Does special guardianship prevent a judge from granting a protection order?

Abstract

Under Romanian law, can a protection order be issued against a person who is subject to special guardianship and lacks the capacity to act?Courts are divided on this issue, and these uncertainties stem precisely from the aggressor’s status as a protected adult, a status that is difficult to grasp: should such a person be subject to proceedings whose meaning they do not understand? Would they be able to comply with the ‘obligations, duties and prohibitions’ imposed on them by the protection order? Would these not, in all likelihood, be ignored? Furthermore, failure to comply with these obligations entails criminal liability, whilst it is assumed – by an illogical leap – that persons lacking the capacity to exercise their rights are implicitly lacking in discernment, and would therefore not be criminally liable in the event of a breach of the protection order. Following this line of reasoning, the introduction of such a measure would be entirely ineffective and, as such, pointless.In Decision No. 73/2026, the panel of the High Court of Cassation and Justice responsible for preliminary rulings on points of law found that no ruling was warranted in this case. As no binding decision on the merits was ever issued, the question remains open. It is all the more pressing because the Court’s own reasoning merely set out the arguments supporting each side, without refuting either or explaining how they might be challenged.However, no special provision or provision of ordinary law restricts the scope of application of the protection order on the basis of the aggressor’s status. Nor does the protection regime enjoyed by a person placed under special guardianship shield them from any civil or criminal liability. Nor do the obstacles cited by the courts stand up to close scrutiny. The question remains: has an appearance of a gap in the interpretation of the text of the law – which formed the subject of the Supreme Court’s referral – crept into the judges’ thinking?