Reforming the trials' procedure in the new civil procedure code.
The reform of civil procedural law has always had a series of goals connected mainly to the efficiency of the delivery of justice and the need to ensure a unitary and foreseeable jurisprudence. If the lawmaker's interventions during the past two decades on the Code of Civil Procedure of 1865 have adapted several procedural mechanisms to speedy trial requirements or have tried to ensure uniform practice by modifying the jurisdiction of the courts of appeals or the restructuring of the forms of appeal, the New Code of Civil Procedure fully reforms the civil trial system, reconfiguring procedural institutions so as to ensure the production of important principles of civil process that all new regulation embodies (New Code of Civil Procedure, Law nr. 134/2010, entered into force on 15 February 2013). The specific objectives of civil justice-swift resolution of cases, a reasonable duration of trials, providing a coherent jurisprudence and legal practice predictable, find in the new code the appropriate procedural means of achieving, specific to a modern justice.
The previous reform process began drafting a new code with new judicial system established by Law nr. 59/1993, continued with substantial changes in Emergency Governmental Order nr. 138/2000, approved and modified by Law nr. 219/2005, with unsuccessful attempts of reconfiguration functional competence in 2003-2004 (Emergency Government Ordinance nr. 58/2003, approved and modified by Law nr. 195/2004, Government Emergency Ordinance no. 65 / 2004, approved with amendments by Law nr. 493/2004, return to the previous regulation of the Government Emergency Ordinance nr. 58/2003) and finally had the small Reform Law-Law nr. 202/2010 concerning certain measures of accelerating the settlement process. All these legislative interventions have adapted the procedural system to new requirements and even anticipated a series of solutions of the legislature that will be included in the new code. New procedural mechanisms, numerous in the new regulation, are founded on generally accepted doctrinal and jurisprudential or represent major innovations, which, since the design phase of the new code led to doctrinal discussions. For this reason, an analysis of procedural reformed institutions should emphasize not what is cutting doctrine and judicial practice, but to seizethe specificity of the new procedural tools in order to justify the legislator choice of them.
As shown in the explanatory memorandum that accompanied the draft of the new code (preliminary theses of the draft Code of Civil Procedure were approved by Government Decision nr.1527/2007, published in the Official Gazette of Romania, Part I, nr. 889 of 27 December 2007), and the explanatory memorandum to the Law for the implementation of the Code of civil Procedure (Law no. 76/2012), was intended to create a legal instrument in proceedings which meet all requirements imposed by the European Convention on Human Rights and the case law of the European Court of Human Rights. Beyond the overall reform of civil procedure, however, the reconfiguration of procedural institutions and the introduction of new procedural mechanisms which contribute decisively to the success of such a legislative approach are particularly evidenced. In this respect, the regulation of fundamental principles of civil trial represent one the most important reform elements that impact the restructuring civil process, contributing to the reduction of thetrials and the creation of appropriate procedural mechanisms to avoid the appearance of thenon-unitary practice in the same field.
Until the advent of the new code of trial principles or civil procedure had distinct regulatory sources, namely the Constitution, the Law on judicial organization no. 304/2004, the Law on the statute of judges and prosecutors no. 303/2004 or disparate texts of the Code of Civil Procedure 1865 or were a source of international regulations such as the Convention for the Protection of Human Rights and Fundamental Freedoms, known as the European Convention on Human Rights, which entered into force in 1953, the Declaration of Human Rights of 10 December 1948 and the International Covenant on civil and Political Rights adopted in 1966. In equal measure, certain principles have been determined through doctrinal measures and established through jurisprudence.
The New Code of Civil Procedure seeks to summarize the most important principles of the civil process, as was previously enshrined in the sources listed and outline defining the constituent elements of each. Codification of the guiding rules of civil process in the form of principles and claim legislature to regulate them exhaustively was criticized starting from just the specifics of these principles branch. Thus, it was considered, rightly, that some of the principles do not belong exclusively to the civil trial material, as a particular application of fundamental principles of law, such as the principle of legality and the principle of equality or other materials representing common procedural principles -the principle rights of the defense, the principle of justice. Moreover, it was criticized for categorizing principles of what is actually fundamental rights of the parties in the lawsuit: the right of access to justice, the right to defense, the right mood, the right to equality of arms, the right to a fair trial (Deleanu, 2010: 16; Deleanu, 2013: 202-203; Deleanu, 2008: 128).
