Contestation of Enforcement in Criminal Matters: What Can Still Be Changed After the Judgment Becomes Final

1. What is the contestation of enforcement in criminal matters

The contestation of enforcement is a special procedural remedy that belongs to the enforcement phase of criminal judgments and allows the court to correct or clarify the way a final judgment is put into effect.

Legal doctrine emphasizes that this contestation:

• is not an ordinary or extraordinary remedy (such as appeal, revision or recourse in cassation);
• does not allow modification of the essential provisions of the final judgment (for example, changing the legal classification or reassessing guilt);
• targets only the illegality or inaccuracy of enforcement of the judgment or the occurrence of subsequent causes that affect enforcement (amnesty, pardon, limitation, more favourable criminal law etc.).

In a comprehensive study devoted to the institution, Mihai Olariu describes the contestation of enforcement as a “judicial procedure for resolving petitions or complaints caused by the enforcement of criminal judgments”, stressing that through this remedy no evidence may be administered in order to reopen issues already settled with res judicata by the conviction judgment (Acta Universitatis George Bacovia, 2016).

2. Situations where the contestation of enforcement is useful

The situations in which a contestation of enforcement can be used are listed in Article 598 of the Code of Criminal Procedure:

1. when a judgment that was not final has been enforced;
2. when the enforcement is directed against a person other than the one mentioned in the judgment;
3. when a clarification is needed regarding the judgment being enforced or there is an impediment to enforcement;
4. when amnesty, limitation, pardon or any other cause of extinguishing or reducing the sentence is invoked.

2.1. Non-final judgment enforced (Article 598 para. (1)(a))

As a rule, a criminal judgment is enforced only after it has become final, under the conditions laid down by Article 551 of the Code of Criminal Procedure. An exception is made for judgments declared enforceable by law even if they are not final.

In practice, letter (a) becomes relevant when, by mistake, enforcement is started in respect of a judgment:

• for which the time limit for appeal or contestation is still running;
• for which a remedy has been declared and not yet decided;
• which has been wrongly considered final by the enforcement authority.

In such situations, the contestation of enforcement allows the court to find that the judgment was not final, to annul the enforcement documents issued and to correct the prejudice suffered by the person concerned (for example, an unlawful deprivation of liberty).

2.2. Enforcement directed against another person (Article 598 para. (1)(b))

This ground covers the – relatively rare but serious – situation in which the enforcement warrant or other measures are applied to a person other than the one convicted in the judgment. Doctrine frequently gives examples such as:

• confusion between persons with identical or similar names;
• errors in identification data leading to the arrest or imprisonment of a different person;
• enforcement documents mistakenly sent to authorities regarding another person.

In such cases, the contestation of enforcement is the mechanism allowing the court to promptly remove the error, annul enforcement against the wrongly targeted person and, where appropriate, order their release and issue fresh documents against the correct person.

2.3. Clarifications regarding the judgment or impediments to enforcement (Article 598 para. (1)(c))

Letter (c) covers situations where the operative part of the judgment is unclear or where practical difficulties arise in its enforcement, without there being a substantive error in the judgment. Typical examples in case-law and doctrine include:

• the judgment does not clearly indicate the period to be deducted from the sentence (pre-trial detention, previous preventive measures, periods served in another state etc.);
• the confiscation order is drafted too generally (for example: “the goods used are confiscated” without specifying them);
• objective obstacles to enforcement arise (for example, material impossibility to enforce in a specific form).

In a case presented on BihorJust, the High Court analysed the limits within which such clarifications can be made, stressing that the contestation of enforcement cannot, under the guise of a “clarification”, change the outcome of the conviction; it can only concern the manner in which the judgment is enforced.

2.4. Amnesty, limitation, pardon and other grounds for extinguishing or reducing the sentence (Article 598 para. (1)(d))

This is probably the most common and practically relevant situation. The text allows the following to be invoked by way of contestation of enforcement:

• amnesty – a special law that removes criminal liability for certain acts;
• limitation of enforcement – when the legal time limit within which the sentence may be enforced has expired;
• pardon – individual or collective, total or partial;
• any other cause of extinguishing or reducing the sentence (for example, a subsequent more favourable criminal law).

