Waiver of prosecution in Romanian criminal law (Article 318 CPC): when it makes sense for the prosecutor not to send the case to court

In Romanian criminal law, the general rule is that once a criminal offence has been committed and there is sufficient evidence, the prosecutor should send the case to court and let a judge decide on guilt and punishment. However, Article 318 of the Romanian Code of Criminal Procedure (“Codul de procedură penală” – CPC) regulates an important exception: waiver of prosecution (“renunțarea la urmărirea penală”).

Under this mechanism, the prosecutor may decide not to continue the criminal investigation and not to send the case to trial, even though the act is a criminal offence and the perpetrator is known, if there is no public interest in pursuing the case. At the same time, the law allows the prosecutor to impose certain obligations on the suspect/defendant (for example, community work, public apology, or repairing the damage), subject to judicial confirmation by a preliminary chamber judge.

This article explains, in accessible language:

• how waiver of prosecution works in Romanian law and what Article 318 CPC actually provides;
• what substantive and procedural conditions must be met for the prosecutor to use this solution;
• how waiver of prosecution differs from discontinuance of prosecution (“clasarea urmăririi penale”) and from court solutions such as renunciation of the application of the penalty;
• what role the defence lawyer plays, both for the suspect/defendant and for the injured person;
• what the Constitutional Court (CCR) and the High Court of Cassation and Justice (ICCJ) have said about Article 318 CPC;
• when, in practice, it may or may not be “worth it” for the prosecutor to choose waiver of prosecution instead of sending the case to court.

For context, if you are looking for a more general overview of the prosecutor’s solutions and remedies, you can also read the following English-language articles published on the same website:

• Discontinuance of criminal prosecution in Romania (“clasarea urmăririi penale”): what it means, when it is ordered and what effects it has on your criminal case
  
• Complaint against the prosecutor’s solutions in Romanian criminal law (discontinuance, waiver of prosecution, indictment): steps, deadlines and strategies
  
• Reopening of criminal prosecution and resumption after discontinuance in Romanian law: when and how a criminal case can be reactivated
  

This article is for general information only and does not constitute legal advice. Any concrete case must be assessed individually together with a qualified lawyer, in the light of the file, the competent prosecutor’s office or court and the law in force at that time.

1. Legal framework: Article 318 CPC and the idea of “public interest”

The legal basis for waiver of prosecution is Article 318 CPC. In its current form (after the changes brought by Government Emergency Ordinance no. 18/2016 and subsequent amendments), the text provides, in summary, that:

• for offences punishable by a fine or imprisonment of up to 7 years (maximum special prescribed by the law), the prosecutor may waive prosecution if there is no public interest in pursuing the offence;
• public interest is assessed based on a series of criteria, such as:
  • content of the act and the concrete circumstances of its commission;
  • manner and means of commission;
  • aim pursued;
  • consequences caused or that could have been caused;
  • efforts required from the criminal investigation bodies compared to the seriousness of the act and the time elapsed since its commission;
  • attitude of the injured person;
  • obvious disproportion between the costs of the criminal proceedings and the seriousness of the consequences of the offence.
• when the perpetrator is known, the prosecutor also takes into account:
  • the suspect’s/defendant’s personality and prior conduct;
  • their behaviour after the offence (for example, whether they voluntarily repaired the damage or apologised);
• when the perpetrator is not identified, waiver of prosecution may still be ordered, but only in relation to some of the criteria mentioned above (essentially, those linked to the act rather than the person);
• waiver of prosecution is not allowed if the offence resulted in the victim’s death.

Article 318 CPC is closely linked to the principle of opportunity in exercising criminal action, as regulated in Article 7 CPC. The legislator has explicitly accepted that, in certain situations, the criminal justice system’s resources should not be used for a full criminal trial, even though the act is an offence and the author is known, when the public interest in prosecution is low and other measures (administrative, disciplinary, etc.) are sufficient.