Beyond these conceptual controversies we consider the legislative consecration of the principles of civil trial appropriate and the attempt at an exhaustive regulation, whether those principles represent particular applications of fundamental principles of certain organizing judicial principles or transposing a number of conventional or constitutional rules. Naturally, given that it represents the accounting rules governing a branch of law, some of the fundamental principles of the civil trialhave a higher legislative origin or, to the contrary, characterize only the procedure (Deleanu, 2010: 16) or overlap the fundamental rights of the parties involved in the lawsuit, rendering them even more important.
Definition retained in doctrine for the fundamental principles of civil trial, as well as their role, justify the choice of the lawmaker to regulate them in a separate chapter of the new code. Thus, the fundamental principles are the essential rules governing the civil trial (Tabarca, 2013: 36), and their importance is both theoretical and practical (Les, 2001: 33). These principles contribute to the interpretation of procedural principles, ensure the consistency of the subsequent legal process and impose a unitary jurisprudence. These functions of the fundamental principles justify the need for a rigorous regulation, as it is done in the new code, as the establishment of principles determines the procedural rules governing the civil trial. This is why an analysis of procedural institutions reformed by the new code cannot be achieved without presenting the principles that have imposed the new regulations. It is largely a set of principles laid down and under the influence of the previous code or accepted through jurisprudence continue to determine the conduct of civil proceedings in the new regulation as well-the principle of availability, the principle of the right of defense, the attempt to reconcile the parties, as other principles, such as adversarial principle, the principle of orality, principle of directness, the principle of publicity, the principle of continuity, the principle of the active role of the judge, though sometimes acquiringsupplementary dimensions remain characteristic of civil procedure.
The novelty in terms of their consecration in the procedural code, it is necessary principle of free access to justice and the principle of the right to a fair trial within optimal and predictable. Other principles such as the principle of good faith in the exercise of procedural rights and obligations, acquire new meanings which prints them greater efficiency in achieving the purpose of civil proceedings. In equal measure, even the need to respect the fundamental principles of civil proceedings was raised to the rank of principle in Article 20 from the New Code by providing that "the judge has the duty to ensure respect for himself and respect for the fundamental principles of civil proceedings, under penalty as provided by law". Seated, surveying, before listing all the principles, the provision contained in Article 20 establishes a primary obligation to respect the judge himself fundamental principles and then to impose on the parties and other participants. Penalties provided by law for failure to comply with the fundamental principles of cancellation are circumscribed by the solution of annulling the judgment delivered in violation of principles (principle of the right of defense, the principle of publicity, the principle of discovery) or is preceded by compliance with those principles.
Free Access to Justice-Argument for Reform of the Code of Civil Procedure
Under the marginal title of "Duties on receiving and processing of applications", is expressed the principle of free access to justice, the traditional problem of the denial of justice and law analogy.
Having established that "judges have the duty to receive and settle any claim for court jurisdiction, under the law" relevance is given in a concrete way, to the principle of free access to justice, specifically the correlative duty right of access to justice (Deleanu, 2013 : 207). The right of access to justice is constitutionally enshrined in Article 21 of the Constitution, and in Article 6 of Law nr. 304/2004. It is also repeated in the new code, article 192 under the name "The right to appeal the court" in order to defend their legitimate rights and interests, any person may address the competent court of justice througha summons".
Without being expressly provided for in the Convention, it has been established judicially in the European Court of Human Rights. Article 6 paragraph 1 of the European Convention on Human Rights expressly enshrines, the right to a court, but that does not mean the same thing as the right of access to justice ("everyone has the right to have their suit examined fairly, publicly and within a reasonable time by an independent and impartial tribunal established by law, which shall decide on the person's civil rights and obligations or the merits of any criminal charge brought against him"). Although interrelated, the two categories of rights do not overlap, the right to a court is subsequent to theright of access to justice (Deleanu, 2008: 130). Or, in other words, the two there is a relationlike that between the right to summons to court in a procedural sense and the right to start an action. Equally, the right to access to justice should not be confused with the "right to an effective remedy" enshrined in Article 13 of the Convention, the latter having a wider scope, "effective remedy" may be exercised by any national authority, not only in a court that has jurisdiction (Deleanu, 2008: 130).
