MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1507/H46-25

19 September 2024

1507th meeting, 17-19 September 2024 (DH) Human rights   H46-25 Vlad and Others group v. Romania (Application No. 40756/06) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2023)777, DH-DD(2024)856, CM/Del/Dec(2016)1259/H46-25

 

Application	Case	Judgment of	Final on	Indicator for the classification
40756/06+	VLAD AND OTHERS	26/11/2013	26/02/2014	Complex problem:
42907/02	SC CONCEPT LTD SRL AND MANOLE	22/11/2007	07/07/2008
2337/04+	TEICĂ AND OTHERS	20/10/2016	20/10/2016
75717/14	BRUDAN	10/04/2018	10/07/2018
53183/07	NEGREA AND OTHERS	24/07/2018	24/10/2018
14503/15	PALABIYIK	24/09/2020	24/09/2020
8717/15	PĂTRĂNCUŞ	30/03/2023	30/03/2023
62157/13	BECALI AND CIOFLINĂ	20/02/2024	20/02/2024

Case description

These cases concern the excessive length of civil and criminal proceedings and the lack of an effective remedy in this respect (violations of Articles 6 § 1 and 13).

In the judgment of Vlad and Others (final on 26 February 2014), the European Court examined the system of remedies available at that time in domestic law. It found that the acceleratory remedy introduced by the new Code of Civil Procedure did not apply to proceedings which had been brought before the entry into force of this Code. As regards an action in tort against the State, the Court identified a number of aspects which called into question its “effectiveness” under Article 13. Under Article 46, it therefore encouraged the authorities either to amend the existing range of legal remedies or to add new legal remedies, such as a specific and clearly regulated compensatory remedy, in order to provide genuine and effective relief to those affected by this issue.

Status of execution

The Committee last examined this group at its September 2016 DH meeting.[1]

Since then, the authorities submitted a revised action plan on 22 June 2023 (DH-DD(2023)777). Following bilateral consultations with the Secretariat, they provided statistical data and updated information on some key recent developments, which were received on 26 July 2024 (DH-DD(2024)856).

The authorities have also provided information on the individual measures in certain cases.

The information received and that available in the public domain is summarised under the relevant headings below.[2]

Individual measures:

The judgments examined in this group concern 32 applications. The just satisfaction, where awarded, has been paid in full to the applicants, with the exception of one of them, who died before the Court’s judgment had been delivered.[3]

All domestic proceedings are now completed, save for those at issue in Ioana Petrache[4]and SC Concept LTD SRL and Manole.

General measures:

1) Last examination by the Committee (September 2016)

The Committee welcomed the wide-ranging measures adopted to resolve the problem of excessive length of civil and criminal proceedings and invited the Romanian authorities to continue to monitor closely the impact of these measures and to provide complete statistical data enabling it  to fully assess the situation.

When it comes to remedies, the Committee noted with satisfaction that the interested parties can now obtain acceleration of proceedings through the specific remedies introduced to this effect by the new Codes of Civil and Criminal Procedure, which entered into force in 2013 and 2014, respectively. It encouraged the authorities to assess the advisability of extending the application of these remedies to the proceedings brought before the entry into force of the new Codes.

Without prejudging the assessment that the European Court was called on to make in the cases pending before it at the time, the Committee also noted with interest the compensatory remedy developed in the domestic courts’ case-law since the judgment of Vlad and Others.

2) Impact of the adopted measures

To address the root causes of the problem of excessively long civil and criminal proceedings revealed by these judgments, the Romanian authorities carried out a major legislative reform, which culminated in 2013 and 2014, respectively, with the entry into force of the new Codes of Civil and Criminal Procedure. These codes introduced a number of measures aimed specifically at reducing the length of proceedings (for details, see DH-DD(2013)712-rev).

