Mihai Adrian HOTCA. Associated Professor, Ph.D., Faculty of Law, “Nicolae Titulescu” University, Bucharest (e-mail: firstname.lastname@example.org). This work was supported by CNCSIS –UEFISCSU, project number PNII – IDEI 860/2009-cod CNCSIS ID-1094.
Starting from the idea that justice is unique and from the undeniable reality that the legal practice of our country is far from being uniform, by means of this article, we will try to identify and analyze the causes of the practice inconsistency of legal bodies in Romania, with special concern to the solutions of the courts of law.
As it is known, at least by the law experts, the Romanian state has been condemned by the European Court of Human Rights (hereinafter called ECHR) for the lack of consistency of the legal practice for several times1.
The need of uniformization of the legal practice does not have to be demonstrated, because the trust of the citizens in the justice act is based also on the consistency of the solutions that the judges offer in cases comparable from the legal point of view, taking into consideration the factPage 24 that the justiceable that knows that another person got a certain resolution in a case similar to its will justifiably hope that it will be the beneficiary of the same solution. And, if at the end of the trial, the justiceable will not obtain the same court solution, it will be not only deeply unsatisfied, but also a new member on the list of persons that have no trust in the legal act.
Paradoxically, basing itself on a legal precedent, neither the legal opponent of the one that has lost the trial will trust the justice, because just like its previous speaker, it also knew that, under the reserve of observing the previous legal practice, the resolution should be different. Thus, the opposing party that won the trial against the previous practice will almost certainly answer (assuming that the answer is honest) to an eventual question regarding the trust in the activity of making justice that it has so such trust.
Arguments such as the one that the rule of the judge’s independence is opposing the idea can not find support in the principles of operating the legal state, at least in the cases stipulated by law, because the law must have the same meaning for all and the judge is independent of the other authorities, but not of the law.
Besides, the Constitution proclaims the principle that the judge is subject only to the law. Or, if the law forces it to comply with certain court orders, it means that it must obey the legal absolutions existing within it, because, otherwise, it will be considered as "opposing the law".
In doctrine, it was stated that: "The >, the instability and the questionable quality of some laws, the large number of pending cases, the insufficient specialization of some magistrates or the wrong understanding of the specialization, the lack of effective means for the interpretation and uniform application of the law, but especially the current organization of the courts and the distribution of the competences are some of the possible causes of the non-unitary practice”2.
In the specialty literature, it was also pointed out the fact that the lack of unity of the legal practice “for the observers that were not fully aware of the real causes of the problem maintained a widespread presumption that the courts in Romania changed their jurisprudence randomly, due to the influence of the politics or corruption”3.
D. Lupascu, M.A. Hotca, Rolul jurisprudentei în cadrului sistemului judiciar roman, Lex et Scientia International Journal, no. XVI/2009, Vol. 2; D. Lupascu, The appeal in the interest on law in the drafts of the Romanian new procedure codes, Lex et Scientia International Journal, no. XVI/2009, Vol. 1, Dieter Schlafen, Cologne Appeal Court, resident twinning adviser with the Superior Council of Magistrates of Romania – Bill for maintaining the unitary practice. Basics (unpublished); G. Balasa, Exista un mecanism simplu de stabilire a unei jurisprudente unitare, www.juridice.ro; I. Deleanu, Fictiunile juridice, CH Beck Publishing House, Bucharest, 2005, page 293; C.-L. Popescu, Neconventionalitatea si neconstitutionalitatea sanctiunii nulitatii exprese a recursului în cazul neindicarii de catre recurent a contului bancar al intimatului in the Romanian Pandects no. 3 / 2004, page 111. See also I. Deleanu, Tratat de procedura civila, 4th edition, vol. II, Servo-Sat Publishing house, Arad, 2004, page 206, L. Babulescu, Asigurarea interpretarii si aplicarii unitare a legii, www.juridice.ro.
When analyzing the Romanian legal practice, it is noticed that the courts often disregard the ECHR decisions regarding the assuring of the unity of the jurisprudence solutions; the case in which Romania was convicted for having breached the norms of the European Convention of the Human Rights are well-known (for instance, Padruraru versus Romania, Beian versus Romania, etc.).
One of the ECHR decisions through which Romania was condemned for not providing a unitary legal practice is the one delivered in the case of Beian versus Romania. In this court issue, the ECHR established that the non-unitary practice of the supreme court of our country was "against the public safety principle (....) which was one of the basic elements of the lawful state (see, mutatis mutandis, Barnowschi versus Poland, no. 28358/95, paragraph 56, ECHR 2000-III). Instead of completing its part by establishing a guiding interpretation, the High Court of Cassation and Justice has itself become the source of the legal uncertainty, thereby reducing the public trust in the legal system (see, mutatis mutandis, Sovtransavto Holding versus Ukraine, no. 48533/1999, paragraph 97, ECHR and Paduraru above quoted, paragraph 98, and, a contrario, Perez Arias versus Spain, no. 32978/03, paragraph 70, June 28, 2007)”.
The observance of the human rights and of the jurisprudence stability represents an essential pillar of the fair development of the penal and civil trials.
When trying to list the causes of the non-unitary jurisprudence, we believe that among them it should be:
♦ lack of effective instruments in order to assure the unity of the legal practice;
♦ frequent change of the normative acts and imperfections of the legal norms;
♦ overload of the judges;
♦ lack of "real time" access to the resolutions of other judges;
♦ imperfections regarding the legal organization;
♦ lack of "permanent" continuous training programs of the judges.
De lege lata, the only legal instrument to assure the unity of the legal practice is the institution of the appeal in the interest of the law that is regulated in the two codes of procedure - Code of Penal Procedure (art. 4142) and Code of Civil Procedure (art. 329). The appeal in the interest of the law is an institution that is based on the basic law4.
In the Intermediary report regarding the state of justice (March 23rd 2010)5 in connection to the institution of the appeal in the interest of the law, it is stated that6: “The procedure for appealsPage 26 in the interest of the law at the High Court of Cassation and Justice (HCCJ) through which it is set the jurisprudence with obligatory legal force, is still slow (sn). However, there are simplified practices and they could be further developed”7
In the above- mentioned report, the court solutions delivered in the corruption cases about which it is said to be inconsistent and dissuasive are indicated as negative examples8.
Next, we present the current content of the institution of the appeal in the interest of the law. According to art. 4142 code of penal procedure: “The general prosecutor of the Prosecutor 's Office with the High Court of Cassation and Justice, directly, or the Minister of Justice, through the general prosecutor of the prosecutor 's office with the High Court of Cassation and Justice, as well as the management boards of the appeal courts and of the prosecutor’s offices with these courts have the obligation (sn) to ask the High Court of Cassation and Justice to rule on the cases that received a different settlement from the courts in order to assure the unitary interpretation and application of the penal and penal procedure laws (s.n.) throughout the entire country.
The appeal petitions in the interest of the law are solved by the united sections of the High Court of Cassation and Justice which delivers through decisions. The decisions are published in the Official Gazette of Romania, Part I, as well as on the internet page of the High Court of Cassation and Justice (s.n.). They are notified to the courts also by the Ministry of Justice.
The solutions are given only in the interest of the law, have no effect on the examined judgments, nor on the situation of the parties to those trials. The clarification of the trialed law issues is obligatory for the court”.
According to Art. 329 Code of civil procedure: “The general prosecutor of the Prosecutor 's Office with the High Court of Cassation and...