Dispute Resolution

The New Romanian Civil Procedure Code – Bringing the Romanian Civil Trial up to European Standards

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.

roadmap 14
schoenherr attorneys at law / www.schoenherr.eu