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The Annulment Appeal in Criminal Matters

This guide explains what the annulment appeal is, when it can be used to attack a final criminal judgment and how it differs from ordinary appeals. It walks you through admissibility conditions, procedural steps and practical defence strategies so you can assess with your lawyer whether this extraordinary remedy is realistic in your case.

Introductory Notions: The Role of Extraordinary Remedies in Criminal Proceedings

In criminal proceedings, once ordinary remedies (the appeal) have been exhausted, court judgments become final and benefit from the authority of res judicata. The stability of final judgments is an essential principle, but the legislator has provided for extraordinary remedies that, in exceptional situations, allow the retraction or annulment of final judgments in order to correct fundamental miscarriages of justice. These extraordinary remedies – the annulment appeal, revision and the appeal in cassation – ensure a balance between the legal certainty offered by the finality of judgments and the need to correct serious errors of procedure or law that have affected the trial[1].

The annulment appeal is one such extraordinary remedy for retracting and annulling a final criminal judgment, allowing the court itself (or the hierarchically superior court) to annul its own judgment when it was delivered in breach of the law, in particular by infringing essential procedural rights or by an unlawful composition of the bench[1][2]. Unlike the appeal, which re-examines the merits of the case, the annulment appeal does not reassess the soundness of the evidence or the defendant’s guilt, but seeks to remove procedural errors that occurred during the trial. Its role is therefore limited and specific: to guarantee the right to a fair trial by correcting those procedural errors that could not be remedied by appeal, thus preserving the proper balance between respect for procedural rights and the principle of finality of judgments[3].

In what follows, we will detail the legal nature of the annulment appeal, the legal grounds provided by the Criminal Procedure Code (Art. 426 CPC) for lodging it, the time-limits and admissibility conditions, the effects on the enforcement of the sentence, the differences compared to other extraordinary remedies, as well as the relevant case-law of the High Court of Cassation and Justice (HCCJ) and the impact of decisions of the Constitutional Court (CCR) in this area. The tone will be professional, yet accessible to practitioners and readers interested in criminal law.

The Legal Nature and Specific Features of the Annulment Appeal

The annulment appeal has a mixed legal nature, combining features of a retracting remedy with those of an annulment procedure. It is sometimes described as an extraordinary retracting remedy, because it allows a final judgment to be withdrawn (retracted) by the very court that delivered it (or by the hierarchically superior court), when the strictly regulated legal conditions are met. By admitting the annulment appeal, the previous final judgment is annulled and the case is restored to its prior state, to be retried according to the law. In other words, the annulment appeal removes the res judicata effect of the challenged judgment so that a serious and objective procedural error can be corrected.

Unlike revision (which targets errors of substance, such as the discovery of new evidence or factual circumstances unknown at the time of the trial) and the appeal in cassation (which is a remedy in law, targeting legal errors and being decided by the High Court), the annulment appeal specifically concerns procedural errors that occurred during the trial and affected the parties’ procedural rights or the lawful composition of the court[1]. It does not seek to re-try the merits of the case as to guilt or legal classification, but to restore the procedural legality that was breached.

Thus, the annulment appeal focuses on issues such as: absence of a party from the proceedings for reasons not attributable to them, unlawful composition of the bench, failure to ensure mandatory defence, breach of the principle of publicity of the hearing, or the existence of two final judgments for the same act. All these situations are essential procedural errors that the law sanctions with nullity and that the annulment appeal can remedy, thereby ensuring respect for the right to a fair trial.

The legislator has regulated the annulment appeal in Arts. 426–432 CPC, maintaining the exhaustive/limited character of the cases in which it may be used[4]. The new regulation (Criminal Procedure Code 2014) has taken over some grounds from the old legislation and introduced new ones, previously assigned either to the ordinary appeal or to the appeal in cassation, thus shaping the annulment appeal as a specific remedy meant to correct serious procedural errors.

Currently, the annulment appeal is an extraordinary remedy of annulment, through its effects (it annuls the final judgment and sends the case back for retrial) in the situations provided under Art. 426 letters a) and c)–h) CPC, which concern non-compliance with procedural rules in the appeal (lawful service of summons, composition of the bench, presence of the parties and of the prosecutor, publicity of the hearing, etc.), and operates as a retracting remedy (retrial) in the situations under letters b) and i), which concern substantive aspects (the existence of a ground for termination of the criminal proceedings, respectively the ne bis in idem principle)[5][6].

This dual nature underlines the specific feature of the annulment appeal: it is an instrument for guaranteeing the legality of the criminal process, activated only in situations expressly provided by law and subject to strict procedural conditions.

Grounds for the Annulment Appeal (Art. 426 CPC)

The Criminal Procedure Code exhaustively lists the situations in which an annulment appeal may be brought against a final criminal judgment, in Art. 426. These situations (grounds) cover serious disruptions of the criminal process, mainly procedural errors that could not be raised or remedied by the ordinary appeal. We will present below, one by one, each of the grounds for the annulment appeal, as set out in Art. 426 letters a)–i) CPC, with explanations and practical examples.

Letter a) – The appeal was tried without the lawful service of summons on a party or, although lawfully summoned, that party was unable to attend and to inform the court of this impossibility[7].

This ground refers to situations where a party’s right to defence was gravely infringed at the appeal stage, either because the summons procedure was not properly carried out (unlawful service – for example, summons sent to a wrong address), or because the party was objectively unable to attend, despite lawful service. Additionally, the law requires that the party could not even inform the court of the reason for its absence[8].

Example: a defendant summoned for the appeal in another case, or hospitalised urgently and thus unable to notify the court, and the appeal was tried in their absence – such a situation can be remedied by an annulment appeal based on letter a), because the trial took place without the party being able to exercise their right to defence.

Letter b) – The defendant was convicted although there was evidence of a ground for termination of the criminal proceedings[9].

This ground covers situations where, as early as at the time of the trial (at first instance or on appeal), there existed a legal ground requiring the termination of the criminal proceedings (within the meaning of Art. 16 CPC – e.g. the act does not exist, the act is not an offence, the statute of limitations has expired, the defendant has died, an amnesty has intervened, etc.), and this ground follows from the evidence in the file. In practice, the court delivered a conviction while ignoring evidence or a situation that clearly made it impossible to hold the defendant criminally liable[10].

