Reopening of criminal prosecution and resumption after discontinuance in Romanian law: when and how a criminal case can be reactivated

The Romanian Code of Criminal Procedure (Codul de procedură penală – “CPP”) regulates reopening of criminal prosecution in Article 335 CPP, in close connection with the rules on discontinuance (clasare – Article 16 CPP) and with the complaint against the prosecutor’s solutions (Articles 339–341 CPP). These provisions have also been interpreted and clarified by the High Court of Cassation and Justice (Înalta Curte de Casație și Justiție – “ICCJ”), by the Constitutional Court of Romania (Curtea Constituțională a României – “CCR”) and by the European Court of Human Rights (“ECtHR”).:contentReference[oaicite:0]{index=0}

This guide explains, in accessible language, what “reopening” means, in which situations a discontinued case can be “reactivated”, what the procedure looks like in practice, and what the main effects are for the different parties in the criminal case.

1. Legal framework: discontinuance, reopening and complaints

1.1. Discontinuance of criminal prosecution (clasarea)

The institution of discontinuance of criminal prosecution (clasarea) is regulated mainly by Article 16 CPP. According to this article, the criminal action cannot be initiated, and when it has been initiated can no longer be exercised, if one of several legal grounds is present. Typical examples include:

• the act does not exist;
• the act is not provided by the criminal law or was not committed with the required mental element;
• there is no evidence that a person committed the offence;
• there is a justification or non-imputability cause (for example self-defence, or lack of criminal responsibility);
• criminal liability is removed (e.g. because the statute of limitation has expired, amnesty has been granted, the injured party withdrew the complaint in those offences where this is required, etc.).

When the prosecutor concludes that one of these grounds is present, they can order discontinuance through an ordinance (ordonanță). The ordinance is communicated to the parties and may be challenged through the specific complaint procedure laid down in Articles 339–341 CPP.

For a more detailed discussion of discontinuance and its effects, see the Romanian-language article on the blog regarding discontinuance of criminal prosecution (clasarea urmăririi penale).

1.2. Reopening of criminal prosecution – Article 335 CPP

Reopening of criminal prosecution after a discontinuance is governed by Article 335 CPP – “Reluarea în caz de redeschidere a urmăririi penale”. According to the current form of the article, the main situations in which reopening can be ordered are:

• When the hierarchical superior prosecutor of the one who issued the discontinuance later finds that the ground for discontinuance never actually existed. In this case, the superior prosecutor cancels (infirmă) the ordinance and orders reopening (Article 335(1) CPP).
• When new facts or circumstances appear showing that the ground for discontinuance is no longer present (for example, new evidence that the act exists or that another person committed it). The prosecutor revokes the ordinance and orders reopening (Article 335(2) CPP).
• When the suspect or defendant failed in bad faith to fulfil obligations imposed in an order of waiver of prosecution (renunțare la urmărirea penală) under Article 318 CPP. In such cases, the prosecutor revokes the waiver and orders reopening (Article 335(3) CPP).
• When the judge of the preliminary chamber (judecătorul de cameră preliminară) admits the complaint against the discontinuance and sends the case back to the prosecutor for completion of the investigation. In this situation, the law explicitly qualifies this as a case of reopening (Article 335(5) CPP, correlated with Articles 340–341 CPP).
• When the hierarchical superior cancels a non-indictment solution before it is communicated. In that specific situation (Article 335(6) CPP), reopening is not subject to confirmation by the judge of the preliminary chamber.

In all other cases, reopening is subject to confirmation by a judge of the preliminary chamber within 3 days, under penalty of nullity. The judge examines both the legality and the soundness (temeinicia) of the reopening order on the basis of the file and any new documents presented (Article 335(4)–(4¹) CPP).

1.3. Link with the complaint against the prosecutor’s solutions

The person dissatisfied with a discontinuance can use two stages of complaint:

1. Complaint to the hierarchical superior prosecutor (Article 339 CPP), to be lodged within 20 days from communication of the ordinance.
2. Complaint to the judge of the preliminary chamber (Article 340 CPP), if the complaint to the prosecutor has been rejected. This complaint must also be lodged within 20 days from communication of the solution on the complaint.