Doctrine expressly explains that:

• decriminalisation of an act by a new law is a ground for extinguishing the sentence and may be invoked by way of contestation of enforcement;
• a more favourable criminal law that enters into force after the judgment becomes final (for example, a reduction in the sentencing ranges) is a ground for reducing the sentence and can be relied on through a contestation of enforcement, applying the rules in Articles 5–6 of the Criminal Code.

In practice, numerous contestations of enforcement have been based on decisions of the Constitutional Court or legislative amendments that reduced penalties or changed enforcement conditions, for example:

• contestations seeking the application of the more favourable criminal law to sentences that had already become final;
• contestations based on Decision no. 368/2017 of the Constitutional Court, invoked as a ground for reducing the sentence.

2.5. Contestation of enforcement even after the sentence has been served

Although in practice the contestation is usually filed while the sentence is being served, doctrine expressly states that it may also target incidents arising after enforcement of the final judgment, but related to it. Typical situations include:

• a subsequent law decriminalises the act and the person wishes all criminal consequences removed;
• after enforcement it is found that certain measures or consequences (e.g. bans, incapacities) no longer have any legal basis;
• a decision of the Constitutional Court or of the European Court of Human Rights requires recalibrating the effects of the judgment.

In such cases, the contestation of enforcement becomes the mechanism through which the effects of the judgment are brought into line with the new legal framework or with the decisions of constitutional or international courts.

3. Who can file the contestation and which court is competent

3.1. Who has standing to file the contestation

The Code of Criminal Procedure does not provide an exhaustive list of persons entitled to file a contestation of enforcement, but statutory provisions and practice show that it can be filed by:

• the convicted person – obviously, the main party interested in how the sentence is enforced;
• the prosecutor – in order to ensure the legality of enforcement (for example, when a non-final judgment is being enforced);
• the civil party or injured person, especially with regard to the civil aspects of the judgment;
• other interested persons, if directly affected by the manner of enforcement (for example, persons targeted by confiscation).

Practical articles such as “Contestation of enforcement of the criminal sentence imposed by the conviction judgment” or the analysis by Ionaș Mihaela confirm that in practice the main parties are the convicted person and the prosecutor, but other parties may also have standing.

3.2. Court of enforcement and competent court

The notion of court of enforcement is defined in Article 553 of the Code of Criminal Procedure:

• as a rule, enforcement rests with the court of first instance that tried the merits;
• if the judgment was delivered at first instance by the High Court of Cassation and Justice, enforcement is carried out by the Bucharest Tribunal or the military tribunal, as appropriate.

As regards the contestation of enforcement:

• for the situations listed in Article 598 para. (1)(a), (b) and (d), the contestation is filed with the court of enforcement or, if the person is deprived of liberty, with the court of the same rank in the district of the place of detention;
• for letter (c) (uncertainty regarding the judgment being enforced or an impediment to enforcement), jurisdiction lies with the court that delivered the judgment; if the uncertainty concerns a provision of a judgment pronounced on appeal or recourse in cassation, it is settled by the court of appeal or by the High Court, respectively.

This scheme follows from Article 598 para. (2) of the Code of Criminal Procedure and is detailed both in doctrine and in analytical pieces such as “Contestation of enforcement in criminal proceedings. Jurisdiction and procedural aspects”.

3.3. The court of the place of detention

In recent practice, an important role is played by the court in whose district the place of detention is located, where the convicted person is effectively serving the sentence. A recourse in the interest of the law (RIL no. 15/2018) clarified that applications filed during the enforcement of the sentence by convicted persons are to be decided by the court of the place of detention – a criterion reflected in practical articles such as “Contestation of enforcement in criminal matters”.

4. Time limits in matters of contestation of enforcement

4.1. Is there a time limit for filing a contestation of enforcement in criminal matters?

Unlike the contestation of enforcement in civil matters (where Article 715 of the Code of Civil Procedure lays down a general 15-day time limit), the contestation of enforcement in criminal matters has no general statutory time limit for filing (of the type “x days from notification”).