The annulment appeal does not allow new evidence to be taken, so new elements arising after the judgment cannot be relied upon. However, if the file already contained, for example, a death certificate of the defendant or a previous judgment of acquittal for the same act, and the court nevertheless convicted the person, this error can be remedied by an annulment appeal based on letter b).

A practical example is the situation where the defendant was convicted although the offence was already time-barred at the time of the trial; if the case-file documents contained information about the expiry of the limitation period, ignoring that information gives rise to the right to file an annulment appeal[11][12].

Conversely, if the issue was debated and dismissed on appeal (for example, the appellate court examined and concluded that the ground for termination did not apply), the annulment appeal cannot be used to reopen the same issue – the High Court has held, through a preliminary ruling, that the court deciding on an annulment appeal cannot re-examine a ground for termination of the criminal proceedings that has already been analysed by the appellate court[11][12]. To hold otherwise would transform the annulment appeal into a fresh appeal, contrary to the limited purpose of this extraordinary remedy.

Letter c) – The judgment was delivered by a bench different from the one that participated in the hearing of the case on the merits[13].

This ground concerns respect for the principles of immediacy and continuity of the bench. The court that decides on the merits (for instance, the appellate court) must be the same that heard the parties, witnesses and took the evidence. If, for example, the hearings took place before one bench, but the decision is signed by another bench (perhaps due to an administrative error or rotation of judges without repeating the hearing), we are in the situation covered by letter c).

In practice, the judgment is flawed because it was delivered by judges who did not actually participate in the trial and therefore did not directly perceive the evidence. Such a defect leads to the nullity of the judgment, which may be sought through an annulment appeal.

Letter d) – The court was not composed in accordance with the law or there was a ground for incompatibility[13].

This ground covers two distinct situations, both relating to the requirement that the court be lawfully composed and impartial.

  1. Unlawful composition of the court – occurs when the number or quality of judges does not comply with the law (for example, the case should have been tried by a bench of two judges, but was tried by a single judge; or a judge who was not legally assigned to that court participated in the bench).
  2. Existence of an incompatibility – arises when the judge who participated in deciding the case was in a situation provided by law that objectively affects their impartiality (for example, the judge previously dealt with the case in another capacity, is a relative of a party, etc. and did not recuse themselves).

If such a ground comes to light after the judgment becomes final, the annulment appeal is the remedy to obtain annulment of the flawed judgment.

Observation: The law provides a short time-limit for lodging the annulment appeal (see the next section) precisely for such situations – for example, if a party later discovers that a judge was incompatible, they must promptly file an annulment appeal. The Constitutional Court has been seised concerning these situations, arguing that the time-limit should run from the discovery of the incompatibility and not from the communication of the decision; however, the Court maintained the text of the law, holding that the legislator’s choice to impose a short time-limit (initially 10 days, later extended to 30 days) does not infringe the right of access to justice, as it is intended to ensure legal certainty[14][15]. By Decision no. 425/2024, the CCR dismissed as unfounded the exception raised on this issue and confirmed the constitutionality of Art. 428(1) CPC, which establishes the time-limit for lodging the annulment appeal[16].

Letter e) – The trial took place without the participation of the prosecutor or the defendant, when their presence was mandatory under the law[17].

In criminal proceedings, the presence of the prosecutor is mandatory in certain stages (such as the appeal), and the presence of the defendant is likewise mandatory in certain circumstances provided by law (for example, when their own appeal is being heard, if the defendant is under judicial control with an obligation to appear, or in other situations where trial in absentia is not permitted).

If, nevertheless, the case was tried without the prosecutor, although the law required their presence (the prosecutor ensuring, among other things, the legality of the proceedings), or without the defendant, although they had to be brought before the court, the judgment is open to annulment.

Example: in the appeal, the defendant in custody is not brought to the hearing, although they requested to be present and the law required their presence – if the appeal was tried in their unjustified absence, an annulment appeal based on letter e) is the appropriate remedy.

Letter f) – The trial took place in the absence of the defence counsel, when legal assistance of the defendant was mandatory under the law[18].

This ground protects the defendant’s right to defence, in those situations where the law provides for mandatory legal assistance (for example, for serious offences with high penalties, for minors, or for defendants with disabilities, etc.).

If the court continues the trial without a lawyer, although a case of mandatory defence is present (for example, the chosen lawyer did not attend and the court did not appoint a court-appointed counsel, even though the offence carries a penalty higher than 5 years’ imprisonment), the resulting judgment is affected by absolute nullity.

The defendant can obtain, through an annulment appeal, the annulment of such a judgment and the retrial of the appeal with full respect for the right to defence (with a lawyer present). This ground underlines the importance of defence counsel in guaranteeing a fair trial.

Letter g) – The hearing was not public, except for cases where the law provides otherwise[19].

The publicity of the court hearing is a fundamental principle of the criminal process, ensuring the transparency of justice. The law allows non-public hearings only in exceptional situations (for example, to protect minors, classified information, public morals, etc., the court may declare the hearing closed to the public).

However, if the trial was conducted without public access in a manner contrary to the law (for instance, the public was excluded without a formal decision providing the legal grounds, or in a case where secrecy was not justified), the judgment so delivered can be challenged. In practice, letter g) protects the public character of justice.

Example: in an ordinary criminal appeal, the court decides to sit in chambers without any legal reason – such a departure from publicity may be sanctioned through an annulment appeal.

Letter h) – The court failed to hear the defendant who was present, although their hearing was legally possible[19].

This ground refers to the defendant’s right to be heard and to have the last word before deliberation, as well as the right to make a statement when present before the court.

If the defendant appeared at the hearing and the court, although legally able to hear them (there was no impediment), omitted to give them the floor or to hear them on the facts and their defence, a fundamental right was breached.

Example: in the appeal, the defendant wishes to make a statement or provide clarifications, and the court proceeds directly to deliberation without hearing them, although their presence allowed a hearing – the resulting judgment is flawed. An annulment appeal based on letter h) offers a remedy by annulling such a judgment delivered in breach of the defendant’s right to be heard.

Letter i) – Two final judgments have been delivered against the same person for the same act[19].

This ground reflects the ne bis in idem principle (no person may be tried or punished twice for the same act).