When the judge of the preliminary chamber admits the complaint, one of the solutions is to set aside the discontinuance and remit the case to the prosecutor for completion of the criminal prosecution. In this situation, the law states expressly that reopening takes place under Article 335(5) CPP, and the instructions of the judge are binding on the prosecution authorities.

If you are interested in the complaint procedure against the prosecutor’s solutions, the Romanian blog also covers this topic in an article dedicated to complaints against solutions of non-indictment (plângerea împotriva soluțiilor de clasare sau renunțare la urmărire penală).

2. Who can order the reopening of a discontinued criminal case?

2.1. The hierarchical superior prosecutor

The first main situation concerns the hierarchical superior prosecutor (procurorul ierarhic superior). Under Article 335(1) CPP, if this superior finds that the ground for discontinuance never existed, they may cancel the initial ordinance and order reopening. The norm must be read together with Article 304 CPP on annulment of acts by the hierarchical superior, and with Article 132 of the Constitution on the principles governing prosecutors’ activity (legality, impartiality and hierarchical control).

By Decision no. 23/2020, the ICCJ (RIL – recurs în interesul legii) clarified which prosecutors may be considered hierarchical superiors within the meaning of Article 335(1) CPP, especially in relation to the Prosecutor General and prosecutors from specialised structures (DNA, DIICOT). The Court held that the Prosecutor General of the Prosecutor’s Office attached to the High Court does not automatically have this quality in all situations, and that the legal provisions on competence and hierarchy must be analysed in each concrete case.

2.2. The same prosecutor who ordered discontinuance – new facts and breach of obligations

Article 335(2)–(3) CPP allows the same prosecutor who ordered discontinuance or waiver of prosecution to reopen the case when:

• new facts or circumstances appear showing that the ground for discontinuance disappeared (for example, a new forensic report, newly identified witnesses, or documents which contradict earlier evidence); or
• the suspect or defendant did not comply in bad faith with the obligations imposed through an order of waiver of prosecution (for instance, failure to pay a contribution to a public fund, to attend a program, or to comply with a protective measure agreed in the context of waiver).

In both situations, the prosecutor must revoke the previous ordinance and issue a new one ordering reopening. As a rule, this new ordinance is subject to confirmation by the judge of the preliminary chamber, except in the special case of Article 335(6) CPP (annulment before communication).

2.3. The judge of the preliminary chamber – following a complaint

When a complaint against discontinuance is examined by the judge of the preliminary chamber, Article 341 CPP offers several possible solutions. One of them is to admit the complaint, set aside the discontinuance and remit the case to the prosecutor for the continuation of the investigation. In this case, Article 335(5) CPP states that reopening takes place and the prosecutor must respect the judge’s instructions.

This mechanism is particularly important for injured parties who consider that the investigation was not complete or that the prosecutor wrongly applied a ground for discontinuance (for example, incorrectly assessing that the act is not provided by criminal law, or that the limitation period has expired).

2.4. The impact of ECtHR and CCR case law

Reopening can also be connected to judgments of the ECtHR or CCR. While the Code of Criminal Procedure contains specific rules for reopening of cases following a judgment of the European Court of Human Rights (Article 465 CPP) or a decision of the Constitutional Court declaring a provision unconstitutional, these are distinct institutions, which may however lead in practice to the re-examination of cases in which discontinuance was previously ordered.

For example, the ECtHR has criticised, in cases such as Stoianova and Nedelcu v. Romania and Vasilescu v. Romania, the lack of judicial control over prosecutors’ power to reopen investigations and the excessive length of proceedings in such situations. Romanian legislation was amended to introduce the requirement of confirmation by a judge of the preliminary chamber for reopening, precisely in order to comply with these standards.

