[ccje2004/docs/CCJE(2004)6e] English only
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
QUESTIONNAIRE ON MANAGEMENT OF CASES,
JUDES’ ROLE IN THE PROCEEDINGS,
AND USE OF ALTERNATIVE DISPUTE SETTLEMENT METHODS
the delegation of Romania
III. QUESTIONNAIRE ON CASE MANAGEMENT, JUDGES' ROLE IN TRIALS, AND ALTERNATIVE DISPUTE RESOLUTION METHODS
A. ACCESS TO JUSTICE
1. Have measures been taken, by legislatures and/or the court system, in order to inform the public on the functioning of the judicial system? If so, please comment on the impact of such actions on the amount of cases brought before courts.
Yes, the public pretended that quality exist, in spite of the high amount of cases.
2. Have measures been taken, by legislatures and/or the court system, in order to reduce the costs of bringing actions before the courts (e.g., by simplifying and/or standardizing legal documents to commence or continue litigation; by waiving, at least in some circumstances, the need to employ a lawyer; etc.). If so, please comment on the impact of such actions on the amount of cases brought before courts.
Yes, by publishing the legislation, by creating and publishing standard models for different situations, without an impact on the high amount of cases.
3. Have measures been taken to ensure an effective "legal aid" system? If so, please describe the system, with specific reference to:
(a) eligibility requirements;
The legal aid is regulated through three (3) normative acts, as following: the Criminal Procedure Code, the Civil Procedure Code and the Law on Bar organization. Thus, the defendant has the benefit of free legal aid when the legal aid is compulsory (he is arrested, serving in the army, etc.). In civil cases, free legal aid is accorded to those without material possibilities, who could jeopardize their families’ and own existence by such expenses. The form and conditions of according legal aid are stipulated in the Low on Bar organisation, this task being in the Bar’s competence.
(b) identification of authorities entitled to grant the aid;
(c) budgetary arrangements.
4. Have other measures been taken? For example,
a) conditional fee agreements (“CFAs”), whereby a party does not have to pay his or her lawyers if he or she loses, but his or her lawyers are entitled to charge the losing party up to a multiple of the normal fee if her or she wins; - No.
b) legal costs insurance for
- a party’s own legal costs and/or - Yes.
- any costs which if her or she loses he or she has to pay to the winning party; - No.
c) fixed costs, so that the winning party can only recover a limited amount from the losing party, whatever he or she may have chosen to pay to his or her own lawyers.
No, but in the moment of closing the case the instance may reduce the expenses accorded.
B. REDUCTION OF EXCESSIVE WORKLOADS IN THE COURTS
1. Have measures been taken to relieve judges from non‑judicial tasks such as those listed, as examples, in the Appendix of Rec. No. R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts? Please give comments as to any other tasks performed by judges that, according to the particular circumstances of the country, could be assigned to other persons or bodies; please identify tasks that could be entrusted to administrative court staff, whose jobs would thus be enriched.
Yes, the only extra-judicial task at the moment is to attend the elections, but there is the project to create a specialized permanent electoral authority, in order to release the judges from this activity.
2. Are there bodies, outside the judicial system, at the disposal of parties to solve specific "small claims" disputes? If so, please comment on the impact of the availability of such procedures on the amount of cases brought before courts.
Yes, but only in commercial disputes there is the procedure of arbitration, done by arbitration bodies, procedure that comes first and sometimes eliminates a further judgement.
3. Is there a regular review of court workloads, and are consequent measures (i.e. changes in courts' geographical distributions; variations in the territorial, monetary and subject matter competence of courts; variations in the court personnel) taken to ensure a balanced distribution of the workload? Please identify bodies responsible for such review and for consequent policy choices; please also describe the role of the judiciary in this process.
Yes, the Ministry of Justice is the legislative initiator for a balanced repartition of the judicial activity.
4. What role do judges (especially chief judges) play in the management of judicial infrastructures, human resources, information and technology equipment? Do they receive regular training in management techniques? What role, on the contrary, is played by administrative top officials?
Judges may propose and they are consulted in the elaboration of the projects.