If, through an error, a person has been finally convicted by two different courts for the same material act (possibly under similar or related charges), or two conflicting final judgments have been delivered (for example, a conviction and an acquittal) in separate cases concerning the same act and the same person, we face a flagrant violation of this principle.

The annulment appeal is the mechanism used to resolve the conflict of res judicata: one of the judgments must be annulled. As a rule, the annulment appeal is lodged against the second final judgment, and if admitted, the court annuls that judgment, notes the existence of res judicata and terminates the criminal proceedings in that case.

Initially, the law also provided a very short time-limit (10 days) for this case, which made it difficult to exercise this right, because the existence of two judgments might be discovered long after they were delivered. The Constitutional Court, by Decision no. 501/2016, admitted the constitutional challenge and held that it is excessive to condition the annulment appeal in such a case on a time-limit so short[20]. The Court underlined that, given the gravity of the violation (two convictions for the same act), imposing a 10-day time-limit from the date of becoming aware of the judgment is unreasonable and constitutes a disproportionate obstacle to the exercise of an effective remedy[20][21].

Consequently, the law was amended – at present, an annulment appeal based on letter i) may be lodged at any time, without a time-limit (details in the next section on time-limits). In practice, whenever the existence of two final judgments for the same act is discovered (for example, when two sentences are enforced against the same defendant for the same act), the person concerned can use the annulment appeal to have one of them set aside and legality (ne bis in idem) restored.

Summary of the Grounds

The grounds for the annulment appeal cover various situations, but they share a common denominator: a serious procedural error that affected the parties’ procedural rights or the legality of the judgment. Only in these strictly defined situations provided in Art. 426 CPC may an annulment appeal be used.

Any other reason outside the above categories (for example, dissatisfaction with the evaluation of the evidence, the severity of the sentence, or failure of the court to rule on a substantive ground of appeal) cannot be raised by way of annulment appeal – such issues fall under the appeal (if raised in time) or under other extraordinary remedies (revision or appeal in cassation), but not under the annulment appeal.

This remedy is extraordinary and must be interpreted restrictively. In practice, courts verify with great rigour whether the grounds invoked fall within one of the situations listed above, already at the preliminary stage of admission in principle (discussed below).

Procedural Time-Limits and Admissibility Conditions

Time-limit for Lodging the Annulment Appeal

The annulment appeal is subject to strict time-limits, designed to ensure speed and legal certainty. The general rule, laid down in Art. 428 CPC, is that “the annulment appeal for the grounds provided in Art. 426 letters a) and c)–h) may be lodged within 30 days from the date of communication of the appellate court’s decision”[22][23].

In other words, for the majority of grounds (except letters b) and i)), the interested party has 30 days from the communication of the final decision (usually the communication of the appeal judgment) to lodge the annulment appeal. The time-limit runs from the date on which the person against whom the judgment is enforced became aware of it (through official service of the decision).

It is important to stress that under the initial regulation of the Code (2014), the general time-limit was 10 days, but by Government Emergency Ordinance (G.E.O.) no. 18/2016 it was extended to 30 days, in view of the need to ensure a more reasonable period for preparing the claim (and in the context of constitutional criticism of the 10-day time-limit as too short – e.g. CCR Decision no. 802/2017 raised this issue). At present, 30 days is the applicable time-limit for procedural errors (letters a), c)–h)).

There are two notable exceptions, expressly regulated, where the time-limit is not limited in time, given the particular nature of the situations concerned:

  1. For letter b) (there is evidence of a ground for termination of the criminal proceedings), “the annulment appeal may be lodged at any time”[24][25]. The legislator considered that where a person has been wrongly convicted despite the existence of evidence of innocence or of a ground for termination (e.g. decriminalisation, statute of limitations, death, amnesty), it would be unjust to impose a time-limit for correcting the situation. Even if the error is discovered after the sentence has been enforced, the annulment appeal remains admissible at any time. Attention: this does not turn the annulment appeal into a remedy without time-limit for any situation – it strictly applies to the ground under letter b). A defendant can invoke at any time, even years after the conviction, that the file contained evidence of a ground for termination that was not considered, and request annulment of the judgment. The court will, however, rigorously verify whether such evidence indeed existed at the time of the conviction and whether it falls within the legal grounds for termination (Art. 16 CPC).
  2. For letter i) (two final judgments for the same act), the annulment appeal may likewise be lodged at any time[23][26]. As mentioned above, this amendment followed the intervention of the Constitutional Court (Decision no. 501/2016), which required the removal of the initial 10-day time-limit for letter i) as unconstitutional[20][21]. Currently, when two final judgments for the same person and act are discovered, the party concerned (usually the defendant) may lodge an annulment appeal without any time-limit, in order to invoke the breach of the ne bis in idem principle. Of course, once lodged, the annulment appeal is dealt with speedily, but its introduction is no longer conditional upon a particular time-frame.

Admissibility Conditions

Simple compliance with the time-limit is not sufficient; the annulment appeal must also meet other procedural conditions to be admissible.

Under Art. 431 CPC, the court seised examines the admissibility in principle of the annulment appeal in chambers. Following the CCR’s case-law, this procedure now takes place with the parties being summoned and with the participation of the prosecutor (see below)[27][28].

At this initial filter stage, the judges verify:

  • whether the annulment appeal was lodged within the legal time-limit (where the 30-day limit applies; for b) and i) there is no such limit, but the court will still look at the promptness relative to the time the party became aware of the ground);
  • whether the ground invoked is one of those listed in Art. 426 CPC[29], i.e. whether a specific letter a)–i) is indicated. The appellant must, according to the law, state in the claim the legal ground (letter) relied on and the specific factual reasons supporting the appeal[30][31]. Invoking reasons outside Art. 426 leads to the annulment appeal being dismissed as inadmissible, without examination on the merits.
  • whether supporting evidence is indicated and/or filed, and whether it exists in the file[29][32]. This means that the party must identify the elements of proof already in the original file that support the ground invoked. – For letter b), this will be the evidence in the file attesting the ground for termination (previous judgment, death certificate, document showing the limitation period, etc.).
    – For letter a), evidence regarding failure of service or the impossibility to appear (e.g. summons sent to another address in the file, hospital documents, etc.).

The court will not admit the annulment appeal in principle if the grounds are purely declarative and not supported by verifiable elements (evidence in the original case-file or annexed to the claim).

