In brief
- The High Court of Cassation and Justice dismissed as inadmissible the question put by the Bacău Court of Appeal about searches carried out by officers of the National Anticorruption Directorate (DNA) together with officers of the General Anticorruption Directorate. There is no answer on the substance, so the courts are left without a binding rule.
- What is at stake: 6 house searches in a corruption case with 13 defendants sent for trial by DNA Bacău. Four of them had asked for the evidence to be set aside because officers of a body with no jurisdiction in that case had taken part in the searches.
- The reason for the dismissal: the question concerned the case, not the wording of the law. The High Court says the matter is already clear, even though 9 of the 15 courts of appeal that answered the consultation gave three different solutions to the same situation.
Published: Official Gazette of Romania (Monitorul Oficial) no. 757 of 7 September 2026
In force from: 7 September 2026, the date of publication
The High Court of Cassation and Justice has refused to say whether a search carried out by judicial police officers of the DNA together with judicial police officers of the General Anticorruption Directorate is void when the case does not concern employees of the Ministry of Internal Affairs. By Decision no. 84 of 22 June 2026, published on 7 September 2026, the panel of nine judges dismissed as inadmissible the question referred by the Bacău Court of Appeal and left the problem to each court to settle for itself. This is not the first stop of this kind this year: the same solution was given in August 2026 to a question about compensation for firefighters’ overtime.
The mechanism used by the Bacău Court of Appeal is called a preliminary ruling for the resolution of a point of law. It works like this: if a tribunal, a court of appeal or even the High Court is hearing a case at last instance and comes across a provision on whose meaning the outcome depends, it can halt the trial and ask the High Court to say, once and for all, what that provision means. The answer is not given for that case alone, but for everyone: under Article 477(3) of the Code of Criminal Procedure, the resolution becomes binding on all courts in the country from the date of publication in the Official Gazette of Romania. It is, in practice, the only route by which a mid-ranking court can obtain in advance an answer that binds the entire judiciary.
The question from Bacău read as follows: where investigative acts are carried out by delegation by a mixed team made up of judicial police officers of the National Anticorruption Directorate and judicial police officers of the General Anticorruption Directorate, in a case in which the latter have no jurisdiction, are those acts struck by absolute nullity, and if so, is the nullity partial or total. The General Anticorruption Directorate is the structure within the Ministry of Internal Affairs that deals with corruption among the ministry’s own staff, and Article 1(2) of Government Emergency Ordinance no. 120/2005 limits its jurisdiction precisely to corruption offences committed by the ministry’s personnel.
The underlying case is an ordinary local corruption file. By indictment no. 55/5/P/2023 of 13 December 2024, the DNA, Bacău Territorial Service, sent thirteen defendants for trial, public officials and companies: a local councillor, a town hall employee, the director of a care home for the elderly, the head of a lower secondary school, a specialist inspector, the manager of a kindergarten and company directors. The charges are abuse of office in its assimilated form, laid down in Article 13^2 of Law no. 78/2000, together with incitement and complicity. None of the defendants is an employee of the Ministry of Internal Affairs.
What set the problem off: on 16 September 2025 the High Court published Decision no. 8/2025, given in an appeal in the interest of the law, which established that judicial police officers of the General Anticorruption Directorate may carry out investigative acts by delegation „exclusiv în cauzele privind infracțiunile prevăzute de art. 1 alin. (2) din O.U.G. nr. 120/2005”, that is, only in cases concerning the offences referred to in Article 1(2) of that ordinance. Four of the defendants immediately supplemented their grounds of challenge and asked for six prosecutor’s orders and the records drawn up on the basis of them to be set aside, together with the removal from the file of everything that had resulted: the documents seized during the searches, the copies taken from telephones and computers and the analyses carried out on them.
The prosecutor’s office replied that the situation in Bacău is different from that in other cases, where the acts had been carried out solely by officers of the General Anticorruption Directorate. Here, by the six orders, the prosecutor also delegated officers of the DNA, and each of the six house searches was carried out by DNA officers accompanied by officers of the other structure. In the view of the public prosecution service, the records were drawn up on the prosecutor’s behalf by the officers who had jurisdiction, and the additional signature spoils nothing.