2. Constitutional Court: from unconstitutionality to judicial control

Waiver of prosecution has been the subject of intense constitutional review. In Decision no. 23/2016, the Constitutional Court of Romania (CCR) held that the original wording of Article 318 CPC was unconstitutional, mainly because it allowed the prosecutor to adopt a solution with effects similar to a court decision, without any judicial control.

In essence, the Court considered that:

• by waiving prosecution, the prosecutor decided alone that there was no need for a criminal reaction, which could be comparable, in its effects, to a decision of renunciation of the application of the penalty or a conviction with suspended sentence;
• this transferred to the prosecutor prerogatives specific to the courts (jurisdictio and imperium), without an effective judicial review mechanism, contrary to Articles 21 and 126 of the Constitution (access to justice and the role of courts).

Following the CCR’s decision, the legislator intervened by Government Emergency Ordinance no. 18/2016, which radically changed the procedure:

• the prosecutor still decides whether to waive prosecution and, where appropriate, sets obligations for the suspect/defendant;
• however, the order must be sent to the preliminary chamber judge for confirmation, who examines both the lawfulness and the soundness of the decision;
• only if the judge confirms the solution does it become final in the criminal aspect; otherwise, the judge may refuse confirmation and send the file back to the prosecutor.

Later decisions of the Constitutional Court (for example, Decision no. 630/2023 and Decision no. 105/2025) have confirmed the constitutionality of the new regulation, while clarifying certain details, such as:

• how the time-limits and the communication of the order work;
• how the revocation of waiver of prosecution operates when the obligations imposed are not fulfilled in bad faith;
• how judicial control over reopening of prosecution interacts with previous waiver decisions.

3. Substantive conditions for waiver of prosecution

3.1. Maximum penalty: offences punishable by up to 7 years’ imprisonment

The first substantive condition is linked to the gravity of the offence. Article 318 CPC expressly provides that waiver of prosecution is possible only for offences punishable by:

• fine; or
• imprisonment of up to 7 years (maximum special in the Criminal Code or special criminal laws).

The High Court of Cassation and Justice has confirmed that the phrase “up to 7 years” includes offences whose maximum special penalty is exactly 7 years (not only those below this threshold).

In practice, this means that waiver of prosecution can be considered, for example, for certain offences of bodily injury by negligence, minor property offences, some computer-related offences, etc., but not for more serious offences such as aggravated robbery, most forms of corruption, or offences resulting in death.

3.2. The offence exists and there is evidence

An important aspect that distinguishes waiver of prosecution from discontinuance (“clasare”) is that, in case of waiver:

• the prosecutor considers that the act meets the elements of a criminal offence;
• there is sufficient evidence to identify the perpetrator and, in substance, to support a charge, if the case were sent to court;
• however, given the low gravity and the other criteria, there is no public interest in continuing the full criminal process.

By contrast, discontinuance is ordered when one of the grounds provided by Article 16 CPC applies (for example, the act does not exist, is not provided by criminal law, the statute of limitations has expired, there is not enough evidence, etc.). In other words, waiver of prosecution is not a “disguised acquittal”, but an expression of prosecutorial opportunity in cases where the offence exists, but a full trial would be excessive.

3.3. Lack of public interest in prosecution

The core condition is the lack of public interest in pursuing the criminal case. Article 318(2) CPC lists several criteria, which the doctrine and case law treat as guidelines that must be analysed concretely for each case, not as a checklist to be ticked mechanically.

Among these criteria, in practice the following are particularly important:

• content of the act and concrete circumstances – was it an isolated, minor incident, or part of a systematic pattern? Was it committed spontaneously or planned?
• manner and means of commission – did it involve violence, threats, abuse of authority, or vulnerable victims?
• aim pursued – was the intention trivial or opportunistic, or was there a particular malice?
• consequences – what damage was caused or could have been caused (financial, physical, moral)?
• time elapsed – how long has it been since the offence, and what has happened in the meantime?
• attitude of the injured person – does the injured person consider that a full criminal trial is necessary, or is he/she more interested in rapid reparation of the damage?
• disproportion between costs and gravity – would the resources needed for a full criminal trial be clearly disproportionate to the seriousness of the case?