If these conditions are met cumulatively, the court will admit the annulment appeal in principle and order that the parties be summoned for the hearing on the merits of the appeal[29][32]. Otherwise, the annulment appeal is dismissed as inadmissible by a reasoned ruling, without summoning the parties.

This preliminary filter prevents abuses of the annulment appeal and ensures that only claims based on legal grounds and lodged in time proceed to a full hearing.

Who May Lodge an Annulment Appeal

Pursuant to Art. 427 CPC, standing to lodge an annulment appeal lies with any of the parties, the injured person, as well as the prosecutor[33][34].

Thus, not only the convicted defendant may resort to this extraordinary remedy, but also the other parties in the proceedings (the civil party, the civilly liable party) or the injured person, if they consider that their procedural rights were infringed by the final judgment.

The Public Prosecutor’s Office, in its role as guardian of legality, may also lodge an annulment appeal (in theory both in favour of and against the defendant), although in practice prosecutors normally use it when they detect a manifest error that led to an unlawful solution.

Example: if a civil party later discovers that the appeal was tried without summoning them, although their presence would have been mandatory, they may lodge an annulment appeal based on letter a). Likewise, the prosecutor may lodge an appeal if, for instance, they find that a defendant was tried on appeal without a lawyer in a case requiring mandatory defence (letter f)), seeking annulment of the decision and retrial with the necessary safeguards.

Court Having Jurisdiction

The annulment appeal must be lodged with the court that delivered the judgment whose annulment is sought – usually the appellate court (court of appeal or tribunal, as the case may be) that decided the appeal in that case[35][36].

However, if the annulment appeal concerns res judicata (letter i)) between two judgments, the law provides that the claim is lodged with the court whose judgment became final last (so that it can be connected with the earlier judgment)[35][37].

Example: if a person was finally convicted by District Court X and later, for the same act, by District Court Y, the annulment appeal will be filed with the court whose judgment became final last (say, Y). The court will decide on the annulment appeal and, if it is admitted, will annul one of the judgments (usually the later one) for breach of res judicata.

Note on Procedure

After admission in principle and summoning of the parties, the annulment appeal is tried in public hearing, with the participation of the prosecutor.

The court may take evidence if necessary to verify the grounds (but only formal evidence or that already in the file – the annulment appeal is not a devolutive remedy in which the whole case is retried).

Finally, the court delivers a decision on the annulment appeal:

  • either it admits the appeal (annuls the final judgment and decides what follows – for example, it orders the retrial of the appeal from the stage at which the defect occurred, or it terminates the proceedings if a ground for termination exists);
  • or it dismisses it (upholding the initial judgment).

Effects of the Annulment Appeal on the Enforcement of the Sentence

Lodging an annulment appeal can have an immediate impact on the enforcement of the sentence, which is crucial for defendants already serving custodial sentences.

Art. 430 CPC provides for the possibility of suspending enforcement of the challenged judgment:

“Pending the resolution of the annulment appeal, the court seised may, after hearing the prosecutor’s submissions, suspend the enforcement of the judgment whose annulment is sought”[38][39].

This means that, once the annulment appeal is lodged, the appellant may request the court to suspend the enforcement of the sentence temporarily. Suspension is not automatic, but is ordered only if the court so decides, after assessing that there are sufficient grounds.

In practice, the request for suspension is handled urgently, usually in chambers alongside the admission-in-principle stage or shortly thereafter. The court will consider both the seriousness of the grounds relied upon and the risk of continuing the enforcement of a possibly unlawful sentence.

Effect of suspension: if the court grants the request, enforcement of the sentence is temporarily stopped until the annulment appeal is decided. In the case of imprisonment, the defendant in detention may be released (provided they are not detained in another case) for the duration of the annulment appeal, if the court considers the request well-founded.

This mechanism prevents unjust situations where a sentence, which might later be annulled, continues to be enforced.

Examples of effects:

  • If the annulment appeal is ultimately admitted, the effects on the penalty depend on the solution given on the merits of the appeal:
    • In cases where the remedy leads to retrial (e.g. letters a), c)–h)), the court admitting the annulment appeal annuls the challenged judgment (usually the appeal decision) and orders the retrial of the appeal or of the case from the point at which the defect occurred. By annulling the judgment, the penalty imposed in it is set aside, so there is no longer a legal basis for enforcement. If the defendant was serving the sentence, they will be released (the sentence having been annulled). The case is retried and, at the end, a new judgment is delivered (which may or may not again convict the defendant).
    • In cases where the annulment appeal aims at termination of the criminal proceedings (letter b)) or at resolving a ne bis in idem situation (letter i)), admission of the appeal directly produces the desired effect: the court finds that a ground for termination exists and orders the termination of the proceedings (or annuls one of the judgments in the case of letter i)). The sentence imposed is annulled and, if it was being enforced, enforcement ceases definitively.
  • If the annulment appeal is dismissed (as late, inadmissible or ill-founded), the initial judgment remains fully in force. In this case, if enforcement was suspended, the suspension automatically ceases once the annulment appeal is finally decided, and the sentence is immediately enforced again. Example: a defendant obtained suspension of the sentence while the annulment appeal was pending; if the appeal is dismissed, they must return to prison to continue serving the sentence, the suspension period being treated as a period in which enforcement was halted (it is not deducted from the sentence, because enforcement was suspended).

It should be emphasised that the court orders suspension after hearing the prosecutor’s submissions[38]; the Public Prosecutor’s Office is thus involved in the decision. Often, prosecutors oppose suspension when they consider the annulment appeal unfounded, but the final decision belongs to the court, which weighs both the protection of the appellant’s rights and the public interest in not halting enforcement of a lawfully delivered sentence.

In practice, suspension is granted mainly in cases where there is a serious appearance of judicial error (e.g. clear evidence of wrongful conviction or obvious procedural defects).

During the suspension, the general rules apply:

  • if the annulment appeal is later dismissed, the suspension period does not exempt the person from serving the sentence;
  • if it is admitted, the person will either no longer serve the sentence (if the proceedings terminate) or will be subject to a new judgment delivered after retrial.

In conclusion, the annulment appeal offers persons wrongly convicted (or affected by major procedural errors) not only the chance to have the judgment annulled, but also – in appropriate cases – to suspend enforcement in the meantime, thus avoiding continued enforcement of a potentially unjust sentence. It is an important safeguard, balanced by the requirement that the grounds invoked be serious and fall strictly within the scope of Art. 426 CPC.

