The idea of writing this Article has arisen in the context of the numerous delays in drafting of court decisions, even in urgent cases. Despite our best efforts, that is to say, making requests to speed up the drafting process of the decisions, matters have stagnated, and our clients await months and years for decisions to be drawn up in urgent cases, such as actions concerning the release of a property or administrative litigation.
This Article does not aim to make criticisms, but rather to point out a number of shortcomings in the judicial system, which have, at the very least, an indirect effect on economic activity and society as a whole, and to find possible explanations and remedies for them.
Some figures from statistics
The dynamics of the number of cases in recent years show that since 2017 in the courts, the trend has been a steady decrease in the volume of activity. By way of example, in the role of the courts of appeal in 2020, the volume was 44.770 cases lower than in 2017. However, the courts in the capital are still the busiest courts in the country, with the Bucharest Court of Appeal having 62.173 cases, the Bucharest Tribunal 119.950 and the 1st district court having 61.510 cases, in 2020.
In 2020, the national average was recorded as follows: [i] within the Court of Appeal – 523 case files/ judge, [ii] within tribunals – 640 case files / judge and [iii] in courts of law, 1029 case files/ judge. [1]
Although the number of cases currently registered since 2017 have decreased, it still seems that we are facing an overburdening of the judicial system, in the context of free access to justice, the appetite of Romanians for litigation, the abusive conduct of the administrative authorities, lack of cash flow in some areas of activity and a lack of staff in the judicial system. This overburdening has adverse consequences in terms of the quality of justice, the length of the trials, the delay in rendering judgments and thus the achievement of the effective social benefits which are pursued by the parties when vesting the court with litigation.
It should be noted that, although the courts are not direct actors involved in the economy or society, they have a significant impact on these areas and they are creating a trend in social and contractual relations through the decisions they render in certain landmark cases (i.e. the judgments for the cancellation of decisions for the prolongation of the state of emergency the judgments in administrative disputes, in disputes between landlords and tenants during the state of emergency, and in disputes between consumers and banks).
Thus, what we want to point out is that slow and cumbersome justice deviates from the primordial constitutional aim of the courts, respectively “the defense of legitimate rights, freedoms and interests” (according to Article 21 para (1) of the Constitution).
However, although there are certain disadvantages linked to the organization of the judicial system or the degree of burdening of the courts, they must not overlook the essential role that is devoted to the act of justice, that is to clarify the truth in the dispute in question and the establishment of an unbiased solution that restores the contractual/social balance.
Exempli gratia
We face and feel hard and directly the effects of the delay in the process of making justice. Below we recall, by way of example, just a few of the cases that we have encountered in our practice:
– in actions concerning the release of a property (made in urgent proceedings), registered before the first court in August 2020 and finally settled in May 2021, we have not yet received (end of December 2021) the court ruling rendered in the appeal phase, although it has been more than one year and five months since the date of registration of the application for legal action (urgent, according to procedural requirements) and more than 7 (seven) months after the issuance of the final court ruling even after: [i] 3 (three) requests were made to expedite the drafting of the judgment, [ii] the party we represented won the dispute, but to this day still does not have access to the premises (more than one year and five months later), because the court ruling has not been drawn up. The delay in drafting the court ruling has considerable pecuniary consequences to the client’s business which cannot enforce the court ruling, although there are 3 (three) months left until the construction permits will expire and, in the meantime, creditors have applied for the opening of insolvency proceedings. These consequences can also be attributed to some extent to the delay in the process of justice;
– we are still waiting for the decision rendered in a tax litigation settled in first instance in favor of our customer (taxpayer) in August 2020. In this judgment, the Court of Appeal ruled that the company we represent is entitled to a refund of EUR 1 million (as principal), plus legal interest calculated from February 2018. Although more than 1 year has passed since the judgment was not drawn up (and cannot be therefore appealed/enforced), the defendant will have to pay interest (including the period of more than one year required for the drawing up of the judgment), this means that during this period, an amount of EUR 126.000 has been accumulated due exclusively to the delay in the judicial process. The consequence of non-compliance with the time limits for drafting the judgment is therefore felt by all parties involved in the proceedings, thus [i] by the claimant, who is currently unable to recover approximately EUR 1 million, which aggravates its financial situation, which is already precarious, and can lead to adverse consequences, including the opening of insolvency proceedings, and [ii] by the defendant, who will have to pay interest for an extended period;
