On the sidelines of a solution with direct and immediate impact in tax evasion cases – HP Decision no. 430/2025 – the Costaș, Negru & Asociații team has prepared some preliminary conclusions.
On Monday, 15 December 2025, the High Court of Cassation and Justice – Panel for the Resolution of Legal Issues, by Decision No. 430/2025, upheld the request submitted by the Bucharest Court of Appeal – Criminal Division I, in case file no. 46964/3/2024/a1, for the purpose of delivering a preliminary ruling on the resolution of the following question of law:
“Under the interpretation of Article 10 of Law no. 241/2005, as amended by Law no. 126/2024 published in the Official Gazette no. 437 of 13 May 2024, does the failure to prepare a specialized expert report render the act of referral to the court irregular?”
The High Court of Cassation and Justice ruled:
Under the interpretation of Article 10 of Law no. 241/2005, as amended by Law no. 126/2024 (published in the Official Gazette no. 437 of 13 May 2024), the failure to prepare a specialized expert report renders the act of referral to the court irregular, which entails the return of the case to the prosecutor. This ruling is binding as of the date of its publication in the Official Gazette of Romania, Part I, pursuant to Article 477 para. (3) of the Criminal Procedure Code.
In other words, it was established that where an indictment for tax evasion offences provided for under Article 9 of Law no. 241/2005 has been issued without a specialized expert examination determining the amount of the damage, the indictment is defective from the perspective of defining the object of the trial, since the determination of the damage by means of a specialized expert examination is an explicit legal requirement. The consequence is the finding of an irregularity of the act of referral to the court and the return of the case to the prosecution service in order to supplement the criminal investigation with the expert examination expressly required by law. Therefore, if the case file contains only a tax inspection report or a tax calculation memorandum, but no expert report, the preliminary chamber judge will return the case file to the prosecutor for the taking of evidence by means of a specialized expert examination.
This decision supports the position adopted by our firm in cases pending before the courts at the preliminary chamber stage, in which we invoked the irregularity of the act of referral to the court where no expert report had been carried out to determine the damage related to the tax evasion offences provided for under Article 9 of Law no. 241/2005—cases which remain unresolved.
In the field of tax evasion offences lato sensu, in accordance with the provisions of Article 10 paras. (2) and (3) of Law no. 241/2005, the legislator has established the obligation that the damage – being a constituent element of the offence – must be determined on the basis of a specialized expert examination. On the occasion of the meetings on non-uniform judicial practice in criminal matters involving judges within the jurisdiction of the Courts of Appeal, it was concluded that the carrying out of the expert examination during the criminal investigation stage is mandatory for case files pending at the investigation stage at the time of entry into force of the amended provisions of Article 10 of Law no. 241/2005, under the sanction of relative nullity, under the conditions regulated by the Criminal Procedure Code. In substantiating this view, it was argued that the law makes no distinction, and that the wording “the damage shall be determined on the basis of a specialized expert examination” is imperative, the legislator having chosen to impose a specific evidentiary standard for the damage. Assuming that such evidence were not administered during the criminal investigation stage, the benefits regulated by Article 10 para. (2), first sentence, of Law no. 241/2005 would become illusory, since at the preliminary chamber stage evidence relating to the merits of the case cannot be ordered, while at the trial stage evidence by means of a specialized expert examination cannot be ordered before the first hearing (by which time payment should have been made). Moreover, it was noted that the expert examination must necessarily be carried out during the criminal investigation stage, since there is the possibility of reaching a solution not to prosecute if, following the expert examination, the suspect/defendant pays the damage, in which case referral to trial would no longer be justified.
The failure to carry out an expert report in order to establish the exact value of the damage constitutes a flagrant violation of the defendant’s rights, as the defendant would be unable to benefit from a ground for mitigation of punishment or exemption from punishment under Article 10 paras. (2) and (3) of Law no. 241/2005, and would deprive the criminal investigation stage of its substance, leading to a violation of the defendant’s right to defence and to the irregularity of the indictment due to the insufficient description of the act.
The absence of a specialized expert examination establishing the extent of the damage also makes the correct legal classification of the act directly impossible, since there are major differences between the provisions of paras. (1), (2), and (3) of Article 9 of Law no. 241/2005 on preventing and combating tax evasion, differences determined by the extent of the damage and having consequences on the limits of punishment.
Consequently, this decision confirms that the above arguments are valid, enshrining, from our point of view, a state of normality.
Costaș, Negru &Asociații is a civil law firm with offices in Cluj-Napoca, Bucharest and Arad, which provides assistance, legal representation and consultancy in several areas of practice through a team composed of 17 lawyers and consultants. Details regarding legal services and the composition of the team can be found on the website https://www.costas-negru.ro.All rights for the materials published on the company’s website and through social networks belong to Costaș, Negru &Asociații, their reproduction being permitted only for information purposes and with correct and complete citation of the source.