The right of access to justice is not absolute, the substantive and procedural rules may establish extrinsic requirements on it such as stamp duty, a preliminary procedure, a particular jurisdiction is or even conditions or terms relating to the right to exercise as all law is one that provides these proceedings and forms of appeal. These conditioningshould not be constituted byany prohibition on exercising the right of access to a court, but may represent limitations or restrictions provided that one is subordinate to the other "legitimate aim" and a "proportionality" for this purpose, in other words, the right may be subject to limitations or conditioning as long as its actual essence remains unaffected. In this respect, the European Court of Human Rights has held that "limiting the right of access to a court is inconsistent with Article 6 paragraph 1 of the Convention, unless there is a reasonable degree of proportionality between the means employed and the aim pursued" (Deleanu, 2008: 135).
In this context, there have been discussions about the establishment of a stamp tax, a security, a prior procedure, to ensure the qualified assistance of a lawyer. Generally, stamp duty does not affect the right of access to justice in its substance if the obligation is not excessive in relation to the possibility of the party to pay it. A number of objections could be brought against stamp duty as it was stated in the new law regarding, Government Emergency Ordinance nr. 80/2013. Instead, the new code provisions regarding the obligation to assist or representation by a lawyer in the court of appeal, under pain of nullity, and the provisions of Article 2 paragraph 12 of Law nr. 192/2006 on mediation and the profession of mediator introduced by Government Emergency Ordinance nr. 90/2012, regarding the sanction of inadmissibility application for summons when it was not covered by the applicant information procedure on mediation, but from the point of their introduction, criticism of unconstitutionality and unconventional in terms of breach of the principle of free access to justice.
Recently, the Constitutional Court ruled unconstitutional the legal provisions governing the two aspects. Thus, through Decision nr. 462 of 17 September 2014, published in the Official Gazette nr.775 from 10.24.2014, the Constitutional Court declared unconstitutional the provisions of the Code of Civil Procedure contained in Article 13 paragraph 2, second sentence, Article 83 paragraph 3 and in Article 486 paragraph 3 with reference to claims arising from mandatory preparation and presentation of the appeal by a lawyer. In essence, to remember that although the aim of the legislator is sound, "there is a reasonable relationship of proportionality between the requirements in the general interest of good administration of justice and the protection of fundamental rights of the individual, the laws enshrining controlled imbalance between the two competing interests". Ensuring an effective right of access to justice entails the obligation of providing for mechanisms to ensure free assistance from a qualified attorney in civil matters, in this sense, there is the operating legal aid covered by the Government Emergency Ordinance nr. 51/2008. However, it was felt that the possibility of using the legal aid is not likely to replace the restrictions brought by instituting mandatory representation by an attorney.
The solution to this obligation or representation by a lawyer assisting the court of appeal provided for by Article 13 and Article 83 of the new code was justified even by its initiators through specific judicial review by way of appeal, considering also that the new provisions introduced in the code are compatible with the requirements of Article 6 of the Convention (Ciobanu, 2013: 36). Thus, before the court of appeals, applications and submissions of parties can be made and supported only by an attorney or, where appropriate, legal counsel, unless the party or its representative, spouse or relative up to the second degree inclusive, has a law degree, and in the drafting of the application and the grounds of appeal, the execution and the support of the appeal, individuals will be assisted and represented, where appropriate, only by a lawyer in the law, under penalty of nullity. A similar provision is found in the case of legal persons.
Under the provisions of the Law on Mediation, on the cases where mediation is possible, the court will reject the application for summons as inadmissible due tothe plaintiff s failure to respect the obligation to attend the information meeting on mediation, prior to the request for summons to trial or after starting the trialuntil the deadline given by the court for that purpose. Therefore, concerning the lack of this prior procedure, the law provides a penalty-dismissal of application for summons as inadmissible. What has been criticized in these provisions is included in a special law is, primarily the provision of the inadmissibility of the sanction deemed inappropriate, not only in terms of conditioning access to justice, but also to sanction under the new code for the lack of a prior reading.
