Public servant under criminal investigation or trial: suspension, salary rights, disciplinary sanctions and reinstatement after acquittal

This article walks step by step through the legal framework and practical options for both public servants and institutions, with references to the Administrative Code, the Labour Code, the Administrative Litigation Law no. 554/2004, decisions of the Constitutional Court of Romania (CCR) and the High Court of Cassation and Justice (ICCJ), as well as practice summaries by the National Institute of Magistracy (INM).

1. Who is a “public servant” and why it matters when there is a criminal case

The first step is to understand what type of legal relationship you have with the public institution. In Romania, two large groups of staff usually coexist:

• public servants regulated mainly by the Administrative Code (Government Emergency Ordinance no. 57/2019), who have a public law service relationship; and
• contractual staff, employed under the Labour Code (Law no. 53/2003), with an individual labour contract, even if they work within a public authority or institution.

The Administrative Code – GEO no. 57/2019 sets out the status of public servants, the conditions for taking and leaving office, and specific rules regarding suspension of the service relationship, including in situations where a person is under criminal investigation or stands trial for certain service-related or corruption offences.

In parallel, the Labour Code – Law no. 53/2003 governs situations where an individual labour contract can be suspended by operation of law or at the initiative of the employer/employee (for example in case of pre-trial detention or house arrest), as well as the employee’s right to compensation if the criminal measure is later lifted and the person is acquitted.

Why is this distinction crucial?

• for public servants, situations of suspension by operation of law are regulated by Article 513 of the Administrative Code, including letter (l), which concerns referral to trial for certain serious offences;
• for contractual staff, Article 52 of the Labour Code applies directly (suspension by operation of law of the labour contract, including in case of pre-trial detention or house arrest, and the right to salary in case of acquittal).

On top of this, some categories of staff benefit from special statutes (judges and prosecutors, police officers, military personnel, certain contractual staff in defence and public order etc.), with their own rules on suspension and career, which may derogate from the general rules in the Administrative Code.

2. Legal framework: Administrative Code, Labour Code, CCR, ICCJ, INM

When a public servant is the subject of a criminal case, several layers of regulation and case-law become relevant:

• the Administrative Code (GEO no. 57/2019) – regulates the status of public servants, service relationships, suspension, termination, disciplinary liability and procedures for challenging administrative acts issued by authorities;
• the Labour Code – especially important for contractual staff, but also relevant by reference to the right to compensation in case of unjustified suspension, including for public servants through explicit cross-reference in Article 513 para. (1) letter l) last sentence of the Administrative Code;
• the Administrative Litigation Law no. 554/2004 – sets out how you can challenge in court the administrative acts by which your service relationship is suspended or terminated, as well as claims for damages;
• decisions of the Constitutional Court (CCR) – for example those analysing provisions on suspension from office after referral to trial or vague formulas such as “which would make him/her incompatible with the exercise of public office”;
• decisions of the High Court of Cassation and Justice (ICCJ) – including preliminary rulings and decisions in the interest of the law on salary rights during suspension and the effect of acquittal on the service relationship;
• INM practice summaries – useful to see how courts actually implement the rules governing public servants under criminal investigation or suspension.

For example, Article 513 of the Administrative Code regulates suspension by operation of law of the service relationships, including the case where the public servant is referred to trial for offences relevant to public integrity and function (Article 465 letter h).

At the same time, CCR decisions, such as recent rulings on integrity and incompatibilities, have highlighted the need for clarity and predictability in norms that may lead to loss of office or suspension. The High Court, in decisions like ICCJ Decision no. 35/2023 (preliminary ruling), has clarified the effects of annulling the administrative act terminating the service relationship and the correlation between provisions of the Administrative Code and the Labour Code, including with respect to retroactive salary payments after unlawful suspension or termination.

INM’s practice summaries on public servants consolidate case-law on suspension, termination of the service relationship and damages granted where measures were unlawful, particularly when the public servant was later acquitted or the criminal case was discontinued.