Distinctions from Other Extraordinary Remedies (Revision, Appeal in Cassation)

Annulment Appeal vs. Revision

Both the annulment appeal and revision are extraordinary remedies under the Criminal Procedure Code, but they have different objects and conditions.

Revision (Arts. 453 et seq. CPC) focuses on factual errors or new elements that came to light after the judgment. It is a retracting remedy that allows reconsideration of the merits of the case when new evidence or circumstances emerge which, had they been known at the time of the trial, could have changed the outcome.

Typical grounds for revision include:

  • the discovery of new decisive evidence that was unknown at the time of trial;
  • a final judgment finding that a witness, expert or judge committed an offence in connection with the case (false testimony, false expert report, judicial misconduct, etc.);
  • conflicting final judgments (for different persons) concerning the same act;
  • judgments of the European Court of Human Rights or of the CCR that affect the conviction, etc.

Revision may be requested both in favour of the defendant and against them (for example, if after an acquittal, new evidence of guilt appears, the prosecutor may seek revision to the defendant’s detriment within one year of discovering the new evidence).

Key differences from the annulment appeal:

  • Revision targets the merits of the case and new factual situations, whereas the annulment appeal targets procedural defects that occurred during the trial, without introducing new factual elements.
  • Time-limits differ: revision has specific time-limits (generally 3 months from the discovery of the new facts, with exceptions), whereas the annulment appeal has fixed time-limits from the communication of the judgment (or is timeless for certain situations, as shown).
  • Jurisdiction differs: revision is decided by a court of the same level as that which delivered the final judgment (but in a different bench), while the annulment appeal is decided by the court that delivered the judgment (or the hierarchically superior one in special cases).
  • Effects differ: if admitted, revision leads to a retrial of the merits of the case in light of the new elements, potentially resulting in a different outcome (acquittal, conviction, termination, etc.), whereas the annulment appeal leads to the annulment of the flawed judgment and the resumption of the proceedings from the stage at which the defect occurred, without reassessing the evidence except as required by the retrial.

Comparative example:

  • If, after conviction, a new piece of evidence (a video recording) is discovered proving the defendant’s alibi, the correct remedy is revision (there is no procedural error, but a new fact).
  • If, on the other hand, the defendant was convicted without having had a mandatory lawyer, the proper remedy is the annulment appeal; there is no new fact, but a serious procedural defect.

Annulment Appeal vs. Appeal in Cassation

Appeal in cassation (Arts. 433 et seq. CPC) is an extraordinary remedy in law, decided exclusively by the High Court of Cassation and Justice. It seeks to correct major legal errors in final judgments (for example, misapplication of criminal law, lack of jurisdiction, exceeding powers).

The grounds for appeal in cassation are exhaustively listed in Art. 438 CPC and include, inter alia:

  • the judgment was delivered by a court lacking jurisdiction (material jurisdiction or jurisdiction based on the quality of the person);
  • the defendant was convicted for an act that is not an offence;
  • penalties were imposed outside the legal limits;
  • serious breaches of procedural principles occurred (e.g. unlawful composition of the court, failure to serve summons) – some of these overlap with the grounds for the annulment appeal.

Key differences:

  • Appeal in cassation is decided by the High Court and may be brought only in certain types of cases (not all judgments are subject to cassation; for example, judgments delivered in appeal for minor offences may not be subject to this remedy).
  • Parties (the defendant, the civil party) may lodge an appeal in cassation only through a lawyer with the right of audience before the High Court; the prosecutor may lodge it directly.
  • The time-limit for lodging the appeal in cassation is 30 days from the communication of the final judgment[22][23], similar in length to the annulment appeal (for most grounds), but the cassation procedure includes a stricter filter of admissibility at the High Court (a judge examines whether the remedy is admissible in principle).
  • Appeal in cassation does not suspend enforcement by operation of law; however, the High Court may exceptionally order suspension of enforcement in the context of cassation (in cases of obvious error).
  • The object of cassation is limited to issues of legality: if the appeal in cassation is admitted, the High Court quashes the challenged judgment and either remits the case for retrial or acquits/terminates the proceedings (if the law requires such a solution, e.g. the act is not an offence). It does not re-examine the facts and evidence as such, but only the conformity of the judgment with the law.

By contrast, the annulment appeal is addressed to the court that delivered the judgment (except where the High Court itself acted as appellate court, in which case the annulment appeal is lodged with the High Court) and targets specific procedural errors.

Synthetic Comparison

  • Grounds:
    • Annulment appeal – specific procedural errors (letters a)–i) of Art. 426);
    • Revision – new facts or evidence, or fraud in the original proceedings;
    • Appeal in cassation – major legal errors, breaches of substantive or procedural law.
  • Jurisdiction:
    • Annulment appeal – the court that delivered the judgment (usually the appellate court);
    • Revision – a court of the same level as the one that delivered the judgment (usually the same court, but a different bench);
    • Appeal in cassation – High Court of Cassation and Justice.
  • Time-limits:
    • Annulment appeal – 30 days (in most cases) or at any time (letters b) and i));
    • Revision – various time-limits calculated from the discovery of new facts (e.g. 3 months);
    • Appeal in cassation – 30 days from communication, with no exceptions.
  • Object of retrial:
    • Annulment appeal – annulment of the flawed judgment and resumption of the trial from the defective stage;
    • Revision – retrial of the merits of the case in light of the new elements;
    • Appeal in cassation – quashing the judgment and possibly remitting for retrial or deciding the case on points of law.
  • Suspension of enforcement:
    • Annulment appeal – possible provisional suspension ordered by the court hearing the appeal[38];
    • Revision – the law does not provide automatic suspension, but the court may suspend enforcement pending revision (Art. 459(3) CPC);
    • Appeal in cassation – does not suspend enforcement by operation of law, but the High Court may order suspension in exceptional cases (Art. 441 CPC).
  • Main purpose:
    • Annulment appeal – ensure procedural legality and the right to defence;
    • Revision – uncover the truth in light of new facts;
    • Appeal in cassation – ensure uniform and lawful application of the law.

In practice, these extraordinary remedies are mutually exclusive: where the problem falls within the scope of the annulment appeal (e.g. failure to serve summons in appeal), revision or cassation will not generally be available for the same matter (courts will dismiss the remedy as incorrectly chosen).

