In a false declaration case, the preliminary chamber judge annulled the very act by which the investigating bodies had opened the inquiry. Not the indictment, but the ex officio referral report from which the whole investigation began. The consequence: the attached evidence was physically excluded, the indictment was annulled, and the case was returned to the prosecutor by a final decision.
The applications and objections underpinning this outcome were devised by our practice.
What the court granted
Following the applications and objections raised by the defence, the court ordered:
- annulment of the ex officio referral report and its removal from the investigation file;
- physical exclusion of the documents taken from another file without a delegation order;
- exclusion of the indictment taken from that file, with a finding that this item of evidence was absolutely void;
- annulment of the report drawn up on the same day as the indictment;
- a finding that the indictment was irregular, followed by its annulment;
- the final return of the case to the prosecutor.
Why annulling the referral act is rare
This is what makes the case worth reporting, and it needs explaining before the facts.
Art. 342 of the Romanian Criminal Procedure Code confines the preliminary chamber to four questions: the jurisdiction of the court, the lawfulness of the referral to the court, the lawfulness of how evidence was taken, and the lawfulness of acts performed by the criminal investigation bodies.
An ex officio referral report does not fit comfortably into any of them. It is not the act referring the matter to the court, which is the indictment. And if it is viewed as the act that opens the investigation, it can be argued that it precedes the investigation and is therefore not an act performed within it.
On that reasoning, many courts dismiss such objections at the outset, holding that the act by which the investigating bodies open an inquiry falls outside preliminary chamber review. The case law is not settled: there are rulings finding all investigative acts void, including the referral act itself.
This case belongs to the second line. The argument that made the difference was not formal. It was the demonstration that the ex officio referral had been used to bypass a procedure the law required.
What the preliminary chamber actually checks
The preliminary chamber does not decide guilt. It is the only stage at which unlawfully obtained evidence can be removed from the file before the trial judge reads it. Once this stage closes, almost nothing settled there can be reopened.
In a case where the investigation has structural problems, the preliminary chamber is therefore not a formality. It is where it is decided whether a trial exists at all.
The charge: two asset declarations
A person was indicted for two counts of false declaration under art. 28 of Law no. 176/2010 read with art. 326 (1) of the Criminal Code. The subject matter was two asset declarations.
To support intent, the prosecution did not confine itself to the content of those declarations. It tied them to an entirely separate criminal file concerning another person investigated for bribery. From that file, the indictment and more than a hundred pages were copied, attached to the ex officio referral report and brought into the new case.
That is where the problem began.
The referral and the rules on competence
The investigation in the original file had already been completed by the prosecutor, who had referred that case to trial without initiating an investigation into false declarations. The police officers subsequently copied documents from the file and drew up an ex officio referral report concerning false declarations.
The defence challenged the lawfulness of this procedure. The documents came from an investigation conducted by the prosecutor, but they had been copied and transmitted by police officers without a prosecutor’s delegation order.
The issue was therefore not a new offence discovered during an ongoing investigation, but compliance with the rules on competence and with the conditions for obtaining and using documents from an investigation that had already been completed.
The judge found the referral report relatively void, annulled it and removed it from the investigation file.
Evidence does not move between files without a delegation order
A bribery investigation must be conducted by the prosecutor personally. Judicial police officers may carry out acts only under a delegation ordered by the prosecutor, within the limits he sets.
The defence requested verification of whether such a delegation existed. At our request, the court asked the prosecutor's office that had handled the original file to confirm whether an order had been issued delegating judicial police officers to copy and transmit the documents from that file. The prosecutor's office replied that no such order had been identified.
The judge found the documents unlawful and excluded them. Two points from the ruling deserve attention, because they apply well beyond this case.
First. The fact that some documents were not separately listed in the evidence section of the indictment did not deprive them of evidential character. They were in the file, they bore directly on the charge, and they could influence the court's analysis.
Second. Re-taking the same information later, through other evidentiary means, did not cure the unlawfulness of how it had originally been obtained. Exclusion had to be effective, through physical removal of the documents from the file, in line with Constitutional Court Decision no. 22/2018.