3. Under investigation vs indicted: why the stage of the criminal case matters for your job

In everyday language, people often use “has a criminal file”, “is under criminal investigation”, “has been sent to trial” as if they were interchangeable. Legally, the stage of the criminal proceedings has a major impact:

• under criminal investigation / suspect / defendant in the investigation phase – the file is with the prosecutor’s office; evidence is collected, witnesses are heard, expert reports may be ordered. The court is not yet seized. Judicial control measures may be imposed (judicial control, house arrest, pre-trial detention);
• indicted / sent to trial – the prosecutor issues an indictment, and the criminal file is forwarded to the criminal court. From this moment, the person is an indicted defendant in court. Public perception often sees this as “confirmation” of the allegations, even though the presumption of innocence still fully applies.

The Administrative Code expressly distinguishes between:

• situations involving preventive measures (pre-trial detention, house arrest, judicial control with obligations preventing performance of the job) – Article 513 para. (1) letter e), where the service relationship is suspended by operation of law for the duration of the measure; and
• the situation where the public servant is sent to trial for offences listed in Article 465 letter h) of the Administrative Code – typically corruption offences, related or assimilated offences, and certain service offences which, by their nature, are incompatible with the exercise of public office.

In practice, this means:

• not every “criminal file” automatically triggers suspension; it depends on the offence and on whether preventive measures or indictment for specific offences have been ordered;
• referral to trial for offences expressly mentioned in Article 465 letter h) leads to suspension by operation of law of the service relationship, with the administrative act generally having a “declaratory” character (it notes a legal effect produced by law).

4. Suspension by operation of law under Article 513 of the Administrative Code

Article 513 of the Administrative Code lists the situations in which a public servant’s service relationship is suspended by operation of law: appointment or election to public office, diplomatic missions, quarantine, maternity leave, certain long-term medical leave, invalidity, preventive measures etc. Among these is letter (l):

“where the public servant has been sent to trial for the offences provided for in Article 465 letter h)”.

Paragraph (4) of Article 513 contains a crucial guarantee for public servants:

“Where criminal prosecution is closed by classification or waiver of prosecution, or where the person is acquitted, where there is a waiver of application of the penalty or where the criminal proceedings end, the suspension from public office ceases, the public servant resumes activity in the public position previously held and shall receive the salary rights for the period of suspension.”

This text is essential: not only is the public servant reinstated in the position previously held, but he/she has a legal right to retroactive payment of salary for the entire period of suspension ordered due to referral to trial, if the criminal case ends without a conviction (classification, waiver of prosecution, acquittal, waiver of application of the penalty or termination of proceedings).

Legal databases such as Sintact also show a High Court interpretation in the footnote to Article 513 para. (1) letter l), confirming that payment of salary rights for the suspension period is carried out in accordance with Article 52 para. (2) of the Labour Code, correlated with provisions of the Administrative Code on public servants’ careers. In other words, public servants benefit from similar protection to employees under labour law if the criminal accusation is not confirmed.

4.1. When is the suspension act actually issued?

Although the suspension is described as operating “by law”, in practice the authority must issue an administrative act of suspension (decision, order) signed by the head of the authority or the person with the power to appoint public servants. This act:

• must refer to the legal basis (Article 513 para. (1) letter e) or letter l), as applicable);
• must indicate the date from which the suspension is effective (usually the date when the preventive measure or the indictment is communicated);
• is communicated to the public servant and can be challenged in administrative litigation after the prior complaint stage.

If the authority fails to issue a suspension act although the legal conditions are met (for instance, the public servant is indicted for corruption offences), there may be issues of legality and disciplinary liability, especially in light of integrity rules and the reputational impact on the institution.

4.2. Suspension when you are only “under investigation”

The Administrative Code does not provide for automatic suspension of the service relationship merely because criminal prosecution has been opened or because the person is a suspect/defendant, in the absence of a preventive measure or referral to trial for offences under Article 465 letter h).