What it changes in practice
The main effect is the absence of an effect. Article 477(3) of the Code of Criminal Procedure makes „the resolution given to the points of law” binding on the courts, and here no resolution was given. The 72 paragraphs of the decision stop short of the substance: the High Court finds that the first condition of admissibility is met, because the question comes from a court sitting at last instance, and also finds that the problem has not already been settled by a preliminary ruling or by an appeal in the interest of the law, but it dismisses the referral because it does not see a „genuine point of law”. The reason: the Bacău Court of Appeal is not asking for the interpretation of a provision, but asking to be told which acts in its own file are void.
For the four challengers in case no. 3.526/110/2024/a1, the challenge goes back to the Bacău Court of Appeal, which will decide on its own whether the search stands or falls. Its decision will be final and will not bind other courts.
For the rest of the country, the map remains the one described in the decision itself. The Bucharest, Craiova, Ploiești and Timișoara Courts of Appeal said that a mixed team attracts total absolute nullity. The Cluj, Craiova, Galați and Iași Courts of Appeal said exactly the opposite, that the presence of a body with jurisdiction covers the act, and that those without jurisdiction have only a supporting role. The Pitești and Târgu Mureș Courts of Appeal proposed an intermediate solution, in which the contribution of each body is weighed and nullity arises only where the contributions cannot be separated. Craiova appears on two different lists, which shows that not even within the same circuit is there a single line.
What remains standing is only Decision no. 8/2025, which says what officers of the General Anticorruption Directorate may not do on their own and says nothing about mixed teams. What also remains is the time limit in Article 281(4)(a) of the Code of Criminal Procedure: a breach of the jurisdiction of the investigating body may be raised only until the close of the preliminary chamber procedure, if it occurred during the criminal investigation. Anyone who has passed that moment has nothing left to rely on, whatever the courts may decide from now on.
The fate of evidence gathered through special means is also what the March 2026 decision turns on, the one in which the Constitutional Court left untouched the rule allowing interceptions from one case to be used in another.
What has changed compared with the previous situation
In the written law nothing has changed. Neither the Code of Criminal Procedure, nor Government Emergency Ordinance no. 43/2002 on the DNA, nor Government Emergency Ordinance no. 120/2005 on the General Anticorruption Directorate is touched by this decision.
What has changed is a route. Until 7 September 2026, a court hearing a case involving mixed teams could hope that a preliminary reference would bring it a binding answer. It is now known that the mechanism does not apply to this problem, because the High Court regards it as a matter of applying the law to the case, not of interpretation. A single route to unification remains, the appeal in the interest of the law under Article 471 of the Code of Criminal Procedure, but it carries a heavy condition: the application must be accompanied, on pain of dismissal, by copies of final judgments showing that the problem has been resolved differently. In other words, the courts must first deliver conflicting solutions, which means time and cases judged in two ways. Those entitled to bring it are few: the Prosecutor General, the governing boards of the High Court and of the courts of appeal, and the Ombudsman.
Something else has changed, more quietly. The decision adds a precedent to the series in which the Panel for the Resolution of Points of Law refuses questions framed by reference to an earlier decision of the High Court. The argument, repeated from Decision no. 5/2016 and Decision no. 22/2016, is that the procedure cannot be used to interpret a judgment of the supreme court, only to interpret the law.
Advantages and disadvantages
What it improves
- It keeps the preliminary reference mechanism within its limits. If the supreme court answered questions tailored to one particular file, it would end up judging in place of the court that has the case before it, and the procedure would become an extra stage in every complicated trial.
- It protects time limits. The Code of Criminal Procedure gives the High Court 3 months to decide such a referral, and preliminary chamber files stand still in the meantime. The admissibility filter keeps at bay applications that would block trials without producing a new rule.
- It says plainly that Decision no. 8/2025 needs no additions. Anyone reading it knows that this text is the whole of the binding answer available today, not a draft from which clarifications may be sought.