Criminal procedural doctrine explains that this procedural remedy can be used for incidents occurring:

• before enforcement (for example, checking whether the judgment is indeed final);
• while the sentence or other measures are being enforced;
• even after enforcement of the final judgment, if the incident relates to that judgment (for example, decriminalisation, more favourable criminal law etc.).

Consequently, as a rule, a contestation of enforcement in criminal matters is possible as long as the judgment continues to produce legal effects (the sentence is enforced or continues to have consequences).

4.2. Time limit for the remedy against the judgment delivered in enforcement matters

Although there is no general limitation period for filing the contestation of enforcement itself, judgments delivered in enforcement matters may in turn be challenged. Article 597 of the Code of Criminal Procedure provides that:

• judgments of the first-instance court in enforcement matters may be challenged by contestation to the hierarchically superior court;
• the time limit for lodging this contestation is three days from service of the judgment.

This time limit is confirmed both in doctrine (for example in the study by Mihai Olariu mentioned above) and in practice-oriented articles such as:

• “Contestation of enforcement against the criminal judgment”;
• “Contestation of enforcement in criminal matters”.

If you miss the three-day time limit, you generally lose the right to challenge the judgment delivered on the contestation of enforcement, and that judgment becomes final.

4.3. Special time limits (historical example)

There are also historical or specific situations where the law has laid down special time limits for applications seeking the application of the more favourable criminal law after the new Criminal Code came into force (for example, the six-month time limit in Article 23 of Law no. 255/2013). After these special time limits expired, such applications have been dealt with under the ordinary procedure of contestation of enforcement.

5. How the contestation procedure works

5.1. Drafting and filing the application

In practice, a contestation of enforcement is filed by means of a written application which should indicate:

• the competent court (court of enforcement, court of the place of detention or court that delivered the judgment, as appropriate);
• identification data of the person filing the contestation;
• the judgment whose enforcement is being challenged (number, court, date);
• the legal basis (the relevant letter of Article 598 para. (1));
• a concrete description of the facts and legal grounds (for example: calculation error, intervening amnesty, more favourable criminal law, limitation of enforcement etc.);
• the evidence relied on (judgments, Constitutional Court decisions, documents from the case file, enforcement records etc.);
• the specific relief sought (annulment of enforcement documents, recalculation of the sentence, declaration that enforcement has ceased etc.).

5.2. Summoning the parties and participation of the convicted person

The procedure follows the general rules in Article 597 of the Code of Criminal Procedure:

• the presiding judge orders summoning of the interested parties (convicted person, prosecutor, civil party etc.);
• in the cases under Article 90 of the Code of Criminal Procedure, a duty lawyer is appointed;
• a convicted person in detention or in an educational centre is usually brought to the hearing or may participate by videoconference, with their consent.

The prosecutor’s participation is mandatory, given the role of the prosecution service in ensuring compliance with the law during the enforcement phase.

5.3. Hearing and admissible evidence

The court hears the parties’ submissions and may take evidence, but subject to an essential limitation: no evidence may be taken to reopen issues already finally decided by the judgment (guilt, legal classification, individualisation of the sentence).

Admissible evidence will concern:

• the existence of a new cause for extinguishing or reducing the sentence (amnesty, pardon, new law etc.);
• calculation errors in the sentence or material mistakes in the enforcement documents;
• practical impediments to enforcement or uncertainties regarding the content of the operative part;
• the identity of the person against whom the judgment is enforced.

5.4. Court decisions

After the hearing, the court delivers a judgment by which it may:

• dismiss the contestation, as unfounded or inadmissible; or
• allow the contestation, in which case it may:
  • annul or amend the incorrect enforcement documents (warrants, orders, confiscation measures etc.);
  • recalculate the sentence (for example, by correctly deducting periods already served);
  • establish that a cause for extinguishing the sentence has intervened and order cessation of enforcement and release;
  • establish that a cause for reducing the sentence exists and reduce the remaining portion to be served.

