The High Court of Cassation and Justice is one of the first institutions of the Romanian State, the establishment of which was set up by the Paris Convention, concluded on 7/19 August 1858 (Art. 38 of this Convention stated: “A Court of Justice and Cassation, common to both Principalities, shall be established. It shall be located at Focşani. It will be established by law. Its members will be irremovable”) and was effectively implemented by the Law for the establishment of the Court of Cassation and Justice of 12 January 1861, published in the Official Gazette of Moldavia no. 88 of 23 January 1861 and the Official Gazette of the Romanian Country no. 18 of 24 January 1861 (according to the law establishing the Court, it was headed by a first president and had three chambers, each headed by a chamber president, each chamber having 7 councillors, a total of 25 members, whose functions were irremovable).
The law on the organisation and functioning of the Court of Cassation and Justice was subsequently amended several times (in 1864, 1870, 1877, 1905, 1906, 1910). Thus, the main changes were made by Law No 1032 of 17 August 1864[1] for the division of the Court of Cassation (whereby the number of chambers was reduced to two: “Civil Chamber and Criminal Chamber”, and the “Complaints Chamber” was abolished. Each chamber was composed of seven members and a president, the Court being headed by a First President) and by the Law of 30 June 1905, published in the Official Gazette of Romania No 72 of 1 July 1905 (which established the Third Chamber for Administrative and Commercial Litigation).
Following the adoption of the new Constitution in 1923, a new law was also adopted, Law No 144 of 19 December 1925 for the Court of Cassation and Justice[2], published in the Official Gazette No 282 of 20 December 1925. “The decisions of the Courts of Appeal and of the Courts of Jury, as well as the judgments of the ordinary tribunals given as appellate court, the judgments of the special jurisdictions and of the military tribunals, in the cases and in the manner established by law, shall be pronounced by recourse to the High Court of Cassation. Except in cases in which, by derogation from the general jurisdiction of this Court as a recourse court, the law shall have assigned that jurisdiction to another court,” Article 2 of the Law said. Article 29 of this law established the sole and exclusive jurisdiction of the High Court of Cassation and Justice to review the constitutionality of laws. By the same law, the number of members of the Court was set at 46 (a first president, three presidents of chambers, 18 counsellors in the First Chamber and 12 counsellors in the Second and Third Chambers). According to Article 72 of the new law, the Court of Cassation, in United Chambers, at the end of each year decided “what are the defects of legislation, or the shortcomings that will be observed during the year”, making a communication in this regard to the Ministry of Justice, the report being published in the Annual Bulletin of the Court.
Law No 144 of 19 December 1925 underwent several amendments, the most important of which were those made by Law No 150 of 12 June 1930 amending certain provisions of the Law on the Court of Cassation and the Law on the Organisation of the Judiciary[3], published in Official Gazette No 127 of 12 June 1930, or Law No 54 of 29 April 1931 amending certain articles of the Law on the Court of Cassation and Justice of 20 December 1925, as amended by the laws of 1 January 1929[4], published in Official Gazette No 77 of 31 March 1932.
After the Constitution of 1938 – by which the Court of Cassation and Justice acquired the prerogative to validate elections to both Assemblies and to verify the mandates of the members belonging to each of them – Law No 144/1925 was amended several times and republished in the Official Gazette No 212 of 14 September 1939, on the basis of Decree-Law No 3.319 of 5 September 1939. After the amendments to its law, the Court of Cassation and Justice had four chambers (the Fourth Chamber of the Court was created to hear appeals in administrative, expropriation, administrative, tax and pension matters, as well as conflicts of jurisdiction) and 80 members: the first president, four chamber presidents, 64 counsellors, the public prosecutor and 10 prosecutors.
After its republication in 1939, Law No 144/1925 also underwent several amendments and additions, the most important of which were made by Law No 63 of 31 January 1945 on the amendment of certain provisions of the Law on the High Court of Cassation and Justice[5] published in the Official Gazette No 25 of 1 February 1945. By this law, the number of chambers was reduced to three and the number of councillors to 51, with each chamber having 17 councillors, plus the presidents of the chambers and the first president.
Once the communist regime was established, the Court of Cassation and Justice no longer had its own organisational law, its organisational and operational rules being laid down by Law No 341 of 5 December 1947 on the organisation of the judiciary, published in Official Gazette, Part I A, No 282 of 5 December 1947.