However, if the following are ordered:

• pre-trial detention or house arrest, or
• judicial control / judicial control on bail with obligations that make performance of the job impossible (for example, a ban on exercising the profession or on entering the workplace),

then the public servant falls under Article 513 para. (1) letter e) of the Administrative Code and the service relationship is suspended by operation of law for as long as the measure is in place.

Furthermore, there may be special regulations or internal policies (regulations, codes of ethics, professional statutes) allowing temporary suspension or delegation of duties in order to protect both the public interest and the public servant’s right to presumption of innocence.

4.3. Contractual staff: the relevance of Article 52 of the Labour Code

If you are not a public servant but contractual staff (an employee under an individual labour contract), Article 52 of the Labour Code applies directly. Among the cases of suspension by operation of law are:

• where the employee is in pre-trial detention or house arrest for more than 30 days; and
• other situations provided by law or by the collective/individual labour contract.

Article 52 para. (2) of the Labour Code provides that if the person is found not guilty (through waiver of prosecution, classification, acquittal etc.), the employee is entitled to compensation equal to the salary of which he/she was deprived during the suspension period. These amounts can be claimed in court if the employer refuses to pay them voluntarily.

In the ICCJ’s interpretation, this rule applies by analogy to public servants, in addition to Article 513 para. (4) of the Administrative Code, which further strengthens the position of a public servant who is acquitted or whose criminal case is closed without a conviction.

5. Salary rights, seniority and other consequences during suspension

Under both the Administrative Code and labour law, the basic principle is simple: during suspension by operation of law for criminal reasons, you do not work and you do not receive salary. Suspension concerns the performance of the contract/service relationship, not its existence.

The major difference appears when the criminal case is closed:

• if there is a classification, waiver of prosecution, acquittal, waiver of application of the penalty or termination of the criminal proceedings, the public servant has a legal right to:
  • be reinstated in the public position previously held; and
  • receive salary rights for the entire suspension period, under Article 513 para. (4) of the Administrative Code.
• for contractual staff, Article 52 para. (2) of the Labour Code applies, and compensation can also be obtained through labour court proceedings.

Court practice has consistently held that these provisions are intended to protect persons found not guilty, ensuring that they do not bear the long-term social and financial consequences of a criminal accusation that is not confirmed. This generally includes not only basic pay, but also bonuses, allowances and other salary rights that would have been payable during the period, sometimes updated for inflation and accompanied by statutory interest.

Regarding seniority in service and public function, the Administrative Code distinguishes between certain causes of suspension (for example international missions) which count as seniority and others which do not. In practice, however, once the public servant is reinstated and receives retroactive salary, courts may consider that the suspension period has legal continuity, with effects on seniority, promotions, professional grade and pension. The exact outcome will depend on how the claim is framed in court and the types of damages sought.

6. Disciplinary liability and its relationship with the criminal case

A sensitive question is whether, alongside the criminal case, the institution can initiate disciplinary proceedings against the public servant for the same facts or related misconduct (for example breaching service obligations or codes of conduct).

The Administrative Code includes a title on disciplinary liability, describing the procedure: referral to the disciplinary committee, investigation of the facts, hearing of the public servant, proposal for sanction, adoption of the sanctioning act and avenues of appeal. These procedures are further detailed in materials of the National Agency of Public Servants (ANFP) and in INM practice summaries on public servant litigation.

Key principles emerging from case-law include:

• autonomy of liabilities – criminal, disciplinary, civil and administrative liabilities may coexist; closure of one does not automatically exclude the others;
• however, a final criminal judgment carries substantial weight in disciplinary assessment, especially if acquittal is based on the non-existence of the offence or lack of guilt;
• CCR and ICCJ decisions stress that a disciplinary sanction cannot be based only on the existence of an indictment; the authority must perform its own minimum assessment of the facts.

