A welcomed new approach of legal practice with regard to regularization procedure of a claim before a court


Submitting a claim before a court

The document by means of which a physical or a legal person demands to another physical or legal person to give, to do or not to do something, regardless of the specific object of the claim submitted before a court of law, is named claim or complaint in court. Within special regulated matters, such claim has also special names, as contraventional complaint or challenge on enforcement, but, in essence, the procedural document will remain a claim.

Submitting a formal claim before a court

Therefore, Article 200 (1) of the Civil Procedure Code states that, once a claim submitted, before the court appreciated by the claimant as competent, it is randomly assigned to a panel, which verifies whether such claim is according to all legal mentioned conditions.

Among all these legal conditions, Article 200 expressively refers to the provisions of Article 194 of the Civil Procedure Code which regulates the content of any claim before a court of law. Article 194 letter b) mentions that the representation mandate, within the form provided by Article 151 must be attached to the complaint.

Distinct from such „uninspired” succession of a reference provisions, the text of Article 151 states:

(1) Whether the claim is made by means of a representative, the original or its legalized copy is to be attached.

(2) The lawyer and legal counsel shall submit their power of attorney, according to the law.

(3) The legal representative shall attach a legalized copy of the document attesting its quality.

(4) The representatives of the legal private persons shall submit, in copy, an extract of the public register where their mandate is mentioned.

(5) The leading body or, consequently, the appointed representative of an association, society or any other entity without juridical personality, shall attach, in legalized copy, an extract of the document attesting its right to represent before the court”.

The manner of practical interpretation of the incident legal provisions

Within the legal practice, the courts interpreted in an extremely limited manner the above-mentioned text, stating that the claimant`s any lack of conformity would lead to the conclusion that he did not comply with all legal obligations, and the sanction would be the one mentioned by the Article 200 (4) of the Civil Procedure Code, namely the annulment of the claim.

With regard to some claims which must be submitted before the court within a limited period of time, such as contraventional claim or the challenge on enforcement, the annulment of the claim signifies the impossibility of submitting a new one, given that, by the moment such sanction is applied, the legal period above mentioned has already passed. Therefore, it is obvious that, in these cases, the sanction of the annulment of the claim is extremely “severe”.

In such situation, there is one remedy, provided by the Article 200 (5), respectively drafting a reexamination request against the hearing of annulment of the claim. Once such request granted, the above-mentioned hearing is annulled and the case file is sent to the originally vested panel to continue the legal procedure. Whether the reexamination request is denied, the claimant has no other legal mean to discuss the initial claim, when such claim was meant to be submitted within a limited period of time.

The analysis of the manner of practical interpretation of the incident legal provisions, provided by the High Court of Cassation and Justice and the Romanian Constitutional Court

The High Court of Cassation and Justice, by means of the Decision no. 42 of 27 March 2023, stated that: “..the court is compelled to – as provided from the perspective of Article 6 of the European Convention of Human Rights within the European Court of Human Rights ‘Decision as of 31 January 2017, issued in the Case no. 19.074/05 Hassan Tunc and others against Turkey – as applying the procedural norms, avoid an excessive formalism which would breach the equitable character of the procedure, as appreciating that the right of access to a court is affected in its mere essence when its regulatory legislation ceases to serve the purposes of  legal security and proper administration of justice and represents an obstacle which prevents the litigant to request that its claim is judged on the merits of the case.

67. Therefore, the European Contentious Court stated within its case law that indeed the right of access to justice is not an absolute one; there can be restrictions which are implicitly admitted, as, by its own nature, is regulated by the state. But all applied restrictions (in the line of which is mentioned the procedural request of signing the claims) must be according to the Article 6 (1) of the European Convention of Human Rights and thus shall be only whether provided by the law, aim to a legitimate purpose and if there is a reasonable proportionality balance between the used means and the envisaged purpose. As a consequence, the national courts must sufficiently take into consideration the specific circumstances of each case and not to apply the relevant procedure norms in a way too rigid (see the decision of inadmissibility of 15 April 2014 in Case no. 66.268/13 Lefter against Romania, decision of 26 January 2006 in Case no. 62.710/00 Lungoci against Romania, decision in case Hassan Tunc and others against Turkey above-mentioned or decision of 5 April 2018 in Case no. 40.160/12 Zubac against Croatia).

