Judicial Activities

Carrying out judicial activities

Judge or court

Neither through the 2004 justice laws, nor through the 2005 amendments, was it understood that justice is not done by the courts, but by judges. It is true that the error comes from the constitutional norm according to which “Justice is administered by the ICCJ and the other courts regulated by law”. Besides the fact that we do not understand the dichotomy in the ICCJ on the one hand and the other courts on the other hand, it is obvious that a decision is not given by the entire court, but by the judges who work in that court. this is a fundamental difference from the other public powers: in time for the enactment of a law or decision it is necessary its approval by the Plenum of the Parliament, respectively by the Plenum of the Government,a single judge is sufficient for the exercise of judicial power [18] ; also, unlike the other public powers, the magistrate positions are occupied by examination and not by the election procedure, as in other states.

In this idea, the courts can only have an administrative role (in fact, they are organized as administrative institutions), housing inside them the offices of judges – the true perpetrators of justice.

Random file sharing

In the past, cases were assigned to judges for settlement by the president of the court or one of the sections, which was a direct pressure on the magistrate (eg, “uncomfortable” judges received more and / or heavy cases) or was meant to raise suspicions. of corruption. this last reason generated the appearance of the SCM Decision no. 71 of March 9, 2005 and currently the division of files is done randomly, with the help of the computer.

Regarding the functioning of this system, we show that the determination by the computer of both the judge and the first term for solving the case is inappropriate . Since the records of the current files are not kept electronically, but only of the newly entered ones, it is possible to reach a judge who already has several files to solve or more difficult, to be overloaded by assigning the newly entered cases without being able to take into account. of these.

Therefore, SoJust shows that only the judge should be appointed electronically. he will then set his own first trial term, depending on the load of files he has and the time he deems necessary to thoroughly study the case. thus, the administrative autonomy of the judge within the court is increased. On the other hand, in many situations the computer cannot be programmed to determine and establish the first trial term in such a way as to respect the speed and urgent resolution of a case (we consider the cases that are judged urgently and especially) .

Scheduling court hearings

One of the problems for litigants is that they cannot predict when the proceedings will be completed. Trying an action often means approaching a process that is expected to be long but whose exact scope is impossible to predict. thus, litigants tend to consider that the impression of a process that will never end applies to all cases [19] . Lawsuits require predictable processes (from the beginning) as well as an optimal settlement period. however, it should be noted that a predictable time limit is not in itself an acceptable time limit. acting for a better predictability of the time frame is therefore additional to the action of reducing the time duration. Transparency should be provided by publishing data on the length of trials for each type of case, both at national and court level.

Currently, the litigants are summoned at the same time, in the morning, regardless of the serial number they have. It happens that some people wait from morning until late at night to get their turn in court. The situation is met especially in criminal matters at the courts of first instance, where the duration of a day of trial is longer due to the high number of hearings. A good organization of the court would include summoning at certain times : first the files where there are requests for postponement, then those with lack of procedure, then those where the administration of evidence is simpler (with documents) etc.

During the court vacation, although the law stipulates that only urgent cases and those with detainees are solved in criminal cases, many court presidents order the normal trial, throughout the summer, to appear on a better position in national statistics on the number of solved cases. The decision is not one of the happiest: the holidays should be left to the judges to adjust to the legislative appearances, and the entire staff to be able to take their rest leave. However, most lawyers are on vacation during this period, so setting a deadline during the summer is purely formal, just to run the case, because postponing its settlement is almost certain. Not insignificant are the unnecessary expenses from the budget of the courts, determined by the summoning of the parties during the judicial vacation,

Publishing solutions

Although the facility for publishing the solutions of the courts of each court at http://portal.just.ro has been officially created , the opportunity is not sufficiently exploited.

Only at the courts of Arges county I met posted on the internet all the judges’ decisions, in extenso , in a way that allows consulting the solutions pronounced in a day in real time, searching for a judge’s practice in a certain matter or controlling by the president the manner of observing the term for drafting the decisions. this application should be extended to the whole country: in addition to the facilities offered to parties and lawyers to consult the progress of a case and the content of decisions, it makes it unnecessary for courts to maintain paper registers.

Last but not least, the access of the magistrates to the full text of the court decisions serves to unify the judicial practice, an aspect not to be neglected at present.

Motivation of solutions

The way of drafting a decision in Romania is the one we all know: the practice, the considerations, followed at the end by the device. There are few court decisions organized or structured on points of argument, numbered. It is commonly known that the decisions of European courts (European Court of Human Rights and Community courts – European Court of Justice, Court of First Instance and Civil Service Tribunal) are based on another way of systematizing ideas that greatly facilitates the approach of issues, and the style The writing is most suitable being easy to read. In order to achieve a classification of the problems approached when drafting the decision, a synthesis capacity, an overview and a certain aesthetic sense are needed.

this way of writing is not specific to the Romanian judges, the rule being the exposition of all the problems, without numbering them or without individualizing the paragraphs and, therefore, without being able to refer to any previous point or to a certain paragraph. Moreover, motivating a solution is often limited to an unnecessary narration of all procedural acts performed by the parties or the court, followed at the end by the dry rendering of the applicable law.

Therefore, we believe that the way of drafting judgments should be reviewed , somewhat obsolete, obsolete, so that the decision also allows the courts to refer to certain issues by indicating the point or paragraph, to facilitate reading, understanding and to facilitate its analysis by litigants and last but not least to be recognized by European courts [20] .

Relationship with litigants

As for the citizens, in their capacity as “consumers of justice”, it is found that there is still a great distance between magistrates and them: often the litigants leave, dissatisfied, the courtrooms, because they are not sufficiently explained what is happening. , the solutions are not convincing, the decisions are not predictable. As, as far as they are concerned, a “consumer protection body” does not function, the relevant activity of the courts, each and as a whole, is relevant, as well as the reaction and energetic action of the SCM. Although a “Guide to litigation” was printed last year, the information contained in it is only reproductions of legal texts and not presentations in an accessible manner of information of procedural interest [21]. I found courts where this guide is not even displayed (except on the Internet), but is kept in the offices of judges or clerks.

But also the frequent inappropriate reactions of the litigants maintain this tense situation. Since the abrogation of the insult through insult and slander, there are many situations in which the parties or witnesses swear at the magistrates without being able to take against them only the measure of procedural fine. Also, due to the lack of a sufficient number of gendarmes in the courts, the security of magistrates is often endangered by recalcitrant litigants. Finally, it should be remembered that the countless petitions addressed to administrative or legislative bodies (Presidency, Government, Parliament, SCM) or the media, in search of a parallel justice [22] , only deepen the negative state and increase distrust. population in court.

An increasingly widespread practice is the repetition of requests initially rejected by the court, without this being able to be stopped according to current legislation (for example, the request to revoke the measure of pre-trial detention by a judge is rejected, and the next day the defendant formulates a new request for the same reasons to another judge). such situations should find a legislative solution, as was recently found in the matter of recusal by Law 356 of 2006.

Civil society (relevant institutions, non-governmental organizations, citizens) both nationally and internationally should be encouraged to participate in the debate with a view to improving the functioning of the judiciary.