Legal Briefing

Civil court delays: assessing new remedies to speed up Romanian disputes

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Disputes | 15 October 2019

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  1. As referred to in its case law, the European Court of Human Rights has imposed an obligation on states to provide a mechanism to prevent or remedy excessive length of judicial proceedings. Also, in several resolutions, the Council of Europe’s Committee of Ministers has stated that ‘excessive delays in the administration of justice constitute an important danger, in particular for the respect of the rule of law’1. Thus, when the new Romanian civil procedural code came into force, one of the main purposes was shortening the duration of judicial proceedings.

Several amendments designed to expedite proceedings were made, such as: creation of a written phase for immediate rejection of invalid claims; clarification of rules related to jurisdiction; the possibility to assess evidence throughout lawyers or legal counsellors; restrictions introduced on the possibility of referring matters to courts of cassation, implementing procedures to filter second appeals to those courts, and stipulating more restrictive admissibility criteria.

The starting point of a civil case is normally the date on which the case was referred to a court of law – this being also the starting point for calculating the length of a civil case. A first remedy for decreasing the length of a proceeding is to be found at this starting point and consists in the written phase, pursued by the judge to whom the statement of claim has been assigned.

This phase entails that the minimum requirements of the application (such as: the name of the claimant and of the defendant, the object of the claim, the factual background, the signature, payment of the judicial fee) are verified before the statement of claim is notified to the defendant, in order to avoid adjournment at the first hearing due to lack of the minimum requirements. Also, if the claimant does not comply with all the requirements as addressed by the court within a ten-day term, its request shall be annulled during the written phase. However, even if this seems a rather efficient remedy, there are courts of law that continue the proceedings even if the claimant does not meet all the requirements within the ten-day term.

Another remedy worth mentioning consists in establishing strict conditions for the adjournment of hearings due to lack of defence. From the notification of the statement of claim three months may pass before the establishment of the first hearing in a civil case.

Also, the rules related to jurisdiction were clarified. Courts of law must establish their jurisdiction at the first hearing, where both parties are legally summoned. Moreover, the plea for lack of jurisdiction based on the subject matter referred to the court or on territorial grounds must also be invoked at the first hearing. This amendment is very important, the courts being forced to establish their jurisdiction prior to ruling upon the merits of the case, and it also precludes the parties from referring to the jurisdiction matter directly in appeal.

The importance of the first hearing is doubled by the fact that it is the moment when the court needs to estimate, by consulting the parties, the length of the proceedings – criteria such as the complexity of the case and the amount of evidence that needs to be assessed are to be taken into consideration.

Apart from these examples of remedies and following the guideline of the legislation of other European member states, the Romanian civil procedural code contains a specific remedy to ensure the right to a fair trial within a reasonable time – the challenge for excessive length of the judicial proceedings.

This procedure addresses either party which considers that their legitimate right to a fair trial within a reasonable time is adversely affected. Such a challenge may be filed when the law provides for a due term in which the judicial proceedings must be finalised and such term passed away without any result or the awaiting response from individuals or from the authorities was not filed within the judicial term granted by the court and no sanction has been applied as provided by the law.

If the court of law deems the challenge to be grounded, then it shall order all the measures necessary to tackle the consequences of the delay in the judicial proceedings. In dealing with such challenge, the procedural law does not indicate the substance of the measures that may be ordered by the court and it does not speak about a possibility to file a claim for recovery of the incurred prejudice directly from the state based upon the decision upholding the excessive length of the proceedings.

It appears that the courts are very reluctant in granting an order upholding the complaint for an excessive length of the judicial proceedings. This could be mainly because such challenge must be referred by the interested party to the same judge/panel of judges as the one assigned to render a solution upon the merits of the case. Due to such flaws of the procedure, the effectiveness of this remedy is arguable.

Despite the numerous weaknesses that can result from the provisions, the use of the remedies provided in the civil procedural code should impose some discipline on the parties and encourage the courts to act efficiently and decide cases without unjustified delay.

However, it must be considered that the lack of co-operation from individuals, appointments for interviews deferred to a later date and awaiting responses from individuals or institutions play an important part in the delay of the proceedings. Under such circumstances, a better remedy for combating the delaying of the proceedings would be encouragement of good faith in the conduct of the parties and their representatives during the judicial proceedings and the effective use of some remedies put in place such as: the assessment of evidence by lawyers or legal counsellors or the notifying of certain judicial deeds by the parties.

Notes

1) European Commission for the Efficiency of Justice, ‘Length of court proceedings in the member states of the Council of Europe based on the case law of the European Court of Human Rights’

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