The Constitutional Court has ruled with respect to this that provision by declaring unconstitutional the provisions of Article 2 paragraph 1 and 12 of Law nr. 192/2006 on mediation and the profession of mediator. It was held that the obligation imposed on the parties to attend the meeting on the benefits of mediation under penalty of inadmissibility application for summons contradicts the principle of free access to justice. Mediation is an alternative dispute resolution procedure, which must remain voluntary, and information on the advantages of mediation procedure cannot become an obligation for parties. The requirement of Article 5 paragraph 1 from the new code is concretized by provisions contained in the Rules of Procedure of the Courts, adopted by decision of the Superior Council of Magistrates, which states the obligation of the judge to receive requests and documents submitted during the meeting or before deadlines, and all unjustified refusal to receive requests from parties shall constitute misconduct for a judge, according to Article 99 letter E of Law 303/2004. The issue of referral to the competent court provided both in Article 5 paragraph 1 and in the Article 192 of the new code should not be seen as a reason for refusal of the application, thus denying access to justice. The application, even addressed to a court without jurisdiction,shall be received, and the analysis of ultra vires will be done subsequently before the competent court. In this regard the question of the possible lack of jurisdiction of the court will be examined from the preparatory phase of the process, the regularization procedure and communication application for summons, and if there is a manifest lack of jurisdiction the court to decline competence before making procedure communication.
Taking over an existing provision in Article 3 of the Civil Code of 1864, as well as in Article 4 of Law nr. 303/2004, Article 5 paragraph 2 of the New Code of Civil Procedure provides that "no judge can refuse to judge on the grounds that the law stipulates nothing, is unclear or incomplete". If the legal regulation applicable to the case is missing or incomplete, the judge will systematically turn to the rules of interpretation, the analogy to the law or the analogy right (applying principles). If the law is unclear the judge remains with the task of interpreting the rules of interpretation. Procedural law shows the sources that have, in turn, to be used by the judge, respectively, the sources of law, as provided by Article 1 of the Civil Code, the law, customs and general principles of law. According to Article 5 paragraph 3, where the solution cannot be given under any law or customary or legal provisions regarding similar situations established by analogy, that case will be judged on the basis of general principles of law, while regarding all its circumstances and taking into account requirements of fairness. Although seen as the application of natural law during proceedings before the courts (Ciobanu, 2013: 11), the application of equity is considered excessive by some authors, may be a source of arbitrariness in the administration of justice (Deleanu, 2013: 207).
Finally, by deciding on an application addressing the judge, in a decision that will decide will decide only the specific case before the Court, without establishing general rules, which would mean overcoming judiciary attributions (ground of appeal under Article 488). Thus, just as it had been in the content of the old Civil Code, it is prohibited judge to lay down generally binding dispositions through isrulings, through the effects of the judgment and res judicata that it generates, being limited to trial and the disputing parties. Of course, in terms of their mandatory provisions they are provided separately as in the old regulation, in the appeal on points of law and novelty, prior judgment rendered by the Supreme Court for the ruling of law issues. The right of access to justice has benefited from new procedural safeguards through various provisions made in the new code. Thus, it contributes to improving free access to justice, to redistributing material competence, to invoking the failure of accomplishing prior procedure through the defendant's welcoming, the possibility of pursuing an appeal only against the judgment considerations, the possibility of exercising the appeal omisso medio or admissibility of any evidence on appeal, in case of retrial after scrapping with retention or referral.
The Right to a Fair Trial within Optimal and Predictable New Code
The right to a fair trial within optimal and predictable term, enshrined as a fundamental principle in the new code, the provisions of Article 6 summarizes the regulations contained in the same Article 6 of the European Convention on Human Rights, the Universal Declaration of Human Rights 1948 and the International Covenant on Civil and Political Rights in 1966. In national law, before being laid in the new code, the right to a fair trial was enshrined in Article 21 of the Constitution and Article 10 of Law nr. 304/2004, thus highlighting the aspects of constitutional and conventional principle. Compared to the European Convention and the jurisprudence of the European Court, the right to due process has been seen as a summary of the procedural guarantees contained in Article 6 of the Convention: the examination of the case in a fair and public way within a reasonable time by independent and impartial tribunal. Similarly, Article 6 of the new code provides that "everyone has the right to a fair trial of his case within optimal and predictable term by an independent, impartial court, which has been established by law".
