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Irregularities of the Indictment in the Preliminary Chamber: a Practical Guide for Defence Counsel (Motions, Objections, Strategy)

This practitioner’s guide systematises the main categories of indictment defects that can be raised in the Romanian preliminary chamber procedure, from vagueness of charges to misframed legal qualification. It then details how to structure objections, manage deadlines, build records for appeal and use procedural sanctions to reshape the future trial.

Overview

The Romanian preliminary chamber (camera preliminară) is the legal filter of the criminal trial. Before any examination on the merits, the court verifies whether the case was validly brought to trial, whether the indictment (rechizitoriu, the act of referral) is regular, and whether the evidence collected during the investigation complies with the law. If the indictment suffers from irregularities, the judge may order the prosecutor to remedy them within a short deadline or, where the defect is structural, return the case to the prosecution. For defence lawyers, mastering this phase means identifying irregularities early, formulating targeted motions and objections, and timing each procedural step so that the client enters the trial on a clear, lawful record.

This article offers a hands-on framework: (i) the legal basis and latest contours of the procedure; (ii) what typically counts as an “irregularity” of the indictment; (iii) checklists for reviewing the file; (iv) how to plead motions and objections; (v) realistic outcomes and appeal routes; and (vi) model snippets you can adapt in practice. Key statutory anchors are Arts. 342–347 of the Code of Criminal Procedure (CPC). (Sintact)

1) Legal Architecture of the Preliminary Chamber

1.1. Purpose (Art. 342 CPC)

The preliminary chamber examines, after referral to trial, (a) the competence and the legality of the court’s seizure (valid referral), and (b) the legality of evidence and of acts carried out by the investigative bodies. This is not a merits review; it is a legality and regularity audit with concrete consequences for the later trial. (Sintact)

1.2. Procedural flow (Arts. 344–345 CPC, practice note)

Once the case is randomly assigned, the defendant is served with the indictment and informed of the object of the procedure and the term for written motions and objections. At the date set under Art. 344(4), the judge rules—usually in chambers—on the defence’s submissions and on any issues raised ex officio. Where irregularities are found, the judge notifies the prosecutor to remedy them. The prosecutor must respond within 5 days—either curing the defects and maintaining the referral, or indicating that the case should be returned. (Lege 5)

1.3. Outcomes (Art. 346 CPC)

At the end of the stage the judge can:

  • open the trial on the merits if the referral and evidence pass legality control;
  • exclude evidence obtained unlawfully;
  • return the case if (i) the indictment was drawn up by an incompetent prosecutor or is irregular and the defect prevents establishing the object or limits of the trial and was not remedied in time, or (ii) all investigation evidence was excluded. (Sintact)

1.4. Appeal (Art. 347 CPC)

The order of the preliminary chamber is appealable within 3 days from communication by the prosecutor, the parties and the injured person. The Constitutional Court has confirmed the architecture and purpose of this short, legality-focused appeal. (Sintact)

2) What Counts as an “Irregularity” of the Indictment?

In practical terms, irregularity means a defect that prevents a clear, predictable object of trial and impairs the right to defence. Typical patterns:

  • Insufficient or ambiguous description of facts: missing time/place/manner; confusion between co-participants; failure to articulate the causal link or the protected social value; the mental element is left unexplained.
  • Erroneous or wavering legal classification: the legal label does not fit the described factual conduct; aggravating/attenuating circumstances invoked without legal basis.
  • Missing probative correlation: evidence cited in bulk (“the file”) with no mapping between each alleged fact and the piece of evidence that supports it.
  • Internal inconsistencies: contradictions between the factual narrative and the legal conclusion; incompatible statements across sections of the indictment.
  • Competence/session issues: the act is signed by a prosecutor lacking subject-matter or personal competence, or referral is otherwise vitiated—both scenarios are expressly covered by Art. 346 CPC. (Sintact)

Why it matters: if the judge finds irregularities, the prosecutor must cure them within 5 days. Failure or impossibility to cure triggers returning the case. The Constitutional Court has clarified that the 5-day window covers the entire remedial workflow, including hierarchical confirmation where legally required. (Sintact)

