InfoBusiness Romania - online guide
The judicial system
The main normative acts that represent the basis for the organization and functioning of the Romanian judicial system are the Romanian Constitution and Law no. 92/1992 for court organization.
Structure of the judicial system
Courts in Romania include courts of law, tribunals, courts of appeal and the Supreme Court of Justice. The approximately two hundred local courts of law form the basis of the Romanian judicial system. They are established in most Romanian cities and settle litigation and claims of reduced significance.
In each county and in the Bucharest Municipality a tribunal functions in a headquarters in the county.
The total number of these tribunals is 41. Apart from their own court competencies granted under the law with respect to certain categories of litigation of medium importance, tribunals, in their capacity as courts immediately superior to local courts of law, exercise the legal control over the decisions ruled by the latter.
There are 15 courts of appeal that exercise their competencies as set out under the law in districts, each of which include several tribunals. The decisions ruled by the courts of appeal may only be challenged before the highest court of law in Romania, that is to say the Supreme Court of Justice.
The Ministry of Justice
Activity related to the judiciary is under the general management of the Minister of Justice, which ensures the conditions necessary for the functioning of the judicial system in Romania by exercising his/her duties with respect to the organization and control of the administering of justice, with which duties he/she is vested under the law.
The Superior Council of Magistracy
The Superior Council of Magistracy is a collegial body, independent of the public authorities, and is formed of 15 members, either judges or prosecutors, appointed by the Parliament for four years. Its purpose is to ensure, together with the Minister of Justice, the compliance with the independence of justice. The main duties of the Council of the Magistracy are related to the compliance with the statutes of the magistrates (i.e. the judges and the prosecutors) and the disciplinary control of the judges' activity.
The Public Ministry
The representation of the society's general interests, the protection of the legal order and the protection of the citizens' rights are ensured in Romania by the care of the Public Ministry. This authority exercises its duties through prosecutors organized in prosecutor's offices, which function near each court, but from which they are independent. The control of the prosecutors' activity is exerted by the Ministry of Justice.
The Court of Accounts
The jurisdictional duties regarding the manner of forming, administration and use of the financial resources of the state and of the private sector are incumbent upon, and exercised by, the Court of Accounts, in its capacity as an autonomous central public authority that carries out its activity near the Parliament of Romania.
The Court of Accounts has its own structure within the territory, as it is formed of the county chambers of accounts.
Both the Court of Accounts and the county chambers of accounts exercise their jurisdictional duties through jurisdictional colleges organized within the framework of the same and formed of financial judges. Along with the Jurisdictional College of the Court of Accounts and the chambers of accounts, financial public prosecutors carry out their activity.
The Constitutional Court
The authority that ensures the compliance of the legal provisions with the Constitution is the Constitutional Court. Comprising nine judges nominated by the Parliament and the President of Romania, the Constitutional Court exerts its constitutional control on the laws:
- either before the promulgation of the law, following the notices received from the President, the presidents of the two chambers of the Parliament, the Government, the Supreme Court of Justice, a number of 50 members of the Chamber of Deputies or at least of 25 senators (a priori control), or after the promulgation, through the decisions rendered on the exceptions raised in front of the courts by the justice clients (a posteriori control).
Romanian justice is organized on the basis of the principle of double jurisdiction. Therefore, as a rule, any case with respect to which a court resolution was ruled by the first-degree court, may be subject to a retrial by the appeal court in all of its aspects, both in merits and in procedural aspects. As a guarantee for the quality of the act of justice, this system is intended to secure the possibility of the court that is superior in hierarchy to remedy the potential errors made by the judges of the first-degree court.
Being of a Roman-German origin, the justice activity in Romania is based on the interpretation and application of legal norms, in systematized form, such the case of laws, of other normative acts and of legislative codes (civil code, civil procedure code, commercial code, penal code, penal procedure code, customs code, air code, etc.) is.
Therefore, the Romanian legal system had not consecrated the institution of legal precedents. The Romanian judges settle cases according to their own conviction and their own conscience, independent of the previous court decisions ruled by other judges with respect to similar cases.
Independence and immovability of judges
Judges (except for trainee judges), including the financial judges of the Courts of Accounts and of the county chambers of accounts, are both independent and immovable.
The independence of the judges arises from the principle of separation of powers within the state, as the court authority is not subordinated to the legislative or the executive branches of government. Any interference of the public authorities, which is intended to influence the decision of the judge, is prohibited.
By being granted immovability, the magistrate is protected against any arbitrary revocation, transfer or suspension, which could represent methods of pressure against him/her. In Romania, with the exception of the trainee judges, the appointment is made by the President of Romania, but upon the proposal of the Superior Council of the Magistracy, while the promotion, transfer and sanctioning of the judges appointed by the president of Romania may solely be resolved upon by the Superior Council of the Magistracy.
Romanian law allows for the use of arbitration as an alternative dispute resolution.
A conflict may be subject to arbitration if such method of settlement of disputes between the parties is provided for through (1) an arbitration (compromissory) clause included in a contract or (2) through a separate agreement concluded for this purpose.
Arbitration may be entrusted to a single arbitrator or several arbitrators that should try the litigation and pronounce an arbitration resolution that is final and binding upon the parties.
Under the reserve of compliance with the public order and the manners and morals, as well as with the imperative provisions of the law, the parties may set out, through an arbitration clause or agreement, the procedural rules with which the arbitration must comply in adjudicating the litigation, the distribution of arbitration expenses between the parties, the content and form of the arbitration resolution and, generally, any other rules regarding the progress of the arbitration.
To organize the arbitration, the parties have the following possibilities:
- to employ the services of an arbitration institution (institutional/permanent arbitration);
- to organize the arbitration by them selves, possibly assisted by the arbitrators;
- employ the services of a third party individual or legal entity, other than an arbitration institution (ad-hoc/occasional arbitration).
Romania ratified by internal normative acts the main conventions regarding arbitration, signed at an international/regional level, such as: the European Convention of Geneva of April 21, 1961 regarding international commercial arbitration and the New York Convention of 1958 for the acknowledgement and execution of foreign arbitration rulings.
Related to commercial issues, in Romania there functions the International Commercial Arbitration Court (CACI) as a permanent independent non-governmental arbitration body, organized near the Romanian Chamber of Commerce and Industry. Through the arbitrators recorded on its list, CACI offers services of internal and international commercial arbitration. The method of selection of the arbitrators agreed upon by CACI, the arbitration rules, the organizing and functioning of the same, form the object of the Court's own regulations.