The Romanian High Court of Cassation and Justice

The Romanian High Court of Cassation and Justice (1862 – 2021)

The establishment of High Court of Cassation and Justice (by law of January the 12th, 1861, enforced on 15th / 28th of March 1862) [the Court or HCCJ] was part of the process of establishment of institutional basis of Romanian modern unitary state, as a request, at the same time, to modernize and unify the judiciary system following the union of principalities of Moldova and Wallachia on January the 24th, 1859. The statute of the new supreme court capitalized the national traditions of judicial organization, especially those related to the knowledge and assertion in the respective field of principle of separation of powers in the state (partially enshrined by the Organic Regulations of 1831–32), ideas of institutional modernization reflected in the revolutionary modernization projects of Romanian society of 1848, as well as the provisions of the Treaty (1856) and of the Paris Convention (1858) on the establishment of Romania’s international status as „European interest state”. In the belief of its founders, the Court was „called to cure the largest evil, which, for a very long period of time, was a burden for our country, that is „the lack of confidence in justice”. The Court was asked to re-establish the trust and to rise the judicial branch from decrial. Thus, we must make all efforts so that soon we can hear: Justice rules in Romania!”. In the architecture of the new Romanian state, carved mostly after the French model, as „peak” of judicial power, the HCCJ had a triple statute: cassation court, court for ministers, high dignitaries and its members, as well a disciplinary court for magistrates. Pursuant to the European dominant vision, and taking into account that in the Romanian judicial organization system there were two degrees of jurisdiction related to the same number of courts, that is tribunals and courts of appeal, charged to characterize the facts and to apply the law, the High Court of Cassation and Justice was not among them, and it did not represent a real tribunal. It was considered a judicial character authority because it judged in a special modality „the judge” who served and not the parties. It was also to a certain degree an extension of the legislative power because it had the mission to defend the law, an established principle of law. Due to this, the existence of a law is ensured, one and the same on the entire state and equality of all citizens before the law. Even if it settled excess of power of court on the merits this did not eliminate its character of defender of the law, of the right in itself, due to the fact that what seemed to be an exception was the confirmation of the rule, so that the courts on the merits should not, by abuse of law, settle on the merits, exceed the jurisdiction limits or distort the law by its application.

1. The organization of the Court. The Law of 1861 divided the Court into three divisions: the Admissibility Division (Chambre de requetes), the Civil Division, and the Criminal Division. It consisted of the First Chair person, three division Chair persons, and 21 judges (each division being allocated a Chair person and seven judges); The Court Prosecutor’s office consisted of a Chief prosecutor and three prosecutors, one for each division. The staff of Registry of the Court consisted in a Chief Clerk and three division clerks.

The Admissibility Division was tasked with reviewing the civil cases in appeal and deciding on the admissibility of their remanding to the Civil Division.

After only a few years, however, the very existence of such a division was considered useless and even detrimental to the activity of the Court, for which reason it was suppressed, along with its prosecutor and clerk, by Law Decree of August 7th, 1864. Therefore, the High Court remained with only two divisions namely the Civil Division and the Criminal Division. The Law of March 5th, 1870 renamed the Civil Division as the First Division and the Criminal Division as the Second Division and better specified ratione materiae powers. At the beginning of each judicial year, after the annual judicial summer holidays, the divisions panels were renewed in part by moving four judges from each division to another by drawing lots. In 1964, after the amendment of the organic law, a total reciprocal replacement took place, in the sense that at the beginning of each judicial year all the judges of one division were moved to the other division and the other way around.

By the Law of July 11th, 1905, the Third Division i.e. Division for administrative claims was established. The Law of 1910 abolished it; however, it was subsequently re-established by the Law of February 17th, 1912.

2. The evolution of the legal and regulatory regime. The Law of August 7th, 1864 amended first the original Law of 1861 by abolishing the First Division i.e. the Admissibility division (which also meant the decrease of the Court staffing plan by one division First Chair person, seven judges and one prosecutor), and, in the same year, the Law of August 19th, 1864 reshuffled the divisions and reframed their powers. A more substantial amendment was made by the Law of March 12th, 1870, when the name of the divisions and their competences were modified (i.e. the Civil Division became the First Division empowered to judge the appeals in civil matters, and the Criminal Division became the Second Division empowered to judge the appeals in criminal, correctional and petty police matters, as well as the appeals in electoral, expropriation, commercial matters, etc.).

The Law of March 1st, 1877 amended the art. 7-15 of the organic law on the Registry of the Court and the Public prosecutor, these legal institutions components being reduced to the General prosecutor’s office and one division prosecutor.