Legal literature emphasises that “lack of public interest” should not be confused with the prosecutor’s desire to reduce workload; it must be genuinely grounded in these criteria and in the idea that a criminal trial is not necessary to protect society in that particular case.

3.4. Assessment of the person of the suspect/defendant

When the perpetrator is known, Article 318(3) CPC additionally requires consideration of:

• the suspect’s/defendant’s personality (age, level of education, occupation, social integration);
• their prior conduct (previous criminal record, repeated similar acts, or, on the contrary, a clean record);
• their behaviour after the offence (voluntary reparation of damage, apologies, cooperation with the authorities).

The rationale is simple: waiver of prosecution should not be used in a way that encourages impunity for those who repeatedly commit offences or who show contempt for the law. But, for a young person with no criminal record who has made a minor mistake, or for someone who has promptly repaired the damage, waiver may be an appropriate solution.

4. Procedure: how waiver of prosecution is ordered and confirmed

4.1. When in the criminal investigation can waiver be ordered?

Article 318 CPC, in its current form, allows the prosecutor to waive prosecution once the essential elements of the offence and the circumstances of the act are clarified, so that the assessment of public interest is not purely speculative. Doctrine generally notes that waiver should be considered after a minimum investigation that allows a clear picture of:

• the legal classification of the act;
• the maximum special penalty applicable;
• the identity of the suspect/defendant (where known);
• the effects of the offence and the injured person’s position.

If the offence is serious or unclear, or if there are conflicting versions that require extensive evidence, waiver of prosecution is generally not appropriate.

4.2. Contents of the prosecutor’s order

The order by which the prosecutor waives prosecution must be reasoned and must include, among other things:​

• a description of the act and its legal classification;
• the reasoning regarding the existence of the offence and the evidence obtained;
• the analysis of public interest in light of the criteria in Article 318(2) and (3) CPC;
• the obligations imposed on the suspect/defendant (if any), with indication of the legal basis and the time-limit for fulfilment;
• the way in which the injured person’s position has been taken into account;
• information on the judicial confirmation procedure and on possible remedies.

From a defence perspective, this reasoning is crucial: it shows how the prosecutor understood the facts, how he/she interpreted the law and what expectations exist regarding the obligations imposed. A superficial or formulaic reasoning may be a good argument for the judge not to confirm the solution.

4.3. Obligations that can be imposed under Article 318 CPC

Under Article 318(3)–(6) CPC, the prosecutor may impose one or more obligations on the suspect/defendant as a condition for waiver of prosecution, such as:​

• remedying the consequences of the offence or repairing the damage, or reaching an agreement with the injured party on how the damage will be repaired;
• public apology to the injured person, in a form appropriate to the circumstances;
• unpaid community work for a period between 30 and 60 days, unless the person is objectively unable to perform such work (for example, due to health reasons);
• attending a counselling programme (for example, in cases involving certain behavioural problems, addictions, or family conflicts).

These obligations are not “penalties” in the strict sense, but rather conditions attached to waiver, designed to increase its preventive and restorative impact. The High Court, in Decision no. 15/2019 (RIL), clarified, among other things, that the obligation of community work may also be imposed on a minor who has reached the age of 16, under certain conditions, and that this is compatible with constitutional safeguards.

The execution of these obligations is governed by Law no. 253/2013 on the execution of sentences and measures ordered by judicial bodies during criminal proceedings, Article 89 of which regulates how the obligations set by the prosecutor in case of waiver of prosecution are actually implemented (collaboration with local authorities, probation services, etc.).

4.4. Communication and judicial confirmation by the preliminary chamber judge

After the order is issued:

• it is communicated to the person who made the referral (complainant), to the suspect/defendant and, where appropriate, to other parties affected;
• the prosecutor sends the file to the preliminary chamber judge from the court attached to the prosecutor’s office that adopted the solution, together with a proposal for confirmation.

