Abstract
The chapter provides a critical analysis of civil litigation in Romania with a perspective on the recent procedural reforms. An essential characteristic of the modern Romanian Civil Procedure, discussed in this chapter, is the active role of the judge, a principle that has enjoyed a great deal of recognition in doctrine and has been deeply entrenched in the judicial culture and practice. The Romanian New Code of Civil Procedure provides an express legislative recognition of fundamental principles of procedure that have been developed by doctrine and sanctioned to a large extent by jurisprudence. Despite the comprehensive proclamation of these principles, the New Code of Civil Procedure departs from the application of the stated principles by way of its concrete provisions. A recurring theme behind the legislative reform of Romanian civil procedure is the need for greater efficiency and avoiding undue delays. Significant changes introduced in the fields of mediation and the administration of evidence by attorneys have had a limited impact on the overall system of civil litigation.
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- 1.
- 2.
Alexe 2008, p. 394.
- 3.
Ibidem.
- 4.
Alexe 2008, p. 399.
- 5.
- 6.
Alexe 2008, p. 401.
- 7.
Initiated by Law 341 of 1947.
- 8.
Law 5 of 1952.
- 9.
Decree 471 of 1957.
- 10.
Decree 38 of 1959.
- 11.
See e.g. Decree 470 of 1958. See also Spinei 2011, p. 42.
- 12.
The Code was subject to a formal renumbering under Law 18 of 1948. By contrast, the Code of Criminal Procedure, also adopted in the mid-nineteenth century, was abrogated and replaced in 1968 by an entirely new code.
- 13.
Art. 129 of the Romanian Code of Civil Procedure (1952).
- 14.
Excerpts from Art. 130 of the Romanian Code of Civil Procedure (1952).
- 15.
- 16.
See Alexe 2008, p. 414 et seq. and authorities cited therein.
- 17.
Ibidem.
- 18.
See Ciobanu 1997, p. 132.
- 19.
Law 134 of 2010.
- 20.
On 25 January 2012, the Ministry of Justice announced that the NCPC would formally become effective on 1 June 2012. That date was subsequently changed several times.
- 21.
See Emergency Governmental Decree OUG No. 4 of 2013. However, the entry into force of some specific provisions of the NCPC has been postponed. For logistical reasons, several provisions related to the investigation of the case, the preparation of the case-file for appeal and further review have been delayed until 1 January 2016, and certain provisions related to the mediation procedure until 1 August 2013. See Law 2 of 2013.
- 22.
It should be mentioned that after the NCPC entered into force, commercial law is no longer an area where specialised tribunals and specialised commercial divisions operate. Romania recently adopted a New Civil Code, which entered into force on 1 October 2011. One of the aims of the New Civil Code was the unification of all areas of private law, and therefore it abolished the Commercial Code. Similarly, the NCPC no longer contains provisions for a special procedure applicable to commercial litigation. Consequently, the newly formed specialised tribunals in the area of commercial litigation as well as commercial divisions existent within the ordinary courts have ceased to exist.
- 23.
See Art. 109(2) CCP.
- 24.
In this context, the pre-action procedure discussed herein is to be distinguished from the ‘pre-action protocols’ that are available in England and Wales under the Civil Procedure Rules.
- 25.
Alternatively, the request may be addressed to a different public authority that is hierarchically superior to the authority that issued the act.
- 26.
See Deleanu (2007), p. 192 et seq.
- 27.
See Decision No. 569/2006 (administrative litigation) and Decision No. 86/2007 (commercial case).
- 28.
See Decision No. 285/2002.
- 29.
See ICCJ (com. div) Decision No. 3184/2004.
- 30.
See Art. 188 NCPC.
- 31.
The Romanian terminology is susceptible of having different meanings depending on the context. The word ‘cerere’, which literally means demand, claim or request, is used in reference not only with the initial petition, but also with regard to other procedural acts in which the court or another party is requested to act, such as motions, incidental demands, procedural exceptions, third-party intervention, cross-claims, etc.
- 32.
