Compensation for judicial errors, unlawful detention and excessive length of criminal proceedings in Romania

• pre-trial detention – how you can be detained and what rights you have (RO);
• house arrest – conditions, duration, restrictions and differences compared to pre-trial detention (RO);
• how long a criminal case can last – from investigation to appeals (RO);
• discontinuance (classification) of the criminal investigation (RO)
  and waiver of criminal prosecution (Article 318 CPP) (RO)
  .

1. Legal framework: what does the law say about compensation for judicial errors and unlawful detention?

The right to compensation for the malfunctioning of criminal justice is built on several legal sources which complement
each other:

• the Constitution of Romania – Article 52 (3) enshrines the liability of the State for damage
  caused by judicial errors, and the person harmed has the right to reparation;
• the Code of Criminal Procedure – Title IV, Chapter VI (Articles 538–542) regulates the
  right to compensation for judicial error and the
  right to compensation in case of unlawful or unjust deprivation of liberty, as well as the relevant
  procedure and time-limits;
• Law no. 303/2022 on the status of judges and prosecutors – which sets, among others, the
  conditions in which the State may bring a recourse action against magistrates after having paid
  compensation for a judicial error or unlawful deprivation of liberty;
• the European Convention on Human Rights –
  
  Article 5 (5) ECHR
  
  provides that everyone who has been the victim of arrest or detention in contravention of Article 5 shall have
  an enforceable right to compensation, while
  
  Article 6 ECHR
  
  guarantees the right to a fair trial within a reasonable time.

In practice, you may have cases where both domestic law (Criminal Procedure Code, Constitution) and international law
(ECHR) support your claim for compensation. Often, the civil action for damages is based both on the provisions of the
Code of Criminal Procedure and on the fact that Romania has been found in violation of Article 5 or Article 6 ECHR in
your case or in similar cases.

2. Compensation for judicial error (wrongful conviction)

2.1. What is a “judicial error” under the Code of Criminal Procedure?

The concept of judicial error does not cover any conviction with which you disagree. From the perspective
of Article 538 of the Code of Criminal Procedure, judicial error refers to exceptional situations in which:

• you were definitively convicted in a criminal case; and
• later, the case was re-examined (following an extraordinary remedy – for example, a
  revision or as a consequence of an ECtHR judgment), and a final judgment of acquittal
  was delivered or the criminal proceedings were discontinued because one of the grounds under
  Article 16 (1) (a)–(d) CPP was found (the offence does not exist, is not provided by criminal law, was not committed
  by the person, or there is a lack of an element of the offence).

In such cases, the person who was wrongfully convicted has the right to full reparation of the damage,
both material (loss of income, expenses, lost opportunities) and moral (psychological suffering, social stigma, impact
on family life, etc.).

2.2. What must you prove to claim compensation for judicial error?

In practice, in order to claim judicial error under Article 538 CPP, several key conditions must be met:

• existence of a final conviction in the initial criminal proceedings;
• existence of a subsequent final judgment (following re-examination) by which:
  • you were acquitted, or
  • the criminal proceedings were discontinued for one of the grounds excluding criminal
    liability (for example, the act does not exist or is not provided by criminal law);
• existence of a causal link between the judicial error (wrongful conviction) and the damage you
  claim (material or moral);
• compliance with the 6-month time-limit for introducing the civil action, calculated as of the date
  when the acquittal or discontinuance judgment became final.

It is not enough to simply argue that you were “judged unfairly”. You need concrete documents
(court judgments, medical documents, evidence of job loss, lost contracts, witness statements, etc.) to prove both
the existence of the judicial error and the extent of the damage.

2.3. What compensation can you seek for judicial error?

The law refers to the full reparation of the damage, which means that, in principle, you can seek:

• material damages:
  • salaries or other income lost during the period when you were convicted and possibly deprived of liberty;
  • defence-related expenses (additional lawyer fees, expert reports, travel costs);
  • lost professional opportunities (for example, missed contracts or promotions);
• non-pecuniary (moral) damages:
  • psychological suffering caused by the conviction and deprivation of liberty;
  • impact on family life and social relationships;
  • social stigma and harm to your professional reputation.

