Like any other state in the world, Romania has been confronted in recent months and is still confronting with the atrocity of the pandemic caused by the Coronavirus COVID-19. Since the outburst of the rapidly spreading virus, all resources available were mobilized to effectively contain it and to repair the economic and social damage brought by the pandemic.
Owing to the health crisis, on 16th of March 2020, by means of Romania’s President’s Decree no. 195/2020, throughout the entire Romanian territory the state of emergency was established. The measures regulated in the Decree concerned all the sectors of national interest, including the judicial activity of the national courts of law.
One of the most significant measure regulated by Decree no. 195/2020 upon the functioning of the courts of law throughout the state of emergency consisted in the suspension of all the judicial activity performed in case files which were not considered to be of urgency.
Throughout the state of emergency, judicial activity continued, but priority was of course given only to those cases that were considered particularly urgent, such as: suspension of enforceable titles; suspension of administrative deeds; interim proceedings; protection order; approval of the enforcement; precautionary measures; insurance of evidence; suspension of the execution of the judgment; suspension of the provisional execution etc.
The suspension of the judicial activity which extended until 15th of May 2020, when the state of emergency established in Romania ended, plays a very important part in the delay of the proceedings increasing excessively the length of judicial proceedings.
The resumption of the activity of courts of law on 15th of May 2020 was a long-awaited and welcomed step by both lawyers and especially by the parties which had cases pending before the courts of law or which intended to initiate judicial proceedings.
However, owing to the unprecedented health crisis that we are currently experiencing, the courts of law have been obliged to change their working arrangements temporarily. Some of the measures set out were welcomed by the practitioners as well as by the parties.
To manage to further comply with the strict sanitary measures, the Romanian Superior Council of Magistrates [RO: Consiliul Superior al Magistraturii] issued a decision comprising guidelines and general recommendations to be applied by all Romanian courts of law.
In general, the recommendations were made to ensure that hearings take place under optimal conditions, praising a balance between the principle of solving the case within reasonable time and the principle of public health.
Those recommendations include rules on minimum physical distancing, such as:
- denial of access into the court’s building to persons exhibiting symptoms of Covid-19.
- the requirement to wear a protective mask inside the court’s building.
- setting appointments on separate time frames for studying of court files for lawyers, legal advisers, insolvency practitioners, experts and interprets.
However, it was recommended to allow the parties and/or their representatives access to the courtroom before the time assigned to the case file to properly study the record before attending the hearing.
In practice, most of the time, it is possible to consult the file during the time frame assigned, but there are courts of law which deny such access considering that the consultation of the file shall be made only electronically.
- setting appointments for access to the departments carrying out activities with the public (e.g. registry, archive) – the appointments may be made online or by telephone, in compliance with the rules of social distancing and only to the extent that the parties do not have the opportunity to consult the file or record electronically;
- the schedule of court hearings, the work schedule with the public and the information necessary for the prior appointment for access to the archive, registry, etc. to be published by the courts by posting in a visible place, by publishing on the court's website, as well as by any other means of public information.
For the schedule of hearings, the Council recommends the files to be listed on hourly frames to limit the number of persons present at the same time in the courtroom. The list containing the time frames assigned to each group of cases is recommended to be communicated by publishing on the court's website, as well as by any other means of public information.
The time frame assigned to the file may also be mentioned in the subpoenas sent to the parties. In cases where summonses have already been issued and sent, the time frame is brought to the attention of the participants in the judicial proceeding by other means, mainly by publishing on the court’s website.
In addition to the guidelines and recommendation previously mentioned, each court of law was granted with the possibility to adopt specific measures, complying with the Council’s decision. Such measures were later published on the websites of the courts of law.
In this respect, to facilitate communication with the parties in this period, the national courts of law strongly encourage the parties and/or their representative that the transmission of any procedural documents to be done electronically and only exceptionally in hard-copy form.
Moreover, a lot of national courts of law developed an application useful to gain electronic access to the case files pending before the courts of law. All details as to the functions of that application and the method for opening an account can be found on the webpage assigned to each court of law.