3. Step-by-step: how reopening and resumption work in practice

3.1. The reopening ordinance

Any reopening starts with an ordinance of the prosecutor, which must clearly indicate:

• which previous ordinance (discontinuance or waiver of prosecution) is being revoked or annulled;
• on which legal basis reopening is ordered (Article 335(1), (2), (3), (5) or (6) CPP);
• which facts or circumstances justify the conclusion that the ground for discontinuance never existed or has disappeared; or
• in the case of failure to comply with obligations, what obligations were imposed, in what way they were breached, and why bad faith is retained.

Doctrine and case law insist that the ordinance must not contain only generic or formulaic reasons. The judge of the preliminary chamber will later check whether the ordinance is properly motivated and whether the conditions laid down by Article 335 CPP are met.

3.2. Confirmation by the judge of the preliminary chamber

With the exception of the specific case provided in Article 335(6) CPP, the prosecutor’s ordinance is sent for confirmation to the judge of the preliminary chamber within 3 days, under penalty of nullity. The judge examines:

• the legality of the ordinance (competence of the prosecutor, respect of time-limits, proper grounds indicated, etc.);
• the soundness of the ordinance (whether the evidence or new circumstances justify reopening);
• compliance with the rights of the suspect/defendant and other parties.

The judge decides in chambers (camera de consiliu), with the prosecution’s participation and with the suspect or defendant being summoned. Non-attendance of legally summoned persons does not prevent the case from being decided. The judge can either confirm reopening or refuse confirmation. The judge’s decision is final.

By Decision no. 27/2015, the ICCJ (preliminary ruling) clarified that this requirement of confirmation applies both when reopening is ordered following a complaint by the injured party to the hierarchical superior and when it is ordered ex officio by the superior prosecutor. This ensures that reopening always benefits from judicial scrutiny (with the limited exception of Article 335(6) CPP).

3.3. Effects of confirmation: resumption of criminal prosecution

If reopening is confirmed, the criminal prosecution is resumed (reluată) according to Articles 285 and following CPP. The prosecutor must continue the investigation, carry out the acts indicated in the reopening ordinance and in possible instructions by the judge, and ultimately adopt one of the solutions provided in Article 327 CPP:

• indictment (trimitere în judecată) if the evidence supports the accusation; or
• a new solution of discontinuance or waiver of prosecution, if legal grounds for that still exist.

The CCR has emphasised that reopening has the effect of placing the person concerned once again in the position of being subject to a criminal accusation, which is why the procedure must comply with the guarantees of a fair trial under Article 6 of the European Convention, including the requirement that judicial control exists over the decision to reopen.

3.4. What if confirmation is refused?

If the judge of the preliminary chamber refuses confirmation, reopening does not take place and the initial discontinuance (or waiver) remains in force. The person concerned continues to enjoy the legal effects of that solution (for example, the criminal case remains discontinued). The judge’s decision is final and cannot be challenged.

However, refusal of confirmation does not automatically prevent a new reopening request in the future, if new facts or circumstances appear which justify a different assessment. In practice, courts examine with greater strictness reopening requests which follow earlier refusals, to avoid abusive or repetitive reactivations of the same file.

4. Constitutional Court and High Court case law on reopening

4.1. Constitutional control of Article 335 CPP

The CCR has analysed several times the compatibility of Article 335 CPP, as well as of related provisions (Articles 340–341 CPP), with the Constitution and with the guarantees of a fair trial. Recent decisions consolidate the idea that reopening, combined with judicial control by the judge of the preliminary chamber, is constitutional and offers sufficient safeguards for the parties.

In Decision no. 496/2015 and in the more recent Decision no. 324/2024, the Court highlighted that:

• reopening is a specific case of resumption of criminal prosecution, regulated by law in detail (cases and conditions);
• confirmation by the judge of the preliminary chamber is a necessary judicial remedy against the prosecutor’s discretionary power to reactivate the case, introduced following ECtHR case law such as Vasilescu, Pantea and Stoianova and Nedelcu;
• the provisions of Article 335(2)–(4) CPP and of Article 340(1) CPP are constitutional and do not restrict access to justice, but rather ensure effective protection of rights by combining prosecutorial and judicial control.