The court assesses each case individually, taking into account the length of the wrongful conviction and
detention, the seriousness of the charge, the impact on your life, your age and
personal situation. There is no automatic “tariff”, but domestic case-law and ECtHR judgments provide benchmarks for the
amounts awarded in similar cases.

3. Compensation for unlawful or unjust deprivation of liberty (police custody, pre-trial detention, house arrest)

3.1. What does “unlawful or unjust deprivation of liberty” mean?

Article 539 CPP governs the right to compensation in case of unlawful or unjust deprivation of liberty.
This covers situations where you were:

• held in police custody for 24 hours;
• placed in pre-trial detention (remand in custody);
• placed under house arrest;
• subject to another custodial preventive measure.

To speak of an unlawful or unjust deprivation of liberty, there must be an official
finding (through a court judgment or, where applicable, a prosecutor’s order) that:

• the measure was imposed or maintained in breach of the law (for example, without the legal grounds
  required by Articles 202 et seq. CPP); or
• later, the case ended in discontinuance (classification) or acquittal on grounds
  showing that there was in fact no basis for deprivation of liberty (for example, it was found that the act did not
  exist or was not committed by the person concerned).

Moreover, ECtHR case-law stresses that it is not enough for the measure to be formally “lawful” under domestic law; it must
also be necessary and proportionate. If, in practice, pre-trial detention was used
excessively or without real reasons, or if the measure lasted too long, the Court may find a violation of Article 5 ECHR,
which additionally supports a claim for compensation.

3.2. Typical examples of unlawful or unjust deprivation of liberty

Without covering every possible scenario, a few common examples are:

• you were held in police custody for 24 hours, and it was later found that there were no reasonable suspicions you had
  committed the alleged offence;
• you were placed in pre-trial detention, and in the end you were acquitted because the act did not exist or was not
  committed by you;
• you were placed under house arrest, and later the case was discontinued because the act was not provided by criminal
  law or an element of the offence was missing;
• the Constitutional Court or the ECtHR found that the legal provisions under which you were deprived of liberty were
  unconstitutional or contrary to the Convention.

In all these cases, you may be entitled to claim compensation from the State, including for the psychological and social
impact of deprivation of liberty. For details on the conditions for imposing and maintaining preventive measures, see also
the article on

pre-trial detention

and the page on

criminal law services (RO)
.

3.3. What compensation can you seek for unlawful or unjust detention?

Here too, the principle of full reparation of the damage applies. You may claim:

• material damages – lost salaries, rent paid for an unused dwelling, lawyer fees, travel expenses,
  costs for childcare or other dependants, as long as you can prove the link with the deprivation of liberty;
• moral damages – humiliation, stress, psychological trauma, disruption of family relationships,
  loss of professional reputation, etc.

When assessing moral damages, courts usually consider:

• the duration of the deprivation of liberty;
• the detention conditions (overcrowding, lack of adequate medical care, etc.);
• the impact on your physical and mental health;
• the consequences for your professional and personal life.

4. Excessive length of criminal proceedings and compensation for breach of the “reasonable time” requirement

4.1. What does “excessive length” of a criminal trial mean?

Excessive length of criminal proceedings is a recurring issue in Romania and has led to numerous ECtHR
judgments finding a violation of Article 6 ECHR (the right to have one’s case heard within a reasonable time). There is no
fixed number of years or months in the law after which a case is automatically “too long”, but the Court and domestic
courts take into account several criteria:

• the complexity of the case (number of defendants, volume of evidence, nature of the offences);
• the conduct of the authorities (whether courts and prosecutors were diligent or, on the contrary, passive);
• the conduct of the parties (whether they caused unjustified adjournments or abused remedies);
• what is at stake for the person concerned (their liberty, professional reputation, family life, etc.).

For a detailed discussion of the usual time-frames of the investigation, trial at first instance and appeal, you can also
read the Romanian-language article:

“Cât durează soluționarea unui dosar penal?”
.