The phraseology ‘cerere de chemare in judecata’ may alternatively be translated as a ‘request to call to justice’, which may serve as a better reflection of the cultural underpinnings of the civil process, given the highly inquisitorial nature of Romanian civil litigation. Interestingly enough, the expression ‘to bring into judgment’ is the cause of a doctrinal debate between two leading academics on whether the vesting of the court with power to adjudicate the litigation is a procedural act distinct from the petition. The majority of the doctrine regards the petition as the same act as vesting the court (see Ciobanu 1997, Vol. II, p. 24; Leş 2010, p. 453), while one influential writer disagrees noting that in case of a non-contentious procedure the ‘request to bring into judgment’ takes the form of a joint petition, which vests the court but cannot be regarded as a ‘bringing into judgment’ or a ‘call to justice’ since both parties are in agreement over the demand. See Deleanu 2007, p. 319.
- 33.
Deleanu 2007, p. 134.
- 34.
Leş 2010, p. 334.
- 35.
When juridical persons are involved, other identifying elements are required by the current legislation in force, such as: registration number, fiscal code and bank account. Under the NCPC, the additional identification elements for juridical persons are required only insofar as they are known to the plaintiff.
- 36.
Art. 129(5) CCP.
- 37.
The ‘first day of appearance’ is a hearing of particular importance which constitutes the point of reference for many procedural arrangements. The first day of appearance is to be distinguished from the first hearing. According to Art. 134 CCP, the first day of appearance is to be considered the hearing where the parties have been legally cited and are able to argue in the case. Thus, there may be several hearing dates prior to the first day of appearance. The NCPC abandons this terminology and replaces it with ‘the first hearing date where the parties are legally cited’.
- 38.
Art. 195 NCPC.
- 39.
Ibidem.
- 40.
Art. 196 NCPC.
- 41.
Ibidem.
- 42.
Despite the similar terminology, the closing order described herein should not be confused with the ‘closing order’ available under French civil procedure (ordonnance de clôture), which marks the end of the preparatory stage in French civil litigation.
- 43.
These defences are also raised by way of exception, but they mainly regard the substance of the dispute.
- 44.
Unlike the Konzentrationsmaxime available in German civil procedure, such a trend does not have the value of a recognised principle in Romanian civil procedure; rather, it appears to be a consequence of the principle of contradiction and the principle of immediacy.
- 45.
Leş 2010, p. 48.
- 46.
Ibidem., pp. 48–49.
- 47.
Deleanu 2007, p. 24.
- 48.
- 49.
See ICCJ (IP div.) Decision No. 5699/2004.
- 50.
There are a few circumstances in which settlement is not allowed by law, i.e. litigation involving the rights and interests of minors.
- 51.
Art. 1 Law 192/2006.
- 52.
Art. 12(4) Law 192/2006.
- 53.
According to Art. 17(1) Law 192/2006, the Mediation Council is organised as an autonomous legal entity of public interest.
- 54.
Art. 12(5) Law 192/2006.
- 55.
Art. 7 Law 192/2006.
- 56.
Ibidem.
- 57.
Art. 12(1) Law 192/2006.
- 58.
Art. 20 in conjunction with Art. 40 Law 192/2006.
- 59.
Art. 22(1) Law 192/2006.
- 60.
Art. 13 Law 192/2006.
- 61.
Art. 2(1) Law 192/2006. With regard to criminal cases, mediation is available only in specific situations where criminal prosecution is conditioned upon the filing of a private complaint or where the law provides that the conciliation of the parties eliminates criminal responsibility (Art. 67(1)). It should be noted that neither the victim nor the criminal defendant can be forced to accept mediation (Art. 67(2)).
- 62.
The pre-action procedure is discussed in Sect. 15.3.1 above.
- 63.
Art. 2(3) Law 192/2006.
- 64.
Art. 2(4) Law 192/2006. Examples of rights which cannot be subject to an agreement by the parties include actions to establish paternity or filiation.
- 65.
Art. 2(5) Law 192/2006.
- 66.
See Law 370/2009; Governmental Decree 13/2010 and Law 2002/2010.
- 67.
In its original language, Art. 6 Law 192/2006 provided that judges, arbitrators and others with adjudicatory functions ‘would’ inform the parties on the possibility and advantages of using mediation and ‘may’ guide them to resort to mediation. The amendments eliminated the discretionary ‘would’ and ‘may’ from the text of the article.