By Decision no. 324 of 9 July 2024, the CCR expressly rejected an exception of unconstitutionality concerning Article 335(2), (4) and Article 340(1) CPP, confirming their conformity with the Constitution and with Article 6 of the European Convention.

4.2. ICCJ case law on hierarchical control and confirmation

The ICCJ has adopted several important decisions which clarify how Article 335 CPP must be interpreted uniformly:

• Decision no. 27/2015 (preliminary ruling) – establishes that any reopening of criminal prosecution under Article 335 CPP must be submitted to the judge of the preliminary chamber for confirmation, regardless of whether it follows a complaint by the injured party to the hierarchical superior or is ordered ex officio.
• Decision no. 23/2020 (recurs în interesul legii) – clarifies the notion of “hierarchical superior prosecutor” in Article 335(1) CPP, in particular regarding the competences of the Prosecutor General in relation to prosecutors from subordinate offices or specialised structures (DNA, DIICOT).
• Decision no. 19/2019 – addresses the relation between Article 16(1)(i) CPP (res judicata) and Article 335(4) CPP, stressing that reopening must respect the ne bis in idem principle where a final court decision already exists.

These decisions are relevant for practice because they limit arbitrary or uncontrolled reopening and provide predictability as to who may order reopening and under what conditions.

5. ECtHR case law and the ne bis in idem principle

5.1. Cases on reopening and judicial control

The current regulation of reopening in Article 335 CPP is largely the result of criticism formulated by the ECtHR in a series of cases against Romania, in which prosecutors could reopen discontinued investigations without prior judicial authorisation. In cases such as Vasilescu v. Romania, Pantea v. Romania and Stoianova and Nedelcu v. Romania, the Court held that prosecutors in Romania, acting as members of the prosecution service under the authority of the Minister of Justice, do not offer the guarantees of independence required of a “tribunal” within the meaning of Article 6 of the Convention, and that unrestricted powers to reopen cases can raise issues of fairness and legal certainty.

Romania reacted to this case law by introducing the institution of the judge of the preliminary chamber and by requiring, in Article 335(4) CPP, that reopening of criminal prosecution be confirmed by a judge, save for the narrow exception mentioned in Article 335(6) CPP.

5.2. Ne bis in idem and the limits of reopening

The ECtHR has also developed a substantial body of case law on the ne bis in idem principle (no one shall be tried or punished twice for the same offence), enshrined in Article 4 of Protocol No. 7. In the Grand Chamber judgment Mihalache v. Romania (2019), the Court examined whether an order by the prosecutor discontinuing criminal proceedings while imposing an administrative fine could be considered a final decision for the purpose of ne bis in idem, and under which conditions the proceedings could be reopened. The Court emphasised the need for clear legal rules and exceptional grounds for reopening in order to respect legal certainty and the prohibition of double punishment.

Although Mihalache did not directly concern Article 335 CPP, its reasoning is relevant for assessing the compatibility of reopening with ne bis in idem, especially where discontinuance is combined with other sanctions (such as administrative fines). Romanian courts and prosecutors must interpret and apply Article 335 CPP in a way that avoids de facto duplication of proceedings for the same act without sufficient justification.

6. Typical practical scenarios of reopening after discontinuance

6.1. New evidence radically changes the picture

A frequent scenario is the emergence of new evidence after a discontinuance. For example, in a fraud case that was discontinued because the perpetrator could not be identified, a new witness appears or a financial audit report is produced, clearly indicating who organised the scheme. The prosecutor may consider that the ground “no evidence that a person committed the offence” (Article 16(1)(c) CPP) is no longer valid, revoke the discontinuance and order reopening under Article 335(2) CPP.

In such situations, reopening is justified because the legal assessment changes due to objective new elements. The judge of the preliminary chamber will verify whether these elements are real and relevant, or whether the reopening is based on a superficial re-evaluation of the same materials that existed before.

6.2. Incorrect application of a ground for discontinuance

Another scenario involves errors in applying the grounds for discontinuance. For instance, a prosecutor may have considered that the act is not provided by criminal law, but later doctrinal developments or higher court decisions clarify that the act is indeed criminal. Or a discontinuance may have incorrectly invoked the statute of limitation, which has in fact not expired.