4.2. Domestic remedies for excessively long proceedings

Before going to the ECtHR, it is important to use the domestic remedies available to complain about the
excessive length of proceedings. Depending on the stage of the case and its nature, several mechanisms may exist:

• submitting reasoned motions to the prosecuting authority or to the court, requesting that
  the case be expedited (for example, completion of certain evidence, scheduling closer hearing dates);
• filing complaints to higher courts or to judicial inspection bodies about the delay in the case;
• in some situations, bringing civil actions for damages caused by excessive length, based on
  Article 6 ECHR and the State’s tort liability.

It is crucial to be able to show that you were active in your case (you filed motions, you challenged
unjustified adjournments), not merely that you “waited” passively for years without signalling the problem.

4.3. The link between excessive duration, acquittal/discontinuance and the right to compensation

Excessive length of proceedings can occur both in cases that end in acquittal or
discontinuance and in those that end in conviction. In practice, you may have:

• a case ending in acquittal or discontinuance – you may rely both on judicial error
  (if there was a previous conviction followed by acquittal) and on excessive length, especially if the case
  disrupted your life for many years;
• a case ending in conviction – even then, you may raise the issue of excessive duration if the trial
  took unreasonably long and caused you distinct moral damage (for example, you lived for years under the pressure of
  pending criminal proceedings while the authorities were largely inactive).

Even though domestic legislation does not yet contain an extremely detailed and uniform procedure for compensation solely
for excessive length, judicial practice is gradually aligning with ECtHR standards. In some situations, obtaining a
favourable judgment in Strasbourg (finding excessive length) is followed by a damages action before national courts.

5. The link between compensation, discontinuance and acquittal

5.1. Discontinuance (classification) and the right to compensation

Discontinuance of criminal investigation, regulated by Articles 315 et seq. CPP, means that the
prosecutor decides not to send the case to court and closes it. The reasons may differ (for example, the act does not
exist, is not provided by criminal law, an element of the offence is missing, the statute of limitations has expired,
etc.).

From the perspective of compensation for unlawful or unjust deprivation of liberty, the most relevant are the types of
discontinuance that correspond to the grounds preventing criminal prosecution set out in
Article 16 (1) (a)–(d) CPP. If the case is closed on such grounds and you were held in police custody
or detention, you can argue that there was in fact no serious basis for the custodial measure, which opens the way
to compensation.

For more detail on the effects of discontinuance on your case, see the article (in Romanian):

“Clasarea urmăririi penale: ce înseamnă, când se dispune și ce efecte are pentru dosarul tău penal”
.

5.2. Acquittal and compensation

An acquittal pronounced by a court may have several grounds (Article 16 CPP). From the standpoint of
compensation, particularly relevant are situations where the court finds that:

• the act does not exist;
• the act is not provided by criminal law;
• the act was not committed by the defendant;
• an element of the offence is missing.

In such cases, you can argue that you not only should not have been convicted, but often you should not have been
deprived of liberty at all, or at least that the deprivation lasted longer than strictly necessary. This supports a
claim for compensation both for judicial error (if there was a previous conviction) and for
unlawful or unjust deprivation of liberty.

5.3. What if the prosecutor decides to waive criminal prosecution?

Waiver of criminal prosecution, under Article 318 CPP, does not necessarily mean recognition of
innocence. The prosecutor assesses that there is no longer a sufficient public interest in continuing the criminal
proceedings (for example, the act is of low gravity, damage has been repaired, the suspect has good conduct, etc.).

Therefore, waiver of prosecution does not automatically amount to judicial error. However, if you were deprived of
liberty during the proceedings, it is still possible to examine, on a case-by-case basis, whether the measure was
necessary and proportionate. If not, you may still have arguments to claim unjust deprivation of liberty,
especially in light of ECtHR standards.

For more on waiver of prosecution and defence strategy in such situations, you can read the article (in Romanian):

“Renunțarea la urmărirea penală (art. 318 CPP): când ‘merită’ pentru procuror să nu ducă dosarul în instanță”
.