- 68.
See Art. 29(1) Law 192/2006.
- 69.
Art. 26(3) Law 192/2006.
- 70.
Noteworthy, other than the ‘information session’, the law prohibits any mediation activity without a written agreement to mediate concluded between the parties and the mediator.
- 71.
See Art. 1 NCPC and Exposé des Motifs 2009.
- 72.
Art. 4 Law 192/2006.
- 73.
Art. 5(2) Law 192/2006.
- 74.
We note that this ‘judicial stamp tax’ is to be paid in advance and does not cover other litigation expenses such as attorney fees, expert fees, costs associated with hearing a witness (i.e. transportation or lodging) or any other expenses that are necessary for the adjudication of the dispute. Obviously, at the end of the litigation the winning party will be able to recover from the losing party all litigation expenses including the judicial fee, in accordance with the ‘loser pays’ rule that is applicable in Romania.
- 75.
Art. 61 Law 192/2006.
- 76.
Report 2011, p. 130.
- 77.
As one academic authority acknowledges: ‘[f]or objective reasons determined by the application of other principles (truth, right of defence, etc.), the principle of continuity is not fully applied in our procedural system’. Leş 2010, pp. 63–64.
- 78.
For instance, the principle of party disposition.
- 79.
See Art. 235(1) NCPC.
- 80.
See Ciobanu 2012.
- 81.
Ibidem. It should be noted that the entry into force of the provisions related the investigation of the case under the NCPC has been postponed until 1 January 2016 due to a lack of sufficient office space in the courts to accommodate in camera investigations. See Law 2 of 2013. See also supra n. 22.
- 82.
As previously mentioned, courts of appeal can also act as courts of first instance depending on the nature of the claim.
- 83.
- 84.
- 85.
Many of the cases that reached the European Court of Human Rights concern real property and enforcement of judgments. In the first two decades after the Communist regime assumed power in Romania, the government seized large amounts of real estate and immovables from private owners and dedicated them to public use. Since the fall of the Communist regime in 1989, the former owners and their descendants have sought to reclaim these properties, only to be faced with many difficulties related to the burden of proving ownership, the fact that the properties are either part of the public domain or have been transferred by the former government to the ownership or ‘perpetual use’ of other private individuals, who also have claimed a legitimate right over these properties. As a result, the status of these properties continues to be subject to challenges from various third parties claiming ownership or other related rights acquired from the presumptive owners or apparent possessors. To make things even more complicated, the compensation afforded in such cases has been deemed to be insufficient considering the high inflation of the Romanian currency in the period immediately after 1990.
- 86.
Report 2011, pp. 19–25.
- 87.
Report 2011, p. 25.
References
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CEPEJ (2009) National report for Romania. Available at: http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2010/2010_Romania.pdf
Ciobanu VM (1997) Tratat Teoretic şi Practic de Procedură Civilă, vol 2. Naţional, Bucureşti
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Appendices
Appendices
1.1 Appendix 1: Facts and Figures Relevant for the Powers of the Judge and the Parties in Civil Litigation
Romania
Year of Reference: 2008
Part I: General Data on the National Civil Justice System
-
1.
Inhabitants, GDP and average gross annual salary
Number of inhabitants
21,528,627
Per capita GDP (gross domestic product)
€6,363
Average gross annual salary
€5,743
-
2.
Total annual budget allocated to all courts €385,309,000
-
3.
Does the budget of the courts include the following items?
Yes
Amount
Annual public budget allocated to salaries
☒
€330,427,080
Annual public budget allocated to computerisation
☒
€7,409,000
Annual public budget allocated to court buildings
☒
€5,331,256
Annual public budget allocated to training and education
☒
€74,000
Annual public budget allocated to legal aid
☒
€4,376,694
Other (please specify)
☒
€3,275,909
-
4.
Is the budget allocated to the public prosecution included in the court budget?
-
☒ Yes
-
◻ No
-
(a)
If yes, give the amount of the annual public budget allocated to the prosecution services
-
Legal Aid (Access to Justice)
-
5.
