The Appeal in the Interest of Law in the Drafts of the New Romanian Procedure Codes

• Author: Dan Lupaşcu
• Pages: 78-93

Dan Lupaşcu. Judge, Associate Professor, Ph.D., Law Faculty, “Nicolae Titulescu” University, Bucharest (e-mail: mihaihotca@gmail.com).

Page 78

Introduction

The lack of a unitary approach of the judicial practice is a problem that not only the Romanian judiciary faces, but the current dimension of this phenomenon represents a serious reason of concern, as also underlined by the documents of the European Commission¹ and by the decisions rendered by the European Court of Human Rights².

The non-unitary and inconsistent case-law generates legal insecurity and deepens the distrust in the judicial system.

This issue affects the entire judicial system and equally concerns both Romanian litigants and foreign nationals that come across Romanian courts of law. Moreover – as a famous German magistrate³ was underlining relatively recently – “for observers who are not completely aware of the real causes of this problem, it feeds the widely spread assumption that Romanian courts of law change their case-law randomly, as a result of the influence of political factors and corruption”.

Some of the possible causes of non-unitary practice, which will be evaluated by the current study, are “the normative inflation”⁴, instability⁵ and the questionable quality of certain laws, thePage 79 large number of pending⁶ files, the insufficient specialization of certain magistrates or the improper understanding of such specialization⁷, the absence of efficient instruments for the unitary interpretation and implementation of the law and mainly the current organizational scheme of the courts of law and the distribution of panels⁸.

The Romanian Constitution from1991, revised in 2003, grants the Supreme Court the role to unify the case law⁹. Article 126, paragraph (3) provides that: “The High Court of Cassation and Justice shall provide a unitary interpretation and implementation of the law by the other courts of law, according to its competence.”

The pre-requisite of the above mentioned Constitutional provision is the presumed stability of the Supreme Court in interpreting and implementing the law. The Supreme Court is called to regulate the jurisprudential contradictions at the level of lower courts of law. Such a conclusion is strengthened by the existence of a special procedure regarding the change of the case-law of the Sections within the High Court of Cassation and Justice¹⁰.

Unfortunately, sometimes the same law issue¹¹ generates divergent views between the Sections of the High Court of Cassation and Justice or even within the same Section¹², which exceptionally, turns the country’s highest judicial authority into a “source of legal instability”¹³. This is an unfortunate situation – which was also experienced by other judicial systems¹⁴ onPage 80 isolated occasions – that shades the significant efforts made by the Supreme Court¹⁵ for unifying case law.

The mission of the High Court of Cassation and Justice is to guarantee the unitary interpretation and implementation of law throughout the entire Romanian territory. In our opinion, this does not preclude the involvement of other institutions, within the limits of their own competences, either for preventing non-unitary practice or for initiating or supporting the process of clarifying the divergent case-law. We envisage, for example, the other courts of law, the Public Ministry, the Ministry of Justice and Civic Freedoms, the National Institute of Magistracy, the Superior Council of Magistracy¹⁶, etc.

“The researches” in this field have outlined a series of remedies – legislative or of different nature; some of them are already implemented, other are in the stage of project.

In the following chapters we will give a brief description of the appeal in the interest of law, focusing on the provisions of the drafts of the new Civil and Criminal Procedure Codes, such as they were approved by the Government on the 25^th of February 2009.

The Appeal in the Interest of Law

1. Brief history

The first time¹⁷ the appeal in the interest of law was regulated in our legal system was by the Law from January 24, 1861¹⁸ establishing the Court of Cassation and Justice. Title I, Chapter III, Article 11 of this law established the following: “The Public Ministry, directly or upon agreement with the justice department, will attack before the Court of Cassation, for the wrong interpretation of law, the final judgments and the acts of the other courts of law in civil cases, even if the interested parties shall not attack them, but only in the interest of law and after the expiry of the deadline for appeal.

The cassation decision that shall be rendered in such cases shall have no effect for the persecutors that did not appeal in cassation the nullified decision of the lower court”.