The judge then examines:

• the lawfulness of the solution (respect for legal conditions, competence, procedure);
• the soundness of the reasoning (whether the assessment of public interest is coherent and proportionate).

Following the CCR’s case law (including Decision no. 23/2016 and later decisions regarding Articles 340–341 CPC), the procedure before the judge must be oral and adversarial. The parties (injured person, suspect/defendant, prosecutor) must have the opportunity to present arguments and, where appropriate, to be heard.

The preliminary chamber judge may:

• confirm the waiver of prosecution, in which case the solution becomes final in the criminal aspect (without prejudice to the possibility of civil claims being pursued in civil proceedings);
• refuse confirmation if he/she considers that the legal conditions are not fulfilled or that the assessment of public interest is wrong; in that case, the judge sends the file back to the prosecutor, usually with indications on the issues to be clarified or on the appropriate procedural framework (for example, continuing the investigation or sending the case to trial).

5. What happens if the obligations are not fulfilled? Revocation and reopening

Article 318 CPC also regulates the situation in which the suspect/defendant fails to fulfil the obligations imposed within the set term. In such situations:

• if the obligations are not fulfilled in bad faith (for example, the person simply refuses to perform community work, although he/she could), the prosecutor may revoke the waiver of prosecution;
• following revocation, the prosecutor may either continue the criminal investigation with a view to indictment or adopt another solution (for example, discontinuance, if new circumstances appear).

The Constitutional Court (Decision no. 105/2025, among others) has underlined that this revocation mechanism must respect the general guarantees of fairness: the person must be properly informed of the obligations, must have had a realistic opportunity to fulfil them and the authorities must distinguish between bad faith and situations where objective reasons prevented fulfilment.

If the waiver of prosecution is revoked, the file may subsequently lead to:

• indictment and trial – if the evidence is sufficient and the public interest has changed (for example, new elements have appeared or the non-compliance itself shows a certain attitude);
• another non-prosecution solution (for instance, discontinuance on statute-of-limitation grounds), if in the meantime a cause precluding criminal liability has arisen.

In some situations, reopening of prosecution under Article 335 CPC may also interact with waiver decisions, for example when new evidence emerges or when the effectiveness of the investigation is questioned from the perspective of the European Convention on Human Rights. For a more detailed discussion of reopening, see the article:

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

6. Waiver of prosecution vs. discontinuance and court solutions

6.1. Waiver of prosecution vs. discontinuance (“clasare”)

Although they both end the criminal investigation without a trial, waiver of prosecution and discontinuance are different institutions, with distinct logic:

• Discontinuance (Article 315 CPC and Article 16 CPC):
  • is based on grounds such as: the act does not exist, is not a criminal offence, there is a cause precluding criminal liability (statute of limitations, amnesty, death, etc.) or there is not enough evidence;
  • is, in a way, a conclusion that the criminal accusation cannot be upheld (or no longer can be upheld) as a matter of law or evidence;
  • may in some cases have effects similar to an acquittal, especially from the perspective of the ne bis in idem principle (as the ECtHR has shown in the Mihalache v. Romania judgment).
• Waiver of prosecution (Article 318 CPC):
  • is based on the existence of the offence and of the perpetrator, but on the lack of public interest in continuing criminal proceedings;
  • asks mainly “is it necessary, in the public interest, to send this case to court?”, rather than “do we have an offence and evidence?”;
  • may be accompanied by obligations imposed on the suspect/defendant, with a preventive and restorative role.

From the viewpoint of public perception, this distinction is essential: a discontinuance decision can be interpreted as a form of “clearance” of the person (the act does not exist, there is no evidence, etc.), whereas waiver of prosecution explicitly states that the act is an offence, but that, given its low gravity and other factors, a full criminal trial is not justified.