C. QUALITY OF JUSTICE AND ITS ASSESSMENT; QUANTITATIVE STATISTICAL DATA; MONITORING PROCEDURES
1. Is there any system in operation in your country having the aim of assessing quality of judicial activity? Please comment on indicators chosen for such assessments, as well as on results obtained.
Yes, there is an evaluation system, by according ‘marks’ to the judges, which stimulates them.
2. Please describe the operation of quantitative statistical data collection concerning judicial activity. Please identify, in particular:
(i) institutional subjects (centralised and/or decentralised) in charge of data collection, data analysis, as well as receiving follow‑up;
The instances’ managers, on the statistical data analysis.
(ii) judicial activities that form the object of data collection and analysis;
The analyzed object is: the number of the judgement sessions, of solved cases, of the drawn-up decisions, of the cases presided by a judge in court, of the annulled decisions, the behaviour, the ‘marks’ obtained during the professional training, the titles obtained etc.
(iii) relevance of statistical data in professional evaluation of individual judges;
They stimulate and represent a promotion and bonus criterion.
(iv) relevance of statistical data in evaluation of performance of judicial offices and/or chief judges.
They are the evaluation basis, as promotion criterion.
3. Please describe monitoring procedures in operation in your country that, employing assessment data as above, may result into actions aimed at a better control of reasonable duration of proceedings or better allocation of resources (such as variations of judicial and/or administrative staff, revision of territorial or subject matter distribution of cases, "performance contracts" and the like);
The results obtained are public; the goal is to solve more cases within a reasonable time and obtain as little percent of annulled decisions as possible.
4. In case that some or all of the above actions are the task of agencies other than the judiciary, what is the role played by the judiciary in the same actions?
The magistrates are evaluating the data offered by the administrative body.
D. ALTERNATIVE DISPUTE RESOLUTION
a) in general
1. Please produce a list of ADR schemes in operation in your country, identifying private and public schemes, generalist and specialised schemes (both according to qualities of litigants and subject matter, with especial reference to family mediation, criminal mediation, administrative and civil mediation), voluntary and mandatory schemes (please clarify whether your system bars access to a court or allows a judge to stay court proceeding, in respect of some disputes, either in favour of ADR or pending ADR). Please specify if the parties or the State bear the costs of ADR.
Romania has a single public judicial system and, as far as the part detains a certain function or is serving in the army, the competence of higher instances or of a military instance is required. Experimentally, pilot-instances by the civil instances have been created, for civil cases only.
2. Are there legal provisions ensuring State supervision over ADR agencies, as well as training of mediators?
3. Is legal aid applicable to all or some ADR procedures?
4. Is confidentiality protected? Is any document of the ADR procedure apt to be produced in court, in case mediation failed?
5. May the judge consider refusal to access ADR or to accept an amicable settlement when making orders relating to trial expenses or costs?
b) in‑court ADR
1. What is the role of the judge in mediation during a court proceeding? May the judge recommend or order that the parties appear before a mediator, even without their consent? May the judge serve himself or herself as a mediator or a conciliator, or is a conflict of role envisaged? If so, please indicate solutions found. Please give details as to costs of the in‑court mediation.
The judge only may be mediator or conciliator.
2. If the judge is entitled, by law or court practice, to appoint a mediator or a conciliator, what qualifications do these subjects have? What training have they received? What responsibilities do they incur? How is their independence guaranteed? Is equality among the parties guaranteed, so that no unfair agreement is concluded?
The judge may not indicate another person as mediator; the equality of the parts during the mediation is guaranteed.
3. What legal relevance does an in‑court conciliation or mediation agreement have (in particular, as to its enforcement)? Are there specific provisions for agreements reached before certain accredited mediators and/or endorsed by a judicial homologation?
The mediation agreement replaces the judicial decision and has the same judicial value.
c) out‑of‑court ADR
1. What kind of judicial control is possible on out‑of‑court ADR agreements?
There is no out‑of‑court ADR
d) ADR in administrative law disputes
1. Is it possible under your system that a public entity participates in an ADR procedure? Does the person representing the entity have the power to settle the dispute, or is an administrative proceeding needed to conclude the amicable settlement?