A lawyer must therefore choose the right remedy for the client’s situation:

  • a new alibi, or new evidence of innocence → revision;
  • procedural defects during the appeal → annulment appeal;
  • misapplication of criminal law (e.g. penalty above the maximum) → appeal in cassation.

It is also important to note that CCR decisions have created additional remedies: for example, where a judgment relied on a provision later declared unconstitutional, revision is the appropriate remedy (the legislator added Art. 453(1)(f) CPC through G.E.O. 18/2016[40]).

The annulment appeal cannot be used to give effect to CCR decisions on the merits (e.g. on the statute of limitations): attempts have been made to use letter b) in such cases, but the HCCJ has held that the annulment appeal is not admissible to re-assess limitation if it was examined in the appeal; the appropriate path is revision or other legislative remedies[11][12].

Relevant Case-Law of the High Court and the Impact of CCR Decisions

Practice of the High Court of Cassation and Justice (HCCJ)

In the nearly ten years since the 2014 Criminal Procedure Code entered into force, the HCCJ has clarified, through key decisions, several aspects concerning the annulment appeal.

  • Decision no. 10/2017 (Preliminary ruling) The Court established that the court hearing an annulment appeal based on Art. 426(b) CPC may not re-examine a ground for termination of the criminal proceedings if that ground has already been debated and decided by the appellate court[11][12]. Published in the Official Gazette no. 392/2017, this decision prevented the misuse of the annulment appeal as a way to indirectly challenge the merits of the appeal judgment. The HCCJ underlined that letter b) concerns procedural errors (omission to consider existing evidence regarding a ground for termination) and does not grant a right to a “second opinion” on termination if the appeal already assessed it. Allowing otherwise would turn the remedy into a new grade of jurisdiction, contrary to the legislator’s intent[12].
  • Decision no. 3/2015 (Appeal in the interest of the law) This concerned the procedure for admission in principle of the annulment appeal, amid initial legislative inconsistencies. Originally, Art. 431(1) CPC provided that admission in principle takes place “without summoning the parties” and did not mention participation of the prosecutor. The HCCJ held, by this appeal in the interest of the law, that the filter procedure is carried out without summoning the parties but with the participation of the prosecutor, to ensure legality and a minimum of adversarial procedure[41][42]. Subsequently, however, the CCR intervened (Decision no. 542/2015) and declared unconstitutional the legislative solution of not summoning the parties at the admission-in-principle stage, holding that the parties must have access at this stage as well. As a result, G.E.O. 18/2016 amended Art. 431(1), so that admission in principle is now examined “with the parties being summoned and with the participation of the prosecutor”[27][28]. In practice, parties can now be heard and submit observations even at the filter stage, although their absence does not prevent the court from ruling.
  • Practice regarding limitation: A hot topic in recent years has been the application of CCR decisions on limitation (Decisions no. 297/2018, 358/2022, etc.) to final cases. Some convicted persons attempted to use the annulment appeal (letter b)) arguing that limitation of criminal liability is a ground for termination and that the courts failed to apply it. Between 2022–2023, many such appeals were dismissed, and the HCCJ explained why: if, at the time of the appeal, the limitation rules in force envisaged a particular interruption regime and the court applied that law, the fact that later CCR declared those rules unconstitutional does not mean that, at the time of trial, there was “evidence of a ground for termination” within the meaning of letter b). The absence of limitation was not a contemporaneous procedural error, but arose only through a subsequent change in the legal framework. The annulment appeal is therefore not the correct remedy to enforce such a change in constitutional case-law. Instead, revision was identified as the proper path (the legislator introduced G.E.O. 34/2022 enabling revision in cases concerning CCR decisions on limitation). The HCCJ has thus confirmed that CCR decisions on limitation cannot be invoked under letter b) of the annulment appeal, especially when limitation was addressed and rejected on appeal. Reference is made to the 2017 preliminary ruling and to the principle that letter b) concerns situations existing at the time of the judgment and overlooked, not subsequent declarations of unconstitutionality. The Court has also pointed out that failure of the appellate court to rule on every ground of appeal does not amount to a ground for annulment appeal, but to a potential ground for cassation in law or other remedies. Furthermore, it has clarified that judgments delivered in ancillary proceedings (execution, checking irregularities in the indictment in the preliminary chamber, etc.) cannot be challenged by annulment appeal, as Art. 426 refers to final judgments on the merits (conviction, acquittal, termination in appeal).

Impact of Constitutional Court Decisions (CCR)

The CCR has significantly shaped the regime of the annulment appeal, by ruling on constitutional challenges to certain procedural provisions of the CPC.

  • Decision no. 501/2016 (Official Gazette no. 734/21.09.2016) The CCR admitted the challenge and held that Art. 428(1) CPC, insofar as it subjected letter i) to a 10-day time-limit, was unconstitutional[43][44]. The Court reasoned that when a person faces duplicate criminal proceedings (two judgments for the same act), access to justice requires an effective remedy, and it is not reasonable to demand that they meet a short time-limit if they may only discover the parallel proceedings late. The 10-day limitation was found to be “an excessive condition” for exercising the right to an annulment appeal in such cases[45]. As a consequence, the legislator (via G.E.O. 18/2016) amended Art. 428 by introducing paragraph (2), which now expressly provides that the annulment appeal based on letters b) and i) may be lodged at any time[22][23]. In practical terms, this CCR decision greatly expanded access to the annulment appeal in ne bis in idem situations.
  • Decision no. 542/2015 The CCR declared unconstitutional the legislative solution in Art. 431(1) CPC that excluded summoning of the parties at the admission-in-principle stage[46][47]. The Court held that denying participation of the parties at this preliminary stage violated the right to a fair trial and that the mere participation of the prosecutor did not suffice. This decision was implemented through G.E.O. 18/2016, which amended Art. 431(1) CPC by ensuring that the filter stage is held with the parties being summoned and the prosecutor participating[27].
  • Decision no. 667/2015 This decision addressed the scope of the annulment appeal, in the context of a challenge arguing that judgments delivered in the preliminary chamber (Art. 347 CPC), which are final, should also be open to an annulment appeal. The CCR upheld the constitutionality of the limitation in the law – Art. 426 concerns only final judgments on the merits (in appeal)[48][49]. The Court held that the legislator deliberately confined the annulment appeal to those final judgments and that access to justice does not entail a right to any and all remedies against any “final” decision. Later, this issue was revisited in Decision no. 427/2024, where several defendants argued that there was a lack of protection for procedural errors in the preliminary chamber (e.g. failure to summon the defendant in the appeal against the chamber’s order). The CCR dismissed the challenge, reiterating that the annulment appeal has a clearly defined scope (final judgments on the merits) and that extending it to interim orders would undermine legal certainty[48][49]. The Court stressed that, once the preliminary chamber is concluded by a final order, the process moves to the merits and allowing an annulment appeal against that order would disrupt the normal flow of criminal proceedings[50][51].
  • Decision no. 425/2024 (Official Gazette no. 1048/2024) The CCR dismissed a challenge to the 30-day time-limit in Art. 428(1) CPC concerning letters a) and c)–h). The complainant argued that the time-limit should run from the discovery of the incompatibility of the judge, not from the communication of the decision, as they had only learnt about the incompatibility after 30 days. The CCR held that regulating a fixed time-limit lies within the legislator’s margin of appreciation and does not infringe access to justice as long as it is reasonable in duration[52][53]. Extending the time-limit until the discovery of the incompatibility would, in the Court’s view, effectively turn the annulment appeal into an open-ended remedy, contrary to legal certainty. Decision no. 425/2024 thus confirms the underlying philosophy: the annulment appeal must be exercised within a short period after the conclusion of the proceedings (with justified exceptions), otherwise the legal order would be in perpetual uncertainty[54][55].