– we had to wait more than two months for the drafting of the reasoning of a court ruling by which the trial was suspended. The reasoning was short, with only one phrase and in flagrant contradiction with the legal provisions in force. Such delay for drafting one sentence counts considering the following circumstances: [i] the claim was lodged with the court in December 2017 (more than 4 years ago), [ii] was previously suspended, [iii] the claimant’s claims amount to (a) RON 1,6 million – principal and (b) the delay penalties calculated from December 2016 have so far reached EUR 170.000, which will have to be paid by the defendants, although they are not entirely at fault for the excessive length of time to resolve the dispute. The key issue in this process is that the claimant has been bankrupt for more than 1 year and the way in which justice is being carried out in this case (through successive delays of the hearings, ungrounded suspensions of the trial) prevents the recovery of the receivables registered by the creditors of the bankrupt company;
– after two years of trial, the court issued a favorable solution to our client, but the order of the court ruling presented obvious formal flaws, that is the omission to rule on the legal costs requested by our client, and the confusion of dividends with interests. The decision of the court of first instance has not yet been drawn up, the interest rate has increased, and 5 (five) months ago, following our request, the court issued a ruling for the correction of material error (not drawn up), which unfortunately contains the same material error (interest on dividends remained mentioned as dividends),
– the higher appeals in the trials concerning the suspension of the enforcement of an administrative deed are heard by the Administrative Section of the Supreme Court after 1-2 years as of the date of registration of the higher appeal, although such disputes are urgent. The matter of administrative disputes should be defined by speed, and the higher appeal in administrative disputes should be judged with the utmost urgency.
These are just a few examples, and they are certainly not the only ones in our practice or in the practice of other lawyers.
Treatment difference. Time limits for the parties
What we want to bring to light at the moment is that while when it comes to time limits (drafting the reasoning of the court ruling, time limits for court proceedings) courts have much flexibility in practice, which greatly prolongs the trial, the same treatment is not available to the parties.
Thus, the difference in legal treatment is easily noticeable, since the parties (parties to the trial, lawyers) have to observe the mandatory time limits set by the applicable procedural rules, under the appropriate penalties (losing certain procedural rights, cancellation of the applications) and the courts have the discretion to assess when and under what conditions (in terms of the quality of the reasoning for the judgment) to draft judgments. However, this situation creates an unjustified discrepancy, as we are all partners in justice and we are pursuing the same aim, namely the pursuit of justice, albeit by different means and methods specific to the procedural position that we have.
Moreover, by way of example, it is well-known that the parties receive addresses issued in the regularization procedure or other procedural documents with A short term for reply/challenge (decisions that have to be appealed in five days of the communication of the reasoned decision) during the winter holidays, and they have to comply by making every necessary effort to meet the mandatory deadlines, although they wait months/years for the procedural acts in question, which shows a lack of equality in the treatment of the partners to justice.
Conclusions and remedies
We do not intend to exhaust the examples, neither to find all the causes or perhaps even the key to solve them, however, we are trying to sound the alarm and brainstorm possible solutions. As a result, while the most effective remedy (in this case recourse to justice) should have an immediate effect, justice in some cases seems to become an institution, useful more in theory, which plays a weak and delayed role, which does not meet the needs of the parties and the quality requirements of the trial.
In this respect, the remedies of such situations could consist of [i] setting mandatory deadlines for issuing reasoned judgments (including to be respected by the judges), [ii] digitizing justice (implemented only in part, by some courts), [iii] establish clear time-limits for court proceedings, [iv] access to alternative dispute resolution (pre-litigation, conciliation by lawyers).
On the other hand, this Article does not omit or ignore the contribution of judges and their important role in society, all the more so since there are situations where the course of justice goes beyond the expectations of any parties and takes place with the observance of all procedural rules.
In this respect, as far as the judges are concerned, an ongoing subject for discussion, is the possibility of their admission to the profession after having gained experience in another area of law which possibility remains alive. This could be useful in order to fully understand the economic reality and social mechanisms and thus to give a judgment after being fully aware of its implications.