There are some non-administrative preceding procedures with judicial character, being solved by the instance of judgement only trough the way of attack
e) criminal law and ADR
1. Please describe the role and extent of ADR proceedings vis‑à‑vis criminal investigations and/or criminal proceedings in your country. What are the respective roles of police, public prosecution and the judge?
The possibility of mediation, of the attempt, in fact, to conciliate the parts after the start of the criminal lawsuit, exist only in a few situations, where the criminal suit starts at the part’s previous complaint and where the law stipulates the possibility of conciliation (threat, insult, physical damage, simple rape, calumny, breach of trust, possession disorder). In the other cases, operating with the principle of officio, the penal accountability being worth whatever the position of the damaged part may be, there is no possibility of solution throughout an ageement.
E. CASE MANAGEMENT
a) in general
1. Please give details as to the average duration of a civil and a criminal proceeding (where charges are brought against an identified individual) in your country, with separate figures as to first degree and appellate proceedings, as well as Supreme Court proceedings. Please provide relevant information as to data used to calculate the average. Please also give details as to duration of simplified and accelerated procedures. Please state the source of data.
The average duration of a civil procedure: 5 months, of commercial procedure: 5 months, of a administrative procedure: 6 month, of a penal procedure: 4 months (source – the statistical data basis of the High Court of Cassation and Justice of Romania)
2. Does in general the judge have sufficient powers to control the parties' activities, to choose between written or oral procedures, to resort to a summary judgement, to determine the calendar and the time‑limits for presentation of arguments and evidence, to sanction delaying tactics and/or abusive behaviours?
No. The judge only has the possibility to ‘punish’ or to decay from evidence the part that, abusively, tergiversate the closure of the case within a reasonable time.
3. Have measures been taken to assure that most cases are adjudicated by a single judge, rather than by a panel?
Yes, in order to solve cases in first instance.
b) in civil disputes
1. Please describe, in general, implementation in your country of Recommendation No. R (84) 5 concerning principles of civil procedure designed to improve the functioning of justice. Some specific aspects will be dealt with by following questions.
2. Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary. Please refer to materials (available on the Council of Europe's website) presented during the European Conference of Judges on the theme "Early settlement of disputes and the role of judges" held in Strasbourg, 24‑25 November 2003.
The courts are looking for an accelerated solution in cases concerning arrested defenders, the obligation of maintenance, locative rights, minors’ situation.
3. As to simplified procedures, please indicate (and provide details) if law or court practice, even if on the basis of "protocols", allow in your country:
(i) simplified methods of commencing litigation;
Yes, suit claims without the sample fee or without documentation may be introduced, these kinds of lack being covered at the first appearance, in order to save time.
(ii) no hearing or convening of only one hearing or, as the occasion may require, of a preliminary preparatory hearing;
There is no pre-established number of appearances, important is to observe the parts right of knowing the date and object of the suit, to manage the required evidence in order to establish the truth. There are situations when during only one appearance all these aspects could be solved, but also situations when the prolongation of the suit is caused by claims for lack of defence or for new evidence, that could not be ignored as the right for an equitable lawsuit would be infringed.
(iii) exclusively written or oral proceedings, as the case may be;
The Romanian right has a mixed oral and written procedure; there are no exclusively written or exclusively oral procedures.
(iv) prohibition or restriction of certain exceptions and defences;
(iv) more flexible rules of evidence;
There are situations when cases are solved through a summary judgement and, in this case, enough evidence exists to create the resemblance of right, and the decision is followed by enforcement immediately; the other possibility is to present all the evidence within other judgement, with procedure on the merits.
(v) no adjournments or only brief adjournments;
The adjournment may be given only in situations established by law and it is judged apart of the case itself.
(vi) the appointment of a court expert, either "ex officio" or on application of the parties, if possible at the commencement of the proceedings;
The appointment of an expert at the part demand may be made at the appearance when the evidence is discussed. Previously an address is made, asking for three (3) experts from which, after claim approval, only one is chosen (because, depending on the nature of the case, it could be anticipated that it would be necessary).
(vii) an active role for the court in conducting the case and in calling for and taking evidence;
The judge has an active role: he is trying to take, as far as possible, all the measures in order not to delay to much the case.