The Law of June 30th, 1905 brought a core change by establishing the Third Division on contentious administrative and commercial matters. The Law of March 7th, 1906 established that the General Prosecutor was a delegate of the 22 judges of the Court, the three divisions panels consisting of seven judges, led by a division Chair person, the Chair person of the First Division having the position and duties of the First Chair person of the Supreme Court.

The Law of March 24th, 1910 (the so-called “Toma Stelian law”), named after its initiator who was the then ministry of justice in the Romanian cabinet led by Ion I.C. Brătianu) removed from the competence of Third Division the contentious administrative matters, the latter being remanded to the competence of the courts of general jurisdiction without recognizing their right to annul illegal administrative decrees (the principle of separation of powers was asserted).

This was followed by the Law of February 16th, 1912 (the so-called “Law of Matei Cantacuzino”) which readdressed the mission of the Court in the sense that there were remanded to the jurisdiction of the Second Division the appeals of those whose rights were allegedly violated by an administrative certificate of authority, made in violation of the law, as well as the appeals against the refusal of administrative authorities to resolve a claim relating to such a right, without distinguishing between patrimonial or non-patrimonial rights. As noted in the legal doctrine, the Law of 1912 restored to the Court of Cassation the jurisdiction in contentious administrative matters; however this jurisdiction was limited to the action of declaration of an illegal administrative decrees as unlawful, and not to the annulment of the illegal administrative decree itself.

Both the adoption of the new Constitution of March 29th, 1923 and the consecration to new principles required the preparation and endorsement of a new law on the Court of Cassation and Justice, namely the Law of December 19th, 1925 (the so-called “Mârzescu Law”). Thus, the main novelty brought was the conferral to the High Court with united divisions of the power to judicial control the constitutionality of laws, a legal provision that was in force, with some interruptions, until 1947. However, under the pressure of historical events and legal practice developments, this law also underwent many amendments brought by the laws of January 1st, 1929, January 3rd, 1930, January 1st, 1931, July 25th, 1931, with a peak in the major amendment brought by the Law of March 29th, 1932, republished, which was actually a new Law of Cassation.

This latter law, in turn, was also subjected to a series of amendments by the laws of July 3rd, 1934, April 1st, 1936, March 22nd, 1937, June 24th, 1938, May 30th, 1939, July 13th, 1939 and September 14th, 1939, when it was republished in its entirety, based on Law Decree No 3319 of September 5th, 1939. One could say that, by the application of the latter amendment, the Supreme Court reached its height in terms of institutional development. The Constitution of February 1938 (art. 50) invested the Court with the prerogative to validate parliamentary elections and to verify the mandates of parliamentarians.

In a chronological order, but in close connection with the unfolding of historical events, the Law No 63/1945 made an important change by which the powers and role of the Court were substantially diminished. This became even more obvious when, giving up the tradition of the existence of its own organic law, the regulation of the Court status was included in Law No 341/1947 on the judicial organization, and thus the Court of Cassation became just a court among other courts in the Romanian judicial system. The increasing “Sovietization” of the country was marked by the adoption of the Constitution of 1948, followed by Decree No 13/1949 on the judicial organization, through which the High Court of Cassation and Justice became the Supreme Court. For the same reason, the 1952 Constitution led to the adoption of the Law No 5 of June 19th, 1952 on the organization of the judiciary, through which the Supreme Court was placed on the top of the judicial hierarchy, which only vaguely reminded of the judicial institutional arrangements involving the former Court.

By virtue of the Romanian Constitution of 1965, a new regulation was adopted in the matter, that is Law No 58 of December 27th, 1968, which upheld the Supreme Court.

After the events of December 1989, the return to the democratic formula of the Court of Cassation and Justice has been made gradually: first, the Constitution of December 8th, 1991, the title of “Supreme Court of Justice” was resumed, without, however, abandoning the idea of a supreme court, developed from a legal perspective by Law No 92/1992 on the judicial organization. Another significant step was the return to the tradition of a special law dedicated to the supreme court i.e. the Law No 56 of July 13th, 1993 on the Supreme Court of Justice.

The process has continued by the revision of the Constitution, in November 2003, which reinstated the High Court of Cassation and Justice, by an amendment transposed by law.

3. A paramount concern – transformed into a definitive dimension of the activity of the Romanian Supreme Court – has been the preservation and defence of independence in carrying out its works and the fulfilment of its tasks, against any kind of intrusions and bias, first and foremost from the political power. The “litmus test” and the inception moment of such an attitude, which has been preserved and upheld over time with sacrifices and according to the terms imposed by history, were in place from the very first years of its existence and consisted in the process initiated by the Electoral Assembly of the Cabinet of the Romanian Principalities in July 1860; the then Government was accused of abuse of power and acquitted by the Court by its decision of September 1862. The inappropriate reactions of the parliamentarians who went so far as to question the impartiality of judges received a firm reply by the position of the Court published in the Official Journal (Issue of February 11th, 1863). The commitment made at that time by the plenum of the High Court is a testamentary legacy, valid even today: “The Court will continue in the future its mission as it has done until today without relying on any other leaven than the law and conscience, having no account of its decisions except to God.”