Without trying the case in equity, in the sense of Article 5 mentioned above, the requirement of a fair trial, the synthesis of guarantees provided by the regulations to which we have referred, requires access to justice, the forerunner of the right to a court, the proper administration of justice, in the sense of organization and composition of the court (court provided by law, independent, impartial), the procedure followed, the publicity, the right to defense, contradictory, equality of arms, the proportionality between the means employed and the aim sought, motivating the decision, effective enforcement of the judgment (Deleanu, 2013: 210; Ciobanu, 2013: 12; Tabarca, 2010: 42-56). All these constitute the condition of fair trial rights and can encompass all the procedural guarantees provided by the Code and special laws. As a result of the way of its presentation, the right of access to justice is also a warranty or a condition as to the exercise of other rights (Deleanu, 2008: 157) and should be seen in relation to the right to a fair trial. In a judgment of the reference-Decision from21 February 1975 in Golder vs UK, among elements of the right to an equitable trial is retained in first place, the right of access to court, the rest -the right to a court, timeliness or advertising-being consequential. The right of access to justice is only one condition, appearance (basically and initially) in a court of law. The latter incorporates the right of access to justice with the right to a fair trial under due administration of justice, the right to obtain a solution with the request by saying the right to effective enforcement of the judgment (Vincent and Guinchard, 2001: 100).
Among the components of the right to a fair trial some constitute the principles of civil procedure, the right to defense, argument, advertising, and not the news from the perspective of the new code, while others, access to justice, equality of arms, indirectly introduced new regulatory aspects constitute the novelty.
Like the right of access to justice, no right to a court is not absolute and may suffer limitations or legal restrictions, however, should not affect its substance. Thus, consistent with the laws, constitutional and conventional limitations those that pursue a legitimate aim are proportionate to the aim pursued and the means or measures are reasonably related to the purpose (to meet reasonable relationship of proportionality between the means employed and the aim sought). As access to justice requires not need access to all levels of court and all remedies provided by law, no right to a court is not characterized, in substance, to the completion of all degrees of jurisdiction, limitations on access to justice being and limitations of the right to a court. The double degree of jurisdiction is not conventional or constitutional order so that the legislature can eliminate the appeal of the call. It is left to the legislature to regulate and limit the number of appeals, which may establish exceptions to the exercise of the judicial decisions in certain matters. Equally, however, as confirmed by the practice of the Constitutional Court (Decision no. 500 of 15 May 2012, published in Official Gazette nr. 492 from 18.07.2012; Constitutional Court Decision no. 967 of 20 November 2012, published in Official Gazette nr. 853 from 12.18.2012), no decision should be incapable of being attacked, as would prejudice the rights of the defense and eliminate judicial review by appeal undermines the principle of free access to justice and the right to a fair trial. Not being described as conventional rules, under the principle of subsidiarity, it is the right of the state legislature, but the obligation, positive and the result, is to regulate the right of access to a court and the right to a court in order to ensure their effectiveness and conditions exercise, but should not affect their substance. The regulation of these rights is intrinsically necessary, it is imposed by their very nature, but it must be "clear, accessible and predictable" (Deleanu, 2008: 159).
In matters of fundamental rights and as consistently held by the European court and the constitutional court, the regulation must meet the above requirements, accuracy, consistency and clarity, so that by the regulation of the legal proceedings, the procedural course of the parties should be predictable, conduct may be determined by its proper part, and it must to be able to foresee the consequences of his behavior and to adapt procedural vs. legal requirements. All this is, in turn, to secure the right to a fair trial. In ensuring the right of the proceedings pertaining to the essence of the right to a court, the legislature is therefore the one that sets the proceedings, any exceptions that prevent substantive examination, given that can challengea decision or conditions of exercise an extraordinary remedies. The latter can be restrictive, but without impairing the right to use an appeal, a component of the right of access to a court. The right to effective enforcement of the judgment, a component of the right to a court, is provided by the express provisions contained in Article 6 paragraph 2 of the new code, according to which the right to a fair trial applies enforcement phase of the civil trial. Equality of arms is not expressly provided through guarantees the right to a fair trial nor the Convention nor the new code. However it is seen as a component of a fair trial, as an element of its case-law and was established as a principle according to which each party must be afforded a reasonable opportunity to present his case under conditions that do not place a net unfavorable situation in relation to the opponent (Deleanu, 2008: 198-199). Closely linked to contradictory, equality of arms requires equality of means, a balance between a party and its opponent, that opponent or attorney times when he participates in the lawsuit.