(viii) the rendering on the part of the judge of a mere "oral" judgement.
The judge could not render an oral decision because an exclusively oral procedure does not exist.
4. As to summary proceedings (in which the examination of the case on the part of the judge is done on the basis of what is only evident), please indicate if in your country:
4.1 the judge has the power to decide summarily on:
a. disputes on which an early decision is required (urgent cases procedure);
The simple claim of a part cannot lead to a summary judgement, when the law doesn’t stipulate this possibility.
(ii) disputes concerning recovery of certified uncontested debts; - Yes.
(iii) small claims (please specify monetary limit); - No.
(iv) employer‑employee relations; - Yes.
(v) landlord and tenant relations; - Yes
(vi) questions of family relations (divorce, custody of children, maintenance);
Yes, concerning the custody of children and maintenance, but also for the divorce à l’amiable.
(vii) disputes involving consumers; - No.
(viii) disputes relating to road accidents; - No.
(ix) manifestly ill‑founded claims.
No. First situation: they are inadmissible and in this case they are solved automatically at the first appearance. Second situation: the founded or ill-founded aspect may be retained only after the examination of evidence and never without it, on a simple impression. Exception: the solution of the way of attack of the appeal in civil, where a filter instance exists, permitting only to the founded appeals to be solved.
4.2 a summary judgement has or does not have the force of "res judicata"; - Yes.
4.3 a summary judgement is liable to determine rights and obligations of the parties even if a procedure on the merits is not initiated. - Yes
5. Please describe the extent to which injunction relief is available in your system (judicial orders of payment or to perform contractual obligations).
Yes, there is the possibility of a direct enforcement of an authentic act (without a preceding judgement to institute the title), when in the convention the parts stipulated a clause in this sense.
6. Please describe the relevance of time‑limits and interlocutory judgements to assure a reasonable duration of ordinary proceedings.
The dates for appearance accorded for well-founded reasons determine an equitable judgement, within a reasonable time.
7. What protective measures are available in your system? You may refer to protective measures aimed to protecting the practicability of enforcement, or to anticipate enforcement; protective measures aimed to "freezing" a certain situation of fact pending the trial, e.g. through appointment of a receiver; measures that can be indicated as protective in a very broad sense, since they aim at anticipating the decision in the substance of the case. Please specify the cases in which urgency is required, and cases in which remedies may be granted without both parties having been heard.
Protective measures which anticipate the enforcement, even the judgement and aim the possibility of an ulterior enforcement are: the garnishment and the attachment.
8. Does your system provide, besides protective measures in view of the taking of evidence (provisional hearing of witnesses, experts reports, site inspections, taking of samples), also measures that enhance the possibility for the plaintiff to gather information before the trial (see the Anton Piller order in the English experience)?
The part must personally gather the evidence, the instance hasn’t the task of helping him before the judgement; There is the possibility that the instance accord the closure for assuring evidence (if till the judgement an evidence could disappear, its existence may be noted previously).
9. In what circumstances is a first degree judgement provisionally enforceable? If provisional enforcement is granted by the judge or by the law, upon which conditions the party filing an appeal may obtain suspension of enforcement?
The law stipulates the possibility, for certain situations, that the enforcement to be temporary (presidential ordinance). The adjournment may be requested to the instance solving the way of attack.
10. Please describe implementation in your country of Recommendation No. R (95) 5 concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases. Under what circumstances, if any, is a court decision not subject to appeal? Is in your country in force a system that admits appeal, at least for some disputes, only upon court leave? If not, would such a system be desirable?
The possibility of an appeal always exists, but the judgement on the merits is possible only with the court approval (the filter-instance).
11. Please express your view concerning measures to improve:
(i) enforcement of court judgements and effectiveness of the activity of enforcement agents;
(ii) transparency of information concerning assets of debtors;
(iii) recognition of judicial decisions rendered by judges from another Member State of the Council of Europe.
