The part of jurisprudence within the Romanian Legal System

• Author: Dan Lupaşcu; Mihai Adrian Hotca
• Pages: 214-220

This paper has been prepared within the research project „Standardization of Judicial Practice and Harmonization With the ECHR Jurisprudence, a Mandatory Condition to Enforce Justice. Legislative Proposal to Grant Aconsistent Judicial Practice” (ID-1094) financed by the Romanian Minister of Education, Research, Youth and Sports.

Dan Lupaşcu. Judge, Associate professor, Law Faculty, „Nicolae Titulescu” University, Bucharest (e-mail: danlupascu@csm1909.ro).

Mihai Adrian Hotca. Associate professor, Ph.D., Dean of the Law Faculty, „Nicolae Titulescu” University, Bucharest (e-mail: mihaihotca@gmail.com).

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Introduction

Starting from the unquestionable finding that in the Romanian system of the law, it takes place a reconsideration of the quality of law source of jurisprudence, both from the point of view of the legal bodies and from the political-institutional point of view, we have tried below to analyze the position of the case law within the system of the Romanian law.

From the point of view of the factors that make up the justice, the re-dimensioning of jurisprudence is based on the wish to increase the trust in the jurisdictional act of its beneficiaries, that is the justiciable parties, because it is found, partially justified, an acuter and acuter lack of trust in the persons that make justice in our country.

From a political-institutional point of view, also here, we have mainly in view the content of the official documents adopted for this purpose and we unanimously consider that it is necessary the increase of the population’s trust in the act of justice.

The credibility of justice is based, among other things, also on the unity of the judicial practice because the justiciable party that knows that another citizen obtained a certain satisfaction in a case similar to his hopes in a justified manner that he will have the same success. Or, if at the end of the trial, although we’re talking about a similar case that raises the same problems of law, the “consumer” of the act of justice loses the case, he can not understand the fact that the same law can have two or more senses, so, he will be disappointed and will transfer his disappointment to the persons he gets in contact with.

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Literature review

Fl. Streteanu, Penal law. General part, vol. I, Rosetti Publishing House, Bucharest, 2003, p. 103; I. Deleanu, Constitutional justice, Bucharest, 1994, p. 421-422; Dieter Schlafen, Court of Appeal in Cologne, twinning resident adviser with Romanian Supreme Council of Magistrates – Bill for maintaining the unitary practice. Foundation (unpublished).

I Is the jurisprudence a source of law in the system of Romanian law?

Of course, we have to say that the lack of unity of the judicial practice is not an exclusive problem of the justice in Romania, but the current dimension of this phenomenon in our country represents a serious reason of concern, fact which is pointed out in the documents of the European Commission¹ and in the resolutions of the European Court of Human Rights² including.

The non-unitary and contradictory judicial practice generates legal insecurity and deepens the lack of trust in justice. The frequency of the cases of non-unitary judicial practice determines also the degree of lack of trust in the judicial system of the justiciable parties, including of those that had satisfactions at a certain point.

This issue affects the entire judicial system and equally regards both the Romanian justiciable parties as well as the foreign ones that come in contact with the courts of law in our country. Moreover – as a well-known German magistrate³ has quite recently pointed out – „the observers that are not fully aware of the real causes of the problem pass on a widely met presumption that the courts in Romania aleatory change their jurisprudence as a result of the influence of the politic and corruption”.

„The normative inflation”⁴, the instability⁵ and the questionable quality of some laws, the great number of files on the docket⁶, the insufficient specialization of the magistrates or the incorrect understanding of the specialization⁷, the absence of some efficient means for the unitary interpretation and application of the law, but especially the present organization of the courts ofPage 216 law and the distribution of the competences⁸ represent a few of the potential causes of the nonunitary practice, the analysis of which it is not the object of the current study.

The Constitution of Romanian of 1991, revised in 2003, grants the court the supreme role of unifier of the judicial practice⁹ through art. 126 paragraph (3) that stipulates that: „The High Court of Cassation and Justice provides the unitary interpretation and application of the law by the other courts according to its competences”.

The above-rendered constitutional provision starts from the premise of the presumed constancy of the supreme court in the interpretation and application of the law which is called to regulate the jurisprudence contradictions at the lower levels. Such a conclusion is supported by the existence of a special procedure regarding the change of jurisprudence of the High Court of Cassation and Justice sections¹⁰.

Unfortunately, sometimes there are divergences between the High Court of Cassation and Justice sections regarding the same law problems¹¹ or even within the section¹², which, exceptionally, transform the highest judicial authority of the country into a „source of legal insecurity”¹³. It is a regrettable situation – isolated encountered even in other judicial systems¹⁴ – that overshadows the notable efforts of practice unification made by the supreme court¹⁵.

Isolated, it has been encountered also the situation that, without any relevant modification regarding the law issue in question at the legal level, the High Court of Cassation and Justice sections reconsidered its own jurisprudence as well as the cases in which one of the sections of the supreme court (for instance, in the matter of the abusively taken over real estates), simply ignored a decision in the interest of the law.

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The Constitutional Court repeatedly revised also its own jurisprudence, one of the cases being that of the constitutionality art. 362 paragraph 1 lit. c) of Code of penal procedure. Considering Decision no. 100/2004¹⁶, through which the constitutional administrative court reconsidered its previous practice, it is pointed out: „the Constitutional Court understands to proceed to the revision of its practice in the matter. Reconsidering its previous jurisprudence, the Court finds unconstitutional the provision "in the trials in which the penal action is set in motion at the prior complain, but only with regard to its penal aspect" within art. 362 paragraph 1 lit. c) of Code of penal procedure, and the injured party is to be able to exercise the ordinary attack modality of the appeal no matter of the way the penal action is set in motion (ex officio or at the prior complain)”.

The guarantor of the unitary interpretation and application of the law on the territory of Romania is the High Court of Cassation and Justice. This does not exclude, in our opinion, the involvement also of other institutions within their own competences whether in order to prevent the cases of non-unitary practice or in order to initiate or support the process of edification of the jurisprudence divergences. We have in view, for instance: the...