Following the adoption of the 1948 Constitution, Decree No. 132 of 1 April 1949[6] on the organisation of the judiciary was issued by the Presidium of the Grand National Assembly of the R.P.R., published in the Official Bulletin of the R.P.R., Part I, No. 15 of 2 April 1949 (repealing Law No. 341/1947), the High Court of Cassation and Justice being hereinafter referred to as the Supreme Court. By this decree the number of counsellors was reduced to 28, and the Court was organised into two chambers: the Criminal Chamber, which heard recourses in customs matters, in forestry matters, against decisions of military courts and criminal recourses, and the Civil Chamber, which heard all other recourses.
By Law No 5 of 3 June 1952 on the organisation of the courts[7] adopted by the Grand National Assembly and published in Official Gazette No 31 of 19 June 1952, the Supreme Court became the Supreme Tribunal (a name it was to bear for almost four decades). By Articles 35 to 42, this law (which was republished in the Official Bulletin No. 8 of 4 March 1953, the provisions of Articles 35 to 42 of the original form maintaining their numbering) established that in the Romanian People’s Republic there was a single Supreme Tribunal, with its seat in the capital, headed by a president, assisted by one or more deputy presidents, and that it had three colleges: the Civil College, the Criminal College and the Military College, each of which had a president and the number of judges required. The Supreme Tribunal was the court of recourse for judgments handed down on the merits by the regional tribunals, the military tribunals of the military regions and the Navy, the territorial military tribunals and the Capital tribunal. At the same time, the Supreme Tribunal judged on the merits of cases given by law within its jurisdiction. On the other hand, the Supreme Tribunal supervised the judicial activity of the courts by judging the requests for redress and by the guidance it gave through decisions adopted by the plenary of the Supreme Tribunal, in the presence of the Minister of Justice and with the participation of the General Prosecutor.
After the adoption of the 1965 Constitution, a new law for the organisation of the judiciary was also adopted, Law No 58 of 26 December 1968[8], published in the Official Bulletin of the S.R.R, Part I, No 169 of 27 December 1968. According to Law No. 58/1968, the Supreme Tribunal was elected by the Grand National Assembly for a term of office equal to the duration of the legislature, and between sessions the State Council could appoint and dismiss the President, Vice-Presidents and other members of the Supreme Tribunal. It still had three chambers: civil, criminal and military, with the vice-presidents each heading a chamber.
Following the adoption of Law No. 58/1968, the Supreme Tribunal was competent to: – exercise general control over the judicial activity of the tribunals and courts of first instance, by hearing recourses against judgments handed down at first instance by the tribunals and extraordinary recourses lodged against final judgments by the Minister of Justice or the General Prosecutor; – issue decisions of guidance, with a view to the uniform application of the laws in judicial activity; – hear at first instance cases assigned by law to its jurisdiction, as well as other applications provided for by law.
Following the adoption of the 1991 Constitution, Article 125 of the Basic Law replaced the name Supreme Tribunal with Supreme Court of Justice. Under Law No 92 of 4 August 1992[9] on the organisation of the courts, published in Official Gazette No 197 of 13 August 1992, the courts in Romania are: the courts of first instance, the tribunals, the courts of appeal and the Supreme Court of Justice, the organisation and functioning of the latter being regulated by a separate law.
This was done by Law No 56 of 30 June 1993 of the Supreme Court of Justice[10], published in the Official Gazette of Romania No 159 of 13 July 1993, an organic law, according to the provisions of Article 74 para. (1) of the Romanian Constitution. The law provides that the Supreme Court has the power to hear recourses against decisions of the Courts of Appeal and other decisions established by law, as well as to hear recourses for annulment and appeals in the interest of the law. It also has the power to adjudicate on the merits in cases provided for by law.
By the above-mentioned law, the Supreme Court of Justice did not regain the prerogative to rule on the constitutionality of laws, but it was given the possibility to refer the matter to the Constitutional Court before the promulgation of the laws (Art. 5 and Art. 25(e) of the law). As regards the organisation and composition, 5 chambers were initially foreseen: civil, criminal, commercial, administrative and military. Each chamber had its own jurisdiction and was headed by a president. In addition to a maximum number of 80 judges, who were not irremovable, but were appointed for a 6-year term with the possibility of reappointment. The Court had a President and a Vice-President who, together with the Presidents of Chambers, formed the Permanent College.