The new code gives a greater equality of arms principle that it provides adequate procedural means for each party that facilitates presentation of the case. Thus, communication is much better regulated procedural requests in the initial phase of the process and before the first hearing fixed, summoning the parties, proposal and approval samples remedies.
The regulation contained in the new code, like the conventional and constitutional attributes characteristic independence and impartiality of the court, along with the requirement to be prescribed by law. A court must be prescribed by law that is to exist and be organized according to the rules of the law of judicial organization, authority, i.e. can state with full jurisdiction and judge the composition and constitution required by law. Courts are established by law, it is prohibited by the Constitution to establish extraordinary courts, as is the law that sets out all the power and then performs the procedure. The principle of achieving justice through judicial bodies provided for in Article 126 of the Constitution and Article 1 of Law nr. 304/2004, according to which justice is administered by the High Court of Cassation and Justice and other courts established by law.
The independence of the courts was seen in two ways (Ciobanu, 1996: 18-22). Functional independence or independence of the judiciary requires separation of the legislature or the executive, with the foundation principle of separation of powers, that "the court" cannot belong to the legislative or executive power, nor can suffer interference from them. Independence is assessed in relation to the parts of the process. Personal independence involving litigation requirement without any interference, is seen in relation to the status of judges, important being guarantees given, as they may be judicially inferred from the European Court decisions, some of which are the assessment criteria independence (Barsan, 2010: 471), respectively, the recruitment, tenure, protection against external stresses, the appearance of independence, they can add the level of remuneration, the way of advancement, the distribution of files, advertising debates secret deliberations. Of course, personal independence is ensured and the quality of the judge's reasoning reflected in his decisions, timeliness of motivation and continuing professional development.
Judges' tenure is a right and a guarantee of their independence, as provided in Article 125 of the Constitution and Article 2 of Law nr. 303/2004 regarding the status of judges and prosecutors. Irremovable judges may be moved by transfer, delegation, seconding or promoting their consent and may be suspended or dismissed only by law. The essence of the principle of tenure is that the judge cannot take any measures of the kind mentioned nor may face penalties for how he chooses to resolve a case. The independence of judges is a guarantee for impartiality and a precondition for that. Impartiality is ensured at the same time, a number of procedural mechanisms such as incompatibility or collegiate court judge.
Impartiality is provided by Article 124 of the Constitution, Article 2 of Law nr. 303/2004 and in the European Charter on the Status of Judges. Impartiality is the sense of fairness, objectivity in relation to the parties is a fundamental condition of existence magistrate. The European Court impartiality is the lack of prejudice or preconceived ideas to solve a case and can be seen as subjective or objective impartiality. Subjective impartiality can be considered a subjective approach designed to determine the intimate conviction of the judge. It is presumed, and evidence to the contrary, that the judge was biased, is difficult since this is a subjective factor. Only when there is an objection can it be demonstrated. Objective impartiality concerns external circumstances, apparently inducing implies a lack of objectivity and objective approach which tends to judge whether such guarantees to exclude any legitimate doubt (Theohari and Eftimie, 2013: 30). Thus, if there is a seemingly simple lack of objectivity, the judge should refrain from judging that issue in this new code, unlike the old regulation, providing in addition to the usual cases of incompatibility, based on the circumstances leading to possible lack objectivity of the judge (condition for some, affinity, hostility, personal, etc.) and more general one: "where other elements that arise rightly doubts about his impartiality".
To prevent situations of partiality, procedural law establishes the concept of incompatibility of the judge, and providing specific mechanisms for their removal from the trial of a cause: abstention, recusal and relocation process. The new code, an absolute novelty, merges as the cases of incompatibility cases the former regulation is constituted distinct incompatibility cases and cases of abstention or challenge. Proceedings within optimal and predictable time limit, as provided by the new code in Article 6 correspond to the reasonable time requirement laid down in Article 6 of the European Convention on Human Rights, Article 21 of the Constitution, Article 91 of Law nr. 303/2004 and the Rules of Procedure of the courts, and at the same time, a higher standard. The term optimal replaces reasonable time stipulated in regulations mentioned, and its significance increases. The solution code is consistent with the requirement imposed by the Framework Program of the European Commission in 2004 for the Efficiency of Justice (CEPEJ Ruling established by the Committee of Ministers of the Council of Europe) "A new objective for judicial systems: judging each case within optimal and predictable" (Deleanu, 2008: 282-283; Tabarca, 2013: 47). Under the program, "reasonable time" required by Article 6 of the Convention is a "minimum threshold" in respect of which it is estimated the compliance or nonconventional norm, but a more rigorous standard is imposed as "best period". The state form reaction process must be timely, effective, legal proceedings should not be too long, to ensure legal certainty of individuals and not even deny access to justice, but not too short, expedient, in order to ensure rights of defense. However, provided predictability establish judicial process, so that the can foresee or anticipate the process. The mechanisms by which the process is expected to be complementary to those that contribute to reducing the reasonable duration of this time, is the major desideratum.
