The new Romanian Code of Civil Procedure seems to be taking our legal system one step further towards respecting the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights.
Alongside other warranties, this right includes the reasonable length of proceedings. Some of the signing states of the Convention have undertaken massive changes in their legislation after being convicted multiple times by the European Court on the grounds of article 6. Romania is taking the same course of action by instituting a procedure which will allow parties to contest certain measures which delay the ongoing trial. In this paper I will briefly present the events which led to this change in the Romanian legislation, analyze the changes brought by the New Code of Civil Procedure and, lastly, look at the impact of the new institution in terms of achieving the standards of a fair trial.
On what triggered change
Just as Italy, Greece, Turkey or France, Romania has been convicted by the ECtHR for exceeding the reasonable length of a trial, required under Article 6 of the Convention. In the case of Duță v. Romania (2008), the Court stated that a dispute over common property which lasted over 14 years was contrary to the Convention, even if some of the delays had been caused by the complainant. In the case of Bercaru v. Romania (2008), the Court decided that a procedure for the cancellation of a sales contract which lasted 9 years, 2 months and 27 days is excessive in light of Article 6. Lastly, in the case of Varvara Stanciu v. Romania (2008), the plaintiff had to wait 9 years in order for the State to recongize her as the exclusive owner of a part of the house she was living in, which led to yet another conviction by the ECtHR. In all these cases, the Court urged the romanian state to act as to guard the warranties embodied in article 6.
In practice, the reconciliation of the reasonable lenght of proceedings with other warranties of a fair trial can prove difficult - for example, it can conflict with the right to a sufficient time to prepare your defense. Yet, it is not impossible, given the proper regulation. The problem of the current Code of Civil Procedure is the lack of firm dispositions to discourage the delay of a lawsuit. Such provisions are to be found in the New Code of Civil Procedure, which is due to enter into force in 2014.
On the changes
Under the current law, the parties are obliged to prevent unnecessary delays of the proceedings (Article 10). According to article 108¹, a party or a third party can be sanctioned with a fine of 30 to 500 RON (7 to 120 Euros) for delaying the process by not carrying out certain obligations; article 108³ provides the judge with the possibility of granting pecuniary reparations to the harmed party whenever the other party, deliberately or by negligence, caused the delay of the trial. In all cases, during the proceedings, the judge has the freedom to decide if a person is responsible for the delay and choose whether to penalize him or not. However, in the absence of a mandatory sanction, the status quo proves that it is not efficient to leave this matter at the will of an overworked judge.
The novelty of Law 134/2010 is the institution of the complaint against the delaying of the process. Article 520 states that ’each of the parties, as well as the attorney, by invoking the right to have their dispute solved in a reasonable and predictable term, can complain against delays and ask the Court to take the legal course of action in order to avoid the situation’. The legislator established four situations in which the procedure can be used:
1. When there is a legal term in which a certain procedure must be carried out and it expires without a result;
2. When there is a judicial term in which a certain procedure must be carried out by a party or by a third party (e.g. an expert or a local authority) and it expires without a result and without the Court taking any measure against that party;
3. When there is a judicial term in which a certain procedure must be carried out by a third party (e.g. an expert or a local authority); or
4. When the Court has neglected its duty of solving the dispute in the term considered optimal, if it had sufficient time to do so;
There are a number of changes under the new law of civil procedure which might be a step further towards a better enforcement of the right to a fair trial.
Firstly, the decision to examine whether there has been a breach of article 6 is not left entirely to the court. Should a party of the lawsuit believe that her interests are being affected due to an action with unnecessary delaying effects, she has the option of filing a complaint to the same Court. The Court must decide in no more than five days, without having the parties present. If the decision of the Court is favorable, it is communicated to the parties and there is no legal way to challenge it. If the Court dismisses the complaint as ill-founded, the party can complain to the immediate superior court, which has to resolve it in ten days (Article 525).
Secondly, in the case of a favorable solution to such a complaint, the Court is obliged to take immediate actions in order to remove the situation that created the delay. This seems to be that extra mile which differentiates the new codification from the current one. However, the outcome depends on what ‘immediate actions of the Court‘ means. Not only does the Court become its own judge (the complaint is discussed by the same judges), but it also has to provide itself with the proper course of action. I cannot help but wonder: if the same court has to determine whether there has been an unnecessary delay, what are the odds of it ruling favorably in the last scenario (the wrongful conduct of the court!); if this does somehow happen, what sort of immediate action is it going to take against itself for not complying with the proper length of the trial? This last question remains for the cases in which the other party or a third party is responsible for the delay. In terms of sanctions there is only an equivalent of article 108³ of the current law in the New Code (pecuniary reparations). As some authors have rightly pointed out (Brumar, 2011), this compensation implies by definition that the delay happened, so it appears that in terms of preventing delays it is quite unclear what the Court can do. Ultimately, it seems that the new institution lacks precisely the type of firm dispositions the system needs.
To conclude, I cannot deny the one obvious benefit of the new procedure: it might incentivize the parties, be it indirectly, to adopt a conduct that allows the court to resolve the dispute in an optimal term. Why is that? By knowing that the other party can file a complaint and invalidate the attempts to delay the finalization of the trial, one might adopt a fair behavior. However, in my opinion, this will only be the case if the Supreme Court issues a mandatory decision, clearly establishing what is to be understood by ‘immediate course of action’ and what can be done to prevent the delays, rather than compensating prejudices resulted from them.