The efficiency of the sector concerned by the decisions enforcement is given by the existence of a qualified bailiff body. The transparency of information concerning the debtors’ assets is necessary in their activity. The recognition of decisions rendered by judges of another state, all the same it belongs to the European Counsel or not, is done according to the law, through the exequatur procedure.
c) in criminal matters
1. Please describe, in general, implementation in your country of Recommendations No. R (87) 18 concerning the simplification of criminal justice and No. R (95) 12 on the management of criminal justice. Some specific aspects will be dealt with by following questions.
2. Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary. Please refer to materials (available on the Council of Europe's website) presented during the European Conference of Judges on the theme "Early settlement of disputes and the role of judges" held in Strasbourg, 24‑25 November 2003 (although these materials mainly concern civil justice).
The accelerated procedures concern the cases with arrested people, including the verification of the legality of these being arrested.
3. Please indicate (and provide details) if in your country:
a. discretionary decisions to waive or discontinue proceedings are possible, although adequate evidence of guilt has been found (please identify cases and competent authorities);
No, in the presence of enough evidence of guiltiness, one may not render the decision not to start the prosecution. Exception: situations when the penal accountability is prescribed or when there is the possibility to withdraw the previous claim.
(ii) mass offences such as road traffic, tax and customs law, if they are minor, are decriminalised;
Yes, when they have a law grade of social danger, they constitute a contravention.
(iii) out‑of‑court settlements are possible;
Yes, when they have a law grade of social danger, they constitute a contravention.
(iv) penal orders such as those described in Recommendation No. R (87) 18, or equivalent simplified proceedings are employed (please provide information as to percentage of crimes so tried);
A reduced number.
(v) the procedure of "guilty plea" (whereby the alleged offender is required to appear at an early stage to declare whether he or she accepts charges, and court may decide the case in an accelerated way without investigations), or equivalent procedures are employed; - No.
(vi) declarations of voidness of proceedings are limited to cases in which failure to comply with procedural requirements have caused real damage to the interest of the defence or prosecution; - Yes.
(vii) notification of summons and decisions of the court is done through simple, rapid procedures, including by mail; - Yes.
(viii) trial court is exempted, when parties agree or the case is not serious, from issuing the decision in writing (please also refer to simplified forms of written decisions). – No.
4. Please describe the role of the bench in the several stages of investigations (concentrating on the three stages referred to Principle III, a.6 of Recommendation No. R (87) 18). Please also describe the role of the bench as to "guilty pleas" and sentencing, if such phases may take place out of court. Please describe the respective role of professional judges and juries in findings of guilt and determination of penalties, in those cases that are tried before a jury.
In the criminal cases the first stages is the investigation (with the support of police). At this stage, evidence is gathered in order to stand out or not the guiltiness. After the charge is presented to the defendant, the prosecution body (the prosecutor) release the accusation (indictment). There is the possibility that one person to be retained 24 hours and, as far as the instance released an arrest warrant at the prosecutor’s proposition, the forms for discussing the legality of the arrest are made.
The first instance (the president) receive the case, fix the appearance, the judges panel and takes measures for the parts to be announced and also for verifying the legality of the arrest (time: maximum 30 days).
If the parts are present or correctly announced and have the legal aid assured, at the first appearance the instance read the accusation, take declarations from the plaintiff and the defendant, discuss and manage the evidence during the same appearance, if possible, but often during another appearance (it could be more than one). After closure of the management of evidence, discusses take place, when the prosecutor, the defender and the defendant take the floor. Withdrawn for deliberation, the instance may render a decision immediately or may delay the verdict for other appearance. It is compulsory that the instance motivate in writing on question of fact and law the taken decision.
If one of the parts or the prosecutor attacks the decision through an appeal, the claim motivated in writing (but it is not compulsory) is presented with the dossier to the appeal instance, which proceed identically as the first instance. There is the possibility to present evidence at this stage of the trial too.
If a review is made against the appeal decision, the procedure is the same.
Both at the appeal and review stage, the legality of the arrest (time: maximum 60 days) is constantly verified, at the fixed appearance or separately. One may notice that there is no possibility for the defendant to obtain a favour by recognising his guiltiness (at most: the reduction of the punishment for sincerity).
It is important to retain that instance (judge) establish the guiltiness, the judicial framing and the punishment to be applied.