Also, due to the circumstances, application forms for opening accounts sent to the registry by email shall be accepted, exceptionally, on condition that they are accompanied by the necessary supporting documents, which are duly signed and scanned. The parties are requested to regularly consult the internet site of each court of law.
Further, access into the court’s building is restricted, the entry being allowed only with 20 minutes prior to the time set for the hearing of the case. Also, to gain access into the court’s building, persons are required to keep a distance of at least 1.5 m. The temperature of all persons entering the court will be taken, and persons who have a temperature of 37.5 or higher will not be allowed to enter the court. Also, wearing a protective mask is mandatory, and in the exceptional situation where the person does not have a mask and it cannot be procured immediately, the court provides a face mask.
In order to allow access into the building, some courts of law even required the completion of a form, which states: (i) if the person has specific Covid-19 symptoms, (ii) the purpose of the visit to the court: file, section, compartment and (iii) the obligation to leave the building immediately after reaching such purpose.
On a separate note, the most important and relevant recommendation of the Council regarding the setting of time frames for the hearing organized in each case was implemented by mostly all national courts of law.
This change of the working arrangements of courts of law was long-awaited by lawyers, legal advisers, insolvency practitioners and as well by the parties because it optimizes the judicial activity and the activity performed by other participants to the judicial activity. Thus, it is further hoped for the scheduling of files on time frames to be maintained even after the pandemic ends. The same applies to scheduling appointments with the departments archive and registry that have a program of work with the public.
Also, an interesting and debatable outcome, generated in the context of social distancing as part of the strict sanitary measures imposed, is the possibility of the Romanian courts of law to conduct the court hearings by videoconference. This recommendation stands in both civil/non-criminal and criminal cases.
Of course, such measure is debatable from the perspective of compliance with the principles governing civil and criminal proceedings. At the same time, it constitutes a new challenges for the respect of the fundamental principles of the trial, essential guarantees of our judicial systems, such as the primacy of the rule of law, the independence and impartiality of the judge, the principle of adversarial proceedings or the protection of fundamental freedoms.
The applicability of such measure in Romania is rather rare. Even during the state of emergency there was a low and reduced number of court hearings held by videoconference. However, considering the fact that European Commission for the efficiency of justice (CEPEJ) Work Group adopted in December 2018 the first European Ethical Charter on the use of artificial intelligence in judicial systems it is only a matter of time until the establishment of the terms and quality criteria for holding hearings via videoconference.
Another aspect worthy of being mentioned is that this year the judicial vacation was reduced to only one month (between 1st of August – 31st of August). During the judicial vacation, hearings are held only in cases that are particularly urgent (suspension of enforceable titles; suspension of administrative deeds; interim proceedings).
Nevertheless, the courts may organize hearings in non-urgent cases if the circumstances so require. For instance, the Bucharest Court of Appeal recommends that this period be used to resolve cases that were postponed in May and June 2020 or cases that are resumed after legal suspension during the state of emergency. The list of the cases in which hearing will be held shall be established by the management board of each court.
Despite the numerous disadvantages brought up by the Coronavirus COVID-19 pandemic in the judicial activity, some of the measures implemented to cope during this period were long-awaited and encouraged by the participants in the judicial proceedings. In this respect, reference may be made to (i) the scheduling of case files on time frames and (ii) the appointments made with the departments that have a program of work with the public.
The setting of hours for hearing in each case file pending on the docket of the courts of law is an operative mechanism that allows parties and especially lawyers or legal counsellors to efficiently organize their activity as participants in the judicial proceedings. Thus, it is further hoped for the scheduling of files on time frames to be maintained even after the pandemic ends. The same applies to scheduling appointments with the departments archive and registry that have a program of work with the public.
Finally, the most significant consequence of the suspension of the judicial activity throughout the two months period in which the state of emergency was established is the excessive delaying of the proceedings. Under such circumstances, it may be expected for a better remedy for combating dragging on proceedings that should impose some discipline on the parties and encourage the courts to act efficiently and decide cases without unjustified delay.
By Octavian Popescu, Partner, and Andreea Marin, Attorney at Law, Popescu & Asociatii