For instance, if a public servant is acquitted because the facts did not occur, maintaining a disciplinary sanction based on the same facts is likely to be considered unlawful and struck down in administrative litigation. Conversely, if acquittal is based solely on procedural grounds or limitation, and the material facts are not denied, courts may consider the disciplinary sanction justified.

7. How to challenge suspension, termination of the service relationship or refusal of reinstatement

Any public servant affected by an act of suspension, termination of the service relationship or refusal of reinstatement after a favourable criminal outcome can rely on the mechanisms in the Administrative Litigation Law no. 554/2004.

7.1. Prior complaint

As a rule, before going to court you must file a prior administrative complaint addressed to the issuing authority or the hierarchically superior authority within 30 days of communication of the act (for example the decision of suspension or termination), under Article 7 of Law no. 554/2004.

The prior complaint should briefly specify:

• the challenged act (number, date, issuing authority);
• the grounds of illegality (lack of legal basis, incorrect application of Article 513, misinterpretation of the offences or stage of the criminal case, lack of reasoning, disproportionality etc.);
• what you specifically seek (revocation of the act, reinstatement, payment of salary rights).

7.2. Administrative litigation

If the authority fails to respond or rejects the complaint, you can file a claim in administrative litigation. At this stage, it is usually crucial to have a lawyer specialised in administrative litigation, both for correctly formulating the claims and for organising the evidence (criminal file documents, correspondence with the institution, internal regulations etc.).

Through such a claim you can ask for:

• annulment of the administrative act of suspension/termination/refusal of reinstatement;
• an order obliging the authority to issue a new act (for example, reinstating you in your post or recalculating salary rights);
• payment of damages – primarily the salary of which you were deprived, plus any other proven loss (e.g. bonuses, allowances, moral damages, statutory interest).

For more on how administrative litigation works in practice, you can read the article (Romanian version) “Avocat drept administrativ (avocat contencios administrativ): cum dau în judecată Guvernul sau Primăria pentru actele administrative emise?”, and the English overview on administrative law and litigation services.

Practical aspects of costs are addressed in the articles on criminal and administrative litigation costs, where you will find examples of court fees, expert fees and typical ranges of legal fees.

8. What happens after acquittal or closure of the criminal case

In scenarios where the public servant is finally acquitted or the criminal case is closed by classification, waiver of prosecution or termination of proceedings, Article 513 para. (4) of the Administrative Code is clear:

• the suspension from public office automatically ceases;
• the public servant resumes activity in the previously held public position; and
• he/she is entitled to salary rights for the entire period of suspension.

Two common difficulties arise in practice:

1. The authority delays or refuses reinstatement, invoking policy considerations, public image or its own reading of the criminal judgment.
2. The authority accepts reinstatement but refuses full payment of salary or excludes certain components (bonuses, allowances), arguing that the suspension period does not count as seniority or that the public servant would not have received those benefits anyway.

In both cases, the dispute moves to administrative litigation or, for contractual staff, to labour courts. ICCJ case-law on full payment of salary rights for suspension periods has played a key role in harmonising practice.

Beyond administrative and salary aspects, additional claims for damages may arise for moral or financial loss (for example loss of career opportunities). These may be brought either under general civil liability rules or under special provisions on State liability for judicial errors, depending on the circumstances.

9. Practical steps for public servants and their families

Beyond legal texts, what matters in real life are concrete, manageable steps in a period of high stress for public servants and their families:

1. Clarify your status: Are you a public servant or contractual staff? Are you merely under investigation, or have you been indicted? Are there preventive measures limiting your ability to perform your job?
2. Check all acts issued by the institution: Has a suspension or termination decision been issued? Is it reasoned? Does it explicitly mention Article 513 letter e) or l) of the Administrative Code, or Article 52 of the Labour Code?
3. Observe deadlines: The prior complaint is typically due within 30 days of communication of the act; court actions have their own limitation periods. Delay can severely undermine your chances.
4. Align your administrative and criminal strategy: How you conduct your defence in administrative litigation and how you use evidence from the criminal file should be planned together with a lawyer handling both the criminal and administrative sides.
5. Analyse costs and timelines: Beyond lost salary, you must consider legal fees, court taxes, expert fees and the likely duration of administrative and criminal proceedings. Relevant insights on criminal case costs and duration can be found in the English versions of the articles on how long a criminal case takes and what it costs.