Annual number of legal aid cases and annual public budget allocated to legal aid
Number
Amount
Civil cases – non criminal cases
N/A
€875,339
Other than civil cases – criminal cases
N/A
€3,501,355
Total of legal aid cases
N/A
€4,376,694
-
Organisation of the court system and the public prosecution
-
6.
Judges, non-judge staff and Rechtspfleger
Total number
Sitting in civil cases
Professional judges (full time equivalent and permanent posts)
3,820
N/A
Professional judges sitting in courts on an occasional basis and paid as such
N/A
N/A
Non-professional judges (including lay-judges) who are not remunerated but who can possibly receive a defrayal of costs
N/A
N/A
Non-judge staff working in the courts (full time equivalent and permanent posts)
8,648
N/A
Rechtspfleger
N/A
N/A
-
The performance and workload of the courts
-
7.
Total number of civil cases in the courts (litigious and non-litigious): 1,983,627
-
8.
Litigious civil cases and administrative law cases in the courts
Litigious civil cases in general
Civil cases by category (e.g. small claims, family, etc.)
Total number of first-instance cases
Pending cases by 1 January of the year of reference
371,451
Land registry 19,809
Divorce 23,213
Administrative 62,900
Pending cases by 31 December of the year of reference
433,066
10,879
24,391
71,767
Incoming cases
1,612,176
32,883
64,097
213,824
Decisions on the merits
1,544,961
33,948
62,919
204,957
Average length of first-instance proceedings
6 months
N/A
N/A
N/A
1.2 Appendix 2: Data on Civil Cases in a Selected Court or Courts to Be Answered by a Judge or Judges of that Court
Local Court ( Judecătorie ) Mediaş
-
1.
What types of civil cases does your court decide?
-
Divorce
-
Inheritance
-
Debt recovery
-
-
2.
What is the volume of cases and their proportion to the caseload that your court decides on an annual basis?
Type of case
Cases pending on 1.1. of the reference year
New cases initiated in the reference year
Resolved cases in the reference year
Cases pending on 31.12. of the reference year
1
Civil cases
420
4,012
4,074
428
1a
Litigious divorces
71
228
251
48
1b
Damages
Debt recovery
64
1150
956
61
2
(Other cases)
TOTAL
-
3.
Do you consider some of the types of cases as complex cases? If yes, please indicate which cases are regarded as complex, in terms of time and efforts needed.
Inheritance, land recovery and land delimitation because of the difficulties encountered in proof taking. Especially expert reports take a long time.
-
4.
Do you consider some of the types of cases as urgent cases? If yes, please indicate which cases are regarded as urgent, and how this does affect the time of processing.
Commercial cases, order for payment and special summary proceedings (RO ordonanţă preşedinţială; FR ordonnance de référée)
-
5.
Do you have information on the average or mean duration of particular types of civil cases? If yes, please provide information on average/mean duration of these cases.
Type of case
Average duration (in months and/or days)
Mean duration (in months and/or days)
1
Civil cases
1a
Litigious divorces
4 months
1b
Damages
6 months
2
(Other cases)
6 months in general
TOTAL
-
6.
Do you monitor cases that are considered to last excessively long? If yes, please explain which cases are considered to be excessively lengthy (e.g. cases pending more than 3/4/5 years), what their proportion is in the court’s caseload, and which measures have been introduced for speeding up these cases.
Duration of cases completed in reference year (situation as per 31.12.) Indicate percentage of cases completed in the reference year
<1 month
1–3 month
0–6 month
7–12 month
1–2 year
2–3 year
3–5 year
5 year >
1
Civil cases
3,904
115
45
9
1
1a
Litigious divorces
246
5
1b
Damages
2
(Other cases)
147
10
1
Total of Cases
4,297
130
46
9
1
All cases older than 1 year are monitored constantly. The highest percentage of such cases concern inheritance and land recovery. We have begun the year with 17 cases that had lasted over 1 year at that time out of a total number of 5,854 cases that need to be decided.
1.3 Appendix 3
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Vacarelu, S.S., Ognean, A.O. (2014). Romania: Procedural Reforms: Plus Ça Change, Plus C’est La Meme Chose. In: van Rhee, C., Yulin, F. (eds) Civil Litigation in China and Europe. Ius Gentium: Comparative Perspectives on Law and Justice, vol 31. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7666-1_15
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