4. Forum for the development of Romanian law. A less known attribution of the Court of Cassation was the one provided in art. 81 of the Organic Law of 1861, according to which the High Court “shall, at the end of each year, communicate to the Ministry of Justice the flaws or shortcomings that will be noticed over the year to the legislation in force, submitting them to the Prince through a deputation within it, a reasoned and clear relation in which there will be written down the reforms that experience would have deemed necessary to introduce in some part of the legislation. This relation will be published and communicated by the Prince to the Central Committee”.

To carry out the task aforementioned, the High Court worked as a General Assembly, consisting of all its members: the First Chair person, the Division Chair person, the judges, the General prosecutor and the prosecutors. By making use of the same format, the Court gave its opinions on the various draft laws submitted to it for review and in particular on the laws on the organization of the judiciary, but especially on its own organic law, as well as on the various legal issues of interest to the judiciary and the prestige thereof. Subsequently, this legal provision was maintained, but without providing the Court’s obligation to communicate its conclusions and related concerns to the head of state.

In this context, a special role was played by the jurisprudence which, emanating from a “supreme court”, was the necessary and important complement of legislation, shedding light on obscure or ineffective pieces of regulation or establishing a rule emerging from the general principles of law in line with the public interest when the law was silent. Over time, especially the decisions rendered in referrals in the interests of the law, in resolution of legal issues, resolution of appeals in cassation or “guidance” have meant – in addition to firm guidelines in the accurate and uniform application of the law in force, sources for improving legislation, developing positive law and enriching the law as a science, in general. In that regard, an relevant example is the historic decision rendered by the First Division of the HCCJ, on June 28th, 1912 (issued in the famous “Trams’ case”), which ruled, in the absence of express legal provisions and based on the interpretation of related regulations and in the spirit of the fundamental law and general principles, the right of the judge of any category to raise the issue of confronting a law not only with the letter of the law but also with the spirit of the Constitution, when the provisions of the former were not complied with the latter and imposing subsequent removal of the illegal provisions concerned. This Romanian jurisprudence has had a strong echo as comparative law, influencing similar attitudes in other foreign jurisdictions. The jurisprudential solution was taken over and enshrined constitutionally (1923) and legislatively (1925), and the Court of Cassation, through its united divisions, became competent to judge the constitutionality of laws and being able to proclaim as inapplicable, i.e. unenforceable to the appellant, those provisions inconsistent with the fundamental law, by virtue of the relative nature of the judgment.

The mission to inform on the conclusions of the judicial practice was entrusted to the Buletinul Casației (“Cassation Journal”) magazine, published between 1862 and 1946 and which printing was resumed in 2005, having the mission to publish the most important decisions of the Court, under the care of its members. It has been considered the “most important instrument of Romanian jurisprudence” which represented the legal culture, the initiating role of “grammar and dictionary” for stakeholders: magistrates, lawyers, litigants and the general public.

The history of Romania’s supreme court is, at the same time, a significant page in our national history in general, as well as a significant page of our culture in particular. Going beyond its often minimized role of legal civilization within the scope of Romanian civilization, it is worth mentioning the spiritual contributions of some personalities of the Court, such as: Vasile Sturza, Mihail Kogălniceanu, Al. I. Papiu-Ilarian, Vasile Conta, Andrei Rădulescu, prestigious lawyers such as: Dimitrie Alexandresco, E. Schina, C. Stătescu, elite magistrates: O. Nicolescu, Dim. Volanschi, D. C. Lupu, or men of letters such as: A. Crețeanu, Ciru Economu.

5. After December 1989, amid the new historical conditions, the reorganization and adaptation of the entire judicial system has started aiming at first the Supreme Court, in the sense of returning to the democratic judicial tradition, yet in accordance with the current social requirements and background data of comparative law. The Romanian Constitution of December 8th, 1991 enshrined for the supreme court the name of the Supreme Court of Justice (SCJ), whose organization and functioning rules and regulations were established by its own organic law (Law no 56/1993), and providing a transitional status from the former Supreme Court (in place until 1989) to the present High Court of Cassation and Justice has become (after the 2003 constitutional review). According to the new regulation, the Supreme Court of Justice was aming at “the specific and unitary application of laws by all courts”. Its members were appointed for a six years term of office by decree of the President of Romania at the proposal of the Superior Council of Magistracy made on the recommendation of the Minister of Justice. The Court consisted of: one Chair person, a deputy-Chair person, four division chair persons and up to 80 judges, and it was organized into four divisions i.e. Civil Division, Criminal Division, Commercial Division and Division for Administrative Claims, the Panel of 9 judges and the United divisions, each being vested with own jurisdiction, established by law.

