A(n) (Im)Possible Interpretation on Article 145, Paragraph (2), Second Thesis, Civil Procedure Code

• Author: Angelica Rosu
• Position: Associate Professor, PhD, 'Danubius' University of Galati, Romania
• Pages: 13-21

JURIDICA

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A(n) (Im)Possible Interpretation on Article

145, Paragraph (2), Second Thesis, Civil

Procedure Code

Angelica ROŞU

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Abstract: In this paper I have analysed the answers which the following questions might receive: Can

the Court invested with solving a motion to change venue decide on solving a trial already solved?

Which could be the consequences of crediting the idea that the answer is in the affirmative in any

situation, without any distinction? The law issue submitted to the analysis was generated by the

circumstance that the civil Courts when they are invested with solving a case whose venue changing

is requested, either decide to suspend the case until the motion to change venue is solved, or give a

hearing date in order to solve th is request. In our opinion, it is necessary an intervention of the

legislator, as in practice, art. 145, paragraph (2), Civil Procedure Code was interpreted differently.

Keywords: venue changing; impartiality; suspension of judging the case; lawful annulment of t he

decision

The law issue under analysis starts from a situation that becomes quite frequent in

the practice of civil Courts of law, taking shape from the fact that the Courts, being

approached for solving a case for which a motion to change venue was filed

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, either

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Associate Professor, PhD, “Danubius” University of Galati, Romania. Address: 3 Galati Boulevard,

800654 Galati, Romania. Tel.: +40.372.361.102, fax: +40.372.361.290. Corresponding author:

rosuangelica@univ-danubius.ro. AUDJ, vol. 12, no. 1/2016, pp. 13-21

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“The venue changing is presented as a form of judicial extension of competency, because the

prolongation of the Court competency to which the case was changed to is the effect of the judicial

decision which approved the motion to change venue”. Please see (Boroi & Stancu, 2015, p. 254) The

Court will renounce judging a case in favour of other Court of the same rank, for reasons that put to

doubt its impartiality. Accordingly, the venue change represents “one of the p rocedure means which

contributes to ensuring the effective character of judges’ impartiality, the institutional guarantee of

the right to a fair trial”. Please see to this effect Decision no. 558/2014 of the Constitutional Court,

published in the Official Gazette of Romania no . 897/10.12.2014, by which it is allowed the

exception of unconstitutionality of the provisions of art. 142, paragraph (1), first thesis and of art.

145, paragraph (1), first thesis from the Civil Procedure Code. In the same decision, the

Constitutional Court, referring to its own jurisprudence, respectively Decision no . 333 from June 12th,

2014, published in the Official Gazette of Romania no. 533 from July 17th, 2014, as well as to the

jurisprudence of the Human Rights European Court (Decision from October 1st, 1982, pronounced in