through a determination made in bad faith. For Article 10 it explained that making good the damage says nothing about the offence but about the conduct of the offender after the offence was committed, so it is a personal circumstance, and that a different sanctioning regime, based on each person’s actual conduct in the proceedings, does not infringe equality before the law. Those who commit the completed offence and those who stop at the attempt are not, in the Court’s view, in similar situations, and Article 16 of the Constitution prohibits different treatment only in identical situations.

What it changes in practice

The decision does not change a word of the law. Under Article 147(4) of the Constitution, decisions of the Court are published in the Official Gazette of Romania and, from the date of publication, are generally binding and have force only for the future. The effect of a decision rejecting a plea is that the provision stays exactly as it was, and that from 15 September 2026 everyone, courts included, is bound by the finding that it is constitutional in the light of the criticisms put forward.

The first practical effect concerns those with pending proceedings over older conduct. Article 8(1) in the version preceding Law no. 55/2021 and Article 10(1) and (1¹) in the version preceding Government Emergency Ordinance no. 130/2021 have not been in force for years, but they continue to be applied as the more favourable criminal law, under Article 5 of the Criminal Code, which requires that, where one or more criminal laws have intervened between the commission of the offence and the final judgment of the case, the more favourable law is applied. The Court confirmed, in paragraph 13, that a provision no longer in force can be reviewed for as long as it produces effects, following Decision no. 766 of 15 June 2011. In other words, a repealed version has just received a certificate of constitutionality because cases are still being judged under it.

The second effect is a limitation few people anticipate. The more favourable law is not applied piecemeal. By Decision no. 265 of 6 May 2014, published in Official Gazette of Romania no. 372 of 20 May 2014, the Court held that Article 5 of the Criminal Code is constitutional only in so far as it does not allow provisions from successive laws to be combined. It is therefore not possible to take the alternative fine introduced into Article 8(1) by Law no. 55/2021 and, at the same time, the unlimited ground for non-punishment in Article 10(1¹) in the version preceding the December 2021 ordinance. One whole law is chosen, not the best fragments of each.

The third effect is the one that is missing. Being a decision rejecting the plea, it does not open the way to revision. Article 453(1)(f) of the Code of Criminal Procedure allows revision only where the final judgment was based on a provision declared unconstitutional following the upholding of a plea raised in that very case, and where the consequences of the breach of the constitutional provision continue to occur and can be remedied only through revision. Neither condition is met here. Anyone convicted under these provisions stays convicted.

The fourth effect concerns the classification problem left unresolved. The Court said expressly that it is not ruling on it, so the difference between the punishable attempt under Article 8 and the uncriminalised attempt under Article 9 remains a question of interpretation, to be settled on appeal, in an appeal in cassation or, possibly, through a ruling on a point of law by the High Court of Cassation and Justice. Until then, two courts may reach different outcomes on the same conduct.

The fifth effect concerns the man in the case. Raising a plea of unconstitutionality no longer stays the proceedings, and Article 29 of Law no. 47/1992 provides for no stay, so the case before the Zărnești District Court carried on throughout. From the referral order of 22 June 2021 to the delivery of the decision, 1,724 days went by, and another 187 from delivery to publication, 1,911 days in total, that is 5 years and almost 3 months.

One effect the decision does not have, even though it will be read as if it did: it says nothing about Article 10 in its current form. The provision applicable to conduct after 16 May 2024 was entirely rewritten by Law no. 126/2024 and looks completely different from the one judged here.

What has changed compared with the previous situation

In law, nothing has changed. What is worth following is something else: how often the very provision the Court has just upheld has itself changed. In 21 years, Article 10 of Law no. 241/2005 has had five versions, and each one moved the line between paying and getting away.

The original version, from 27 July 2005. If the defendant made good the damage in full by the first hearing, the sentencing limits were halved. If the damage recovered was no more than 100,000 euros, a fine could be imposed. If it was no more than 50,000 euros, an administrative penalty was imposed, which closed the criminal proceedings and was entered in the criminal record.

Law no. 255/2013, applicable from 1 February 2014. Both the ground for non-punishment and the fine disappeared. All that remained was the halving of the sentencing limits, conditional on meeting „pretențiile părții civile” (the civil party’s claims) by the first hearing. That phrase was declared unconstitutional by Decision no. 867 of 14 December 2021, published in Official Gazette of Romania no. 325 of 1 April 2022.

Law no. 55/2021, in force from 4 April 2021. The version judged now. The fine returned as an option for damage of up to 100,000 euros and became mandatory below 50,000 euros, while paragraph (1¹), an entirely new provision, brought back non-punishment: damage made good in full, increased by 20%, plus interest and penalties, at any time before the final judgment. With no upper limit on value. At the same time, Article 8(1) gained the fine as an alternative to the 3 to 10 years’ imprisonment, which did not exist in the version at issue in this case.

Government Emergency Ordinance no. 130/2021, in force from 18 December 2021. This is where the window closed. Non-punishment under paragraph (1¹) acquired a ceiling: it applies only if the damage does not exceed 100,000 euros. A further paragraph was added, barring the benefit for anyone who has committed another offence under the same law in the previous 5 years. At the same time, the rules were extended to the new offence in Article 6¹, withholding and failing to pay taxes and contributions deducted at source.

Law no. 126/2024, in force from 16 May 2024. A complete rewrite, with six paragraphs. The most important is the first: if the damage identified at the end of an inspection is no more than 1,000,000 euros and is made good in full, by actual payment, increased by 15%, plus interest and penalties, within 30 days of the end of the inspection, the offence is not punishable, and the competent bodies do not even notify the prosecuting authorities. If that moment is missed, ever more expensive tiers follow: 25% during the criminal investigation, 50% in the preliminary chamber and up to the first-instance judgment, 100% on appeal. Making good the damage by the first hearing halves the sentencing limits, and after the first hearing reduces them by a third. The damage is determined by an expert report, and the High Court of Cassation and Justice held, in Decision no. 430/2025, published in Official Gazette of Romania no. 149 of 26 February 2026, that the absence of that report makes the indictment irregular and sends the file back to the prosecutor.

The comparison that matters for someone currently in proceedings is made with figures. On damage of 300,000 euros, the April 2021 version, the one upheld by the Court, offered non-punishment against the damage increased by 20%, that is 360,000 euros plus interest and penalties, at any time before the final judgment. The December 2021 version offered nothing at all above 100,000 euros. The current version offers non-punishment, but at 15% if payment is made within 30 days of the inspection and at 25%, 50% or 100% later, so up to 600,000 euros once the file has reached appeal. For conduct committed before 18 December 2021 and not yet finally judged, the April 2021 version remains, where the damage is large, the mildest law in the whole sequence.

A less visible difference concerns co-defendants. The 2021 text said that Article 10 applies to all defendants even if they did not contribute to making good the damage referred to in paragraphs (1) and (1¹), that is including the damage that triggers non-punishment. The current text keeps the wording but refers to paragraphs (1) and (2), while the ground for non-punishment during the proceedings sits in paragraph (3), which is not named there. Anyone paying in a file with several defendants would do well to ask the court to rule expressly on that cross-reference, because it determines whether the benefit extends to the others.

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