Law no. 56/1993 was amended by Law no. 79/1996, published in the Official Gazette of Romania, Part I, no. 150 of 17 July 1996, and by Law no. 142/1997, published in the Official Gazette of Romania, Part I, no. 170 of 25 July 1997, republished in the Official Gazette no. 56 of 8 February 1999. Following the amendment and completion of the law, the Supreme Court of Justice was organised into four chambers (civil, criminal, commercial and administrative), the panel of nine judges and the United Chambers, each with its own jurisdiction.
With the 2003 revision of the Romanian Constitution, the Supreme Court of Justice returned to its historical name: “High Court of Cassation and Justice”, and its judges regained the prerogative of immovability. Article 126 of the Fundamental Law, in paragraphs 1, 3 and 4, states that: (1) “Justice is carried out by the High Court of Cassation and Justice and by the other courts established by law.” (3) The High Court of Cassation and Justice shall ensure the uniform interpretation and application of the law by the other courts, according to its competence. (4) The composition of the High Court of Cassation and Justice and the rules of its functioning shall be established by organic law.”
However, the legislator chose not to provide its own law on the organisation and functioning of the supreme court, but allocated a separate chapter to the High Court of Cassation and Justice in the Law no. 304/2004 on judicial organisation, published in the Official Gazette no. 576 of 29 June 2004[11]. This law was republished in Official Gazette no. 827 of 13 September 2005, and the provisions relating to the High Court of Cassation and Justice are also found after the republication, also in Title II, Chapter I.
Law no. 304/2004 has undergone numerous amendments and additions over the years, among the most important in terms of the organization of the high court are those introduced by Law no. 202 of 2010 on some measures to accelerate the resolution of cases[12], published in Official Gazette no. 714 of 26 October 2010 (under which the powers of the panel of nine judges were taken over by the panels of five judges) or Law No 71/2011 implementing Law No 287/2009 on the Civil Code[13], published in Official Gazette No 409 of 10 June 2011 (which changed the names of the Civil and Intellectual Property Chamber and the Commercial Chamber to First Civil Chamber and Second Civil Chamber), Law No 76 of 24 May 2012 implementing Law No 134/2010 on the Code of Civil Procedure,[14] published in Official Gazette No 365 of 30 May 2012 (under which a second vice-president was introduced into the structure of the supreme court’s management and the judicial structures of the supreme court included, in addition to the Panel for the resolution of appeals in the interest of the law, the Panel for Preliminary Ruling on Questions of Law), or Law No. 207/2018 amending and supplementing Law no. 304/2004 on the judicial organisation[15], published in Official Gazette no. 636 of 20 July 2018 (which also made a number of organisational and procedural changes to the work of the High Court of Cassation and Justice).
[1] http://legislatie.just.ro/Public/DetaliiDocument/19655
[2] http://legislatie.just.ro/Public/DetaliiDocument/27558
[3] http://legislatie.just.ro/Public/DetaliiDocument/30812
[4] http://legislatie.just.ro/Public/DetaliiDocument/34797
[5] http://legislatie.just.ro/Public/DetaliiDocument/22929
[6] http://legislatie.just.ro/Public/DetaliiDocumentAfis/22164
[7] http://legislatie.just.ro/Public/DetaliiDocument/46761?isFormaDeBaza=True&rep=True
[8] http://legislatie.just.ro/Public/DetaliiDocumentAfis/203
[9] http://legislatie.just.ro/Public/DetaliiDocumentAfis/2359
[10] http://legislatie.just.ro/Public/DetaliiDocumentAfis/3189
[11] http://legislatie.just.ro/Public/DetaliiDocumentAfis/53087
[12] http://legislatie.just.ro/Public/DetaliiDocumentAfis/123025
[13] http://legislatie.just.ro/Public/DetaliiDocumentAfis/129268
[14] http://legislatie.just.ro/Public/DetaliiDocument/138484?isFormaDeBaza=True&rep=True
[15] http://legislatie.just.ro/Public/DetaliiDocumentAfis/203052