The New Romanian Civil Procedure Code – Bringing the Romanian Civil Trial up to European Standards
→ Adina Jivan
As of 15 February 2013, Romania adapted and aligned its civil procedure legislation to reflect the significant changes undergone by the country over the last 20 years.
The requirement of a new civil procedure law
Over the last 20 years, against the background of the significant changes undergone by Romania, the justice system has been criticised for major failures that resulted in violations of the European Convention of Human Rights and Fundamental Freedoms (Convention), such as: overly difficult, formal, and expensive procedures; a lack of predictability due to long trials; and a lack of unity of the national jurisprudence, mainly brought about by the incoherent and fast-changing legislation.
These perceived dysfunctions of the Romanian justice system revealed the need for a new complex and consistent set of norms to regulate the civil trial, in a desire to overcome the inconsistencies identified by the European Court of Human Rights in its case law condemning Romania for breaching the standards of a fair civil trial as established by the Convention.
Therefore, the New Civil Procedure code, which came into force on 15 February 2013, sets to (i) provide the parties with a more simple and accessible means of exercising their civil rights and (ii) accelerate the civil proceedings, including the enforcement procedures. The new code also aims to ensure the requirements for a predictable duration of the trial and to provide effective remedies for a major deficiency of Romanian civil procedure: the lack of unity of Romanian case law.1
Ensuring a reasonable and optimal duration of the civil trial
It is noteworthy that the new code is the first Romanian civil procedure code to expressly raise the right of the parties to a fair trial, within a reasonable and predictable time, to the rank of a principle of civil procedure.
Moreover, the code establishes a streamlining of the summoning and court communication procedures, aiming to ensure the settlement of the trial in an optimal and predictable term, observing the principles of the parties’ right to a defence and the right to present their case.
In addition to the “classical” summoning procedures using agents of the court or regular post, the new law allows that, upon request of the interested party and at its cost, the summoning be done through court bailiffs or private delivery services. Furthermore, the new code allows the court clerk to summon the parties and communicate documents by any modern means of communication that ensures receipt, such as fax or email.
The New Civil Procedure Code rethinks the stages of a civil trial, introducing a written stage prior to the contradictorily judicial examination and to the debate of the merits of the case, leading to an improvement in the efficiency of the judicial proceedings and a decrease in the trial duration, while observing the requirements fairness.
The so-called written stage consists mainly in transmitting to the defendant or claimant the court claim, the statement of defence, or the counterclaim, as the case may be, with all documents submitted by the parties as evidence. This stage is called written because there are no hearings during this procedure, only submittal of written documents and evidence. The purpose of this phase is to clarify all claims and defences of the parties together with the supporting evidence. Thus, after the written phase, new claims, defences or means or evidence are permitted only under exceptional circumstances.
The second stage, reserved to raising the procedural exceptions and administering the evidence, will take place in a private hearing – as an expression of the predominantly private nature of the rights and interests exercised in a civil trial. However, in the absence of space for private hearings in the current headquarters of the courts, the entry into force of this procedure has been postponed until 1 January 2015.
As a rule, the third stage of the trial (the debates) will be conducted in a public hearing unless the parties request that the hearing be private.
To ensure the timeliness of the trial, under the new code, the judge must estimate the duration of the trial at the first court hearing to which the parties are legally summoned, taking into consideration the facts of the dispute and the pleas of the parties. Furthermore, as a rule, the judge is bound to set close court hearings, even on consecutive days.
The code also institutes a distinct special procedure against the breach of the right to have the trial settled within an optimal and predictable time: the challenge against the undue prolongation of the trial. According to the new procedure and in compliance with the decisions of the ECHR – which has sanctioned Romania for failing to provide legal remedies for breaches of the right to a reasonable duration of the trial – the party who deems that the trial is prolonged unnecessarily may request that such conduct be remedied.
The procedure is incidental and will be trailed by the court vested with the merits of the case, which will render a separate decision on this aspect (the parties may appeal against such decision to the higher court). When ruling upon the appeal, the higher court must refrain from providing interpretations of the facts or applicable legal provisions that may anticipate the solution on the merits of the case and must not hinder the free will of the judge vested with the merits of the case. To prevent this new procedure from itself becoming a means of prolonging the trial unnecessarily, any abusive use of such legal remedies will be sanctioned.
The unification of case law
The code creates a new mechanism destined to ensure, alongside the existing procedure of recourse in the interest of law, the achievement of the purpose of enhancing the predictability of the civil trial and the unity of Romanian case law.
Under this new procedure, a question of interpretation of a law that has generated different case law and that is essential to the solution rendered in this trial may be referred to the Supreme Court for an official interpretation. This official interpretation will be binding on all Romanian courts.
The New Civil Procedure code, which came into force on 15 February 2013, sets to (i) provide the parties with a more simple and accessible means of exercising their civil rights and (ii) accelerate civil proceedings, including enforcement procedures.
- In this article, ‘case law’ refers to court decisions broadly and does not have the meaning under common law, since in Romania court decisions bind only the parties and do not have the effect of a law.