In these cases, the hierarchical superior can order reopening under Article 335(1) CPP, on the basis that the ground for discontinuance never existed. The appellate courts and the ICCJ have underlined, in their case law and in doctrinal analysis, that such corrections must be exceptional and well justified, to preserve legal certainty.

6.3. Failure to comply with obligations after waiver of prosecution

When the prosecutor decides to waive prosecution (renunțare la urmărirea penală) under Article 318 CPP, they may impose certain obligations on the suspect or defendant (for example, payment of an amount to a public fund, participation in a program or compliance with certain conduct rules). If the person does not comply in bad faith, Article 335(3) CPP allows the prosecutor to revoke the waiver and order reopening.

In practice, this mechanism plays a similar role to that of conditional suspension or probation: it encourages compliance with obligations by maintaining the possibility that the criminal prosecution will be resumed if the person acts in bad faith.

6.4. Reopening after a complaint of the injured party

Sometimes the injured party feels that the investigation was carried out in a superficial manner, or that essential evidence was not administered. After the discontinuance is communicated, they can lodge a complaint with the hierarchical superior prosecutor (Article 339 CPP) and then, if necessary, with the judge of the preliminary chamber (Article 340 CPP).

If the judge finds that the investigation was incomplete or that the law was misapplied, they may admit the complaint, quash the discontinuance and remit the case to the prosecutor. In this scenario, reopening operates ex lege under Article 335(5) CPP, and the prosecution must carry out the acts ordered by the judge.

7. What reopening means for your rights as suspect, defendant or injured party

7.1. For the suspect or defendant

For the person who was previously suspect or defendant, reopening means that the criminal risk reappears. The case is no longer closed; the person may be summoned again for hearings, new evidence may be administered, and at the end of the investigation an indictment may be issued.

On the other hand, reopening is not automatically unfavourable. In some situations, reopening may be used to clarify the facts in a way that confirms the person’s innocence or leads to a new, better-grounded discontinuance. In all cases, the person has procedural rights (to be informed of the accusation, to be assisted by a lawyer, to submit evidence, etc.), and the judge of the preliminary chamber exercises judicial control over the legality of reopening.

Because reopening raises complex issues (including about nullity, limitation and ne bis in idem), it is usually advisable to consult a criminal defence lawyer. The blog contains additional information on how to choose a defence lawyer, for example in the article “How to hire a criminal lawyer in Bucharest” and in other posts dedicated to choosing the right lawyer for your case.

7.2. For the injured party

For the injured party, reopening is often perceived as a corrective mechanism where the initial investigation was incomplete. The possibility to challenge a discontinuance with the hierarchical superior prosecutor and then with the judge of the preliminary chamber offers a pathway to seek a more thorough investigative effort, in line with the State’s positive obligation to carry out effective investigations in certain types of offences (for example, serious violence, corruption or violations of fundamental rights).

At the same time, reopening does not guarantee that the case will eventually lead to indictment or conviction. It simply means that the investigation resumes and the prosecution must re-examine the evidence and carry out the acts indicated by the judge, if any.

7.3. Duration, costs and impact on your life

Reopening inevitably has an impact on the duration of the case and on the costs borne by the parties. For the suspect or defendant, this may involve additional legal fees, time spent attending hearings, and psychological pressure. For the injured party, reopening may entail renewed engagement with the justice system, with all the emotional and financial implications this may have.

The blog contains other materials which discuss, in general terms, how long criminal cases typically last and what costs they may involve, as well as separate articles on expected costs in a criminal case.

8. Frequently asked questions (FAQ)

8.1. What does “reopening of criminal prosecution” actually mean?

Reopening means that a criminal investigation which had previously been discontinued (or for which prosecution had been waived) is activated again. The prosecutor revokes or annuls the initial solution and orders the continuation of the investigation under Article 335 CPP. This is not the same as simple continuation of an ongoing investigation; it presupposes that a previous decision to close the case existed.