From the institution’s perspective, proper management of such cases means:

• strict respect for the law and the presumption of innocence;
• avoiding “indefinite suspension” without reviewing the progress of the criminal case;
• clear reasoning in administrative acts, avoiding vague formulations or incomplete references to Article 465 letter h) of the Administrative Code;
• prompt termination of suspension and reinstatement of the public servant after a favourable criminal solution, including full payment of salary rights.

For a tailored assessment of your situation and realistic evaluation of your chances in court, it is advisable to consult a lawyer experienced in both administrative and criminal law. You can use the contact details on the Contact – Lawyer Alexandru Măglaș page and the dedicated pages on criminal law and administrative law.

FAQ – Public servants facing criminal investigation or trial

1. Can I be suspended from public office if I am only under investigation, without being sent to trial?

The mere existence of a criminal file or of suspect/defendant status does not automatically lead to suspension from public office. The Administrative Code provides for suspension by operation of law mainly in two situations: when preventive measures are ordered that effectively prevent performance of the job (pre-trial detention, house arrest, judicial control with relevant bans) and when the public servant is indicted for offences expressly listed in Article 465 letter h). In other cases, the institution may consider other administrative steps (temporary reassignment, delegation of duties), but there is no general rule of automatic suspension solely because criminal proceedings have been opened.

2. Do I still receive salary while I am suspended under Article 513 of the Administrative Code?

During suspension by operation of law for criminal reasons (preventive measures or indictment for offences listed in Article 465 letter h), the service relationship is suspended and the general rule is that you do not work and do not receive salary. If, however, the criminal case ends without a conviction (classification, waiver of prosecution, acquittal, waiver of application of the penalty, termination of proceedings), Article 513 para. (4) of the Administrative Code entitles you to retroactive payment of salary rights for the suspension period. If the institution refuses, these amounts can be claimed in court.

3. What can I do if the institution refuses to reinstate me after acquittal?

Refusal to reinstate after a favourable criminal judgment is contrary to the Administrative Code. In such a case, you can file a prior complaint against the refusal (or administrative silence) under Article 7 of Law no. 554/2004 and then bring an administrative claim seeking an order for reinstatement and payment of salary rights for the suspension period. It is useful to attach the criminal judgment, the suspension decision and all relevant correspondence.

4. Can I work elsewhere while I am suspended from public office?

In principle, suspension of the service relationship means you no longer perform duties or receive salary as a public servant. Whether you can take another job during suspension depends on any bans imposed by preventive measures (for example a ban on practising a profession or holding certain positions) and on incompatibility rules applicable to your public position. Before accepting another role or collaboration, especially in a related field, you should consult a lawyer.

5. If I am convicted, can I challenge the decision terminating my service relationship?

After a final conviction, the Administrative Code or special statutes may provide for termination by operation of law of the service relationship or give the authority power to impose the maximum disciplinary sanction (dismissal). Even then, the administrative act terminating the service relationship remains subject to judicial review in administrative litigation (for example, if procedure has not been followed or if the act misinterprets the criminal judgment). The chances of success are obviously much lower than in the case of acquittal, but not zero, especially where there are clear procedural defects.

6. What is the lawyer’s role in these situations?

A lawyer with experience in both criminal and administrative law can coordinate your overall strategy: defence in the criminal case, dialogue with the institution on any administrative measures (suspension, reassignment), drafting prior complaints, preparing administrative claims and damages actions, and representation in court. Given the impact on your career, income and sometimes pension, early involvement of such a lawyer is often decisive for the outcome.