Overall, CCR decisions have improved procedural safeguards (e.g. extended access for letter i), participation of the parties at the filter stage) without unduly expanding the scope of the annulment appeal. The Court has preserved the exceptional character of this remedy, maintaining the limitations on the situations in which it can be lodged and resisting attempts to use it outside its intended purpose (e.g. against preliminary chamber orders or to challenge the merits).

At the same time, the legislator and the CCR have created additional mechanisms to correct judicial errors in final cases (e.g. extending appeal in cassation to HCCJ judgments as appellate court – CCR Decision no. 434/2018, revision for CCR decisions, etc.). The annulment appeal, however, remains the dedicated instrument for procedural errors suffered by the parties during the trial.

Practical Conclusions for Defendants and Lawyers

The annulment appeal is an extraordinary remedy that can provide a legal “lifeline” in limited but critical situations. For defendants and their lawyers, knowing and correctly using the annulment appeal can make the difference between an unjust conviction being maintained and a fair retrial.

Some practical conclusions and tips:

  • Always check for procedural defects after a final decision. After an appeal judgment becomes final, check whether there were procedural defects in the appeal (or in the first instance if that judgment became final). If the client was not summoned or could not attend for objective reasons, if the case was tried without counsel although defence was mandatory, if a judge on the bench was incompatible, or if a judge who took part in the hearing did not sign the decision (indicating that someone else delivered the judgment), the annulment appeal is likely the appropriate remedy. Time is crucial: in most cases you have 30 days from communication of the judgment to file the annulment appeal. Prepare a thoroughly reasoned claim, clearly indicating the specific ground (letter of Art. 426) and the concrete evidence in the file supporting the defect. A well-argued and well-documented claim has a higher chance of passing the admissibility filter.
  • Do not confuse the annulment appeal with the appeal or revision. The annulment appeal is not a “mini-appeal” where you can re-argue innocence or reclassification. Avoid raising matters related purely to the merits (unless falling under letter b), i.e. the existence of a legal ground barring conviction). For example, the statement “the witnesses lied, the client is innocent” is a matter of merits, not of annulment appeal – that would fall within revision (if new evidence appears) or the appeal (if raised in time). By contrast, “the client was not summoned to the appeal and did not know about the hearing” is a classic example of an annulment appeal ground (letter a)). Correctly classify the defect and cite the applicable legal text; courts are very strict in rejecting annulment appeals that do not fit the cases under Art. 426.
  • Act promptly and calculate time-limits correctly. The 30-day time-limit usually runs from the communication of the appeal decision to the defendant (or the interested party). If you are a lawyer and receive the decision by e-mail or at the bar, note the date and count 30 calendar days (if the last day falls on a weekend or public holiday, it is extended to the next working day). For letters b) and i), although the law says “at any time”, the practical recommendation is to file the annulment appeal as soon as you discover the ground – unnecessary delay may raise questions about good faith, even if it does not cause formal lateness. Special situations: if the final judgment is that of the HCCJ (acting as appellate court), the annulment appeal will be heard by the HCCJ, and the 30-day time-limit is just as strict.
  • Use the possibility to request suspension of enforcement. If the client is serving a sentence (imprisonment, other custodial measure), do not forget to explicitly request, in the annulment appeal, suspension of enforcement of the judgment for the duration of the proceedings (Art. 430 CPC)[38]. Motivate why suspension is necessary (for example: “there is a serious doubt as to the legality of the conviction, the client risks serving an unlawful sentence, the defect is obvious – lack of summons”). Courts grant suspension in strong cases; prepare the client, however, that suspension is not automatic. If suspension is granted, explain that it is temporary and that the client must appear at the annulment appeal hearing; if the appeal is dismissed, they will have to return to prison to serve the rest of the sentence. Suspension is a benefit that must be used responsibly (a client provisionally released must comply with the law and appear in court).
  • Do not neglect the other extraordinary remedies. The annulment appeal does not replace them. If the client’s situation fits better with revision or appeal in cassation, pursue those remedies rather than forcing an annulment appeal. For example:
    • if you have a CCR decision that opens the way to revision (e.g. a decision of unconstitutionality regarding an offence – Art. 453(1)(f) CPC), file for revision, not an annulment appeal;
    • if a criminal provision was applied incorrectly (e.g. an erroneous aggregation of penalties), think of appeal in cassation.
    Courts will dismiss annulment appeals that are misused, and the time lost may be crucial (the cassation time-limit may expire in the meantime).
  • Observe the formal requirements of the claim. The annulment appeal must be in writing, reasoned and filed with the registry of the competent court (or sent by post within the time-limit). In practice, wrongly indicating the court (e.g. filing with the tribunal instead of the court of appeal) may be forgiven if the claim reaches the competent court within the time-limit, but as a rule you should file directly with the court that delivered the final judgment. In the claim, specify: the details of the challenged judgment (number, date, court), the ground (letter) of the annulment appeal invoked, the factual situation and legal arguments, the evidence in the file and attach relevant copies (where available). Sign the claim (if filed through a lawyer, attach the power of attorney). Failure to comply with these elements may lead to regularisation orders or even dismissal.
  • For civil parties or victims: They can use the annulment appeal especially in situations under letter a) (they were not lawfully summoned to the appeal) or letter d) (incompatible judge). For example, if a civil party was not heard in the appeal and an unfavourable solution was delivered (their civil claim was dismissed without their being summoned), the annulment appeal provides a remedy. Likewise, the prosecutor may support the victim if a serious defect is detected (for example, a defendant is acquitted on appeal due to a procedural error – the prosecutor may lodge an annulment appeal in the interest of legality).