The content of “way too rigid” is to each court to analyze and decide. But, as stated within the European Court`s case law, such analysis must be in accordance with the specific situation of each case.

Romanian Constitutional Court also decided – Decision no. 31/21.01.2014, Decision no. 97/27.02.2014, Decision no. 410/03.07.2014, Decision no. 372/14.05.2015 – that the procedure regulated by the Article 200 of the Civil Procedure Code has “as purpose the completion of some lacks of the initial claim, so as, at the moment the first hearing is settled, the claim should have all elements provided by the Article 194 of the Civil Procedure Code”. Romanian Constitutional Court remembered that the aim of regulation of Article 200 of the Civil Procedure Code is “to relieve the courts of incomplete claims, as its nature is to prepare the judgement under all its aspects. By means of this procedure, one also provides a protection of the defendant, to which is communicated a complete claim against which one could formulate defenses by means of Statement of Defense”.

The constitutional contentious court also acknowledged that “the regularization procedure of the initial claim also grounds the solution of principle stated within Article 14 (2) of the Civil Procedure Code, according to which the parties are to mutually communicate to each other, in due time, either directly or by means of the court, the case may be, the factual and legal grounds of their claims and defenses, and the means of proof used, so as each one of them could organize the defense”.

One could conclude that, in the light of the principles issued by the European Court of Human Rights and transposed by the case law of the High Court of Cassation and Justice and the Constitutional Court:

  • A specific discipline of the claimant is of the essence of the regularization procedure, in order to attest being serious and perseverant in its legal action;
  • The regulation also takes into consideration the protection of the defendant which, in order to accordingly prepare its defense, should clearly acknowledge the claims…, and also the means of proof of the claimant;
  • One should thoroughly analyze and apply this formalism, according to the circumstances of each case, in order to preserve the aim of the procedure and not to transform it into an impediment to access of the justice act itself.

Given the manner that both the European court and the national courts analyzed the applicability of the Article 200 of the Civil Procedure Code and the Article 6 of the European Convention of Human Rights – Right to an equitable trial – it would result that the interpretation of Article 200 of the Civil Procedure Code must ensure: on one hand, the requirements imposed to the claimant (the one vesting a court of law with a claim), namely seriousness and perseverance in its legal action and, on the other hand, the necessity that, by respecting all requirements above-mentioned, one should not breach or harm the right to an equitable trial and the free access to a court of law.

Applying into the legal practice of the conclusions stated by the High Court of Cassation and Justice and Romanian Constitutional Court

The practical mean of interpreting the legal norms in discussion is more often encountered within the legal practice of national courts. One court stated that[1]The annulment of the claim does not come automatically, as a result of any formal lacks of the initial claim. Being a sanction with a nature of limiting, even temporarily, the access of the claimant to the justice, which is a component of the constitutional and conventional right to an equitable trial (Article 21 (3) of Constitution and Article par. 1 of ECHR) this sanction should be proportional with its justifying grounds. The idea of proportionality between the interference within a fundamental right and the public interest motivation which justifies it should become a normal one, in order to orientate the daily interpretation and applicability of the procedural norms. Therefore, not only formal vice, but a serious one should determine the annulment of the claim. Beside this aspect, one requires a systematical and teleological interpretation of Article 200 of New Civil Procedure Code. One could not absolute and detach these provisions from the context of the fundamental principles of civil trial and the other provisions of the New Civil Procedure Code. It is absolutely necessary that the court takes into consideration the scope envisaged by the law maker when writing the legal provision, in order to apply the legal text so as to answer to this scope and not in an excessively formalist and rigid manner, which would disregard the real intention of the law maker. Therefore, the court appreciates that the stake of the trial for the parties and the need of a fast solution should have priority to the need of complying fewer formal lacks, which can not affect – at least, not in an imminent, direct manner – a proper trial and the aim of the written initial procedure”.

One could only observe that the courts apply more the proportionality principle between the scope of the law – the reason for which one legal provision was written – and the right to an equitable trial, by sanctioning serious lacks and not formal ones.

[1] The decision in extenso available here.

Article written by Mădălina Scurtu, Partner, Civil and Administrative Disputes – Nowium Legal

Madalina SCURTU

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