An indictment from another file, used without its full context
The problem did not stop at the missing delegation. The indictment taken from the other person's case had been used to construct intent, but without disclosing the essential circumstances.
The defence showed, and the judge accepted, that this indictment had itself been found irregular in preliminary chamber proceedings and the case returned to the prosecutor. Moreover, an earlier order had lifted the precautionary seizure, and sums exceeding the limits of the offence under investigation had been returned. No other assets of unlawful origin had been identified.
Using that document without these elements produced an incomplete and prejudicial picture. By reference to art. 101 of the Criminal Procedure Code and the principle of fairness in taking evidence, the judge found this item of evidence absolutely void and excluded it.
The distinction matters: the referral report and the indictment itself were found relatively void, which requires proof of prejudice. The evidence obtained in breach of the fairness principle was absolutely void.
A chronology that contradicted the charge
The indictment claimed the asset declarations had been intended to conceal assets derived from the other person's criminal activity. The dates said otherwise: one of the declarations had been filed before the date on which the bribery offence was said to have been committed.
Further, the offence under art. 28 of Law no. 176/2010 requires intent, but not the ulterior purpose described in the indictment. By introducing the idea of concealing unlawful origin, the charge went beyond false declaration and moved towards elements characteristic of money laundering.
The defendant was placed in an impossible position: was she to defend only against two counts of false declaration, or also against conduct factually described as concealing proceeds of crime?
The judge found that the defects in describing the volitional element created confusion as to the content and scope of the charge. The indictment did not meet the clarity requirements of art. 328 (1) of the Criminal Procedure Code and impaired the right to be informed and to prepare a defence.
An indictment signed by a different prosecutor
The investigation had been supervised by a prosecutor who issued its essential acts. The indictment, however, was drafted and signed by another.
The defence requested verification of the legal basis on which the case had been transferred from the prosecutor who handled it to the prosecutor who drafted the indictment. At our request, the court asked the prosecutor's office to provide the documents relied on for that change.
The response showed that the measure had been based on an internal order concerning the efficient organisation of work. The court held, however, that such an administrative order could not extend the exhaustive cases then set out in art. 64 (4) of Law no. 304/2004 for transferring a file from one prosecutor to another. Moreover, the same order stated that files already allocated were to be resolved according to the original allocation.
The prejudice was not abstract. The first prosecutor had relied on the evidence taken in the false declaration case and had avoided any association with the other person's criminal situation. The author of the indictment took a different approach and introduced precisely that link, using the evidence unlawfully imported from the other file.
The judge found the indictment relatively void and annulled it, together with the report drawn up the same day.
The prosecution's appeal changed nothing on the merits
The prosecution appealed. The tribunal set the ruling aside in part, but only because the procedure under art. 345 (3) of the Criminal Procedure Code had not been followed: communication of the ruling to the prosecutor, a five day period to remedy, and a statement on whether the indictment was maintained.
The tribunal expressly held that the rehearing was confined to that step and that all acts previously performed by the preliminary chamber judge remained validly carried out. The annulment of the referral, the exclusion of evidence and the voidness of the indictment therefore stood.
What cannot be repaired in five days
After the rehearing, the ruling was communicated to the prosecutor. The reply was unusually direct: the prosecution stated that the irregularities could not be remedied within the five day period, yet formally maintained the indictment and asked for the trial to begin.
The judge found that this resolved nothing. The act at the origin of the investigation had been annulled, the attached evidence excluded, the description of the charge remained ambiguous, and the indictment had been annulled.
This was not a clerical error correctable in a few lines. Remedying it would have meant redrafting the referral act and revisiting investigative acts already sanctioned. Without a valid indictment, the court could not establish the object and limits of the trial.
Under art. 346 (3) (a) of the Criminal Procedure Code, the case was returned to the prosecutor.
The final outcome
The prosecution appealed again. The tribunal dismissed the appeal as unfounded.
It held that the voidness of the indictment amounted, in substance, to returning the case so that the referral act could be redone. In that context, formally maintaining the indictment without remedying the irregularities was an empty gesture.
It further held that the arguments by which the prosecution sought to reopen the findings of unlawfulness could no longer be examined, those findings having acquired res judicata force through the earlier appellate ruling.