- It publishes in full the three opinions of the courts of appeal, with the names of the courts. A lawyer or a prosecutor can see, in a single document, how the problem is being judged in each part of the country.
What remains a problem
- A defendant in Bacău and one in Cluj, with searches carried out in the same way, may receive opposite solutions. In one case the evidence stays in the file, in the other it is physically removed, and the difference depends not on the facts but on the court of appeal that hears the case.
- The reasoning contradicts its own material. The High Court says that Decision no. 8/2025 is „drafted in a clear manner, free of ambiguity”, after having listed three different interpretations given by nine courts of appeal, one of which appears under two opinions at once.
- The solution now runs through the appeal in the interest of the law, which requires conflicting final judgments. Until they accumulate, whole cases are judged under different rules, and the outcomes can no longer be put right.
- The decision does not say by what majority it was taken. The law requires at least two thirds of the judges of the panel, that is 6 out of 9, but the reader has no way of checking and does not learn whether there were dissenting views within the panel.
Practical advice
- If you are a defendant in a case in which officers of the General Anticorruption Directorate took part, check your own status first: if you are not an employee of the Ministry of Internal Affairs, the question of jurisdiction arises. If you are, Decision no. 8/2025 does not help you.
- Raise the issue before the preliminary chamber closes. Article 281(4)(a) of the Code of Criminal Procedure is clear: after that moment, a breach of the jurisdiction of the investigating body can no longer be invoked for acts carried out during the criminal investigation.
- Ask for the delegation orders to be placed in the file, not just the records. The order shows who was delegated, and the record shows who signed. The difference between the two documents is exactly the ground on which the Bacău dispute was fought.
- Look at the court of appeal to which your case belongs and search for its recent judgments on this subject. Decision no. 84/2026 sets out explicitly how ten courts of appeal positioned themselves, and the position of the court hearing your case says more about your real chances than any theoretical argument.
- Keep the application to set aside the act separate from the application to exclude derivative evidence. Article 102(4) of the Code of Criminal Procedure requires you to show that the derivative evidence came directly from the unlawful evidence and could not have been obtained otherwise, which is a separate discussion.
- If you are a judge or a lawyer and you want to use the preliminary reference mechanism, frame the question about the provision of law, not about the case. Decision no. 84/2026 confirms that a question asking for an earlier decision to be applied to a particular set of facts is dismissed without reaching the substance.
- Do not mistake this decision for a resolution in favour of the prosecution. A dismissal as inadmissible does not validate the practice of mixed teams, it refuses to discuss it.
Frequently asked questions
What did the High Court decide, in the end?
What does „the resolution of a point of law” mean?
Is Decision no. 84/2026 binding on the courts?
Why can the General Anticorruption Directorate not work in any corruption case?
What does Decision no. 8/2025, the one that started it all, say?
What happens now with the Bacău case?
If the court finds nullity, what happens to the evidence?
When can nullity be invoked for lack of jurisdiction of the investigating body?
Are there separate or concurring opinions attached to this decision?
Who else can seek a uniform solution on this problem?
Errors and inconsistencies in the published text
- The referral order is dated in two different ways within the same act. In paragraph 14, the High Court writes that it was seised „by the interlocutory order of 11 February 2026”. In paragraphs 27 and 28 it writes that the problem was raised for discussion „at the hearing of 5 February 2026” and that the referral was ordered „by the interlocutory order of the same date”. This is a single procedural act, which under Article 476(1) of the Code of Criminal Procedure cannot be challenged and which, under paragraph (3), is published on the website of the High Court. Anyone wanting to look for it has no date to go by, and if the case was also stayed at the same time as the referral, the moment from which the stay runs differs by six days. Both statements appear the same way in the official PDF, at pages 9 and 11, so this is not a loss in the extraction of the text.
- The conditions of admissibility are numbered differently from the way they are analysed. In paragraph 55 the decision lists three conditions, in this order: the court must be sitting at last instance, the outcome on the substance must depend on the clarification of the question, and the question must not already have been resolved. In paragraph 58, „the second condition” is declared to be met, but the text that follows describes the third condition on the list, that of the absence of a previous resolution. The real second condition, the dependence of the outcome on the substance, is analysed only in paragraph 63, without a number, and is the only one found not to be met. A reader keeping count by numbers concludes that the third condition was not examined at all, and these decisions are cited precisely for the admissibility test they apply.