6. Practical procedure for obtaining compensation

6.1. Time-limit for bringing the action

Article 541 CPP sets a 6-month time-limit for bringing a civil action for damages,
which generally runs from the date when:

• the judgment of acquittal or discontinuance became final (in judicial error cases);
• the judgment or order finding the deprivation of liberty unlawful or unjust became final;
• the ECtHR judgment or another decision expressly recognising such a situation became final.

This 6-month period is in principle a limitation period of forfeiture (a strict time-limit), meaning
that if you exceed it you risk losing your right to bring the action. It is therefore important to consult a lawyer as
soon as possible after the relevant judgment becomes final.

6.2. Court with jurisdiction

Jurisdiction to hear an action for compensation for judicial error or unlawful/unjust deprivation of liberty rests
primarily with the tribunal. The Code of Criminal Procedure provides for alternative territorial
jurisdiction, so you may usually choose between:

• the tribunal of your domicile or that of the person entitled to compensation; or
• the tribunal in whose district the prosecutor’s office or the court is located which ordered
  the custodial measure or the wrongful conviction.

The choice of court may have practical implications (distance from your home, local court practice, length of
proceedings), and is therefore worth discussing in detail with your lawyer.

6.3. What must the statement of claim contain?

Besides the general elements of any civil statement of claim (identification of the parties, the object of the claim,
the factual and legal grounds), a claim for compensation should include, in particular:

• a detailed description of the facts – how you came to be in police custody/detention or to be
  convicted, how long the measure lasted, how the case ended;
• the legal grounds – the relevant articles of the Code of Criminal Procedure, the Constitution,
  the ECHR and any special legislation relied upon;
• enumeration of the losses claimed, with amounts (for material damages) and a description of the
  impact on your life (for moral damages);
• evidence – court judgments, orders, medical documents, contracts, payslips, witness statements,
  expert reports, etc.

In practice, the quality and strength of the evidence often make the difference between a case with real prospects of
success and one in which the claim is dismissed or only partially upheld.

7. The role of the lawyer in claims for compensation for judicial errors and custodial measures

These cases are structurally complex. They require an understanding of domestic legislation (Code of
Criminal Procedure, Constitution, Law no. 303/2022) and of ECtHR case-law, which often provides the
decisive benchmarks for the level of damages.

A lawyer with experience in criminal law and litigation against the State can help you in concrete ways, by:

• assessing the real chances of a damages claim (not every discontinuance or acquittal leads
  automatically to compensation);
• identifying the correct legal basis (judicial error, unlawful/unjust deprivation of liberty,
  excessive length of proceedings, or a combination thereof);
• building a strong evidentiary file – including by requesting additional documents, expert reports
  or witness statements;
• representing you before the tribunal and, where necessary, on appeal;
• coordinating any potential application to the ECtHR, as a complement to the domestic action.

If you have been through a criminal case in which you felt wronged or your liberty was affected, you can discuss all
these aspects in a dedicated legal consultation. More information about the law firm’s criminal law services is available
(in Romanian) on the page:

Criminal law services – Măglaș Alexandru
.

8. Conclusions: when does it make sense to pursue a claim for compensation?

Not every dissatisfaction with how a criminal case was handled automatically translates into a right to
compensation. For the action to have realistic prospects, several key elements should be present:

• there is a final judgment or official decision recognising the judicial error or the
  unlawful/unjust deprivation of liberty;
• you can prove a concrete loss (material or moral);
• there is a clear causal link between the judicial error/unlawful detention or excessive length
  and the damage;
• you comply with the relevant time-limits and procedure laid down in the Code of Criminal
  Procedure;
• you are prepared for a complex civil trial in which the State will normally mount a well-structured defence.

On the other hand, when these conditions are met, a compensation claim can be not only a way to obtain financial
reparation for your suffering, but also an important form of official recognition that the justice
system has wronged you. In the long term, such claims also contribute to improving the system, by
encouraging better safeguards and a more careful use of coercive criminal law measures.