The Law for the Court of Cassation and Justice of February 17^th, 1912¹⁹ maintained the appeal in the interest of law within Article 12, which had the following content: “The Public Ministry, directly or upon agreement with the justice department, will attack before the Court of Cassation, for the wrong interpretation of law, the final judgments and the acts of the other courtsPage 81 of law in civil cases, even if the interested parties shall not attack them, but only in the interest of law and after the expiry of the deadline for second appeal.

The cassation decision that shall be rendered in such cases shall have no effect for the parties”.

We find the same provision in the Law regarding the Court of Cassation and Justice dated December 20^th, 1925²⁰. Starting with 1932 the content of the legal text was the following: “The Public Ministry attached to the Court of Cassation, directly or upon the request of the Minister of Justice, has the right to appeal before the Court of Cassation, for breaches of law:

1. all final judgments and the acts of the courts of law in any matter, and

2. all judgments rendered by the special cassation courts.

The existence of an ordinary second appeal of the interested party can not impede the right exercised by the Public Ministry, even if a decision was already rendered in the case, if the ground pleaded by the general prosecutor was not debated during the trial of the second appeal of the party.

The cassation shall be disposed solely in the interest of the law and shall have no effect concerning the litigant parties.

The appeal in the interest of law is judged in all cases by the competent section”²¹.

The appeal in the interest of law in criminal matter was introduced in the Criminal Procedure Code from 1936²². For the others fields of law, the enforceable regulation was the Law regarding the Supreme Court²³. Similar provisions were subsequently inserted in the Civil Procedure Code.

The Constitution adopted in 1948²⁴ provided the obligation for the Supreme Court to supervise “the judicial activity of courts and judicial bodies”. In the exercise of this competence, the Decree no. 132/1949²⁵ provided for the prime-president of the Supreme Court or the general prosecutor of the People’s Republic of Romania the right to notify the Supreme Court with a claim in judicial redress against final and irrevocable judgments or judicial acts, contrary to the law or unjust. The effects of this mean of judicial redress extended over the position of the litigant parties. The same normative act annulled the provisions regarding the appeal in the interest of law.

Article 41 of the Law no.5/1952 regarding judicial organization²⁶ established that the Supreme Tribunal supervises the judicial activity of courts, both by judging the claims in judicial redress and trough “guidance to courts of law, based on their case law, regarding the just implementation of laws”. The Plenum of the Supreme Tribunal reunited at least once every three months, in the presence of the minister of justice.

The guiding decisions rendered by the Plenum of the Supreme Tribunal in view of the unitary implementation of laws became constitutional in 1965²⁷ and lasted until the 8^th of December 1991, when the current Constitution²⁸ came into force.

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The appeal in the interest of law was reintroduced in the two procedure codes in 1993²⁹, when the Law no. 56/1993 granted the Supreme Court of Justice³⁰ the competence to judge the appeal s in the interest of law.

2. Comparative law

The appeal in the interest of law is also provided for in other legislative systems. For example, the Dutch system provides for the appeal in the interest of law, which can be filed by the General Prosecutor from the Supreme Court. Its objective is to ensure the unity of judicial practice and legal certainty. The object of this procedure may be a matter of principle or a decision rendered by a lower court of law. The appeal in the interest of law may be filed only after all means of judicial redress are exhausted. The decision rendered has no effect upon the decision of the lower court of law and over the rights and obligations of parties; it only gives a solution for the future to the non-unitary law issue.

The Slovak legislation provides for two means of appeal in the interest of law: the appeal in the interest of law and the extraordinary appeal in the interest of law. The appeal in the interest of law may be filed by the General Prosecutor, ex officio or upon request. The extraordinary appeal in the interest of law has a broader range of initiators, namely the General Prosecutor, the Minister of Justice and the defendant (in criminal matters). The extraordinary appeal in the interest of law can only be filed in the cases expressly provided by law, such...