In case of allowance, Article 599 para. (4) of the Code of Criminal Procedure expressly provides that there must be a new enforcement of the judgment, in the form resulting after the contestation has been decided.

Case-law such as “Contestation of enforcement allowed – Article 598 letter d of the Code of Criminal Procedure” illustrates how courts effectively reduce the remaining portion of the sentence after establishing a cause for its reduction.

6. Effects of the contestation of enforcement

6.1. Effects where the contestation is allowed

Allowing the contestation of enforcement may have very concrete consequences for the convicted person:

• cessation of enforcement of the sentence and release, if amnesty, limitation, total pardon or decriminalisation of the act is found;
• reduction of the length of the sentence, for example through application of a more favourable criminal law or correction of a calculation error;
• removal of accessory or additional consequences, where they no longer have any legal basis;
• correction of identity errors, leading to annulment of enforcement documents against the wrongly targeted person.

6.2. Effects where the contestation is dismissed

If the contestation is dismissed:

• enforcement of the judgment continues in its original form;
• the convicted person may challenge the dismissal by contestation (within three days from service);
• if no new cause (facts or legal norms) arises, any new contestation based on the same grounds will generally be inadmissible.

Article 599 para. (5) of the Code of Criminal Procedure provides that subsequent applications for contestation of enforcement are inadmissible where there is identity of person, legal basis, grounds and defences with a previous contestation already decided. This does not exclude a new contestation based on a different legal ground (for example, a new Constitutional Court decision or a new law).

7. Relationship between the contestation of enforcement and other remedies

The contestation of enforcement is often confused with other procedural mechanisms. It is important to distinguish it clearly from:

• appeal – an ordinary remedy against non-final judgments, by which the case is reheard on the merits;
• contestation in annulment – an extraordinary remedy that targets certain procedural flaws in the final judgment;
• revision – an extraordinary remedy that allows re-examination of the merits on the basis of new facts or evidence;
• recourse in cassation – an extraordinary remedy aimed at correcting fundamental errors of law.

The contestation of enforcement:

• does not change the conviction (it does not transform a conviction into an acquittal);
• does not modify the legal classification (for example from aggravated theft to simple theft);
• is not intended to review the legality or soundness of the judgment itself, but only of its enforcement.

In this sense, specialist articles explain that even errors such as a wrong finding of recidivism cannot be remedied by contestation of enforcement, but only through extraordinary remedies (Ionaș Mihaela).

8. Practical tips: how to approach a contestation of enforcement

Although in theory a contestation of enforcement can be filed directly by the convicted person, in practice it is advisable to prepare it together with a lawyer specialised in criminal law and enforcement of criminal judgments.

8.1. Check whether the problem concerns enforcement or the conviction judgment

The first step is to identify whether the problem:

• concerns the way in which the judgment is enforced (wrong calculation, identity, uncertainty, new law etc.); or
• concerns what the court decided on the merits (for example, assessment of evidence, legal classification).

Only the first category can be resolved through a contestation of enforcement. For the rest, one needs to consider extraordinary remedies or other mechanisms (complaints, petitions to the prosecutor etc.).

8.2. Gather all relevant documents

Before filing the contestation, it is important to collect:

• copies of the criminal judgments (first instance, appeal, any recourse/contestation);
• the sentence calculation sheet and any enforcement documents (warrants, orders, records);
• documents supporting the new cause (Constitutional Court decisions, legislative amendments, medical documents etc.).

8.3. Choose the correct court

Choosing the wrong court may lead to delays or even dismissal of the application. Together with your lawyer, check:

• whether the court of enforcement (first-instance court) or the court of the place of detention is competent;
• whether, for clarifications, you must address the court that delivered the judgment (or the court of appeal / High Court).

8.4. Do not delay unnecessarily

Even though there is no general limitation period for filing a contestation of enforcement, it is advisable to raise issues as soon as possible after they are discovered, in order to limit negative consequences (for example, serving a sentence longer than the lawful one).

9. Frequently Asked Questions (FAQ)