3) Defence Timelines and Deliverables

  1. Service of the indictment → mark the date, open a workstream for motions/objections, and plan any notes you want the court to have well before the hearing set under Art. 344(4).
  2. Written submissions → file precise, numbered motions identifying each defect, its legal effect, and the relief sought (cure vs. exclusion vs. return). Attach an annex table mapping “Defect → Evidence/File page → Legal basis → Requested remedy.”
  3. Hearing date → be ready to argue succinctly; prioritise the highest-impact defects to avoid “signal-to-noise” problems.
  4. Post-order → if the judge has notified the prosecution to remedy, calendar the 5-day statutory window; request the court file after the prosecutor’s reply to check what was actually fixed.
  5. Appeal (3 days) → prepare a template notice of appeal and a skeletal ground outline in advance, because the time limit is short. (Sintact)

4) Reviewing the Indictment: a Structured Checklist

4.1. Factual matrix

  • Actus reus: who did what, where, when, how; tools used; sequence of acts; result and causal link.
  • Participants: co-perpetration vs. instigation vs. complicity, with allocations that make sense across the narrative.
  • Mens rea: intentionality (direct/indirect), negligence (with/without foresight), purpose where typicity requires it.

4.2. Legal classification

  • Match elements of the offence with the narrative; avoid “over-labelling” (multiple overlapping offences without justification).
  • Clarify any norms of reference or concurrence.
  • Explain aggravating/attenuating circumstances beyond mere labels.

4.3. Evidence

  • Map each alleged fact to a specific evidentiary item; avoid generic references.
  • Audit legality: authorisations, duration, object, territorial/personal competence, chain of custody, defence rights.
  • Flag classic high-risk items (interceptions, searches, seizures, surveillance) for strict legality review.

4.4. Competence and referral

  • Confirm the issuing prosecutor’s competence (subject-matter and, if relevant, personal).
  • Check formalities of referral and communication to the defendant; in cases with mandatory defence, the timetable is adjusted to ensure effective assistance. (Sintact)

5) Motions and Objections: How to Plead Them

5.1. Motion to note irregularities of the act of referral (Art. 345 CPC)

Objective: establish that the indictment’s defects prevent a fair and predictable trial.
Relief: (i) the court records the irregularities and notifies the prosecutor to cure them within 5 days; subsidiarily, if the defect is structural and cure is impossible or not performed, return the case under Art. 346. (Sintact)

Suggested structure:

  1. Legal grounds: Arts. 342, 345–346 CPC.
  2. Numbered defects with file citations and legal impact (e.g., inability to define the object/limits of trial).
  3. Rights impact: unpredictability, inability to prepare defence, chilling effect on strategy.
  4. Prayer for relief: cure in 5 days / return.

5.2. Objection to the legality of evidence

Objective: exclude unlawfully obtained or used evidence (and any “fruit of the poisonous tree”).
Relief: exclusion; where exclusion empties the case, return becomes the natural corollary. Common grounds include: lack of competence, defective authorisation, over-broad scope, expired duration, and breaches of privileged communications. (Sintact)

5.3. Nulities: absolute vs. relative

Absolute nulities can be raised until the close of the preliminary chamber and even in appeal, depending on their nature; relative nulities must respect the statutory windows and prejudice logic. Practically: raise everything germane to Arts. 342–346 within the preliminary chamber; treat the 3-day appeal as a safety net, not as your primary opportunity. (Sintact)

6) Outcomes and Their Practical Effects

6.1. Cure by the prosecutor (5-day window)

When irregularities are recorded, the prosecutor must both cure the defects and confirm the maintenance of the referral within 5 days (including any hierarchical confirmation required by law). If not cured—or cured inadequately—the return solution becomes likely. (Sintact)

6.2. Exclusion of evidence

Excluded items are unusable later in the proceedings; the order should specify precisely which items are removed and why. The strategic effect can be decisive (e.g., wiretaps or searches underpinning the case). (Sintact)

6.3. Returning the case (Art. 346 CPC)

Return follows where (a) the indictment is irregular or issued by an incompetent prosecutor and the defect prevents defining the object/limits of the trial and was not cured in time; or (b) the court excluded all investigation evidence. Upon return, the prosecution resumes the investigation and may re-refer the case; any new referral comes with a fresh preliminary chamber check. (Sintact)

6.4. Appeal in 3 days (Art. 347 CPC)

Because the appeal term is extremely short, have boilerplate grounds ready and refine them once the order is served. The Constitutional Court has repeatedly examined this remedy and its compatibility with defence rights, validating the overall design. (Sintact)

7) Recent Doctrine and Case-Law Signals

  • Constitutional review has confirmed the core architecture of the preliminary chamber and the 3-day appeal model, while clarifying the normative purpose of the stage: a filter ensuring legal certainty before trial. (Portal Legislativ)
  • Return grounds—Art. 346(3) have practical teeth: incompetence of the issuing prosecutor or an irregular indictment that cannot be cured (or wasn’t cured in 5 days) and blocks a clear definition of the object/limits of trial. (Sintact)
  • Re-opening / re-running the preliminary chamber: recent academic analysis discusses scenarios and limits for resuming the chamber after legislative changes, with guidance for defence on when and how to invoke it. (drept.unibuc.ro)

8) Templates You Can Adapt

Keep submissions lean, numbered, and evidence-tethered. Point the court to specific volume/page locations. Add an appendix table to make the judge’s job easier.