Editorial analysis
The heaviest observation is not visible on reading the decision from beginning to end, but on placing a clock beside it. The Code of Criminal Procedure gives the High Court 3 months to decide such a referral, under Article 476(11), plus 30 days to give its reasons and 15 days to publish, under Article 477(2) read with Article 474(3). Added together, roughly 135 days. The referral order is dated 11 February 2026, the ruling was delivered on 22 June 2026, publication came on 7 September 2026. Between the order and the ruling 131 days passed, 42 days beyond the 3 months. Between the ruling and publication 77 days passed, 32 days beyond the maximum of 45. In total, 208 days, in order to learn that no answer is forthcoming. The time limits are indicative and nobody answers for exceeding them, but throughout that period the Bacău case stood still and the four defendants waited. When the unification mechanism consumes seven months to say that the question was not a good one, the admissibility filter ought to be applied at the beginning, not at the end.
The second observation comes from the very material gathered by the supreme court. The decision rests its solution on the idea that Decision no. 8/2025 is „drafted in a clear manner, free of ambiguity”, so there is nothing left to interpret. Three paragraphs above, the same decision lists the answers of the courts of appeal: four courts say that a mixed team attracts total nullity, four say that it attracts no nullity at all, two say that it depends on the contribution of each. Nine distinct courts of appeal out of the 15 in the country, three incompatible solutions, and the Craiova Court of Appeal appears simultaneously on the first and the second list. It is hard to maintain at the same time that a text is free of ambiguity and that nine higher courts read it in three ways. The distinction on which the High Court relies, that the divergence concerns application and not interpretation, is real in theory, but in practice it does nothing for the defendant who gets one solution in Cluj and another in Bucharest.
The third observation concerns the statutory text that the decision reproduces. In paragraphs 18 and 19, Government Emergency Ordinance no. 43/2002 is quoted correctly, and the quotation shows that Article 10(1) speaks of the „Direcția Națională Anticorupție”, the National Anticorruption Directorate, while paragraphs (2), (3) and (8) of the same article speak of the „Departamentul Național Anticorupție”, the National Anticorruption Department, a name replaced in 2006. This is not the fault of the High Court, which reproduced the text faithfully, but of the legislature, which for twenty years has failed to align the names in the very article dealing with the judicial police of the DNA. In a case in which jurisdiction is argued on the letter of the law, a law that calls its own institution by two names does not help.
What should be changed
- Publication of the majority by which the decision was taken. Article 476(11) of the Code of Criminal Procedure requires at least two thirds of the judges of the panel, that is 6 out of 9, and forbids abstentions. Today the reader cannot check whether the threshold was reached and does not know whether the dismissal was unanimous or narrow, which matters when a finding of inadmissibility blocks the route to an answer on the substance.
- An admissibility filter that is applied quickly. If the question seeks the application of the law to a case rather than its interpretation, that is apparent from the referral order. A preliminary examination in the first few weeks would spare the underlying case a seven-month wait and would ease the pressure on preliminary chamber time limits.
- Alignment of the names in Government Emergency Ordinance no. 43/2002. Replacing the phrase „Departamentul Național Anticorupție” with „Direcția Națională Anticorupție” throughout the act is a one-page amendment that removes a pointless source of argument in cases where jurisdiction is contested.
- A position from the Prosecutor General on the question of mixed teams. An appeal in the interest of the law requires conflicting final judgments, and those already exist in the circuits of nine courts of appeal. A referral made now would cut years off the period in which the same facts receive opposite solutions.
- Publication, alongside the decision, of the full list of courts consulted. The text refers to the courts of appeal in footnotes and does not say which courts failed to answer. Without that information, the reader cannot tell whether the silence of six courts of appeal means that they have no such cases or merely that they expressed no view.
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. 757 of 7 September 2026 16 pages PDF, 118 KB the act starts on page 9
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