6.2. Waiver of prosecution vs. renunciation or postponement of the application of the penalty

The Criminal Code also contains institutions such as renunciation of the application of the penalty (Article 80 Criminal Code) and postponement of the application of the penalty (Article 83 Criminal Code), which are decided by the court, after a trial. These are different from waiver of prosecution in that:

• they presuppose a conviction (the court finds the defendant guilty) and then decides not to apply a penalty, or to postpone its application, under certain conditions;
• their field of application is partially different (for example, renunciation of the application of the penalty is, as a rule, limited to offences punishable by imprisonment of up to 5 years).

By contrast, waiver of prosecution is decided by the prosecutor, before trial, and is based on public interest criteria, not on the court’s assessment of re-education needs after a conviction. The Constitutional Court, in Decision no. 517/2019, explicitly compared these institutions and found that the different conditions for their application do not violate the principle of equality, given their distinct nature and function.

7. When does waiver of prosecution “make sense” for the prosecutor?

In practice, prosecutors and defence lawyers often ask themselves in which situations waiver of prosecution is a realistic and appropriate option. Without attempting to provide an exhaustive list, some frequent scenarios include:

• Minor offences with full reparation of damage – for example, small property offences where the damage has been fully repaired promptly, the injured person does not insist on a criminal trial and the perpetrator has no prior record.
• Incidental conduct with very low gravity – cases where the criminal nature of the act is borderline and the main interest is to avoid future similar behaviour, which can be achieved through counselling or public apology.
• Old facts with limited impact – offences committed many years ago, with minor consequences, for which a full trial would require considerable resources, disproportionate to the public interest in punishment.

By contrast, waiver of prosecution is rarely appropriate (and may even be criticised as abusive) in cases where:

• the offence involves vulnerable victims, domestic violence, or serious forms of discrimination;
• the act has a significant social impact (for example, offences committed by public officials in the exercise of their office);
• the suspect/defendant has a relevant criminal history suggesting a pattern of similar conduct.

Specialist doctrine (for example, the monograph by Radu Slăvoiu and INM studies) emphasises that waiver of prosecution should not become a “shortcut” to avoid complex trials or a tool to improve statistics, but should be used carefully in genuinely marginal cases.

8. The role of the defence lawyer in waiver of prosecution cases

8.1. For the suspect or defendant

For a suspect or defendant, waiver of prosecution can be both an opportunity (avoiding trial, possible public exposure and the risk of conviction) and a potential trap (if the obligations are unrealistic or if the reasoning negatively labels the person in a way that may have future consequences).

The defence lawyer’s tasks include, among others:

• explaining the legal framework of Article 318 CPC and differences from discontinuance and from sending the case to trial;
• analysing whether the conditions for lack of public interest are genuinely fulfilled, or whether waiver is being used inappropriately instead of a discontinuance or of further investigation;
• negotiating, where possible, the content and duration of the obligations (for example, adjusting the number of days of community work to the client’s real possibilities, or clarifying the form of public apology);
• checking that the order’s reasoning does not contain unnecessary or exaggerated formulations that could prejudice the client in other contexts (for example, in employment or professional relations);
• representing the client before the preliminary chamber judge in the confirmation procedure, arguing in favour of the solution or, on the contrary, requesting refusal of confirmation if the conditions are not met.

In some situations, the lawyer may conclude that waiver of prosecution is not in the client’s best interest, for example when:

• the evidence is weak and there is a realistic chance that the case would be discontinued or that an acquittal could be obtained;
• the obligations imposed are disproportionate to the gravity of the act;
• the reasoning contains severe assessments that could be used in other proceedings (disciplinary, professional, civil).

For a more detailed discussion of the defence lawyer’s role during criminal investigation in Romania, you can read:

The role of the defence lawyer during criminal investigation in Romania: what they actually do and which mistakes they can prevent
.

8.2. For the injured person

The injured person may also be assisted by a lawyer, whose role is to make sure that:

• the injured person’s position is properly heard and recorded;
• the damage is fully and realistically assessed (including non-pecuniary damage, where appropriate);
• the obligations imposed (reparation, apology) reflect the injured person’s legitimate interests;
• the injured person understands their options if they disagree with the waiver decision (for example, complaint against the solution, civil action, etc.).