Like reasonable time, any conventional or domestic regulations do not define the term optimal, its significance can be inferred from the European Court regarding reasonable time to hear the case. Civil process is, by its nature, an activity spread out in time, so it must combine the demands of aquality act of justice with the need for an effective judiciary and a prompt response from the supplier. Timing is inherent in the process, but when it becomes excessive is as damaging as no other judicial act. A large delay in any proceedings affects even the effectiveness and credibility of justice.
Like reasonable time, optimal term requires the principle of solving a case, the speed, but the content is much more nuanced. Thus, if the reasonableness means a normal limit, the preferred term is a term that ensures the best efficiency in achieving justice (Theohari and Eftimie, 2013: 30). Or in other words, the preferred term is more than the celerity of the procedure, involving the setting of "Framework duration of court proceedings, realistic and controllable, efficient and prompt intervention by appropriate measures, in case delays" (Deleanu, 2013: 211). The right to resolve the case within a reasonable time became fundamental through constitutional and conventional provisions, overriding the status element of a fair trial. Equally, however, this right must be viewed in relation to a strong guarantee of its implementation, namely, the right to an effective remedy provided by Article 13 of the European Convention.
The state has the positive obligation to ensure rapidity and results, the same obligations as the court. Also, if it finds violations of rapidity, and the process is being excessively delayed state intervention required to repair damage caused by delay in the case. Violation of reasonable time thus draws in state responsibility, but only if such infringement can be attributed to pressing justice organs to administer justice.
The reasonable period of time and therefore the optimum term is assessed according to the European Court, in the particular circumstances of the case before. Thus, it can constitute criteria for assessing the reasonableness of the length of the trial: complexity of the case, given the nature of the dispute, the facts, the procedure, including preliminary procedures imposed legal issues raised; conduct of the parties that if involving abusive exercise of procedural rights cannot be imputed to the State; "Stakes litigation" that may impose greater celerity when the right in question requires a speedy resolution; behavior of state authority, including its agents entrusted with the procedural acts or experts operating under the control of the court proceedings. In the practice of the European Court has been identified as a cause for undue delay attributable to the State, legislative surveillance changes that have excessively delayed the process. Agglomeration court or judge in writing was not considered relevant decisions could justify excessive duration of the process. It was considered that the assessment made within a reasonable time after the first court was hearing or the date of opening of an advance, if this is mandatory and stretching and the enforcement phase, part of the civil trial. Addressing a preliminary question to the Court of Justice of the European Union is not taken into account in assessing the duration of the process, but the proceedings before the Constitutional Court is within the reasonable period of time (Barsan, 2010: 522-527). In appreciation of this last situation should be considered repeal Article 29 paragraph (5) of Law nr. 47/1992 by Law 177/2010, so the court before which the exception of unconstitutionality no exception suspended due to settlement by the Constitutional Court. In the context of the new referral code arises whether the High Court of Cassation and Justice for a ruling prior to unraveling the legal issues, newly introduced procedure, similar to the procedure of the question, is a procedure to be included in the optimal term, given beings that, on the one hand, according to Article 520, judgment is suspended, and, on the other hand, once the procedure is necessary to clarify a complex issue of law which in itself constitutes the criterion for assessing reasonable time.