To be able to take corrective action rapidly when necessary, the authorities established mechanisms for monitoring the implementation of the new Codes, involving the major stakeholders in the field of justice (the Ministry of Justice, the Superior Council of Magistracy, the High Court of Cassation and Justice, the General Prosecutor’s Office and the National Institute of Magistracy) (for details, see CM/Notes/1259/H46-25).

a) Statistical data

The statistical data provided by the authorities for the present meeting and that otherwise available shows that the average length of civil proceedings (including administrative cases) globally decreased, from 6.6 and 6.2 months in 2014 and 2015 respectively, to 4.8 and 4.9 months in 2021 and 2022, respectively.[5] Detailed statistics per degree of jurisdiction reveal that civil cases at second instance were most impacted by the increase between 2021 and 2022.[6]

In criminal cases, the average length of proceedings decreased from 4.3 months in 2014 and 4.8 months in 2015 to 3.3 months in 2021 and 2.9 months in 2022 and was rather stable since 2016. In 2023, however, an increase was observed for all matters (5.1 months in civil cases and 3.6 months in criminal cases).

The authorities attribute this recent increase to the deficit of staff in the judiciary, which triggered a heavier workload for judges and prosecutors alike. The number of magistrates steadily declined during the period 2019-2022. Data released by the Superior Council of Magistracy reveals that, at the end of 2022, 4,074 judicial posts were filled out of a total of 5,067 (an occupancy rate of approximately 80%), whereas at the end of 2023 only 3,902 such posts out of a total of 5,066 were filled (an occupancy rate of approximately 77%). As regards prosecutors, 2,192 out of 3,051 posts were filled at the end of 2022 and 2,210 out of 3,051 were filled at the end of 2023 (an occupancy rate of approximately 71,8% and 72,4%, respectively).

According to the data published in June 2024 by the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe in 2022, in all matters, the total length of proceedings in Romania was below or equal to EU median. The clearance rate[7] at first instance was close to 100% for all matters (96.3% for civil and commercial litigious cases, 96,6% for administrative law cases and 97,5% for criminal law cases). In the second instance, the clearance rate was lower in civil litigious cases (92,7%) than in criminal law cases (99,8%). At third instance, courts seemed able to deal efficiently with cases, especially criminal law cases, but also civil and administrative law cases (149,3%, 111,8% and 108,0%, respectively).[8]

CEPEJ has also noted that in 2022, Romania became the country with the highest number of incoming cases per 100 inhabitants in the EU (6.99 as opposed to the EU median of 1.91).[9] The number of resolved cases (6,73 per 100 inhabitants) was also significantly above EU median (1,58 per 100 inhabitants).

Based on data released by the Superior Council of Magistracy in 2022, there was a total volume of 2,972,754 cases nationwide, all procedural stages combined, which corresponds to an increase of 2.84% compared to the previous similar period (2,890,657 cases in 2021). The number of new cases increased in 2022 compared to 2021 by 108,188 cases (+5.35%), reaching the highest number since 2018. In 2023, the total volume of cases and the number of new cases continued to grow by 8.12% (3,214,079 cases) and 7.43% (158,330 cases), respectively. These figures are higher than in 2018 (2,071,789) and 2019 (2,100,264), years that were not affected by the COVID-19 pandemic and therefore do not influence the overall statistics.

b) Measures to fill magistrates’ posts

Vacancies in judicial and prosecutors’ posts were the result of several waves of retirements (a record number of 451 judges and 256 prosecutors requested retirement in 2022) and the freezing in 2020 and 2021, following a Constitutional Court’s decision, of the selection competition for the magistracy. As a result, a significant number of magistrates left the system and were not replaced.

In response, the Superior Council of Magistracy decided in 2022 to organise two competitions instead of one for 2023, which allowed 127 judicial and 40 prosecutors’ posts to be filled last year. In addition, following the conclusion of the selection competition for magistrates which took place between February and July 2024, 74 judges and 34 prosecutors will integrate the judiciary this year. At the same time, the Superior Council of Magistracy has launched two new competitions at the National Institute of Magistracy to be finalised in April 2025, one offering 250 places to university graduates[10] and another for admission to the magistracy of legal professionals with five years of experience or more (at least 118 judicial and 21 prosecutors’ posts).