In essence, the annulment appeal is a finely tuned legal instrument that must be used strictly in the situations for which it was designed. A professional lawyer will know how to identify those procedural violations that are suitable for this remedy and act quickly to protect the client.

At the same time, they will avoid creating unrealistic expectations – the annulment appeal does not reopen the trial for any dissatisfaction, but only for major procedural irregularities.

When used properly, the annulment appeal proves to be a safety net of criminal justice, allowing serious judicial errors to be removed and strengthening public confidence in the administration of justice.

Useful Sources

  • Criminal Procedure Code (Arts. 426–432) – full regulation of the annulment appeal, on the official Legislative Portal (legislatie.just.ro):
    • Art. 426 CPC – Grounds for the annulment appeal[7][13];
    • Art. 428 CPC – Time-limit for lodging the annulment appeal[22][23];
    • Art. 430 CPC – Suspension of enforcement of the challenged judgment[38].
  • CCR Decision no. 501/2016 – on the constitutionality of Art. 428(1) CPC in relation to Art. 426(i) (Official Gazette no. 734/21.09.2016). The CCR admitted the challenge and explained why the 10-day time-limit was excessive in ne bis in idem cases, holding that the legislator’s choice imposed an unreasonable condition that infringed access to justice[20][21].
  • CCR Decision no. 542/2015 – on the necessity of summoning the parties at the admission-in-principle stage of the annulment appeal, which led to the amendment of Art. 431(1) CPC[46][47].
  • CCR Decision no. 667/2015 and CCR Decision no. 427/2024 – on the limitation of the annulment appeal to final judgments on the merits (excluding preliminary chamber orders) and on the compatibility of this limitation with the right of access to justice[48][49][50][51].
  • CCR Decision no. 425/2024 – confirming the constitutionality of the 30-day time-limit in Art. 428(1) CPC (with exceptions for letters b) and i)), in the light of the need to preserve legal certainty[52][53][54][55].

Final note: The annulment appeal is a technical remedy and rarely used (given the strict conditions), but it remains an indispensable tool for defence counsel facing situations of procedural injustice. By making judicious use of this extraordinary remedy, lawyers can ensure the full observance of their clients’ procedural rights and the correctness of the criminal justice process. [7][2]

[1] [2] [4] [5] [6] (PDF) The annulment appeal. Clarifications of points of law and issues of constitutionality
https://www.researchgate.net/publication/366953497_Contestatia_in_anulare_Dezlegari_ale_unor_chestiuni_de_drept_si_probleme_de_constitutionalitate

[3] [48] [49] [50] [51] [56] [57] DECISION 427 24/09/2024 – Legislative Portal
https://legislatie.just.ro/public/DetaliiDocument/295709

[7] [9] [13] [17] [18] [19] Art. 426 New Criminal Procedure Code Cases of annulment appeal Annulment appeal Extraordinary remedies of appeal | New Criminal Procedure Code updated 2024 – Law no. 135/2010
https://legeaz.net/noul-cod-procedura-penala-ncpp/art-426

[8] [10] [24] [25] The annulment appeal in criminal law – Alexandru Măglaș – Law Office, Bucharest
https://www.maglas.ro/blog-avocat/contestatia-in-anulare-in-drept-penal/

[11] [12] HCCJ: Within the annulment appeal, the grounds for termination of the criminal proceedings debated by the appellate court cannot be re-examined – Legal Land
https://www.legal-land.ro/iccj-cadrul-contestatiei-anulare-nu-se-pot-reanaliza-cauzele-de-incetare-procesului-penal/

[14] [15] [16] [52] [53] DECISION 425 24/09/2024 – Legislative Portal
https://legislatie.just.ro/public/DetaliiDocument/295584

[20] [21] [43] [44] [45] Avocat Bacău – Constitutional Court decisions
https://www.avocatpocovnicu.ro/juridice/avocat-bacau-stiri-penal/avocat-bacau-decizii-ale-curtii-constitutionale/

[22] [23] [26] [27] [28] [40] [46] [47] Government Emergency Ordinance (GEO) no. 18 of 18/05/2016 – Legislative Portal
https://legislatie.just.ro/Public/DetaliiDocument/178639

[29] [32] [41] [42] Art. 431 New Criminal Procedure Code Admission in principle Annulment appeal Extraordinary remedies of appeal | New Criminal Procedure Code updated 2024 – Law no. 135/2010
https://legeaz.net/noul-cod-procedura-penala-ncpp/art-431

[30] [31] [33] [34] Art. 427 New Criminal Procedure Code Application for annulment appeal Annulment appeal Extraordinary remedies of appeal | New Criminal Procedure Code updated 2024 – Law no. 135/2010
https://legeaz.net/noul-cod-procedura-penala-ncpp/art-427

[35] [36] [37] Art. 429 New Criminal Procedure Code Court having jurisdiction Annulment appeal Extraordinary remedies of appeal | New Criminal Procedure Code updated 2024 – Law no. 135/2010
https://legeaz.net/noul-cod-procedura-penala-ncpp/art-429

[38] [39] Art. 430 New Criminal Procedure Code Suspension of enforcement Annulment appeal Extraordinary remedies of appeal | New Criminal Procedure Code updated 2024 – Law no. 135/2010
https://legeaz.net/noul-cod-procedura-penala-ncpp/art-430

[54] [55] DECISION 322 10/05/2018 – Legislative Portal
https://legislatie.just.ro/Public/DetaliiDocument/204284