Sometimes, the injured person may be tempted to accept any solution that includes formal reparation, simply to “get it over with”. However, a careful analysis is necessary: in some cases, a criminal trial is important not only for punishment, but also for clarifying facts and for a sense of justice. In others, a rapid solution with real reparation and an apology may be more beneficial than a long, uncertain trial.

9. How can waiver of prosecution be challenged?

Waiver of prosecution is not “untouchable”. Both the injured person and, in certain situations, the suspect/defendant or other parties may challenge the solution.

The main avenues are:

• in the confirmation procedure before the preliminary chamber judge, by arguing that the conditions of Article 318 CPC are not met or that the obligations imposed are disproportionate;
• through the complaint mechanism against the prosecutor’s acts and solutions, described in detail in Articles 336–341 CPC and in the article:
  Complaint against the prosecutor’s solutions in Romanian criminal law (discontinuance, waiver of prosecution, indictment): steps, deadlines and strategies
  .

Recent Constitutional Court and ICCJ case law insists that these remedies must be interpreted in a way that preserves their effectiveness, avoiding excessive formalism that would make them merely theoretical.

10. Conclusions

Waiver of prosecution under Article 318 CPC is one of the most interesting instruments at the intersection of criminal policy and individual rights in Romanian law. Properly used, it allows the system to concentrate resources on serious cases, while providing a reasonable and balanced solution for minor offences where a full criminal trial would be disproportionate.

However, because waiver of prosecution:

• acknowledges the existence of an offence;
• may impose obligations on the suspect/defendant;
• and requires a nuanced assessment of public interest,

it must be applied with great care, both by prosecutors and by judges who confirm the solution. The defence lawyer and the injured person’s lawyer play a crucial role in ensuring that this mechanism is not misused and that the rights and interests of all parties are respected.

If you are involved in a criminal case in Romania and the possibility of waiver of prosecution is being considered – either as a suspect/defendant or as an injured person – it is essential to discuss in detail with a lawyer:

• what Article 318 CPC means concretely in your case;
• what alternatives exist (discontinuance, reopening, sending the case to trial);
• what the short- and long-term consequences of each option are.

Each case has its own particularities, and what is appropriate in one file may be completely unsuitable in another. A carefully calibrated decision, based on thorough legal and factual analysis, is often the difference between a pragmatic, fair solution and an outcome that generates new problems.

Sources and further reading

• Romanian Code of Criminal Procedure (Law no. 135/2010, republished) – consolidated version available on the
  official Legislative Portal.
• Article 318 CPC – waiver of prosecution – updated text and commentary on specialised platforms, e.g. Sintact,, codurilepenale.ro.
• Constitutional Court, Decision no. 23/2016 on the unconstitutionality of the original version of Article 318 CPC – summary and full text available via Lege5.ro and
  Juri.ro.
• Constitutional Court, recent decisions on Article 318 CPC, including
  Decision no. 630/2023,
  Decision no. 105/2025,
  and
  Decision no. 517/2019.
• High Court of Cassation and Justice, Decision no. 15/2019 (appeal in the interest of the law) on the obligation to perform community work in case of waiver of prosecution – available on the
  ICCJ official website.
• RADU SLĂVOIU, Renunţarea la urmărirea penală, Ed. Hamangiu – table of contents and excerpt available
  on the publisher’s website.
• Mihaela Pavil, “Consideraţii privind renunţarea la urmărirea penală”, INM, 2023 – available as PDF on the website of the
  National Institute of Magistracy.
• Law no. 253/2013 on the execution of sentences and measures ordered by judicial bodies – see in particular
  Article 89.
• Articles on related topics on this website:
  • 
    Discontinuance of criminal prosecution in Romania
    
  • 
    Complaint against the prosecutor’s solutions in Romanian criminal law
    
  • 
    The role of the defence lawyer during criminal investigation in Romania
    

FAQ – Waiver of prosecution in Romanian criminal law (Article 318 CPC)