According to the most recent data available, in July 2024 the rate of occupancy increased to approximately 85% for judicial posts and approximately 75% for prosecutors’ posts.[11]

2) Remedies

a) Acceleratory remedy

In response to the Committee’s decision adopted at the last examination, the authorities have specified that the relevant provisions of the new Codes of Civil and Criminal Procedure[12] were not applicable to proceedings that had been instituted prior to their entry into force and are still pending before the domestic courts. They consider, however, that the number of relevant cases naturally decreases over time, which is likely to call into question the potential usefulness of the extension of acceleratory remedies to such proceedings.

b) Compensatory remedy

The Court confirmed in the judgment of Brudan (final on 10 July 2018) that, following the evolution in the domestic courts’ practice based on the direct application of the Convention, an action to establish the State’s liability in tort for excessive length of court proceedings constituted, as of 22 March 2015, an effective compensatory remedy within the meaning of Article 13. This conclusion applies both to terminated proceedings and to those still pending, as domestic case-law does not distinguish between terminated and pending proceedings (see § 88 of the judgment).

Analysis of the Secretariat

Individual measures:

The Committee might wish to examine the issue of the payment of the just satisfaction in the application Vlad once the Court has taken its decision on the authorities’ request for revision of the relevant judgment.

Meanwhile, the authorities should ensure that the proceedings in Ioana Petrache and SC Concept LTD SRL and Manole are rapidly completed.

In the other cases, no other individual measure appears necessary. The Committee could therefore decide to close its supervision of the repetitive cases concerned.

General measures:

1) Excessive length of proceedings

According to the data available, the overall progress already noted in 2016 appears to have continued after the Committee’s last examination, at least until 2022, mainly as a result of the entry into force of the new Codes of Civil and Criminal Procedure.

The progress achieved is confirmed by the evaluation reports and studies of the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe, which show a positive trend during the period 2016-2022. The Committee of Ministers may wish to welcome the overall improvement.

That being said, challenges remain, as demonstrated by the recent increase in the average length of proceedings observed by the authorities. This observation is reinforced by the evolution of the clearance rate observed by CEPEJ, notably at first instance, which dropped in 2022 from 2021,[13] in the context of an upturn in the number of new cases. The upward trend in new cases has raised concerns amid the growing shortage of magistrates. While some steps to secure adequate human resources for the justice system have been taken, there are still a number of vacancies which, if not filled, could, over time, affect the efficiency of justice.[14]

Against this background, the Committee may wish to invite the authorities to continue closely to monitor the situation in order to adopt any additional corrective measures required, and to provide detailed and up to date statistical data to enable an assessment of the progress achieved so far.

2) Effective remedies

Acceleratory remedies are available to the parties to civil and criminal proceedings instituted after the entry into force of the new Codes. The European Court has moreover ruled that the acceleratory remedy provided by the Code of Civil Procedure was effective for proceedings which started after its entry into force (Mierlă and Others, No. 25801/17, inadmissibility decision of 17 May 2022). Any other issue related to these remedies, such as the extension of their scope to proceedings brought before the entry into force of the new Codes, is now moot, given the existence, confirmed by the Court in the meantime, of an effective compensatory remedy in domestic law. It is recalled in this respect that the Court considers that one type of a remedy (acceleratory or compensatory) is sufficient to comply with the obligations under Article 13.

In the light of these developments, the Committee may note, that no other measures are required as regards the issue of effective domestic remedies.  

3) Proposal as regards the continuation of the supervision

In view of the substantial progress achieved so far, the Committee could decide to continue the examination of the outstanding questions concerning the consolidation of the progress achieved in respect of the length of civil and criminal proceedings under the standard supervision procedure.

Financing assured: YES