Although the immovability of judges of lower courts was granted, the term of office of the Supreme Court judges was therefore limited to 6 years, which, despite it was renewable, affected their independence. Moreover, the Court operated as a court of appeal and only partially with resonances of appeal in cassation regarding the appeal for annulment and the referral in the interests of the law.

Following the revision of the 2003 Constitution, the change of the supreme court name implied the completion of the transformation of its status, the High Court of Cassation and Justice being ow bestowed with the mission of ensuring “uniform interpretation and application of the law by other courts, according to its jurisdiction”. Through subsequent legislative amendments adopted for the development of the constitutional norm, the Court has largely regained its the role of cassation court, strengthened its powers of court of justice and stipulated its role of disciplinary court, by adapting itself to the requirements of the new organisational and operational environment of the judiciary.

As a matter of principle, the Supreme Court does not render judgments on the merits; its only division with such a competence is the Criminal Division and only regarding the exceptions expressly provided by law, namely those concerning the dignitaries and own members of the Court. The HCCJ divisions – i.e. Criminal Division, Commercial Division and Division for Administrative Actions – judge the appeals filed against the decisions rendered by the courts of appeal and other decisions in the cases provided by law. The divisions of HCCJ, according to the powers assigned to each one, also deal with the applications for change of venue, the conflicts of competence, as well as any other requests provided by law. The 5-judges Panel deals with appeals and applications in cases tried in the first instance by the Criminal Division of the Court, and other cases under its competence by law, as well as a Disciplinary court for judges and prosecutors. The united divisions of the Supreme Court have the competence to resolve the notifications regarding the change of the jurisprudence of the High Court and the referral to the Constitutional Court for the control of the constitutionality of the laws prior to promulgation. The constitutional role of unifying the application of the law by the other courts is achieved through two procedural means, namely: (a) directly, by establishing the way in which the laws must be interpreted and applied when the courts have rendered different judgements based on the same laws; (b) indirectly, by judging on the appeals in each case, so that the lower courts get familiar with and observe the jurisprudence of the Supreme Court through the instruments of cassation. One should add here the way of preliminary rulings for resolving legal issues.

6. The role of the Supreme Court in the “(contemporary) dialogue of judges”. In accordance with its role in the Romanian judiciary and according to the relevant legal norms in force, the High Court maintains institutional relations and develops the (procedural) dialogue of judges, specifically with the other courts and the Romanian Constitutional Court, it participates to and manifests itself according to its statute in the activity of the Superior Council of Magistracy and it is receptive and promotes the ideas and practice of a modern, open and creative justice. Attention is paid with priority to procedural and institutional relations with the European Court of Human Rights and the Court of Justice of the European Union. Last but not least, the HCCJ is open and active in general and specialized cooperation with other supreme courts, being a member the Network of the Presidents of the Supreme Courts of the European Union, the Association of the High Courts of Cassation of the Countries using French as a Second Language (AHJUCAF), the Association of Councils of State and Supreme Administrative Jurisdictions of the European Union, the International Association of High Administrative Jurisdictions (AIHJA) and the Superior Courts Network (SCN), which operates under the aegis of the European Court of Human Rights.

7. Surpassing such impermanent lights and shadows, the High Court of Cassation and Justice is the fundamental beacon, the “keystone” of the Romanian jurisdictional system, a living institution, in constant development and evolution, placed in a state of continuity through discontinuity, the first institution to provide the European and international stance of our national justice, a decisive sensor of Romanian public life.

Then there is the issue of its headquarters. With regard the Court of Cassation of France, the symbolic phrase for the characterization of the French Supreme Court reads as follows: “The Court of Cassation (Cour de cassation) is based in Paris, on the Island of Paris (Île de la Cité) and in the Palace of Justice (Palais de Justice), the former Palace of the Kings of France.”

With regard our Supreme Court, mutatis mutandis, we should also be able to state for good: The High Court of Cassation and Justice of Romania is based in Bucharest, in the Palace of Justice on the right bank of Dâmbovița River, where the core of national justice has traditionally found its geographical venue! In addition, the following saying should lie in the thoughts and hopes of every Romanian: “There are unbiased judges in Bucharest: at the Cassation Court!”