The return of the case to the prosecutor became final.
What this case shows
The lawfulness of the referral is not a formality. The rules on competence must also be observed when documents from another criminal file are used. In this case, the prosecutor had already completed the original investigation. The police subsequently took documents from that file and drew up an ex officio referral report without a prosecutor’s delegation order.
Evidence does not circulate freely between files. Transfer requires a legal basis, jurisdiction and, where the law demands it, a delegation order. Its absence is not a mere formal defect.
A document used as evidence must be presented in full. An indictment from another file, relied on without disclosing that it had itself been found irregular, breaches the fairness principle in taking evidence.
The charge must be clear. Where the description of the facts introduces elements of a different offence, the defendant no longer knows what to answer. That is a defence rights problem, not a drafting preference.
Not everything irregular can be repaired. The five day period under art. 345 (3) is designed for discrete defects. Where the flaws reach the structure of the charge, remedy becomes impossible and return to the prosecutor is the only outcome.
What happens after the case is returned
Return is not an acquittal and does not definitively close the investigation. The file goes back to the prosecutor, who may redo the investigation within the limits of what remains valid, may close the case, or may issue a fresh indictment.
In practice, however, where the central evidence has been physically excluded and the referral act annulled, what is left to rebuild is often insufficient. Meanwhile the limitation period continues to run.
Related situations
The question of which body may lawfully take evidence recurs constantly. It is dealt with on the page about DIICOT proceedings, where Constitutional Court Decision no. 26/2019 treats the execution of technical surveillance warrants by persons lacking jurisdiction as absolutely void, and on the page about DNA proceedings, where Decision no. 302/2017 addresses lack of material and personal jurisdiction of the investigating body.
The same logic produced results in an influence peddling case, where findings of voidness likewise turned on the jurisdiction of the body that had carried out the acts. That reasoning is set out at length in the article on the final acquittal in a flagrante delicto case. The common thread is simple: the body taking evidence must be the one designated by law, and that is verified in the preliminary chamber, not later.
For anyone at the start of a case, the overview of Romanian criminal procedure sets out the stages and the deadlines that matter.
The preliminary chamber.
In the case presented, the preliminary chamber judge upheld this objection and annulled the ex officio referral report. The defence challenged compliance with the rules on competence and the way documents had been obtained from another investigation that the prosecutor had already completed. The admissibility and merits of such an objection must be assessed in relation to the acts and procedural context of the particular case.
It is the stage between indictment and trial, in which a judge checks the lawfulness of the referral, jurisdiction, and the lawfulness of the evidence and of the investigative acts. Guilt is not discussed. It commonly runs from several months to over a year, depending on complexity and on any appeals.
The four categories under art. 342 of the Romanian Criminal Procedure Code: jurisdiction of the court, lawfulness of the referral, lawfulness of how evidence was taken, and lawfulness of the acts performed by the investigating bodies. The judge sets the deadline, which cannot be shorter than 20 days from communication of the indictment. Under High Court Decision no. 14/2018 it is a recommended, not a preclusive, deadline.
It means the file goes back to the prosecutor because the referral act cannot produce effects. It is ordered, among other situations, where irregularities in the indictment have not been remedied within the period under art. 345 (3). It is not an acquittal: the investigation may continue, within the limits of what remains valid in the file.
Yes. Under Constitutional Court Decision no. 22/2018, exclusion must be effective, through physical removal of the evidence from the file, not merely by noting it as excluded. The purpose is that the trial judge never sees it.
Only if the rules on jurisdiction and procedure are observed. Where the law requires the prosecutor to conduct the investigation personally, judicial police officers may act only under a delegation order. Its absence renders the resulting documents unlawful and leads to their exclusion.
Because transferring a file from one prosecutor to another is possible only in the cases set out by statute. An internal administrative order cannot extend those cases. If the change caused concrete prejudice, for instance a different approach to the charge, the act may be found relatively void.
Preliminary chamber proceedings are largely written and are conducted in chambers. A lawyer holding a mandate can represent you, and your presence is generally not required. The deadlines, however, are short and several objections are time-barred to this stage, so instructing counsel early matters more here than at any later point.