8.1. Motion to note irregularities of the indictment (Art. 345 CPC)

Relief sought: (i) note irregularities; (ii) notify the prosecution to cure within 5 days; (iii) subsidiarily, return under Art. 346 CPC.

Skeleton

  • I. Legal grounds: Arts. 342, 345–346 CPC (purpose, procedure, solutions).
  • II. Irregularities (numbered):
    1. Insufficient factual description (missing time/place/manner; inability to map facts to persons).
    2. Erroneous legal classification (contradiction between objective elements and the incriminating norm).
    3. No probative mapping (indiscriminate reference to “the file”).
  • III. Rights impact: unpredictability; inability to prepare a merits defence.
  • IV. Prayer: cure in 5 days / return. (Sintact)

8.2. Objection to unlawfully obtained evidence

Relief sought: exclusion of items X, Y, Z; removal of derivative acts; subsidiarily, return if the case collapses without them. Grounds: lack of competence; invalid/expired authorisation; scope overreach; breaches of privileged communications. (Sintact)

8.3. Notes for the court (filed ahead of the hearing)

Architecture:

  • A. Indictment irregularities (A1–A5), each with file citation and legal consequence.
  • B. Unlawful evidence (B1–Bn), with legal grounds and consequences.
  • C. Conclusions: cure / exclusion / return.

9) Frequent Pitfalls (and How to Avoid Them)

  1. Vague pleading: “the indictment is irregular” without pinpointing where and why. Fix it with a Defect–Page–Effect–Remedy table.
  2. Blending merits with legality: keep merits arguments out of the preliminary chamber; focus on legality and regularity issues.
  3. Timing mistakes: missing the internal defence milestones (service date, filing window, hearing, 5-day cure check, 3-day appeal). Use a mini-Gantt and reminders. (Sintact)
  4. Half-measures: after excluding key evidence, ask for return if the case becomes untenable; don’t let a hollow case proceed to trial. (Sintact)
  5. Appeal under-prepared: draft the skeleton ahead of time; fine-tune once the order is served. (Sintact)

10) Two Tactical Scenarios

10.1. Curable defects

  • Goal: clarify facts and legal labels; force proper probative mapping.
  • Tools: Art. 345 motion; monitoring the 5-day reply; verify the actual cure.
  • Outcome: trial opens on a clean, predictable record; any unlawful evidence is already out. (Sintact)

10.2. Structural defects

  • Goal: show that the indictment cannot be salvaged without re-doing parts of the investigation or the act of referral.
  • Tools: cumulative objections (irregularities + unlawful evidence), emphasising that the defect prevents establishing the object/limits of the trial.
  • Outcome: return under Art. 346; prosecution resumes the investigation and may (properly) re-refer later. (Sintact)

Conclusion

The preliminary chamber is where a criminal case is legally sanitised before trial. If the indictment is irregular or key evidence is unlawful, this is the time—and the only structured time—to obtain cure, exclusion, or return. Treat the stage as a precision procedure: diagnose defects, tie them to legal consequences, and ask for the exact remedy the Code provides. Entering the merits with a clean, legally solid record is not a luxury—it is the most efficient way to protect the client’s rights and shape the trajectory of the case.

References & Legal Sources

  • Art. 342 CPC (purpose of the preliminary chamber): text and current version. (Sintact)
  • Art. 345 CPC (procedure; 5-day remedy window): judge’s ruling and prosecution’s obligation to cure. (Sintact)
  • Art. 346 CPC (outcomes; return grounds; exclusion effects): including incompetence/irregular indictment and exclusion of all evidence. (Sintact)
  • Art. 347 CPC (appeal within 3 days): scope and constitutionality. (Sintact)
  • Doctrine on resuming the preliminary chamber (2025): analysis of the new institution and its limits. (drept.unibuc.ro)

All sources reflect the legal framework as of 13 November 2025.

 

 

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