One of the fundamental responsibilities of a Supreme Court is to establish and maintain a high degree of consistency in national jurisprudence, thereby strengthening public confidence in the judicial system. Consistent jurisprudence helps to ensure predictability of solutions in similar litigation situations and thus to guarantee the right to a fair trial from the perspective of respect for the principle of legal certainty, a fundamental element of the rule of law.
The European Court of Human Rights, recognising that divergences in case-law are by their very nature an inherent consequence of any judicial system based on a set of courts having jurisdiction within their territorial jurisdiction, has ruled that the role of a supreme court is precisely to settle such contradictions in case-law, and that the High Court of Cassation and Justice cannot itself become a source of legal uncertainty, a persistent non-uniform practice at its level being in itself contrary to the principle of legal certainty.
According to Article 126 para. (3) of the Romanian Constitution, the High Court of Cassation and Justice ensures the uniform interpretation and application of the law by the other courts, thus having the fundamental role of unravelling or clarifying legal issues that have created or may create a non-uniform judicial practice through the unification mechanisms regulated by law, namely the appeal in the interest of the law and the delivery of a preliminary ruling.
Apart from these direct, explicitly regulated mechanisms, the High Court of Cassation and Justice has also created a series of indirect mechanisms to unify judicial practice, i.e. to prevent the emergence of divergent practice, by disseminating the jurisprudential guidelines of the Supreme Court. These have a guiding role for national courts, since in Romania judicial precedent is not a source of law.
From this perspective, the online publication of all its case law, free access to the case law and publications of the High Court of Cassation and Justice, as well as to studies and summaries of case law published on its own website are part of the register of good practices that the Supreme Court has initiated in relation to other national courts, legal professionals and recipients of the administration of justice, in order to disseminate its opinion in relation to the disputed legal issues.
National Network for the Unification of Jurisprudence.
Since August 2023, by Order no. 253/18.08.2023 of the President of the High Court of Cassation and Justice of Romania, a National Network for the Unification of Jurisprudence was established, a wide-ranging initiative that reflects the concern of the Supreme Court to refine the existing mechanisms for remedying discrepancies in national jurisprudence and to ensure the prerequisites for its coherence.
The National Network for the Unification of Jurisprudence has a dual functionality – on the one hand, it allows judges of national courts to consult the database on how the supreme court has decided issues of non-uniform practice – either through direct mechanisms or through solutions of principle, and on the other hand, it allows courts of appeal to report in real time on issues of non-uniform practice identified in their jurisdiction.
The High Court of Cassation and Justice, through the Service for the study and unification of case law, will indicate in the platform, in accordance with the referral made by the Court of Appeal, its reference judgments on the issue of law in question, which can be used by the national judge as soft law mechanisms.
In the event that the Supreme Court has not ruled on the legal issue raised, the procedural mechanisms will be activated to provide guidance opinions, and if these prove to be ineffective, steps will be taken to formally unify the case law.
Therefore, the National Network for the Unification of Jurisprudence involves the participation of all judges involved in the administration of justice, either in terms of consulting the database or in terms of the possibility of reporting in real time problems of non-uniform practice, generating an immediate response from the specialised department of the High Court, thus ensuring the uniform development of the jurisprudence of the national courts.
The work of the National Network for the Unification of Jurisprudence is supported by the judges of the High Court of Cassation and Justice and the judges from the courts of appeal designated as contact points. They bring to the attention of the Network the non-uniform practice and the legal problems encountered in the chambers of the courts in which they operate, and they also have the role of disseminating the decisions of principle of the High Court, thus preventing the perpetuation of non-uniform practice at national level.
The High Court of Cassation and Justice and the courts of appeal have appointed judges as contact points for the relationship with the National Network for the Unification of Jurisprudence, who through dialogue and regular meetings take a proactive approach to avoid the emergence of divergent guidelines in the practice of national courts.
The work of the National Network for the Unification of Jurisprudence is coordinated centrally by a judge of the Supreme Court appointed by order of the President of the High Court of Cassation and Justice.