The lawmaker's concern with the new code to ensure optimal and predictable duration of the process is reflected in the procedural provisions with a novel quality establishing effective means of achieving that aim. The new code divides the trial in two stages, the trial research and debating the merits of the estimation process and introducing the estimation to the process requirement. According to Article 238, the first hearing at which the parties are legally summoned, the judge, after hearing the parties, estimate the time required for the research process, taking into account the circumstances of the case, so that the process be resolved in an optimum term and predictable. Thus, the estimated duration will be recorded at the end and for good reasons, while listening to the parties, the court could reconsider the initial estimated time. Also, a procedure for checking and regulating the application of the proceedings, followed by service on the defendant, for the formulation of defense, communication of defense applicant for it to formulate response to the defense, however before setting the first hearing, contribute to reducing the length of proceedings by outlining procedural framework in an early stage, avoiding thus further delays.
The new regulation adjournment for lack of defense can be ordered at the request of the concerned party, only exceptionally, for good reasons and are not attributable to the party or its representative and to speed up the trial, for the first hearing, the court may approve the call for questioning the defendant, if the applicant made such a request, and other evidence requested by the applicant, subject to discussion contradictory hearing.
As indicated in Article 6 of the new code, following exposure requirements of due process, the court is obliged to order all measures permitted by law to ensure a fair hearing requirements imposed by the case and to ensure prompt deployment of judgment. Providing for speed is achieved by express provisions contained in Article. 241. Thus, for the research process, the judge sets the short terms, even from day to day, and only if there are reasonable grounds may he grant longer terms. The court may order the parties to make the acknowledgment by telephone, telegraph, facsimile, electronic mail or any other means of communication which shall ensure, where appropriate, communication or transmission of the text or document submitted for presentation at term notice and confirmation of receipt at the or the notification, unless the parties have indicated court corresponding data for this purpose. The judge may determine to parties and other participants in the process duties in terms of presenting documentary evidence, written relations, written response to questioning, and assisting in conducting competition within the expertise and any other steps necessary to solve the case. It is worth taking the new code provisions of Law nr. 202/2010, suggestively entitled Law on measures to accelerate the settlement process. In general, the procedural provisions setting deadlines for the exercise of procedural rights or effecting of pleadings and establish penalties for noncompliance with the deadlines.
In terms of providing an effective remedy as a guarantee of the right to resolve the case within a suitable time, the new code has established a domestic remedy by appeal on delaying settlement. In this way, any interested party may invoke the violation of the proceedings within an optimal and predictable time limit and may require legal measures for this to be removed. According to Article 522, appeals can be made when the court has disregarded the obligation to hear the case within an optimal and predictable time by taking measures established by law or by failing default when a law requires a pleading necessary to dealing although time since his last pleading was sufficient for making or performance of the measure. If such an appeal is upheld, it will issue an order for no further appeals, which take the necessary steps to remove the situation which caused the delay of judgment. Compared to the types of appeal proposed action for ensuring a reasonable term, compensatory appeal, which aims to cover damage caused partly by solving the case within a reasonable period of time and appeal preventive acting on the causes slowness of justice, i.e., disregarding rules that set the speed (Deleanu, 2008: 290-291), appreciated that the delay by regulating the appeal process established a preventive and punitive "remedy", without associating a compensatory "appeal" (Deleanu, 2013: 511).
Finally, as particularly important reform elements in the new code directly contribute to reducing trial time we must mention, without subjecting them to a comprehensive analysis, the redistribution of substantive jurisdiction and restructuring of the courts of appeals. Functional material jurisdiction was distributed among the courts so as to achieve an acceleration of the rate of judgment, and a uniform practice. Under the new code, the courts judge in the first instance, a number of cases of low value, less complex but common in practice, courts are courts with unlimited jurisdiction for trial at first instance, courts of appeal are appellate courts of law common and High Court of Cassation and Justice becomes common law court of appeal and so may provide a nationally consistent practice. In the matter of appeals, the reasons of process time, the new code, as a rule, are not subject to appeal judgments of courts of appeal in cases where the law provides that decisions of first instance are subject only to appeal. Thus, in most cases was suppressed appeal the appeal and did not call, thus ensuring a double judgment on the merits of cases.
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Received: November 20 2014 Accepted: December 2 2014
Daniel Ghita, Associate Professor, PhD, University of Craiova, Faculty of Law and Social Sciences, Law specialization, Phone: 0040351177100, E-mail: firstname.lastname@example.org.
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|Title Annotation:||Original Paper|
|Publication:||Revista de Stiinte Politice|
|Date:||Dec 1, 2014|
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