8.2. Can my discontinued case be reopened at any time?

The CPP does not contain a specific time limit for reopening after discontinuance, but reopening must respect other legal limits, especially the statute of limitation for criminal liability. If limitation has expired, reopening cannot re-establish criminal liability. Moreover, reopening must be justified by one of the cases provided in Article 335 CPP (for example, new facts or incorrect application of the law) and is subject to judicial control by the judge of the preliminary chamber.

8.3. Who can request reopening of a criminal case?

Formally, reopening is ordered by the prosecutor (the hierarchical superior or the same prosecutor, depending on the case). However, reopening may be triggered by various actors: the injured party, through a complaint; the suspect or defendant, through a complaint or request for review of the solution; the prosecutor ex officio, when new evidence appears; or, in some cases, following an ECtHR judgment or a CCR decision. In all situations, the legal form remains the prosecutor’s ordinance, usually confirmed by a judge of the preliminary chamber.

8.4. Does reopening always lead to indictment?

No. Reopening only means that the investigation is resumed. After carrying out the necessary acts, the prosecutor may:

• order indictment, if the legal and factual conditions are met; or
• adopt a new solution of discontinuance or waiver of prosecution, if the grounds for that still exist.

What changes is that the previous discontinuance is no longer in force; the case is re-evaluated based on the new circumstances.

8.5. Can a case be reopened more than once?

In principle, the law does not limit reopening to a single occurrence. However, every reopening must meet the strict conditions of Article 335 CPP and must be confirmed by the judge of the preliminary chamber (with the exception stated in Article 335(6) CPP). In practice, courts are very cautious with repeated reopenings, as they may conflict with legal certainty and, in certain circumstances, with the ne bis in idem principle.

8.6. What can I do if I disagree with reopening?

Reopening is subject to confirmation by the judge of the preliminary chamber, who also examines the position and arguments of the suspect or defendant. You can be assisted by a lawyer, present your arguments and produce evidence showing, for example, that there are no genuinely new facts or that the statute of limitation has expired. The judge’s decision is final. In addition, procedural irregularities committed during reopening can later be invoked in the trial phase, if an indictment is issued.

8.7. Can reopening violate the ne bis in idem principle?

Reopening must respect the ne bis in idem principle, especially if a final court decision already exists in the case. If reopening attempts to reactivate a case which was finally decided by a court, it may conflict with Article 4 of Protocol No. 7 to the European Convention. ECtHR case law, including Mihalache v. Romania, stresses that reopening after a final decision must be exceptional and based on clear legal grounds. Romanian courts must interpret Article 335 CPP in harmony with these standards.

8.8. Do I need a lawyer if my discontinued case is reopened?

Although the law does not impose mandatory legal assistance in all cases, it is generally advisable to consult a criminal defence lawyer if your case is reopened. Reopening raises complex legal issues (nullity, limitation, ne bis in idem, interpretation of Article 335 CPP and of ECtHR/CCR case law) and may lead to an indictment. A lawyer can help you understand your rights, prepare your defence and decide on the appropriate strategy.

9. Useful links and further reading (Romanian)

• Code of Criminal Procedure – consolidated text (Legislative Portal of the Ministry of Justice)
• Article 335 CPP – Reopening and resumption of criminal prosecution
• Article 16 CPP – Cases preventing initiation and exercise of criminal action
• Article 340 CPP – Complaint against non-indictment solutions
• CCR Decision no. 324/2024 (constitutionality of Article 335(2), (4) CPP and Article 340(1) CPP)
• ICCJ Decision no. 27/2015 (preliminary ruling on Article 335 CPP)
• ICCJ Decision no. 23/2020 (RIL on “hierarchical superior prosecutor”)
• ECtHR – Stoianova and Nedelcu v. Romania
• ECtHR – Vasilescu v. Romania
• ECtHR – Mihalache v. Romania (Grand Chamber)

This article reflects the legal framework and case law available at the date of writing. Future legislative changes or new court decisions may modify some of the conclusions presented here.