Do you know how the Romanian courts are structured? Does your Romanian lawyer explain to tou why the court case takes too long from your perspective? What can be done to speed things up, if at all?
The first thing any foreign investor or person contemplating taking proceedings should try and understand is a basic outline of the Romanian court system. Romania is a code law country and therefore it’s court operate differently and have a different set of procedures which it applies from the courts of Common law countries.
The code law system often refers to the “Civil Law”. This is the law of the people. This is very different from the common law. Therefore the people represented by the judges make the decisions.
Romania’s legal system follows the inquisitorial model which is encountered in civil law systems, although it is increasingly found in other legal systems notably the common law system. In the inquisitorial system the court (judge) is actively involved in investigating the case and may address questions to the parties, carry out enquiries, decide upon the necessity of particular evidence and invoke procedural incidents, etc. The court is also responsible for carrying out the hearings. This seems very strange to people versed in the common law system especially in respect of criminal matters where the court appears to be judge and jury all rolled into one. No trial by jury and your peers.
The civil law system is very different from the common law system which requires third parties to undertake the enquiries on its own behalf and then bring the facts and answers to the courts for the courts to consider and decide between the two parties on the facts presented to the judge in civil cases and the jury in the majority of serious criminal cases.
The Romanian civil court system encompasses the following subdivisions:
The court at first level (”Judecatorie”);
Court of Appeal;
High Court of Cassation and Justice.
According to its size or nature a claim may be settled at first instance by any of these courts. As a rule, an appeal follows a defined line of appeal. For example a claim settled in the first instance by the first court will be subject to a first appeal to the Tribunal and, if the case then requires (depending on its nature), a further appeal then the appeal is to the Court of Appeal. Similarly, a claim settled in the first instance by the Tribunal will be subject to a first appeal to the Court of Appeal, and to a second appeal to the High Court of Justice. None of these procedural steps can be omitted during the course of the appeals process. Therefore it is not possible to appeal from the court at first level straight to the Court of Appeal.
Court filings and pleadings are only open to the parties to the case and their conventional representatives. The identity of the parties, the dates of the court hearings and legal representatives and to any other person representing them and a short summary of each court hearing is available to the public through the court's electronic portal but this does not reveal details of the case. This can be very frustrating to parties who may be interested in the litigation – credit agencies, newspaper reporters etc.
The court proceedings, at the present time are open to the public and anyone can be present in the court hall during the public court sessions; there are some special cases which are heard in private in chambers e.g. divorce by mutual consent, some family matters, the procedure for the issue of a writ or order of enforcement, the settlement of procedural incidents such as the challenge or recuse of judges, or the re-examination of decisions regarding the amount of stamp tax due.
It is important for foreign investors to understand these various levels. An understanding will often explain the delays in the court system and the time taken to get a final enforceable court decision.
BWSP Hammond Bogaru & Associates, Globalaw Limited
Bucharest, RomaniaLegal Services